HSC Legal Studies Textbook

CAMBRIDGE
LEGAL STUDIES
HSC
SECOND EDITION
Paul Milgate
Daryl Le Cornu
Ann Miller
Sarah Robinson
Tim Kelly
Kevin Steed
Contributions by:
Travis McGregor
L. Elaine Miller
cambridge university press
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Cambridge University Press
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Information on this title: www.cambridge.org/9780521145909
Paul Milgate, Daryl Le Cornu, Ann Miller, Sarah Robinson, Tim Kelly, Kevin Steed 2010
Contributions by Travis McGregor and L. Elaine Miller
This publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.
First published 2010
Reprinted 2010, 2011
Edited by Carolyn Leslie
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Printed in China by Printplus Limited
National Library of Australia Cataloguing in Publication data
Cambridge HSC legal studies / Paul Milgate [et al.].
2nd ed.
9780521145909 (pbk.)
Cambridge legal studies
Includes index.
For secondary school age.
Law--Australia--Textbooks.
Law--Examinations--Study guides.
Higher School Certificate Examination (N.S.W.)--Study guides.
Le Cornu, Daryl.
Miller, Ann.
Robinson, Sarah.
Kelly, Tim.
Steed, Kevin,
349.94
ISBN 978-0-521-14590-9 Paperback
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Contents
About the authors
vii
Acknowledgements
viii
Introduction
Using Cambridge Legal Studies HSC
xi
Glossary of key words
xv
Part I: Crime
xvi
C H APTER 1 TH E N AT UR E OF C R IME
The nature of crime
Elements of crime
Causation
Strict liability offences
Categories of crime
Summary and indictable offences
20
Parties to a crime
20
Factors affecting criminal behaviour
21
Crime prevention: situational and social
23
Chapter review
26
C H APTER 2 TH E C R IMIN AL IN VES T IGAT IO N PRO C ESS
28
Police powers
30
Reporting crime
31
Investigating crime
32
Arrest, detention and charge
38
Summons, bail or remand
40
Chapter review
42
C H APTER 3 CR IMIN AL T R IAL PR OC ES S
44
Court jurisdiction: criminal courts
46
The adversary system
52
Legal personnel in a criminal trial
52
Pleas and charge negotiation
55
Legal representation and Legal Aid NSW
56
Burden and standard of proof
57
Use of evidence, including witnesses
57
Defences to criminal charges
58
The role of juries, including verdicts
61
Chapter review
64
iii
iv
C H APT ER 4 S EN T EN C IN G A ND PU NI SH M E NT
66
Sentencing and punishment
68
Statutory and judicial guidelines
68
The purposes of punishment
70
Factors affecting a sentencing decision
73
The role of the victim in sentencing
76
Appeals
76
Types of penalties
78
Alternative methods of sentencing
84
Post-sentencing considerations
86
Chapter review
90
C H APT ER 5 Y OUN G OF F ENDERS
92
Young offenders and the law
94
Age of criminal responsibility
95
The rights of children and young people when questioned or arrested
100
Childrens Court procedures and operation
104
Penalties for children
107
Alternatives to court
110
The effectiveness of the criminal justice system when dealing with young offenders
112
Chapter review
114
C H APT ER 6 IN T ER N AT IONA L C RI M E
116
Dening international crime
118
Categories of international crime
119
Dealing with international crime
126
The effctiveness of measures dealing with international crime
136
Chapter review
138
Themes and challenges for Part I Crime
140
Part II: Human rights
142
C H APT ER 7 T H E N AT UR E A ND DE V E L O P M E NT O F H U M A N RI G H TS
144
The denition of human rights
146
Developing recognition of human rights
147
Formal statements of human rights
162
Chapter review
166
C H APT ER 8 PR OMOT IN G A ND E NFO RC I NG H U M A N RI G H TS
168
Promoting and enforcing human rights
170
Human rights in Australian law
182
Chapter review
190
C am br i d g e L e g a l S t u d i e s HS C
192
Introduction
194
Issue 1: Human trafcking and slavery
195
Contemporary slavery
195
Human trafcking and slavery
196
Extent of human trafcking
197
Responses to human trafcking and slavery
199
Issue 2: Child soldiers
205
Dening the issue of child soldiers
205
Extent of the issue
207
Responses to the issue of child soldiers
210
C o ntents
C H APTER 9 CON T EMPOR ARY H UMAN R I G H TS I SSU ES
Chapter review
Issue 1: Human trafcking and slavery
216
218
Themes and challenges for Part II Human rights
220
Part III: Options
221
C H APTER 1 0 O PT ION 1: C ON S UMER S
222
The nature of consumer law
224
Consumer redress and remedies
242
Contemporary issues concerning consumers
249
Issue 1: Credit
249
Issue 2: Product certication
252
Issue 3: Marketing innovations
256
Issue 4: Technology
259
Chapter review
262
Themes and challenges for Consumers
264
C H APTER 1 1 O PT ION 2: GL OBAL EN VIR O NM ENTA L PRO TE C TI O N
266
The nature of global environmental protection
268
The development of global environmental law
271
The need for global environmental protection
274
The importance of ecologically sustainable development
277
Responses to global environmental protection
280
Contemporary issues concerning global environmental protection
296
Issue 1: The laws role in relation to global environmental threats
296
Issue 2: The demand for resources and global environmental protection
299
Issue 3: Australias responses to international initiatives
302
Issue 4: Barriers to achieving an international response to global environmental protection
304
Chapter review
306
Themes and challenges for Global Environmental Protection
308
C ontents
C H APT ER 12 OPT ION 3: FA M I LY
310
The nature of family law
312
Responses to problems in family relationships
329
Contemporary issues concerning family law
341
Issue 1: Recognition of same-sex relationships
341
Issue 2: The changing nature of parental responsibility
344
Issue 3: Surrogacy and birth technologies
346
Issue 4: Care and protection of children
350
Chapter review
354
Themes and challenges for Family
356
C H APT ER 13 OPT ION 4: W O RK P L A C E
358
The nature of workplace law
360
Regulation of the workplace
374
Contemporary issues concerning the workplace
383
Issue 1: Discrimination
383
Issue 2: Safety
387
Issue 3: Termination of employment
392
Issue 4: Leave
396
Chapter review
400
Themes and challenges for Workplace
402
C H APT ER 14 OPT ION 5: W O RL D O RDER
404
The nature of world order
406
Responses to world order
415
Contemporary issues concerning world order
433
Issue 1: The principle of responsibility to protect
433
Issue 2: Regional and global situations that threaten peace and security:
The nuclear threat
435
Issue 3: The success of global cooperation in achieving world order:

East Timor and UN intervention
440
Issue 4: Rules regarding the conduct of hostilities:

International humanitarian law
452
Themes and challenges for World Order
454
Answers to multiple-choice questions
456
Glossary
457
Index
467
Student CD-ROM Contents

Additional material for the Student Book
C H APT ER 7 T H E N AT UR E A ND DE V E L O P M E NT O F H U M A N RI G H TS
vi
447
Chapter review
C am br i d g e L e g a l S t u d i e s HS C
About the authors
Paul Milgate
Daryl Le Cornu
Sarah Robinson
Kevin Steed
Paul Milgate Dip Teach BEd

is Head Teacher of HSIE at
Xavier Catholic College on
the North Coast of NSW. He
has extensive experience in
Legal Studies, having taught
it since its inception. He was
a foundation member of the
North Coast Legal Studies
Teachers Association which
conducts student seminar
days and provides funding for
professional development in
collaboration with Southern
Cross University Faculty of
Law and Justice.
Dr Daryl Le Cornu BA (Hons)

DipEd PhD is currently HSIE
Head Teacher at Mount
Annan High School. He
has taught Legal Studies
for 16 years and is very
experienced in teaching
other senior humanities
courses. Daryl completed
a doctorate in 2005 on
the intellectual origins of
multilateral cooperation and
collective security in Britain
during World War I. He is an
experienced HSC marker for
Legal Studies and Modern
History. Daryl is also the
Education Program Ofcer
for the WCAA (World Citizens
Association of Australia)
and is a member of ACUNS
(Academic Council on the
United Nations System).
Sarah Robinson BA DipEd

is Head Teacher of HSIE
at Sir Joseph Banks High
School, where she also
teaches Ancient and Junior
History. She comes from a
background of Modern and
Ancient History, Geography
and Commerce as well as
Legal Studies. Sarah has had
many years of experience in
both School Certicate and
HSC marking.
Kevin Steed BA LLB, BEd,

MEd(Hons), Dip Teach,
MACE, JP is Head Teacher
of Commercial Studies at St
Marys Senior High School
and holds degrees in Arts,
Law and Education. He is a
highly experienced teacher
of the social sciences, having
taught and programmed the
Legal Studies course since
its inception. Kevin has 20
years experience as both HSC
Marker and Senior Marker,
and has a detailed knowledge
of the associated marking,
judging and standards
referencing protocols. He
has authored articles for
professional journals in the
social sciences, particularly
in the curriculum area
of Society and Culture.
Throughout 2008, Kevin
worked in conjunction with
the NSW Institute of Teachers
as an assessor of Initial
Teacher Education programs
to facilitate the provisional
accreditation of newly
employed graduate teachers.
Tim Kelly
Ann Miller
Ann Miller BEd GradDipEd
Admin MEdAdmin is a
teacher at Sir Joseph Banks
High School. Her background
in over twenty-six years of
teaching includes Economics,
Commerce, Business
Management, Information
Technology, History and
Legal Studies. Ann is also
an experienced HSC marker
in both Legal Studies and
Economics.
Tim Kelly BA DipEd DipLaw

obtained his BA DipEd from
the University of New South
Wales in 1984 and completed
his Diploma in Law from
the Legal Practitioners
Admissions Board in 1996.
He began teaching Legal
Studies in 1993 at St Marys
Maitland. Since 1998, Tim has
been the HSIE Coordinator
at St Marys in Casino. Tim is
also a tutor at Southern Cross
University in HSIE Curriculum
Specialisation and is a current
HSC marker for Legal Studies.
vii
Acknowledgements
Thanks to my wife, Barbara, my daughter, Ebony,

and my son, Zach a great team!
PAUL MILGATE
I would like to dedicate this book to the Class of

2010 HSC Legal Studies students at Mount Annan
High School.
DARYL LE CORNU
To all my family and friends, and especially Sandy,

thank you for your help and support. Sorry you
couldnt see the second one, Mum.
ANN MILLER
To my husband and children for their support, and

to the victims and families of crime may justice
prevail.
SARAH ROBINSON
To Amanda, Jack and Hannah thanks, innity

times, always.
TIM KELLY
For Alison the alpha and omega of friends. Thank

you.
KEVIN STEED
The author and publisher wish to thank the following

sources for permission to reproduce material:
Cover: iStockphoto/ Nick Schlax.
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pp. 255, 441 (top) /Laurent Rebours, p. 406 /AFP/Jerry
Lampen, p. 425 /EPA/exclusive to The Washington Post,
viii
C am brid g e L e g a l S t u d ie s HS C
p. 450; Australian Crime Commission, 2010, copyright

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for John Greening 5997 (PCOM 2/291). Courtesy of The
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Attila Jandi, p. 203 /Mikhail Zahranichny, p. 224 (right) /
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ix
Introduction
To the student
Congratulations on choosing Cambridge Legal
Cambridge Legal Studies HSC (Second Edition)
Studies HSC (Second Edition). This edition has
is a comprehensive resource that builds on the
been completely updated to meet the requirements
knowledge and skills introduced in the Preliminary
of the 2009 Stage 6 Legal Studies Syllabus in New
course as it thoroughly covers all key content areas
South Wales.
of the HSC syllabus.
Legal Studies was rst introduced into the NSE
You will discover a wealth of engaging material
Curriculum in 1989. Since then, thousands of stu-
that critically examines the core areas of crime and
dents have nished their secondary schooling
human rights, as well as a wide range of options in
better informed citizens, able to think more
Part III. You will gain insight into how the law oper-
critically about the processes and institutions that
ates in practice in each of these contexts. A range
shape their lives on a daily basis.
of interesting, up-to-date cases, media articles
The rights people enjoy within democratic soci-
and statistics are provided to bring the law to life.
eties have at times been eroded by governments
Updated Review and Research questions will assist
when citizens become apathetic about their rights,
you to revise and build on your knowledge, and a
freedoms and liberties. Legal Studies will allow
variety of HSC-style examination questions (both in
you to explore the power vested in our democratic
the Student Book and Study Toolkit) will give you
institutions and wielded by our elected leaders. It
the best opportunity to succeed in your exam.
explores issues that will change the way you view

the world and how you understand the concept of
We wish you the very best of luck and much

success in Legal Studies.
achieving justice through the law.

PAUL MILGATE
Cam br i dg e L e g a l S t u d ie s HS C
Using Cambridge
Legal Studies HSC
The Cambridge Legal Studies HSC resource
understand case citations.
package consists of ve components:
4 Teacher CD-ROM
1 Student Book
The Teacher CD-ROM contains a wide range
The Student Book contains all topics in Part I,
of material to support students and teachers,
Part II (including a wide range of contemporary
with course, lesson, assessment and homework
human rights issues), and ve options in Part III.
preparation.
2 Student CD
5 Student and teacher website
The Student CD can be found at the back of the
The Cambridge Legal Studies website is a free
Student Book. It contains:
resource that contains a range of additional
s an electronic version of the Student Book
activities, weblinks, teaching plans, and
s additional resources for Chapter 7

s all Review activities and Chapter Summary
tasks in electronic format
s additional resources for the Study Toolkit.
3 Study Toolkit
The Study Toolkit packaged with the Student
Book contains a wide range of material to help
you succeed in Legal Studies, including:
s exam preparation and study tips
s a range of additional multiple-choice, shortanswer and extended response questions for
each part of the course
s legal research tips and information to help you
curriculum documents to support students and teachers.

GUID
G
UII D E TO IC ON S
U
This icon lets you know that there is some additional information or activities on the
Student CD at the back of the book.
This icon lets you know that you will need to access the internet in order to
complete an activity or research task.
xi
Key features of the Student Book
1 The nature of crime
Crime
Crime
30% of course time
C am br id g e L e g a l S t u d ie s HS C
2 The criminal investigation process
Through the use of a range of contemporary examples, students investigate

criminal law, processes and institutions and the tension between community
interests and individual rights and freedoms.
s police powers
s reporting crime
s investigating crime: gathering evidence, use of
technology, search and seizure, use of warrants
Themes and challenges to be incorporated throughout Part I include:

s the role of discretion in the criminal justice system
s issues of compliance and non-compliance in regard to criminal law
s the extent to which law reects moral and ethical standards
s the role of law reform in the criminal justice system
s the extent to which the law balances the rights of victims, offenders and
society
s the effectiveness of legal and non-legal measures in achieving justice.
At the end of Part I, on page 141, you will nd a summary of the themes and
challenges relating to crime. The summary draws on keys points from the text
and links them to each of the themes and challenges. This summary is designed
to help you revise for the external examination.
HSC external examination information

The HSC examination will be a written paper worth a total of 100 marks. The
paper will consist of three sections.
Questions relating to Part I of the syllabus Crime will appear in Sections 1
and 2 of the examination.
Section I: Core
20 marks total (15 of the possible 20 marks will be

based on Crime)
Section I will consist of objective response (i.e. multiple-choice) questions.
Questions to the value of 15 marks will be drawn from Crime. Some of these
questions may be based on, or refer to, stimulus materials.
Section II: Core

based on Crime)
Section II will be divided into two parts, Part A and Part B. Only Part B will
relate to Crime. There will be one extended response question to the value of
15 marks. The question may refer to stimulus material. The expected length
of the response is around 600 words (approximately four examination writing
booklet pages).
s arrest and charge, summons, warrants

s bail or remand
s detention and interrogation, rights of suspects
s court jurisdiction
s the adversary system
s legal personnel: magistrate, judge, police
prosecutor, Director of Public Prosecution,
Public Defenders
s pleas, charge negotiation
s legal representation, including legal aid
s burden and standard of proof

s use of evidence, including witnesses
s defences to criminal charges:
complete defences
partial defences to murder
s the role of juries, including verdicts
4 Sentencing and punishment

s statutory and judicial guidelines
s the purposes of punishment: deterrence
(specic and general), retribution,
rehabilitation, incapacitation
s factors affecting a sentencing decision:
aggravating and mitigating circumstances
s the role of the victim in sentencing
s appeals
s types of penalties including: no conviction
recorded, caution, ne, bond, suspended
s sentence, probation, criminal infringement

notice, penalty units, community service order,
home detention, periodic detention, forfeiture
of assets, imprisonment, diversionary programs
s alternative methods of sentencing including
circle sentencing, restorative justice
s post-sentencing considerations, including security classication, protective custody, parole,
preventative detention, continued detention,
sexual offenders registration, deportation
5 Young offenders
s age of criminal responsibility
s the rights of children when questioned or
arrested
s Childrens Court procedures and operation
s penalties for children

s alternatives to court
6 International crime
s categories of international crime, including:
crimes against the international community
transnational crimes.
s dealing with international crime:

domestic and international measures
limitations.
Search and seizure
Sydney Morning Herald, 2 October 2009
C a m br i dge L ega l St udi es H SC
Two of the special powers given to police to assist

in investigating crime are those of search and seizure. Under Part 4 of the Law Enforcement (Powers
and Responsibilities) Act 2002 (NSW), police are
given powers to search people and seize and
detain things in certain circumstances. One of the
most important of these is the power to search and
seize without a court warrant.
Powers of search and seizure are often the
most controversial of police powers because they
represent an intrusion into peoples privacy or
personal space. Search and seizure can also be
confronting or embarrassing, especially when con-
Figure 2.5 Police are lawfully able to stop, search and detain
someone if they believe they have reasonable grounds to do so.
Cr i me
By Adam Bennett and Vincent Morello
and samples were too often relied upon as

the only evidence in criminal prosecutions.
Its very easy for the analysis to be awed
because it goes through several hands and
several stages, Prof Findlay told AAP.
People who look at that science - and
they are lay people, judges and juries - are
disproportionately impressed by it.
NSW Council for Civil Liberties president
Cameron Murphy said police and courts
should rely on other evidence to corroborate
a crime.
Its far better for a guilty person to go
free than for an innocent person to be in jail
because the consequences are so horric,
Mr Murphy told AAP.
Dr Stewart said the mans criminal record
had been amended and proceedings had
been launched to have his conviction
annulled.
The lab technician responsible for the error
had since retired, he said.
Dr Stewart said he did not know whether
the man would launch legal action to seek
compensation over the wrongful conviction.
There are always openings for people who
are convicted to seek redress, he said.
His options have been discussed with him.
Hell make his own decision.
Dr Stewart said a similar error in the
future was most unlikely because of testing
improvements, including the introduction of
robotics, and the practice of reviewing all case
work before results are released to police.
An independent external review would also
be conducted by Professor Hilton Kobus, a
forensic science expert at Adelaides Flinders
University, Dr Stewart said.
ducted in a public place.

Police in New South Wales have the broad
powers to stop and search any person where they
a prohibited plant or drug, or a dangerous article
believe on reasonable grounds that they are
when they are in a public place. Police can then
carrying anything stolen or used in commission of
seize and detain any of these objects if discovered.
an indictable offence or another specied offence,
Challenges to police searches will often revolve
case s pace
Criminal DNA tests being

checked in NSW
Forensic and civil liberty experts have

condemned NSWs criminal DNA testing
process after a glitch led to a mans wrongful
conviction.
A review by NSW Health of its cold
links system earlier this year found the
departments laboratory mistakenly linked a
man to a break and enter because of human
error.
The system matches DNA evidence
collected at a crime scene with people on the
state DNA database.
Convicted in early 2008, the man was given
a nine-month suspended sentence.
The discovery of the error prompted an
exhaustive review of the 17 000 cold links
dating back to 2001, when the DNA database
was established.
Acting NSW chief health ofcer Greg
Stewart said the review had so far revealed
no other errors, and he reassured people the
DNA testing system was sound.
Dr Stewart said the mistake was caused
by a human sampling error at NSW Healths
Division of Analytical Laboratories (DAL) but
he stressed the science behind DNA testing
was not in question.
A human error occurred where tests were
incorrectly located in a series of tests, he
said.
There are thousands of tests done, and
they are done in series of 96 at a time but one
of those was out of sequence.
The wrong crime sample was placed into
a well, and that led to DNA from one crime
scene being ascribed to a person who was not
at that crime scene.
Professor Mark Findlay, director of the
Institute of Criminology at Sydney University,
said DNA testing was not an exact science
34
3 Criminal trial process
m e dia c lip
Media clip
A range of current media
articles are provided to help
you understand how the
law operates in real-world
situations.
xii
Principal focus
s summary and indictable offences

s parties to a crime including principal in the
rst degree, principal in the second degree,
accessory before the fact, accessory after the
fact
s factors affecting criminal behaviour
s crime prevention: situational and social
Themes and challenges
xvi
Case space
A number of relevant legal
cases appear throughout the
text. Each case allows you
to apply your knowledge
of the legal system to realworld situations. Many cases
are followed by a range of
questions to help you test
what youve learnt.
s meaning of crime
s elements of crime: actus reus, mens rea
s strict liability offences
s causation
s categories of crime: offences against the
person, offences against the sovereign, economic offences, drug offences, driving offences,
public order offences, preliminary crimes
PART I
C rim e
Section and chapter openers

Each section and chapter
of Cambridge Legal Studies
HSC begins with a doublepage spread that contains:
s principal focus and themes
and challenges from the
Stage 6 Syllabus
s chapter objectives
s key terms/vocabulary
s relevant law (including
important legislation and
signicant cases)
s odd law
s information relating to the
HSC external examination.
Darby v Director of Public Prosecutions [2004] NSWCA 431

The case of Darby illustrates some
cannabis and methyl ampheta-
of the difculties in the legal
mine on Darby, who was charged
the Supreme Court which ruled
denitions of a search and
and tried in the Local Court.
that the magistrate had erred
reasonable grounds. In the case,
The magistrate in the Local
The case was appealed to
in law and that the dogs search
the police were using a sniffer
Court ruled that the actions of
was not a search and that the
dog, named Rocky, outside a
the dog in snifng so closely
police ofcers own search was
nightclub to detect for drugs. The
and making contact with Darby
legal because it was formed on
dog would sniff the air to indicate
constituted an unlawful search.
reasonable grounds on the basis
to the police that drugs were
Only police ofcers are entitled
of the information conveyed by
present. In Darbys case, the dog
to search and only when they
Rockys snifng.
sniffed the air then sniffed
make a judgment on reasonable
bunting and ferretting towards
grounds the dog was not
judgment to the Court of
Darby, sniffed his genital area and
entitled to or capable of making
Appeal, in an attempt to
trousers then touched his nose
such a judgment. Consequently,
reinstate the magistrates
directly on Darbys pocket and
the evidence of nding the
original judgment. Two out
stayed there until police came
substances was not admissible
of three justices found that
over and searched Darby. The
because it was gained following
Rockys actions did not, in fact,
police discovered amounts of
an illegal search.
constitute a search.
Darby then appealed the
C h a p t e r 2 : T h e cr im in a l in ve s t ig a t i o n p ro c e s s
35
award for airline ground staff

was made in March 2010,
especially with respect to the
s the 17% pay gap between
similar qualications
s the relationship between
the legislature, Fair Work
s the progress or outcome of
approved by FWA. These include:
modern awards. Like awards, agree-
s the parties have come to a genuine agreement
ments must provide entitlements at
s the agreement has a specied expiry date, not
example a minimum four weeks
more than four years after FWA approval

s the agreement contains a dispute settlement
procedure, a exibility term, and a term
Enterprise agreements between
outlining the consultation procedure to be
an employer and its employees
undertaken by the employer upon deciding to
must be approved by a majority of

to Fair Work Australia for approval.
make a major change to the enterprise affecting

employees
s the agreement passes the better off overall
test (BOOT).
the draft agreement, the employer
To pass the better off overall test, the
Figure 13.6 Employees may be represented by their union in negotiating enterprise agreements.
must ensure that the employees
agreement must result in each employee covered
have been informed of its terms and their conse-
being better off overall than they would be under
Transitional instruments called Notional Agree-
quences, and of the time, place and procedure
the relevant modern award. BOOT replaced the
ments Preserving State Awards (NAPSAs) pre-
and safety and anti-discrimination laws), and it
for voting. A ballot is then held to approve the
no disadvantage test.
served the terms and conditions of state awards
must pass the no net detriment test.
agreement.
The no net detriment test is similar to
An enterprise agreement, made with or without
New South Wales arrangements
ees of constitutional corporations prior to 2006.
BOOT. The agreement must not put employees
union involvement, may apply to workers in a
New South Wales enterprise agreements were
These were largely replaced by modern awards in
at a disadvantage compared to state or federal
specic workplace (single-enterprise agreements)
introduced under the Industrial Relations Act
2010. If parties to the award fail to apply to FWA to
awards that would otherwise apply. This means
or at an industry level (multi-enterprise agree-
1996 (NSW). As a result of the states referral
convert a NAPSA into a modern award, the NAPSA
that employees cannot make an agreement
ments). A single-enterprise agreement requires
of its industrial powers to the Commonwealth
ceases to operate on 31 December 2013.
that removes or reduces award conditions. For
a majority of employees to endorse it, and a
in 2009, that Act no longer applies to private
However, the referral of powers does not
example, employees cannot make an agreement
multi-enterprise agreement requires a majority of
sector employers and employees in NSW: from
include the powers of the State of New South Wales
that provides lower pay or fewer annual leave days
employees of at least one of the employers to do
1 January 2010, all employees of sole traders and
regarding state and local government employers.
than are provided by the relevant award.
so. FWA can help certain low-paid employees and
partnerships, as well as employees of constitutional
Section 9A of the Industrial Relations Act 1996
The Commission must also ensure that the
their employers to negotiate a multi-enterprise
corporations, were covered by the industrial
(NSW) declares those employers not to be national
parties understand the effect of the agreement
agreement, if it is in the public interest to do so.
relations system governed by federal law. The
system employers. The awards and collective
and that no duress was involved in signing it.
These include people working in child care, aged
Industrial Relations (Commonwealth Powers) Act
agreements in place continued to apply.
care, community services, cleaning, and security,
2009 (NSW) effected the referral. Section 9B of
Different awards and agreements apply to the
who have often lacked the bargaining power to
the Industrial Relations Act 1996 (NSW) states that
various departments and agencies within state and
negotiate for better wages and conditions at the
this Act is subject to the Fair Work Act 2009 of the
single-enterprise level.
REVIEW 13.8
local government. The NSW Industrial Relations
1 Discuss the changes made to the industrial
Commonwealth, including provisions of that Act
Commission continues to have jurisdiction in
statutory framework under the Fair Work
A third type of enterprise agreement is a
that have effect in this State because of the referral
relation to the employment terms and conditions
Act 2009 (Cth).
greenelds agreement, which covers future
of matters relating to workplace relations to the
for state and local government employees. For the
employees of a new enterprise to be established
Commonwealth Parliament.
Commission to approve an enterprise agreement
2 Discuss the legislative powers retained by

New South Wales after referral of industrial
powers to the Commonwealth.
by one or more employers. The agreement is made
Other state laws dealing with workplace health
for those employees, similar requirements to
when it has been endorsed by each employer
and safety, anti-discrimination provisions, and
those contained in the Fair Work Act 2009 (Cth)
and by the trade union or unions that cover the
workplace surveillance continue to operate as
operate. A majority of employees must vote for
detriment test. Why is it necessary to have
prospective employees.
before.
the agreement, the agreement must comply with
these two tests?
3 Explain the aim of BOOT and the no net
Cam b r i d g e L e g al S t u d i e s HS C
fascism
an authoritarian system
of government that is
opposed to democracy
and is marked by
the State having
total control over
the economic, social,
cultural and political life
of the people
C h a p t e r 1 3 : O p t io n 4 : Wo r kp la ce
US passed the 19th Amendment allowing women
population. This legislation also established Maori
the right to vote in 1920.
representation in the lower house of parliament.
Apart from status and gender, race was another
In Australia, Indigenous peoples were permitted
issue that conicted with rights to vote. For
the right to vote since the time of Federation in
example, in the Americas, social stigma was
1901, if their state of residence granted them that
strongly attached to certain races, particularly

native Americans and the African-American popu-
(3) The will of the people shall be the basis of
(1) Everyone has the right to take part in the
the authority of government; this will shall be
right, and some South Australian Aboriginal men
government of his country, directly or through
expressed in periodic and genuine elections which
and women voted for the rst Commonwealth
freely chosen representatives.
shall be by universal and equal suffrage and shall
lations. In 1870 in the US, following the American
Parliament. However, due to later interpretations
(2) Everyone has the right of equal access to public
Civil War, the right to vote was extended by the
by the government and discriminatory measures
service in his country.
15th Amendment to all adult males, regardless of
adopted by the states, Indigenous peoples were
race, colour or previous servitude. In New Zealand,
effectively denied the right to vote until 1962. In
Maori voters were not expressly excluded from
that year, the Commonwealth legislated to ensure
voting but a requirement of property ownership
Indigenous peoples had the right to vote regardless
democratic. 47 countries, or 34 per cent of the
begin until the 19th century onwards. There were
effectively excluded them. In 1867, this requirement
of their state voting rights, although unlike for other
worlds population, are still classied as not free.
some exceptions, for example one Aztec tribe in
was removed, extending the vote across the male
Australians this was not compulsory. A 1967 constilians equal status as citizens, including the right to
be counted in the Australian census. The constitutional amendment became a symbol of public
recognition of the rights of Indigenous Australians.
The right to vote was recognised as a universal
human right in Article 21 of the Universal
Declaration of Human Rights. Despite gradual
1 Describe why suffrage is important.

2 Identify when universal suffrage was
achieved in two or three countries other
than Australia.
3 Evaluate how widespread suffrage and
democracy is in the world today.
communities in the world to have compulsory

education for nearly all children, regardless of
gender or rank.
In Europe, the church was generally the rst
to take on the role as educator for all, and only
much later superseded by the state. For example,
in Scotland in 1561, the Church of Scotland put
parish and free education for the poor. In Norway
in the 16th century, cathedral schools were turned
were just 10 democracies in the world. This grew
Universal education refers to the idea that all
market town later in 1736, training in reading
to 20 by 1920 but then declined to 12 by 1939 due
human beings have a right to an education. This
was made compulsory for all children. In England
to the advances of Nazism and fascism. By 1960,
concept has only reached wide acceptance in rela-
in the 19th century, churches began giving free
there were 25 democracies in the world, growing
tively recent history. Although today some type
education on Sundays, originally called Sunday
to 30 by 1980. This doubled to 60 by 1990 and
of education is compulsory for children in almost
schools. They were designed to teach students
by 2000 there were 75 democratic nation-states.
all countries, in early civilisations education was
By 2010, 89 countries, representing 46 per cent of
generally associated with wealth and power or with
By the mid-1800s in Europe, the increasing
the worlds total population, are classied as freely
certain trades, beliefs or religions. Most people
demands of industrialisation, a growing competi-
would have received informal education from their
tiveness between countries and widening suffrage
families and community, with other skills learnt
required a literate and educated population.
directly through their daily work or vocation.
European governments began providing funding
Freedom House is an independent

organisation established in 1941
to encourage democratic freedom
around the world. The Freedom
House website has up-to-date
in every country and can be found
at www.freedomhouse.org
Legal info
A number of relevant legal
concepts are explored in
order to give context to
themes being explored.
forward the principle of a school teacher for every
Universal education
l eg al l in ks
Cam b r i d g e L e g al S t u d i e s HS C
procedures.
the rst half of the 20th century. In 1900, there
statistics on the state of freedom
Figure 7.8 A 1967 constitutional referendum nally gave Indigenous

Australians equal status as citizens, including the right to be counted in
the Australian census.
be held by secret vote or by equivalent free voting
the 14th to 16th century was one of the rst
REVIEW 7.4
advances of suffrage, there were still only a small

number of democratic countries in the world in
373
Glossary terms
All of the key terms in each
chapter (along with many
more) are dened for you in
the margin and in the glossary
at the end of the book. These
denitions are designed to
help you learn and revise key
terms from the Syllabus.
Universal Declaration of Human Rights universal suffrage

Article 21.
tutional referendum nally gave Indigenous Austra-
154
relevant state legislation (e.g. occupational health
and of some state legislation that applied to employ-
le ga l in f o
372
a broader range of matters than
Once the parties are satised with
any test case.
workplace surveillance
an employers use of
technology such as
cameras, computers
and tracking devices to
monitor employees
employees. It must meet certain conditions to be
employees before being submitted
Australia, and unions
better off overall test

(BOOT)
a criterion for FWAs
approval of an
enterprise agreement,
requiring that
employees are better
off overall than under
the relevant modern
award
employer or a bargaining representative for the
Enterprise agreements may include
paid leave per year.
men and women with
greenelds agreement
an agreement created
to cover prospective
employees of a new
enterprise
the parties, it is then submitted to FWA by the
2009 (C TH)
least as favourable as the NES, for
following issues:
Once the agreement has been approved by
UNDER THE FAI R W OR K AC T
Us i n g C a m b r i d g e L eCgoaln tents
Stud ie s HS C
taken place since the modern
ENTER PR ISE A GR E E M E N T S
Option 4: Work pla c e
developments that have
Huma n r i g ht s
RESEARCH 13.1
Use the internet to research
Activities
Review and Research
Throughout each chapter you
will nd a number of different
activities. Review activities are
designed to help you test your
knowledge of key concepts
and skills. Research activities
are designed to extend your
knowledge by researching
relevant cases or issues using
source material.
With the development and spread of writing

systems, it became possible for ideas and infor-
into Latin schools and made mandatory for every
reading, writing and arithmetic.
for schools, and over time the government also

administered these schools. In 1870, the British
mation to be accurately passed on over time and
Parliament passed the Education Act 1870 (UK),
space and writing became associated with law,
and in 1880 education was made compulsory for
commerce, religion and civil administration. But
all British children between ve to 10 years of
until recent times, illiteracy was still the norm in
age, which was later raised to 12 years in 1889.
most of the world and formal schooling was only
In France, by 1880 all children under the age of
available to a select few. The push for universal
15 were required to attend school, with free and
education within individual countries did not really
secular public instruction.
C h a p t e r 7 : T h e n a t u re a n d d e ve lo p m e n t o f h u m a n r ig h t s
155
Legal links
In addition to the activities,
there are a number of
suggested links to internet
resources and activities in
each chapter. These will help
you extend your knowledge
and stay up-to-date with
changes in the legal system.
xiii
C am bri d g e L e g a l S t u d i es HS C
The role of the law in encouraging

cooperation and resolving conict in the
workplace
s Legislation at both state and federal level

has created industrial relations processes
with the aim of minimising conict within the
workplace as well as encouraging cooperation
between employers and employees.
s Enterprise agreements encourage employers
and employees to negotiate satisfactory work
arrangements on an individual workplace
level.
s Occupational health and safety (OHS)
legislation also emphasises employees duty
to take reasonable care for the health and
safety of others in their workplace, and their
participation in maintaining a safe work
environment through representation on OHS
committees.
s Employees and employers are encouraged
to resolve disputes about pay and conditions
through negotiation and conciliation. All
modern awards and enterprise agreements
contain dispute resolution procedures, which
must be followed before taking the matter
further. It is only when discussions break
down that the dispute will go to arbitration.
s The Fair Work Ombudsman is able to
investigate complaints within the workplace
and make an order resolving the conict.
s Fair Work Australia and the NSW Industrial
Relations Commission have a judicial role in
settling disputes. The Federal Court and the
Federal Magistrates Court have industrial
divisions that hear workplace disputes and
appeals.
Issues of compliance and non-compliance
s Effective industrial laws require that

governing bodies be given the resources and
authority to enforce compliance. Enforcement
also includes the availability of penalties that
will deter non-compliance. Criminal sanctions
are sometimes more effective than the
imposition of a ne.
402
xiv
1 Describe the main means of achieving world

order that were put in place in the rst ve
years after the end of the Second World War.
2 Explain the concept of state sovereignty and
how states can use their sovereign powers
to create treaties and promote world order,
but can also use these powers as a barrier to
international law.
3 Explain how access to resources can become
a cause of conict.
4 Assess the effectiveness of the various legal
responses to the threat of nuclear weapons.
5 Evaluate the effectiveness of the UN missions
in Timor-Leste since 1999.
1 Critically evaluate the effectiveness of

multinational efforts to achieve world order
over the past century.
2 Discuss the role of non-government
organisations in limiting the harm resulting
from interstate and intrastate conicts.
3 Choose one or more states and non-state
actors (which can include international
organisations) and an example of a world
order issue from recent history or current
events that has not been discussed in this
chapter. Outline the interrelationships and
critically evaluate the parties conduct.
4 Can pressure be brought to bear on a
nation-state that refuses to participate in
international efforts to promote world order?
Outline potential strategies and identify
the parties that may be able to use such
strategies. Justify your answers.
In Section III of the HSC Legal Studies

examination you will be expected to
complete an extended response question
for two different Options you have studied.
There will be a choice of two questions
for each Option. It is expected that your
response will be around 1000 words in
length (approximately eight examination
writing booklet pages). Marking criteria for
extended response questions can be found
at www.cambridge.edu.au/education. Refer
to these criteria when planning and writing
your response.
C h a p t e r 1 4 : O p t io n 5 : Wo r l d o rd e r
s In order to remove ambiguity and ensure

enforceability, employee and employer rights
and duties have been clearly dened in
legislation, as well as the penalties that can
be imposed for any breaches of the law. For
example, under the Occupational Health and
Safety Act 2000 (NSW) s 13, an employer has
the duty to consult with employees to enable
them to contribute to the making of decisions
affecting their health, safety and welfare at
work. Failing to do so results in heavy nes.
s Mutual obligations and employees active
involvement in maintaining safety at work
have been shown to be a way to increase
compliance with OHS legislation.
Laws relating to the workplace as a reection
of changing values and ethical standards
s All legislation is subject to review, including

the opportunity for members of the public
to comment on proposed amendments. This
enables legislation to reect current social
values, attitudes and issues.
s A national review into model OHS laws is
concluding in 2010. The model laws will
create uniform OHS laws in all Australian
jurisdictions. The process of review and public
comment, including publication of discussion
papers and establishment of reference
groups, aimed to provide all interested
parties with the opportunity to have a voice
in the drafting, and to ensure that existing
OHS laws are not undermined. The ACTU has
expressed concerns in this respect.
s Various employer groups, including the
Business Council of Australia (BCA), have
been critical of elements of the governments
Fair Work reforms, arguing that the new laws
unfairly favour unions. Some advocates of
workers rights have argued that the laws do
not go far enough.
The role of law reform in recognising rights

and enforcing responsibilities in the workplace
s The law needs to reect prevailing community

standards and expectations. Laws that are in
conict with current attitudes are less likely
to be effective. Individuals may engage in
civil disobedience, openly opposing the laws,
or may simply ignore the laws. To determine
the best means of ensuring that laws reect
community standards and expectations,
legislators may call for public submissions
before debating issues in parliament. They
are, in the end, accountable to the electorate
for the laws that are passed.
s Those responsible for law reform aim to
balance the needs of all stakeholders while
ensuring that the law is consistent with
Australias international obligations.
s While the laws passed may reect the views
of the majority, this does not mean that the
rights of minority groups are secondary.
Numerous laws have been passed protecting
individual rights, which is seen as necessary
for the protection of the entire community.
For example, laws that make discrimination
illegal protect the rights of all employees.
s The General Employee Entitlement and
Redundancy Scheme (GEERS) was established
to protect workers entitlements in the event
that their employer became bankrupt.
s The protection of individual rights with
respect to occupational health and safety can
be seen in laws prohibiting smoking in the
workplace.
s Well-drafted legislation clearly sets out
the rights and duties of employees and
employers, and provides for a process of
resolving disputes.
The effectiveness of legal and non-legal
responses in achieving justice in the workplace
s Employers associations, as well as groups

representing workers interests, lobby
governments to inuence legislation. Nonlegal responses to industrial relations issues
include the activities of unions. The peak
Option 5: World order
M u l ti p l e ch o i ce q u e sti o n s
4 International humanitarian law

a applies to all people in peacetime
b applies to all people affected by armed
conicts
c was created by the Universal Declaration
of Human Rights
d only applies to about half of the states in
the world
5 The UN Security Council can override a
nation-states sovereignty when
a there are widespread human rights abuses
or mass atrocity crimes that require
intervention
b the nation-state does not trade with any
of the Permanent Five members
c there is a greater than 50% chance of
success
d the nation-state agrees to waive
sovereignty
body for unions in Australia, the ACTU, has

argued for an increase in the minimum wage,
equal pay for women, and the eradication of
discriminatory practices in the workplace.
s Other groups, such as Equal Opportunity
for Women in the Workplace Agency, act
to inuence policy and industrial laws in the
promotion of the rights of particular groups.
However, women still earn substantially less
than men. One of the reasons is that they
comprise a large proportion of casual and
part-time employees and as a consequence
do not have the same employment
protections as full-time employees.
s Non-government organisations include social
welfare groups such as the Salvation Army.
They may help individuals nd employment
and provide training, counselling and welfare
support to people seeking jobs.
s Non-government organisations play a varied
role within state and federal industrial
relations. Non-government organisations such
as the Australian Human Rights Commission
can investigate discrimination complaints. If
the complaint cannot be resolved, the matter
may go to court. While the Commission does
not have the authority to enforce its rulings,
for example by imposing a ne or order, its
ndings can be used in a court or a tribunal in
support of the complainants case.
s The International Labour Organization aims
to encourage member nations to undertake
common action in the protection of workers
rights around the world.
s Numerous independent and non-government
organisations are involved in investigating and
researching issues relating to discrimination,
pay inequities and substandard conditions,
for example for outworkers. They may
make recommendations to government or
provide policy advice to relevant government
departments. However, the power of these
groups is limited. How effective they are in
changing government policy is difcult to
determine.
C h a p t e r 1 3 : O p t io n 4 : Wo r k p l a c e
453
O p t i on 4: Wor k p l a ce

At the end of Parts I and
II, and at the end of each
option in Part III, you will nd
a summary of the relevant
themes and challenges.
These summaries draw on
keys points from the text
and link them to each of the
themes and challenges in
order to help you revise and
succeed in the HSC external
examination.
s Australia has been an enthusiastic contributor

to the United Nations in the areas of the
regulation of nuclear weapons, peacekeeping
and humanitarian assistance.
s Chapter VII of the UN Charter sanctions the
use of force if authorised by the UN Security
Council, and Article 51 of the Charter allows a
nation-state to go to war in self-defence.
s The Geneva Conventions of 1949 are the
most signed treaties and are universally
applicable.
s The UN intervention in East Timor from
1999 to the present has been a success, but
this success has only been possible with the
cooperation and support of the international
community.
1 The principle of the Responsibility to Protect

a is the same as humanitarian intervention
b allows the UNSC to send in peacekeepers
as soon as a country fails to meet basic
standards of human rights
c focuses more on prevention than reaction
d has yet to be agreed to by the UN General
Assembly
2 The Nuclear Non-Proliferation Treaty
a does not apply to the ve permanent
members of the UNSC
b has not been signed by Israel, India and
Pakistan
c has failed to prevent most countries of the
world from acquiring nuclear weapons
d has not been signed by Iran, North Korea
and Myanmar
3 The International Criminal Court
a was authorised by the UN Security Council
in 1998
b was set up to deal with the mass atrocities
committed by the Nazis in the Second
World War
c was created by the Rome Statute, an
agreement between a number of states
d can hear only cases against states, not
individuals
T h e m e s a n d c h a lle n ge s
452
s An ordered world is needed if states are to

cope with globalisation and to counter global
threats such as nuclear war, climate change
and economic meltdown.
s Our system of international law is based on
the concept of state sovereignty.
s Multilateral approaches are far more effective
than unilateral action in dealing with the
common problems that face the international
community.
s Competition over access to resources such as
fossil fuels and water are likely to become an
even more serious source of conict.
s The creation of the United Nations was a
massive multilateral commitment to a global
environment characterised by the rule of law.
s A growing number of international courts
exist to enforce international treaties and
conventions. These include the International
Court of Justice, the International Criminal
Court, and ad hoc tribunals set up to hear
matters arising from armed conicts.
Ex t e n de d re spo n se q u e sti o n s
C h a pt e r sum m a ry ta sk s
C h a p te r su mma ry
Chapter review
At the end of each chapter,
you will nd a summary of
key points, multiple-choice
questions and chapter tasks.
In Part III you will also nd a
range of extended response
questions to help you prepare
and revise for the HSC
examination.
403
Glossary
of key words
Syllabus outcomes, objectives, performance bands
meaning
and examination questions have key words that
documents. Using this glossary will help students
state what students are expected to be able to do.
and teachers understand what is expected in
A glossary of key words has been developed to
responses to examinations and assessment tasks.
in
the
Higher
School
Certicate
help provide a common language and consistent
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
Critically (analyse/evaluate)
Add a degree or level of
accuracy depth, knowledge and
understanding, logic, questioning,
reection and quality to (analyse/
evaluate)
Appreciate
Make a judgement about the value
of
Demonstrate
Show by example
Assess
Make a judgement of value,
quality, outcomes, results or size
Calculate
Ascertain/determine from given
facts, gures or information
Deduce
Draw conclusions
Dene
State meaning and identify
essential qualities
Describe
Provide characteristics and features
Discuss
Identify issues and provide points
for and/or against
Clarify
Make clear or plain
Distinguish
Recognise or note/indicate as
being distinct or different from; to
note differences between
Classify
Arrange or include in classes/
categories
Evaluate
Make a judgement based on
criteria; determine the value of
Compare
Show how things are similar or
different
Examine
Inquire into
Construct
Make; build; put together items or
arguments
Explain
Relate cause and effect; make
the relationships between things
evident; provide why and/or how
Contrast
Show how things are different or
opposite
Extract
Choose relevant and/or
appropriate details
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
Extrapolate
Infer from what is known
xv
PART I
Crime
Crime
30% of course time
Principal focus
Through the use of a range of contemporary examples, students investigate
criminal law, processes and institutions and the tension between community

Themes and challenges to be incorporated throughout Part I include:
s the role of discretion in the criminal justice system
s issues of compliance and non-compliance in regard to criminal law
s the extent to which law reects moral and ethical standards
s the role of law reform in the criminal justice system
s the extent to which the law balances the rights of victims, offenders and
society
s the effectiveness of legal and non-legal measures in achieving justice.
At the end of Part I, on pages 140141, you will nd a summary of the themes
and challenges relating to crime. The summary draws on keys points from the
text and links them to each of the themes and challenges. This summary is
designed to help you revise for the external examination.

Questions relating to Part I of the syllabus Crime will appear in Sections I
and II of the examination.
Section I: Core

based on Crime)
Questions to the value of 15 marks will be drawn from Crime. Some of these
questions may be based on, or refer to, stimulus materials.
Section II: Core

based on Crime)
Section II will be divided into two parts, Part A and Part B. Only Part B will
relate to Crime. There will be one extended response question to the value of
15 marks. The question may refer to stimulus material. The expected length
of the response is around 600 words (approximately four examination writing
booklet pages).
xvi
C am bri d g e L e g a l S t u d i es HS C
1 The nature of crime

s meaning of crime
s elements of crime: actus reus, mens rea
s strict liability offences
s causation
s categories of crime: offences against the
person, offences against the sovereign, economic offences, drug offences, driving offences,
public order offences, preliminary crimes
s summary and indictable offences

s parties to a crime including principal in the
rst degree, principal in the second degree,
accessory before the fact, accessory after the
fact
s factors affecting criminal behaviour
s crime prevention: situational and social
s arrest and charge, summons, warrants

s bail or remand
s detention and interrogation, rights of suspects
C rim e
2 The criminal investigation process

s police powers
s reporting crime
s investigating crime: gathering evidence, use of
technology, search and seizure, use of warrants
3 Criminal trial process

s court jurisdiction
s the adversary system
s legal personnel: magistrate, judge, police
prosecutor, Director of Public Prosecution,
Public Defenders
s pleas, charge negotiation
s legal representation, including legal aid
s burden and standard of proof

s use of evidence, including witnesses
s defences to criminal charges:
complete defences
partial defences to murder
s the role of juries, including verdicts
4 Sentencing and punishment

s statutory and judicial guidelines
s the purposes of punishment: deterrence
(specic and general), retribution,
rehabilitation, incapacitation
s factors affecting a sentencing decision:
aggravating and mitigating circumstances
s the role of the victim in sentencing
s appeals
s types of penalties including: no conviction

recorded, caution, ne, bond, suspended
sentence, probation, criminal infringement
notice, penalty units, community service order,
home detention, periodic detention, forfeiture
of assets, imprisonment, diversionary programs
s alternative methods of sentencing including
circle sentencing, restorative justice
s post-sentencing considerations, including security classication, protective custody, parole,
preventative detention, continued detention,
sexual offenders registration, deportation
5 Young offenders
s age of criminal responsibility
s the rights of children when questioned or
arrested
s Childrens Court procedures and operation
s penalties for children

s alternatives to court
6 International crime
s categories of international crime, including:
crimes against the international community
transnational crimes
s dealing with international crime:

domestic and international measures
limitations
CHAPTER 1
k ey ter m s/vocab ul ary
c hap te r o b j e cti ve s
The nature of crime
In this chapter, students will:

s identify the meaning and nature of crime
s describe and recognise the different categories of
crime
s dene and discuss summary and indictable offences
s explore a range of factors that may lead to criminal
behaviour
accused
actus reus
affray
aggravated assault
aggravated sexual assault in
company
assault
attempt
beyond reasonable doubt
break and enter
common assault
conspiracy
constructive manslaughter
crime
criminal negligence
criminology
embezzlement
fraud
homicide
indecent assault
C am br i dg e L e g a l S t u d i e s HS C
s discuss a range of social and situational crime

prevention techniques
s discuss the effectiveness of the law in punishing
offenders
s communicate legal terminology within context.
indictable offence
infanticide
insider trading
involuntary manslaughter
larceny
manslaughter
mens rea
mitigating circumstances
murder
prosecute
provocation
recklessness
riot
robbery
sedition
the Crown
sexual assault
the state
strict liability offence
summary offence
tax evasion
trafcking
treason
voluntary manslaughter
white-collar crime
I MPORTANT LEGIS L AT ION
Crimes Amendment (Computer Offences) Act

2001 (NSW)
Crimes Act 1900 (NSW)
Copyright Amendment Act 2006 (Cth)
Crimes Act 1914 (Cth)
Criminal Code 1995 (Cth)
Anti-Terrorism Act (No. 2) 2005 (Cth)
Drug Misuse and Trafcking Act 1985 (NSW)
Summary Offences Act 1988 (NSW)
Customs Act 1901 (Cth)
Road Transport (Safety and Trafc Management)
Act 1999 (NSW)
S I GNIFICANT CA S ES
R v Thomas Sam; R v Manju Sam (No. 18) [2009]

NSWSC 1003
R v Munter [2009] NSWSC 158
Boughey v The Queen (1986) 161 CLR 10
DPP v Newbury and Jones [1977] AC 500
R v AEM (Snr); R v KEM; R v MM [2002]
NSWCCA 58
R v Rivkin (2003) 198 ALR 400
R v Whybrow (1951) 35 CAR 141
od d l a w
Crime is a constantly changing area of the law,
with new crimes being created and historical
crimes becoming obsolete. In 1995, s 580B was
added to the Crimes Act 1900 (NSW) to abolish
(remove) the outdated common law crimes of
eavesdropping and being a common scold.
Eavesdropping was a crime that involved a
person listening to private conversations through
walls or under windows (within the eaves drop)
for the purpose of spreading scandals.
A common scold was a troublesome woman
who, by brawling and arguing with her
neighbours, broke the public peace and became
a nuisance to the neighbourhood.
The explanatory notes to the legislation
reported that there had been no record of either
crime being used in NSW in the past century.
The crimes had become obsolete and so were
removed from use.
Cha pter 1: T he na ture of cri me
C rim e
rel ev ant l aw
T h e n a t u r e o f c ri m e
The meaning of crime
to determine how crime is dened and punished.

In other words, what one society deems a crime,
crime
an act or omission
committed against the
community at large
that is punishable by
the state
the state
a term used to refer
to the government
and the people that it
governs
The word crime is a broad term used to describe
another may not. For example, the act of murder
many unlawful activities from the extreme, such as
is universally considered a crime throughout the
murder, to more minor offences, such as speeding.
world, though with varying denitions and quali-
A crime includes any act or omission which results
cations. However, other acts which are entirely
in harm to society at large and is punishable by
legal in Australia, such as sex outside of marriage,
the state, including the court system and state or
homosexual acts or the consumption of alcohol,
Commonwealth bodies.
are deemed crimes in some societies.
A more detailed denition includes any con-
Therefore, most crimes are the result of moral
duct which violates the rights of the community
and ethical judgments by society about an indi-
at large, punishable by a recognised criminal
viduals behaviour. When a person commits a
sanction upon proof of guilt in a criminal pro-
crime, it is deemed to be committed against all
ceeding initiated and presented by ofcers of the
of society (as represented by the state), as well as
crown or its agencies. (Marantelli, S., Tikotin, C.,
any victim of the act. The criminal act is seen as
The Australian Legal Dictionary).
an attack on the standards expected by society, so
The problem with using such denitions, how-
it is the responsibility of all to punish the accused.
ever, is that they can oversimplify a complex area
For this reason, criminal cases are brought by the
of law. They do not tell us what actually constitutes
state (acting on behalf of society), even though
criminal behaviour and activity. If a person wanted
they are also attempting to redress an injustice
to know if certain behaviour was a violation of the
committed against the victim.
law, these denitions would be of no help. This is
Crime is a constantly changing area of the law.
because a crime is any act that lawmakers in a
For example, for centuries throughout the British
particular society have deemed to be criminal.
Empire, the practice of witchcraft was considered
Many countries and societies have different
a serious offence punishable by death. It was a
views about what kinds of acts society needs to be
commonly prosecuted crime. This resulted in in-
protected from and which acts should be consid-
famous criminal trials that were fraught with
ered criminal. Culture, history, legal traditions,
issues of criminal evidence and due process,
social attitudes, religious beliefs and political
false accusations and government intrusion on
systems are factors in every society that combine
individual liberties, such as the Salem witch trials
Figure 1.1 Culture, history, legal traditions, social attitudes, religious beliefs and political systems are factors in every society
that combine to determine how crime is dened and punished.
in 17th century Massachusetts, a colony in British

America that later became part of the United
States. As societys attitudes evolved, the position
was eventually reversed in Great Britain with the
introduction of the Witchcraft Act 1735, 9 Geo II,
c 5, which removed the offence of witchcraft and
instead made it a crime to pretend to practice acts
of witchcraft. In modern times, such acts would
be governed in Australia by consumer protection
Similarly, new crimes are often created where
none existed before. For example, the Crimes
Amendment (Computer Offences) Act 2001 (NSW)
introduced a new part titled Computer Offences
Figure 1.2 Crimes often become outdated as societies

evolve as illustrated by the Salem witch trials of 1692.
C rim e
regulations that protect against fraudulent activity.
to the Crimes Act 1900 (NSW) to include new crimes

relating to computer hacking and data modication. The Commonwealth Copyright Amendment
Act 2006 (Cth) also introduced a number of new
offences aimed at dealing with the growing problem of internet piracy and copyright infringement.
The government, courts and other statutory
bodies are constantly reviewing legislation to
ensure that it meets the expectations of the community and is as relevant as possible to our rapidly
developing and changing society. Sometimes
groups within our community are unhappy with
these changes and developments while other
groups might rejoice at their implementation.
Figure 1.3 New crimes are often created to

address changes in society.
Criminal law is a particularly controversial area

of the law because any changes will usually have
wide-ranging effects that impact on the rights and
investigation, enforcement, prosecution, defence,
freedoms of all members of society. As a result
criminal trial, sentencing and punishment. Criminal
there is often tension between various community
law has a number of important characteristics that
groups, social commentators and lawmakers
distinguish it from other areas of the law:
when attempts are made by legislators to change
s Criminal law is concerned with the protection
or update aspects of the criminal law.
of society. A crime is an offence against society
The main focus throughout this topic is under-
as a whole, and one which is punishable by the
standing how the criminal law balances the
state. This differs from civil law which relates
tension between the rights of the accused, the
primarily to rights and responsibilities between
rights of victims (individual rights) and the rights

and interests of the wider community.
individuals.
s Criminal actions can include crimes against a
person, the state and/or against property.
Criminal law
s The law provides for the state to take legal

action against an accused, that is, to prosecute
Criminal law is the area of law that deals with
the offender in a court of law to obtain some
crime and encompasses many aspects, including
form of sanction or punishment.
accused
the person or alleged
offender that the
criminal action is
being taken against
prosecute
when the Crown or
state take action
against the offender
in a court of law
the Crown
the state party who
commences a criminal
action in a court of law
against the offender.
In NSW, the action is
usually commenced
by the Director of
Public Prosecutions.
If the alleged crime
is against a federal
criminal law then
the action is usually
commenced by the
Commonwealth
Director of Public
Prosecutions
beyond reasonable
doubt
the standard of proof
required in a criminal
case for a person to be
found guilty
s The police and/or the Director of Public Prosecu-
Broadly speaking, the distinction between crimi-
tions decide to prosecute the offender in court.
nal and civil law depends on the legal proceedings
They are known as the state or the Crown, and
that may follow from the act. If the act is a crime,
the offender is known as the accused or the
then criminal proceedings can be taken. The
defendant. This differs from civil law, where the
offender faces investigation by the police and
action is commenced by the individual affected
prosecution, and the case is heard in the criminal
(the plaintiff) against the person responsible (the
courts, which may result in conviction and
defendant).
punishment of the accused. If the act is a breach
s The Crown must prove its case beyond
of the civil law, the person bringing the action (the
reasonable doubt. This means that if any other
plaintiff) will sue the wrongdoer (the defendant)
reasonable conclusion besides proving the crimi-
in a civil court in an attempt to gain a remedy
nal charges can be made from the evidence,
such as compensatory damages or a court order
there is reasonable doubt. If there is any doubt
prohibiting the conduct.
as to the guilt of the defendant, a not guilty verdict must be reached. This differs from civil law
where a much lower standard of proof is required
R EV I EW 1 . 1
(the balance of probabilities).

s The aim of criminal law is to protect the community and to provide a sanction or punishment to
1 Dene the term crime.

2 Use one or more examples to describe a
the offender if he or she is found guilty by a court
new type of crime and an act that is no
of law. This differs from civil law where the aim

is to address the defendants wrong by way of a
longer a crime.
3 Describe the main ways in which criminal
remedy or court order in favour of the plaintiff.
law differs from civil law.
E l e m e n t s o f c ri m e
actus reus
a Latin term meaning
guilty act that refers
to the physical act of
carrying out a crime
mens rea
guilty mind,
meaning that the
accused intended
to commit the crime
knowing their actions
were wrong
Before a criminal act can be brought to trial, the
accused that carried out the act. This is often the
police and prosecutors need to prove that the ele-
easiest element for the prosecution to prove.
ments of the particular offence are present. There
The actus reus must be a voluntary act but
are two fundamental elements applicable to most
can also include an omission or failure to act,
offences:
particularly in cases of criminal negligence, mean-
s that the accused person actually committed the
ing that the accused failed to take a course of
crime (actus reus)
action when they had a duty to do so.
s that the accused person sufciently intended to

commit the crime (mens rea).
Mens rea
Actus reus
Mens rea is a Latin term meaning guilty mind and
Actus reus is a Latin term meaning guilty act and
for the prosecution to succeed, it must be able to
refers to the physical act of carrying out the crime.
prove that, to the necessary degree, the accused
The prosecution must prove that the accused did
intended to commit the crime.
refers to the mental state of the accused. In order
in fact carry out the relevant act required for the
There is no widely accepted denition for mens
crime. Physical evidence and witness testimony
rea. One common understanding, however, is that
can help the prosecution prove that it was the
it is the state of mind of a defendant and his or
her knowledge of the facts that make the conduct
s Intention a clear, malicious or wilful intention
criminal. In other words, the defendant understood
to commit the crime. This is the highest and
what was happening when the act was committed.
usually most difcult level of mens rea for the

prosecution to prove.
s Recklessness an intermediate level of intent,
crime. Often, if the police or Crown cannot prove
this means that the accused was aware that their
that the defendant acted intentionally, fraudulently,
action could lead to a crime being committed,
maliciously, negligently, recklessly or willfully, the
but chose to take that risk anyway. Perhaps the
charge will not be proved. For example, when a
accused wanted to show off to peers or was
person intentionally shoots someone, that person
unable to make a sensible decision. In the case
has likely intended to commit a criminal act and
of recklessness the prosecution will attempt to
cause harm. Whether that person intended to kill
prove that the risk was obvious to a reasonable
or only injure the victim is a question that will
person and although the accused knew the risk
need to be established. Another situation is when
they were taking, they didnt care about the
a defendant knows what will happen if he or she
consequences.
continues certain behaviour, but recklessly carried
s Criminal negligence where the accused fails
on. For example, the shooter may have been reck-
to foresee the risk where they should have and
less as to whether the victim might die or not from
so allows the avoidable danger to manifest,
the injuries inicted. In all cases, except for strict
usually resulting in harm or death of another
liability cases (see below), the prosecution must
person that the accused had a duty to protect.
prove that the accused was aware (at least to
This is the lowest level of intention for mens
some degree) that their actions would result in the
rea, but a much higher standard than the civil
likelihood of a crime being committed.
law is applied for negligence to be considered
The degree of intention required to prove a
criminal. An example of a case involving crim-
crime can differ and will often be specied in the
inal negligence is R v Thomas Sam, referred to in
legislation where the crime is dened. The three
the case space below.
recklessness
when the accused
was aware that their
action could lead
to a crime being
committed, but chose
to take that course of
action anyway
criminal negligence
where the accused
fails to foresee the
risk where they
should have and so
allows the avoidable
danger to manifest
C rim e
Another view is to regard mens rea as the conscious

and willing mind that was present in performing a
c as e sp ac e
main levels of mens rea include:
R v Thomas Sam; R v Manju Sam (No. 18) [2009] NSWSC 1003

In this recent case, a father and
that the condition was medically
knowledge. The judge in the
mother were charged with man-
treatable yet because treatment
case, Justice Peter Johnson,
slaughter by criminal negligence.
was denied the child had unneces-
concluded that it was the most
The case revolved around the
sarily suffered and died from it.
serious case of manslaughter by
death of the couples nine-month-
The court found that both
criminal negligence.
old daughter who suffered
parents were well educated and
from eczema. The parents had
should have known to seek appro-
guilty of manslaughter and
repeatedly rejected conventional
priate medical treatment for their
sentenced to imprisonment.
medical treatment, and instead
daughter, which they failed to
On appeal, both sentences
relied on ineffective homeopathic
do. The court also found that the
were increased, with the father
treatments, despite the child con-
father had a higher duty of care
receiving eight years imprison-
stantly crying in pain, with broken
as he was a trained homeopath
ment and the mother receiving
skin oozing uid. The court found
with a higher degree of medical
ve years and four months.
The parents were both found
C a u s a t io n
A further consideration relevant when establishing
Proctor over a dispute regarding water restrictions.
causation
the link between
the behaviour of the
accused and the result
(i.e. that the behaviour
of the accused actually
caused the criminal act
alleged)
the elements of a crime is that of causation
Mr Proctor fell to the ground after the punch and
proving that there is sufcient causal link between
Mr Munter kicked him in the midsection with
the actions of the accused and the result. This will
moderate force. Shortly afterwards, Mr Proctor
often be relevant in proving the actus reus and
died from a heart attack as a result of the blows
requires the prosecution to prove a substantial link
inicted upon him by Mr Munter. Although there
between the act and the crime.
was no apparent intention to murder Mr Proctor, it
strict liability offence

an offence where the
mens rea does not
need to be proved;
only the actus reus (the
guilty act) needs to be
proved
A recent NSW case highlights the application of
was deemed by the courts that Mr Proctors death
causation. In the case of R v Munter [2009] NSWSC
was caused by the unlawful assault of the accused.
158, the accused, Todd Munter, was charged with
Mr Munter was convicted of manslaughter and
manslaughter after he punched 66-year-old Ken
jailed for three years and three months.
St ric t l ia b i l i t y o f fe nces
Not all offences require the prosecution to prove
For example, for speeding offences, which are
mens rea. For some limited offences, only the
strict liability offences, the police do not need to
element of actus reus will need to be
show that a person intended to break the speed
shown. These offences are known as
limit (that is, had mens rea) only that the person
strict liability offences.
did so (committed the actus reus). That is, a person
R E VIE W 1.2
1 Explain the difference
between actus reus and
mens rea.
A strict liability offence is one
only has to be caught speeding to incur a ne.
where the prosecution only needs to
Another example of strict liability offences
2 Using a specic crime as an
prove that the accused carried out
include selling alcohol or cigarettes to people
example (e.g. drink-driving
the act, and is not required to show
under the age of 18 it doesnt matter whether or
offence, murder, robbery),
that the accused intended in any way
not the seller knew the buyers were underage, just
describe what you think the
to commit the crime. Because strict
that they were. Strict liability is applied to offences
actus reus and mens rea of
liability offences dramatically lower
due to its administrative advantages, for example
the crime might be.
the level of proof required to achieve
to assist the legal system in coping with the daily
3 Describe how strict liability
a criminal conviction, and so lessen
volume of trafc violations, or to put a greater
offences differ from usual
an accuseds rights in the criminal
onus on society to comply with the particular law.
offences and give examples
process, they are generally restricted
In some cases, a defence to strict liability may be
of some strict liability
to minor offences, such as trafc
available if the accused can prove the act was an
offences.
offences or breaches of regulations.
honest and reasonable mistake.
C a tegories of c ri me
There are many different crimes and they can be
categorised in numerous different ways. These
categories will often affect the way an offence is
investigated, prosecuted or punished and include:
s Type of offence, for example offences against

the person or drug offences
s Jurisdiction, including whether it is a NSW or a
Commonwealth crime
C rim e
Figure 1.4 Crimes are categorised by the nature of the offence and the seriousness of the offence.
s Seriousness of the offence, or whether it is a
summary or indictable offence
included in numerous other NSW acts and regulations. Commonwealth offences follow a similar
s Parties to a crime, for example whether the
regime.
accused is the principal offender of the

crime or assisted in some way.
R ESEAR CH 1 . 1
Types of offences
A complete version of the Crimes Act 1900
In NSW, the Crimes Act 1900 (NSW) is currently
gov.au
(NSW) is available at: www.legislation.nsw.

Find the Act on the website and look at the
divided into roughly 16 parts relating to the

main types of offences. These parts are then
categories of offences listed under the Act.
further divided into hundreds of divisions,
1 How many of the categories and offences
sections and subsections. Offences are also
listed in Table 1.1 can you nd in the Act?
Table 1.1
Type of offence
Examples
Offences against the person
Homicide, assault, sexual assault
Offences against the sovereign
Treason, sedition
Economic offences
Property offences, white-collar crime, computer offences
Drug offences
Trafcking, possession, use
Driving offences
Speeding, drink driving, negligent driving
Public order offences
Offensive conduct, obstructing trafc, affray, bomb hoaxes
Preliminary offences
Attempts, conspiracy
Regulatory offences
Breach of water restrictions, re restrictions or public transport

rules
trafcking
dealing or trading
in something illegal,
particularly drugs
This section will look at the following main

categories of offences:
10, a doctor strangled his wife during a sex game.

The court held that there was a substantial or good
chance of harm, that Boughey had the knowledge
Offences against the

person
and capacity to know better, and that the act

constituted a reckless indifference to human life.
Boughey was convicted of the murder.
homicide
the act of killing a
human being
Offences against the person involve some form of
Murder is one of the most severe crimes possible
harm or injury to an individual. Because there are
and attracts some of the harshest penalties. As a
murder
the deliberate killing of
a person
so many ways that someone can cause injury to
result, murder cases often receive a great deal
another person, these types of crime are divided
of media attention. Television programs such as
into three distinct areas, each including numerous
Law and Order, CSI and City Homicide have
offences: homicide, assault and sexual offences.
also popularised the murder genre giving the
voluntary
manslaughter
the killing of a person
where the accused did
intend or was reckless
about killing someone
but there are mitigating
circumstances
mitigating
circumstances
conditions that may be
considered by a court
when determining
guilt or innocence of a
defendant; mitigating
circumstances do not
justify or excuse an
offense but may reduce
the severity of a charge
provocation
a defence where the
accused claims that
the actions of another
person caused them
to temporarily lose
control; the act of
inducing rage, anger, or
resentment in another
person that may cause
that person to engage
in an illegal act
involuntary
manslaughter
where the death
occurred because the
accused acted in a
reckless or negligent
way without intention
to kill
10
impression that murder is a common crime. In
Homicide
reality, however, the opposite is true. The number of
In the criminal justice system, homicide is
recorded murder victims in NSW from September
dened as the unlawful killing of another person.
2008 to September 2009 was 88, compared with
This includes both deliberate and accidental acts
26 042 domestic violence-related assaults for the
of killing, with varying degrees of mens rea appli-
same period. According to the Australian Institute
cable. In a homicide case, causation must be
of Criminology (AIC), most murder victims are
established between the actions of the accused
killed by a family member or friend.
and the death of the victim.

There are four main categories of homicide in
NSW law: murder, manslaughter, infanticide and
death by reckless driving.
Murder
Murder is the most serious homicide offence
l eg al l i nks
manslaughter
in a manner that is
considered to be less
intentional than murder
A range of recorded criminal

incidents in NSW can be accessed
on the website of the NSW Bureau
of Crime Statistics and Research
at: www.bocsar.nsw.gov.au
and is punishable by life imprisonment. In order

to prove in court that a killing was murder (i.e.
directly related to the actions of the accused), the
Manslaughter
prosecution must show that at least one of the
Manslaughter is the second type of homicide but
following exists:
differs from murder in the intent of the accused.
s the accused intended to deliberately kill the
Manslaughter involves a reduced level of intent and
victim
s the accused set out to inict serious bodily
harm, which resulted in death
s the act was done with reckless indifference to
is punishable by up to 25 years imprisonment. A

person may be charged with manslaughter where
it cannot be proved that they intended to kill the
victim to the degree required for murder. There
another human life; that is, the accused did not
are three main types of manslaughter:
care that the act might end a human beings
s Voluntary manslaughter occurs when a person
life
kills with intent, but there are mitigating
s the act was done while committing or attempt-
circumstances (such as the defence of provo-
ing to commit another serious crime punishable
cation) which reduce their culpability. For
by life or 25 years imprisonment.
the crime to be classed as voluntary man-
The third of these elements is usually the hardest
slaughter, not murder, there must be mitigating
to prove. In Boughey v The Queen (1986) 161 CLR
circumstances.
C am br i d g e L e g a l S t u d i es HS C
C rim e
Figure 1.5 Popular depictions of the murder genre, such as CSI: Crime Scene Investigation, give the
impression that murder is a common crime in society when in fact, the opposite is true.
s Involuntary manslaughter is the killing of a
account the state of mind of the mother at the time
person where the death occurred because the
she committed the crime. Many women suffer
accused acted in a reckless or negligent way,
from a condition called post-natal depression
but without intention to kill the person. In
after the birth of a child. If the accused is found
DPP v Newbury and Jones [1977] AC 500 the
to have been suffering from this condition when
accused deliberately dropped a slab of concrete
she killed her baby it can be seen as a mitigating
from a bridge and the concrete hit and killed
circumstance of the crime.
a train guard. This act was held to constitute

involuntary manslaughter even though there
was no intention to kill or harm anyone.
Dangerous driving causing

death
constructive
manslaughter
while the accused was
carrying out another
dangerous or unlawful
act
infanticide
the death of a baby
under the age of 12
months at the hands
of its mother
s Constructive manslaughter is the killing
Dangerous driving occasioning death
of a person while the accused was carrying
is a particular type of manslaughter
out another dangerous or unlawful act. The
enacted to deal with deaths as a result
Go online and search
manslaughter is constructed from the other
from motor vehicle accidents. It des-
for ve recently closed
unlawful act. For example, where a person
cribes when a person drives in an
homicide cases. Draw up
assaults another person without intention to
unsafe and reckless way, such as under
a table and identify the
kill or inict serious bodily harm, but death
the inuence of alcohol or a drug, or
following:
results, then the death may be construed as
at excessive speed, and in so doing
s the appropriately
manslaughter by the accused.
causes the death of another human
referenced case name
R ESEAR C H 1 . 2
being. A conviction for this crime
and court reference
Infanticide
carries a maximum penalty of 10 years
s the charges brought
Infanticide is a special category of manslaughter
in prison. However, if the offence is
that applies to the death of a baby under the age of
aggravated by certain circumstances
12 months at the hands of its mother. The Crimes
the penalty can be as much as 14 years
such as the ruling and
Act 1900 (NSW) requires that the court take into
imprisonment.
punishment.
against the defendant

s some case details
11
Assault
s intimidated or coerced into the act, or
assault
causing physical harm
or threatening to
cause physical harm to
another person
Assault is the most common form of crime
s if the accused is abusing their position of trust
of threatening to cause physical harm to another
be
common assault
threatening to cause
physical harm to
another person
person (known as common assault).
circumstances, such as where violence is used,
aggravated assault
the assault of a person
with an object rather
than the assailants own
body
without their consent and is punishable by up to
Indecent assault is another type of sexual
ve years imprisonment. A threat to cause physi-
offence, where the accused commits an assault
cal harm can also be a form of assault where it
and act of indecency on or in the presence of
causes the victim to fear immediate and unlawful
another person without their consent. Indecent
sexual assault
when someone is
forced into a sexual
intercourse against
their will and without
their consent
violence threatening phone calls, text messages
acts are not expressly dened in the Crimes Act
or emails might constitute such a form of assault.
but include an assault with a sexual element.
sexual intercourse
broadly dened in
the Crimes Act 1900
(NSW) to include oral
sex or penetration of
the vagina or anus by
any part of another
persons body or by an
object manipulated by
another person
indecent assault
an assault and act of
indecency on or in the
presence of another
person without their
consent
aggravated sexual
assault in company
sexual assault
performed with another
person or people
present together
with aggravating
circumstances
against the person. Assault includes the offence of
or authority over the victim.
causing both physical harm to another person and
Physical assault is a direct act in which force is

applied to another persons body unlawfully and
The crime of aggravated sexual assault will

applicable
where
there
are
aggravating
the victim is under 16 years old or the victim has a

serious physical or intellectual disability.
Aggravated assault is a more serious charge
This offence covers many sexual acts that are not
than assault and occurs when the assailant assaults
included under the offence of sexual assault, such
a person using an object (rather than just their own
as touching the genitals or other parts of the body
body) or if the accused attacks a police ofcer when
in a sexual manner without their consent.
the ofcer is carrying out their duties. In recent
The most serious sexual offence in NSW is
years, there have been cases of thieves threatening
that of aggravated sexual assault in company.
people during robberies with a hypodermic syringe
Punishable by the highest criminal sanction, life
they claim is lled with blood containing an infec-
imprisonment, the offence is viewed by the law as
tious disease. Such threatening acts could fall
equivalent in seriousness to murder. The offence
under the category of aggravated assault.
includes the elements of sexual assault, but is

performed with another person or people present
Sexual offences
together with either depriving the victim of their
Sexual assault is a type of assault where someone
liberty or the iniction or threatened iniction of
is forced into sexual intercourse against their will
bodily harm. The offence of aggravated sexual
and without their consent. It was formerly known
assault in company was introduced in NSW in
in common law as rape. The denition of sexual
2001 following a series of so-called gang rapes
assault includes where consent is withdrawn
across Sydneys inner-west that led to a public
during the act of sexual intercourse. Sexual inter-
outcry for reform of the law. The Case Space on
course is dened broadly in the Crimes Act 1900
the next page illustrates the main case behind the
(NSW) to include different types of sexual acts
reforms.
including oral sex and penetration. Sexual assault

can occur equally to both men and women.
Although the vast majority of such assaults are
against women, it is suggested there are still more
male victims than shown by statistics. Victims
fear of reporting the crime is a serious problem in
Table 1.2 Number of reported cases of sexual

assault in NSW
Offence
2006
2007
2008
Sexual assault
4028
4182
4190
3507
3411
3404
that a person is not consenting where they are:
Indecent assault and

act of indecency
s substantially intoxicated by drugs and alcohol
Other sexual offences
1893
1792
1819
cases of sexual assaults.

Lack of consent is central to the crime of sexual
assault and is dened in detail in the Act. It states
and therefore lack the capacity to consent
12
Year
Source: NSW Bureau of Crime Statistics and Research, 200408
The catalyst for change in the
At the time the only applicable
and tougher penalties, creating
NSW law of sexual assault in
crime was aggravated sexual
a new offence of aggravated
company was the case of R v
assault, which carried the
sexual assault in company in
AEM. The case involved three
highest penalty of 20 years
s 61JA of the Crimes Act 1900
young men (two brothers and
imprisonment. The men were
(NSW). The new offence carries
their cousin who were 19, 16
originally sentenced to ve to
a maximum penalty of life
and 16 years old respectively
six years imprisonment each.
imprisonment, equivalent to
at the time of the crime). They
The abhorrent nature of
that for murder.
lured two 16-year-old girls who
these crimes led to a public
were waiting for a taxi to the
outcry over the existing laws of
Crown in 2002, the appeal
offenders home in Villawood.
rape, which were thought by a
judges decided to signicantly
The girls were then forcibly
large segment of the public to
increase the offenders original
detained and sexually assaulted
be too lenient given the nature
sentences, substituting
over a period of several hours.
of the crime. Following the case,
them with 13 to 14 years
The girls were threatened with
the NSW Parliament moved
imprisonment each.
knives and verbal death threats.
quickly to introduce new laws
Offences against the

sovereign
Notably, on appeal by the
C rim e
ca s e s p a ce
R v AEM (Snr); R v KEM; R v MM [2002] NSWCCA 58
from the UK and later enacted in NSW under

Part 2 of the Crimes Act 1900 (NSW), and in the
Commonwealth under the Crimes Act 1914 (Cth)
Offences against the sovereign are some of the
and later under s 80.1 of the Criminal Code 1995
oldest crimes and include political offences against
(Cth). Under the NSW Crimes Act, the 1351 Act is
the state or heads of state, such as treason and
expressly continued in force. Treason involves any
sedition, with severe penalties if they are violated.
attempt or manifest intention to levy war against
The laws are justied as protecting the structure,
the state, assist the enemy, or cause harm to or
authority and integrity of the state and the citizens
death of the Governor-General, prime minister or
that it governs. Historically such laws were more
the Queen of Australia. Treason was formerly a
frequently used to prevent or punish attempts to
crime punishable by death. Today, it is punishable
overthrow or even criticise heads of state. Australia
by up to 25 years imprisonment (NSW) or life
today is a stable parliamentary democracy, where
imprisonment (Commonwealth).
objections are aired through protest, public
Sedition is another type of crime against
comment, elections or law reform, and such laws
the state that involves promoting discontent or
have arguably fallen out of use.
overthrow of the government or sovereign. Dating
Treason was a common law crime in England
back to at least 1606, a seditious act historically
long before it was rst codied by King Edward
involved any oral or written intention to bring the
III in the Statute of Treasons in 1351. The offence
sovereign into hatred or contempt, and included
was dened as acts directed against the sovereign.
inciting disaffection against the government or
At that time, the sovereign was the monarch; this
parliament. The laws were criticised as being open
was later widened to include heads of state such
for abuse in silencing government opposition,
as the prime minister and governor-general. The
public comment and endangering freedom of
crime of treason was imported to Australian law
speech.
treason
an attempt or
manifest intention
to levy war against
the state, assist the
enemy, or cause
harm to or death of a
head of state
sedition
promoting
discontent, hatred
or contempt against
a government or
leader of the State
through slanderous
use of language; in
Australia, sedition
includes offences
of urging force or
violence against the
government
13
In Australia, sedition laws had fallen into
Crimes against property
disuse until 2005 when the then Commonwealth
In NSW, there are three main types of offence
government, under Prime Minister John Howard,
against property: larceny, robbery and break and
introduced a range of controversial antiterrorism
enter.
laws in the Anti-Terrorism Act (No. 2) 2005 (Cth),
Larceny is the most common property offence
which included a revived sedition law. The
and is more commonly known as theft or steal-
Australian laws, under s 80.2 of the
ing. It is also one of the most likely economic
R E S E A RC H 1.3
Criminal Code 1995 (Cth), make it a
offences that people will fall victim to at some
The Australian Law Reform
crime to urge another person to use
time in their lives. Larceny occurs when one or
Commissions report Fighting
force or violence to a particular end,
more persons intentionally take another persons
Words: A Review of Sedition
such as overthrowing the government
property without their consent and without the
Laws in Australia contains a
or Constitution or interference in
intention of returning it. One of the most common
history of sedition laws and
parliamentary elections. The offences
forms of larceny is shoplifting. The offence of
various recommendations
are punishable by up to seven years
larceny is punishable by up to ve years imprison-
about reforming Australias
imprisonment.
ment, but this may differ depending on the type
laws. It is available online at:
The sedition laws received wide-
of larceny involved.
www.austlii.edu.au/au/other/
spread public criticism as being un-
Robbery is a more serious offence than larceny.
alrc/publications/reports/104.
necessary, against the times, and a
Robbery occurs when the use of force is present
danger to freedom of expression, par-
in the act of stealing goods or when property is
answer the following questions:
ticularly in relation to commentary
taken directly from a victim. If the robbery is
1 In what circumstances have
and critique by the media and the arts.
accompanied with the use or threatened use of a
Australias sedition laws been
When the subsequent Labor gov-
weapon then the crime is called armed robbery
used in the past?
ernment was elected to power in
and will carry an even higher sentence.
Look at the report and
2 What were some of the
November 2007, it immediately com-
Break and enter is another very common
dangers of sedition laws
missioned a review of the laws by the
economic crime more commonly known as
identied by the ALRC?
Australian Law Reform Commission
burglary. The term refers to a series of offences in
(ALRC) with a view to amending them.
the Crimes Act related that generally occur when
recommendations of the
Among the ALRCs recommendations
a person or persons enters a room or building,
ALRC report?
were to remove any reference to the
such as a private residence, with the intention of
term sedition from the laws and
committing an offence. Usually the offender will
current news articles and
to amend various elements of the
be doing so with the intention to commit another
identify whether Australias
offences and available defences. At
property offence like larceny.
sedition laws have yet been
the time of printing the laws remain
amended by the government.
in force and have yet to be amended.
3 What are some of the
4 Search the internet for
White-collar crime
White-collar crime is a general term given to
larceny
when one or more
persons intentionally
takes another persons
property without
consent and without
intention of returning it
robbery
when property is taken
directly from a victim,
usually forcefully
14
Economic offences
various non-violent crimes associated with busi-
Economic offence is a broad term including a wide
is often difcult to detect and can be time-
range of crimes that can result in a person or per-
consuming and expensive to investigate. Three
sons losing property or sums of money. It is the
of the most common white-collar crimes include
largest area of criminal law because it encom-
embezzlement,
passes some of the most common types of crime.
trading.
Economic offences fall into three main categories:
nesspeople or professionals. White-collar crime
tax
evasion
and
insider
Embezzlement describes when a person, usually
s crimes against property
an employee, misappropriates another persons
s white-collar crime
property or money that they have been entrusted
s computer offences.
with. Embezzlement usually occurs when an
Table 1.3 Number of reported cases of break and enter in NSW

Year
2006
2007
2008
Break and enter dwelling
48 036
47 610
44 782
Break and enter non-dwelling
27 153
24 411
22 889
Steal from dwelling
24 313
23 000
21 747
Steal from retail store
18 110
18 399
19 843
Source: NSW Bureau of Crime Statistics and Research, 200408
employee steals money from their employer, for
that their income is lower than it actually is, or
example by transferring sums of money to the
organising a business or property in a way as to
employees own account or stealing money from
hide income or assets, thereby reducing the total
the cash register or petty cash tin. It might involve
amount of tax they are required to pay. Tax evasion
a large-scale corporate embezzlement, sometimes
can incur high penalties when discovered.
with more than one offender, or small amount
Insider trading is an offence related to the
stolen from a local business. Money will often be
buying and selling of company shares. It occurs
embezzled in small amounts at a time, sometimes
when a person (usually a stockbroker or company
with accounts or records modied in an attempt
director) obtains condential inside information
to hide the conduct. Embezzled money can be
about a company that will affect the share price.
difcult to recover, even when pursued through
The information will usually relate to the share
the courts as it may be untraceable or the offender
price signicantly increasing or dropping, which
may be nancially disadvantaged and unable to
the offender will then take advantage of, for
repay the money they have stolen.
example by buying or selling his or her own shares

to reap the benets or avoid the losses. A highly
occurs when a person or company tries to avoid
publicised case of insider trading in Australia is
paying taxes to the government. Often it involves
that of Rene Rivkin, described in the Case Space
people fraudulently lling out tax returns stating
below.
c a se sp ac e
Tax evasion is a common white-collar crime and
white-collar crime
a general term for
various non-violent
crimes associated
with professionals or
businesspeople, such
as embezzlement,
tax evasion or insider
trading
embezzlement
when a person
steals money from a
business over a period
of time while they
are employed at that
workplace
C rim e
Offence
break and enter

commonly known as
burglary, break and
enter offences usually
occur when a person
enters a home with
intent to commit an
offence
tax evasion
an attempt to avoid
paying the full
amount of taxes due
by concealing or
underestimating a
person or businesss
income or assets
insider trading
when a person
illegally trades on
the share market to
their own advantage
using condential
information
R v Rivkin (2003) 198 ALR 400
R ESEAR CH 1 . 4
The accused, Rene Rivkin,
impending merger between
Search newspapers or
was a well-known Australian
Qantas and the company,
online and nd ve articles
entrepreneur, investor and
Impulse. It was likely that the
about white-collar crime.
stockbroker. He was found
price of the shares would
Make sure they are current
guilty of insider trading after a
rise once the information
and different cases. Write
long-running investigation for
was publicly available. The
a summary on each of
having purchased some 50 000
purchase resulted in small
the cases and attempt to
shares in Qantas in April 2001.
prot of $2662.94.
identify the reasons for
It was found that Mr Rivkin
Mr Rivkin was convicted and
the accused committing
had been told condential
sentenced to nine months of
the offence, the defence
information by a company
periodic weekend detention,
presented by the accused,
executive just hours before
and his stockbroker licence
and any other interesting or
he bought the shares of an
had been separately banned.
relevant facts of the case.
15
Computer offences
the Australian Federal Police estimating the cost to
Computer offences include various crimes related
the Australian public at over $4 billion a year.
cation of data. The Crimes Act 1900 (NSW) lists a

number of computer offences such as unauthorised access to, modication or impairment of
restricted data, or more serious crimes like
impairment of electronic communication or unauthorised access or modication of restricted
legal links
to hacking and unauthorised access or modi-
The Australian Government

has established a website with
information about current
fraudulent scams. It can be viewed
at: www.scamwatch.gov.au.
data with intent to commit a serious offence. The

more serious computer crimes can incur a penalty
of up to 10 years imprisonment.
Computer crimes might occur, for example,
where the offender breaks through the security
rewalls of a companys computer and alters or
Drug offences relate to acts involving prohibited or
steals the companys data. Such crime might result
restricted drugs. There are many crimes that may
in private nancial data (such as those related to
be associated with drug abuse or addiction, such as
peoples personal bank accounts or credit cards)
larceny, robbery, break and enter or prostitution.
being made available to people who could use it
Drug offences focus on the movement of the drugs
unlawfully. Computer crimes will sometimes be
themselves, including for example the growing,
committed by an employee of the target company
selling and use of the drug.
or by an outsider with sufcient computer literacy

to commit the offence.
fraud
deceitful or dishonest
conduct carried out for
personal gain
16
Drug offences
People have access to many different types

of drugs in society, both legal and illegal. Legal
Fraud is a further type of economic offence that
or unrestricted drugs might include paracetamol
can include white-collar crime, property offences
or caffeine. Illegal drugs are drugs that have
or computer crime. Fraud refers to deceitful
been prohibited by law because lawmakers have
or dishonest conduct carried out for personal
deemed them unsafe for general use, and include
gain. It is often an element of other offences,
for example cannabis or heroin. Restricted drugs
such as fraudulent misappropriation, fraudulent
or controlled substances may be drugs that are
personation or obtaining credit by fraud.
available via prescription only, for example cold
Fraudulent crimes are becoming increasingly
and u tablets or anti-depressant medication,
relevant with advances in technology, especially
or might be restricted for particular scientic or
relating to internet use and electronic facilities such
medical uses.
as automatic teller machines (ATMs). Common
In NSW, the Drug Misuse and Trafcking Act
types of fraud include identity theft, internet
1985 (NSW) outlines numerous offences related to
phishing (fraudulently posing as a legitimate
prohibited or restricted drugs, with some additional
website), or requesting funds or account details by
offences included in the Summary Offences Act
email under fraudulent pretences. Nigerian e-mail
1988 (NSW). The main federal legislation relating
scams or ATM skimming devices are some of the
to drugs is the Customs Act 1901 (Cth) and will most
most well-known scams. Identity fraud might
often apply where there is an international element
involve a person using another persons personal
to the offence, like cross-border drug trafcking.
details to apply for credit cards or loans, or open
The most common drug offences relate to pro-
bank accounts to deposit fraudulently gained
hibited drugs and focus on cultivation, production,
funds into them. Identity fraud is also one of the
supply and trade (trafcking), possession or use
fastest growing areas of crime in Australia, with
of the drug.
Drug trafckers face lengthy jail sentences in
s possession of a prohibited drug: the drug must
Australia, particularly for international trafcking.
be in the accuseds custody or control, and the
In some countries (including Indonesia, Singapore
accused must know about it; including shared
and Malaysia), trafckers may face the death
ownership or simply minding it for another
penalty. For example, there was much controversy
person
when a 25-year-old Australian citizen, Van Nguyen,
s use of a prohibited drug: the intentional con-
was hanged for drug trafcking in Singapore. Van
sumption of the drug by any means, although
Nguyen had been arrested at Changi airport in
this will not apply if the use occurs in a
2002 after being caught importing 396.2g of heroin
medically-supervised injecting centre
into Singapore. He was convicted and sentenced
s cultivation: applies to the growth or cultivation

of a prohibited plant, such as cannabis
to death. Despite calls for clemency from the tens

of thousands of Australians, the Prime Ministers
s supply of a prohibited drug: this is a broad
of Australia and New Zealand and even the Pope,
offence including offering or agreeing to supply,
Van Nguyen was hanged at Changi Prison in
whether or not the actual drug or money really
December 2005.
C rim e
Some of the main offences are outlined below:
changed hands; it can also include having drugs

in your possession for the purpose of supply or
single or multiple instances of supply.
Driving offences
Drug offences will often carry severe penalties.
Driving or trafc offences are some of the most
Users may often face penalties such as attending a
commonly committed offences in NSW. Driving
drug rehabilitation program and complying with a
offences are included under both the Road
good behaviour bond, and cases may be heard in
Transport (Safety and Trafc Management) Act 1999
dedicated youth or adult drug courts. Suppliers or
(NSW) and the Crimes Act 1900 (NSW).
those who make drugs are dealt with much more
The police enforce and process many driving
severely, as their actions are deemed to have a
offences through the imposition of on-the-spot
greater impact on the community as a whole.
nes. Such nes will generally relate to strict liability trafc offences like speeding. These offences
are easier to process as they only require the police
to show that the act was committed by the offender, without needing to consider the individuals
intention or state of mind. Trafc offences are
regulated by the NSW Roads and Trafc Authority
(RTA), which controls the demerit system where
offenders will lose points from their drivers licence
if caught committing certain trafc offences.
The most common trafc offences include:
s exceeding the speed limit
s driving without a licence or while disqualied
s ignoring road signs
s driving above the legal blood alcohol limit of
0.05.
Driving offences include serious offences pun-
Figure 1.6 On 2 December 2005, Australian

Van Nguyen was executed at Changi Prison in
Singapore for drug trafcking.
ishable by signicantly higher penalties. Such

offences will be dealt with through the courts
and may result in the imposition of large nes,
17
ences are more serious crimes that will usually

be heard in court and can result in signicantly
higher penalties. More serious public order
offences are listed in the Crimes Act. For example
the offence of affray involves using or threatening
to use unlawful violence on another that would
cause a person of reasonable rmness to fear for
their safety. It is a charge often laid as a result of
a public ght or brawl where people nearby could
have feared for their safety and is punishable by
Figure 1.7 Driving under the inuence of proscribed drugs or with
excessive blood-alcohol level are considered serious driving offences
with high penalties.
up to 10 years imprisonment. Riot is a similar

public order offence but involves 12 or more people
using or threatening to use unlawful violence
for a common purpose. Other serious public
suspended or cancelled licences or imprisonment.
order offences include explosives and rearms
Serious offences include furious or reckless
offences, bomb hoaxes or participation in criminal
driving, negligent driving causing death or serious
organisations.
bodily harm, or failing to stop and give assistance

in an accident involving death or injury. They also
include driving under the inuence of proscribed
drugs or with an excessive blood-alcohol level.
Preliminary crimes
Preliminary offences refer to offences that precede
the commission of a crime or where the crime has
affray
using or threatening to
use violence towards
another that would
cause a reasonable
person present at the
scene to fear for their
safety
Public order offences
not been completed for some reason, for example
Public order offences relate to acts that are
Preliminary crimes fall into two main categories:
deemed to disturb the public order in some way,
attempts and conspiracy.
it may have been interrupted or unsuccessful.
such as a disturbance in or in sight of a public
An attempt to commit a crime will still be
area. There are a number of public order offences
considered an offence and will usually be punish-
listed in the Summary Offences Act 1988 (NSW) and
able by the same penalty as if the crime had taken
under Part 6A of the Crimes Act 1900 (NSW). Public
place. Section 344 of the Crimes Act 1900 (NSW)
order offences are often acts that society deems
states that any person who attempts to commit
riot
similar to affray, but
with 12 or more people
using or threatening to
use unlawful violence
for a common purpose
as inappropriate or offensive when conducted in
an offence for which a penalty is provided shall
public, although they may be perfectly legal or
be liable to that penalty. However, penalties for
acceptable within the connes of ones own home.
certain attempts, such as attempted murder are
Some of the most common public order offences
dealt with specically in the Act and may carry a
include:
lower penalty.
attempt
an offence where a
principal crime was
attempted but failed
or was prevented for
some reason despite
the intention to
complete it
s obscene, indecent or threatening language or
conspiracy
when two or more
people plot to commit
a crime together
s damaging public fountains or protected places.
pleting the apparent crime. For example, in R v
These offences will usually incur a ne or other
Whybrow (1951) 35 CAR 141 a husband connected
lesser penalty. However, some public order off-
electricity to the soap dish in the family bath in
18
behaviour in public
s possessing a knife in a public place without
reasonable excuse
s obstructing trafc or ignoring a reasonable
police direction to move on
Because the penalty for an attempt is so high,

the prosecution will need to show that the offence
was all but completed or failed for some reason
despite the intention to complete it. The accused
may have a lawful reason for the conduct in
question or have had no real intention of com-
order to electrocute his wife. His plan did not

work and when his wife came into contact with
the soap dish she received only a shock. The court
found him guilty of attempted murder because his
intention for the act to succeed and result in death
was clear, despite the fact that it had failed.
Conspiracy occurs when two or more people
jointly conspire to commit a crime. The conspiracy
is complete where an agreement (the act) is
reached between the parties, with the intention
C rim e
also shown by each persons explicit agreement

to commit the offence. It may be difcult for a
prosecutor to prove conspiracy without the aid of
a confession or record, such as a signed document
or phone tap, because the crime allegedly agreed
to will not have taken place.
Figure 1.8 Many regulatory offences, such as

breaching water restrictions, have strict liability.
Regulatory offences
Regulatory offences are usually set out in dele-
ne or loss of a particular licence, or in extreme
gated legislation, such as regulations or local laws,
cases may result in more serious criminal charges
that address a range of day to day situations and
being laid.
standards. They differ from more serious offences

set out in statute or common law that can only
be modied by parliament or in some cases the
courts. Regulatory offences are considered more
minor offences with lesser penalties. They are
R EV I EW 1 . 3
1 Using offences as examples, describe
usually set by the government department or
some of the differences between offences
agency responsible for that area of law and policy
against the person and economic offences.
and require faster or more frequent change than
What types of crime do they include? What
traditional legislative processes allow. Examples of
are the main effects of the crimes? Why do
regulatory offences include:
you think these acts are deemed criminal?
s watering the garden despite water restrictions
2 A number of driving offences and

regulatory offences are strict liability
being in place
s breach of occupational health and safety
offences. Using examples, describe why

you think these crimes are strict liability
regulations
s travelling on public transport without a valid
only. What are the advantages and

disadvantages for society of such offences
ticket
s lighting a re or barbeque on a day of total re
being strict liability?

3 Attempts and conspiracies often carry
ban.
Regulatory offences are usually strict liability
penalties as high as if the crime was
offences that do not require any intention to be
actually committed. Evaluate why this
proved. They will usually be enforced by govern
might be and describe some of the possible
ment ofcers or local law enforcement ofcers. A
difculties in prosecuting an attempt or
breach of a regulatory offence will usually incur a
conspiracy.
19
Su m m a r y a n d i n dic table of fences

summary offences
less severe offences
that are heard and
sentenced by a
magistrate in the Local
Court
indictable offences
more severe offences
that are heard and
sentenced by a judge
in a District Court or
tried before a judge
and jury
All criminal offences are separated into two
committal hearing will be held in the Local Court
important categories depending on the severity of
where a magistrate will determine whether
the offence: summary offences and indictable
the prosecutions evidence is sufcient to go to
offences. Whether the offence is summary or
trial. Indictable offences will then be heard and
indictable will be crucial to the way the case is
sentenced by a judge or where a not guilty plea is
prosecuted and heard in court.
entered will be tried before a judge and jury.
Summary offences are considered less serious
Many indictable offences will also be triable
offences and will usually incur lesser penalties
summarily. This means that the accused will be
than indictable offences, although they may still
able to elect to have the case heard by a magistrate
have serious consequences. Summary offences
in the Local Court or judge and jury in the District
will be heard and sentenced in a Local Court
Court. Cases heard in the Local Court can have sig-
before a magistrate and not tried in front of a jury.
nicant administrative advantages like an earlier
Penalties for summary offences may range from a
hearing date, faster hearing, less formality and
bond or ne to a jail sentence of up to two years,
cost and the possibility of a lesser sentence due to
or ve if convicted of more than one offence. Many
Local Court restrictions on maximum sentences.
summary offences are found in the Summary
However, where a not guilty plea is entered, the
Offences Act 1988 (NSW) and will also include
District Court offers the advantage of a jury trial,
regulatory offences.
which might be more inclined to acquit, although
Indictable offences are more serious offences
this would not be guaranteed.
such as assault or property damage and are

generally heard in the District Court. An initial
The main differences between summary and

indictable offences are outlined in Table 1.4.
Table 1.4 A comparison of summary and indictable offences

Summary offence
Indictable offence
s a less serious offence that is tried by a

magistrate in the Local Court
s a more serious offence (such as murder or

rape) tried by a judge and jury
s the judgment and punishment are determined

by a magistrate
s the judgment is determined by a jury and

the punishment is determined by the judge
s the charge is usually laid by a police ofcer or

government ofcer
s the charge is brought by a public

prosecutor working for the state
s the punishment is usually less severe, such as a

ne, good behaviour bond or community service
s the punishment will usually result in

imprisonment or a hefty ne
Pa r t ies to a c ri me
Crime is not always a solitary pursuit. Other people
a crime may become a party to the crime. The
are sometimes involved in the act, either before or
level of punishment that a court metes out to a
after the crime has been carried out. Any person
party is usually determined by that persons level
who has been involved in any way in committing
of involvement in the crime. The parties to a crime

are divided into four main categories:
20
s Principal in the rst degree this is the principal
second degree may be given a
R EVI EW 1 . 4
offender, or the person who actually commits
lesser sentence depending on
1 Describe the key
the criminal act. For example in an armed
the circumstances.
characteristics of a
robbery this would be the person who actually
s Accessory before the fact an
pointed the gun and took the money. The
accessory will be someone
principal offender will be directly responsible
who has helped the principal
for the crime being carried out and so is likely
to plan or carry out the crime.
the advantages and
to receive the highest sentence.
An accessory before the fact
disadvantages for an
s Principal in the second degree this is a person
is a person who has helped in
offender of having their
who was present at the crime and assisted or
planning or preparation before
case heard as a summary
encouraged the principal offender to perform
the actual act is carried out.
instead of an indictable
the offence. For example in the scenario above,
s Accessory after the fact this
this may be the person who kept a lookout by
is someone who has assisted
the door. The presence need not be immediate
the principal after the actual
parties to a crime.
physical presence but assisting the principal
act is committed, for example
4 Use a real or ctional
may be sufcient, for example by providing
driving a getaway car or
example of a crime to
instructions over the phone. The principal in the
disposing of evidence.
illustrate different parties
summary offence and an

indictable offence.
offence.
3 Describe the four possible
C rim e
2 Identify some of
to an offence.
Fa c to r s a f fec t i n g c ri m i n a l
b e h av i o u r
People commit crimes for all types of reasons.
R ESEAR CH 1 . 5
Any one person may commit the same crime for
The AIC is a research and knowledge centre
an entirely different reason to another. People
on crime in Australia that publishes various
have studied crime and the reasons or patterns
crime-related statistics. Visit the following
behind it for centuries. Numerous theories have
website and nd the latest edition of
been developed to attempt to explain criminal
Australian Crime: Facts and Figures: www.
behaviour, some often less convincing than
aic.gov.au/en/publications/current%20series/
others. The scientic study of crime and criminal
facts.aspx.
behaviour is known as criminology.

Although never easily dened or categorised,
View the Selected Offender Proles

section of the report and answer the
some of the main reasons behind a person
following questions:
committing an offence might include psychological
1 What are the main age and sex proles of
or pathological factors, social factors, economic

factors or political factors. Or one of the more
offenders in Australia?
2 What are the main areas of income,
extreme theories of criminal behaviour relates to
non-criminal and criminal, recorded by
genetic theory. On the other hand, some crimes
offenders?
may even be committed due purely to self-interest.
3 What percentage of offenders has been
Although even this may involve diagnosed or
arrested in the past 12 months?
undiagnosed pathological elements. In some
4 What are the main types of crimes
instances, crimes may be committed simply
criminology
the scientic study
of crime and criminal
behaviour
committed by the offenders?
because the particular area of law may be out of

date and in need of legal reform.
21
Psychological factors
skills will often be closely related to economic

factors, with such criminals often habitually
Psychological or pathological factors will often be

relevant to the commission of an offence, with
many forms of mental illness affecting a persons
behaviour. These factors will often be important
during the criminal process, as early as the time of
arrest or charge, or relevant to the accuseds state
unemployed and unskilled. Even if gainfully

employed, menial or poorly paid jobs may affect
the likelihood of committing an offence. In some
instances, offenders may view criminal acts with
a nancial benet, such as larceny or robbery, as
a necessary option.
of mind and raised by either prosecution or defence

during a criminal trial. Psychological factors
contributing to the offence will also be relevant
during sentencing and particular sentencing
programs, such as drug rehabilitation programs,
will often focus on the accuseds psychological
rehabilitation.
Genetic theories
Genetic theories surrounding criminal behaviour
have long been a topic of interest for scientists
and criminologists. For example, in the early
19th century the science of phrenology was
born. Using this approach, criminals had their
Social factors
head measured to determine whether there were

any physical characteristics that could allow
Social factors inuencing a persons attitude
scientists to pick potential criminals because of
towards crime may include their family situation
their appearance. Fortunately recent studies have
or personal relationships. The social groups
been more advanced. They have investigated and
that people associate with will often inuence
compared the DNA of prisoners to see if there is
a persons attitudes and views of acceptable
any one common genetic marker that can predict
behaviour. This may be particularly relevant, for
criminal behaviour.
example, in the area of drug offences or public
None of these genetic studies has been con-
order offences. In other areas of crime it may be
clusive in showing that individuals with certain
the environment that a person has been raised in
genes are more likely to commit crimes. This
that could inuence their behaviour as an adult.
suggests that external factors like social, economic
For example, a person brought up in an abusive
or psychological factors play the greatest role in
home may have experienced certain traumas that
criminal activity.
may be replayed in their adult life without effective

treatment (such as assault or sexual assault, or
instances of drug abuse).
Political factors
Although not the most inuential factors in crim-
Economic factors
inal offences, political factors have played a role

in inuencing criminal behaviour for centuries.
22
Economic factors present one of the most
Offences against the sovereign or offences
substantial reasons for the committing of crimes
against the state are likely to have some political
in NSW. People from disadvantaged backgrounds
factors inuencing their commission. However,
are more likely to commit crimes and front
some public order offences such as riots may
our courts than any other group. For example,
have politically motivating factors, especially in
statistics released by the AIC show that one-third
situations where public protests become politically
of males and one-half of female offenders receive
intense. Examples include the annual protests at
a welfare or government payment as their main
the G8 Summit or protests at the 2009 Copenhagen
source of income. Poor education and lack of
Climate Change Conference. Terrorism-related
C rim e
Figure 1.9 Over a thousand protesters were arrested during violent protests at the Copenhagen
Climate Change Conference in 2009.
offences are some of the most extreme political
property offences for prot, offences against the
offences, where the use of violence or intimidation
person for self-interested revenge, and particularly
will usually have explicit political aims.
white-collar crimes such as embezzlement or

insider trading. White-collar crimes are a good
Self-interest
example of criminal activity being driven by
Self-interest will usually play some role as a
socio-economic or political factors, where the
motivating factor in committing a crime, from
motivations of money or power will often play a
committing drug offences for prot or for use,
signicant role in committing the offence.
greed and self-interest rather than underlying
C r i m e p r eve n t io n :
s i t u a t i o n a l a n d s oc i a l
Understanding the factors and motivations behind
patrolling trains, shopping centres and the streets
crime is also important in crime prevention. This
may contribute to the prevention of certain crimes,
chapter has examined a variety of reasons why
as do community based organisations, such
crimes are committed, the types of people who
as Neighbourhood Watch. However, as society
commit them and the reasons why they do so. But
and crime evolves and criminals become more
one thing is certain crime has existed as long
sophisticated other methods of crime prevention
as laws have been in place and will continue to
need to be employed. Two main areas of crime
do so.
prevention are situational crime prevention and
Society is always looking for ways to prevent

crime. For example, uniformed police ofcers
social crime prevention. These are discussed

below.
23
Situational crime
prevention
causing trouble. Closed-circuit television (CCTV)

cameras are another important method of crime
prevention and have been installed for example
Situational crime prevention usually involves one
in many retail stores and in known trouble spots
of two approaches these are:
throughout major cities. Although they will not
s Planning and architectural design focuses upon
always prevent crimes from being committed,
the inuence of physical environments upon
people may be deterred from committing a crime
crime.
when they know they are at risk of being impeded
s Focused (situational) approaches rests on rational

choice theory, which views offenders as actors
who weigh up potential gains, risks and costs.
the event that an offence is actually committed.

Decreasing the rewards of crime is another
Situational crime prevention aims to make it more
form of situational crime prevention. An example
difcult for criminals to carry out a crime and
of this approach is the use of colour tags attached
therefore stop a crime before it is committed.
to clothing in shops. The tag sets off a detector at
Planning and architectural design, for example,
the door of the shop if someone tries to walk out
may revolve around security such as installing
with the item without purchasing it. If the tag is
bars or an alarm system at home to ward off
removed by force, it releases blue dye all over the
would-be thieves, or use computer passwords or
stolen item, rendering it useless. Other methods
internet rewalls to deter the theft of data.
include magnetic strips embedded in items that
Strategies like avoiding crime hotspots such
will set off a detector at the door.
as poorly-lit alleyways and carparks can assist
Other crime prevention initiatives by local
in preventing crime. More unusual tactics have
councils have aimed at removing opportunities
included shopping centres playing classical music
for crime, such as designated no-alcohol zones
to deter groups of young people congregating and
in an attempt to curb alcohol-related incidents,
Figure 1.10 A variety of situational crime prevention measures
24
or caught. It will also provide valuable evidence in
C rim e
Figure 1.11 Poor school attendance is one of the underlying social factors that may lead to criminal
behaviour.
improving lighting in areas such as car parks and
levels of students deemed to be at risk. Schools,
walkways, or installing blue uorescent lights in
TAFEs and private organisations have also formed
public toilets to prevent drug injecting in public
partnerships to provide better opportunities for
areas.
students who nd the school setting inappropriate

for their individual needs. Parenting workshops
Social crime prevention
are run for mothers and fathers who come from
Some of the social and economic factors that might
to
contribute to a person committing an offence were
their children to make better life
discussed in the previous section. Social crime
choices.
disadvantaged backgrounds and lack the skills

empower
themselves
and
R EV I EW 1 . 5
1 Describe three different
factors that might
prevention attempts to address the underlying
Youth programs are also run to
social factors that may lead to criminal behaviour.
teach dispute resolution skills and
These factors may include:
social skills that will encourage
s poor home environment and parenting
potential offenders to make better
2 Dene situational crime
s social and economic disadvantage
choices about their actions and
prevention and provide
s poor school attendance
their futures. If such early crime
examples of how this is
s early contact with the police and other
prevention programs can change
authorities.
the course that a potential offender
inuence a person to
commit an offence.
achieved.
3 Dene social crime
The government spends millions of dollars in
is on, it might prevent them from
prevention and give
different areas to try to combat these social
ever being in a situation where
some examples of how
problems. For example, funding is put into educa-
they feel encouraged to commit an
this is achieved.
tional programs in schools to raise the education
offence.
25
C ha p te r s u m m a ry
M ul ti p l e- c hoi ce q ues ti ons
26
s A crime is an act or omission committed

against the community at large that is
punishable by the state.
s The criminal law is constantly changing.
s Criminal offences include an actus reus (guilty
act) and mens rea (guilty mind), except for
strict liability offences.
s Offences against the person include murder
and manslaughter, assault and sexual assault.
s Offences against the state are old laws
but have recently returned to parliaments
attention.
1 Selling alcohol to a minor is best described as

which of the following?
a a public order offence
b a strict liability offence
c an offence against the person
d an offence against the sovereign
2 Involuntary manslaughter is best described as
which of the following?
a a person causing the death of another
human being because they acted in a
negligent way
b a person taking their own life
c a murder reduced to manslaughter due to
mitigating circumstances
d a person causing the death of another and
they intended to do so
3 What is larceny?
a a white-collar crime that is on the increase
b using force when stealing goods
c the act of breaking into a private residence
to steal something
d the intentional taking of another persons
property without their consent
s Economic offences are wide and range

from theft to computer hacking and insider
trading.
s Crimes can be punishable even if they do
not succeed, for example, attempt and
conspiracy.
s Indictable offences are more serious offences
than summary offences.
s There can be more than one party to a crime
who may be punishable.
s Offenders commit crimes for different
reasons, inuenced by many different factors.
s Crime prevention ranges from situational
approaches to broader social approaches.
4 Writing a book calling for the violent

overthrow of the government might be
prosecuted as what type of offence?
a a crime against humanity
b a crime against a person
c a crime against property
d a crime against the sovereign
5 A person who helps a criminal hide out at
their house might be charged as:
a an accessory before the fact
b an accessory after the fact
c principal in the rst degree
d principal in the second degree
C rim e
C ha p te r s u m m a ry ta s k s
1 Dene what a crime is and describe the

characteristics of criminal law.
2 Using examples, explain the difference
between murder and manslaughter.
3 Explain the difference between summary

offences and indictable offences and list some
examples of each.
4 Describe what regulatory offences are and
how they differ from other crimes.
5 Explain some of the factors contributing to
crime and provide examples of some crime
prevention techniques that might be used to
combat them.
27
CHAPTER 2
k ey ter ms/vocab ul ary
chap te r o b j e cti ve s
The criminal investigation

process
28

s identify the rights of suspects during the
interrogation process
s describe the purpose, use and types of police
powers
s discuss the role of technology in investigating crime
s explain the process of a criminal investigation
arrest
bail
charge
DNA evidence
evidence
in situ
inadmissible evidence
interrogate
interrogation
investigate
reasonable force
remand
search and seizure
summons
surety
warrant
s describe the different types of evidence collected

during an investigation
s communicate the relevant legislation in the
investigation process.
Bail Act 1978 (NSW)

Evidence Act 1995 (NSW)
Law Enforcement (Powers and Responsibilities)
Act 2002 (NSW)
od d l a w
In the US state of Hawaii, it is legal to commit a
crime provided you only violate the law a little
bit. Hawaii Revised Statutes 702-236 dene what
are known as de minimis infractions. Subsection
B states that a crime is not a crime if it does
not cause harm or does so only to an extent
too trivial to warrant the condemnation of
conviction.
C rim e
rel ev ant l aw
Darby v Director of Public Prosecutions [2004]

NSWCA 431
Cha pter 2: T he crimina l investiga tio n proces s
29
Po l ice powe r s
investigate
for the police, this
means carrying out
research to discover
evidence and examine
the facts surrounding
an alleged criminal
incident
arrest
to seize a person by
legal authority and take
them into custody
interrogate
to formally question a
suspect in relation to
an alleged crime
evidence
information used to
support facts in a
legal investigation or
admissible as testimony
in court
search and seizure
the power to search
a person or their
possessions and seize
and detain items that
are discovered
The law denes what a crime is and whether a
be given greater powers in specic areas in order
particular act constitutes an offence. But laws
to combat particular threats or perceived threats
alone would be ineffective without any means
to the community. Some of the main police powers
to enforce them. The responsibility for enforcing
include the power to:
criminal laws and ensuring they are adhered to
s detain and question suspects
lies with the police.
s search property and seize evidence (commonly
Police form part of the executive arm of government and so are separate from the legislature,
who makes the laws, and the courts, who make
enforceable legal decisions and judgments. Police
known as search and seizure)

s use reasonable force if necessary to carry out
their duties
s use
particular
technologies
to
assist
an
are responsible for the prevention and detection
investigation, such as phone taps, surveillance
of crime and for the maintenance of public order.
or DNA samples
Importantly, it is the police that are responsible for
s arrest and interrogate suspects
ensuring the criminal laws are observed.
s recommend whether bail should be granted.
The role of the police in the criminal investi-
The special powers awarded to police can be
gation process is to investigate crimes, make
controversial because they will often directly
arrests if necessary, interrogate suspects and
conict with the ordinary rights of citizens. For
gather evidence against the accused. Police will
example if one citizen were to use force to detain
then present the evidence for judgment to a court
another in public, they may be criminally liable
on behalf of the state, either directly or through a
for offences such as assault, false imprisonment
prosecutor. The challenge for all communities is
and affray. However, society and lawmakers deem
to balance the extent of powers required by police
such police powers lawful and necessary to ensure
against the rights of ordinary citizens.
criminal laws can be effectively enforced and
In New South Wales, crimes will
public order maintained. Police will sometimes
be investigated by the NSW Police
need to seek a warrant from a court to be able
R E SEA RC H 2. 1
Force or the Australian Federal
to use a particular power such as making an
The NSW Police Forces Code
Police, depending on whether the
arrest or using a phone tap this is one type of
of Practice for CRIME can be
offence is a state or a Common-
check that is put in place in order to ensure special
found at: www.police.nsw.
wealth offence. In some circum-
powers are used appropriately and not abused.
gov.au/about_us/acts_and_
stances, offences may be enforced
The NSW Police Force also follows a specic
legislations/legislation_list/
by other government ofcials or
code of behavior called the Code of Practice for
code_of_practice_for_crime.
local law enforcement ofcers, par-
CRIME (Custody, Rights, Investigation, Manage-
Look at the website and
ticu larly in the case of regulatory
ment and Evidence), which sets out the rights of
offences.
suspects and the manner in which investigations

1 Describe the aims of the
The NSW Police Force is awarded
should be carried out. Police are expected to
special legal powers under statute
treat all members of the community in a fair and
to enable them to carry out their
ethical manner regardless of age, sex, religious or
duties effectively. The majority of
ethnic background, or the severity of the crime
these powers are contained in the
they have committed. Where a suspect believes
NSW Police Force that the
Law Enforcement (Powers and Res-
his or her rights have been abused, there are
Code is based on.
ponsibilities) Act 2002 (NSW), but
extensive complaints procedures available. The
can also be found in other specic
NSW Police Force is also overseen by the NSW
legislation. Police may occasionally
Ombudsman and Police Integrity Commission.
Code of Practice.
2 Outline the processes the
Code covers.
3 Identify the values of the
30
Figure 2.1 The role of the police in the criminal investigation process is to investigate crimes,
gather evidence against the accused and present the evidence for judgment.
warrant
a legal document
issued by magistrate
authorising an ofcer to
perform a particular act,
for example make an
arrest, conduct a search,
seize property or use a
phone tap
C rim e
reasonable force
such force as is
reasonably necessary for
the ofcer to perform
the function; the ofcer
must honestly believe
that it was justied and
not excessive
Repo r t i n g c ri me
Citizens have an important role to play in the
s inability to report the crime
criminal justice system by reporting crime.
s the dispute has already been settled
Community programs have been established to
with the offender, such as a brawl or
encourage the public to report information about
theft by a person known to the victim
criminal activity. These programs can assist police
s perceived time or administrative bur-
work and help promote a sense of community par-
den of reporting a crime.

Figure 2.2 Initiatives
such as Crime Stoppers
encourage community
participation in helping
to solve crimes.
ticipation in solving crimes. For example, Crime
Some crimes are more widely reported
Stoppers is a national community-based program
than others, such as property offences like
that encourages people to report information on
car theft. Such crimes may be reported
unsolved crimes or unknown offences, or sus-
in an attempt to recover the property or
picious or unusual activity. It is particularly valu-
because the victims cannot claim on their
able where people may want to remain anony-
insurance unless a police report is led.
mous or not become directly involved in a police
Other crimes, such as domestic violence or
R EV I EW 2 . 1
investigation. In 2009, NSW Crime Stoppers
sexual assault, more frequently go unrepor-
1 Describe the role of
alone reported receiving 47 247 contacts from
ted. It is estimated that up to 85 per cent of
police in society.
the public, resulting in 298 people arrested and
sexual assaults in Australia are not reported
2 Outline some of the
1376 charges laid. (Source: http://www.nsw.crime
(source: www.lawlink.nsw.gov.au/lawlink/
special powers police
stoppers.com.au.) Crimes will usually be reported
bocsar/ll_bocsar.nsf/vwFiles/cjb125.pdf/$
are given to perform
by a person who has knowledge of the crime or
le/cjb125.pdf). This is often due to the
their duties.
someone who has witnessed the crime. People
shame and embarrassment victims feel and
may be reluctant to report a crime for a number of
their unwillingness to go through the ordeal
person can do if they
reasons, such as:
of reliving the experience while being ques-
believe the police
s reluctance to become involved or have to
tioned in front of a judge and jury with the
have not treated
offender present, even though they are not
them properly.
appear as a witness
s fear of the consequences if the crime is
reported
required to go to court or testify in any way

if they dont want to.
3 Describe what a
4 Explain how a crime

is reported.
31
I nves t iga t i n g c ri me
Once police receive information about a crime,
Evidence Act 1995 (NSW). If it is not, it may be
they will make a decision about whether to pursue
considered inadmissible at trial and jeopardise the
an investigation or take no further action. These
chance of conviction.
decisions could be based on the severity of the
The law imposes certain limits on the way
offence, the likelihood of success, and the available
police can gather evidence and the types of
resources or priorities. Not all reported crimes are
evidence that can be used, to help ensure the
fully investigated and prosecuted, as resources
collection of evidence is legitimate and does not
are often directed to more serious or high priority
interfere with the rights of ordinary citizens. In
crimes. The investigation process can often be
certain circumstances strict procedures will need
long, as it often includes establishing that a crime
to be followed by police and in some situations a
has been committed, finding the offender of the
court warrant may be required before police can
crime and gathering enough evidence to be able to
search for or seize evidence. Some of these limits
prove a case against the offender in court.
and procedures are discussed below.

The types of evidence that may be gathered by
Gathering evidence
police are varied and include oral testimony of the
The process of gathering evidence will involve a
evidence such as objects or weapons. Witness
range of approaches. When a crime has been com
accounts will usually be recorded as statements
charge
formal accusation of a
person of committing a
criminal offence
mitted, it is the role of the police to gather evidence
for future reference. Documents, fingerprints,
in situ
in the place; used
to describe the place
in which a piece of
evidence is found or
situated
witness statements at the scene of the crime or
inadmissible evidence
evidence that cannot be
considered by a judge
or jury in court, for
example, evidence that
has been compromised
or was obtained by
unlawful means
accused, police and witnesses as well as physical
to further the investigation and to support a charge

in court at a later date. It may involve taking
crime scene detectives looking at any evidence left
behind. This part of the investigation will usually
need to happen quickly before witnesses forget
what they saw or heard or before evidence is
compromised or interfered with.
Crime scenes and evidence will be preserved
where possible until specialists and detectives
arrive to begin the search for evidence. Evidence
is then documented in situ with video and photo
graphy and meticulously recorded and handled to
maintain the integrity of the evidence. Evidence
that has been contaminated or compromised
is known as inadmissible evidence. Organic
samples such as hair and blood are particularly
vulnerable to being contaminated.
It is important that the evidence gathered is
sufficiently relevant to the case, and is the best
possible evidence available to secure a conviction
in the courts. All evidence must be obtained in
a proper and lawful manner as required by the
32
C a m b r id g e L e g al S tu d ie s HS C
Figure 2.3 Great care is taken to ensure that the

items of evidence gathered at a crime scene are
handled with extreme care and not interfered
with in any way.
DNA sampling, tape recordings, video surveillance

and electronic information stored on hard drives
can also be tendered as evidence in a case. The
evidence may be handled by several people during
the investigation including the police who gather
the evidence initially and experts who may exam
ine the article. Great care is taken to ensure that
the items of evidence are handled with extreme
care and not interfered with in any way.
Gathering appropriate evidence is a complex
C rim e
task. Police officers may be specially trained or

independent experts may be contracted to assist
in gathering or examining evidence. For example,
the police force has specialised fingerprint and
ballistic experts, as well as special teams of crime
scene investigators who are trained to search for
evidence at the place where a crime took place. The
evidence gathered is often sent on to specialists
to analyse who may give evidence in court at a
laterdate.
Use of technology
Figure 2.4 Scientific and technological advances

have made the processing and cross-checking of
criminal databases easier and more effective for
day-to-day policing.
Technology is frequently used by the police in order

to gather evidence and prove charges. However, it
DNA evidence is an important advance in
can often be difficult for the law to keep up with
technology that has been particularly helpful in
changes to allow the use of modern technology in
gaining some difficult convictions in both current
law enforcement. The technology will need to be
and cold (i.e. unresolved) cases. DNA evidence has
extremely reliable and if there is any doubt about
been used in Australia for many years now and
its reliability it risks being inadmissible in court, or
has often been relied on in court as a dependable
worse, resulting in a wrongful conviction.
form of evidence. It has been a decisive factor in
For example, scientific and technological
many cases. In NSW, police are allowed to take
advances have made the processing and cross-
forensic samples such as blood or mouth swabs
checking of criminal databases easier and more
to match evidence found during an investigation.
effective for day-to-day policing. State of the art
A person must consent to the sample if they
fingerprint and DNA databases make it easy for
refuse, the police can apply to a magistrate for
police to share information across states and
an order to take the sample by using reasonable
also internationally. Police surveillance teams
force. However, there have been concerns over the
are able to record video footage and audio using
reliability of DNA testing. The danger in relying
digital methods which are easily stored and
too heavily on DNA technology was highlighted in
copied. Cybercrime units are often able to locate
2009 when a number of wrongful convictions were
criminals through their internet activity and track
discovered in both NSW and Victoria that had been
down people committing crimes such as com
caused by errors in the DNA testing process. The
puter hacking, internet scam and international
Media Clip on the following page outlines some of
pornography rings.
these dangers.
DNA evidence
genetic material
(such as hair, blood
and saliva) that can
be used to link a
suspect with a crime
scene or criminal
offence
Cha pter 2: T he crimina l inves ti gati on proces s
33
m e d i a cl i p
Criminal DNA tests being

checked in NSW
By Adam Bennett and Vincent Morello
Sydney Morning Herald, 2 October 2009
2010, AAP
Forensic and civil liberty experts have

condemned NSWs criminal DNA testing
process after a glitch led to a mans wrongful
conviction.
A review by NSW Health of its cold
links system earlier this year found the
departments laboratory mistakenly linked a
man to a break and enter because of human
error.
The system matches DNA evidence
collected at a crime scene with people on the
state DNA database.
Convicted in early 2008, the man was given
a nine-month suspended sentence.
The discovery of the error prompted an
exhaustive review of the 17 000 cold links
dating back to 2001, when the DNA database
was established.
Acting NSW chief health ofcer Greg
Stewart said the review had so far revealed
no other errors, and he reassured people the
DNA testing system was sound.
Dr Stewart said the mistake was caused
by a human sampling error at NSW Healths
Division of Analytical Laboratories (DAL) but
he stressed the science behind DNA testing
was not in question.
A human error occurred where tests were
incorrectly located in a series of tests, he
said.
There are thousands of tests done, and
they are done in series of 96 at a time but one
of those was out of sequence.
The wrong crime sample was placed into
a well, and that led to DNA from one crime
scene being ascribed to a person who was not
at that crime scene.
Professor Mark Findlay, director of the
Institute of Criminology at Sydney University,
34
said DNA testing was not an exact science

and samples were too often relied upon as
the only evidence in criminal prosecutions.
Its very easy for the analysis to be awed
because it goes through several hands and
several stages, Prof Findlay told AAP.
People who look at that science - and
they are lay people, judges and juries - are
disproportionately impressed by it.
NSW Council for Civil Liberties president
Cameron Murphy said police and courts
should rely on other evidence to corroborate
a crime.
Its far better for a guilty person to go
free than for an innocent person to be in jail
because the consequences are so horric,
Mr Murphy told AAP.
Dr Stewart said the mans criminal record
had been amended and proceedings had
been launched to have his conviction
annulled.
The lab technician responsible for the error
had since retired, he said.
Dr Stewart said he did not know whether
the man would launch legal action to seek
compensation over the wrongful conviction.
There are always openings for people who
are convicted to seek redress, he said.
His options have been discussed with him.
Hell make his own decision.
Dr Stewart said a similar error in the
future was most unlikely because of testing
improvements, including the introduction of
robotics, and the practice of reviewing all case
work before results are released to police.
An independent external review would also
be conducted by Professor Hilton Kobus, a
forensic science expert at Adelaides Flinders
University, Dr Stewart said.
Search and seizure

Two of the special powers given to police to assist
in investigating crime are those of search and seizure. Under Part 4 of the Law Enforcement (Powers
and Responsibilities) Act 2002 (NSW), police are
given powers to search people and seize and
detain things in certain circumstances. One of the
most important of these is the power to search and
seize without a court warrant.
most controversial of police powers because they
represent an intrusion into peoples privacy or
personal space. Search and seizure can also be
confronting or embarrassing, especially when con-
Figure 2.5 Police are lawfully able to stop, search and detain
someone if they believe they have reasonable grounds to do so.
C rim e
Powers of search and seizure are often the
ducted in a public place.

Police in New South Wales have the broad
a prohibited plant or drug, or a dangerous article
believe on reasonable grounds that they are
when they are in a public place. Police can then
carrying anything stolen or used in commission of
seize and detain any of these objects if discovered.
an indictable offence or another specied offence,
Challenges to police searches will often revolve
cas e s p ac e
powers to stop and search any person where they
Darby v Director of Public Prosecutions [2004] NSWCA 431

The case of Darby illustrates some
cannabis and methyl ampheta-
of the difculties in the legal
mine on Darby, who was charged
the Supreme Court which ruled
denitions of a search and
and tried in the Local Court.
that the magistrate had erred
reasonable grounds. In the case,
The magistrate in the Local
The case was appealed to
in law and that the dogs search
the police were using a sniffer
Court ruled that the actions of
was not a search and that the
dog, named Rocky, outside a
the dog in snifng so closely
police ofcers own search was
nightclub to detect for drugs. The
and making contact with Darby
legal because it was formed on
dog would sniff the air to indicate
constituted an unlawful search.
reasonable grounds on the basis
to the police that drugs were
Only police ofcers are entitled
of the information conveyed by
present. In Darbys case, the dog
to search and only when they
Rockys snifng.
sniffed the air then sniffed
make a judgment on reasonable
bunting and ferretting towards
grounds the dog was not
judgment to the Court of
Darby, sniffed his genital area and
entitled to or capable of making
Appeal, in an attempt to
trousers then touched his nose
such a judgment. Consequently,
reinstate the magistrates
directly on Darbys pocket and
the evidence of nding the
original judgment. Two out
stayed there until police came
substances was not admissible
of three justices found that
over and searched Darby. The
because it was gained following
Rockys actions did not, in fact,
police discovered amounts of
an illegal search.
constitute a search.
Darby then appealed the
35
around whether the ofcer had sufciently
a police ofcer to perform a particular act, for
reasonable grounds to believe they could conduct
example make an arrest, conduct a search, seize
the search.
property or use a phone tap. In NSW, certain
Police may search anything in a persons
searches or seizures cannot be performed without
possession or control, including for example a
a valid warrant. For example, in NSW police can
persons body, bag, clothes or possessions. Gener-
use sniffer dogs without a warrant to search for
ally, police will ask for a suspects cooperation
illegal drugs at pubs or clubs, on public transport or
and ask the suspect to turn their pockets out and
at certain public events, but police would require
remove bulky clothing. Police may also pat down
a court warrant before using dogs for general
a suspects body to feel for any concealed items.
searches in any other public places. This judicial
Police can also require a person to open their
oversight helps ensure those special police powers
mouth or shake out their hair if they have reason-
are used only when appropriate and provides an
able grounds to believe the suspected object is
additional layer of protection for ordinary citizens
concealed there.
against misuse of that power. Part 5 of the Law
Powers of search and seizure and the rules
Enforcement (Powers and Responsibilities) Act 2002
around them will differ where they involve, for
(NSW) sets out the circumstances in which a
example, search of premises, search on school
search warrant can be used.
grounds, search of a person already under arrest or
When applying for a search warrant, the police
in custody, or where a strip search is required. The
must give substantial reasons or evidence to
Law Enforcement (Powers and Responsibilities) Act
the magistrate to justify the use of the warrant.
2002 (NSW) also contains a number of procedures
Emergency warrants can be obtained over the
for police to follow when conducting a
phone when time is of the essence in an investi-
personal search or strip search. These
gation or an ofcer is unable to see a magistrate in
relate to the preservation of a persons
person, for example in the middle of the night.
R E VIEW 2.2
1 Create a list of 20
privacy and dignity during a search,
NSW police are usually required to have a valid
different types of
informing of the reason why the search
warrant before they can enter and search any
evidence that could be
is necessary and asking for the persons
premises, residential or business, without the con-
collected on a criminal
cooperation.
sent of the occupier or owner. The warrant will
case. You may like to
Limits and process requirements
state the reason why the premises is being
help safeguard the rights of ordinary
searched and thereby identify what articles are
2 Describe some of the
citizens when police are gathering
being searched for. When any premises are to be
different types of
evidence, but in NSW police powers of
searched, the police must identify to the occupier
technology available
search and seizure are still broad. In
the reason for the search and a copy of the war-
to police when
most circumstances reasonable sus-
rant is given to the occupier. Usually the occupier
investigating crime.
picion will not be a difcult standard for
is present or they can nominate a person to be
categorise them.
3 Discuss the
police to prove. In some situations,
present. Police may videotape the search in order
circumstances in which a
however, the law will require police to
to use later in court and to guard against claims of
police ofcer may search
obtain a court warrant before exercising
improper procedures or the planting of evidence.
a person. Do you think
their powers. This is outlined below.
the search powers are

necessary or too broad?
to the investigation and they will be withheld until
Use of warrants
after the case is prosecuted. Some items may be
search warrant and how
A warrant is a legal document issued by
weapons and drugs will be destroyed after they
one is obtained.
a magistrate or judge which authorises
have been used as evidence in a trial.
4 Describe the use of a
36
Police will usually remove any items relevant
returned to rightful owners, other items such as
(Clause 6 (1) (a))

(Law Enforcement (Powers and Responsibilities) Act
2002)
This search warrant expires at [Time] on [Date] and must
not be used after that time.
On [Date], an eligible issuing ofcer empowered to
grant search warrants under Division 2 of Part 5 of the
Law Enforcement (Powers and Responsibilities) Act
2002, granted this search warrant authorising [Name
and rank] of [Place of work] (the applicant), a police
ofcer, and all other police ofcers, as follows:
1 To enter the premises known as [Address] being a
[Description of premises (eg dwelling house)].
2* To search those premises for any of the following
things: [List and describe the things to be searched
for with particularity. If space is insufcient, continue
overleaf or attach a separate sheet.]
The applicant has reasonable grounds for believing
that those things are connected with the following
searchable offences: [Specify relevant offences.]
3* To search those premises in connection with the
following child prostitution offence(s): [Specify the
offences under the Crimes Act 1900 in relation to which
the search is to be made.]
This search warrant may be executed:
(a)* only by day (i.e. between 6 am and 9 pm)
(b)* by day (i.e. between 6 am and 9 pm) or night (i.e.
between 9 pm and 6 am).
[* Delete if inapplicable.]
In executing this search warrant a police ofcer may
exercise the powers provided by the Law Enforcement
(Powers and Responsibilities) Act 2002. These include
the following powers:
(a) to enter the named premises,
(g) to arrest any persons found in or on the premises

whom a police ofcer suspects on reasonable
grounds of having committed an offence,
(h) to seize, detain, remove from the premises or
guard anything mentioned in this warrant and any
other thing found by a police ofcer in the course
of executing this warrant that the police ofcer
believes on reasonable grounds is connected with
any offence,
(i) if the warrant is issued in relation to a child
prostitution offenceto make in the premises
inquiries relating to any such offence,
(j) to disable any alarm, camera or surveillance device
at the premises,
C rim e
l e g a l i n fo
The following is an example of a search warrant:
(k) to pacify any guard dog at the premises,

(l) to render safe any dangerous article found in or on
the premises,
(m) to operate electronic and other equipment
brought to the premises or at the premises to
examine a thing found at the premises,
(n) to move a thing found at the premises to another
place for examination in order to determine whether
it is or contains a thing that may be seized,
(o) to operate equipment at the premises to access
data (including data held at premises other than the
subject premises),
(p) to do anything that it is reasonably necessary
to do for the purpose of preventing the loss or
destruction of, or damage to, any thing connected
with an offence that the police believe on reasonable
grounds to be at those premises, including by
blocking any drains at or used in connection with the
premises.
(b) to search for the things (if any) mentioned in this

warrant,
(c) to use any persons necessary to assist in the
execution of the warrant,
Signed [Insert signature.]
(d) to use such force as is reasonably necessary to

enter the premises,
Date
(e) to break open any receptacle in or on the premises

for the purposes of the search of the premises if it is
reasonably necessary to do so,
(f) to search any persons found in or on the premises
who are reasonably suspected of having a thing
mentioned in this warrant,
[The eligible issuing ofcer should sign and date the

warrant and initial any corrections. In the case of a
telephone search warrant, in circumstances where the
warrant is issued but not furnished to the applicant (for
example, because facsimile facilities are not available),
the applicant is to complete this Form of warrant in the
terms dictated by the eligible issuing ofcer and write
on it the date and time when the warrant was signed.]
37
A rres t , de tent ion a n d c h a rge

Police may require a person to attend a police
person is being arrested for a particular offence.
station if they have been placed under arrest. The
The document authorises police or law enforce-
arrest and charge of an offender is one of the most
ment ofcials to apprehend an offender and bring
important steps in the criminal process. If the
that person before the courts. Arrest warrants
proper procedures are not followed, the validity of
require police to justify their suspicions based on
the entire case may be jeopardised.
reasonable evidence they act as court declarations

that the suspect has a case to answer in relation to
Arrest
the alleged crime and authorise police to use their
The police are not allowed to detain a person unless
courts. Warrants provide a judicial safeguard for
they have good reason to do so. The conditions
ordinary citizens against misuse of police powers
under which the police may lawfully arrest a per-
of arrest. However, arrest should be used only as a
son are contained in the Law Enforcement (Powers
last resort, and there is some criticism that arrests
and Responsibilities) Act 2002 (NSW) and include:
can be applied too early in the investigative process
s catching a suspect committing an offence
merely as a means of furthering an investigation.
special powers to bring that person before the
s believing on reasonable grounds that a suspect
In order for the procedure to be legal, the police
has committed or is about to commit an
must state to the person that they are under arrest
offence
and the reason why they are under arrest. By law,
s where that person has committed a serious
police are able to use whatever reasonable force is
indictable offence for which they have not been
necessary to arrest a person. This may even include
tried
shooting the suspect if, for example, the suspect
s possessing a warrant for that persons arrest.
threatens the police with a weapon. However, the
During the course of an investigation the police
police are required to inform the suspect that they
may decide they wish to arrest someone for the
have their weapon out and are willing to use it. If a
crime they are investigating. Normally, the courts
police ofcer does use excessive force, that ofcer
will issue the police with a warrant stating that the
can face charges.
Figure 2.6 The arrest of an offender is one of the most important steps in the criminal process.
38
Once a suspect has been arrested they may
not have to say or do anything
only be held for a specified period of detention
but that anything the person
before they must be either charged with commit
does say or do may be used in
ting an offence or released. This is discussed
evidence. The caution must be
further below.
given to the suspect orally and

in writing.
Detention and
interrogation
to silence, which means they
The Law Enforcement (Powers and Responsibilities)
the polices questions, whether
Act 2002 (NSW) sets out the lawful conditions under
in the company of their legal
which a suspect can be detained for questioning
representation or on their own.
and for the purpose of further investigation. Law
This can make the investigation
fully police can only detain a suspect for a period of
difficult for the police if they
four hours, by which time that person must be
need the suspect to fill in gaps in the information
either charged or unconditionally released. They
in their evidence. However, many suspects will
may apply to a magistrate for a warrant to extend
still voluntarily answer questions.
The suspect has the right

do not have to answer any of
the investigation period up to a further eight hours.
Any suspect under 18 years of age has the right
During this time, the offender would be held either
to have a responsible adult present with them at
in a police cell or an interview room.
the interrogation. Usually this adult will be the
There are, however, many rest periods within
suspects parent or guardian. If the suspect lies to
the four hours, which might not be included in the
the police about their age and says they are over
total time. Examples of periods of time that might
18 and the interrogation begins, the evidence they
not be included are:
provide is admissible in court.
transport from the point of arrest to a police

station
waiting for the relevant law enforcement officers
to arrive to conduct the interview
waiting for a legal practitioner, family member,
guardian of a dependent person or an interpreter
relative or lawyer and the time it takes that
interrogation
the act or process of
questioning a suspect
by the investigating
officers
caution
a statement issued by
police to a suspect
when they are
detained to inform
them of their rights
The interview is recorded on videotape as well

as on two audiotapes: one for the police records
and one for the defendant. These recordings are
made to ensure that all policies and guidelines are
adhered to by the police and as a
record to be used in court.
REVIEW 2.3
to arrive at the police station

time required by the suspect to talk to a friend,
Release or charge
1 Describe the circum

stances under which
At the end of the maximum
police can make an arrest.
medical treatment for the person in custody
detention period, the police must
2 How long can a person be
refreshment periods such as eating, showering
either charge the suspect with a
detained without charge?
specific offence or release them
What do you think are
recovering from the effect of drugs or alcohol
unconditionally. If charged, the
some of the advantages
taking part in an identity parade
police must either release the
and disadvantages of
charging procedures.
accused or bring them before a
a longer or shorter
As soon as the police have a suspect in custody,
magistrate or authorised officer as
detention period?
they are usually questioned. This is known as
soon as practicable after the end
3 What must a police officer
interrogation. The police must issue a caution
of the maximum detention period.
do before commencing an
to the suspect as soon as practical after the
The accused will be brought before
person to arrive at the police station
or toileting
Crime
Figure 2.7 As soon as the police

have a suspect in custody, they are
usually questioned. This is known as
interrogation.
person has been detained to inform them of the
the court for a bail hearing, which
maximum period of detention and that they do
is discussed further below.
interview?
4 What happens when a
person is charged?
Chapter 2: The criminal in v e s t i g a t i o n p ro c e s s
39
Su m m o n s , b a i l o r r e m a n d
summons
a legal document that
states when and where
a person must appear
in court and, if they are
the accused, the charge
to which they must
answer
bail
the temporary
release of an accused
person awaiting trial,
sometimes on particular
conditions such as
lodgment of a sum of
money as a guarantee
surety
in bail, where another
person agrees to
provide a nancial
guarantee that the
accused will return
to the court for trial
in exchange for the
accuseds temporary
release
Once a person is charged, they will be issued with
ing trial, sometimes on particular conditions such
a summons to appear in court or, if it is a serious
as lodgment of a specied sum of money as a
matter, they will be further detained and a bail
guarantee. Bail can take many forms, such as an
hearing will be set.
upfront monetary payment or recognisance, which

is where the accused promises to turn up, knowing that failure to do so will result in them being
Summons
ned and arrested. Bail may also be in the form
A summons is a legal document that states when

and where a person must appear in court and, if
they are an accused person, the charge to which
they must answer.
A summons is a legal document that is delivered
personally to the accused by a court-appointed
person. It states when and where the accused is
to appear in court and the charge to which the
accused will have to answer.
Witnesses will also receive a summons document which requires them to appear in court on
a specied date to give evidence. Failure to attend
the appointed court session could
result in the summonsed person
R E SE A RC H 2.2
being arrested and charged.
publicised in the media.
put up the money on behalf of the accused as an

assurance that the accused will turn up for court.
If the accused fails to show up, the bail money is
forfeited.
Other components of the bail system are the
use of wrist and ankle monitoring devices and
diversionary services, such as rehabilitation programs. In addition, the accused needs to show up
to a police station on a regular basis to prove that
they have not moved out of the area to which they
have been restricted. The accused may also have
to surrender their passport if they have one.
Bail will be difcult to obtain for certain
offences, particularly violent offences or where
there is some risk to the community or risk that
the accused may commit another offence. Where
Bail hearings in high-prole

cases are often widely
of surety, which is where someone else agrees to
there is any indication that the accused might
Bail
attempt to ee to another state or country, bail is
Search the internet for three
In more serious matters, once
recent news articles relating
be
Restrictions have also been added to the Bail
to separate bail hearings in
detained at the police station
Act 1978 (NSW) against granting bail for certain
NSW and answer the following
where they are ngerprinted and
offences, such as drug trafcking or serious
questions:
photographed. The police will be
domestic violence. Known as the presumption
1 Was bail granted in the case?
required to bring them before a
against bail, it will be up to the accused to prove
2 Were any conditions set on
court or authorised ofcer as soon
to the court why bail should not be refused if
as practicable for a bail hearing.
one of these offences has been committed. Such
granting bail?
the
accused
may
unlikely to be granted.
charged
At a bail hearing, the authorised
presumptions are controversial, as the effect of
money required for bail and
ofcer will determine whether the
denying bail can be severe on an accused person,
if so how much?
accused should be released on bail
and may result in an extensive period of custody
4 Do you think the decision
or remain in custody until their
before a nal trial verdict is reached, with the
on bail was fair in the
trial. Bail describes the temporary
risk that the accused may in fact be innocent and
circumstances?
release of an accused person await-
eventually found not guilty.
3 Was there an amount of
40
C rim e
Figure 2.8 The Metropolitan Remand and Reception Centre (MRRC) in Silverwater, NSW.
Remand
If bail is denied and the magistrate or authorised
ofcer determines that the accused should remain
and convicted, the time the offender had spent in

remand is usually taken off the total time of their
sentence and referred to as time already served.
in custody until trial, the accused will be held on

remand in police custody or at a remand centre.
Remand is usually sought against people who have
committed particularly violent crimes, dangerous
criminals, repeat offenders or those thought to be
a ight risk.
The level of security where they are to be
detained is also determined by the above factors.
R EVI EW 2 . 4
1 Explain what a summons is and describe
what happens if someone ignores a
summons.
2 Describe the purpose of bail.
3 Explain what happens to bail money if the
The accused will remain in detention until the
accused fails to show up in court.
trial date is set, throughout the trial and until
4 Explain how remand is different to
they are sentenced. If the accused is found guilty
remand
a period spent in
custody awaiting trial
at a later date
imprisonment.
41
Ch a p te r s u m m a ry
M u l t ip l e - c h o i c e q u e s t i o n s
42
The community is responsible for reporting

crimes.
Police are responsible for investigating
crimes, making arrests and gathering
evidence against suspected offenders.
Police are given special legal powers to carry
out their duties.
Evidence may include many types of
information.
Processes must be followed by police in
collecting evidence and investigating crimes.
All suspects are to be treated fairly.
Police have powers to search and seize on
reasonable grounds.
1 A summons is best described as:

a a legal document which compels you to
attend court to give evidence or answer
charges
b a legal document permitting the search of
your business
c a legal document between two parties
issued after a divorce is finalised
d a legal document signed by you agreeing
to adhere to bail conditions
2 Which of the following is not likely to be
considered evidence?
a drugs
b a gun
c witness testimony
d none of the above
3 Which of the following must police usually
have a search warrant for?
a your home
b your car
c your bag
d you
C a m b r i d g e L e gal Studies HSC
Police can arrest a person with a warrant or

for specified reasons.
A person can only be detained for four hours
without charge, unless extended with court
approval.
Police must caution a detained suspect
before conducting an interview.
Everyone has the right to a legal
representative during a police interview.
Interviews are video- and audio-tape
recorded.
A person charged with an offence is either let
go on bail or held on remand until the trial.
4 Which of the following is a factor why

someone might not be held on remand?
a they are a flight risk
b they committed a violent crime such as
murder
c they committed a non-violent crime such as
larceny
d they are a repeat offender who may go and
commit another offence straight away
5 How long may police hold a suspect without
charge for if they do not have an extension
from a judge/magistrate?
a four hours
b eight hours
c 12 hours
d indefinitely
C rim e
1 Outline some of the powers police have to

conduct an investigation.
2 Describe when police are allowed to search a
person, a persons bag and a persons home.
3 Explain how police go about obtaining a
warrant.
4 Describe the different forms bail can take.
5 Discuss the reasons why a person may be held
on remand rather than given bail.
43
CHAPTER 3
k ey ter m s/vocab ul ary
Criminal trial process
44

s identify the different levels of courts in the NSW
judicial system
s describe the different types of legal representatives
s discuss the importance of legal aid
s explain the different types of pleas available to a
defendant
acquittal
adversary system
appeal
appellate jurisdiction
beyond reasonable doubt
burden of proof
challenge for cause
committal proceedings
coroner
coronial inquest
court hierarchy
diminished responsibility
s describe the use of evidence in a criminal trial

s communicate the purpose and role of a jury in the
adversarial system.
inquisitorial system
legal aid
magistrate
original jurisdiction
peremptory challenge
plea
plea bargaining
police prosecutor
provocation
public defender
public prosecutor
standard of proof
Judiciary Act 1903 (Cth)

Local Court Act 2007 (NSW)
Coroners Act 2009 (NSW)
Childrens Court Act 1987 (NSW)
District Court Act 1973 (NSW)
Supreme Court Act 1970 (NSW)
Legal Aid Commission Act 1979 (NSW)
Evidence Act 1995 (NSW)
Jury Act 1977 (NSW)
Jury Amendment (Verdicts) Act 2006 (NSW)
Criminal Case Conferencing Trial Act 2008 (NSW)
R v Zecevic (1987) 162 CLR 645

R v Williamson (1972) 2 NSWLR 281
R v Camplin (1978) AC 705
Dietrich v The Queen (1992) 177 CLR 292
od d l a w
In Medieval England, those accused of theft,
murder or witchcraft were often put through a
trial by ordeal. A trial by ordeal was a judicial
practice by which the guilt or innocence of the
accused was determined by subjecting them to
a painful or dangerous experience.
Ordeals could take a number of forms, but
some of the most common were trials by water.
In the Assize of Clarendon (an act passed
by King Henry II in 1166) the law of the land
required that: anyone, who shall be found, on
the oath of the aforesaid [a jury], to be accused
or notoriously suspect of having been a robber
or murderer or thief, or a receiver of them...be
taken and put to the ordeal of water.
The ordeal of hot water was particularly
brutal, requiring the accused to dip their hand
into a kettle of boiling water to retrieve a stone.
The depth of the water varied, depending on
the number of accusations against a person
up to the wrist for one accusation, up to
the elbow for three. Afterwards, the hand
was bound and examined after three days to
see whether it was healing or festering. If the
wound was healing after this time the accused
was found innocent, if it was festering they were
found guilty.
Cha pter 3: Crimina l tri al proces s
C rim e
rel ev ant l aw
45
Cour t jurisdic tion : criminal cour ts

Once a formal charge has been laid against a
similar to state laws. Some federal offences may
person, a hearing or trial of the accused will need
also be heard in federal courts the Federal Court
to take place in an appropriate court. There are
of Australia has summary jurisdiction in some
many different courts that have jurisdiction to
criminal matters.
hear criminal offences. The right court for the

matter to be heard will depend on a number of
issues, including:
appeal
an application to have
a higher court review
a decision of a lower
court
court hierarchy
the system of courts
within a jurisdiction,
from lower courts
to intermediate and
higher courts
original jurisdiction
the authority for a
court to hear a matter
for the rst time
appellate jurisdiction
the authority for a
court to review matters
on appeal from another
court
Figure 3.1 summarises the court hierarchy for

New South Wales, ACT and federal courts.
The authority for a court to hear a matter for
s the seriousness of the matter, in particular
the rst time is known as the courts original
whether it involves a summary offence or an
jurisdiction. A courts original jurisdiction will
indictable offence, as discussed in Chapter 1
usually be dened in the relevant court act, for
s whether the matter is being heard for the rst
example the Local Court Act 2007 (NSW). The
time or whether it involves an appeal

s the nature of the offence some courts or
divisions within courts will have authority to
hear particular types of offences
authority to review matters on appeal from

another court is known as the courts appellate
juridisdiction.
In the Australian court hierarchy, a higher court
s the age of the accused, particularly whether
can usually review a decision of a lower court, but
the accused is a child or young person under
a lower court cannot review a decision of a higher
18 years old
court. The arrows in Figure 3.1 show the specic
s the type of hearing, for example whether it is a

bail hearing, committal hearing or trial
s whether the alleged crime is an offence under
courts that can hear appeals from each of the

lower courts.
Each court is responsible for various duties
state law or federal law.
within the legal system. The role of the different
The case will then be heard at the appropriate
courts in criminal matters is considered in more
place in the court hierarchy. The court hierarchy
detail below.
refers to the system of courts from lower courts,

which deal with less serious offences like summary offences, to intermediate and superior
R EVI EW 3 . 1
1 Describe some of the considerations that
courts, which deal with more serious offences as
will determine which court a case will be
well as appeals from lower courts.
heard in.
In Australia, there are different streams of

courts depending on the state or territory the
2 Dene the term court hierarchy.

3 Dene the terms original jurisdiction
offence relates to for example an offence under
and appellate jurisdiction. Outline the
New South Wales law will be heard in the NSW
differences between them.
court hierarchy.
If the offence relates to a federal offence under
Commonwealth law, the offence will usually be
prosecuted by the Commonwealth Director of
46
State and territory courts
Public Prosecutions in the courts of the state where
The criminal court system in NSW operates under
the offence occurred. The Judiciary Act 1903 (Cth)
the following hierarchy:
gives state and territory courts the power to hear
Lower courts including the Local Court of NSW,
federal criminal offences, and federal summary
the Coroners Court, the Childrens Court and the
or indictable offences will be treated in a manner
Land and Environment Court
HIGH COURT OF AUSTRALIA
State and Territory superior courts
Federal Court of Australia
Non-family
law matters
Supreme Court of the ACT
Supreme Court of NSW
Federal specialist courts
State intermediate courts
Family Court of Australia
District Court of NSW
Family law
matters
Federal lower courts
Territory lower courts
State lower courts
Federal Magistrates
Court of Australia
Magistrates Court of the ACT
Local Court of NSW
Coroners Court of the ACT
Coroners Court of NSW
Childrens Court of the ACT
Childrens Court of NSW
C rim e
Federal superior courts
Land and Environment

Court of NSW
Figure 3.1 State/territory and federal court hierarchy
Intermediate courts the District Court of NSW
hear civil law matters up to the value of $60 000.
Superior courts the Supreme Court of NSW and
The Local Court Act 2007 (NSW) sets out the juris-
the High Court of Australia.
diction and operation of the Local Court of NSW.
Each court has its own jurisdiction, or area
The Local Court sits at many different locations
over which it has authority to hear matters. Minor
across NSW and deals with the majority of criminal
matters such as summary offences are dealt with
prosecutions in NSW. It used to be known as the
lower in the court hierarchy, whereas the higher
Court of Petty Sessions because it dealt with what
courts are reserved for more serious matters,
used to be known as petty or minor crimes. The
indictable offences, and appeals from the lower
Local Court has jurisdiction to deal with summary
courts. The Australian Capital Territory does not
offences and conducts committal proceedings
have an intermediate court but it is otherwise
to determine whether or not indictable offences
similar.
are to be committed to the higher District and

Supreme Courts. As mentioned in Chapter 1, it can
Lower courts
also hear indictable offences triable summarily if

the accused consents.
Local Court of NSW
There is no jury present in the Local Court.
The Local Court is the rst point of call for most
Local Court matters are tried solely in front of a
criminal matters in NSW. It also has jurisdiction to
magistrate. In NSW, a magistrate is a qualied
committal
proceedings
where a magistrate
determines if there is
enough evidence for
a case to proceed to
trial in a higher court
magistrate
a judicial ofcer in the
Local Court; in NSW
they are appointed by
the Governor
47
Australian lawyer or judicial ofcer who has been
Court also has limits on the sentences that it can
appointed as a magistrate by the Governor of NSW.
pass. For these reasons, more serious matters will
The magistrate is referred to as Your Honour by
be tried in higher courts to ensure justice for all
parties in court and by court staff.
parties is achieved.
In criminal matters, the Local Court is also
In the ACT, the equivalent of the Local Court
where bail hearings will usually be held and where
is the Magistrates Court, which has similar juris-
committal proceedings for serious offences will be
diction and characteristics.
held. Committal proceedings are held for serious

matters to be heard by higher courts in front of
Coroners Court
a judge and jury. In a committal proceeding, a
The Coroners Court is a specialised local court that
magistrate will hear the prosecutions evidence
deals specically with the cause and manner of
and determine whether it is sufcient to support
a persons death, as well as res and explosions
conviction by a jury. If satised there is a case
where property has been damaged or a person has
to answer then the accused will be ordered to
been injured. The powers of the Coroners Court of
stand trial in a higher court; if not, the accused is
NSW are outlined in the Coroners Act 2009 (NSW).
coroner
a judicial ofcer
appointed to
investigate deaths in
unusual circumstances
discharged.
coronial inquest
a court hearing
conducted by a
coroner to help
determine the manner
and cause of death
The role of a coroner is to determine the
The Local Court offers several advantages over
identity of the deceased as well as the date, place,
the higher courts. Criminal matters in the Local
manner and medical cause of death. Information
Court will usually be heard and determined much
from medical practitioners and police personnel
faster than in superior courts as less formalities
is usually relied on. The Coroners Court may
are required. The cost of a hearing will also be
investigate disappearances, deaths where a medi-
signicantly less for the accused and for the state.
cal certicate has not been issued, or deaths that
However, the Local Court does not have jurisdiction
occur in unusual or suspicious circumstances,
to conduct jury trials or to hear appeals. The Local
such as deaths occurring:

s in a violent or unnatural way, or suddenly with
unknown cause
s after an accident (up to one year and one day)
that may have contributed to the death
s in police custody or in a prison or detention
centre
s while receiving care or medical treatment,
or within 24 hours of administration of an
anaesthetic.
The Coroners Court will conduct a coronial
inquest into a death, which is a court hearing
where a coroner considers information to help
determine the manner and cause of death. The
coroner can call witnesses to give evidence in the
inquest if required. Coroners may also conduct a
post-mortem examination of a body (autopsies)
to help determine the time or cause of death and
uncover evidence, such as drug and toxicology
reports, recovery of bullets or DNA samples.
Figure 3.2 Coronial inquests sometimes attract intense media attention

particularly in high prole accidents, deaths or disappearances.
48
The ndings of the coroner will often be used as

evidence in a later criminal trial.
RES E A RC H 3.1
some
environmental
R EVI EW 3 . 2
offences,
Coronial inquests sometimes attract a lot of
such as illegal polluting or dump-
1 Outline the types of cases
media attention particularly in high prole
ing. The courts jurisdiction is
that can be heard by the
accidents, deaths or disappearances. Search
summary only, which means it
Local Court.
the internet for a recent coronial inquest that
can only hear cases without a
2 Identify the circumstances
received publicity and answer the following
jury. Prosecutions are usually
under which the Coroners
questions:
brought by the NSW Environment
Court may inquire into a
1 What death or incident did the inquest
Protection Authority (EPA).
persons death.
3 Describe some of the
2 What were the ndings of the coroner?

3 Can you identify any consequences of
the inquest, for example any criminal
Intermediate
courts
characteristics of the
Childrens Court.
prosecutions or changes in the law?
District Court of
New South Wales
Childrens Court
The District Court of NSW is the intermediate
The Childrens Court of NSW was established in
court in the states court hierarchy. It is established
1987 under the Childrens Court Act 1987 (NSW).
under the District Court Act 1973 (NSW).
The Childrens Court is a specialised court that
The District Court is a trial court where matters
deals with matters relating to the care and
can be heard before a judge and a jury. This is in
protection of children and young people as well as
contrast to the Local Court where matters are heard
criminal matters concerning children and young
by a magistrate alone. The District Court also has
people who are under 18 years old, or who were
an appellate jurisdiction, where it can hear appeals
under 18 at the time of an alleged offence.
of decisions made by the lower courts like the Local
One of the most important characteristics of the
Court and the Childrens Court. The District Court
Childrens Court is that it is a closed court, meaning
sits at most large population centres in NSW and
the general public is prohibited from viewing
has jurisdiction to hear serious criminal matters,
proceedings, in order to protect the identity of
as well as civil matters up to $750 000.
children and young people. The Childrens Court is

presided over by a magistrate with no jury.
In its criminal jurisdiction, the District Court

may hear all indictable offences except for murder
In the Childrens Court, magistrates will have
and treason, which can only be heard by the
specialised training in dealing with youth matters
Supreme Court. District Court trials will often
and
available
involve a jury of 12 people who are chosen by the
sentences will be different from those applicable
court. The jury will decide on the accuseds guilt or
in other courts. The Childrens Court and issues
innocence based on the evidence presented in the
relating to young offenders are considered in more
court trial. The judge will control proceedings and
detail in Chapter 5.
decide on questions of law. If the accused is found
proceedings,
formalities
and
C rim e
relate to?
guilty by the jury, the judge will also determine the
Land and Environment Court

The Land and Environment Court is a specialist
accuseds sentence.
The types of matters dealt with by the District
court responsible for interpreting and enforcing
Court include:
environmental law in the state of NSW. Although it
s offences against the person such as man-
mainly deals with civil and administrative disputes
slaughter (but not murder), sexual or indecent
related to environmental planning (e.g. zoning of
assault, assault occasioning actual bodily harm
parklands), it also has criminal jurisdiction to hear
or assault of police ofcers
49
Figure 3.3 Offences against the person, property offences, drug offences and driving offences are all
heard in the District Court.
s property offences such as larceny, robbery,

embezzlement, or break enter and steal
s drug offences such as supply, manufacture or
production of a prohibited drug
s Commonwealth
prosecutions
for
serious
breaches of the Corporations Law.

Criminal matters in the Supreme Court are heard
by a judge, who is referred to as Your Honour, and
s driving offences such as dangerous or negligent
jury of 12 people selected by the court. Matters in
driving causing death or serious bodily harm.
the Supreme Court are heard with the highest level
The District Court involves signicantly more
of formality and cost among the NSW courts and
formalities than the Local Court, and matters will

usually take longer to be heard and result in greater
can carry the highest consequences.

The
Supreme
Court
also
has
appellate
cost to both the accused and the prosecution.
jurisdiction to hear criminal appeals from lower
For this reason, the District Court is reserved for
NSW courts. Criminal appeals are heard in the
more serious indictable offences where higher
Court of Criminal Appeal, discussed below.
consequences are involved, while summary

offences are restricted to the Local Court.
Court of Criminal Appeal

The Court of Criminal Appeal is the appellate
branch of the Supreme Court of NSW. It is the
Superior courts
states highest court for criminal matters. The

Court of Criminal Appeal can hear appeals from a
Supreme Court of NSW
person convicted or sentenced by a District Court
The Supreme Court of NSW hears the most serious
or Supreme Court judge. Criminal appeals can
criminal cases, as well as civil matters beyond the
also be brought from the Land and Environment
jurisdiction of the Local and District Courts. The
Court.
Supreme Court is constituted under the Supreme
Appeals in the Court of Criminal Appeal are
Court Act 1970 (NSW) and sits in Sydney, with
usually heard by three Supreme Court judges with
matters also heard in regional centres if the need
the majority view prevailing. Where signicant
arises.
legal issues are being considered this may be
Matters that are heard by the Supreme Court in
50
increased to ve judges. Grounds for appeal to the
its original criminal jurisdiction include:
Court of Criminal Appeal might include a question
s murder, manslaughter and attempted murder
of law, a question of fact, or a challenge to the
s major conspiracy and drug related charges
severity or adequacy of a sentence.
The Court of Criminal Appeal is the highest court

of appeal in New South Wales. The High Court of
Australia has jurisdiction to hear appeals from state
and territory supreme courts, but only where the
High Court grants special permission to appeal.
Federal courts
As mentioned earlier, Commonwealth offences
which can exercise federal criminal jurisdiction
under the Judiciary Act 1903 (Cth). A limited
number of criminal proceedings can be heard in
Figure 3.4 The High Court of Australia is located in Canberra.
the Federal Court of Australia.

Commonwealth offences will be prosecuted by
The High Court has original jurisdiction in limi-
the Commonwealth Director of Public Prose-
ted Commonwealth matters but has appellate
cutions. The most common prosecutions for
jurisdiction to hear appeals from all state and
Commonwealth offences include drug impor-
territory supreme courts. In NSW criminal mat-
tation, money laundering, offences under the
ters, this will relate to appeals from the Court of
corporate law, tax or social security fraud.
Criminal Appeal of the Supreme Court of NSW.
Commonwealth criminal offences are classied
The High Court also deals with cases
as either summary or indictable offences and will
concerning the interpretation of the
be heard and sentenced in the corresponding state
Constitution of Australia and the
or territory court for those offences. The procedure
constitutional validity of laws, which
cases that can be heard in
of the relevant state or territory will apply.
may include criminal laws.
the District Court.
The High Court will only hear
R EVI EW 3 . 3
1 Describe the types of
2 Explain the types of cases
High Court of Australia
matters on appeal where it grants
that can be heard by the
The High Court of Australia is the highest court in
special leave. This is granted for
Supreme Court and the
the Australian court hierarchy.
questions of law of public impor-
Court of Criminal Appeal.

3 Explain the role of the
tance, conict between courts or in
the Constitution of Australia and is constituted
the interests of the administration of
High Court of Australia in
under the Judiciary Act 1903 (Cth).
justice.
the court hierarchy.
l e ga l l i nk s
The High Court is mandated by section 71 of
The Lawlink website is maintained by
The ACT government provides
the NSW Attorney-Generals Ofce
information on that territorys courts and
and contains information and links on
tribunals: www.courts.act.gov.au.
aspects of NSW law. It contains links
The Australian Government Attorney-
to the ofcial websites of all NSW
Generals website has information about
courts listed above:
the federal legal system and courts:
www.lawlink.nsw.gov.au.
C rim e
will usually be heard in state or territory courts,
www.ag.gov.au/www/agd/agd.nsf/
Page/Legalsystemandjustice_
TheCourts.
51
T he a dve r s a r y s ys te m
adversary system
a system of law where
two opponent sides
present their case to
an impartial judge or
jury
inquisitorial system
a system of law where
two sides present
their cases to a judge
who directs the cases
and calls for particular
evidence
The criminal justice system in Australia is based
in many other countries, as well as some areas of
on an adversarial system of law. The adversary
Australian law, for example in coronial inquests or
system relies on a two-sided structure of opponent
royal commissions.
sides (adversaries) each presenting their own
Supporters of the adversarial system often
position, with an impartial judge or jury hearing
claim that it is a fairer system because it allows
each side and determining the truth in the case. The
each party equal opportunity to present their case
adversary system applies to both civil and criminal
and is less prone to abuse or bias by the official
matters, but it is in relation to criminal law that
determining the case. Cases are carefully prepared
the adversarial system is often most controversial.
before trial and lawyers have equal opportunity
In criminal law the adversary system pits the
to present the truth, and the jury as an impartial
prosecution against the accused, who will usually
observer without any influence of outside factors.
be represented by a lawyer. The judge, or jury in
Opponents of the system argue that in many
indictable offences, acts as an impartial observer
cases the competing sides are not equal before
who determines the accuseds guilt or innocence
the law, with potential imbalances in resources,
based on the evidence and arguments presented.
skills or knowledge. Where additional evidence
Australia, like many other countries around the
or testimony would assist the case, the impartial
world, inherited the adversarial system of law with
judge or jury is not in a position to request this,
the English common law system. An alternative to
even though it may assist in achieving justice. The
the adversarial system is the inquisitorial system,
system has also been criticised for use of the jury
in which a judge or group of judges plays a role
system, where complex technical cases might be
in investigating the case or calling for evidence or
misunderstood due to a lack of understanding of
testimony that has not been requested by either
the evidence presented and where the reasons for
side. Versions of the inquisitorial system are used
the jurys decision are not disclosed to either side.
Lega l per son nel in a c rimina l t ria l

Criminal trials often involve a large number of
Judges and magistrates
participants, both behind the scenes and in the
52
courtroom itself. They are involved in various
Judges and magistrates are judicial officers who
aspects of the case from the beginning of the
preside over court cases and make determinations
investigation through to the end of the trial.
in court based on the evidence presented by either
Some of the non-legal participants in a criminal
side. Judges and magistrates are legally qualified
trial include the accused, any witnesses called to
professionals who have considerable experience
testify and the police responsible for investigating
in the law. They act as the umpires of court cases,
the case. Most criminal trials will also involve a
making sure that the rules are followed and that a
number of legal personnel participating in the
fair trial is carried out. Whether a case is heard by
case and some of the most important are outlined
a judge or a magistrate will depend on the court in
below.
which the case is heard.
1
8
5
C rim e
7
Figure 3.5 Court cases
involve a number of key
participants, including:
1
2
Judge or magistrate
Prosecutor (e.g.
Police prosecutor
or Director of Public
Prosecutions)
10
3
4
5
6
7
Barrister or solicitor
Judges associate
Court reporter
Accused
Media
8
9
10
Witness
Jury
Public gallery
Magistrates
of law and give instructions to the jury to make sure
Magistrates are the judicial ofcers that preside
they understand the proceedings and the evidence
over hearings in the Local Court. Specialised
presented. Once the jury has reached a verdict,
magistrates also hear cases in the Childrens
the judge will hand down sentences and rulings.
Court. In criminal law, magistrates will hear sum-
In some cases the judge will sit without a jury in
mary proceedings in the Local Court, as well as
such cases the judge will also be responsible for
indictable offences triable summarily where the
making the nal determination in the case.
accused has consented to the case being heard by

a magistrate. Magistrates oversee proceedings and
make a determination on the basis of the evidence
Prosecutors
presented. Once a magistrate has determined the
In criminal trials, the state or Crown is repre-
guilt of the accused, the magistrate will also pass
sented by a prosecutor who brings the action
an appropriate sentence. Magistrates will also con-
against the accused. It is the prosecutors role to
duct committal proceedings for indictable offences
prosecute the offender in a court of law and obtain
to be tried, and will usually hear bail proceedings.
an appropriate form of sanction or punishment for

the offence. There are two types of prosecutors
Judges
in criminal trials: police prosecutors and public
Judges are the judicial ofcers that preside over
prosecutors.
the intermediate and superior courts the

District Court and Supreme Court. Judges oversee
Police prosecutors
proceedings, maintain order in the courtroom
Each criminal investigation begins with the police
and ensure that the procedures of the court are
and they are an essential part of any criminal case.
followed. Judges will make decisions about points
It is imperative that the police undertake an
police prosecutor
a NSW police
ofcer trained in
prosecution, usually
used to prosecute
summary offences
53
intensive and exhaustive investigation of the mat-
This decision to prosecute will depend on many
ter and gather all the evidence and information
different factors, including:
that will be used at trial to form the case against
s whether the evidence is sufcient to establish

the elements of the offence
the accused. The police will often also be required

to give testimony at the trial to aid the prosecu-
s whether the evidence is sufcient to gain a

conviction by a reasonable jury
tions case.
public prosecutor
a legal practitioner
employed by the
Director of Public
Prosecutions, usually
used to prosecute
indictable offences
public defender
public barristers who
can appear for an
accused in serious
criminal matters where
legal aid has been
granted
legal aid
a subsidised legal
service provided by
the state for lowincome earners
plea
a formal statement
of guilt or innocence
entered into by the
accused
plea bargaining
agreement between
the prosecution and
the accused on the
acceptance of a
guilty plea, usually
in exchange for
something else
For summary offences in the Local Court and
s certain discretionary factors to determine the
Childrens Court, cases will usually be prosecuted
public interest, including seriousness of the
by police prosecutors. Police prosecutors are
offence, special circumstances of the offence,
members of the NSW Police with specialised train-
accused or victim, the need to maintain public
ing to conduct prosecutions. Police prosecutors
condence, length and expense of trial, and the
handle most summary cases in NSW. More serious
likely outcome and consequences if the trial
offences are dealt with by public prosecutors,
succeeds.
described below.
Director of Public Prosecutions
Barristers and solicitors
For indictable offences and some summary off-
A person charged with an offence will usually
ences, cases will be prosecuted by the NSW Ofce
contact a solicitor rst, who will be able to give the
of the Director of Public Prosecutions (DPP). The
accused advice on a range of matters, including
DPP will also conduct some committal proceed-
the charge and alleged offence, procedures
ings for indictable offences. The DPP is an
surrounding a trial and assist in interactions with
independent authority that prosecutes all serious
police investigating the case. The solicitor may also
offences on behalf of the NSW Government.
advise on any available defences, the likelihood of
Prosecutors employed by the DPP are barristers
conviction and possible sentences. Many solicitors
or solicitors. It is their job to prosecute the case
will specialise in criminal law or particular areas
and gain a conviction verdict using the evidence
of criminal law.
gathered by the police. In court their role is to ask
A solicitor may also represent the accused
questions of the witness on the stand and draw out
in court, or engage a barrister to represent the
the truth from the evidence and testimony given
accused. It is common to see solicitors appearing
by the various witnesses.
in the Local Court, while barristers will usually
The DPP does not investigate crime that is the
appear in the higher courts. Barristers have two
responsibility of the NSW Police but it prosecutes
main roles in court proceedings: to provide legal
cases once sufcient evidence has been estab-
advice for the accused on the likely outcome of a
lished. The DPP operates independently of the
court case and to present that case in court.
government in deciding which

matters to prosecute. It reviews
Public defenders
cases proposed by the police to
Where an accused is unable to afford legal repre-
determine if there is enough
sentation in their case by a private barrister or
evidence to succeed. The DPP
solicitor, they may be granted access to a public
will prosecute a case where it is
defender. Public defenders are barristers who
in the public interest to do so.
appear in serious criminal matters for an accused
Independence of the DPP is vital
who has been granted legal aid.
are
If an accused has been charged with a serious
prosecuted on their merits and
indictable offence and is eligible to receive legal
are not inuenced by political
aid, they may be granted a public defender to
interference or public pressure.
defend their case and represent them in court.
to
Figure 3.6 Barristers play an
important role in criminal court cases.
54
ensure
that
cases
Public defenders are paid public barristers who

are independent of the government and perform
similar duties to a privately retained barrister.
They will be able to appear or advise in relation to
criminal trials, sentence matters and appeals in the
District or Supreme Court and may be briefed by a
private solicitor, through the Legal Aid Commission
R EVI EW 3 . 4
1 Explain the difference between the
adversary and inquisitorial systems of law.
2 Describe the types of cases heard by a
magistrate and by a judge.
3 Explain the role of the prosecution in a
criminal trial.
C rim e
or through a community based legal group.
Plea s a n d c h a r ge ne go t ia t io n
R ESEAR CH 3 . 2
After an accused is charged with an offence and
expensive case for the prosecution,
the trial process proceeds, the law requires the
the accused and the court. Plea
Recent trials on plea
accused to enter a plea of either guilty or not
bargaining cannot guarantee a
bargaining or case
guilty. At a plea hearing the accused will state in
particular sentence for the offence
conferencing were conducted
front of a judge their plea. If they enter a No plea,
this can only be determined by
in NSW under the Criminal
it is written on the record as a not guilty plea.
the judge based on the nature of the
Case Conferencing Trial Act
The plea entered by the accused will have a
offence and sentencing guidelines,
2008 (NSW), which allowed
major impact on how the charges are dealt with. A
although the plea bargain may be
for specied discounts in
guilty plea will be dealt with quickly and does not
taken into account.
sentences. Research the
require witnesses to give testimony. The accused
Some of the arguments for and
case conferencing trial on
will be sentenced straight away, or if the guilty plea
against plea bargaining include:
the internet and answer the
is made at a committal hearing, the magistrate
s that plea bargaining decreases
questions below. The following
will commit the accused for sentencing in a higher
costs and time delays, which is
websites will be of use to you:
court.
benecial to all parties
s www.lawlink.nsw.
If the accused pleads not guilty, then the case

will be defended in court. Further dates will be set
s that it increases the rate of

criminal convictions
to go to trial, which may be a long time away, and
s that conviction on a lesser
the accused will be awarded bail or remanded in
charge is better than no convic-
custody until that date. If an accused pleads not

guilty but is later found guilty, this may also have
an impact on sentencing.
An often controversial tactic that is used in
tion at all
s that crimes may go unpunished
or that the admitted crime is
insufciently punished
criminal proceedings is that of plea bargaining.
s it may result in an accused
This is where the accused agrees with the
pleading guilty to a crime for
prosecution to plead guilty to a particular charge
which they are innocent
or charges. This usually involves pleading guilty
s it may lead to bullying or mani-
to a lesser charge in exchange for other higher
pulation of the accused to forfeit
charges being withdrawn, or pleading guilty in
their right to a trial
gov.au/lawlink/pdo/
ll_pdo.nsf/pages/PDO_
caseconferencing
s www.legalaid.nsw.gov.au/
data/portal/00000005/
public/07820001157522
434812.doc
1 What were the discounts
available under the trial?
2 Where was the trial held and
for what types of offences?
3 What was the outcome of
the trial?
4 Have there been any recom-
exchange for a lesser sentence. Plea bargaining
s prosecutors may threaten more
mendations or changes
is sometimes known as case conferencing and
serious charges to intimidate
in the law since the trial
can be conducted at many stages of the criminal
the accused to plead guilty to
ended?
process. It will usually result in a faster and less
the lesser charge.
55
Lega l rep rese nt a t io n a n d Lega l

A id NS W
In the Australian legal system, a defendant has the
relates to a very minor matter. The courts prefer
right to a fair trial, and Australian courts have ruled
people to be represented so that they will receive a
that a trial will rarely be fair for an accused without
fair trial.
adequate legal representation. In the event that a
Not everyone has the finances or skill to seek
case goes to trial, it is unlikely that the defendant
proper legal representation. This can result in
will have a fair trial if they represent themselves or
injustices in the courtroom and denial of access to a
arrange for an unqualified person to defend them.
fair trial. In 1979, the NSW Government created the
The High Court recognised this in a 1992 decision
Legal Aid Commission, under the Legal Aid
Dietrich v The Queen, which for the first time estab
Commission Act 1979 (NSW). The Commission pro
lished a limited right to legal representation in Aus
vides legal assistance and representation to people
tralia. Access to justice is crucial to ensure the legal
who are socially and economically disadvantaged to
system functions fairly and equally for all parties
ensure that they have equitable access before the
who come before it, and this is particularly so in
law. In doing so it aims to safeguard peoples rights
criminal matters where the consequences of inade
in the legal system and improve access to justice.
quate representation for an accused can be high.
Legal Aid NSW is usually accessed by marginal
Many defendants are able to afford adequate
ised and disadvantaged groups in society such as
legal representation and will pay for the services of a
disabled persons, women, people of Aboriginal
barrister or solicitor to advise
and Torres Strait Islander backgrounds and people
them and represent their case
who are financially disadvantaged through un
in court. The quality of legal
employment or are low-income earners.
services will vary, and not all
The Legal Aid Commission provides free brief
lawyers will have adequate
legal advice sessions to anyone. However, to access
experience representing people
subsidised legal representation, the defendant must
before a court. Some defen
be means tested. A means test assesses the defen
dants may be able to ensure
dants income and assets to determine whether or
that they receive the best pos
not they have the means to pay for legal repre
sible defence to the charges
sentation. For criminal matters, the Commission
against them, for example by
does not usually assess the merits or likelihood of
Visit the Legal Aid NSW website
hiring the most expensive
the case succeeding, except for matters on appeal.
(www.legalaid.nsw.gov.au) and click
specialised and experienced
Not all matters can be covered by Legal Aid NSW, as
on the About Us tab on the navigation
barristers to represent their
the type of case must fall within the jurisdiction of
bar. Read the information available
case. In most cases this advice
specific areas of law in order to be eligible. Legal Aid
and answer the following questions:
and representation will cost a
NSW will either provide a legal representative or
1 How many clients were represented
significant amount of money.
contribute towards the cost of a private lawyer.
Figure 3.7 Legal Aid NSW provides

legal assistance and representation
to people who are socially and
economically disadvantaged.
RESEARCH 3.3
by Legal Aid NSW in the last
In rare circumstances an
Unfortunately a grant of legal aid is not free,
accused may even elect to
and in most cases a contribution must be made
represent themselves in court,
by the user. Legal Aid NSW is largely funded by
expenditure was spent on criminal
but due to the complexities of
the Commonwealth and NSW government and the
law? How does this compare with
court and the consequences of
NSW Law Society, but funding is limited and is often
other areas of law?
inadequate representation in
considered inadequate to meet the level of demand.
criminal matters, this is not
There will still be many instances where people who
advised unless the offence
are in need of assistance are unable to receive it.
financial year?
2 What percentage of Legal Aid NSW
3 How many calls were made to the

Legal Aid Youth Hotline?
56
Burden and standard of proof

criminal law. Due to the severe consequences if
principal that a person is innocent until proved
an innocent person were to be found guilty, the
guilty in a court of law. In practice, this means that
criminal law standard is set much higher than
it is the responsibility of the prosecution to prove
for civil law, which only requires a balance of
in court that the accused committed the offence
probabilities standard, that is that one explanation
that they have been charged with. This is known
is more likely than another.
as the burden of proof: that the burden (or onus)

is on the prosecution to prove the case.
Generally, the Department of Public Prosecutions

will not bring a case before the courts unless they
The prosecution must also meet the standard
feel that a jury will be convinced by the evidence
of proof for criminal matters: the prosecution
and convict the accused. Criminal trials cost time,
must prove the case beyond reasonable doubt.
money and resources and so it is important that the
This means that to succeed the prosecution must
case is winnable. The evidence and arguments must
show that there is no reasonable doubt that the
be sufcient to convince all 12 jurors of the case
accused in fact committed the offence. The burden
beyond any reasonable doubt. If any juror is not
and standard of proof are essential to criminal
convinced, then the standard of proof has not been
proceedings and essential in achieving justice in
met and the case may not succeed.
burden of proof
in criminal matters,
the responsibility
of the prosecution
to prove the case
against the accused
standard of proof
the level of proof
required for a party to
succeed in court
beyond reasonable
doubt
the standard of proof
required in criminal
law, which requires
the prosecution to
show there is no
reasonable doubt
that the accused
committed the
offence
C rim e
Central to the criminal justice system is the
Use o f ev i de n ce, i nc l u d i n g
w i t nesses
As discussed in Chapter 2, the police will gather a
For a case to go to court, the
wide range of evidence during a criminal investi-
prosecution will need to ensure that
gation that will be used in court to support the
its body of evidence is the best avail-
charge and prosecute the accused. The use of
able and likely to secure a conviction.
evidence in a court case is bound by the Evidence
Evidence used in court can take the
Act 1995 (NSW) and includes various complex
form of real evidence, documentary
rules. For evidence to be admissible in court it
evidence and witness testimony. Real
needs to be relevant to the case and legally
evidence is physical evidence, which
obtained by the investigating police. Evidence that
can be presented to the jurors in a
the police have obtained illegally is generally in-
trial. This may take the form of tape
admissible unless a special exception is made by
recordings, charts to help explain
the judge any later evidence obtained in the
evidence, photographs, ngerprints,
investigation relying on that illegal act may also be
DNA testing, and exhibits such as
inadmissible as the fruit of the poisoned tree.
weapons and clothing.
Evidence will also be inadmissible if it is deemed

irrelevant and generally if it is not direct evidence
Figure 3.8 Real evidence is

physical evidence that may
take the form of photographs,
ngerprints, DNA testing, and
exhibits such as weapons and
clothing.
Documentary evidence may involve original

documents recovered during the investigation.
(just hearsay) or simply relates to a persons
One of the most important types of evidence is
opinion unless it relates to an expert or profes-
witnesses. Witnesses can be called to give evi-
sional opinion being sought.
dence in court by either the prosecution or the
57
ignored otherwise it may result in serious

charges of contempt of court.
A witness giving evidence will be asked to take
an oath to tell the truth and will be asked a series
of questions usually by both the prosecution and
the defence. There are rules around the order and
type of questions that a witness can be asked. The
information they seek is based on factual rsthand
knowledge or eye-witness testimony and will often
Figure 3.9 One of the most important types of evidence is witnesses.
be supported by an earlier statement made by the

witness and recorded. Witnesses must answer
defence and may be examined by either in court.
questions truthfully or may be guilty of perjury,
A witness might be someone who saw some
which is telling an untruth to a court.
aspect of the crime take place, or simply has some
Another type of witness evidence is that of an
relevant knowledge about an aspect of
expert witness. This is a person who has studied
the case that supports the prosecu-
some element of the evidence as an independent
tions
argument.
expert during the investigation, for example some-
Anyone who witnessed a crime or was
one who examined DNA, blood spatter or hand-
of the burden of proof in
inter viewed
be
writing or assessed the defendant such as a psych-
criminal law.
R E VIEW 3.5
1 Evaluate the importance
or
defendants
by
police
may
subpoenaed to appear later in court. A
iatrist. Their job is to give testimony based on their
2 Describe some of the types
subpoena is a formal letter requesting
expert or specialised knowledge and give an opin-
of evidence that may be
a persons attendance at court at a
ion or interpretation of the evidence. The evidence
presented in court.
certain time and place, and cannot be
of an expert witness can often be valuable.
Defences to c ri m i n a l c h a rges
A defendant may have a legal defence available in
on the evidence that the accused presents.
order to defend a charge in court. A defence will
Defences may be complete defences, which
usually involve some denial, justication or excuse
result in the complete acquittal of the accused, or
for the accuseds act. Most defences revolve around
partial defences, which may result in the charge or
the mens rea of the offence, that the accused could
sentence being reduced.
not have had the level of intention required for

acquittal
a judgment that a
person is not guilty of
the crime with which
the person has been
charged
the offence. Legal defences help achieve justice
mental illness or
insanity
mental incapacitation
at the time of the act,
meaning the accused
cannot have formed the
mens rea, but rarely
proved
58
by allowing the court to consider circumstances
Complete defences
that might justify the accuseds act or reduce
Complete or absolute defences are used to justify
their culpability. They limit the risk of an unjust
the defendants actions and, if successfully proven,
conviction by permitting reduced liability in certain
will result in charges being dropped or, if it is
situations, for example serious mental illness or
determined following a trial process, an acquittal.
involuntary behaviour by the accused. Defences
Mental illness or insanity is a defence that is
can sometimes be controversial, especially in cases
only available where the accused can prove that
where a victim is involved. Whether a defence
they were in fact mentally incapacitated when
ultimately succeeds will usually be a question of
they committed the offence. The defence relates
fact for consideration by the judge or jury, based
to the mens rea of the accused that they were
what they may deem as reasonable force and what
could not have formed the necessary mens rea.
the jury believes is reasonable force may be very
The defence of insanity is very difcult to prove
different from one another. In R v Zecevic (1987)
but enables the accused to claim that they were
162 CLR 645 it was held that the defendant must
not aware of, or able to comprehend, the nature
have reasonable grounds to believe their life was
or consequences of their act at the time the crime
threatened and they must use proportional and
was carried out. Where the defence of mental
reasonable force to defend themselves. Zecevics
illness succeeds, the accused may be found not
Case stemmed from a dispute over a parking
guilty on the grounds of insanity.
space. When a defendant uses this defence, the
involuntary
behaviour or
automatism
an act that could not
be controlled or was
not voluntary, such
as an epileptic t
Involuntary behaviour or automatism is
jury is compelled to either acquit the defendant
mistake
the defendant acted
under an honest and
reasonable mistake
and could not have
formed the mens
another defence relating to the mens rea of accused
or nd them guilty of the crime. Particular rules
rea
that the accuseds action was not voluntary or
apply to self-defence in relation to some offences
could not be controlled, for example due to some
such as murder.
self-defence or
necessity
the defendant
acted in defence
of self, another
or property; only
accepted in limited
circumstances and
only for reasonable
force
involuntary action like an epileptic t. As the act
Under the defence of duress, the accused must
was involuntary the mens rea of the offence cannot
be able to prove that they committed a crime
be established.
against their own free will. Duress describes un-
Mistake is not generally a defence under the
lawful pressure that is applied by one person to
law and will be difcult to prove. However, if it
induce another person to do something against
can be shown that the accuseds action was an
their own free will. Although they knowingly car-
honest and reasonable mistake and that the act
ried out the crime, they did so because their life or
was not intended, the relevant mens rea may not
someone elses may have been under threat. In R
be present and the offence may not be able to be
v Williamson [1972] 2 NSWLR 281 the defendant
established.
disposed of a body while under a death threat and
Self-defence or necessity is a self-explanatory
this threat was held to constitute duress.

Consent is another defence most often used as
cumstances if the accused can show they carried
an absolute defence in sexual assault cases. If it can
out a crime in the act of defending themselves
be shown that the alleged victim consented to the
or another person, while attempting to prevent
act, then the accused may be acquitted. However,
a crime or in the defence of property. Using this
consent will not be a valid defence for certain
defence can be risky for the defendant because
criminal offences such as murder. For example, a
l eg a l i nf o
defence. This defence may be used in certain cir-
C rim e
not criminally responsible for their actions and so
duress
a defendant may
be acquitted if
they can show they
acted against their
will under unlawful
pressure
consent
it is a complete
defence for some
crimes if the accused
can show the victim
freely consented to
the act in question
The McNaghten test

The McNaghten test (also known as the MNaghten
by the government and was acquitted on the basis
rule) is an English rule established in 1843. It is
that as he was insane, he did not know the nature
used to determine whether a person is able to
of his act nor that it was wrong. The House of Lords
claim the defence of insanity. In the case, James
developed the insanity rule in response to the case.
McNaghten (the accused) attempted to shoot Sir
The insanity plea only applies to those situations
Robert Peel (the then Prime Minister of Britain).
where the accused was not aware of the nature or
McNaghten missed and instead shot Edward
consequence of their actions when they committed
Drummond (the Prime Ministers Private Secretary).
the crime and cannot be held responsible for those
In the case, McNaghten claimed that at the time
actions. They must be able to prove that they were
he was suffering insane delusions of persecution
mentally ill at the time of the act.
59
m e d i a cl i p
Im glad its over:

robbers killer freed
By Natasha Wallace
Sydney Morning Herald, 5 August 2006
The accused thanked the jury,

the gallery applauded and
even the prosecutor was not
disappointed when Karen Brown
was found not guilty of murder,
writes Natasha Wallace.
THE facts of the case were
simple: moments after the security
guard Karen Brown shot dead a
robber who had beaten her with
knuckledusters, she staggered
dazed and confused into a hotel,
her head bubbling with blood and
the gun dangling from her hand. I
have been robbed, she said. Call
the police. I think I killed him.
But the issues in the case were
complex. While Ms Brown admits
she pulled the trigger, she insists
she does not remember shooting
William Aquilina, 25, as he tried to
rob her of about $40 000 outside
the Moorebank Hotel on July 26,
2004.
Two witnesses told the NSW
Supreme Court during Ms Browns
trial that she had given up the
ght and walked away before
turning towards him and shooting
him through a car window as he
sat in the front seat.
Yesterday the jury found her
not guilty of both murder and
manslaughter after about four
hours of deliberation.
This capped off a two-week
trial in which the central issue was
whether Ms Brown intentionally
shot at Aquilina as he ed the
scene.
When the jury handed down
its verdict, Ms Brown dropped
her head in her hands and cried.
The public gallery applauded. Ms
60
Brown turned to the jury, nodded

her head and mouthed the words
thank you.
Outside the court, the Crown
prosecutor, Paul Conlon, SC, said
he was not disappointed by the
verdict. Not at all, he said.
I think what the jury has seen
with the presentation of all the
evidence over the last two weeks,
they no doubt appreciated the
type of difcult issues involved
its obviously taken its toll on
her, the whole experience, and I
genuinely wish her well.
Ms Browns mother, Bev,
thanked the public for its support.
Were all very glad and relieved
its all over and we consider the
right decision has been made,
because we all know Karen for
the kind, lovely person she is and
we know that she is incapable of
doing what she is accused of, she
said.
I think the jury gave very
careful consideration to all
aspects of the case and we thank
them for that.
Arm in arm with her mother,
crying and shaken, Ms Brown said:
Im glad its over. Id like to thank
the jury very much. She was
looking forward to getting on with
her life.
To secure a guilty verdict, the
prosecution had to prove that Ms
Brown, 42, shot Aquilina out of
revenge or anger, and that the act
was not done under provocation
and she was not acting in selfdefence at the time she red the
gun. He died of a bullet wound to
the head.
But her defence argued that
at the time she red the gun
she experienced a brief period
of automatism - that she was
acting involuntarily and was not in
control of her actions.
A defence psychiatrist, Olav

Nielssen, said that despite
entering the hotel shortly after
the shooting and alerting patrons
and staff to what had happened,
Ms Brown had suffered from
post-traumatic automatism at
the crucial moment. He said this
was either because of the direct
effect from the brain injury she
sustained in the assault or the
emotional trauma arising from
believing her life was in danger.
During deliberations yesterday,
the jury asked the judge to clarify
the Crown and the defences
positions on what constituted a
voluntary act.
Through the trial, Ms Brown had
appeared to be traumatised still.
Her head sometimes shook, her
eyes constantly darted about the
courtroom and she often wept as
witnesses recounted events.
She took deep breaths and
tried to steady herself as the
jury listened to how she fought
Aquilina for the bag of cash before
turning and shooting him dead.
She did not give evidence.
She says she does not remember
anything from the time Aquilina
bashed her and dragged her
along the ground by the backpack
until she was in hospital later.
Dr Nielssen diagnosed her with
concussion, which he said lasted
up to two months afterwards.
Dr Elizabeth Swinburn, who had
treated Ms Brown at Liverpool
Hospital that night, thought Ms
Brown was lucid and alert and
said she had denied any loss of
consciousness.
She was discharged from
hospital but an X-ray and CT scan
two days later showed she had
a fractured nose, eye socket and
wrist.
to have a murder charge reduced to manslaughter.
ill person in dying cannot use the defence of con-
In R v Camplin [1978] AC 705, a 15-year-old boy
sent even if the patient wanted to die.
successfully argued provocation after he hit

his uncle with a frying pan and killed him. The
Partial defences to murder
uncle had just sexually assaulted the boy and was
There are a number of partial defences that relate
that an ordinary person in the position of the
specically to murder. When a murder has been
accused would have formed the intent to kill or
committed, the accused may claim that there were
inict grievous bodily harm on the person who
mitigating circumstances that caused them to
had assaulted them.
mocking him about the incident. The court held
carry out the act. While it is not enough to absolve
Substantial impairment of responsibility is
the defendant of blame, it may help to reduce the
another partial defence to murder, which reduces
sentence or even result in an acquittal.
murder to manslaughter. This defence is also refer-
provocation
the defence whereby
the defendant claims
that their actions
were a direct result
of another persons
actions, and caused
them to lose control of
their actions
diminished
responsibility
also known as
substantial impairment
of responsibility,
this defence is used
when the accused
is suffering from a
mental impairment
that caused them to
commit the crime
Provocation is the defence whereby the defen-
red to as diminished responsibility. The defen-
dant claims that their actions were a direct result
dant must be able to prove that they suffer from
of the other persons actions, and caused them
a mental abnormality that caused
to lose control of their actions. Provocation is a
them to act in a certain manner
controversial defence because it implies some
and carry out a crime. Such abnor-
level of responsibility on the victim, that they
malities include a low IQ or mental
Read the media article Im
somehow provoked the accused to an extreme
retardation. This defence is more
glad its over: robbers killer
reaction resulting in murder. Provocation as a
widely used than the insanity plea
freed and answer the following
defence has been abolished in Victoria, Western
because it is easier to prove, and
questions:
Australia and Tasmania, but still exists in NSW. For
the person may be completely
1 Describe the charge the case
provocation to succeed, the accused must be able
normal in every other aspect of
to prove that the victim caused the accused to act
their mental capacity and health.
in such a way that, given the same circumstances,
Substantial
any ordinary person would have been provoked
be used as an excuse when the
into carrying out the crime. In NSW, the defence
accused was drunk or under the
of provocation can only be used when attempting
inuence of mind-altering drugs.
impairment
cannot
C rim e
doctor or family member who assisted a terminally
R EVI EW 3 . 6
related to.
2 Outline the facts of the case
and describe the defences
that were relied on.
3 Describe the outcome of the
case and why it was reached.
The role of juries, including

verdic ts
Juries are a central part of the adversarial system
A jury is a panel of citizens, selected at random
of criminal law and play an important role in
from a jury list compiled from the electoral roll,
reaching an impartial judgment by a group of
whose job it is to determine the guilt or innocence
peers, based on the presentation by the parties
of the defendant based on the evidence presented
of evidence at a trial. In NSW, juries are used to
to them at trial. It is a task that brings with it enor-
hear most indictable offences where a plea of not
mous responsibility. Their job can be described as
guilty is entered, and may be used in either the
fact-nding, and their decision is called a verdict.
District Court or the Supreme Court. The Local
In most cases, a criminal trial involves a jury of 12
Court does not have jurisdiction to conduct trials
people. Discussion of the adversary system earlier
with a jury. Many of the rules pertaining to juries
in this chapter included some discussion on the
are found in the Jury Act 1977 (NSW).
merits of a jury system.
61
including those who are aged over 65 years, are

pregnant or care for children full time. There are
also some groups of people in society who are
ineligible to sit on a jury. They include people who
do not speak English, emergency services staff
members (police, fire and ambulance), disabled
people, convicted criminals and members of the
legal profession.
Figure 3.10 A jury is a panel of citizens, selected at random from a jury
list compiled from the electoral roll, whose job it is to determine the
guilt or innocence of the defendant based on the evidence presented
to them at trial.
Jury role
Before a court case begins, jurors are sworn in.
During the trial, the role of a juror is to listen to the
peremptory
challenge
when the legal team
strikes a juror without
needing a specific
reason
challenge for cause
when the legal team
strikes a juror because
it is believed that for
some reason the juror
will be prejudicial
Challenging jurors
evidence presented to the court, apply the law as
In a criminal trial, both the prosecution and the
the accuseds guilt or innocence.
directed by the judge and come to a verdict as to
defence have the right to challenge either the selec
Jurors are permitted to make notes in order to
tion of the entire panel of jurors, or individual
refresh their memory when deliberating over a
jurors. Both sides can also exercise a certain num
verdict. They are not permitted to talk to anyone
ber of peremptory challenges of prospective
about the case except for their fellow jurors when
jurors, which will disqualify individual jurors with
they are all together. They may also ask for clari
out having to give a reason. However, challenging
fication on matters from the judge. Throughout the
the selection of a juror can be difficult: neither side
case, they are to remain alert and focused on what
knows anything about them in advance apart from
is being presented to them in the courtroom. Their
their names, and peremptory challenges are usually
role is to be unbiased and impartial and make a
based on nothing more than name or appearance
judgment based solely on the evidence they are
(e.g. age, gender, race, clothing, physique).
presented with. Each jury elects a foreperson who
Challenges for cause are another type of
speaks on their behalf.
challenge based on the person not being qualified
The jury must remain fair and open-minded
to serve on a jury, being ineligible or disqualified,
when reaching their decision, they should not be
or being suspected of bias. It may be the case that
influenced by the media or their own personal
one of the jurors is acquainted with the defendant
beliefs when reaching a decision, it is their job
or that one of the jurors has been a victim of a
to apply the law and base their decision on the
similar crime and therefore may be biased.
evidence and testimony presented throughout the

trial. When deliberating over a verdict, the jury does
Eligibility for jury duty
not have any set time limits. They are encouraged to

take their time and discuss the court proceedings.
Australian citizens aged 18 years or over become

eligible to sit on a jury once enrolled on the elec
toral roll. It is very difficult to gain an exemption
62
Verdict
from jury duty and some people view jury duty as
A jury is required to reach a verdict of guilty or not
an inconvenience and a burden, especially when
guilty and present that verdict to the court. The
they are selected to sit on a long trial. However, it
accused will then be acquitted if found not guilty,
is an important part of our justice system for an
or if guilty the judge will then pass a sentence.
accused person to be tried by a group of their peers.
Sometimes, it is easy for the jury to arrive at a
Exemptions can be sought by certain persons,
decision, other times they can deliberate for days
and still not reach a verdict. A jury that is unable
Commonwealth offences, as unanimous verdicts
to reach a verdict is called a hung jury. In these
for those offences are protected under s 80 of the
situations the case is dismissed and a retrial will be
Constitution of Australia.
ordered for the procedure to begin all over again. A
New South Wales had previously had a long-
hung jury results in signicant strain on all parties
standing system of unanimous verdicts in criminal
to a case the time and cost consequences for the
trial, historically inherited from British
accused and the prosecution are very high. If the
Unanimous verdicts mean every single one of the
accused is in remand during the trial, it may result
jurors must agree. This was changed in the UK in
in an extended period of custody for an offence
1967 and later in many other Australian states.
he or she may ultimately be acquitted of. The
Some of the arguments for the change to majority
anguish caused to victims and witnesses during a
verdicts include removing rogue or unreasonable
prolonged or repeated trial is also difcult.
jurors who are unrepresentative of the community

and avoiding time delays, cost, and the stress on
Act 1977 (NSW) with the Jury Amendment (Verdicts)
the victim of experiencing a retrial. Arguments
Act 2006 (NSW). The Act allowed for majority
against majority verdicts include discounting the
verdicts of eleven to one or ten to one to be allowed,
possibility of nding a reasonable doubt decision
where reasonable time for deliberation has passed
if only one juror is disagreeing, disagreements are
and the court is satised that a unanimous verdict
rare, and that majority verdicts may change jury
will not be reached. The Act does not apply to
deliberations from the beginning of the case.
l eg al i nfo
In 2006, the NSW Parliament amended the Jury
C rim e
law.
Jurors understanding in criminal trials

A lot of research has been conducted internationally
the law (94.9%). Almost half (47.2%) stated that
to determine whether jurors in a trial understand
they understood completely. However, some
the instructions given to them by judges. A generally
groups were less likely than others to understand
consistent nding is that jurors do not understand
judicial instructions. Younger jurors, between 18-35
instructions given to them by judges, with particular
years, were 1.3 times more likely to say the judges
difculty in concepts like reasonable doubt, intent
summing-up of the case to the jury did not help the
or presumption of innocence.
jury at all or only a little bit in reaching a verdict. If
In 2008, the NSW Bureau of Crime Statistics
a jurors rst language was not English, they were
and Research conducted a study entitled Juror
almost twice as likely to say they understood only
understanding of judicial instructions in criminal
a little or nothing of the judges instructions on
trials. The study surveyed over 1200 jurors on their
the law.
understanding of the criminal trial process.
The director of the Bureau, Dr Weatherburn,
In particular, the study focused on jurors
suggested that the results provided reassuring
understanding of the phrase beyond reasonable
evidence of the effectiveness of the jury system: It is
doubt. Over half the jurors (55.4%) believed the
occasionally suggested that jurors do not understand
phrase means sure that the person in guilty. About
what is going on in criminal trials. This study
one-fth of jurors (22.9%) believed the phrase
indicates that the overwhelming majority of jurors
meant almost sure the person is guilty, while 11.6%
have little or no problem understanding judicial
believed it means very likely and 10.1% thought
instructions on the law or the judges summing-up of
pretty likely.
evidence at the end of the trial.
Almost all jurors believed they could understand

all or most of the judges instructions to them on
In 2008, the rate of offenders found guilty at jury

trials in NSW was 84.7%.
63
C h a p te r s u m m a ry
64
s Different offences will be heard in different

courts in the court hierarchy.
s The Local Court deals with summary offences
and less serious offences.
s The Coroners Court decides whether a
persons death is suspicious and a case can be
built to prosecute a suspect.
s The Childrens Court deals with crimes
committed by juveniles under the age of 18.
s The District Court hears serious criminal
matters and appeals from lower courts.
s The Supreme Court hears the most serious
cases such as murder and gang rape.
s The High Court is the highest court in
Australia.
1 The Coroners Court is which of the following?

a a court that deals with the cause and
manner of a persons death
b a court where most criminal cases are
heard
c a court where the general public are
prohibited from viewing proceedings
d the highest court in Australia
2 Which of the following best describes the
defence of duress?
a the accused claims that the victim
consented to the crime carried out against
them
b the accused tries to prove that they
committed a crime against their own free
will
c the crime was done in the act of selfdefence
d the victims actions caused the accused to
lose control
s The DPP prosecutes cases on behalf of the

NSW government.
s Public defenders represent the accused.
s Legal aid is available to people who are
unable to pay for legal representation.
s Evidence can take the form of real,
documentary and witness testimony.
s An accused may raise a defence to a charge
which may be a partial or a complete offence.
s Juries must in most circumstances reach a
unanimous verdict, but this may be reduced
in certain circumstances.
3 A public prosecutor is a:
a judge
b magistrate
c lawyer
d police ofcer
4 When a defendant pleads guilty to a lesser
charge in exchange for another charge being
withdrawn it is referred to as:
a plea bargaining
b charge bargaining
c double jeopardy
d committal hearing
5 The standard of proof in a criminal case is
best described as:
a beyond reasonable doubt
b balance of all probabilities
c diminished responsibility
d innocent until proven guilty
C rim e
C h a p te r s u m m a ry ta s k s
1 Describe the difference between lower courts,

intermediate courts and superior courts.
2 Explain the different roles of a magistrate and
a judge.
3 Compare the roles of the public prosecutors
and the public defenders.
4 Describe why self-representation in court is
not recommended.
5 Assess the importance of the jury in the
adversarial system.
65
CHAPTER 4
key ter ms/vocab ul ary
Sentencing and punishment
66

s identify the purpose of sentencing
s describe the many different types of sentences
available
s discuss the role of the victim in the sentencing
process
aggravating factors
appeal against conviction
appellant
bond
caution
circle sentencing
community service order
correctional centre
criminal infringement notice
deterrent
diversionary program
ne
forfeit
s explain the subjective and objective elements in

applying a sentence
s describe the alternatives to traditional forms of
sentencing
s communicate the effectiveness of a sentence as a
means of deterrence.
general deterrence
gratuitous violence
guideline judgments
home detention
incapacitation
judicial discretion
mandatory sentencing
maximum penalty
mitigating factors
non-parole period
parole
penalty units
periodic detention
probation
proceeds of crime
recidivism
rehabilitation
remorse
restorative justice
retribution
sentence appeal
sentencing hearing
specic deterrence
suspended sentence
victim impact statement
Child Protection (Offenders Registration) Act

2000 (NSW)
Crimes (Administration of Sentences) Act 1999
(NSW)
Crimes (Appeal and Review) Act 2001 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes (Serious Sex Offenders) Act 2006 (NSW)
Criminal Assets Recovery Act 1990 (NSW)
Migration Act 1958 (Cth)
Terrorism (Police Powers) Act 2002 (NSW)
Victims Rights Act 1996 (NSW)
Young Offenders Act 1997 (NSW)
R v AEM (Snr); R v KEM; R v MM [2002]

NSWCCA 58
McCartney v R [2009] NSWCCA 244
Kable v DPP (1996) 189 CLR 51
od d l a w
Sentences have evolved in many ways over
the past four centuries. In Elizabethan England
(15581603), common sentences often included
corporal punishment and public humiliation as a
method of deterring crime.
For example, women convicted of being
a common scold (i.e. a troublesome
woman who, by brawling and arguing with
her neighbours, broke the public peace
and became a public nuisance to the
neighbourhood) were forced to wear the brank.
The brank (also known as the gossips bridle)
was a metal mask or cage that was placed over
a womans head. Attached to this mask was a
sharpened mouthpiece, sometimes covered
with spikes, that was placed in the mouth. If the
woman attempted to speak, the spikes would
inict painful injuries to the tongue and mouth.
Women who gossiped with their neighbours
with no purpose other than to offend, ridicule
or lie about someone else, were subject to this
torture.
Cha pter 4: Sentencing a nd p uni s hment
C rim e
rel ev ant l aw
67
Se nte nc i n g a n d p u n i s h me nt
Once a crime has been committed, it is investi
summary hearing. The sentencing hearing is
gated and charged by the police and prosecuted
where the magistrate or judge hears and considers
by the relevant authority. If the person accused of
arguments and evidence about the relevant law
the crime pleads not guilty, the case will be tried in
and what the most appropriate sentence ought to
court by a magistrate, judge or jury and a verdict
be in the circumstances. The magistrate or judge
reached. If tried and found not guilty, the accused
will then determine and announce the sentence.
will be acquitted and set free.
sentencing hearing
a hearing following a
finding of guilt in which
a magistrate or judge
will determine the
sentence to be handed
down to the accused
maximum penalty
set by parliament,
this is the maximum
sentence available to a
court to impose for an
offence; the maximum
penalty will rarely be
handed down
judicial discretion
the power of a judge
or magistrate to make
a decision within a
range of possibilities
based on the particular
circumstances of a case
guideline judgments
judgments issued by
the court on application
of the AttorneyGeneral that will set out
sentencing guidelines
for a particular offence
mandatory sentencing
removal of judicial
discretion by
legislation, by setting a
minimum or mandatory
sentence for a
particular offence or
type of offender
68
Sentencing involves the sanction given by the
Where an accused pleads guilty, or if the court
state against the offenders criminal conduct and
reaches a guilty verdict after trial, the accused will
is one of the most crucial steps in the criminal
be sentenced for having committed the offence.
process. It often involves a judgment as to the
It is the responsibility of a judicial officer the
severity of the offence, the mind of the accused
magistrate or judge to determine and pass the
and the need for the crime to be punished. In high
most appropriate sentence. The jury is not in
profile cases, sentencing can attract significant
volved in sentencing an offender.
publicity or become heavily politicised. However,
Sentencing occurs in a sentencing hearing.
all sentences require careful balancing of the
This may take place at the same time a verdict
competing interests of all parties concerned. This
is reached or a guilty plea is given, but it often
includes the victims, the community, the state and
will take place on a separate day to the trial or
the accused.
St a t u to r y a n d j u dic ia l gu ide l i nes

When imposing a sentence, magistrates and judges
penalty. It will generally be listed in the same
do not simply pluck a punishment from the air.
section as the offence it relates to, and will differ
Sentencing is an established area of criminal law
according to the seriousness of the offence. For
there are numerous laws, rules, guidelines and
example, 19A of the Crimes Act 1900 (NSW) des
cases on how sentences are to be determined.
cribes the maximum penalty for murder as life
The Crimes (Sentencing Procedure) Act 1999

(NSW) is the primary source of sentencing law in
imprisonment, and s 61I sets the maximum penalty

for sexual assault at 14 years imprisonment.
NSW. It sets out the purposes for which a sentence
Except in the most extreme cases, maximum
may be imposed, the types of penalties that can
penalties will almost never be imposed for an off
be imposed and when they can be used, as well as
ence, and a variety of lesser penalties are available
a number of factors and guidelines for sentencing
for a judicial officer to use. The Crimes (Sentencing
generally. In addition to the Crimes (Sentencing
Procedure) Act states clearly that a court may not
Procedure) Act, limits and guidelines on senten
impose a prison sentence unless it is satisfied
cing are found in many different statutes.
that no other penalty is appropriate. Ultimately,
The maximum penalty that an offender can
it is up to the magistrate or judge to determine
receive for an offence is usually decided by parlia
the most appropriate sentence to impose this
ment and listed in legislation. No judicial officer
is known as judicial discretion. Judicial officers
can pass a sentence higher than the maximum
will use this discretion to determine the best
sentence on a case by case basis, and will take

into account numerous factors of the offence and
of the accuseds circumstances. These factors will
be discussed in more detail below.
Judicial ofcers can be guided by former
judgments where similar facts have arisen. Case
law will often be cited by the prosecution or defendant in a sentencing hearing other judgments
will often be persuasive, and sentencing principles
may need to be followed if handed down by a
C rim e
higher court. The Crimes (Sentencing Procedure)

Act also allows for the NSW Attorney-General to
apply to the court for guideline judgments on
sentencing for particular offences such judgments will be issued by a judge after hearing
arguments from both the Director of Public
Prosecutions and the Senior Public Defender. They
will be used in determining future sentences.
In some instances, controversial changes have
been made by parliaments to remove judicial
discretion for certain offences. This is known as
mandatory sentencing. Mandatory sentencing
describes an automatic sentence set by parliament
that must be imposed by the judicial ofcer for
particular offences or repeat offences. Mandatory
sentencing laws were introduced in the Northern
Territory and Western Australia in the 1990s, intended as a harsh deterrent for repeat of fenders
or to remove serial offenders from the streets. The
three strikes and out policy involved offenders
being mandatorily imprisoned if convicted three
Figure 4.1 Section 19A of the Crimes Act 1900

(NSW) describes the maximum penalty for
murder as life imprisonment.
times for certain offences.

Opponents claim that such laws are unduly
harsh as they remove the ability of a magistrate or
judge to consider the individual circumstances of
R EVI EW 4 . 1
1 Explain at what point in the criminal process
the accused and the offence they have committed.
an accused person receives a sentence.
Particular ethnic and socioeconomic groups may
Who determines it and what is the process?
be targeted by mandatory sentencing laws and

there is little evidence that they work as a deterrent.
The Northern Territory later abolished its man-
deterrent
something that
discourages
or is intended
to discourage
someone from doing
something
2 Identify the main sources of law and

guidelines for sentencing.
3 Describe what mandatory sentencing is
datory sentencing laws after they were found to
and how it differs from normal sentencing.
cause a huge and unmanageable rise in imprison-
Discuss whether you think mandatory
ments, with little deterrent effect and with indi-
sentencing would be appropriate in any
genous offenders overly represented.
circumstances.
69
T h e p u rpo s e s o f p u n i s h m e n t
specic deterrence
punishment against
an individual offender
aiming to deter them
from committing crime
in the future
general deterrence
punishment attempting
to make an example of
an offender in order to
send a message to the
rest of the community
Sentencing is traditionally the means through
relates to passing a higher sentence in the hope that
which the state and the community punish an
fear of punishment might help to prevent future
offender for the crime they have committed.
offences. There are two types of deterrence:
However, the notion of punishment is misleading
s specic deterrence punishment against an
and needs to be separated from sentencing
individual offender aiming to deter them from
punishment is just one of many purposes behind
committing crime in the future by showing that
imposing a sentence on an offender. A judicial off-
crime does not pay
icer will have to consider the purpose behind the
s general deterrence punishment attempting
sentence that is being considered why is this par-
to make an example of an offender in order to
ticular sentence required in the circumstances?
send a message to the rest of the community
The Crimes (Sentencing Procedure) Act 1999
that the law is serious about punishing people
(NSW) lays down the allowable purposes of sen-
for this offence.
tencing in s 3A of the Act. It states:
Section 3A(b) of the Crimes (Sentencing Pro-
the purposes for which a court may impose a

sentence on an offender are as follows:
cedure) Act mentions both types of deterrence

deterring the offender and other persons as
possible purposes of sentencing. While deterrence
(a) to ensure that the offender is adequately pun-
is a relatively simple concept that people can easily
ished for the offence,
relate to, there is very little evidence to suggest
(b) to prevent crime by deterring the offender and

other persons from committing similar offences,
that it is effective in individual criminal sentencing. Studies are either inconclusive or suggest
that it is not effective.
(c) to protect the community from the offender,
In New Zealand from the years 1924 to 1962,
(d) to promote the rehabilitation of the offender,
the general deterrence of the death penalty for

murder was in a state of ux. During this time it
(e) to make the offender accountable for his or her

actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the
crime and the community.
was in force, abolished, reinstated and abolished

again, with much publicity and discussion. Yet
during this period, the changing penalties had no
signicant impact on the murder rate.
Similarly with specic deterrence, there is little
evidence that the higher penalty will reduce the
All of these purposes are important when con-
chance of reoffending. Studies have shown that
sidering a sentence. Some will be more important
a sentence of imprisonment does not reduce the
than others depending on the circumstances of
chance of reoffending. It has also been shown
the offence. These purposes are considered in
that there is apparently no positive variation in
more detail below.
the reconviction rate between imposing the lesser

sentence of a ne versus a more serious term of
70
Deterrence
imprisonment.
A deterrent is something that discourages or is
criminal law punishing one person more severely
intended to discourage someone from doing some-
than others may be an injustice if its only purpose
thing. In the context of sentencing, deterrence
is ineffective. If there is no veriable benet in pas-
This is a signicant issue for achieving justice in
C rim e
Figure 4.2 Throughout history, devices such as the stocks and the guillotine were used for both
specic and general deterrence.
sing the higher sentence for deterrence, then that
number of points under the s 3A purposes above,
sentence would be simply excessive. Of course, if
including:
other purposes are relevant, such as incapacita-
s ensuring the offender is adequately punished
tion, then imprisonment may be appropriate.

In 1988, the Australian Law Reform Commission recommended that deterrence not be used
as a sentencing objective, as sentences should
be measured to the seriousness of the offence
committed. As a consequence, deterrence was
for the offence, and according to the severity

of the offence
s making the offender accountable for his or her
actions and denouncing their conduct
s recognising the harm to the victim and the
community.
not included as a purpose in the federal Crimes Act
Centuries ago, punishment served as a form of
1914 (Cth), but remains in NSW.
revenge and was often carried out by the victim

of a crime or by the wider community, with
Retribution
terrible consequences. Victims today are no
Retribution is an important factor in sentencing.
instead, they are required to seek retribution
It is a general term referring to punishment consid-
through the legal system.
longer permitted by law to take personal revenge
ered to be morally right or deserved, based on
When someone is being sentenced for their
the nature of the crime. It encompasses a range
crime, a judge will take into account the effect the
of purposes but assumes that some good comes
crime had on the victim and their family and make
from inicting hardship on the offender for their
an assessment about whether the punishment ts
crime. Retribution is related to the concept of
the crime. If the offence was particularly appalling
revenge or getting even, but differs in that it is
or with serious consequences, this will be taken
society seeking retribution on behalf of victims in
into account. An example of this was discussed in
an impartial manner through the courts. It aims
Chapter 1 in the case of R v AEM (Snr); R v KEM; R
to ensure that the punishment is proportionate to
v MM [2002] NSWCCA 58, where three teenagers
the crime but not violent or physically harmful to
were sentenced to particularly long terms of
the offender.
imprisonment due to the horric nature of the
Retribution is the main justication for inicting punishment on an offender and is related to a
retribution
punishment
considered to be
morally right or
deserved based on the
nature of the crime
offence (sexual assault in company) and the longlasting effect it would have on the victims.
71
Again, retribution will be among the many
course promoting rehabilitation are all relevant to
factors to be considered and it is not immediately
this concept. Rehabilitation may include a number
assumed that higher punishment is the most
of different sentencing options and programs,
appropriate sentence for the circumstances.
such as drug counselling and drug rehabilitation

programs, alcohol programs or anger manage-
rehabilitation
an objective of
sentencing designed
to reform the offender
to prevent them
committing offences in
the future
recidivism
habitual or repeated
lapses into crime
Rehabilitation
ment courses. Others may aim to give the offender
Rehabilitation is one of the most important pur-
educational or skills courses. Such sentences may
poses of punishment and will be considered in
be specically imposed or incorporated into other
most cases. Like deterrence, rehabilitation aims to
sentencing options.
discourage future offences by the offender, but
Rehabilitation will rarely be the prime consider-
does so by attempting to alter the views of the
ation for very serious offences, where other factors
offender and eliminating the factors that contri-
will usually outweigh the consideration of reform.
buted to the conduct, encouraging renunciation of
However, there is some evidence that rehabilita-
the crime by the offender. This purpose is focused
tive programs have some level of success with
personally on the accused. The main aim is to
offenders, particularly for less serious offences or
prevent recidivism (reoffending) by preventing
offences involving drug or alcohol abuse. It can
criminals from returning to the same patterns or
be said that rehabilitation and reform through
lifestyle that led them to offend in the rst place.
criminal sentencing will work at some level for
The purposes in s 3A of making the offender
72
the skills needed to function in society through
some offenders. There is no rm evidence that it
accountable, denouncing their conduct and of
cannot also work for the majority.
Figure 4.3 Rehabilitation may include a number

of different sentencing options and programs,
such as drug counselling and drug rehabilitation
programs, alcohol programs or anger
management courses.
Figure 4.4 Different penalties can be applied

to achieve incapacitation for example
home detention, community work or
licence cancellation but the harshest form,
imprisonment, is also the most effective.
Incapacitation
Incapacitation relates primarily to the third
purpose under the Crimes (Sentencing Procedure)
Act: to protect the community from the offender.
It involves making the offender incapable of
committing further offences. Different penalties
can be applied to achieve incapacitation for
example home detention, community work or
the likelihood of the individual person reoffending

should be considered in each case to ensure the
sentence is not unnecessarily excessive. There will
of course be certain offenders for who incapacitation is more clearly justied in the interests of
incapacitation
to make an
offender incapable
of committing
further offences
by restricting their
freedom
protecting the community, for example serial killers

requiring imprisonment, or serial drink-drivers
requiring licence cancellation.
licence cancellation but the harshest form,

none of these can totally prevent further offences,
their purpose is to restrict freedom as much as
necessary to prevent the likelihood of the offender
committing another offence.
One of the dangers of incapacitation is the
uncertainty about which offenders are likely to
R EVI EW 4 . 2
1 Identify the main purposes of sentencing in
C rim e
imprisonment, is also the most effective. While
NSW.
2 Explain the role of retribution in the legal
system.
3 Discuss the purpose of rehabilitation and its
role in the criminal justice system.
reoffend and which are not. Incapacitation is a
4 Describe in what circumstances incapaci-
severe penalty, so in the absence of other reasons,
tation might justify a higher sentence.
Fa c to r s a f fec t i n g a
se n t e n c i n g dec i s i o n
In addition to statute, relevant case law and the
circumstances and personal state of mind of
purpose considerations discussed above, a magi-
the offender)
strate or judge using their judicial discretion must
s whether the accused pleaded guilty
take into account individual factors the facts of
s whether the offender assisted law enforcement
the offence, the circumstances and seriousness of

the offence and certain subjective factors about
the offender themselves. Part 3 of the Crimes
authorities
s a victim impact statement from victims of the
offence (discussed later in this section).
(Sentencing Procedure) Act 1999 (NSW) sets out
s Section 21A of the Crimes (Sentencing Pro-
numerous factors for judicial ofcers to consider.
cedure) Act lists the aggravating and mitigating
These include:
factors that are to be taken into account. These
s aggravating factors, which are circumstances
are extremely important in determining a
that make the offence more serious and can
sentence.
lead to an increased sentence
Aggravating and mitigating factors require a
s mitigating factors, which are circumstances
careful balance and will usually involve arguments
that make the offence less severe and can lead
from both the prosecution and defence. Not all
to a reduced sentence
aggravating and mitigating factors automatically
s any other objective or subjective factor that
mean an increased or reduced sentence their
affects the relative seriousness of the offence
relevant importance will depend on the circum-
(objective factors refer to the circumstances of
stances of each case. For younger offenders
the crime, while subjective factors refer to the
for example, personal circumstances might be
aggravating factors
circumstances that
make the offence
more serious and can
lead to an increased
sentence
mitigating factors
circumstances that
make the offence
less severe and can
lead to a reduced
sentence
victim impact
statement
a written statement
by the victim or
victims family about
the impact the crime
has had on them,
heard at the time of
sentencing
73
important to the possibility of rehabilitation, but

if the offence is particularly severe or extreme it
might outweigh those considerations.
Aggravating factors
Aggravating factors are factors that somehow
make the offence more serious or severe. They
are likely to result in an increased sentence being
imposed. Aggravating factors can relate to the way
the offence was committed, the characteristics of
the victim(s) or factors relating to the offender.
They usually make the crime less excusable or
Figure 4.5 When determining the sentence,

the judge will take into account not only the
circumstances of the actual crime itself, but also
the circumstances of the offender.
more appalling in some way. For example, if there

gratuitous violence
excessive amount of
violence carried out
without reason, cause
or excuse
remorse
deep regret or sorrow
for ones wrongdoing
was violence involved, particularly gratuitous
s the offender is of good character (e.g. character
violence (violence excessive or without any
references from teachers or employers) or does
reason) this is likely to increase the sentence.
not have any prior convictions
Some aggravating factors include:

s Offence: if the offence involved any violence,
s the offender is youthful or inexperienced and

was easily led
cruelty or weapons, or any threat of them; if it
s the offender pleaded guilty or assisted police
caused any injury, harm or damage; if it was
s the offender has shown honest remorse (e.g.
motivated by any hatred or prejudice; if it was
by making some compensation or indication)
committed in company or involved some type
or has good prospects of rehabilitation and is
of organised crime.
s Victim: if the victim was vulnerable (e.g. old,
young or disabled) or targeted for their occupa-
unlikely to reoffend
s the offender was somehow provoked or was
acting under duress.
tion (e.g. police ofcer, judicial ofcer, teacher,

health worker); if there were multiple victims.
s Offender: if the offender abused a position of
trust or authority when committing the offence,
for example a doctor to a patient or a teacher to
a student; if the offender is a re-offender or has
any prior convictions.
R ESEAR CH 4 . 1
Visit the NSW legislation website at: www.
legislation.nsw.gov.au.
Browse the current acts in force and nd
the Crimes (Sentencing Procedure) Act 1999
(NSW). Look at section 21A of the Act and
answer these questions:
74
Mitigating factors
1 Find three aggravating factors that relate to
Mitigating factors are the opposite of aggravating
2 List three aggravating factors that relate to
the victim of the offence.
factors, and involve circumstances that may work
the circumstances of the offence (for example
in the defendants favour by explaining the cause
way or place where it was carried out).
of their conduct. For example, showing that they
3 List three mitigating factors that relate to
honestly regret their actions or that they usually
the circumstances of, or reasons behind, the
have a good character and this was just a one-off
offence.
occurrence. Mitigating factors are usually subjec-
4 Find three mitigating factors relating to the
tive factors about the mind of the accused or their
offenders conduct after the offence was
behaviour and can include evidence that:
committed.
McCartney is a recent case in
Aggravating factors included
The offender presented
the Court of Criminal Appeal
the nature and seriousness of
evidence that he had consulted
that looked at the appropriate
the offence and particularly the
an alcohol counsellor after
balance of aggravating and
impact on the victim. The judge
the offence and the judge
mitigating factors in sentencing.
considered a victim impact
expressed in sentencing that
statement and put weight on
this was relevant and that
assault. The offender, a 22-year-
the fact that her life and studies
the offender should be given
old male, had met the victim at
have been totally disrupted by
further help with alcohol to
a hotel and later a restaurant.
this event and she has suffered
assist his rehabilitation.
He then invited the victim
considerable distress.
The case involved sexual
home for drinks. The victim had
Mitigating factors included
The offenders appeal was

dismissed by the Court of
repeatedly told the offender that
that the offender was relatively
Criminal Appeal, which stated
she would not have sex with him.
young, had no criminal history
that the judge had not erred in
Both were intoxicated and when
and was unlikely to reoffend.
consideration of the sentencing
the victim lay down to sleep, the
The offender was in steady
factors. The panel of three
offender sexually assaulted her.
employment as a carpenter
judges stated that the sentence
in a supervisory position, and
already fell within lowest
and convicted to two years
strong character references
range of available sentences
and six months imprisonment.
from his friends and employer
for the offence, which carries
The offender appealed against
were given. However, the judge
a maximum of 14 years, and
the sentence on the grounds
noted that even people of the
determined that the sentence
that it was too severe and did
best character sometimes make
should not be altered.
not properly balance all the
mistakes and commit offences.
sentencing factors.
The judge also reduced the
The offender was found guilty
In sentencing the offender, the
sentence signicantly (by 16.6%)
judge referred to general
due to the offender having
deterrence as a purpose of the
pleaded guilty.
sentence, stating that it is an
C rim e
ca s e s p a ce
McCartney v R [2009] NSWCCA 244
The offender also argued
important responsibility of the
that intoxication had affected
court to send a message to the
his judgment and contributed
community generally that sexual
to the offence. The judge
assault is not acceptable. The
considered this and stated
offender appealed that too much
rmly that intoxication was
weight was given to the purpose
not a mitigating factor and did
of deterrence. However, the
not excuse the behaviour. In
judge stated that deterrence was
particular, it was pointed out
only a very strong consideration
that the offender had managed
and not applied over and above
to drive his utility truck back to
all other purposes.
the house.
75
The role of the victim in sentencing

Many crimes involve a victim who suffers some
and only if the court considers it appropriate. They
kind of harm as a result of the offenders action.
are presented after the offender is found guilty
This can include a person who is directly harmed,
but before sentence is passed. The statements can
for example a case of assault, or indirectly
influence the final sentence.
affected, such as the family of a person who has

been killed.
Victim impact statements relate to the personal

harm to the victim and might include physical or
Victims can be involved in the criminal trial
psychological harm. The statement can also
process in a number of ways, from reporting a
include reports, such as a medical report, or dia
crime and assisting police through to testifying at
grams or pictures, for example in the case of child
trial as a witness and submitting a victim impact
victims. If the statement is given by the family, it
statement. The victims role can sometimes be very
will relate to the impact the death has had on
difficult, for example in cases of sexual assault,
them.
where confronting or distressing questioning will

often be required.
Victim impact statements can be controversial

because they can be very subjective yet have a
In NSW, victims of crime are recognised and
significant effect on sentencing. Supporters argue
guaranteed certain rights under the Victims Rights
that they provide an important opportunity for
Act 1996 (NSW). The Act contains a Charter of
victims to express themselves in the criminal pro
Victims Rights which requires, among a number of
cess. If the offender is able to submit personal cir
things respect for a victims dignity, victims com
cumstances in mitigation of their sentence, then
pensation, protection from the accused, protection
the victims personal circumstances should also be
of identity and certain rights to information and
able to be considered.
assistance during the criminal process. The charter
Statements by family members in cases of
also introduces victim impact statements to the
death are particularly controversial, with some
sentencing process. These are further outlined in
commentators suggesting they are irrelevant to
the Crimes (Sentencing Procedure) Act 1999 (NSW).
sentencing as they could lead to a court handing
A victim impact statement is a voluntary state
down a different punishment based on whether
ment written by the victim about the impact that
the victim was more or less loved by their family.
the crime has had on them. It allows the victim an
They might remove objective impartiality from the
opportunity to participate in the process by letting
judges process. However, victim impact statements
the court know how the crime has affected them.
can allow for family members to publicly express
The statements are only permitted for serious
their grief and anger. Importantly, they can be a
offences involving violence (actual or threatened)
confronting experience for the offender and so
or the death of or any physical harm to a person,
form a valuable part of the sentencing process.
Appea l s
appellant
in an appeal case, the
party who is making
the appeal
76
A person convicted of an offence and sentenced
has the right to appeal a case where, for example,
will have the right to appeal their case that is,
the sentence is too lenient. The party appealing is
apply to a higher court for review of one or more
known as the appellant or applicant. There are
decisions made in the lower court. The Crown also
two types of appeals in criminal cases:
MM [2002] NSWCCA 58). In that case, the Crown
sentence appeal.
appealed to the Criminal Court of Appeal against
In appeals against conviction, the appellant argues
the leniency of a sentence given in a very serious
that they did not commit the offence for which
case of aggravated sexual assault in company. On
they were found guilty. It is difficult for this type
appeal, the court decided to more than double
of appeal to succeed and it will usually involve
the original sentences that had been given to the
an argument that there was some legal error at
offenders, from five and six years imprisonment
law in the handling and prosecution of their case,
to 13 and 14 years imprisonment.
for example in the evidence admitted or in the
The final court of appeal in the NSW criminal
instructions of the judge to the jury. If successful,
justice system is the High Court of Australia. An
the appellant may be acquitted or the case may be
appellant will need to seek permission of the High
ordered for retrial.
Court to appeal. However, this leave will only be
Sentence appeals, on the other hand, are
appeal against
conviction
appeal where the
appellant (the
defendant) argues that
they did not commit
the offence for which
they were found guilty
sentence appeal
an appeal against the
severity or leniency of
a sentence
Crime
appeal against conviction
granted in rare circumstances.
appeals by the offender against the severity of

their sentence, or by the prosecutor against the
leniency of the sentence. Sentence appeals might
be made alone or in conjunction with an appeal
against conviction, and the judge may set aside a
sentence, vary a sentence or dismiss the appeal. A
sentence might be increased or reduced this is
a risk that the appellant must consider carefully in
making the appeal.
The type of appeal allowed will depend on
the court the offender was tried in and there are
various time limits and process requirements on
when a person can appeal. Any person convicted
or sentenced in a Local Court will have a right
of appeal to the District Court under the Crimes
(Appeal and Review) Act 2001 (NSW). A person may
also appeal directly to the Supreme Court if it is on
a question of law, but otherwise only by seeking
permission of the Supreme Court. The District
Court will usually conduct a rehearing of all the
evidence, usually by reading the documents from
the initial hearing.
A person sentenced in the District or Supreme
RESEARCH 4.2
A recent high profile criminal appeal in NSW
was the case of Bilal Skaf. The original offence
was committed in 2000 and various appeals
were heard up until 2008. Leave to appeal was
even sought from the High Court. Search the
internet for details of the case and answer the
questions below. Sources might include media
articles and transcripts of the most recent
cases, which can be found at: www.austlii.
edu.au.
1 What offence was Bilal Skaf charged with?
2 Identify which court the case was originally
heard in and what sentence was received.
3 Which courts was the case appealed to and
when?
4 Briefly outline at least one of the appeal
cases did it involve an appeal against
conviction or a sentence appeal, or both?
What was the outcome of the appeal?
Court can seek permission to appeal to the Court

of Criminal Appeal. The Crown might also appeal
against the leniency of a sentence. An appeal
against conviction or sentence appeal to the Court
of Criminal Appeal will only succeed if the person
can show that there was a legal error. This can
include imposing a sentence that was too severe
or too lenient. For example, refer to the case on
page 13 of Chapter 1 (R v AEM (Snr); R v KEM; R v
REVIEW 4.3
1 Discuss the different roles a victim can play
in the criminal trial process.
2 Identify the types of legislation in NSW that
relate to victims.
3 Describe the types of appeals a convicted
person or the prosecution can seek.
Chapter 4: Sentenc i n g a n d p u n i s h m e n t
77
Types of pena l t ies
caution
a formal warning
without charge issued
by police for less
serious offences
criminal infringement
notice
a notice issued by the
police outside of court
alleging a criminal
infringement and
requiring payment of
a ne
There are many different penalties that a court
For example, under the Young Offenders Act
can apply in sentencing. The Crimes (Sentencing
1997 (NSW), police can use their discretion to issue
Procedure) Act 1999 (NSW) lists the various penal-
a formal caution to young offenders between the
ties that can be imposed, from no conviction
age of 10 and 18 for a variety of minor offences
recorded, cautions and nes, through to imprison-
such as damaging property, stealing or a minor
ment and even deportation. The type of penalty
assault. It usually involves a formal conference
imposed will depend on how the magistrate or
situation where the offender, police, family and
judge ultimately weighs all of the factors discussed
support persons meet and discuss the crime. It
above, and cannot exceed the maximum penalty
includes discussion of the offence, its implications
specied for the offence.
and the reasons why it occurred. The caution is

kept on police record and the offender will be
Caution
explained of the implications if the person

reoffends.
Before a charge is laid and a person goes to court,
Another example in NSW is the Cannabis
police have the power to issue a person with a
Caution Scheme, where police may issue a caution
caution. A caution is a formal warning issued by
for minor offences involving cannabis if a person
police and is used for certain less serious offences
has no prior conviction. It does not apply to per-
as a way to avoid the court system, in the hope
sons caught supplying cannabis. It involves a
that the offender has learnt a lesson and will not
warning about the health and legal consequences
reoffend.
of cannabis use as well as certain counselling and

support services.
Criminal infringement
notice
A criminal infringement notice is another type of
sentence that can be issued by police outside of
court. Introduced in NSW in 2007, they allow police
to issue on-the-spot nes for certain offences,
including larceny of goods less than $300, offensive
behaviour or language and obstructing trafc.
The aim of criminal infringement notices is to
remove some of the burden on the criminal court
system by allowing police to issue nes for these
minor offences. Although they do represent an
increase in police powers, the notices are not nal
and offenders have the option of electing to have
the matter heard in court. The benet to offenders
is that no conviction is recorded by accepting the
Figure 4.6 Before a charge is laid and a person
goes to court, police have the power to issue a
person with a caution.
78
notice, but if the matter goes to court and the

offender is found guilty, the sentence is likely to be
more severe.
Conviction or no
conviction recorded
When a person is charged with an offence and
declared guilty by a judge or jury, that person is
considered convicted of that offence. In sentencing, the judicial ofcer has the option to record the
conviction against the offender, or pass sentence
with no conviction recorded.
A criminal conviction is a serious matter and
C rim e
can have an important impact on a persons life.

A person will be required to declare their criminal
convictions at various times in their life, for
example when applying for certain jobs, seeking
certain entitlements or applying for travel visas.
Normally, a conviction will be recorded and an
appropriate sentence imposed. For less serious
offences, particularly where they involve young
offenders or rst time offenders, a judicial ofcer
might choose not to record a conviction. Alternatively, the court may decide to record the
conviction, but impose no other sentence.
Figure 4.7 Fines are the most common

sentencing option used in Australia.
Fines
imprisonment or both, depending on the circum-
Fines are the most common sentencing option
(NSW), a person convicted of unlawful gambling
used in Australia. A ne is a monetary penalty
may be sentenced to up to 1000 penalty units
imposed on an offender and usually applies for
($110 000), imprisonment for up to seven years,
less serious offences such as driving offences or
or both.
stances. For example, under the Crimes Act 1900
breaches of local laws, or for particular types of
The effectiveness of a ne will depend on the
offences such as some violations of environment
type of offence and the personal circumstances
law or corporate law. For minor offences, a ne
of the offender for example a small ne for a
will usually be issued outside of court by the police
wealthy person might have little deterrent effect,
or by local law enforcement ofcers. Such nes
but a large impact on a person who is unemployed.
will, however, have the option of being challenged
A court may look at evidence of a persons nancial
in court.
circumstances when considering imposing a ne.
ne
monetary penalty
imposed for
infringement of a law
penalty units
a specied unit
of money used
in legislation to
describe the ne
payable
The maximum ne for an offence will be set out

in legislation and will be based on penalty units.
The value of a penalty unit is dened in s 17 of the
Forfeiture of assets
Crimes (Sentencing Procedure) Act 1999 (NSW) at
Where an offender has obtained money or prop-
the time of publishing the value is $110.
erty through their criminal activities, a court may
Although the most common nes are applied
order that the money or property be recovered.
for minor offences, they can also apply for more
This might include assets obtained through theft,
serious offences. For some serious offences, judi-
fraud or money laundering through to drug traf-
cial ofcers have the option of applying a ne or
cking or tax evasion. The court might order that
79
the assets are recovered in addition to any other
in cases where lesser penalties are not considered
form of punishment.
sufcient or effective, but imprisonment is con-
This power is given to the court via a number of
sidered too severe. Offenders are given a second
proceeds of crime
assets (money or
property) obtained by
an offender through
their criminal activities
acts known collectively as the proceeds of crime
chance to prove that they will not reoffend during
legislation the main act in New South Wales is the
the period imposed. If they do, they will be
Criminal Assets Recovery Act 1990 (NSW). The laws
returned to court to face much higher penalties.
forfeit
(also known as
forfeiture) loss of
rights to property or
assets as a penalty for
wrongdoing
an offenders nancial affairs and allow the assets
bond
a compulsory condition
imposed on the
offender for a period
of time, which the
offender undertakes to
comply with
probation
a type of good
behaviour bond where
the offender is released
on condition of good
behaviour but placed
under some form of
supervision, such as
daily reporting to a
probation ofcer
suspended sentence
a sentence of
imprisonment imposed
but suspended on
condition of good
behaviour
community service
order
where the offender
is sentenced to serve
specied hours of work
in the community
are wide-ranging and can allow examination of

to be restrained, seized and forfeited. The court
Probation
might also require the offender to pay an amount
In more serious matters, a court may decide to
assessed as the value of the proceeds.
order a bond with probation attached. Where
The laws are especially important in relation
probation is attached, the offender will be placed
to organised crime, where simply sentencing the
under the supervision of a probation ofcer for
offender will not be enough to deter the benets
a period of time. Under the terms of a probation
of the crime, especially where the offender is still
order, the offender will have to adhere strictly
able to enjoy those benets. Forfeiture of assets
to the conditions of the bond as above, but in
is difcult to relate to the traditional purposes
addition will be required to maintain regular con-
of sentencing, but involves making the offender
tact with the probation ofcer appointed by the
accountable and acting as a deterrent. Particularly,
courts. The court will impose this where there is a
it gives the law an avenue to target the primary
higher danger of reoffending, but where an order
incentive of most criminal organisations money.
for detention is deemed too severe. Breach of

probation is a serious matter and as with a bond,
Bond
the offender will be returned before the court and

risk facing a higher sentence.
A court may decide to issue an offender with a

bond, either alone or in conjunction with another
penalty. A bond is a compulsory condition im-
Suspended sentences
posed on the offender for a period of time. The
A suspended sentence is a serious penalty for an
offender undertakes to comply with the bond in
offender. It is imposed in place of imprisonment on
exchange for a more lenient sentence. A good
the condition that the offender enters into a good
behaviour bond involves the offender undertaking
behaviour bond for the same period of time. The
to be of good behaviour for the bond period (up to
imprisonment is suspended providing the offender
ve years). If the offender breaches the bond, they
complies with the conditions of the bond and the
will be required to come before court again and
offender is released to resume their normal life.
may be sentenced to more serious penalties, like
A court can impose a suspended sentence where
imprisonment. Other conditions imposed could
they are sentencing an offender to imprisonment of
include:
up to two years. Breach of the bond is very serious
s attending family counselling
and the court can revoke the bond and reinstate the
s attending anger management courses
original prison sentence, together with an additional
s avoiding visiting a particular place or associa-
sentence for breaching the bond.
ting with certain people

s attending drug or alcohol rehabilitation
s refraining from particular activities, such as
gambling.
80
Community service orders

A community service order is a penalty that can
A bond can be a signicant restriction on an off-
be imposed by the court instead of a period of
enders life and freedom. Bonds are usually used
detention or imprisonment, if deemed appropriate
C rim e
Figure 4.8 A sentence of imprisonment deprives a person of their liberty and removes them from the community.
for the offender. The orders involve compulsory
community. It will require careful consideration
supervised work in the community for up to 500
by a judicial ofcer of the purposes of sentencing
hours. The court will assess what work is most
as well as all the relevant factors of the case. All
suitable.
purposes may be relevant: deterrence, retribution,
Community service orders are available as a
rehabilitation and incapacitation. The magistrate
means of punishing and shaming the offender, while
or judge will consider the various forms of
allowing for rehabilitation by requiring a period of
imprisonment that can be imposed in NSW. Each
time spent making amends in the community for
form involves varying levels of severity, including
their wrongdoing. They have the benet of being
full-time imprisonment served at a correctional
cost-effective and benecial to the community as
centre, periodic detention or home detention.
a whole while still penalising the offender for the
If the court deems imprisonment appropriate to
offence. They also allow the offender a chance to
impose, the judicial ofcer will need to announce
rehabilitate outside the prison system while still
the total sentence as well as a non-parole period.
enjoying their freedom, and avoiding the harsher
The non-parole period is the minimum amount of
penalties of imprisonment that would otherwise
time the offender is kept imprisoned before being
be imposed.
eligible for release on parole. Unless there are

special circumstances, the non-parole period will
Imprisonment
be at least three-quarters of the total sentence.
Imprisonment is the most severe sentence that
that the offender is convicted of, but will usually
can be imposed in Australia and is considered a
be served at the same time. For example, if an
sentence of last resort. Section 5 of the Crimes
offender is sentenced to three years for one
(Sentencing Procedure) Act 1999 (NSW) makes this
offence and ve years for another, the total
clear, stating that: a court must not sentence an
sentence of ve years will usually be ordered. If
offender to imprisonment unless it is satised,
the offender is in remand, the sentence will also
having considered all possible alternatives, that no
take into account the amount of time the offender
penalty other than imprisonment is appropriate.
has already served.
A sentence of imprisonment deprives a person

of their liberty and removes them from the
A sentence will be imposed for each offence
correctional centre
commonly known as
a prison institution
where offenders are
held in custody for
the period of their
imprisonment
periodic detention
imprisonment
sentence where the
offender spends a
period of each week
or month in prison
and the rest of the
time at home
home detention
imprisonment
sentence where the
offender is conned
to their home under
certain conditions of
monitoring
non-parole period
a period of
imprisonment for
which parole cannot
be granted
parole
release of a prisoner
before the expiry
of an imprisonment
term, temporarily
or permanently, on
the promise of good
behaviour
The following media article discusses some of

the implications of imprisonment.
81
m e d i a cl i p
The recidivism of offenders

given suspended sentences:
A comparison with full-time
imprisonment
Source: NSW Bureau of Crime Statistics and
Research - Media Release
Release Date: 11 November 2009
Being sent to prison is no more effective

in reducing the risk of future re-offending
than being threatened with prison, the NSW
Bureau of Crime Statistics and Research has
found. In fact, if anything, being sent to prison
actually increases the risk of further offending.
The Bureau compared a group of offenders
given a suspended sentence of imprisonment
with a group of offenders given a sentence of
full-time imprisonment.
The prison and suspended sentence cases
were carefully matched on a large range of
factors including gender, Indigenous status,
age, socioeconomic disadvantage, jurisdiction
(Local or District), plea, offence type, offence
seriousness, number of concurrent offences,
number of prior offences, whether the
defendant had had a previous suspended
sentence, whether the defendant had a prior
juvenile offence and whether the offender had
a prior violent offence.
Separate analyses were carried out for
1661 matched pairs of offenders with a prior
prison sentence and 2650 matched pairs of
offenders who had no prior prison sentence.
Re-offending was measured via the
proportion of offenders convicted of a
further offence in each group. Offenders
were followed up from the date of sentence
(between 2002 and 2004) until their rst
reconviction or the end of 2008 (whichever
came rst).
In cases where the offender had no
previous experience of imprisonment, the
Bureau found no signicant difference in the
likelihood of re-conviction between those who
received a full-time sentence of imprisonment
and those who were given a suspended
sentence of imprisonment.
82
In cases where the offender had been

previously sent to prison, the Bureau found
offenders sent to prison were signicantly
more likely to re-offend than matched
offenders given a suspended sentence of
imprisonment.
Commenting on the ndings, the Director
of the Bureau, Dr Don Weatherburn, said
they were consistent with a growing body of
evidence that the experience of imprisonment
does not reduce the risk of further offending.
This does not mean we should abandon
prison as a sanction for offending, he
said. Prison might still be justied on the
grounds of general deterrence, punishment
or incapacitation. Our study suggests,
however, that it would be wrong to impose a
prison sentence on an offender in the belief
that it will deter the offender from further
offending.
R EVI EW 4 . 4
Read the media release from the
NSW Bureau of Crime Statistics and
Research above and answer the
1 Outline the main nding of the
Bureaus report.
2 Identify the two sentences that the
Bureau compared. How do these
sentences differ and why do you
think these sentences were chosen
for the study?
3 Critically evaluate the effectiveness
of traditional forms of sentencing in
light of the reports ndings. Refer
to the purposes of sentencing in
your response.
Home detention
For certain non-violent offences where a person
is sentenced to 18 months imprisonment or less,
the offender might apply to serve the sentence in
home detention. Home detention is a less severe
option than full-time imprisonment in a correctional facility, and allows the offender to serve
their sentence while conned to their own home.
Figure 4.9 Home detention is a less severe

option than full-time imprisonment, but may be
subject to certain controls such as the use of
electronic monitoring equipment.
The offender will need to be assessed for suitand compliance with the order is supervised by
Periodic detention is less severe than full-time
electronic monitoring of the offender. A probation
detention and allows the offender to continue
and parole ofcer will also be assigned to monitor
to live in the community, for example to go to
the order and conduct random visits.
work, continue education or spend time with
Certain conditions may be added, for example
their family, for part of the time, but to return to
allowing the offender to go to work or get medical
prison on the allocated days. A common form of
treatment outside the home. Particular controls
periodic detention is weekend detention, where
and restrictions might also be put in place (such as
for example the offender will be able to go to work
the use of an electronic monitoring system). Home
for the week but return to the correctional facility
detention orders offer many benets they are
for weekends.
more cost-effective than full-term imprisonment,
Periodic detention can help to serve the purpose
they provide an opportunity for rehabilitation,
of rehabilitation for offenders by allowing them to
they keep the offenders out of the prison system
maintain certain responsibilities but ensuring they
and allow normal family activity to take place.
still serve out their period of punishment. It would
Home detention is likely to be more contro-
obviously be inappropriate where, for example,
versial for more serious offences, especially where
incapacitation is the purpose of the sentence. For
a victim is involved or there is a risk of reoffending.
certain offences, including some sexual offences,
For this reason, home detention orders cannot
judicial ofcers are unable to order periodic
be used for violent or sexual offences, including
detention.
C rim e
ability before a court can grant home detention
murder and manslaughter, sexual assault or rearms offences. They are also restricted if the
offender has a history of any violent offences or
Diversionary programs
if they live at the same address as the victim of
A diversionary program is a court program set
their offence.
up to divert certain offenders away from more

traditional criminal processes in the hope that
Periodic detention
they can be rehabilitated and encouraged not
Periodic detention is a form of imprisonment
particular offences or types of offenders. They
sentence that allows the offender to serve a period
have been established in an attempt to target the
of time each week or month in prison, rather than
causes of offending and improve offenders future
the whole time. It can only be ordered where the
prospects by assisting individual needs.
to reoffend. The programs are only available for
sentence of imprisonment is less than three years.
Diversionary programs usually involve a magi-
If an offender breaches the conditions of their
strate of the Local Court adjourning a case while
periodic detention, the court may order them to
the offender attends some form of rehabilitation
serve the sentence full-time.
or special hearing. Sometimes called therapeutic
diversionary program
an alternative to
the traditional court
system, diversionary
programs focus on
therapeutic justice
and rehabilitation of
offenders
83
justice, the programs may include education,
less likely to be reconvicted than offenders given
medical or psychiatric treatment, rehabilitation or
traditional sanctions. Participants who completed
social welfare assistance. Many diversionary pro-
the program were:
grams are devised to support offenders who have
s 37% less likely to be reconvicted for any
committed crimes due to drug and alcohol abuse.

The Drug Court is a specialised court and is
one of the most important diversionary programs.
Established in 1999, it was the rst of its kind in
Australia and aimed to rehabilitate non-violent
offence
s 65% less likely to be reconvicted for an offence
against the person
s 57% less likely to be reconvicted for a drug
offence.
drug addicted offenders. Over 150 offenders a year

complete its program. It emerged after growing
disenchantment with the traditional criminal
R ESEAR CH 4 . 3
justice system and its effectiveness in providing
The website of the NSW Crime Prevention
long-term solutions to cycles of crime and drug
Division outlines some of the major
abuse. It has since proved a great success and
diversionary programs currently in use in
attracted international renown.
NSW: www.lawlink.nsw.gov.au/lawlink/cpd/
The NSW Bureau of Crime Statistics and

Research released a report in 2008 which
ll_cpd.nsf/pages/CPD_projects.
Visit the website and report on two
assessed the effectiveness of the Drug Court. It
diversionary programs:
found clearly that those who had completed the
1 Outline the types of offences and offenders
program were less likely to be reconvicted than

offenders sentenced with traditional penalties.
Among the reports most important ndings, it
was found that the Drug Court is more cost-
targeted by the diversionary program.

2 Describe the methods used by the program
to assist offenders.
3 Referring to some of the traditional penalties
effective than prison in reducing drug-related
available, evaluate whether you think the
recidivism. Participants were also signicantly
program is effective in achieving justice.
Alternative methods of sentencing

circle sentencing
a form of sentencing for
some adult Aboriginal
offenders where
sentencing is conducted
in a circle of local
community members
and a magistrate
Recent developments in the law have introduced
Circle sentencing is based on Aboriginal cus-
new forms of sentencing targetting particular
tomary law and more traditional indigenous forms
types of offenders. Like diversionary programs,
of dispute resolution. It is a form of diversionary
restorative justice
a form of sentencing
involving a voluntary
conference between the
offender and the victim
of the crime
sentencing and restorative justice.
84
they attempt to combat some of the issues
program away from more usual criminal senten-
associated with recidivism and more traditional
cing procedures. It involves a circle of community
circle
members and a magistrate sitting in a circle to
forms
of
sentencing.
They
include
discuss the offenders crime and tailor the most

appropriate sentence for the offender. It has the
Circle sentencing
full sentencing powers of a court.
Circle sentencing is an alternative court for sen-
Aboriginal people in the sentencing process in
tencing adult indigenous Australians. The Circle
order to make it more meaningful to the offender
Courts are designed for repeat offenders and
and improving Aboriginal condence in the
offenders of more serious crimes.
criminal justice system. It also aims to improve
Circle
sentencing
directly
involves
local
C rim e
Figure 4.10 Circle sentencing is based on Aboriginal customary law and more traditional indigenous
forms of dispute resolution.
understanding between Aboriginal communities
Australian restorative justice models was started
and the courts and reduce recidivism among
in Wagga Wagga in 1991, but it has since become
offenders.
a valuable part of the rehabilitation process. It is
Recent evaluation of circle sentencing has
now an important program run by the Restorative
shown that the programs objectives are being
Justice Unit of the NSW Department of Corrective
met. However, improvements are still being made
Services and involves safe and private conferen-
in some areas, including improving participation
cing and mediation services run by a facilitator.
and support services.
There are many stories of victims that have

found the restorative justice program signicantly
Restorative justice
helpful for recovery from a crime. The effective-
Restorative justice is another alternative to tradi-
Australian studies based on youth conferencing
tional sentencing methods that involves bringing
initiatives have shown a 1520% reduction in re-
together the offender and the victim of the offence.
offending is possible. However, it has been sug-
It offers the chance for the offender to take res-
gested that restorative justice programs will mainly
ponsibility for their actions and the impact they
relate to minor infringements or youth justice and
have had on others, while giving victims a voice
are unlikely to expand greatly beyond this role.
ness of programs for offenders is unclear, but
and an opportunity to confront the offender and

work out a way to repair the damage done. Victims
are able to ask questions about the offence in an
attempt to move forward and the offender is given
the opportunity to apologise or make amends for
their act.
R EVI EW 4 . 5
1 Describe how circle sentencing differs from
traditional sentencing procedures.
2 Evaluate the role alternative methods
Restorative justice sessions can be confronting
of sentencing can play in the criminal
and difcult for both parties involved. They are
justice system. What advantages and
voluntary and will usually accompany another
disadvantages do they offer over traditional
form of traditional sentencing. One of the rst
forms of sentencing?
85
Pos t - se n t e n c i n g co n s i de ra t i o n s
Once an offender is sentenced to a community-
date more than one type of classication. Offenders
based order or non-custodial sentence, they will
will be classied according to different factors like
need to serve out the terms and conditions of that
the seriousness of their crime, their prospects for
sentence or be returned to face court for a review
rehabilitation or whether they have displayed good
of their sentence.
behaviour during previous sentences.
When an offender is sentenced to a period of
Maximum security centres, such as the Goul-
imprisonment, however, they will be sent to an
burn Correctional Centre for men or the Silver water
assessment centre where they will be given a
Womens Correctional Centre, hold offenders who
security classication. They will then be sent to
committed the most serious crimes and whose
an appropriate correctional centre, more com-
escape would be highly dangerous to the public.
monly known as prison, where they will serve
In medium security prisons like the Tamworth
out their sentence. In NSW, the administration
Correctional Centre, inmates can move around
of imprisonment and other sentences once they
more freely, but within high walls or security
have been imposed is governed by the Crimes
fences. In minimum security centres, such as the
(Administration of Sentences) Act 1999 (NSW).
Silverwater Correctional Centre, there are fewer
Correctional centres are managed by Corrective
barriers to escape and inmates will be allowed
Services NSW, which is the responsible govern-
more open conditions.
ment agency.
l e g al i nfo
Security classification
Protective custody is provided in NSW correctional
Correctional centres are divided into three classi-
centres to offenders who are vulnerable to attack
cations: maximum, medium and minimum
from other prisoners. Correctional authorities have
security. Some centres will be able to accommo-
a duty of care for the safety of offenders in their
NSW Community Offender Services Statistics 20082009

Corrective Services NSW oversees 31 correctional
centres (8 maximum, 13 medium and 10 minimum
security) and 8 periodic detention centres.
Full-time imprisonment:
s On a daily basis, NSW correctional centres hold

between 9000 and 10 000 full-time inmates.
s Of these, only 7% are female.
s The majority of inmates (36%) are between
2534 years old.
s Over 20% of inmates in NSW are Indigenous
Australians.
s The average daily cost of full-time custody per
inmate is $225.
86
Protective custody
s This equates to a cost of over $80 000 per

inmate per year.
Community-based orders:
s The daily cost for a community-based offender

is $12.
s There are 18 000 people supervised under
community based orders on any day.
Periodic detention:
s There are under 1000 offenders under periodic

detention.
s The daily cost for periodic detention is $187.
custody. This includes protecting offenders from
The parolee (released offender) is required to
the risk of physical violence from other offenders.
report to an ofcer as directed, and the ofcer will
The purpose of sentencing an offender to im-
visit the parolees residence and make inquiries in
prisonment is to isolate them from the community,
the community to ensure the parolee is meeting
whether for the purpose of incapacitation, deter-
the conditions of their early release. These condi-
rence or otherwise. But this does not include
tions include good behaviour bond, not reoffending
subjecting offenders to high risk of physical harm
during the parole period, gaining employment or
or to cruel or inhumane conditions. Offenders who
possibly avoiding certain company or a specied
have been placed into custody for certain offences
public area.
that other inmates deem offensive, such as

offences against children, might be under threat of
Additional conditions may apply, such as receiving specied counselling or other treatment.
harm from fellow inmates and may require periods
All these programs are intended to assist
of protective custody. Certain offenders, such as
offenders in their process of gradual reintegration
police ofcers or politicians might also be vul-
into the community after released from imprison-
nerable to attack due to their history and may be
ment. They also aim to ensure an offender will not
isolated in a particular wing of a prison.
reoffend.
Parole
R EVI EW 4 . 6
1 Look at the statistics for NSW prisons
Parole refers to the conditional release of a prisoner
provided in the Legal Info section on
from custody after the completion of the minimum
page 86, as well as the summary report from
term of the sentence; that is, the non-parole period
the NSW Bureau of Crime Statistics in the
set by a judicial ofcer at sentencing.
Media Clip on page 82. Using the available
The fundamental purpose of parole is to provide
statistics, critically evaluate the effectiveness
the offender with an incentive for rehabilitation
of imprisonment as a form of sentence.
through the prospect of early release. It is believed
2 Identify the duty of the state to offenders
that this will increase the likelihood of the overall
in custody. How can an offender under
reform of offenders and encourage better prisoner
threat of violence be protected?
discipline within the prison setting.

When released on parole an offender is put
under the direct supervision of a parole ofcer.
C rim e
Figure 4.11 Correctional centres are divided into three classications: maximum, medium and minimum
security. Parramatta Correctional Centre is an example of a medium security facility.
3 Describe how an offender can achieve

parole. What is the importance of parole in
the criminal justice system?
87
Preventative and
continued detention
s to ensure the safety and protection of the

community
s to facilitate the rehabilitation of serious sex
preventative
detention
detention of a person
in custody without
having committed any
offence, in case of
some future harm that
they may commit
Preventative detention is possibly the harshest
without actually having committed or being found
There are both state and federal databases of
continued detention
on-going detention
of a person after they
have already served
the full sentence for
their offence
guilty of any offence. The purpose may be incapa-
sexual offenders who have been convicted of
citation of a person considered to constitute a
certain sexual offences. The Australian National
signicant threat to community safety, or rehabi-
Child Offenders Register (ANCOR) and the NSW
litation of the offender.
Child Protection Registry are web-based systems
offenders.
form of sentence. It is also the most controversial.

Preventative detention involves imprisonment of a
person for some type of future harm that they
may commit. The person is detained in custody
There are two types of preventative detention:

post-sentence
preventative
detention,
which
Sexual offenders
registration
designed to assist police with the registering and

case management of child sexual offenders.
occurs when a person has already been sentenced
Established under the Child Protection (Offenders
and has served that sentence, and preventative
Registration) Act 2000 (NSW), persons convicted
detention without charge, which can occur at any
of a nominated violent or sexual offence against
time. All types of preventative detention orders are
a child are required to register at the local police
highly contentious as they act to remove a persons
station within 28 days of sentencing or release
basic legal rights without due criminal process.
from custody, or after being found guilty of a
The most severe type of preventative detention
registrable offence in another jurisdiction. When
is legislation that is targetted at individual offen-
a sex offender is paroled they are served with a
ders. This type of law was held to be unconstitu-
notice to inform them that they need to register.
tional in the High Court case of Kable v DPP (1996)
Adult offenders must register for a minimum
189 CLR 51. However, most Australian jurisdictions
period of eight years, and juvenile offenders four
have legislation enabling general powers of pre-
years. Offenders will be required to provide a range
ventative detention in restricted circumstances.
of personal information as well as travel plans and
For example, in NSW, the controversial Terrorism
to keep this information regularly up to date. At
(Police Powers) Act 2002 (NSW) allows police to
the end of 2009, there were over 10 500 offenders
make an application to detain a person in custody
registered nationally.
for a maximum period of 14 days if they reasonably

believe the suspect will engage in a terrorist act.
Sexual offender registries are justied on the

basis of the protection of the community. However,
Post-sentence preventative detention, on the
the registries are sometimes contentious as they
other hand, involves detaining offenders after
target certain offenders long beyond the period of
they have already served their full sentence for the
the sentence they have been required to serve, and
offence they committed. New South Wales has a
deny the chance for the offender to move on in the
scheme of post-sentence preventative detention
rehabilitation process. The severity of the original
under the Crimes (Serious Sex Offenders) Act 2006
crime as well as the on-going risk of reoffending in
(NSW) that allows for the continued detention of
the community are argued to out weigh the
offenders serving a sentence for a serious sexual
imposition on the offender.
offence. The Attorney-General can apply to a court

for continued detention of the offender if satised
to a high degree of probability that the offender
88
Deportation
is likely to commit another offence. The allowable
Under the Migration Act 1958 (Cth), a migrant living
purposes of the continued detention are:
in Australia who is not a citizen may be deported
if they are tried and convicted of a criminal
that can be resolved by moving it elsewhere, but
offence. Under ss 200 and 201 of the Act, if a non-
without any follow-up or support once outside the
citizen commits an offence for which they receive
jurisdiction. For example, a person may have been
a custodial sentence for 12 months or more in
living in Australia for decades yet still fall under
their rst 10 years of residence, the responsible
the requirements of the section. The person may
minister for migration may decide that they should
be removed from family and friend to a country
be deported from Australia.
they know nothing about or a language they do not

speak, with no support networks in place to assist
in their rehabilitation.
If such a person is also found to constitute a
cised because the circumstances of such cases will
threat to Australian security or has been convicted
usually be severe. They are controversial because
of a serious offence, they may be deported as well
they appear to harshly treat a person as a problem
as prohibited from ever returning to Australia.
c as e s tud y
under this section will often become highly publi-
C rim e
Deportation is an extremely serious effect of a

sentence of imprisonment. Cases of deportation
Robert Jovicic: The stateless man

Robert Jovicic was born on
to deport non-Australian
visa and allowed to return to
4 December 1966 in France to
citizens convicted of an offence.
Australia. Jovicic returned to
Serbian parents. At the age
Mr Jovicic was consequently
Australia on 9 March 2006,
of two, his family migrated to
held in custody before being
uncertain about his residency
Australia, where he became an
deported to Belgrade, Serbia.
status. This state of uncertainty
Australian permanent resident.
Shortly after his arrival it became
continued for almost a year,
Like nearly one million Australian
clear that Mr Jovicic was ill-
until he was granted a two-year
residents eligible for Australian
equipped to cope with life in
special protection visa.
citizenship, Mr Jovicic never
Serbia. He had no knowledge
ofcially became an Australian
of the Serbian language and no
Labor Minister for Immigration
citizen.
working visa prompting the
and Citizenship, Senator Chris
Serbian government to declare
Evans, granted a Permanent
Australia, Mr Jovicic developed
him stateless, meaning that he
Resident visa to Mr Jovicic.
an addiction to heroin and by
had no home country. Around
2004 he had been charged with
18 months after his arrival,
more than 100 criminal offences
Mr Jovicic was discovered
(mainly burglary and theft) in
homeless and ill sleeping outside
order to support his addiction.
the Australian Embassy in
After many years living in
In June 2004, Mr Jovicics
Belgrade. At this time, his case
permanent residency was
became widely publicised in the
cancelled under ss 200 and 201
Australian media.
of the Migration Act 1958 (Cth)
In February 2008, the new
In March 2006, after much
by the then Federal Immigration
media scrutiny and public
Minister, Philip Ruddock. The
debate, Senator Amanda
cancellation was based on the
Vanstone announced that Jovicic
ministers discretionary power
would be given a special purpose
Figure 4.12 In 2004, Robert

Jovicic was deported to Serbia
after having lived in Australia
since the age of two.
89
C h a p te r s u m m a ry
90
s Sentencing requires careful balancing of many

different factors.
s The main purposes of sentencing are
deterrence, retribution, rehabilitation and
incapacitation.
s The main factors considered in sentencing are
aggravating factors and mitigating factors.
s A victim may be involved in sentencing
through a victim impact statement.
s Courts have a large variety of penalties that
can be imposed.
s A judicial ofcer may only impose a sentence
of imprisonment where no other penalty is
appropriate.
1 Which of the following is true of restorative

justice?
a it brings together the offender and the
victim so that the offender can see the
impact they have had on the victim
b it is the most severe form of punishment
c it gives the offender the opportunity to
confess to the crime
d it aims to send a message to the rest of
society that the law is serious about crime
2 The victims role in sentencing by providing a
victim impact statement is:
a to tell the offender exactly what they think
of them
b to inuence the judge into giving the
maximum penalty
c to make sure justice is achieved
d to express the effect the crime has had
upon their life
s Imprisonment may increase the risk of an

offender reoffending.
s There are alternatives to full-time
imprisonment, including periodic and home
detention and diversionary programs.
s Alternative methods of sentencing include
circle sentencing and restorative justice.
s Post-sentencing considerations are an
important part of sentencing considerations.
s Certain prisoners may be detained beyond
the end of their sentence.
s Sexual offenders may be required to register
their details for a minimum of eight years.
s Deportation is a serious risk after
imprisonment if a person is a non-citizen.
3 Which of the following is not likely to be a

mitigating factor?
a the offender assisted the victim after the
offence
b the offender had experienced similar
treatment in their life
c the offender was under the inuence of
alcohol or drugs
d the offender shows contrition or remorse
4 What is the main purpose of the Home
Detention Act 1996 (NSW)?
a to keep certain offenders out of jail while
still severely restricting their lifestyle
b to shame offenders
c to inict pain and suffering on offenders
d to prevent others from being harmed by
offenders
5 Imprisonment has been shown to:
a reduce recidivism
b reduce reoffending
c increase reoffending
d increase rehabilitation
C rim e
C h a p te r s u m m a ry ta s k s
1 Explain the difference between aggravating

and mitigating factors, including examples.
How do these factors t into the criminal
process?
2 Choose three types of penalties. Describe
each penalty and evaluate how it corresponds
with the purposes of sentencing.
3 Critically evaluate the role of imprisonment in
the criminal justice system.
4 Analyse one alternative to traditional means
of sentencing and describe its effectiveness in
the criminal process.
91
CHAPTER 5
key ter ms/vocab ul ary
Young offenders
92

s discuss a range of issues surrounding the age of
criminal responsibility
s explain why the criminal justice system treats young
offenders differently
s assess the effectiveness of the criminal justice system
when dealing with young offenders.
caution
conclusive presumption
control order
doli incapax
grave adult behaviour
interview friend
juvenile justice
juvenile justice centre
rebuttable presumption
right to silence
warning
youth justice conference
Bail Act 1978 (NSW)

Children (Criminal Proceedings) Act 1987 (NSW)
Children (Protection and Parental Responsibility)
Act 1997 (NSW)
UN Convention on the Rights of the Child
Crimes (Sentencing Procedure) Act 1999 (NSW)
Law Enforcement (Powers and Responsibilities)
Act 2002 (NSW)
R v LMW [1999] NSWSC 1343

R v Cortez, CE, ME, IKEA & LT, (unreported,
NSWSC, Dowd J, 3 October 2002)
R v GDP (1991) 53 A Crim R 112
R v Pham & Ly (1991) 55 A Crim R 128
od d l a w
Historically, children and young people
convicted of offences were treated in the same
way as adult offenders. For example, the Piracy
Act 1714 of Great Britain enacted the penalty
of transportation for certain crimes. Originally
intended for transport of local offenders to
America, it was later the legal means used to
sentence convicted offenders, or convicts, to
new penal colonies in Australia.
One convict, Mary Haydock, was a child
of 13 years old when sentenced. After the
death of her parents, she was forced to work
as a house servant by her grandmother and
ran away. She was arrested and charged for
possessing a horse that was not her own. At
the time of her arrest she was dressed as a boy
and using an alias. The judge in Marys case
sentenced her to seven years transportation to
the Colony of New South Wales. She arrived in
Sydney in 1792 and was assigned to work as a
nursemaid.
Two years later, Mary married a free man,
Thomas Reiby, who acquired farmland and
started up businesses in and around Sydney.
The businesses were very successful and after
her husbands death, Mary Reiby took over and
expanded the businesses and investments, and
became a founding member of the Bank of New
South Wales (now known as Westpac). She
was also an educator and charity worker. Mary
Reiby, former young offender and child convict,
is now featured on the Australian $20 note as
one of Australias founding entrepreneurs.
Cha pter 5: Young offenders
C rim e
rel ev ant l aw
93
You n g o f f e n de r s a n d t he l a w
juvenile justice
the area of law and
policy concerned with
young people and the
criminal justice system
Any person can commit a criminal act, providing
may be a different level of protection or assistance
they have the physical capability to do so.
required. The area of law and policy concerned
However, the law treats offenders differently when
with young people and the criminal justice system
they are less than 18 years of age. In most cases,
is often referred to as juvenile justice.
the community and the law recognise that for
The reasons behind any young person becom-
children and young people who have not reached
ing involved in crime are varied and complex. For
full adulthood, there may be a different level of
example, NSW Juvenile Justice suggests various
responsibility involved in their actions, or there
possible factors such as:

s poor parental supervision
s drug and alcohol abuse
s neglect and abuse
5000
s homelessness
s negative peer associations
4000
s poor personal and social skills or

3000
s difculties in school and employment.

In NSW, people under 18 years old who are in-
2000
volved in crime represent only a small proportion

1000
of the population. New South Wales Juvenile

Justices annual report for 200809 states that, for
0
9697 9798 9899 9900 0001 0102 0203 0304 0405 0506 0607
Juveniles
Adults
every 1000 people in NSW aged 1017:

s 13.5 had a criminal matter nalised in the
Childrens Court
s 11 were convicted and/or sentenced in these
Figure 5.1 Juvenile and adult offenders from 199697 to 200607,

by age group (per 100 000 of that age group per year). Source:
Australian Institute of Criminology.
nalised matters
s 3.3 were given sentences requiring the department to supervise them in their community,
and
8000
s 1 was sentenced to detention.

There are two recognised approaches that can be
6000
taken by the law with regard to young offenders

and juvenile justice. These are:
4000
s the welfare model and

s the justice model.
2000
The welfare model assumes that the causes of

crime can relate to different factors, such as social
and psychological factors, or the state of the eco9697 9798 9899 9900 0001 0102 0203 0304 0405 0506 0607
Male
Female
nomy. Under this model, there is a need to protect

children and young people from the causes of
crime and to assist in their rehabilitation if an
Figure 5.2 Juvenile offenders from 199697 to 200607, by sex (per

100 000 juveniles of that sex per year). Source: Australian Institute of
Criminology
94
offence is committed. By comparison, the justice

model takes a tough on crime stance. A more
traditional model, the justice model generally pro-
offenders of any age, and emphasises

punishment
and
deterrence
over
rehabilitation.
To some extent, the juvenile justice
system uses a combination of both of
REVIEW 5.2
Both have had significant effects on
younger people and the law, and this is 1 Compare the juvenile offender
especially important in light of the high
rates of males to females in the
rates of young offenders when compared
graph above and describe the
to adult offenders. See Figures 5.1 and
differences.
5.2, then complete the review activities.
2 Visit the website of the
these approaches when dealing with
Australian Institute of
offenders. This is evident in the different
Criminology: www.aic.gov.au/
approaches to legislation that deal with

young offenders in NSW, which will be
explored throughout this chapter. There
are promising aspects to the juvenile
justice
system
that
maximises
an
REVIEW 5.1
1 Compare the juvenile offender rate
shown in figure 5.2 to that of adults.
2 Describe the trend of juvenile
offenders chance at rehabilitation, but
offender rates to that of adults.
elements of the get tough approach
3 Explore some possible reasons for
have also influenced current laws.
publications/current%20series/
facts.aspx. Find the latest
report of Australian Crime:
Crime
motes a zero tolerance approach towards
Facts and Figures and identify

any changes in the trend from
Figure 5.1 or 5.2. Describe and
evaluate any differences.
the difference in the rate.
Age o f c ri m i n a l respo n s ib i l i t y
The law treats children and young people differ
imprisoned, flogged, transported to colonies, like
ently from adults. There are a number of reasons
Australia, or even executed. In the year 1814, up
for this, including:
to five children under the age of 14 were convicted
preventing children and young people from
and hanged at the Old Bailey in London. The
being exploited
protecting them from the consequences of
making uninformed decisions
protecting others from being disadvantaged by
dealing with a person who is a minor.
youngest was only eight years old.

For infants and very young children, however,
the law sometimes recognised that they might not
yet be capable of crime, physically or mentally.
Legal opinions and laws dating as far back as
The criminal justice system recognises that
694CE, in the Laws of King Ine of Wessex, had
children and young people can be less responsible
suggested that infants might be incapable of
than adults for their offences, due to their relative
committing wrong, or that they might not have
youth or inexperience. This is most evident in
sufficient knowledge of good and bad. This usually
the way the law approaches the age of criminal
applied to infants and children under seven years
responsibility, known as doli incapax.
old. Mental capacity is particularly important in

establishing the intent, or mens rea of the crime
Historical background
and it was difficult to show that a child had the

necessary intent.
Historically, children and young people who com
Under the common law, the term describing
mitted offences were treated in more or less the
a child as not legally responsible is the Latin
same way as adult offenders. Children as young
term doli incapax, meaning incapable of wrong.
as seven or eight years old were often convicted
Doli incapax is a presumption that children are
of serious criminal offences. Children could be
incapable of having criminal intent.
doli incapax
incapable of wrong;
the presumption
that children under
a certain age cannot
be held legally
responsible for their
actions and cannot be
guilty of an offence
Chapter 5 : Yo u n g o ff e n d e r s
95
By the end of the 19th century, there was a

growing awareness that treating children in the
same way as adults did not take into account a
childs lack of life experience, uninformed and at
times poor decision making, and socio-economic
circumstances all of which differentiates them
from adults. Because of this the age of criminal
responsibility was reconsidered.
By the late 20th century, most countries had
adopted a minimum age of criminal responsibility,
though this varied. In 1989, the United Nations
established a treaty on childrens rights known as
the Convention on the Rights of the Child. It included
many aims and requirements for the treatment of
children, including certain rights for children under
the criminal law. Particularly, article 41(3)(a) of the
treaty encouraged establishment in all countries
laws of a minimum age below which children shall
be presumed not to have the capacity to infringe
the penal law. The treaty is in force in every
country worldwide, except Somalia and the United
States.
Although Australian jurisdictions have not
passed any single law that adopts the convention
in its entirety, the High Court has ruled that
Australian laws should, as far as possible, be
interpreted in a way that is consistent with the
convention.
Children
(under 10 years old)
Figure 5.3 In Victorian England, children could be imprisoned, ogged,
transported to colonies, like Australia, or even executed. John Greening,
pictured here, was 11 years old when he was sentenced to one months
hard labour and ve years reformatory for stealing gooseberries.
In NSW today, the Children (Criminal Proceedings)

Act 1987 (NSW) lays out the minimum age of
criminal responsibility. Section 5 of the Act states
that: [i]t shall be conclusively presumed that no
child who is under the age of 10 years can be guilty
rebuttable
presumption
a legal presumption in
favour of one party it
can be rebutted by
the other party if they
can show sufcient
evidence to disprove it
Under the common law, this was a rebuttable

presumption, which means the presumption
This means that, for children under 10 years
was that the child could not have committed
old, doli incapax is a conclusive presumption. No
an offence, unless the prosecution could prove
child under the age of ten can be found by law to
beyond reasonable doubt to the judge, or jury,
commit an offence, and this cannot be rebutted.
that the child was capable of understanding their

actions that is, that the child knew what they
were doing was seriously wrong at the time they
did it, and not just naughty.
96
of an offence.
Previously in some states the age of criminal

responsibility varied as low as the age of seven.
Proving that an offender under the age of ten
understood the act to be wrong and hence the
existence of mens rea beyond reasonable doubt

would be extremely problematic. Children under
the age of 10 draw on very limited life experience
when making decisions about right and wrong.
Punishing children by law less than 10 years of age
may also be considered cruel treatment. Children
are considered more likely to be rehabilitated from
offending behaviour, and the imposition of any
criminal penalty at such a young age may prevent
this from occurring. For these reasons, children
criminally liable.
Children under the age of 10 have in some
C rim e
under the age of 10 are deemed by law never to be

Figure 5.4 In Australia, the age of criminal
responsibility is 10 years.
instances been capable of committing horrific

acts, even if the law does not recognise their
As in the case of R v LMW [1999] NSWSC 1343
mental capacity for intention. There are occasion
(see page98), the application of doli incapax has
ally calls from some sections of the community to
occasionally come under scrutiny, usually through
lower the age of criminal responsibility, or even
high-profile cases portraying heinous crimes by
abolish it altogether. However, any reduction in
children. Some of the issues surrounding this
the minimum age below 10 is extremely unlikely.
debate are highlighted by Thomas Crofts, Associate

Professor at Murdoch University School of Law, in
Children
(10 to 13 years)
his paper Doli incapax: Why Children Deserve
At what age, then, does a child become respon
opponents argue that doli incapax should be
sible for their actions? The Children (Criminal
lessened or removed because children today
Proceedings) Act 1987 (NSW) is silent on the res
are better educated and the criminal law is not
ponsibility of children 10 years or older. In NSW,
as harsh as it once was
the answer is still found in the common law the

rebuttable presumption of doli incapax. This
applies to children 10 to 13 years old.
its Protection ((2003) 10(3) Murdoch University

Electronic Journal of Law). Croft states that:
the rule can be unfair, especially to the victims

of the crime
it makes the prosecutions role in a criminal
Once a child turns 10 years old, they are still
trial more difficult, as there is not always
presumed incapable of committing a criminal
enough evidence to rebut the presumption of
offence, but this presumption is allowed to be
doli incapax.
rebutted. That is, the prosecution may be able
However, Crofts goes on to defend the presum
to show that the child, at the time of the alleged
ption of doli incapax. First, he states that it is
offence, actually knew that their act was seriously
consistent with the principals of international law
wrong, and not just naughty.
of which Australia is a signatory. He also highlights
The rebuttable presumption recognises that
that children develop their understanding of right
children of this age might have the mental capacity
and wrong at different stages of their life and that
to understand the seriousness of their act, but only
doli incapax helps to protect against the different
if the prosecution can prove it beyond reasonable
levels of maturity by forcing the prosecution to
doubt. Evidence that the prosecution might rely
prove understanding on a case-by-case basis.
on could include psychiatric evidence, evidence of
Further, although it may slow down the prosecu
parents and teachers, or behaviour and statements
tion, ultimately it does not stop them if there truly
by the child.
is proof of a guilty mind.
conclusive
presumption
a legal presumption
in favour of one
party that is final
(conclusive) and
cannot be rebutted
by the other party
97
ca s e s p a ce
R v LMW [1999] NSWSC 1343

In this case, a 10-year-old child,
political interest in the case, the
determined that LMW probably
LMW, was accused of
Supreme Court jury acquitted
could understand the difference
manslaughter after he dropped
LMW. Central to the case was the
between right and wrong,
another six-year-old boy, Corey
issue of doli incapax. Studdert J,
evidence from three teachers that
Davis, into the Georges River,
who heard the case, afrmed that
LMW was behind intellectually at
knowing that he could not swim.
the presumption of doli incapax
school, but that he was capable
The boy drowned, and the NSW
applied in NSW, and that it was
of following school rules. Corey
for the jury here to decide on the
was also much younger and
brought a charge of manslaughter
evidence whether the
smaller than LMW and there was
against LMW for his death.
prosecution had rebutted the
evidence of what LMW said as he
presumption.
picked him up and dropped him
Initially, the Senior Childrens

Magistrate at the Childrens
This was only based, however,
LMW at the committal hearing,
forming criminal intent, and that
on the evidence of two other six-
saying that a jury would not
he understood the consequences
year-old witnesses.
convict a child so young. How-
of pushing Corey Davis into the
ever, the DPP persisted and took
river. The DPP painted LMW as a
available evidence from the
the case to the Supreme Court of
bully who showed malice and
defence and the DPP, Studdert J
NSW, to be heard in front of a
deception. The defence argued
determined that there was
jury. LMW was the youngest per-
that it was a childish prank that
sufcient evidence for the jury to
son to face the Supreme Court
had gone wrong and that LMW
make a decision on doli incapax,
and the youngest in Australia to
did not understand the
but that this decision was for the
be charged with manslaughter.
consequences of his actions.
jury here to decide. The jury
the DPP, with intense media and
l e ga l i nfo
into the river, and afterwards.
LMW had and was capable of
After an 18-month effort by
98
The prosecution argued that
Court dismissed the case against
Some of the evidence raised

included a child psychiatrist who
On various appeals about the
acquitted LMW after three hours

of deliberation.
The age of criminal responsibility in NSW

Age (inclusive)
Criminal responsibility
0 9 years old
Cannot be charged with a criminal offence. Children under 10 are not seen as
mature enough to commit criminal offences.
10 13 years old
Rebuttable presumption of doli incapax. Presumed not capable of committing an

offence, but prosecution may show the child knew what they did was seriously
wrong and not just naughty.
14 15 years old
Criminally responsible for any offence committed, but no conviction can be

recorded unless it is a serious offence.
16 17 years old
Criminally responsible for any offence committed and a conviction may be

recorded, but the case will still be heard in the Childrens Court.
18 years or older
Full adult criminal responsibility, with case to be heard in adult courts. If the
offence was committed before the accuseds 18th birthday, it can still be heard in
the Childrens Court until the accused turns 21.
C rim e
Figure 5.5 Once a person turns 14 years old, the presumption of doli incapax no longer applies and
the offender can be found criminally responsible for their actions.
Young people
(14 to 17 years)
LMW above), a requirement that any convictions
Once a person turns 14 years old, the presumption
matter will be heard in the Childrens Court. The
of doli incapax no longer applies and the offender
procedures and operation of the Childrens Court
can be found criminally responsible for their
are discussed later in this chapter.
will be cleared after three years (if no more have

been committed), and most importantly, the
actions.
Children 14 and over are deemed mature
enough to know when their actions are wrong
and know not to commit an offence. However,
the law still continues to protect young people in
a number of ways full criminal responsibility,
publicly triable in adult courts, does not occur until
a person reaches 18 years of age.
For example, young people under 16 years of
age cannot have a criminal conviction recorded
against them, unless the offence was an indictable
offence. This means that the offence cannot be
considered by a court if the offender appears again
later in their life. However, if it is an indictable
offence, the magistrate or judge may decide to
record a conviction. This does not apply to children
aged 16 or 17.
People under the age of 18 are subject to the
Childrens (Criminal Proceedings) Act 1987 (NSW).
This includes a number of protections, such as
R ev i ew 5 . 3
1 Describe the meaning of the term doli
incapax.
2 Explain the distinction for the prosecution if
a child is aged less than 10 years old, 10 to
13 years old, or 14 and older.
3 Outline the facts of R v LWM. Evaluate the
outcome of the case and discuss whether
you think the law was appropriate in the
circumstances.
4 Discuss some arguments for and against the
retention of doli incapax in its present form.
5 Read the full article by Thomas Crofts,
which is available on the internet at: www.
murdoch.edu.au/elaw/issues/v10n3/
crofts103_text.html; and elaborate further
on the contemporary issues surrounding
doli incapax.
prohibiting reporting of the childs name (e.g.
99
T he right s o f c h i l dre n a n d
you n g peop le w he n ques t io ne d
o r a rres ted
The rights of children and young people when
try to add certain protections for children and
dealing with law enforcement authorities vary
youngpeople.
between Australian jurisdictions. However, the
As explored in Chapter 2, the main legislation
law generally recognises that children and young
outlining police powers in NSW is the Law Enforce
people require some special protections when
ment (Powers and Responsibilities) Act 2002 (NSW).
dealing with the police that are not afforded in
The Act contains a number of requirements for
ordinary circumstances.
police in their dealings with young offenders.
In 1997, the Australian Law Reform Commission

(ALRC) conducted an important inquiry into young
people and the law, jointly with the Human Rights
and Equal Opportunity Commission. The report
Questioning of young
people
was titled Seen and Heard: Young People and the
Police in NSW have the power to approach young
Legal Process, and examined the relationship of
people and ask them questions at any time, as
young people and the legal process, including the
they do for adults. Most police powers that apply
criminal process. The reports recommendations
to adults apply equally to children and young
included:
offenders, for example powers to ask a person to
standardising the minimum age of criminal
move on and most compulsory powers of search
responsibility, which was achieved in all juris
and seizure.
dictions in 2000
standardising national standards through legi
slation or policy for juvenile justice
covering investigation and arrest, bail con
The police have a right to ask a person to identify

themselves with their name and address. Likewise,
ditions, sentencing and detention.
a person can ask a police officer for their name
Particularly, changes were recommended to
and their police station. There are several situ
ensure Australian jurisdictions comply with Austra
ations, under various legislation, where a person is
lias obligations under the UNs Convention on the
legally required to respond and may commit an
Rights of the Child. However, national standards
offence if they do not. For example:
have not yet been implemented.
where the police officer suspects on reasonable
The inquiry also surveyed 843 children and
grounds that the person can assist them in
young people on dealings with the police. Seventy-
investigating an indictable offence that was
eight per cent of those surveyed stated that the
committed nearby
police rarely treated young people with a sufficient

degree of respect. There could be many reasons for
this, and it does not necessarily mean inadequate
policing. However, relationships between young
100
Identification, name and address
in a number of situations relating to vehicles

and traffic
where a person is suspected of committing an
offence on a train.
people and police are a significant opportunity
However, some laws do apply to young people
for improvement. Since the survey, a number
in particular. For example, under the Summary
of legislative changes have been introduced to
Offences Act 1988 (NSW), a person can be stopped
C a m b r i d g e Legal Studies HSC
and required to provide their details if suspected
or statement a child or young person gives to
of being under the age of 18 and carrying or
police will be inadmissible as evidence in court
consuming alcohol in a public place without adult
proceedings against that person, unless:
supervision or reasonable excuse. If the young
s there is a responsible adult other than the
person cannot produce adequate identication,
police member present, such as a parent, youth
refuses to comply with the request or gives false
worker, guardian or lawyer
details, police can impose a ne of up to $20.
s the judge or magistrate otherwise decides that
Questions and right to silence
This is an important protection given to young
With regards to ordinary police questioning, the
offenders as it means that police must ensure there
police may stop a person and ask them questions
is a responsible adult present any time a person
at any time. However, in most circumstances
under 18 years old is questioned. If not, the police
a person is not required to respond and may
will be unable to use any information received as
exercise their right to silence. A person can
evidence. Generally, the adult should take notes
refuse to answer questions, even if they have
and ensure the young person gets legal advice or
been taken to a police station for questioning or
knows they do not need to answer questions.
it should be admitted.
C rim e
right to silence
the right of a
person to refuse to
answer any question
put to them on
the grounds they
may incriminate
themselves
arrested. This is because it may not be in their

best interests to answer certain questions as their
Searches
answers may later be used as evidence against
Police search powers for children and
them. For this reason, a person suspected of com-
young people are largely the same as
mitting any offence should usually not answer
for adults, apart from strip searches.
R EVI EW 5 . 4
police questions or sign any statements until they
Under the Law Enforcement (Powers and
1 Explain if or when a
have received independent legal advice.
Responsibilities) Act 2002 (NSW), police
young person has to

give their name and
child under 10. For a person between 10
address to police.
The law provides an additional level of protection
a police ofcer must also be present,
silence and discuss its
for young people under the age of 18 when they
and if the person is 14 or older they
impact on police powers
are questioned by police. This is because the law
must agree who the adult should be.
to question.
assumes that young people may not be aware
Police may only conduct strip searches
of their rights, may not fully understand the law
in serious and urgent circumstances.
person might need
or may be more vulnerable than adults in these
When conducting a strip search, police
a responsible adult
circumstances. Under s 13 of the Children (Criminal
have to respect a persons privacy and
present when asked
Proceedings) Act 1987 (NSW), any information
must not touch the person.
questions by the police.
l e ga l l i nk s
can never perform a strip search on a
Right to support of a
responsible adult
and 18, a responsible adult other than
2 Dene the right to
3 Assess why a young
Legal Aid hotline for under-18s
young people seven days a week on
People under the age of 18 are entitled to
1800 10 18 10. Further information about
free legal advice from NSW Legal Aid. The
the Legal Aid Hotline for under 18s is
Legal Aid Hotline for under 18s is a service
available on the Legal Aid website at:
staffed by qualied lawyers experienced
www.legalaid.nsw.gov.au/asp/index.
in juvenile matters. It is accessible to
asp?pgid=613.
101
notied as soon as possible. This should not occur

if the persons carer or guardian may be a threat
to the child or young persons safety, which might
be relevant in some circumstances.
Under the Law Enforcement (Powers and Responsibilities) Regulation 2005 (NSW), people under
the age of 18 are dened as vulnerable people and
are given special protection when arrested and
detained for questioning. The Regulations require
the police to nd out as soon as possible who the
childs parent or guardian is and to contact them.
Young people must have a support person, or
interview friend
a parent, guardian,
friend or legal
representative present
at the police interview
of a minor; the presence
of an interview friend
is to offer support and
witness that statements
are made voluntarily
caution
a statement issued by
police to a suspect
when they are detained
to inform them of their
rights
interview friend, present such as a parent,

guardian or solicitor. Police may not conduct any
Figure 5.6 The conditions under which a young
person can be lawfully arrested are the same as
those for adults.
inter view of a child or young person unless a

support person is present. For people 14 years and
over, police must get their agreement on who they
want as the support person. The support person
Arrest and interrogation
will assist the child or young person and observe

that the interview is conducted properly.
The conditions under which a young person can be
The police custody manager has a positive
lawfully arrested are the same as those for adults.
requirement to assist the child or young person.
These conditions are listed in the Law Enforcement
At present there is no requirement to have legal
(Powers and Responsibilities) Act 2002 (NSW). The
representation during a police interview. The
Act requires that:
Seen and Heard report suggests this should be a
s police know or believe on reasonable grounds
requirement for children and young people, and
that the person has committed or is about to
in 2002 the Supreme Court of NSW ruled in the
commit an offence
case of R v Cortez (unreported, NSWSC, Dowd J,
s police must have a warrant for the persons

arrest
s certain other conditions, relating to people who
are on bail conditions, be adhered to.
3 October 2002) that the custody managers duty

requires them to inform a young person that the
Legal Aid Hotline is available and give them an
opportunity to ring it.
Police must tell a person that they are under

arrest and why, and inform the person of the
Caution of rights
police ofcers name and station. Police may use
As with questioning in general, people have a right
reasonable force in arresting a person or young
to silence when dealing with the police. Like adults
person, but the force may not be excessive, and the
who are arrested and interrogated, children and
police ofcer may not assault or intimidate them.
young people may incriminate themselves without
Likewise, a person can also not assault a police
realising they are doing so and must be warned
ofcer, resist arrest or use offensive language, or
against this. Under the Law Enforcement (Powers
they may be guilty of further offences.
and Responsibilities) Act 2002 (NSW), any person

arrested has the right to receive a caution that
102
Support person and legal advice
is, the police must warn a person as soon as prac-
The ALRCs Seen and Heard report, discussed
tical after they are detained that they do not have
earlier, recommended that upon arrest a child
to say or do anything but that anything the person
or young persons guardians or carers should be
does say or do may be used as evidence. They
C am b r id g e L e g a l S t u d ie s HS C
must also inform them of the maximum allowable

period for detention without charge.
The accused is to sign an acknowledgement that
this caution has been given this usually would
be completed by an interview friend, guardian or
carer on the childs behalf. Some criticisms of this
has been that children and young people may not
always understand the technical language used in
the caution and that it should be age specic. It
from children and young people should only be
admissible in court if they have been electronically
Figure 5.7 For young people 14 years or over, police may take
ngerprints or photographs if it is for the purpose of identifying them.
recorded.
Detention and identification
Forensic procedures, photos

and searches
As with adults, people under 18 years of age in
Police will often require identication of suspects
NSW can be detained for a maximum of four
when arrested, including photographing or taking
hours, or up to a further eight hours if a warrant
ngerprints or DNA samples.
for the extension is granted.
For young people 14 years or over, police may
The Seen and Heard report recommended that
take ngerprints or photographs if it is for the
children and young people not be detained for a
purpose of identifying them. However, for children
period longer than two hours in all states. This is
under 14 years, the police can only take photos or
the practice at a federal level. Children may be
ngerprints if they apply to the Childrens Court
particularly more vulnerable during long periods
to do so. The child may not be held in custody
of detention and as such excessive periods are dis-
while the application is being obtained, and the
couraged. As mentioned above, the presence of an
Court will consider the seriousness of the offence,
interview friend is one mechanism that may help
cultural and ethnicity considerations, the best
prevent evidence being obtained under duress or
interests of the child and the wishes of the child
coercion during lengthy periods of interrogation.
and their parent and or a guardian.
le g al in f o
C rim e
has been argued that admissions and confessions
Children and young people special rights and procedures with police
s Right to a have a responsible adult present when
police ask questions
s If less than 18 years old, then strip search can
only be conducted if an independent responsible
adult is present; no strip searches permitted for
children under 10 years old
s If arrested, police must nd out details of the
persons parent or guardian as soon as possible
and contact them
s Children and young people must have a support
s Police must give caution of rights in presence of

the support person
s Police must inform of right to contact Legal Aid
and give opportunity to do so
s Same period of detention as for adults, but a
shorter period is strongly recommended
s If under 14 years old, ngerprints and photos
can only be taken with a Childrens Court order
s If under 18 years old, no DNA sample can be
taken without a Childrens Court order.
person present during a police interview
103
Similarly, police cannot take a DNA sample of
Section 99 of the Law Enforcement (Powers and
any suspect under 18 years old unless they have a
Responsibilities) Act 2002 (NSW) lays down the
court order allowing them to do so. Children and
principle in NSW, with detailed provisions about
young people cannot give this consent on their
when and for what purpose an arrest can be made.
own. If the criminal matter is not proved in court,
Section 8 of the Children (Criminal Proceedings)
for example acquitted, not guilty or discontinued,
Act 1987 (NSW) also creates a presumption that
then the police must destroy any ngerprints,
children should not be arrested or detained,
photos or DNA samples on request of the parent
unless for example the offence was a serious or
or guardian.
violent one, or there is a danger of further offences

or violent behaviour.
Additional comments
The Shopfront Youth Legal Centre, a Sydneybased free legal service for disadvantaged young
In most cases, it is hoped that good policing has
and homeless people, states in a 2007 dis-
preceded the arrest of a child or young person,
cussion on the Law Enforcement (Powers and
and that police have gathered sufcient evidence
Responsibilities) Act that:
to bring them into the police station. This is not

always the case.
In some jurisdictions, there is criticism that
police may rely too heavily on powers of arrest
to gather evidence or to further the interrogation
of suspects, especially in the case of
indigenous youth. The UN Convention
on the Rights of the Child obliges
R E VIEW 5.5
countries to use arrest only as a last
1 Outline the main allowable
resort, as it can often be a negative
disappointingly, [section 99], which gives legislative backing to the principle of arrest as a last
resort, does not seem to have made police think
more carefully before arresting suspects. In the
authors experience, it also appears that magistrates are generally reluctant to nd that an arrest
was unlawful and are perhaps rather conservative
in their interpretation of this legislative provision.
Source: www.theshopfront.org/documents/Police_Powers.pdf
circumstances for police to
and
experience for
As a result, it could be suggested that some
arrest a young person in
children and young people. The
children and young people enter the criminal jus-
NSW.
Seen and Heard report also recom-
tice system unnecessarily, which could negatively
mended that for children considered
impact on their perceptions and experiences.
at risk, welfare and health services
However, alternatives to this approach are avail-
will usually be more appropriate to
able to police under the Young Offenders Act 1997
persons ngerprints can be
deal with the situation, rather than
(NSW), which is discussed in more detail towards
taken by police.
the police.
the end of this chapter.
2 Explain what is meant by

the term interview friend.
3 Describe when a young
traumatising
Childrens Cou r t procedu res

a n d ope ra t i o n
The Childrens Court of NSW was discussed in
Chapter 2 under the topic of the court hierarchy.
104
s dealing with criminal matters of children and

young people under 18 years of age
The Childrens Court is a specialised court estab-
s dealing with matters of care and protection of
lished in 1987 under the Childrens Court Act 1987
children and young people referred to it by the
(NSW). It has a dual role:
Department of Community Services.
Matters in the Childrens Court are presided

over by a magistrate but there is no jury. Magistrates undergo specialist training by the NSW
Judicial Commission in dealing with youth matters
and proceedings. Across NSW, there are 13
childrens magistrates sitting in seven specialist
Childrens Courts. Five of these are in metropolitan
areas. There are also ve childrens registrars
appointed to assist in the administration of matters
In its criminal jurisdiction, the Childrens Court
Figure 5.8 The Childrens Court of NSW
can hear the following matters involving children:

s any offence other than a serious indictable
offence committed by a child (serious indictable
offences will be heard in a higher court, such as
murder and manslaughter, armed robbery or
sexual assault)
s committal
s children are responsible for their actions but

require guidance and assistance
s where possible the education of a child should
proceed without interruption
proceedings
of
any
indictable
offence, including serious ones, committed by

a child.
s where possible a child should be able to reside

in his or her home
Additional principles under s 6 relate more speci-
The Childrens Court follows procedures laid out
cally to the sentencing process.
under the Childrens (Criminal Proceedings) Act 1987
In the Childrens Court, as well as childrens
(NSW). Section 6 of the Act requires the court to
matters heard in higher courts, trial formalities
show regard for the following main principles:
will be different to ordinary courts and will be
s children have rights equal to adults and have a
aimed at protecting the interests of the child.
right to be heard and participate in proceedings
Some of the main differences are outlined in the
that affect them
following table.
l e ga l i nfo
C rim e
before the court.
Differences in childrens criminal proceedings

s In the Childrens Court, the matter will be
heard summarily (with no jury), before a single
magistrate
s Childrens proceedings are conducted in a closed
court in order to protect the identity of the child
under s 6 of the Childrens (Criminal Proceedings)

Act 1987 (NSW)
s Court will give the child the fullest opportunity
to be heard and to participate
s Court must take measures to ensure that the
only parties to the proceedings are present, and
child understands the proceeding, and answer
reporters or family victims if the court allows
any questions that the child asks about the
s Prohibition on the media publishing any childs

name who is involved in the process, unless
authorised by the court or the child is deceased
process or decision
s Available penalties and sentencing procedures
differ from ordinary courts
s Courts in childrens proceedings will need to

consider the main trial and sentencing principles
105
Childrens Court statistics
Childrens Court has increased from 2003 to
The NSW Commission for Children and Young
Overall, the numbers in 2007 are almost 40%
2007 following a downward trend since 1996.
People is an independent organisation that reports
lower than those in 1996.
to the NSW Parliament and monitors trends in
s Since 2003, the 1014 year old age group has
young offender rates, among its many tasks. The
shown the greatest increase in the number of
Commissions rationale for doing this is that it
young people with at least one nalised criminal
believes children and young people who become
matter.
involved in crime are usually involved in minor
s From 1996 to 2007 the majority of nalised
crimes, but that for a small group of these offen-
matters before the NSW Childrens Court
ders regular contact with the criminal justice
involved males. The involvement of males in
system becomes a way of life which has drastic
these matters is over four times that of females.
prospects for their future.

The Commission looks at matters heard before
the Childrens Court, but statistics do not include
diversionary methods such as warnings, cautions
The Childrens Court

Clinic
or conferencing. Some of its main ndings
The Childrens Court Clinic is an arm of the
include:
Childrens Court and is established under the
s The number of young people with at least
Childrens Court Act 1987 (NSW). The clinics main
one nalised criminal matter before the NSW
function is to make clinical assessments of chil-
6000
5500
Number of nalised appearances
5000
4500
4000
3500
3000
2500
2000
1500
1000
500
0
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
Years
1014 years
15 years
16 years
17 years
18 years and over
Figure 5.9 Finalised appearances in the NSW Childrens Court, 19962007 by age at time of earliest
offence (number).
106
dren and submit reports to the court. A magistrate
issues, such as the childs mental health, intellec-
or judge in a childrens case can make an assess-
tual disability, drug and alcohol use, violence,
ment order for expert assessments of a child in a
sexual abuse/assault, or psychological issues. The
particular case a clinician then assesses the child
assessment report may take time and the childs
and writes an independent assessment report to
sentencing will likely be postponed until the report
the court to help it make a decision in the best
is available.
interests of the child.

In its criminal jurisdiction, the Childrens Court
person requires assessment by the clinic after
they have been found guilty of an offence awaiting
R EVI EW 5 . 6
1 Describe the types of offences that can be
heard in the Childrens Court.
sentence. An assessment will be performed gener-
2 Outline the differences between childrens
ally by NSW Juvenile Justice, but more recently
criminal proceedings and ordinary court
through the clinic. The clinic will be asked to
proceedings.
complete an assessment where there are specic
3 Identify the recent trends in cases heard by
psychological, psycho-social or mental health
the Childrens Court and describe what the
issues present in the childs situation that the
most common prole of offenders is.
court needs to consider prior to passing sentence.
4 Describe the role of the Childrens Court
The assessment report might include a variety of
C rim e
may in certain cases decide a child or young
Clinic.
Pe n a l t i e s f o r c h i l d r e n
The purposes of sentencing were looked at in
Chapter 4. However, in childrens criminal pro-
s subject to other principles, consideration should

be given to the effect on the victim.
ceedings, the purpose of rehabilitation is given
Many of the mitigating or aggravating factors of
primary weight. This is consistent with the Con-
the offence, both objective and subjective, that are
vention on the Rights of the Child, which acknow-
relevant to ordinary proceedings, might also be
ledges that children and young people have the
relevant to sentencing in childrens proceedings.
best chance of any other offenders of being rehab-
Victim impact statements have also recently been
ilitated and reintegrated back into society. As men-
permitted in the Childrens Court.
tioned above, factors under s 6 of the Childrens
For most childrens offences, penalties will be
(Criminal Proceedings) Act 1987 (NSW) are to be
signicantly less severe than ordinary law and
considered in childrens proceedings. Additional s
will be considered with the childs rehabilitation
6 principles that relate more specically to the
in mind. For specic serious indictable offences
sentencing process include that:
heard by higher courts (such as homicide), ordin-
s the penalty imposed on a child shall be no greater
ary sentences will be applied. For other serious
than that of an adult for the same offence

s children should be assisted with reintegration
into the community to sustain ties to their
family and community
s children accept responsibility for their actions
and if possible make reparation for them
offences, the higher court may decide whether the

ordinary law or childrens penalties should apply.
Section 33 of the Childrens (Criminal Proceedings) Act 1987 (NSW) lists the penalties that can
be applied to children. These are outlined in
Table 5.1.
107
Table 5.1
Childrens sentencing options under s 33 of the Childrens (Criminal Proceedings) Act 1987
(NSW)
youth justice
conference
a measure under the
Young Offenders Act
1997 (NSW) to divert
young offenders from
the court system
through a conference
that addresses the
offenders behaviour in
a more holistic manner
control order
similar to an
adult sentence of
imprisonment, except
served in a juvenile
justice centre
juvenile justice centre
a detention centre
housing young
offenders subject to a
control order
dismissal
the court can dismiss the charge without punishment or conviction, but
may decide to issue a caution to the offender
conviction
for young offenders, the court can decide whether to record a conviction,
but for children under 16 years old no conviction can be recorded
adjournment
the sentencing can be adjourned or deferred for up to 12 months to assess

the childs prospects of rehabilitation and reconsider at a later date
bond
release the child on a good behaviour bond for up to a maximum of two

years, with conditions that the court sees t to impose; it can also be
combined with a ne
youth justice
conference
release subject to the child complying with a youth justice conference

outcome plan (these will be discussed later in this chapter)
ne
a ne of up to 10 penalty units ($1,100), but the court must take into the
childs age and ability to repay it
probation
a bond with a probation order of up to two years, overseen by an ofcer of

NSW Juvenile Justice
community service
order
a community service order is a severe penalty, and can be made for up 100
hours if the child is under 16 years old, or up to 250 hours if they are 16
or over; an assessment (as mentioned earlier) is required to conrm if the
child is suitable for a community service order
suspended control
order
similar to a suspended sentence, a court can suspend a control order

(below) for up to two years, subject to good behaviour
control order
a control order is the most severe penalty, and is similar to an adult

sentence of imprisonment except it involves detention in a juvenile justice
centre; the maximum time a child can be sentenced to a control order is
two years
Juvenile justice centres

A control order is the most severe penalty avail-
108
They aim to provide a safe, humane and secure

environment for young offenders.
able in childrens criminal proceedings. It is similar
Juvenile justice centres also provide educational
to the adult penalty of imprisonment, except that
and recreational facilities, as well as counselling
the maximum time servable is two years and the
and personal development programs to encourage
young offender is not held at an adult correctional
rehabilitation and reintegration of young offenders
centre but at a juvenile justice centre.
back into the community.
Juvenile justice centres, also called youth deten-
As for adult imprisonment, control orders are
tion centres, are managed by NSW Juvenile Justice,
only to be used as a last resort. If used, the court
which is a part of the Department of Human
must give clear reasons why it cannot impose
Services. They are overseen by the Children
any other penalty. Courts must also announce
(Detention Centres) Act 1987 (NSW). The centres
a non-parole period for any control order longer
house young offenders sentenced to control orders
than six months, although young offenders may
as well as some young accused people held on
still be released before the end of their non-parole
remand awaiting nalisation of their court trial.
period.
Sentencing
considerations for young
offenders
to repay it and the effect it might have on their
Although the Childrens (Criminal Proceedings) Act
not so difcult that they attracted breaches. The
1987 (NSW) now clearly outlines the principles of
very serious effects of any control order would of
childrens criminal proceedings, and the primary
course need to be thoroughly considered and all
importance of rehabilitation, the Seen and Heard
other penalties dismissed before such a penalty
report had noted that in sentencing, more atten-
could be imposed.
chance of rehabilitation. Community service

orders would be more benecial if closer to home
tion was needed by courts to social factors such as
The seriousness of the offence will often be a
homelessness, family circumstances, educational
signicant consideration in determining the sen-
needs or the special health and other require-
tence. However, unlike for adult offenders where in
ments of children and young people.
such cases purposes of retribution and deterrence
For example, the court needs to carefully
cas e s p ac e
consider nes in light of the offenders ability
would likely increase a sentence, the court must

keep the rehabilitative focus foremost in mind.
grave adult
behaviour
where a young
offender has acted
like an adult in
committing the
offence, indicated
by the seriousness
of the offence
and other factors
surrounding the
behaviour such as
premeditation
C rim e
and as long as the conditions to full them were
R v GDP (1991) 53 A Crim R 112

Although now a relatively old
case sentenced him to a
been positively damaging to
case, R v GDP still outlines an
12-month custodial sentence.
GDPs rehabilitation, who was by
important principle in child
GDP appeal to the court of
now commencing year 12 and
sentencing. The offender was 14
Criminal Appeal, where a panel
facing his HSC certicate. The
years old when he committed
of three judges held that the
court reversed the original
serious criminal damage to
sentence was manifestly excess-
sentence and substituted it with
property with two of his friends.
ive. In explanation, the court
a 12-month probation order.
The damage included breaking
stated that sentencing principals
through a window, drilling a safe,
for children are different to
defacing cars, smashing furniture
adults general deterrence and
and lighting dangerous res that
retribution were not as
in total added up to $550 000 in
important as they could be in the
damage. GDP was very young,
case of an adult. Rehabilitation is
had had no prior incidents and
the primary aim for offenders as
was well regarded by his
young as this. In this case a
teachers. The judge in GDPs
custodial sentence would have
There may, however, be exceptions to this rule
the offence or the level of premeditation involved.
where a young offender is involved in repeated
The court may see them as having acted like an
offences, or where he or she engages in grave
adult, and so other sentencing objectives might
adult behaviour, which is where the offender has
come into play. For example, see the following
acted like an adult as indicated by the seriousness of
case of R v Pham & Ly.
109
1 Identify three
penalties available for
children and assess
how they differ from
adult penalties.
ca s e s p a ce
R E VIE W 5.7
2 Describe the primary

factors to consider
when sentencing a
young offender.
At the time, one of the offenders
In contrast to the case of R v GDP,

Pham & Ly involve two main
was on bail and the other was on pro-
offenders one just under the age
bation. The original judge sentenced
of 18 at the time of the offence.
both offenders to 12 months on
The young offenders committed a
remand. The case was appealed in
robbery together breaking into a
The Court of Criminal Appeal and the
house and injuring the occupants.
sentence was overturned as wholly

inappropriate and inadequate. It
They invaded the home early in
3 Explain when a young

offender may be
liable to receive an
adult sentence.
warning
a notice given to
a young offender
(usually for a rst
minor offence) that
is recorded by police
but with no conditions
attached; the offender
must be told of the
nature, purpose and
effect of the warning
R v Pham & Ly (1991) 55 A Crim R 128
the morning knowing the occupants
was ruled that despite the offenders
were home. They bound and
ages, there must be reasonable
gagged their victims with sticky
proportion between the sentence
tape and put a blanket over their
and the seriousness of the crime
heads. They then proceeded to rob
committed with the need to protect
the property, taking jewellery and a
the community. The case was
number of other items.
referred for resentencing.
A l t e r n a t i ve s t o cou r t
As for adult offenders, there are programs in place
for children and young offenders that offer an
alternative to the formal criminal justice process
that is played out through the courts.
In NSW the primary diversionary program for
s children should be informed of their right to

seek legal advice
s criminal proceedings are not to be started if
there is an appropriate alternative for dealing
with matter.
young offenders is provided for by the Young
Under the Act, children and young offenders who
caution
a formal, recorded
alternative to
prosecution where the
young offender admits
to the offence and
consents to receiving a
formal police caution;
it can later be taken
into account at the
Childrens Court, but
not an adult court
Offenders Act 1997 (NSW). The Young Offenders Act
have committed an offence covered in the Act
became operational in NSW in 1998 and was
may proceed through a three-tiered system of
introduced to provide various diversionary meas-
diversionary processes warnings, cautions and
ures for young offenders and police as an alter-
youth justice conferences.
youth justice
conference
a measure to divert
young offenders from
the court system
through a conference
that addresses the
offenders behaviour in
a more holistic manner
The program does not apply to serious offences,
informal it can be given in any place but the
including robbery, sexual offence or any offence
ofcer must tell the offender the nature, purpose
resulting in a persons death. The principles of the
and effect of the warning. A warning cannot be
Act are that:
given for an act of violence, a repeat offence or
s the least restrictive sanction should be applied
at the discretion of the investigating ofcer. The
110
native to traditional criminal processes and court

penalties. The aim is to encourage rehabilitation,
reduce rates of recidivism and reduce the burden
Warnings
on the court system of more minor youth offences.
A warning is an ofcial notice given to a young
The program only applies to summary offences
offender by an investigating ofcer, without any
and to indictable offences triable summarily.
conditions attached. The warning is relatively
where possible
ofcer will keep a record of the warning.
Police may issue a caution to a young offender

to discourage further offending. The caution is
a formal, recorded alternative to prosecution
where the young offender admits to the offence
and consents to receiving a formal police caution.
In deciding whether to give a caution or not, the
investigating ofcial will consider the seriousness
of the offence, the degree of violence involved,
the harm caused and number of offences by the
offender.
ofcial, a member of the childs family or extended

family, the offenders legal representative, another
adult chosen by the offender and a specialist youth
ofcer. The victim can also attend, as well as any
support people the victim may want present. The
range of people present aims to give a picture of
what is going on in the childs life and to provide
enough expertise and experience to offer a more
holistic approach to nding solutions for the offenders behaviour. A conference administrator
ensures records of the conference are kept.
Although not a conviction, the caution may later

be taken into account in the Childrens Court and
Effectiveness
C rim e
Cautions
so can have important consequences. Steps are

to be taken so that the offender understands the
nature and effect of the caution, and the offender
must then sign a caution notice. A specialist court
ofcer or a court must make a record given by
the ofcer or the court. Before an ofcial caution
is issued, the investigating ofcer may refer the
matter to a specialist court ofcer to decide if
the matter instead should be referred to a youth
justice conference.
The Young Offenders Act has been well received

by commentators. It embraces the welfare model
of juvenile justice and encourages offender
rehabilitation over traditional means of dealing
with crime. It uses diversionary measures to nd
solutions to juvenile offending. Repeat offenders
can also be dealt with by the Act, for example
through a second and or third appearance at a
youth justice conference.
One of its criticisms, however, is that it is not
Youth justice conferences
being used for a wide enough range of offences
The Young Offenders Act also allows for youth
from the benets that conferencing offers. For
justice conferences, which can be used when
example, the Shopfront Youth Legal Centre in
a young offender admits to an offence and con-
response to a 2003 review of the NSW Law Reform
sents to having it dealt with by a conference of
Commission on sentencing of young offenders
different parties. The purpose of a youth justice
argued that youth justice conferencing could be
conference is to allow the offender to take some
suitable for even very serious offences (see www.
responsibility for their actions, to promote better
theshopfront.org / documents / ReviewOf YOA.
family understanding of the issues and to provide
pdf for the full response). It is not a soft option
the offender with appropriate support services to
but possibly works best in more serious offences
assist them to overcome their difculties.
because the young offender is obliged to consider
Youth justice conferences also enhance the

rights of victims in the criminal justice process
and therefore is excluding some young offenders
the consequences of his or her actions, in particular the harm caused to the victim.
and ultimately make decisions that should reect

the offenders rights and take into account their
needs. Conferences hold the offender accountable,
but empower families and victims in decisions
about a childs offence and, where suitable, make
reparations to the victim.
Those able to participate in a conference are
the child, a conference convenor, an investigating
Figure 5.10 The Shopfront Youth Legal Centre is a NSW-based

service that can advise young people on a range of legal matters.
111
R ESEARCH 5.1
1 Explain the difference between the
The NSW Juvenile Justice website provides
following terms: warning, caution and youth
more information on youth justice
justice conference.
conferencing, including a sample video of a

conference. Visit the website and answer the
questions below: www.djj.nsw.gov.au/
2 Describe the process and the parties

involved in a youth justice conference.
3 Assess the effectiveness of youth justice
conferences compared to traditional
conferencing.htm.
methods of dealing with young offenders.
The ef fec t iveness of t he c ri m i n a l

j u s t ice s ys te m w he n dea l i n g
w i t h you n g o f f e n de r s
Children today love luxury too much. They have
offenders has decreased since 1981 by over 50%.
execrable manners, aunt authority, have no res-
In 2007, 10.3% of a total 6488 young offenders who
pect for their elders. They no longer rise when their
appeared before the NSW Childrens Court were
parents or teachers enter the room. What kind of
given a control order, and in Australia, between
awful creatures will they be when they grow up?
9001000 young people are held in custody on an
Socrates, 469399 BCE
average day.
Yet in the Australian Institute of Criminologys
Even in Socrates day, adults tended to think the
2009 study, The Specic Deterrent Effect of
worst of children and young people at times. On
Custodial Penalties on Juvenile Offenders, it found
its face, the rate of young offenders compared to
no difference in the rate of reoffending: young
adult offenders would seem to justify that view. But
offenders given a custodial sentence were no less
it could also suggest that on the whole the criminal
likely to reoffend than those given another form
justice system is failing younger people.
of sentence. The report states that the adverse
From a young age, children can do little to con-
effects of imprisonment on employment outcomes
trol the circumstances they nd themselves in
and the absence of strong evidence that custodial
children who have been neglected or mistreated,
penalties act as a specic deterrent for juvenile
or received poor and dysfunctional parenting
offending suggest that custodial penalties ought to
education, might nd it challenging to make good
be used very sparingly with juvenile offenders.
decisions as they grow older. The age of criminal
The Young Offenders Act has been particularly
liability recognises a scaling level of responsibility
successful in diverting young people away from
as a person ages, up until adulthood. And as
custodial sentences. The Childrens Court has the
expressed in the purposes of the Childrens (Criminal
power to refer young people who appear before
Proceedings) Act 1987 (NSW), and attempted
it to youth justice conferencing, and some 50%
through programs available in the Young Offenders
of conferences have been referred by the Court.
Act 1997 (NSW), rehabilitation for such young
While this could suggest that matters might be
people is intended to be the primary concern for
unnecessarily referred to the Childrens Court when
the criminal justice system and young offenders.
they could be better dealt with elsewhere, it still
Statistics from the Australian Institute of Criminology show that the rate of detention for young
112
provides an impor tant alternative to incarceration

throughout the criminal justice process.
continue to enforce the justice model over the wel-
young offenders requires a careful balance. Yet as
fare model, without due consideration to the impact
studies have continuously shown, and as Australias
on young offenders. For example, see the following
international obligations and the childrens sen-
Media Clip on the effect of recent changes to bail
tencing legislation impose, rehabilitation of young
laws and their unforeseen effect on young offen-
offenders must remain the primary focus.
Bail law means jail for more juveniles

By Adele Horin
Sydney Morning Herald, 2 July 2009
Most young people jailed for breaching bail

conditions have not committed another crime but
have broken curfews or failed to stay with parents,
a controversial report by the NSW Bureau of Crime
Statistics and Research shows.
The report, previously classied cabinet-incondence until its release yesterday, provides
strong statistical backing for those arguing for
reform of NSW bail laws as they apply to children.
It shows amendments designed to toughen the
Bail Act enacted in December 2007, combined with
increased police activity, contributed to a 32 per
cent rise in the number of juveniles on remand
between 2007 and 2008. The time young people
spent in jail before they faced a court hearing also
lengthened dramatically.
The increase in juvenile remand is a matter for
concern, the report says, not only for reasons of
cost, but also because of the potential impact of
being held in custody on a young persons family
relationships, education and work.
Only 34 per cent of young people jailed for
breaching bail committed a further offence, but
66 per cent had been locked up for breaching other
bail conditions, most commonly not complying with
a curfew.
The report said the cost of keeping juveniles on
remand rose over the 12 months by 29 per cent to
$47.2 million but there was no evidence the increase
in juveniles on remand had contributed to the fall in
property crime in NSW.
In a long discussion in cabinet on Tuesday about
the number on remand, concern was raised about
NSW having the highest juvenile incarceration rate
and ministers recognised the serious impact of the
Bail Act, the Herald has learnt.
Under the amended Bail Act, in most cases adults

and children can make only one application for bail.
Magistrates frequently impose tougher bail
conditions on children than on adults, including
restricted movements and curfews.
Children breaking the conditions are put into
custody, pending a court hearing for the original
offence.
The report found juveniles averaged 35 days on
remand after the Act was amended, compared to
about 10 days previously.
The president of the Law Society of NSW, Joe
Catanzariti, called for the Government to heed the
reports independent ndings, and repeal the
amendments as they apply to children. Increasing
their incarceration from 10 days to ve weeks does
not help them, he said. Nothing is being achieved
except an increase in the remand population which
is a bad thing.
The report, Recent Trends In Legal Proceedings
For Breach Of Bail, Juvenile Remand And Crime,
written by Sumitra Vignaendra, Steve Moffatt, Don
Weatherburn and Eric Heller, was the bureaus rst
report in 20 years to have been classied as cabinetin-condence rather than promptly released.
C rim e
ders. As with all areas of the law, the law concerning
m e d i a cl i p
Yet other aspects of the criminal justice system
R EVI EW 5 . 8
Read the Media Clip above and answer
the following questions:
1 Identify what changes were made to
the Bail Act 1978 (NSW).
2 Describe the effect the changes have
had on young offenders in NSW.
3 Evaluate the implications of these
changes for young offenders in the
criminal justice system.
113
114
s There are two main approaches to young

offenders in the criminal justice system: the
welfare model and the justice model.
s The law recognises differing levels of criminal
responsibility for young offenders on a scale
of age.
s Children and young people have additional
rights and protections in the face of police
powers as the law recognises their higher
level of vulnerability.
s The Childrens Court has jurisdiction to hear
any offence other than serious indictable
offences involving children and young people.
s Children may receive a range of penalties
that differ from adult penalties, from nes to
control orders in a detention centre.
1 Doli incapax refers to which of the following?

a the Childrens Court jurisdiction to hear
matters pertaining to young offenders
b the incapacity to cause criminal harm
c mitigating factors when sentencing
d the incapacity of young offenders to
make decisions about their future in court
proceedings
2 Of the following statements, which is correct
with respect to young offenders under arrest?
a they cannot have their ngerprints taken
b they are not able to be interviewed
c they must have an interview friend present
d they will have a criminal record
3 A warning under the Young Offenders Act
1997 (NSW) is:
a an informal verbal reprimand without
consequences
b a formal recorded admission by consent
with potential consequences
c an ofcial recorded notice without
conditions
d an informal written reprimand without
conditions
s When handing down penalties for children

and young people, the court must take into
account the offenders age and chances of
rehabilitation.
s Judges may consider other objectives of
punishment if the offence is particularly
serious.
s Diversionary programs for young offenders
exist in the use of warnings, cautions and
youth justice conferences.
s The Childrens Court and diversionary
programs have been reasonably successful in
relation to young offenders, but there is still
signicant room in the criminal justice system
for improvement.
4 Which of the following statements is correct

with respect to the jurisdiction of the
Childrens Court?
a it can hear committal proceedings and
minor matters against children and young
people
b it can hear committal proceedings and
all but serious indictable matters against
children and young people
c it can hear serious indictable matters and
committal proceedings against children
and young people
d it can hear all matters and committal
proceedings against children and young
people
5 Which of the statements below is correct
with respect to the types of penalties young
offenders can receive?
a dismissal, ne, community service order,
adjournment, control order, youth justice
conference, life imprisonment
b dismissal, ne, community service order,
adjournment, home detention, control
order, youth justice conference
c dismissal, community service order, ne,
control order, youth justice conference
d dismissal, ne, community service order,
suspended sentence, adjournment, control
order, youth justice conferences
C rim e
1 Describe the law in NSW relating to the age

of criminal responsibility. Explain why the laws
differ between children and younger people.
2 Identify the rights of young offenders when
questioned and arrested and discuss how they
differ from the rights of adults.
3 Discuss why young people are treated
differently in the criminal justice system.
Provide examples in your answer.
4 Analyse the main purposes of youth
sentencing and explain how they differ from
adult sentencing.
5 Evaluate the effectiveness of the criminal
justice system in dealing with young offenders
with respect to two issues studied in this
chapter.
115
CHAPTER 6
k ey ter ms/vocab ul ary
International crime
116

s dene international crime
s describe a range of legal measures used to deal with
international crime
s evaluate the effectiveness of the domestic
and international legal systems in dealing with
international crime
Australian Federal Police (AFP)

bilateral agreements
crime against the international community
crimes against humanity
extradition
Geneva Conventions
genocide
human trafcking
International Criminal Court (ICC)
International Criminal Police Organization (INTERPOL)
Nuremburg trials
Rome Statute
state sovereignty
transnational crimes
universal jurisdiction
war crimes

War Crimes Act 1945 (Cth)
Geneva Conventions Act 1957 (Cth)
International Criminal Court Act 2002 (Cth)
International Criminal Court (Consequential
Amendments) Act 2002 (Cth)
Australian Federal Police Act 1979 (Cth)
Criminal Code Act 1995 (Cth)
Australian Crime Commission Act 2002 (Cth)
Extradition Act 1988 (Cth)
S I GNIFICANT TREAT IES , PR OT OC OL S
A N D CONVENT ION S
Rome Statute of the International Criminal Court

Convention on the Prevention and Punishment
of the Crime of Genocide
Geneva Conventions
United Nations Convention against Transnational
Organised Crime
od d l a w
Maritime law is an area of international law
that deals with the legal relationship of ships
in international waters. Under maritime law,
a ships ag will determine the source of the
law. For example, a ship legitimately ying
the Spanish ag in the Persian Gulf would be
subject to Spanish maritime law, whereas a ship
ying a Norwegian ag in Australian waters will
be subject to Norwegian maritime law.
This also applies to criminal law governing
the ships crew for example, an assault
committed among the Norwegian ships crew
while in Australias waters would still be subject
to Norwegian maritime law. A ship must show,
however, that it was ying the ag legitimately
and with more than insubstantial contact
between the ship and the ag.
Cha pter 6: Interna tion al cri me
C rim e
rel ev ant l aw
117
D e f i n i n g i nt e r n a t i o n a l c ri m e
state sovereignty
the authority of an
independent state to
govern itself (e.g. to
make and apply laws;
impose and collect
taxes; make war and
peace; or form treaties
with foreign states)
crime against
the international
community
a most serious
crime of concern
to the international
community as a
whole, and recognised
as punishable by
the international
community
transnational crime
crimes that occur
across international
borders, either in origin
or effect
international crime
a broad term covering
any crime punishable
by a state with
international origin
or consequences, or
a crime recognised
as punishable by
the international
community
Historically, crime has been an issue that states
In more recent years, accompanying the
have dealt with inside their own borders. Societies
advent of globalisation together with increased
within individual nation states have determined
international travel and advances in technology,
which acts are punishable as crimes, and how
opportunities for crimes traditionally committed
those crimes are dealt with and punished in their
locally have increased and will often cross national
local criminal jurisdiction. As a result, criminal
borders. Such transnational crimes have become
laws have traditionally reected the dominant
increasingly problematic within domestic borders,
social and cultural values of each country, varying
where the crimes might originate or where their
from state to state. This concept was discussed in
effects might be felt.

International crime is a broad term that
Chapter 1 in the context of dening crime.

Keeping criminal laws dened and contained
could cover any such crime with international
within national boundaries is for most states a
origin or consequences. There are many types
crucial issue of state sovereignty. Many countries
of international crimes, and many international
view the criminal law as a critical area for indivi-
crimes have existed since before states themselves
dual states alone to decide, without any inter-
were even formed. But until only recently most
ference from outside inuence. The legal systems
such crimes have not been considered outside the
and constitutions of many countries often prohibit
context of domestic law.
any encroachment into state jurisdiction and laws.
International crime poses considerable chal-
But over time societies have evolved, with
lenges legally, nancially and socially. Increased
increased
co-operation
between
states
and
co-operation between nation states is funda men-
changes in the way that states see their role in the
tal if aspects of international crimes are to be
international community. Together with such co-
addressed and justice to be achieved. This chapter
operation has been a growing recognition that
will explore some of the issues related to inter-
certain actions committed within sovereign state
national crime, describe a range of measures that
jurisdictions may be so extreme, and so univer-
the international community has implemented to
sally condemned, as to constitute a crime that
combat international crime, and evaluate the
ought to be universally enforced a crime against
effectiveness of these measures.
the international community.
Figure 6.1 International crime can take many forms.
118
International crimes need to be distinguished from
concern. They include some of the most extreme
crimes that are mere a violation of domestic juris-
crimes possible crimes that are deemed so
diction with some international element. For
serious that they are condemned by the whole
example, an Australian citizen travelling in a for-
international community and may be punishable
eign country who steals a car or assaults another
internationally.
person will be criminally liable in accordance with
There is no fully agreed list of such crimes. Many
that countrys own laws and liable to any appli-
countries will disagree about the specic aspects of
cable sentence that country imposes. Likewise, a
the offence, or about the inclusion of certain
foreign citizen in Australia will be subject to
crimes, but they almost always include certain
Australias criminal laws. This is simply a case of
crimes such as genocide, war crimes, piracy (at
domestic rather than international crime.
sea), hijacking of aircraft and slave trading.
Similarly, there are instances where Australian
The prosecution of crimes against the inter-
legislators have deemed it necessary to criminalise
national community can be controversial. Such
acts committed by Australians travelling abroad -
crimes may be committed in the context of a
one example of such a law is under Part IIIA of
brutal war. They may be highly politically moti-
the Crimes Act 1914 (Cth) on Child Sex Tourism,
vated, or they may (in some contexts) have even
which makes it an offence for an Australian citizen
been ordered or committed by the state itself.
or permanent resident to engage in sexual activity
States can sometimes be unwilling or unable to
with a child under 16 years old while overseas.
prosecute individuals for these crimes, as in some
Even though the criminal act occurs in another
instances those responsible may still be in posi-
jurisdiction, the offender is still liable under
tions of power. In other instances, the offenders
Australian domestic law, or under foreign criminal
may have ed to a different jurisdiction to attempt
law if the act is also a crime in that jurisdiction.
to escape prosecution.
International crimes, however, differ in that
The importance of all states condemning
they involve some crossing of international
crimes against the international community is that
borders in the commission or planning of the
the criminals may be unable to escape prosecution
crime, or in some way involve a breach of the
simply because they are still in power or have ed
criminal standards imposed by the international
outside the jurisdiction. Other states condemning
community. International crime can be broadly
the action may claim a right to prosecute the
divided into two main categories:
offender under a claim of universal jurisdiction,
s crimes against the international community
where another state claims a right to prosecute a
s transnational crimes.
person based on the common international belief
genocide
acts which have
the intention of
destroying all or part
of a national, ethnic,
racial or religious
group
C rim e
C a tegories of i nternat iona l c ri me
universal
jurisdiction
where a state
claims a rare right
to prosecute a
person for actions
committed in
another state, based
on the common
international opinion
that the alleged
crime is so serious
that normal laws of
criminal jurisdiction
do not apply
that the alleged crime is so serious that normal
Crimes against the

international community
laws of criminal jurisdiction do not apply. Some
Crimes against the international community are
universal jurisdiction over such serious criminals
an entirely different class of crimes to domestic
these cases are generally very high-prole and
crimes. Unlike domestic or transnational crimes,
politically controversial.
states, such as Belgium, Spain and the United

Kingdom may be more likely to assert a claim of
crimes against the international community are a
Jurisdiction over universally condemned crimes
collection of offences that are recognised by the
represents a fundamental change to the tradi-
international community as being of universal
tional view of state sovereignty where criminal
119
International Criminal
Court (ICC)
an independent
international court
established by the
Rome Statute in July
2002 to prosecute and
try international crimes
of the most serious
nature
Rome Statute
the Rome Statute
of the International
Criminal Court, an
international treaty
that establishes the
Court
jurisdiction over certain crimes and individuals is
appeals divisions. The Rome Statute gives the
forfeited on the basis that the acts are so extreme
ICC the jurisdiction over three broad categories
and universally condemned that they can no
of international crime: genocide, crimes against
longer be permitted under the laws of any state.
humanity and war crimes. These are discussed

in more detail in the following pages. The ICC also
International Criminal Court

(ICC)
has jurisdiction to prosecute crimes of aggression,
Perhaps the most important development in the
nition (this agreement may have occurred since
law of crimes against the international community
the time of publication).
but member states have not yet agreed on its de-
was the establishment of the International
The ICC is a court of last resort. It is intended to
Criminal Court (ICC) in 2002 in The Hague,
complement rather than exclude existing national
Netherlands. The courts establishment followed
criminal justice systems it can only prosecute a
years of international negotiations and deliber-
case when state courts cannot or are unwilling to
ations, with the eventual signing of a treaty at a
do so. This means that the main responsibility for
crimes against
humanity
acts of a sanctioned
widespread or
systematic attack
against any civilian
population
1968 UN conference in Rome. The treaty became
such crimes, for investigation and prosecuting, is
known as the Rome Statute of the International
still retained by the member states. The ICC can
Criminal Court, or Rome Statute. The treaty
only exercise jurisdiction where:
came into force in July 2002, when the requisite
s the accused is a national of a member state of
war crimes
actions carried out
during a time of war
that violate accepted
international rules of
war
2010, there were over 110 state parties to the ICC.
number of states (60) had formally ratied it. As of

The ICC was established by the international
community as a permanent court and a separate
international entity. It is independent from the
the treaty
s the alleged crime occurred in the territory of a
member state, or
s the situation is referred to the ICC by the UN
Security Council.
United Nations or from any nation state. It consists
Where the ICC convicts an individual, the court
of 18 judges who each come from different signa-
can impose a sentence of imprisonment up to life
tory countries, who operate in pre-trial, trial and
imprisonment (but not the death penalty), which

will be served in a state prison designated by the
court. In addition to imprisonment the court can
order a ne or forfeiture of assets.
R EVI EW 6 . 1
Read the Preamble to the Rome Statute of the
International Criminal Court in the Legal Info
box and answer the following questions.
1 Identify some of the historical incidents
the Preamble refers to in its opening
paragraphs.
2 Describe the nature of crimes that the
Rome Statute aims to include.
3 Describe the main duty that the Rome
Statute imposes on member states.
4 Identify the Rome Statutes position on
international war.
5 Explain how the Rome Statute interacts
Figure 6.2 The International Criminal Court in The Hague, Netherlands
120
with state jurisdictions.
The States Parties to this Statute,
Reafrming the Purposes and Principles of the
Conscious that all peoples are united by common
Charter of the United Nations, and in particular that
bonds, their cultures pieced together in a shared
all States shall refrain from the threat or use of force
heritage, and concerned that this delicate mosaic
against the territorial integrity or political indepen-
may be shattered at any time,
dence of any State, or in any other manner incon-
Mindful that during this century millions of children,
sistent with the Purposes of the United Nations,
women and men have been victims of unimaginable
Emphasizing in this connection that nothing in this
atrocities that deeply shock the conscience of
Statute shall be taken as authorizing any State Party
humanity,
to intervene in an armed conict or in the internal
Recognizing that such grave crimes threaten the

peace, security and well-being of the world,
Afrming that the most serious crimes of concern
to the international community as a whole must not
go unpunished and that their effective prosecution
must be ensured by taking measures at the national
level and by enhancing international cooperation,
Determined to put an end to impunity for the
perpetrators of these crimes and thus to contribute
to the prevention of such crimes,
Recalling that it is the duty of every State to exercise
its criminal jurisdiction over those responsible for
affairs of any State,

Determined to these ends and for the sake of
present and future generations, to establish an independent permanent International Criminal Court in
relationship with the United Nations system, with
jurisdiction over the most serious crimes of concern
to the international community as a whole,
Emphasizing that the International Criminal
Court established under this Statute shall be
complementary to national criminal jurisdictions,
Resolved to guarantee lasting respect for and the
enforcement of international justice,
Have agreed as follows
international crimes,
Genocide
Genocide has long been condemned by the inter-
Article 6 of the Rome Statute gives the ICC crimi-
national community as a crime so despicable and
nal jurisdiction over acts of genocide that occurred
unjustiable that the international community
since July 2002. Genocide includes various brutal
has a responsibility to punish it. Acts of genocide
acts intended to destroy all or part of a national,
were criminalised in one of the rst ever treaties
ethnic, racial or religious group. The Rome Statute
established by the United Nations the Convention
denes the crime of genocide as including:
on the Prevention and Punishment of the Crime of
s killing members of the group
Genocide, rst signed in 1948.
s causing serious bodily or mental harm to members of the group
Genocide is extremely difcult to prove and

cases will involve enormous amounts of documen-
s deliberately inicting conditions of life cal-
tary evidence, forensic evidence, review of killings
culated to bring about the groups physical
and military orders, testimonies, expert opinions
destruction
and others. It can involve accusations of killings of
s imposing measures to prevent births within the

group, or
s forcibly transferring children of the group to
another group.
C rim e
l e g a l i n fo
Preamble to the Rome Statute of the International Criminal Court
countless people, from hundreds to millions. The

court will need to prove beyond a reasonable
doubt an intention to destroy all or part of the
particular group.
121
Figure 6.3 In 1994, about 500 000 of Rwandas Tutsis

and Hutu political moderates were massacred by the
Hutu-dominated government over the space of 100 days.
The church of Nyamata, pictured above, ceased to be a
church when 10 000 people were murdered there.
Nuremburg trials
a series of military
tribunals that took
place from 1945 to
1946; they were held
by the victorious allied
powers in Nuremburg,
Germany after the
Second World War;
the trials are famous
for their prosecution of
prominent leaders of
defeated Nazi Germany
for crimes against
humanity and war
crimes
122
Figure 6.4 During World War II the Nazi party committed acts
of genocide on members of the Jewish community and other
groups.
There are numerous tragic examples of geno-
Tribunal for Rwanda (ICTR). Since its creation,
cide throughout history. However, claims of geno-
the ICC has not yet succeeded in convicting any
cide are often extremely controversial and in some
person of genocide.
cases vehemently opposed by the groups accused

of perpetrating the crime. The most universally
Crimes against humanity
recognised genocide is the killing of six million
Crimes against humanity are a broad range of
European Jews in the Second World War, under a
crimes referring to acts committed as part of a
program of deliberate extermination that was
widespread or systematic attack against any civi-
planned and executed by the National Socialist
lian population. Included under Article 7 of the
German Workers Party (also known as NSDAP or
Rome Statute, the scope of crimes against human-
the Nazi Party), and led by Adolf Hitler. Scholars
ity is signicantly broader than genocide see the
suggest that under the widest denition of geno-
denition in the Legal Info box on the right.
cide, including deliberate extermination of Slavs,
Unlike genocide, which requires proof of inten-
Romani, homosexuals, the mentally ill, political
tion to destroy all or part of a group (national,
opponents and Jehovahs Witnesses, the death toll
ethnic, racial or religious), crimes against human-
was as high as 17 million.
ity can occur against any civilian population, so
Prior to the establishment of the ICC in 2002,
long as the acts are widespread or systematic. The
genocide, as well as war crimes and crimes against
Rome Statute requires multiple commission of any
humanity, were often dealt with by the interna-
of the listed acts, which needs to be under a state
tional community in specic ad hoc tribunals set
or organisational policy to commit such acts.
up to prosecute particular incidents, for example
In effect, genocide and crimes against humanity
the International Criminal Tribunal for the Former
can involve the same or similar devastating acts.
Yugoslavia (ICTY) and International Criminal
Under the current denition, crimes against
R EVI EW 6 . 2
humanity may be easier to prosecute
humanity that were charged included
by the ICC because of the broader de-
reference to genocide, genocide was
Consider the Rome Statutes denition
nition and issues of proof. The fact that
only later separated and individually
of crimes against humanity below and
the term genocide holds such enor-
dened by the 1948 Convention on the
mous political weight also means that
Prevention and Punishment of the Crime
1 Identify some of the differences
political agreement between states to
of Genocide.
prosecute it may be difcult to obtain.
between the crime of genocide
Formerly, crimes against humanity
and crimes against humanity.
were considered to have been com-
Which additional acts are explicitly
symbolic differences between calling
mitted within the context of war,
included?
something genocide versus a crime
although the Genocide Conventions
against humanity, it does not lessen the
contain no such restrictions. This was
crimes against humanity might be
severity of the crime. Initially, genocide
because the crimes were generally
easier to prosecute than the crime
was considered a type of crime against
considered in addition to war crimes
of genocide.
humanity. In the founding Nuremburg
arising from the same historical inci-
3 Article 7(2) of the Rome Statute
trials following the Second World War,
dents. However, the Appeals Chamber
contains extended denitions
the allied powers prosecuted promi-
of the International Criminal Tribunal
of the acts outlined above. You
nent leaders of Nazi Germany for
for the Former Yugoslavia (ICTY) has
can nd the Rome Statute on the
crimes against the international com-
since claried that crimes against
International Criminal Courts
munity. The founding documents of
humanity do not have to be committed
website: www.icc-cpi.int. Looking
the tribunals charged the leaders for
within the context of an armed conict.
at Article 7(2), describe what is
crimes against humanity, as well as war
The current ICC denition contains no
meant by the terms extermination,
crimes. Although the crimes against
restriction to a war context.
torture and forced pregnancy.
l eg al i nfo
While there might be important
C rim e
2 Explain some of the reasons why
Crimes against humanity Article 7 of the Rome Statute

For the purpose of this Statute, crime against
(g) Rape, sexual slavery, enforced prostitution,
humanity means any of the following acts when
forced pregnancy, enforced sterilization, or any
committed as part of a widespread or systematic
other form of sexual violence of comparable gravity;
attack directed against any civilian population, with
(h) Persecution against any identiable group or
knowledge of the attack:
collectivity on political, racial, national, ethnic,
(a) Murder;
cultural, religious, gender as dened in paragraph 3,
(b) Extermination;
or other grounds that are universally recognized as
(c) Enslavement;
impermissible under international law, in connection

with any act referred to in this paragraph or any
(d) Deportation or forcible transfer of population;
crime within the jurisdiction of the Court;
(e) Imprisonment or other severe deprivation of
(i) Enforced disappearance of persons;
physical liberty in violation of fundamental rules of

international law;
(f) Torture;
(j) The crime of apartheid;

(k) Other inhumane acts of a similar character
intentionally causing great suffering, or serious
injury to body or to mental or physical health.
123
War crimes
Geneva Conventions
four treaties and three
additional protocols
that set the standards
in international law for
the humane treatment
of the victims of war
The Rome Statute includes as war crimes any
In its broadest denition, a war crime is an action
grave breaches of the Geneva Conventions, as
carried out during the conduct of a war that violates
well as a long list of serious violations of the laws
accepted international rules of war. There are a
of international armed conict. It is universally
number of international agreements that outline
understood that during the hostilities of armed
actions in war constituting criminal violation
conict there is a need to protect innocent civi-
the most well known of which is the Geneva
lians and their communities from any violence
Conventions. The Geneva Conventions date back
not justied by military or civilian necessity.
as far as 1864 and constitute a series of treaties
For example, war crimes listed under the Rome
and protocols to the treaties that set standards
Statute include:
for humanitarian treatment of the victims of war,
s torture or inhuman treatment, including bio-
such as civilians, the sick and wounded, prisoners

Article 8 of the Rome Statute also provides an
extensive list of activities that can constitute war
crimes. The actions must have taken place during
an armed conict, either international or domestic,
and in particular the ICC has jurisdiction where the
acts are part of a plan or policy, or as part of a
c as e s p ac e
large-scale commission of war crimes.
logical experiments
s willful killing or willfully causing great suffering
of war and medical or religious personnel.
or serious injury
s extensive and militarily unjustied destruction
or appropriation of property
s intentionally directing attacks at civilian populations or objects
s intentionally directing attacks at humanitarian
personnel or equipment.
Prosecution of Sudanese President Omar al-Bashir

On 14 July 2008, prosecutors at the International
forcible transfer, torture, and rape. The charge of
Criminal Court (ICC), led a number of charges
genocide had not been pursued. This was the rst
against Sudans President Omar al-Bashir over
arrest warrant issued by the ICC against a sitting
a series of on-going atrocities in Sudan. The
head of state.
situation had received large-scale international

attention and intensive campaigning by political
leaders, human rights groups and high prole
celebrities.
The charges included 10 charges of war crimes,
three of genocide, ve of crimes against humanity
and two of murder. Prosecutors claimed that alBashir masterminded and implemented a plan to
destroy in substantial part three tribal groups in
Darfur because of their ethnicity.
On 4 March 2009, the ICC issued a warrant
for President al-Bashirs arrest for war crimes,
intentionally directing attacks against a civilian
population and pillaging, and for crimes against
humanity, including murder, extermination,
124
Figure 6.5 Sudanese President Omar al-Bashir
RES E A RCH 6.1

Visit the site of the International Criminal
Court at www.icc-cpi.int.
1 Research Article 8 of the Rome Statute and
identify a list of activities considered to be
war crimes.
2 Research the circumstances that led to
the issuing of the arrest warrant for the
Sudanese President Omar al-Bashir and
C rim e
identify any recent developments in the case.
Transnational crimes
Transnational crimes are crimes that take place
across
international
borders.
Unlike
crimes
against the international community, which are

a class of extremely serious crimes punishable
internationally, transnational crimes are similar
to domestic crimes, such as fraud, hacking or
drug trafcking, but involve movement across
international borders as an element of the criminal
act. Transnational crimes may originate in one
country but be completed in another, or may be
committed in one country but the result or injury
may occur in another.
Some transnational crimes have been around
for centuries, whereas others have been made possible by the development of modern technologies.
Due especially to the rise of rapid international
telecommunications and international travel, local
authorities and policy makers increasingly have
to confront offences and offenders whose origins
Figure 6.6 Acts of physical and mental abuse

committed by US military personnel in 2004
at Abu Ghraib prison, Iraq, were claimed
to constitute war crimes and crimes against
humanity. Acts included torture, rape and
homicide.
are outside their jurisdiction. The move to a global

economy as well as increased volume and diversity
of migration has also led to more transnational
opportunities for crime.
Some of the main types of transnational crimes
include:
s human trafcking and people smuggling
across borders
s international fraud and white collar crime for
example, tax evasion or money laundering
s international terrorism including cyberterrorism such as disruption of infrastructure

including electrical systems or computer
networks
s creation and trafcking of child pornography,
or transnational trade in illegal substances,
including international air, shipping and postal
networks.
s transnational internet crimes including data
It is impossible to itemise all forms of trans-
theft, internet fraud, copyright infringements or
national crime as there may be a number of dif-
spam networks
ferent crimes and parties involved and various
human trafcking
the illegal movement
of people across
borders by force,
coercion or deceptive
means
125
methods employed to commit the crime. Some
s opportunistic desire for power or nancial
crimes may cross many borders for example,
gain.
terrorism may be planned in one country, training
Transnational crimes will usually be prosecuted
can occur in another, funds or materials sourced
under the law of one or another countrys domestic
in another country, while the act itself is carried
jurisdiction. For many crimes, the elements of the
out in the target country. Organised crime rings
crime will not be complete until the border has
can have operations across many countries and
been crossed, and so the target country will often
various elements of the crimes may take place at
be the enforcer, through local legislation and law
many different locations.
enforcement in the target country.
Some of the causes of transnational crimes

might include:
s differences
The nature of transnational crime can make

prosecution very difcult. For example, a person
conditions
in Nigeria who sends bulk spam or fraudulent
between countries, for example human traf-
emails to Australian addresses will be very difcult
cking or even internet fraud originating in less
for Australian law enforcement authorities to track
advantaged countries
down or prosecute. Similarly, the creation and
R E VIE W 6.3
in
socioeconomic
s the desire for prohibited goods or
dissemination of child pornography throughout the
services, where suppliers are based
world is a major concern authorities in Australia
in one country and consumers in
and around the world nd it difcult to break
another
through the anonymity of child pornography rings
s differences in political or ideologi-
that operate throughout many different countries.
crimes differ from ordinary
cal viewpoints, for example, inter-
Due to the difculties in trans-border detection
domestic crimes.
national terrorism or international
and enforcement of criminal laws, many such
hacking for political or ideological
crimes are now underpinned by international co-
reasons
operation agreements between affected countries.
1 Explain how transnational
2 Identify some of the types

of transnational crime.
s hope that the transnational element
These will usually involve a pair or group of
of transnational crimes and
will prevent detection, for example,
countries affected in some way by the trans-border
the difculties in combating
international money laundering or
crime. Some of the methods used to enforce these
them.
tax evasion
laws will be discussed below.
3 Assess some of the causes
Dea l i n g w i t h i nternat iona l c ri me

Dealing
effectively
with
international
crime
cannot operate in a foreign country, Australian
requires a combined approach between domestic
courts do not have jurisdiction over crimes
and international measures. The methods used to
committed under foreign laws and Australian
deal with crimes against the international com-
parliaments cannot legislate on the laws of other
munity and transnational crimes are considered
countries. As a result, the effectiveness of the
separately below.
Australian legal system to respond is inhibited

without co-operation from foreign countries.
Domestic measures
126
There are specic circumstances where exceptions may be possible, for example where express
Domestic responses to international crime are
permission has been granted for the presence of
limited by jurisdiction. Australian law enforcement
Australian law enforcement by the host country
(e.g. assisting in crisis relief efforts), where
this chapter. The ICC is intended to complement
parliament legislates on actions involving Austra-
rather than exclude existing national criminal
lian residents abroad (e.g. child sex tourism laws),
justice systems and it can only prosecute a case
or where a court claims rare jurisdiction under a
when state courts cannot or are unwilling to do
rule of international law (e.g. universal jurisdic-
so. Australia has primary jurisdiction to investigate
tion). However, many other important actions
and prosecute such crimes in Australian territory
have been taken in Australia to combat interna-
or involving Australian citizens.
tional crime and these are considered below.
Australia also has a role to play as a state party

to the ICC and actively participates in discussions
Crimes against the

among the state parties and in administration of
The most signicant recent development in
not yet been any Australian judges appointed to
Australia for dealing with crimes against the
the court. Under the Australian legislation, the
international community was the signing and
Commonwealth Attorney-General must report
ratication of the Rome Statute. Australia was one
annually on the operations of the ICC, and on any
of the rst signatories of the Rome Statute, signing
impact to the Australian legal system. According to
on 9 December 1998. Australia ratied the statute
the report of the Attorney-Generals Department
on 1 July 2002, which was the date the statute
for 200809, there have so far been no Australian
came into force internationally.
prosecutions for crimes under the Act, and the
Prior to the introduction of the Rome Statute,

Australia had legislated to criminalise a number of
C rim e
the court. At the time of publication, there have
ICC has had no discernable impact on Australias

legal system.
recognised crimes against the international community. For example, the War Crimes Act 1945
Transnational crime
(Cth) and in particular the Geneva Conventions Act
The Australian Government, like many govern-
1957 (Cth), which outlawed the recognised war
ments around the world, has moved in recent
crimes listed in the Geneva Conventions. Coinciding
years to combat the rise of transnational crimes.
with Australias ratication of the Rome Statue,
The following are some of the measures in place
the federal government passed the International
to monitor and respond to issues of transnational
Criminal Court Act 2002 (Cth) and the International
crime.
Criminal Court (Consequential Amendments) Act

2002 (Cth), to ensure that Australias domestic
A U STRA L I A N FEDE RA L PO L I C E (A FP )
laws would comply with the statute. In addition
The Australian Federal Police (AFP) was estab-
to procedural amendments, the legislation intro-
lished under the Australian Federal Police Act 1979
duced a new section to Commonwealth Criminal
(Cth) to enforce Commonwealth criminal law
Code, Chapter 8 Offences against Humanity and
and to protect Australias interests from crime in
Related Offences. The new section created domestic
Australia and overseas. It works closely with a
offences in Australia for all the crimes listed in the
range of law enforcement bodies at state, territory,
Rome Statute. It also incorporated some of the
Commonwealth and international levels.
existing offences, such as many of the previous
The role of the AFP has grown considerably
war crimes listed under the Geneva Conventions
in recent years with the growth in transnational
Act 1957 (Cth).
crime. In addition to its many domestic duties, the
As a consequence, any crime against the inter-
AFP is engaged in various international activities
national community outlawed by the Rome Statute
in the region and worldwide. This includes posts
is also criminalised within Australia. The ICCs role
in more than 25 countries, deployment of Austra-
as a court of last resort was discussed earlier in
lian police for international capacity-building,
Australian Federal
Police (AFP)
Australias
Commonwealth
police force
established to enforce
Commonwealth
criminal law and to
protect Australias
interests from crime in
Australia and overseas
127
Figure 6.7 The AFP played an important role in investigating and arresting suspects of the 2002 Bali
bombings in Indonesia.
monitoring and peacekeeping, as well as specialist
regional law enforcement skills to deal with
training for international law enforcement agencies
transnational crime. Over 5000 participants have
to help prevent transnational crimes at their source
now completed the Jakarta Centres programs,
and encourage greater international co-operation.
which include skills like criminal intelligence,
Some of the AFPs international operations
forensics and nancial investigations.
include child protection, terrorism operations,
The AFP is also continuing to develop relations
stopping human trafcking and drug operations.
with other regional bodies such as the South
For example, the Jakarta Regional Co-operation
East Asian Regional Center for Counter-Terrorism
Team has assisted Indonesian police to investigate
in Kuala Lumpur and the International Law
and arrest suspects of the 2002 Bali bombings
Enforcement Academy in Bangkok.
in Indonesia, as well as the bombings of the
128
Australian Embassy and the Marriot Hotel in
C O M M O NWEA LTH ATTO RNEY-G E NE R A L S
Jakarta in 2004 and 2005 respectively. The AFP
DE PA RTM ENT
has also established the Jakarta Centre for Law
The Commonwealth Attorney-Generals Depart-
Enforcement Co-operation, which aims to enhance
ment plays varied roles in relation to transnational
Human trafcking is a very serious issue in
attempting to tackle the issue from initial recruit-
transnational crime. It involves the movement
ment to eventual reintegration of victims, including:
of people by force, coercion or deceptive means,
s AFP funding to strengthen its ability to detect,
often trafcking women and children into the sex

industry. The global trade in people is a complex and
difcult crime to eradicate and estimates suggest
there are between 500 000 to 4 000 000 victims
annually. In the last decade, over 250 matters of
trafcking in Australia were referred to the AFP.
The Australian Government has introduced a
investigate and provide specialist training for

tackling the crime
s National Policy Strategy to combat trafcking of
women for sexual servitude
s Victim support measures and special visa
arrangements to support victims of trafcking
s Co-operation with regional and international
number of measures since 2003 to combat human
agencies in tackling the sources and prosecuting
trafcking. Various offences related to human
the offenders
trafcking are found in the Criminal Code Act 1995
C rim e
l e g a l i n fo
Stopping human trafcking
s Support and training for the Commonwealth
(Cth), including slavery or any commercial
Director of Public Prosecutions to help prosecute
transaction involving a slave, sexual servitude or
people trafcking.
deceptive recruiting, or trafcking in persons and
The issue of human trafcking is explored in more
forced labour. Similar legislation has been passed in
detail in Chapter 9.
Australian states and territories. The government

has also dedicated a signicant amount of money
(about $60 million from 2003) to tackling the problem involving numerous government bodies and
crimes. It reports and provides valuable advice

on Australias compliance with its international
obligations, oversees the operation of legislation
relating to transnational crimes and provides
advice on their implementation and provides
general information to the public and to parliament
on the status of Australias efforts against transnational crime.
A USTRALIAN CRIME C OMMIS S ION ( AC C )
The Australian Crime Commission (ACC) is a

national statutory body established under the
Australian Crime Commission Act 2002 (Cth) to
combat serious and organised crime. It investigates
matters of national concern and in coordination
with other international law enforcement agencies
Figure 6.8 Campaigns to raise public awareness of human trafcking,

such as this one from the United States, are becoming more
prominent around the world.
129
it delivers specialist law enforcement capabilities
international agencies to detect and deter the
to assist in investigating and analysing intelligence
unlawful movement of goods or people across
concerning national and transnational crimes.
Australias borders.
According to the ACCs 2009 report Organised

Crime in Australia, most signicant organised crime
A U STRA L I A N H I G H TEC H C RI M E C EN T R E
groups operating in Australia have an international
(A H TC C )
dimension to their interests. Some areas the ACC
The Australian High Tech Crime Centre (AHTCC)
specically investigates include South East Asian
was created in 2002 to coordinate all Australian
organised crime, the primary point of heroin into
law enforcement authorities in ghting serious
Australia, as well as money laundering and tax
types of crime that involve the use of technology.
fraud, identity crime, and human trafcking for
It now forms part of the AFPs High Tech Crime
sexual exploitation.
Operations. Its main functions include:

s coordinating a national approach to serious,
AUS T R AL IAN C US T OMS AND B O RDER

PR OT EC T ION S ER VIC E
The Australian Customs and Border Protection
complex and multi-jurisdictional crimes

s assist all Australian jurisdictions in their ability
to deal with high-tech crime.
Service is a national agency responsible for the
The AHTCC has representatives from every
security and integrity of Australian borders. The
Australian jurisdiction and is funded by all states
agency works closely with other government and
and territories.
Figure 6.9 The Australian Customs and Border Protection Service is a national agency responsible for
the security and integrity of Australian borders.
130
S TATE B OD IES
s co-operation between governments through
There are numerous state and territory bodies that
international treaties and international organi-
investigate transnational crimes due to their cross-
sations targeted at specic types of international
jurisdictional nature. In NSW, some of these include

the Independent Commission Against Corruption
crime
s international courts and tribunals to deal with
enforcement of international crimes
(ICAC), the NSW Crime Commission, the Police

Integrity Commission and divisions within the
s co-operation and intelligence sharing between
NSW Police Service. Intelligence sharing and co-
national and sub-national agencies to tackle
operation and co-ordination between national,
problems of trans-border crime.
transnational crimes.
RE VIE W 6.4
1 Describe the domestic regime in Australia
applying to crimes against the international
community.
2 Outline some of the domestic measures
available to Australia to combat
transnational crime.
3 Evaluate the effectiveness of using
domestic measures alone in dealing with
international crime.
Crimes against the

Most of the international efforts aimed at preventing or prosecuting crimes against the international
C rim e
state and territory bodies is essential in combating
community have already been discussed above.

Governments have showed continuing commitment and close co-operation in their development
of international treaties such as the Geneva
Conventions and the Rome Statute of the International
Criminal Court. It is in the nature of such crimes
that the international community recognises and
universally agrees to condemn them.
C O U RTS A ND TRI B U NA L S
Prior to the establishment of the ICC, these crimes
There have been many different international
courts or military tribunals on a case-by-case basis.
measures aimed at tackling international crime.
However, throughout the 20th century, various ad
These measures can be generally divided into the
hoc international tribunals were also established in
following categories:
order to prosecute atrocities relating to particular
le g al li nk s
International measures
were usually dealt with on a domestic level by
TRIAL (Track Impunity Always) is an
International Criminal Court. Its website
independent Swiss association that works
tracks the progress of cases involving
for justice against the perpetrators,
crimes against the international
accomplices and instigators of genocide,
community, and is available at:
war crimes and crimes against humanity.
www.trial-ch.org/en
It occasionally appears before courts

on behalf of victims, including the
131
l e g a l i n fo
Matters before the ICC

By 2010, the following situations have been referred
s the situation in the Central African Republic
to the ICC for consideration:
s the situation in the Republic of Kenya.
s the situation in Uganda

s the situation in the Democratic Republic of the
Congo
s the situation in Darfur, Sudan
events. For example, the Nuremburg trials or
EX TRA DI TI O N TREATI ES
Tokyo trials prosecuted crimes against humanity
One of the most important tools in ghting inter-
extradition
the legal surrender
of a suspect or
convicted criminal
by one jurisdiction
to another to face
criminal charges or
sentence
and war crimes relating to the Second World War.
national crime is the use of extradition treaties.
More recently, the International Criminal Tribunal
Extradition is the process whereby one country
for the former Yugoslavia (ICTY) was established
surrenders a suspect or convicted criminal to
in 1993 by the UN Security Council to investigate
another country to face criminal charges or
and prosecute individuals for war crimes, crimes
sentencing. For example, if a person commits
against humanity and genocide committed during
murder in another country and ees to Australia
bilateral agreement
an agreement
between two
countries
the Yugoslav conict between 1999 and 2001.
before they are caught, they might be extradited
Since 2002, the International Criminal Court

has launched investigations and prosecutions into
back to the original country. It is relevant to all

types of crimes, including international crimes.
a number of more recent events. To date, a number
International extradition is generally governed
of state parties have requested investigations into
by a series of bilateral agreements between
internal matters and one matter has been referred
Australia and other countries. Australia currently
to the court by the UN Security Council.
has extradition agreements with about 130 countries a full list is provided on the website of the
Commonwealth Attorney-Generals Department
R ESEARCH 6.2
traditiona ndmut ua lassist a nce _ Relationship
Court (www.icc-cpi.int) and the internet
withothercountries_ Alphabeticalcountrylist).
generally, research two of the situations listed
However, a few international agreements also have
in Legal Info above, and answer the following
their own specic extradition arrangements, inclu-
questions.
ding the Rome Statute of the International Criminal
1 Explain what events the situation relates to.
Court and the Genocide Conventions. For example,
2 Identify when the situation was referred to
Australia has received three extradition requests
the ICC and who referred it (e.g. state or UN
from the ICTY against people residing in Australia
Security Council).
accused of committing war crimes.
3 Identify some of the accused persons and
In Australia, extradition is governed by the
describe what stage their matter is currently
Extradition Act 1988 (Cth). The Act sets out the
at, e.g. pre-trial, trial or appeal.
criteria required before extradition will be granted.
4 Describe any new situations that have been

referred to the ICC.
132
(see: www.ema.gov.au/www/agd/agd.nsf/Page/Ex
On the website of the International Criminal
It must be determined that the accused has a case

to answer on the evidence and that the accused
By Angus Hohenboken
The Australian, 12 February 2010
The High Court has granted the Croatian

Government special leave to appeal a
full federal court decision preventing
the extradition of Serbian paramilitary
leader Captain Dragan to Croatia to face
questioning over his alleged involvement in
war crimes.
The Croatian Governmentargues the
decision has wide implications for Australias
ability to pursue the alleged perpetrators of
international crimes.
In its application the Croatian Government
said that the Federal Court was wrong to
conclude that Mr Vasiljkovic, an Australian
citizen, could not receive a fair trial in Croatia
because of his political beliefs.
Under section 7c of Australias Extradition
Act, an accused person can be exempted
from extradition if on surrender to the
extradition country the person may be
prejudiced at his or her trial, or punished,
detained or restricted in his or her personal
liberty, by reason of race, religion, nationality
or political opinions.
The full Federal Court found in its
September judgment that Croatias courts
had allowed its own soldiers to rely upon
their service in the Croatian armed forces
during the Balkans homeland war to
mitigate sentences in criminal matters, but
Serbian soldiers had not received the same
considerations.
The Federal Court concluded that,
if convicted, Mr Vasiljkovic might be
incarcerated for a longer period than
a Croatian counterpart, largely as a
consequence of his political beliefs.
The Croatian Government will argue that
the Federal Court wrongly concluded that
Mr Vasiljkovic might receive a longer
sentence if convicted because of his political

beliefs, and that the mitigating factor applied
to Croatian soldiers was irrelevant to Mr
Vasiljkovic.
Mr Vasiljkovic was the commander of a
paramilitary unit known as the Red Berets
during the ethnic conict in the Balkans
between 1991 and 1993.
The Republic of Croatia wishes to question
Mr Vasiljkovic in relation to allegations against
him including that he directed his troops
to commit the war crime of torture and
committing the war crime of torture during his
time in Srpska Krajina, a Serbian-dominated
part of Croatia, until 1993.
He has vigorously denied the claims
Last February, a Federal Court judge
dismissed a challenge by Vasiljkovic, against
a magistrates nding that he was eligible for
surrender to the Republic of Croatia.
But in September, a full bench of the court
allowed Mr Vasiljkovics appeal, and he was
released from Sydneys Parklea prison after
almost four years in custody.
C rim e
m e d i a cl i p
Croatia to appeal to High

Court over Dragan Vasiljkovic
extradition
R EVI EW 6 . 5
Read the Media Clip and complete the
following tasks:
1 Identify the types of crimes Mr
Vasiljkovic is accused of and the
international situation that they
allegedly occurred in.
2 Explain the nature of the extradition
request involved and identify the main
issue that Australian courts have raised.
3 Outline the court process that Mr
Vasiljkovics case has progressed
through.
4 Evaluate whether you think justice can
be properly served in this case.
133
will receive a fair trial in the state to which they
created in 1923 as a means to improve trans-
are being returned. It must also be shown that
national cooperation between police around the
the offence is a crime in both Australia and the
world. Its mission is to prevent or combat inter-
target country.
national crime. Its headquarters are now situated
Extradition is an extremely important method

for combating international crime as it ensures
in Lyon, France.
INTERPOL currently lists its six priority crime
that an offender cannot simply ee the jurisdiction
areas as:
where the offence was committed in order to
s drugs and criminal organisations
escape prosecution for their crime. The case of
s public safety and terrorism
Dragan Vasiljkovic (discussed in the media clip)
s nancial and high-tech crime
illustrates some of the issues that may arise under
s trafcking in human beings
an extradition request for international crimes.
s fugitives
s corruption.
Police Organization
(INTERPOL)
the worlds largest
international
police organisation
established in 1923 to
facilitate collaboration
among intelligence
agencies around the
world
Transnational crimes
At any given time, the organisation is engaged
There is a long list of international organisations
in numerous world-wide operations investigating
and international treaties that aim to combat
and providing advice to national law enforcement
transnational crimes, either in general or targeting
agencies on transnational crimes. For example,
specic crimes. Some specic examples of these
some of its current operations include targeting
are provided below.
organised crime in Asia and Eurasia, international

counterfeiting and money laundering, trafcking
IN T ER N AT ION AL C R IMIN AL PO L I C E
OR GAN IZAT ION ( IN T ER POL )
in arms and drugs, or international terrorism.

There has recently been some movement
The International Criminal Police Organization
towards developing a global police force, advo-
(INTERPOL) is the worlds largest international
cated by INTER POL in cooperation with the United
police organisation and to date it has 188 member
Nations, to improve the skills of police peacekeepers
countries, including Australia. INTERPOL was
and sharing of communications net works and

criminal data. One effect might be to increase the
ability to track the movement of criminals around
the world by sharing resources and common
standards.
R ESEAR CH 6 . 3
INTERPOLs website at www.interpol.int
contains detailed information on transnational
crime. Select one of INTERPOLs priority crime
areas and research it on INTERPOLs website,
then answer the following questions:
1 Identify the types of transnational crimes
that are included in that priority area.
2 Describe the background to one of the
crimes as explained by INTERPOL.
3 Assess some of the measures that INTERPOL
Figure 6.10 INTERPOL headquarters building in Lyon, France.
134
is taking to deal with the crime.
s Protocol to Prevent, Suppress and Punish
C O NVENTION AGAIN S T
T R ANSNATIONAL OR GAN IZED C R IME
Trafck ing in Persons, Especially Women and
The United Nations Convention against Trans-
Children
s Protocol against the Smuggling of Migrants by
national Organized Crime is regarded as the main

international instrument in the ght against trans-
Land, Air and Sea
national organised crime. It began operation
s Protocol against the Illicit Manufacturing of
in 2000 and has three protocols that countries
and Trafcking in Firearms, Their Parts and
become a party to once they sign the convention.
Components and Ammunition.
For more information on the
website of the United Nations
United Nations Convention
Ofce on Drugs and Crime at:
against Transnational Organised
www.unodc.org/unodc/en/
Crime and its Protocols, visit the
treaties/CTOC/index.html.
C rim e
l eg a l l i n k s
These include:
Signature states commit themselves to ensur-
states with a focus on combating cross-border
ing their own domestic criminal offences regulate
criminal activity such as drugs and arms smug-
participation of organised crimes, money launder-
gling or money laundering. It manages, coordinates
ing and other aspects of corruption. States must
and enhances law enforcement intelligence across
also adopt broad changes to extradition pro-
the region. Pacic countries have been identied
cedures, commit to providing mutual legal
as particularly vulnerable to the threats of trans-
assistance and co-operation between law enforce-
national crime, especially from organised crime
ment agencies, and undertake to upgrade the
groups. Pacic nations may have less resources to
capacity of national authorities to deal with
tackle law enforcement or to detect and prosecute
organised transnational crime networks.
such crimes and the PCTN provides technical

assistance, training, resource sharing and helps to
PA CIFIC TRANSN AT ION AL C R IME

N E TW ORK (PCTN )
strengthen the rule of law in Pacic countries.

The PCTN has been successful in the region.
The Pacic Transnational Crime Network (PTCN)
For example, in 2004 the then largest metham-
was formed in July 2002 as a response to increases
phetamine laboratory in the southern hemisphere
in regional transnational crime. It was an initiative
was discovered and dismantled in Suva, Fiji. The
of the AFP, who realised that strong relationships
laboratory posed serious environmental and physi-
were needed between Australia and its Pacic
cal danger to local communities, and the drugs
neighbours if they were to combat the problem of
were potentially destined for markets in Australia
transnational crime. The networks headquarters
and New Zealand, Europe and the United States.
are currently located at the Pacic Transnational
Recently, some high-prole arrests have been made
Crime Co-ordination Centre in Apia, Samoa.
of Pacic regional gures engaged in various immi-
The PCTN with the AFP has created a regional

network of transnational crime units in Pacic
gration, nancial fraud and money laundering

activities.
135
The ef fec t iveness of mea s u res

dea l i n g w i t h i nternat iona l c ri m e
Some of the most signicant measures used in
combating international crime were described
Crimes against the

above. However, due to the complex and difcult

nature of transnational crimes, the effectiveness
Clearly the most signicant development in
of those measures is mixed.
combating crimes against the international community has been the establishment of an ICC,
Transnational crime
which followed numerous specic tribunals set
For transnational crimes, there are often complex
situations like Rwanda and Yugoslavia.
organised criminal groups at work with often
A permanent court such as the ICC is symbolically
sophisticated measures taken to avoid detection.
very powerful, and sends a message that leaders
Authorities around the world have to combat
or other criminals can no longer hide behind the
a number of crimes, including identity fraud,
immunity of their own sovereignty in committing
internet crime, paedophilia rings and the trafck-
such appalling acts. The threat of later prosecution
ing and smuggling of people and contraband.
may act as a deterrent against rogue leaders using
Some states may lack the skills, training and
any such tactics. It also offers enormous support to
resources to combat such crimes or may be
victims of the crimes by attempting to bring to justice
unable due to political unrest or high levels of state
those responsible for these human atrocities.
corruption. Such states may become a target or a
However, the tribunals and the ICC have not
breeding ground for transnational crime affecting
been without criticism. In particular, the courts are
other states and making it very difcult to combat
established to deal with these atrocities after they
the problem. The main areas for efforts against
have been committed, and there is valid criticism
transnational crime to address include:
that international law and the international
s the extent of international cooperation between
community have been too slow to stop these
states provision of adequate resources
136
up to cope with crimes committed during specic
atrocities before they occur, or even while they
s the effectiveness of coordination among inter-
are occurring. Unlike domestic courts, short of
national agencies exchange of information
rare intervention by the UN Security Council,
s the level of compliance among weaker or poorer
there is also no international force or police that
states states where rule of law may be weak
can capture such offenders, especially where they
become targets by organised crime groups.
remain inside their own state jurisdiction.
To be successful, states will require signicant co-
This is particularly evident, for example, in the
operation and sharing of skills, resources, funding
conict in Darfur, Sudan, where charges by the
and intelligence on an unprecedented scale. To
ICC were not laid against President al-Bashir until
date, some important measures, both domestic
2008, ve years after the atrocities began. This
and international, have been put in place to cope
was some 15 years after the world had witnessed
with transnational crime and there has been some
the gruesome genocide in Rwanda, where 500 000
success in response. However, as with domestic
people were killed within just 100 days, which the
crime, transnational crimes are unlikely to dis-
international community had condemned and
appear any time soon and as the world changes
vowed never to let happen again. In Sudan, at the
an increased effort will be needed to tackle the
time of publishing President al-Bashir is still in
issues it presents.
ofce and has not been apprehended.
C rim e
member state
treaty signed but not yet ratied
non-member state
Figure 6.11 Member states of the International Criminal Court (as at October 2009).
The enormous cost of such investigations and
fear subjecting themselves to investigation over
prosecutions also needs to be borne by member
their own affairs, for example India over Kashmir,
states. As such it is never likely to be possible for
or China over Tibet or Xinjiang. Nevertheless, the
the international community to prosecute all of the
ICC only has jurisdiction for crimes committed
offenders who commit these crimes. Having said
after its establishment, and it still has jurisdiction
this, a permanent court, with established investi-
over any individuals from non-member states
gative and court mechanisms as well as perma-
who commit crimes against or in the territory of
nent staff, is a step towards greater efciency.
a member state. Supporters of the court argue
The effectiveness of any international institution
that the danger of crimes against the international
will usually come down to the sum of its parts.
community occurring again without independent
While the ICC now has over 110 member states, it
oversight or responsibility ought to outweigh the
crucially lacks some of the worlds most important
national interests of state parties.
and inuential countries. These include some
The continued development of the international
of the worlds major powers (such as the United
criminal justice system is a promising tool in
States, China and India), as well as some very
combating crimes against the international com-
inuential countries (such as Pakistan, Vietnam
munity. With adequate resources and political
and Indonesia).
determination by states around the world, the ICC
Most objecting states claim that joining the
has the potential to make a signicant difference
ICC would violate their state sovereignty. As dis-
in preventing further atrocities or bringing to
cussed above, one of the biggest advantages of
justice those responsible where they do occur. At
the Court is that it can act independently of state
this stage it is too early to genuinely comment on
jurisdictions where they are unwilling or able to do
its success its true effectiveness will be judged as
so. However, critics claim that in many cases states
history unfolds throughout the 21st century.
137
138
s International crime includes transnational

crimes and crimes against the international
community.
s Crimes against the international community
include genocide, crimes against humanity
and war crimes. These crimes are punishable
internationally.
s Transnational crimes are crimes that occur
across international borders, in origin or
effect.
s The main development in dealing with crimes
against the international community is the
establishment of the International Criminal
Court (ICC) in The Hague, Netherlands.
s Extradition is an agreement between states

that allows transfer of suspects and prisoners
between states for trial or sentencing.
s There has been a growth in the federal and
state agencies responding to the threat of
transnational crime.
s Greater coordination of international agencies
and a sharing of resources are considered
essential in combating transnational crimes
regionally and internationally.
s Greater state agreement and support, as well
as improved methods of enforcement, are
required to effectively prevent crimes against
the international community.
1 Which of the following contains an example of

both a transnational crime and a crime against
the international community?
a genocide and war crime
b drug trafcking and human trafcking
c murder and money laundering
d genocide and human trafcking
2 Genocide is most accurately dened by which
of the following statements?
a acts which have the intention of destroying
all or part of a political, ethnic, racial or
religious group
b acts which have the effect of destroying
all or part of a national, social, ethnic or
religious group
c acts which have the intention of destroying
all or part of a national, ethnic, racial or
religious group
d all of the above
3 Which of these statements is the most correct
explanation of complimentary jurisdiction of
the ICC?
a it allows member states courts to
investigate crimes against the international
community
b it allows member states courts to
investigate and prosecute crimes against
the international community
c it allows regional courts to investigate and
prosecute crimes against the international
community
d none of the above
4 The Extradition Act 1988 (Cth) raties a

number of international treaty agreements
entered into by the federal government.
Which of the following statements best
reects the criteria followed by the federal
government when deciding to return an
offender to another nation state?
a that the offence is criminal in both states
and that the accused will receive a fair trial
b the accused has a case to answer on the
evidence, that the accused will receive a
fair trial in the country to which they are
being sent, and that the offence is criminal
in at least one of the states
c the accused has a case to answer on the
evidence, that the accused will receive a
fair trial in the country to which they are
being sent, and that the offence is criminal
in both states
d the accused has a case to answer on
the evidence, the accused will meet bail
conditions, and that the offence is criminal
in at least one of the states
5 The growth in transnational crimes has mainly
been attributed to which of the following?
a better communication
b growth of technology
c ease of movement between jurisdictions
d all of the above
C rim e
Ch a p te r s u m m a ry ta s k s
1 Dene international crime and describe how

it differs from ordinary domestic crime.
2 Explain the difference between genocide and
crimes against humanity.
3 Identify two domestic responses to
international crime and assess their
effectiveness in dealing with the problem.
4 Evaluate the effectiveness of the International
Criminal Court (ICC) in dealing with crimes
against the international community.
5 Evaluate the effectiveness of international
measures dealing with transnational crime.
139
T h e m e s a n d ch a l l e n g e s
The role of discretion in the criminal justice

system
s Discretion acknowledges that the law can

be a blunt instrument in delivering justice.
It allows individual circumstances to be
taken into account when applying the law.
It is considered important if the criminal
justice system is to balance the rights of the
community with the rights of individuals the
accused and victims if it is to address the
tension between these competing interests.
Discretion can also be used in a biased or
corrupt way undermining justice.
s Discretion is a part of most steps in the
criminal justice system. There are many
people in authority who have discretionary
power in the exercising of their roles. Police
have discretionary powers of arrest in certain
matters and they also have discretion in the
exercising of their powers when carrying out
their duties. References to course material
can be used here and critiqued.
s The Director of Public Prosecutions (DPP)
has discretion with respect to what matters
they will prosecute. They examine if there
is enough evidence and if it is in the public
interest to prosecute.
s Magistrates and judges have discretion in
matters pertaining to bail, rules of evidence
and procedure as well as in sentencing
matters. They also have discretion in matters
on appeal. Reference to these areas and
more, and an evaluation of the course content
is essential.
Issues of compliance and non-compliance in
regard to criminal law
s The majority of individuals within a society

obey the law most of the time. Individuals
also enjoy the freedoms and protection a
well-organised and, at times, well-regulated
society gives. It is partly for this reason
that the majority complies with the law.
The law can also enforce compliance and
sanction violations on behalf of society where
individuals do not comply.
140
s Some of the reasons why people do not

comply with the law include greed, selfinterest, thrill, peer pressure, addiction,
mental illness, political need or necessity.
There is no set pattern and the specic
reason for an individuals non-compliance may
vary.
s Issues that could also be critiqued could
include ways in which the criminal justice
system tries to ensure greater compliance
through:
crime prevention (situational and social)
more effective investigation of crime
the purposes of punishment to reduce
criminal behaviour (the lack of success with
high rates of recidivism)
emphasis on rehabilitative initiative with
young offenders (such as youth justice
conferencing)
measures to combat transnational crime.
The extent to which the law reects moral and
ethical standards
s Crimes are actions that individual societies

have decided should be illegal. For this
reason, jurisdictions will differ in what actions
will constitute a crime, and crimes will change
over time.
s Most crimes are the result of moral and
ethical judgments by society (public morality),
about behaviour that may be deemed harmful
and therefore warrant sanctions by the
state. In other words, what currently exists in
international law, statute and common law is
a reection of our public morality. The ways
the law may change to respond to shifts in
public morality, and the areas today that are
in a state of ux, reect the moral and ethical
standards of our community. Some examples
may include:
specic domestic legislation and
international treaties concerning
international crime that reect a degree of
public morality
areas where there have been law reforms
or changes to the law as a result of shifting
public morality sentencing laws, sexual
The role of law reform in the criminal justice

system
s Any example where the law changes is

law reform. There are many examples
already contained in the previous chapters.
Agencies of law reform such as Law Reform
Commissions, Parliament, Courts and other
non-legal measures can be examined here
with examples of how they have reformed
the law. Some examples of law reform in the
criminal justice system could include:
laws of sexual assault
majority verdicts in juries
guidelines in plea bargaining, alternative
methods of sentencing such as circle
sentencing, restorative justice
youth justice conferencing or other
alternatives for young offenders
alternatives to full-time imprisonment such
as periodic detention, home detention or
community service orders
international crime the ICC, INTERPOL or
initiates of the AFP
failure of the existing law to deal effectively
with sexual assault matters (low reporting
and conviction rates)
rehabilitation, rates of recidivism refer to
the prison system
gathering of evidence DNA, surveillance,
remote witness facilities, transcript
evidence; balancing police powers with
the rights of the individual; reliability and
process of such evidence contributing to
delays of court system.
The extent to which the law balances the
rights of victims, offenders and society
s This picks up on part of the principal focus of

the topic, the tension between community
In many instances societys needs may be
outweighing the rights of individuals in light
of, for example, anti-terrorism legislation

or restriction in bail laws, where individual
civil liberties have been eroded in the name
of protection of the community. The law
and order debate that has been ongoing in
some areas has gained the upper hand in the
balancing act which is the tension mentioned
above.
s Areas that could be critiqued include police
powers against the rights of suspects, or
the criminal trial procedures that aim to
balance the rights of victims, offenders and
society. The right to a fair trial, supported
by strict rules of evidence and procedure, is
fundamental to the criminal justice system
and this balancing act. The criteria used by
judges when sentencing is also a feature
of this balance and ongoing tension. This
balance is further reected in the decision
to grant bail, plea bargains negotiated by
the DPP and the ability of the international
criminal justice system to bring offenders of
mass atrocities to justice. These are just some
of the areas to be addressed in respect to this
theme.
C rim e
assault laws, decriminalisation of certain

behaviours, legislation concerning young
offenders, the growth of the international
criminal justice system.

measures in achieving justice
s This is a very broad theme that can be

applied across all aspects of the crime topic.
The legal measures include all institutions
and processes enabled by law to deal with
aspects of the criminal justice system. Nonlegal measures must also be critiqued as a
change agent that can help improve, develop
awareness of, or pressure law-makers to
regulate or deal with an area of concern
within the criminal justice system.
s Broad areas of criminal law may be
chosen that outline the statute/common
law responses such as young offenders,
international crime, or the sentencing
process. Non-government organisations, the
media and so on can also be highlighted here
and their role outlined and evaluated.
2010 Copyright Board of Studies NSW for and on behalf of the Crown
in right of the State of New South Wales. HSC Legal Studies Syllabus 2009.
141
PART II
Human rights
Human rights
Principal focus
20% of course time
Through the use of a range of contemporary examples, students investigate the

notion of human rights and assess the extent to which legal systems embody
such human rights and promote them in practice.

Themes and challenges to be incorporated throughout Part II include:
s the changing understanding of the relationship between state sovereignty
and human rights
s issues of compliance and non-compliance in relation to human rights
s the development of human rights as a reection of changing values and
ethical standards
s the role of law reform in protecting human rights
s the effectiveness of legal and non-legal measures in protecting human rights.
At the end of Part II, on page 220, you will nd a summary of the themes and
challenges relating to human rights. The summary draws on keys points from
the text and links them to each of the themes and challenges. This summary is

paper will consist of 3 sections.
Questions relating to Part II of the syllabus Human rights will appear in
Sections 1 and 2 of the examination.
Section I: Core

based on Human Rights)
Questions to the value of 5 marks will be drawn from Human rights. Some of
these questions may be based on, or refer to, stimulus materials.
Section II: Core

based on Human Rights)
Section II will be divided into two parts, Part A and Part B. Only Part A will
relate to Human rights. There will be three or four short-answer questions to the
value of 15 marks. These questions may be in parts. These questions may refer
to stimulus materials.
142
7 The nature and development of human rights

formal statements of human rights
Universal Declaration of Human Rights
International Covenant on Civil and Political
Rights
International Covenant on Economic, Social
and Cultural Rights
H
C rim
u m an
e rig hts
the definition of human rights

developing recognition of human rights
the abolition of slavery
trade unionism and labour rights
universal suffrage
universal education
self-determination
environmental rights
peace rights
8 Promoting and enforcing human rights

In the international community:
state sovereignty in the international
community
the role of the United Nations
the role of intergovernmental organisations
the role of the courts, tribunals and
independent statutory authorities
the role of non-government organisations
the role of the media.
In Australia:
the incorporation of human rights into
domestic law
the role of the Constitution, including division
of powers and separation of powers
the role of statute law
the role of common law
the role of courts and tribunals
the role of non-government organisations
the role of the media
the role of a Charter of Rights (arguments for
and against).
9 Contemporary issues illustrating the promotion and/or enforcement of human rights

Issue 1: Human trafficking and slavery
143
CHAPTER 7
k ey t er ms/vocab ul ary
The nature
and development of
human rights
144

s dene the concept of human rights
s explain the origins of the modern concept of human
rights
s describe the achievements of the various
movements for human rights
s identify the various types of human rights that have
developed over the last two centuries
s locate the details of key human rights treaties
abolitionism
collective right
debt slavery
fascism
Four Freedoms
hard law
human rights
human trafcking
inalienable right
Industrial Revolution
International Bill of Rights
International Covenant on Civil and
Political Rights (ICCPR)
International Covenant on
Economic, Social and Cultural
Rights (ICESCR)
international customary law
International Labour Organization
(ILO)
labour rights
s discuss the signicance of the Universal Declaration

of Human Rights (UDHR) for the post-war
development of international human rights law
s communicate the main features of the Universal
Declaration of Human Rights (UDHR), the
Rights (ICCPR) and the International Covenant on
Economic, Social and Cultural Rights (ICESCR)
s evaluate the effectiveness of the International Bill
of Rights.
natural law
non-government organisations
(NGOs)
positivism
ratify (ratication)
right to peace
self-determination
slavery
soft law
suffrage
suffragette
trade union
transatlantic slave trade
Universal Declaration of Human
Rights (UDHR)
universal education
universal suffrage
I M PORTANT LEGIS L AT ION
Universal Declaration of Human Rights (1948)

Rights (1966)
International Covenant on Economic, Social and
Cultural Rights (1966)
Slave Trade Act 1807 (Great Britain)
Slavery Abolition Act 1833 (Great Britain)
Charter of the United Nations (1945)
The Constitution of the United States of America
1787 (US)
The United States Bill of Rights 1789 (US)
General Act of Brussels (1890)
Trade Unions Act 1871 (Great Britain)
Representation of the People Act 1918 (Great
Britain)
Education Act 1870 (Great Britain)
Public Instruction Act 1880 (NSW)
United Nations Declaration of the Rights of
Indigenous Peoples (2007)
African Charter on Human and Peoples Rights
(1981)
American Convention on Human Rights (1988)
Stockholm Declaration (1972)
Rio Declaration (1992)
Kyoto Protocol (1997)
Treaty of Versailles (1919)
Declaration on the Right of Peoples to Peace
(1984)
od d l a w
The Fugitive Slave Law (also known as the
Fugitive Slave Act) was passed by the United
States Congress on 18 September 1850 as
part of the group of laws referred to as The
Compromise of 1850.
The Compromise declared that all runaway
slaves be brought back to their masters. Lawenforcement ofcials were duty-bound to arrest
anyone suspected of being a runaway slave
on no more evidence than the owners sworn
testimony. Those ofcials who did not arrest
an alleged runaway slave were liable to pay a
ne of $1000 (approximately $25 000 in todays
currency).
Once apprehended, the suspected slave was
not entitled to a jury trial or to testify on his or
her own behalf.
Under the Fugitive Slave Law, ofcials who
captured a runaway slave were entitled to a
bonus or promotion for their work. Slave owners
only needed to supply an afdavit to a Federal
marshal to capture an escaped slave. Since no
suspected slave was eligible for a trial, this led to
many free blacks being conscripted into slavery
as they had no rights in court and could not
defend themselves against accusations.
Furthermore, any person aiding a runaway
slave by providing food or shelter was subject to
six months imprisonment and a $1000 ne.
Hum
C rim
Hu
m an
e rig hts
rel ev ant l aw
S I GNIFICANT CAS ES
R v Knowles; ex parte Somersett (1772) 20 State

Tr 1
United States v Libellants and Claimants of the
Schooner Amistad 40 U.S. (15 Pet.) 518 (1841)
Cha pter 7: T he na ture a nd development of huma n ri ghts
145
T he de f i n i t io n o f h u m a n rig ht s
Universal Declaration
of Human Rights
(UDHR)
a declaration of rights
adopted by the United
Nations in 1948,
representing the first
universal acceptance
of the idea of human
rights and becoming
the reference point of
all subsequent human
rights treaties
The Preamble to the Universal Declaration of
just and free society. They aim to protect individuals
Human Rights (UDHR), adopted by the General
from injustice, allow people to achieve their full
Assembly of the United Nations in 1948, sets out
potential in society, and prevent discrimination
the fundamental purpose for recognising human
against groups of people because of their physical
rights. It states that: recognition of the inherent
characteristics or beliefs. Countries around the
dignity of and the equal and inalienable rights of
world are seen to have a moral and legal obligation
all members of the human family is the foundation
to respect and uphold these rights.
human rights
in a general sense,
basic rights and
freedoms believed to
belong justifiably to all
human beings
inalienable right
a right that cannot be
taken away
natural law
the theory that
certain laws come
from an unchanging
natural body of moral
principles as the basis
for all human conduct,
and so have validity
everywhere
of freedom, justice and peace in the world.
The generic term human rights is relatively
The precise nature of human rights, however,
new and has only come into use since the late 19th
is not fixed and is often the subject of debate. In a
century. But the background of human rights is
general sense, human rights refer to basic rights
rooted in history, and the rights they protect have
and freedoms that are believed to belong to all
developed only gradually over many centuries.
human beings. As stated in the Universal
Today, the term is used in many different contexts
Declaration of Human Rights (UDHR), these rights
and human rights have evolved into an essential
differ from ordinary rights under domestic law in
ingredient of justice, occupying an important place
that they are considered to be universal, inalien
in law, society and international relations.
able (cannot be taken away) and inherent in all
Human rights today continue to be violated in
people. The UDHR is an international declaration
many countries around the world. This can make
of these rights which has formed the basis for
human rights a perplexing concept. It may seem
laws, constitutions, international treaties and on-
odd to read about the various treaties and laws
going international debate on humanrights.
that protect human rights, while knowing that
Human rights are a collection of fundamental
these same rights are often ignored or suppressed.
standards for the treatment of individuals in a fair,
Despite this, the concept of human rights is central
positivism
the theory that laws are
valid simply because
they are enacted by
authority or from
existing decisions, and
that moral and ideal
considerations do not
apply
Figure 7.1 Although the basic human rights first mentioned in the Universal Declaration of Human
Rights (UDHR) have now been enshrined in numerous international treaties, human rights violations
remain commonplace in many countries around the world.
146
societies and is an integral part of the international

legal system.
The development of some of these human
rights is considered throughout this chapter.
Chapters 8 and 9 will then consider the promotion
and enforcement of human rights in Australia
R EV I EW 7 . 1
1 Dene what human rights are and what
they aim to protect.
2 Identify a list of rights that might be
considered human rights.
3 Explain why human rights are important to
all individuals in society.
and internationally today, and examine some

contemporary issues in human rights.
Deve l op i n g r ecog n i t i o n
of human rights
As mentioned above, the term human rights is
The development of the following rights are
a relatively recent historical development. The
considered in this chapter:
acceptance that certain rights might apply to
s the abolition of slavery
everyone, regardless of what country they are in
s the campaign for universal suffrage
or what law code they follow, took all of history
s the trade union movement and labour rights
to achieve. But theories of universal laws relate to
s the campaign for universal education
theories of the law itself and can be traced back to
s the right of a group to self-determination
various historical sources including:
s emerging environmental rights
s the laws of ancient civilisations in Mesopo-
s the attempt to establish a right to peace.
tamia, Ancient Rome or India

s scholars of some of the worlds major religions
s philosophers from Ancient China or Ancient
Greece to the modern day
s historical events such as the US Declaration of
Independence
s major conicts, particularly the First and
The abolition of
slavery
Slavery is a type of forced labour where a person
is considered to be the legal property of another.
For most of human history, slavery was taken for
Second World Wars.
granted and was considered integral to society and
Theories of universal laws historically drew
the economy. Slavery predates recorded history
upon a range of different reasoning, such as divine
it was common in antiquity and continued world-
will as a basis for rights, natural law based on a
wide in various forms throughout the Middle Ages.
higher order or shared ideas of individual worth or
Slavery was practised legally in many parts of the
morality, or simply positivism which states that
world up until the 20th century.
the laws are what they are because they have been
enacted by the appropriate authority.
In the ancient Mediterranean, the most common forms of slavery included debt slavery
Whatever the basis for such laws, campaigns
(being forced to pay off a loan with labour rather
for recognition of human rights began long before
than money), slavery as a punishment for crime,
there was any worldwide acceptance or formal
or prisoners of war committed to slavery. Children
recognition. Particular rights have each developed
could be born into slavery and spend their entire
in their own way through independent historical
lives as slaves, possibly paying off debts that were
movements that led to their eventual recognition.
incurred generations earlier.
slavery
a type of forced
labour where a
person is considered
to be the legal
property of another
universal suffrage
the right for all
citizens to vote in
political elections,
regardless of status,
gender, race or creed
Hum an rig hts
to the operation of law in modern democratic
trade union
an organised
association of workers
formed to protect
and further their
rights and interests
labour rights
rights at work,
including rights
to safe working
conditions, minimum
wages, paid leave
or the right to join a
trade union
universal education
the right to free and
compulsory education
for all children
self-determination
the right of people
of a territory or
national grouping
to determine their
own political status
and how they will be
governed
right to peace
the right of citizens
to expect their
government will do
all in its power to
maintain peace and
work towards the
elimination of war
debt slavery
slavery in order to
pay off a loan with
forced labour rather
than money
147
trade posts in Africa. Although the Roman Catholic

Church prohibited the export of Christian slaves,
it legitimised the use of non-Christian slaves in
overseas territories.
Known as the transatlantic slave trade, this
operated in the 17th to early 19th centuries
European ships would trade products for slaves
in West Africa, where slavery was still widely
practised, and carry the slaves to the New World
colonies to grow and manufacture cash crops,
such as sugar. The prots would be returned to
the European powers, and the trade cycle would
continue. An estimated 12 million Africans were
shipped from Africa to the Americas during this
period, into often appalling conditions of slavery.
However, as the horrors of the slave trade
Figure 7.2 Slavery was common in Ancient
Rome and was integral to society and the
economy.
became known in Europe, a political movement

began to abolish it. Known as abolitionism, the
movement began in the 18th century and gradually
grew. Rationalist thinkers began to criticise slavery
transatlantic slave
trade
the trading of African
people by Europeans,
transporting them as
slaves from Africa to
the colonies of the
New World
abolitionism
a worldwide political
movement that sought
to abolish slavery
Types of slavery differed around the world but
as violating the rights of man, and evangelical
it was usually used as a way to ll certain roles in
religions began to criticise it as unchristian. In
society for little to no cost, without needing to pay
Britain, slavery was ruled illegal in the common
wages. Slaves were forced to carry out menial or
law of England in a 1772 judgment by the Court of
labour-intensive jobs, but gained food and accom-
Kings Bench in the case of Somersett (R v Knowles;
modation where the structure of the modern
ex parte Somersett (1772) 20 State Tr 1), which
welfare state did not exist. Some slaves were well-
followed a recent trend of African, Indian and
educated and highly valued in their households,
East Asian slaves being brought back to England to
and occasionally could be awarded freedom (as
work as servants. The judge, Lord Manseld, held
freedmen). But in many instances slaves were
that slavery was no longer legal in England but
mistreated and brutalised, with no real legal rights
this did not affect slavery elsewhere in the British
and no means of escape. Laws generally treated
Empire.
slaves as objects, rather than subjects of the law.
148
Anti-slavery campaigns continued in Britain, led
Moves to abolish slavery and slave trading
in particular by British politician and campaigner
in European cities and states began as early as
William Wilberforce, and exerted pressure on the
the 12th century. Iceland, for example, ofcially
British Government to end the trade in slaves in its
abolished slavery in 1117. Although slavery of
overseas territories. Although ercely opposed by
European citizens gradually became uncommon,
those with interests in the trade, importation of
it was still widely practised on the fringes of
slaves to the colonies was ofcially ended in the
Europe and elsewhere in the world. As Europeans
British Empire with the passing of the Slave Trade
began to conquer the New World and their
Act 1807 (UK). The United States followed in 1808.
empires expanded, they required more and more
However, it was not until the Slavery Abolition
resources to grow and support their new colonies.
Act 1833 (UK) that slavery itself was abolished,
Slave labour was sought from new populations
and all remaining slaves in the British Empire were
or races. European empires supported the use of
freed the following year. Most European countries
slaves from new territories, but particularly from
ceased exporting slaves in the following decades.
Hum an rig hts

Figure 7.3 During the transatlantic slave trade (17th19th centuries), an
estimated 12 million Africans were shipped by Europeans to work as slaves in
the Americas.
Figure 7.4 British politician William

Wilberforce (17591833) was the
leading campaigner behind the
abolition of slavery in the British Empire.
Many countries in Latin America abolished it
slavery and was aimed mainly at the slave trade in
during the wars of independence from Spain in
European protectorates in Africa. The next signi-
18101822.
cant attempt was the League of Nations Slavery
Following the 1776 US Declaration of Indepen-
Convention, a comprehensive international con-
dence, the northern states began to abolish slavery.
vention on abolishing slavery worldwide, passed
Although the Declaration stated that all men are
in 1926 after the end of the First World War by
created equal, slavery continued in the southern
the League of Nations, the precursor body to the
states where it was still a powerful social and
United Nations.
economic institution, particularly in the agricul-
After the end of the Second World War, the
tural industry. The US abolitionist movement cam-
states of the United Nations made a clear state-
paigned vigorously against slavery and it became
ment that slavery was prohibited, under Article 4
one of the main causes for the outbreak of the
of the Universal Declaration of Human Rights.
American Civil War (18611865), by which time the
Although in some parts of Africa, Asia and the
slave population had grown to over four million.
Islamic world, slavery persisted as a legal institu-
The then newly-elected US president, Abraham
tion well into the 20th century, later treaties
Lincoln, was an abolitionist who the southern
addressed issues of combating on-going slavery in
states believed threatened their way of life. All
more detail.
US slaves were freed by the end of the war in
The last state to ofcially abolish slavery was
1865, and slavery abolished by the addition of the
Mauritania in West Africa in 1981. However, despite
Thirteenth Amendment to the US Constitution.
centuries of anti-slavery efforts, illegal slavery still
The abolitionist movement continued in the
occurs today, with an estimated 27 million people
rest of the world, but by this stage there was a con-
enslaved worldwide. Human trafcking, child
sensus among many countries that slavery was
labour, sexual slavery and forced labour are still
no longer acceptable. In 1890, European coun-
serious issues around the world and new measures
tries met in Brussels, Belgium to sign the General
have begun to try to combat these. The issue of
Act of Brussels. This was the rst ever major
human trafcking is discussed in more detail in
collaboration of international states to abolish
Chapter 9.
human trafcking
the illegal movement
of people across
borders by force,
coercion or deceptive
means
149
Figure 7.5 The major cause of the American Civil War (18611865) was the increasing importance of
human rights issues between the slave-holding southern states and the non-slave-holding northern states.
R EVIEW 7.2
R ESEAR CH 7 . 1
1 Describe the traditional forms of slavery
The Amistad Case 1841: United States v
and why it was eventually condemned.
Libellants and Claimants of the Schooner
2 Explain how slavery spread through

colonial times.
3 Outline the origins of the abolitionist
movement and how it came to succeed.
Amistad 40 U.S. (15 Pet.) 518 (1841)

This case was fought in the northern US state of
New Haven. The central issue was the fate of a
group of slaves who mutinied on the ship Amistad
against slave-traders who had kidnapped them
le g al in fo
from Africa in order to sell them in the southern

United States. The US Supreme Court was given
Universal Declaration of
the task of deciding whether the Africans should
Human Rights abolition
be freed or sent back into slavery. John Quincy
of slavery
Adams, former President of the US, acted as
Article 4.
No one shall be held in
slavery or servitude; slavery
and the slave trade shall be
prohibited in all their forms.
the slaves defence lawyer and argued for their

freedom. The 1997 lm by Steven Spielberg,
Amistad, details the legal case.
View the lm or use the weblinks below in
order to complete the following tasks:
s www.archives.gov/education/lessons/amistad/
s www.law.umkc.edu/faculty/projects/ftrials/
amistad/AMI_ACT.HTM
1 Discuss how the US Constitution was used in
defence of the Africans on the Amistad.
2 Explain how this case t into the broader
debate over slavery in the US at this time.
150
Trade unionism and

labour rights
As discussed above, slavery was an institution of
forced labour, where slaves were considered legal
property of the owner (master), without legal rights
of their own. As the world progressed and forced
Hum an rig hts
labour was made illegal, conventional labour was

the only legal means of securing large groups of
workers.
Employment law as we know it today is a relatively recent development. Rights to a minimum
wage, safe working conditions or paid holidays
were not recognised in older legal systems.
Although much of the work carried out in ancient
times was conducted by slaves, non-slave labour
groups also existed. For example, recent archeological evidence suggests that the Egyptian pyramids were not, as previously thought, constructed
by slaves, but by craftsmen and farmhands who
were given food and accommodation for three-
Figure 7.6 Trade unions rst emerged during the Industrial

Revolution in response to the appalling conditions, lack of
safety, low wages and long working hours in the factories of
the new industrial cities.
month periods and possibly a small wage. In

Rome, the purchase of slaves was probably considered the cheapest means of securing labour, but
hired labour was frequently used.
Trade unions rst emerged during the Industrial

Revolution in response to the appalling conditions,
In early Europe, regulation of the workplace
lack of safety, low wages and long working hours
was more generally based on status. Some groups
in the factories of the new industrial cities. Large
of labourers and craftsmen formed associations
numbers of employees within industries, parti-
based on their trades, known as craft guilds. Serfs,
cularly manufacturing, began to demand better
who were agricultural labourers tied to the land,
working conditions and wages, while employers
were the lowest but most common social class
would tend to deny improvements and keep wages
and in many ways resembled slaves. As serfdom
low to decrease costs. It was only through action
diminished in England, there was some form of
by all the workers in a factory that employers could
legislative regulation of labour and wages, but
be forced to improve conditions for workers. If all
these laws were generally designed to compel
the workers went on strike, the employer could
labourers into work more than to protect them.
be forced to listen to their demands as they could
In Europe, labor law as a protection for workers,
not sack their entire workforce. For this reason,
with demands for better conditions and the right to
employers would seek to deny employees any
organise, arose with the Industrial Revolution and
right to organised labour.
the introduction of mechanised manufacture. The
The earliest trade unionists faced difcult con-
Industrial Revolution, which occurred during the
ditions. Laws were created to criminalise workers
18th to 19th centuries, began in the UK and spread
involvement in trade unions and heavy penalties
to Europe, America, Australia and the rest of the
were applied. For example, in 1834 a group of farm
world. Major changes in the elds of manufacture,
labourers in Tolpuddle, England, formed a society
agriculture and transport redened society and
to campaign for higher wages. Six of the leaders
acted as the catalyst for changes to labour laws.
were arrested and sentenced to transportation to
Industrial
Revolution
the rapid
development of
industry in the 18th
and 19th centuries,
characterised
by changes in
manufacturing,
agriculture and
transport
151
l eg a l i nfo
International Labour
Organization (ILO)
an international agency
of the United Nations,
created with the aim of
improving conditions
for workers around the
world
Australia for seven years. They became known as
in the late 19th century aimed at improving safety
the Tolpuddle Martyrs. After many similar strug-
and working conditions in many of the prime
gles, the rst Trades Union Congress was set up in
industries, such as mining and textiles.
1868. By the time of the second congress in 1869,
Late in the 19th century, associations of workers
the 40 representatives who attended represented
began to link up with similar organisations in other
over one-quarter of a million workers in the UK.
countries to protect workers rights internation-
Finally, the British Parliament was pressured
ally. The First International (18641876) and the
to pass the Trade Unions Act 1871 (UK), which
Second International (18891916) were periodic
secured the legal status of trade unions. Since
gatherings of representatives from unions and
then, trade unions have played an integral role in
political parties from around the world to urge
securing rights for workers in the UK. Similarly, in
improved conditions for workers.
Australia, the union movement developed from
In 1919, following the end of the First World
the 19th century. Due to harsh tactics employed by
War, a group of pioneering scholars, social policy
governments and employers to break large-scale
experts, and politicians succeeded in creating
strikes in the 1890s, the unions in Australia joined
an International Labour Organization (ILO) to
together to form their own political party, known
discuss social reforms and put them into practice.
as the Australian Labor Party (ALP).
It was formed by governments as an agency of
Trade unions worked to ensure that fair wages
the League of Nations, with its ofce in Geneva,
and conditions were maintained and many work-
Switzerland. The organisation was created with the
ing conditions taken for granted today in indus-
aim of improving conditions for workers around
trialised countries came about due to union
the world and over time has been responsible for
action. For example, union achievements include
many conventions on working conditions and
the establishment of minimum wages and work-
rights. In addition to slavery, it was one of the few
ing conditions, equal pay, long service leave, paid
areas in which the League of Nations promoted
public holidays, maternity leave, annual leave,
modern human rights. After the League of Nations
occupational health and safety laws, and workers
was disbanded, the ILO became an agency of the
compensation. A series of legislation was passed
United Nations and continues its work today.
Universal Declaration of Human Rights labour and trade union rights

Article 23.
and supplemented, if necessary, by other means of
(1) Everyone has the right to work, to free choice of
social protection.
employment, to just and favourable conditions of
(4) Everyone has the right to form and to join trade
work and to protection against unemployment.
unions for the protection of his interests.
(2) Everyone, without any discrimination, has the
Article 24.
right to equal pay for equal work.
Everyone has the right to rest and leisure, including
(3) Everyone who works has the right to just and
reasonable limitation of working hours and periodic
favourable remuneration ensuring for himself and
holidays with pay.
his family an existence worthy of human dignity,
152
Labour rights were nally enshrined in the

Universal Declaration of Human Rights under articles
23 and 24 (on page 152). Later treaties, such as the
International Covenant on Economic, Social
and Cultural Rights (ICESCR) 1966, as well as
the on-going work of the ILO, have further dened
the world.
REVIEW 7.3
Figure 7.7 American suffragettes
1 Describe what is meant by a trade union

and why they were historically important.
2 Identify ve different labour rights.
from certain backgrounds. This was usually due to
3 Explain when the ILO was formed and what
a mistrust or suspicion of the general population,
its role is today.
or an assumption that they could not understand

the affairs of government.
Universal suffrage
Demands for suffrage for all males began in

world democracies in the nineteenth century. For
The theory of democracy, that the authority of
example, in the UK, rights for male voters were
government should be based on the will of the
only gradually extended and to males who rented
people as expressed through genuine periodic
land of a certain value (1832), to all male house-
elections, is not a new concept and can be traced
holders (1867), and to males in the countryside
back to ancient times. However, where demo-
(1884). However, this still represented only about
cracies have existed throughout history, the right
60 per cent of the adult male population. It was not
to vote, known as suffrage, was usually restricted
until the Representation of the People Act 1918 (UK)
to certain classes for example by status, gender,
that the vote was extended to the whole adult male
race, age, beliefs or nationality. The concept of
population.
universal suffrage is only a recent development in
Among democratic countries, pressure grew
the world, but where it has been achieved, it is now
to extend voting rights to women. Women who
considered an essential human right.
campaigned for the right to vote were known as
Democracy as a form of government is not
suffragettes. They waged a long and difcult
something that can be easily taken for granted.
campaign for the right to vote in democracies
Where it exists today it has often been achieved
dominated by male interests. The right to vote
as a result of prolonged or bloody civil wars,
regardless of gender was an important symbol
international intervention or assistance, or inde-
of womens struggle for equality in general. In
pendence granted through a country that has gone
1893, New Zealand became the rst country in
through one of these processes. Where it does
the world to permit women an equal right to vote.
exist it requires constant checks and balances to
The Australian state of South Australia followed in
ensure it remains genuinely free and healthy.
1894, with the Australian Commonwealth allowing
The rst modern countries to achieve demo-
womens suffrage in 1902. It was not until 1918,
cracy allowed only a limited number of men to
after the end of the First World War, that the UK
vote, and usually only those men with higher status
allowed women a limited right to vote, which was
who owned large amounts of property or came
not made equal with mens rights until 1928. The
International
Covenant on
Economic, Social
and Cultural Rights
(ICESCR)
binding international
treaty creating
obligations on states
to respect economic,
social and cultural
rights of individuals
Hum an rig hts
those rights and sought to implement them around
suffrage
the legal right to
vote in a democratic
election
suffragette
a supporter of
womens right to
vote (or womens
suffrage); the term
was rst used in
Britain at the end of
the 19th century
153
fascism
an authoritarian system
of government that is
opposed to democracy
and is marked by
the State having
total control over
the economic, social,
cultural and political life
of the people
US passed the 19th Amendment allowing women
population. This legislation also established Maori
the right to vote in 1920.
representation in the lower house of parliament.
Apart from status and gender, race was another
In Australia, Indigenous peoples were permitted
issue that conicted with rights to vote. For
the right to vote since the time of Federation in
example, in the Americas, social stigma was
1901, if their state of residence granted them that
strongly attached to certain races, particularly
right, and some South Australian Aboriginal men
native Americans and the African-American popu-
and women voted for the rst Commonwealth
lations. In 1870 in the US, following the American
Parliament. However, due to later interpretations
Civil War, the right to vote was extended by the
by the government and discriminatory measures
15th Amendment to all adult males, regardless of
adopted by the states, Indigenous peoples were
race, colour or previous servitude. In New Zealand,
effectively denied the right to vote until 1962. In
Maori voters were not expressly excluded from
that year, the Commonwealth legislated to ensure
voting but a requirement of property ownership
Indigenous peoples had the right to vote regardless
effectively excluded them. In 1867, this requirement
of their state voting rights, although unlike for other
was removed, extending the vote across the male
Australians this was not compulsory. A 1967 constitutional referendum nally gave Indigenous Australians equal status as citizens, including the right to
be counted in the Australian census. The constitutional amendment became a symbol of public
recognition of the rights of Indigenous Australians.
The right to vote was recognised as a universal
human right in Article 21 of the Universal
Declaration of Human Rights. Despite gradual
advances of suffrage, there were still only a small
number of democratic countries in the world in
the rst half of the 20th century. In 1900, there
were just 10 democracies in the world. This grew
to 20 by 1920 but then declined to 12 by 1939 due
to the advances of Nazism and fascism. By 1960,
there were 25 democracies in the world, growing
to 30 by 1980. This doubled to 60 by 1990 and
by 2000 there were 75 democratic nation-states.
By 2010, 89 countries, representing 46 per cent of
le g al li nk s
the worlds total population, are classied as freely
Freedom House is an independent

to encourage democratic freedom
around the world. The Freedom
House website has up-to-date
statistics on the state of freedom
Figure 7.8 A 1967 constitutional referendum nally gave Indigenous

Australians equal status as citizens, including the right to be counted in
the Australian census.
154
in every country and can be found

at www.freedomhouse.org
Article 21.
(3) The will of the people shall be the basis of
(1) Everyone has the right to take part in the
the authority of government; this will shall be
government of his country, directly or through
expressed in periodic and genuine elections which
freely chosen representatives.
shall be by universal and equal suffrage and shall
(2) Everyone has the right of equal access to public

service in his country.
be held by secret vote or by equivalent free voting

procedures.
democratic. 47 countries, or 34 per cent of the
begin until the 19th century onwards. There were
worlds population, are still classied as not free.
some exceptions, for example one Aztec tribe in
Hum an rig hts
l e g a l i n fo
Universal Declaration of Human Rights universal suffrage
the 14th to 16th century was one of the rst
REVIEW 7.4
1 Describe why suffrage is important.
2 Identify when universal suffrage was
achieved in three countries other than
Australia.
3 Evaluate how widespread suffrage and
democracy is in the world today.
communities in the world to have compulsory

education for nearly all children, regardless of
gender or rank.
In Europe, the church was generally the rst
to take on the role as educator for all, and only
much later superseded by the state. For example,
in Scotland in 1561, the Church of Scotland put
forward the principle of a school teacher for every
parish and free education for the poor. In Norway
Universal education
in the 16th century, cathedral schools were turned
Universal education refers to the idea that all
market town later in 1736, training in reading
human beings have a right to an education. This
was made compulsory for all children. In England
concept has only reached wide acceptance in rela-
in the 19th century, churches began giving free
tively recent history. Although today some type
education on Sundays, originally called Sunday
of education is compulsory for children in almost
schools. They were designed to teach students
all countries, in early civilisations education was
reading, writing and arithmetic.
into Latin schools and made mandatory for every
generally associated with wealth and power or with
By the mid-1800s in Europe, the increasing
certain trades, beliefs or religions. Most people
demands of industrialisation, a growing competi-
would have received informal education from their
tiveness between countries and widening suffrage
families and community, with other skills learnt
required a literate and educated population.
directly through their daily work or vocation.
European governments began providing funding
With the development and spread of writing
for schools, and over time the government also
systems, it became possible for ideas and infor-
administered these schools. In 1870, the British
mation to be accurately passed on over time and
Parliament passed the Education Act 1870 (UK),
space and writing became associated with law,
and in 1880 education was made compulsory for
commerce, religion and civil administration. But
all British children between ve to 10 years of
until recent times, illiteracy was still the norm in
age, which was later raised to 12 years in 1889.
most of the world and formal schooling was only
In France, by 1880 all children under the age of
available to a select few. The push for universal
15 were required to attend school, with free and
education within individual countries did not really
secular public instruction.
155
Similarly, laws were passed in the Australian
there are still many children who for numerous
states to make education free and compulsory
reasons cannot access the education. In 2001, all
at primary level. In New South Wales, the Public
member states of the United Nations agreed to
Instruction Act 1880 (NSW) led to government
a series of Millennium Development Goals which
taking control of all the Church-run schools, except
aimed to improve social and economic conditions
those run by the Catholic Church, and making
in the worlds poorest countries. The second goal
education free, secular and compulsory. The rst
states that all children in the world will have a
government school for Indigenous Australians was
minimum education up to the end of primary
also created, but less than 200 out of 1500 eligible
level by 2015. It remains to be seen whether the
children were under instruction. These schools
developed countries of the world will be able to
were later merged into the general public system.
meet this commitment in helping poorer countries
Today, it is compulsory for all Australians to attend
to achieve this goal.
school from at least the ages of 6 to 15, depending

on the state. From 2010, the school leaving age
in NSW was raised to 17 years. The Australian
population now has a 99 per cent literacy rate.
R EVI EW 7 . 5
1 Identify when the promotion of universal
education began.
By the 20th century and the end of the Second

World War, free and compulsory education had
spread throughout developed nations and was
regarded as not only a desirable goal for all govern-
2 Describe what elements universal education

is considered to involve.
3 Explain the goal of the UN with regards to
universal education.
ments to pursue but was also seen as a basic human

right. The United Nations made education a major
priority of its economic and social development
programs and the right to free education for all
l eg a l i nf o
collective right
a right belonging to
a group or a people,
as opposed to an
individual right
Self-determination
human beings was included under Article 26 of
The rights discussed so far have been rights of the
the UDHR, which goes on to state that childrens
individual, such as the right of an individual to join
elementary education should be compulsory and
a trade union or the right to universal education.
be made widely available after that.
However, the right of self-determination differs
Although free and compulsory education is
from individual rights it is a collective right, a
now available in almost all countries in the world,
right of a group or a people. The collective right to
Universal Declaration of Human Rights universal education

Article 26.
(2) Education shall be directed to the full
(1) Everyone has the right to education. Education
development of the human personality and to
shall be free, at least in the elementary and
the strengthening of respect for human rights
fundamental stages. Elementary education shall be
and fundamental freedoms. It shall promote
compulsory. Technical and professional education
understanding, tolerance and friendship among
shall be made generally available and higher
all nations, racial or religious groups, and shall
education shall be equally accessible to all on the
further the activities of the United Nations for the
basis of merit.
maintenance of peace.
(3) Parents have a prior right to choose the kind of
education that shall be given to their children.
156
Hum an rig hts

Figure 7.9 The UDHR states that education in the primary years should be compulsory for all children.
self-determination means that people of a territory
against European colonial rule. However, it was
or national grouping have the right to determine
the First and Second World Wars that truly began
their own political status the group has the right
the push for international recognition of the right
to choose how it will be governed without undue
as a path to peace.
inuence from another country.
The 1919 establishment of the League of Nations
Political self-determination is something that
was a consolidation of many of the new states that
has been fought for throughout history by collec-
arose following the First World War, but it lacked
tive peoples against various powers and regimes.
membership of the US. It was the establishment
It is closely related to democratic rights in that it
of the UN Charter in 1945, following the atrocities
involves the consent of the people as the basis
and world-changing effects of the Second World
for a sovereign state. Self-determination as a
War, that established the rst universal recog-
right became particularly important after world
nition of the right to self-determination under
colonisation by the European powers, where
Article 1(2) of the Charter (see Legal info box on
people around the world were placed under direct
the next page). Article 1(2) calls for respect of
control of imperial powers, rarely if ever with the
the principle of self-determination, and is further
interests of those people in mind. Over the cen-
strengthened by Article 15 of the UDHR which
turies, bloody conicts arose worldwide in Africa,
states that everyone has a right to a nationality and
the Americas, Asia, the Middle East and Oceania
no-one should be arbitrarily deprived of this or of
against colonial rule. Europe itself experienced
the right to change nationality. The International
constant conict between groups wishing to
Covenant on Social, Economic and Cultural Rights,
exercise self-determination against ever-changing
adopted by the UN in 1966 and in force in 1976,
imperial powers.
includes self-determination as its primary right,
The rise of self-determination as a right began
under Article 1(1).
perhaps most clearly with the 1776 US Declaration
Self-determination of peoples was one of the
of Independence against British colonial rule. The
conditions the US imposed on the Allied forces
right of self-determination was also fought for in
before entering the Second World War. Chapter 13
Europe during the French Revolution of 1789
of the UN Charter later provided for a Trusteeship
1799, and in Latin America in the various wars
Council of the United Nations to provide inter-
of Independence from the 18th century onwards
national supervision for the transition on trust
157
territories to self-government after the end of the
There is every indication that the Declaration
Second World War. The last trust territory was
will be a signicant stepping stone to greater
Palau, which achieved independence in 1994.
awareness and protection of the worlds indige-
Colonial powers were encouraged to oversee
nous peoples. After all, the UDHR itself was only a
the independence of their territories in the best
declaration, but as we have learnt, it became the
interests of those people. Between 1960 and 1993,
foundation for all international human rights law.
53 territories became self-governing independent

states. The most recent country to be granted
independence is Montenegro, which achieved UN
membership in 2006. There are still many groups
in the world claiming a desire to self-govern, and it
is likely that more independent territories will be
recognised in future years.
R EVI EW 7 . 6
1 Dene self-determination and explain how
it differs from other human rights.
2 Identify where the right to selfdetermination is contained.
3 Explain how self-determination might apply
A more recent issue of self-determination is that
to indigenous peoples.
of indigenous peoples. There are over 5000

different indigenous peoples recognised in the
world, made up of over 300 million people in more
than 70 countries. In many countries, indigenous
l e ga l i n f o
people have been regularly excluded from the
158
Environmental rights
democratic process, forcefully assimilated, eco-
More recent discussions of human rights have
nomically exploited or generally oppressed. In
been focused around the possibility of universally
2007, the United Nations adopted the Declaration
recognised environmental rights. Environmental
of the Rights of Indigenous Peoples. The Declaration
rights are unlike individual rights, or even collec-
took over 20 years to complete and, as with the
tive rights, but are argued to relate to many
UDHR, is only a non-binding declaration on
existing agreed rights. For example, the rights to
member states. Only four states rejected the
life, health or property are already contained in
declaration, of which Australia was one, although
human rights declarations treaties and many other
a number of others abstained from voting. The
international agreements. Supporters of environ-
Howard Coalition Government at the time stated
mental rights argue that these rights cannot be
its reason for rejection as there should only be one
fully realised without the right to a healthy, safe
law for all Australians. However, in April 2009, the
and adequate environment. This right is said to
former Rudd Labor Government formally endorsed
relate not only to current generations, but also to
the Declaration on behalf of Australia.
future generations.
United Nations Charter self-determination

Article 1. The purposes of the United Nations are
International Covenant on Economic Social and
(2) To develop friendly relations among nations
Cultural Rights
based on respect for the principle of equal rights
All peoples have the right of self-determination.
and self-determination of peoples, and to take
By virtue of that right they freely determine their
other appropriate measures to strengthen universal
political status and freely pursue their economic,
peace.
social and cultural development.
Environmental rights have been recognised in
represent attempts by the international commu-
some international agreements. For example, the
nity to deal with environmental problems, such as
African Charter on Human and Peoples Rights, which
global warming, the spread of epidemics, marine
came into force in 1981 and has been adopted
pollution, the depletion of the ozone layer and
by 53 African states, includes the right to a satis-
atmospheric pollution.
factory environment under Article 23. Similarly,
Again, one of the main problems in achieving
the American Convention on Human Rights under
progress in this area is the failure of all states to
the Organisation of American States includes in
commit to measures for the benet of the global
its second Protocol, which opened for signature in
community when they may seem to the short-term
1988, the explicit right to a healthy environment and
disadvantage of their national interest. Yet failure
the obligation on all state parties to protect, preserve
to achieve global consensus on environmental
and improve the environment.
issues could see dramatic deterioration in the

rights and living standards of millions of people
globally. The UN Climate Change Conference held
numerous treaties that attempt to deal univer-
in Copenhagen in December 2009 demonstrated
sally with specic environmental threats. For
how difcult it is to secure global agreement in
example, the Stockholm Declaration (1972), the Rio
this area. Chapter 11 contains further discussion
Declaration (1992) and the Kyoto Protocol (1997)
of environmental law.
l e ga l i n f o
Although there has been no universal recognition of environmental rights, there have been
Hum an rig hts
Figure 7.10 Environmental rights are said to be crucial to achieve other human rights, such as rights
to life, health or property.
African Charter on Human and Peoples Rights environmental rights (example)

Article 23.
Article 11. Right to a Healthy Environment
All peoples shall have the right to a general
(1) Everyone shall have the right to live in a healthy
satisfactory environment favourable to their
environment and to have access to basic public
development.
services.
Second Protocol to the American Convention on
(2) The States Parties shall promote the protection,
Human Rights
preservation, and improvement of the environment.
159
Figure 7.11 The 2009 UN Climate Change Conference demonstrated how difcult it is to secure
global agreement on issues relating to climate change.
R EVIEW 7.7
1 Explain how environmental rights relate to
human rights.
2 Identify where environmental rights have
already been declared.
3 Describe the other international measures
used to protect environmental rights.
preventing war: the League of Nations. The main

purpose of the League of Nations was expressed
in the rst line of the Covenant of the League of
Nations: to promote international co-operation
and to achieve international peace and security.
Ultimately the League of Nations failed and
the Second World War broke out, due largely to
the failure of the Treaty of Versailles. Crucially, the
160
Peace rights
League also failed to achieve the membership
In 1919, the countries that emerged victorious
War, and the atrocities of both wars during which
from the First World War held a peace conference
a combined total of almost 100 million people
at Versailles, France. This became known as the
were killed, the United Nations was formed, with
Paris Peace Conference. The parties to the Con-
the US leading the other Allied Forces. The United
ference achieved the treaties that ofcially ended
Nations Charter, signed 26 June 1945, explicitly
the First World War, including the Treaty of
made peace the primary purpose of the United
Versailles, but also established for the rst time
Nations. The rst line of the Charter stated as its
in history a world body with the primary aim of
purpose to save succeeding generations from the
of the US. In the aftermath of the Second World
means to enforce it could have been one of the
brought untold sorrow to mankind. Article 1(1) of
most signicant advances of modern humankind.
the Charter makes the maintenance of peace its
Yet despite these advances, war has still not
primary purpose and, most importantly, gives it
been eliminated and conicts around the world
the power to take measures to prevent and remove
continue. Most have been civil wars but many have
threats to peace.
involved international conict or international
These statements, in possibly the most sig-
forces. Some of the major wars since the signing
nicant treaties in history, effectively outlawed
of the UN Charter have included the Korean War
war, except in specic circumstances. They can
(1950+), Vietnam War (19591975), IranIraq War
be taken to declare the right of every state, and
(19801988), Persian Gulf War (19901991) or the
individuals within those states, to live in peace. Up
Yugoslav Wars (19911995). There are a number
to the 20th century, no such concept of a right to
of wars still on-going at the time of publication,
peace existed in international law. In fact, for all
including the Somali Civil War (since 1986), the
of human history until recently, war was generally
War in Afghanistan (since 2001) or the Iraq War
seen as a legal and legitimate means of solving
(since 2003).
disputes and determining political and economic

control over territories and populations.
In international law, the right of peace is

balanced against the right of self-defence. Article
In 1984, the UN General Assembly adopted a
51 of the UN Charter declares that states have
Declaration on the Right of Peoples to Peace.
an inherent right of individual or collective self-
Although as a declaration it is non-binding, it pro-
defence if an armed attack occurs against them,
claimed that all peoples of our planet have a
and under Article 39 the UN Security Council can
sacred right to peace. It also declared that pro-
authorise actions to maintain or restore peace if
moting and implementing the right to peace is a
necessary. Many wars have been considered legal
fundamental obligation of states, and that govern-
on this basis. For example, the 2003 invasion of
ment policies should be directed towards:
Iraq by the US, the UK and allies was claimed by
s elimination of the threat of war, particularly
the parties to be legal under a resolution made by
nuclear war
the Security Council under Article 39 (Resolution
s renunciation of the use of force in international

relations
1441). Yet the intention of that resolution and the

legality of the invasion are still under dispute.
s the settlement of international disputes by
The right of peace, especially the Declaration on
peaceful means on the basis of the UN Charter.
the Right of Peoples to Peace, makes it clear that
The establishment of the right of peace, an inter-
peace for all people should be the paramount
national body to oversee it and international
consideration. Legal or illegal, a war can have
l eg a l i nf o
Hu m an rig hts
scourge of war, which twice in our lifetime has
United Nations Charter peace and security

Article 1.
aggression or other breaches of the peace, and to
The purposes of the United Nations are:
bring about by peaceful means, and in conformity
(1) To maintain international peace and security,

and to that end: to take effective collective
measures for the prevention and removal of threats
to the peace, and for the suppression of acts of
with the principles of justice and international law,

adjustment or settlement of international disputes
or situations which might lead to a breach of the
peace;
161
tragic and catastrophic effects on individuals
discussion on the denition of war of aggression,
and communities. Where a state commences an
many prosecutions have been made against indi-
illegal war, it is considered a breach of the peace
viduals relating to various war crimes. For more on
or a war of aggression. Where any war, legal or
the ICC, refer to Chapter 6.
illegal, is conducted, all parties must comply with

the various laws of war which aim to minimise
the effect on peace and the community. The
International Criminal Court (ICC) established
in 2002 has now been given jurisdiction to try
R EVI EW 7 . 8
1 Explain how the right to peace came to be
recognised.
2 Identify the documents where the right to
individual people for wars of aggression, as well
peace is contained and what it means.
as war crimes and other crimes against the inter-
3 Assess the balance between the right to
national community. Although states are still in
peace and the continuing need for war.
Fo r m a l s t a t e m e n t s o f
human rights
This chapter has considered how various rights
recognition of many of these rights was the horrors
developed historically into modern and inter-
of the First and the Second World Wars, and the
nationally recognised human rights. These rights
sense of purpose shared by the international
have only recently been given formal recognition
community at the end of these wars. This shared
by the international community. The catalyst for
purpose led to the establishment in 1945 of a body

to oversee the international community and act as
a crucial forum for discussion and agreement for
all states the United Nations.
The General Assembly of the United Nations
gave the international community a voice for their
concerns and a place to agree on measures that
needed to be put in place throughout the world.
It quickly became a forum for developing and
expanding international laws through important
international treaties and declarations of shared
intent. Almost immediately, formal recognition
of human rights was placed on the international
agenda.
Universal Declaration of
Human Rights
Pressure for an international bill of rights had
Figure 7.12 Eleanor Roosevelt holding the Universal Declaration of
Human Rights in November 1949.
162
been growing for some time, but it was the Second

World War that nally stirred the world into action.
The UDHR was adopted as a declaration, rather
the protection of Four Freedoms for all people:
than a fully binding treaty, for the purpose of
the freedom of speech and conscience, and the
dening fundamental freedoms and human
freedom from fear and want. With the formation
rights in the UN Charter, which is binding on all
of the United Nations in 1945, human rights were
member states. As a declaration, the UDHR is
brought to centre stage the second purpose
soft law, meaning ofcially non-binding but still
listed in the UN Charter, after the purpose of
inuential, rather than containing enforceable
peace, was to reafrm faith in fundamental
hard law obligations. In hindsight, this was prob-
human rights, in the dignity and worth of the
ably the correct decision because it meant that the
human person. It also created an obligation under
maximum number of countries were willing to
Article 2(2) for the promotion of universal respect
sign it. When the UDHR was rst adopted, Eleanor
for, and observance of, human rights and funda-
Roosevelt was quoted as saying that it would create
mental freedoms for all.
a curious grapevine [that] may seep in even when
The UN Charter did not dene what those
governments are not anxious for it. One particular
human rights and fundamental freedoms were.
grapevine that she may have had in mind are non-
A formal statement of those universal rights was
government organisations (NGOs), which are
needed and work began on developing one. The
non-prot groups who often play an important role
Universal Declaration of Human Rights (UDHR), the
in advocating, analysing and reporting on human
rst declaration written by the United Nations,
rights worldwide, and shaming governments into
became the high point in the quest for the recog-
action. The number of NGOs worldwide has grown
nition of human rights. The UN Commission
exponentially over the last century.
on Human Rights entrusted with drafting the
The UDHR has become an enduring statement
document was chaired by former US First Lady
that has inspired more than 200 international
and delegate to the General Assembly, Eleanor
treaties, conventions, declarations and bills of
Roosevelt. The Commission referred to historic
rights in the last 50 years. It is possibly the most
documents containing rights as well as worldwide
important of all human rights documents and has
political, philosophical and religious movements.
stood the test of time. Despite on-going abuses
Its members included broad representation of
by some countries, the UDHR has gained wide
the global community including Australia, Chile,
acceptance by the international community. Even
Egypt, France, India, Iran, the Soviet Union and
though it is not a formal treaty, it has arguably
Uruguay, as well as the US and the UK.
become part of international customary law, and
The Declaration was adopted on 10 December
has become the foundation for eight core human
1948 and was originally signed by 48 of the 58
rights treaties, two of which are discussed below,
states that existed in the world at that time. The
as well as various treaty bodies that continue
UDHR includes 30 different articles covering rights
to monitor and report the state of human rights
such as the right to life, liberty, security, thought,
around the world.
and asylum. The right to join a trade union, have

an adequate standard of living and be able to participate fully in cultural life are also included, as
is the right to freedom from slavery and torture.
Each of these rights play an extremely important
role and have potentially enormous implications
l e g a l l in k s
religion, education, work, equality of movement
The full text of the Universal

Declaration of Human Rights
Four Freedoms
the freedoms for all
people called for by
US President Franklin
Roosevelt in his 1941
State of the Union
address, including
freedom of speech
and conscience, and
freedom from fear
and want
soft law
international
statements, such as
declarations, that do
not necessarily create
legal obligations upon
nation-states but do
create pressure to act
in accordance with
them
Hum an rig hts
In 1941, US President Franklin Roosevelt called for
hard law
conventions and
treaties that under
international law
create legally binding
obligations on their
members
non-government
organisations
(NGOs)
independent
non-prot groups
who often play an
important role in
advocating, analysing
and reporting
on human rights
worldwide
international
customary law
actions and concepts
that have developed
over time to the
extent that they
are accepted by
the international
community and have
become law
available on the UN website at:

www.un.org/en/documents/
udhr
on society and the individual.
163
R ESEARCH 7.2
International
Covenant on Civil
and Political Rights
(ICCPR)
treaty creating
to respect civil and
political rights of
individuals
International
Covenant on
Economic, Social
and Cultural Rights
(ICESCR)
treaty creating
to respect economic,
social and cultural
International Bill of
Rights
informal term
collectively describing
the UDHR, ICCPR and
ICESCR combined
ratify (ratication)
the process of a
country formally
approving a treaty,
making it legally
binding
Access the full text of the UDHR at

www.un.org/en/documents/udhr and
cal rights covered, while the communist countries

wanted only economic and social rights dealt with.
To resolve this problem the covenant was split
complete the following tasks:
in two: the International Covenant on Civil and
1 Examine the Preamble to the UDHR and
Political Rights (ICCPR) and the International
briey describe the reasons behind the
Covenant on Economic, Social and Cultural
creation of the UDHR.
Rights (ICESCR). Together, the UDHR and these
2 Critically assess how Articles 1 and 2 of the

UDHR relate to its overall purpose.
two covenants are collectively known as the

International Bill of Rights.
3 Identify ve rights in the UDHR not

discussed in this chapter and describe which
articles they are contained in.
International Covenant on Civil

and Political Rights (ICCPR)
The ICCPR and ICESCR were both drafted and
approved in 1966, but neither came into force
until 1976 when they were nally ratied by the
Refer to Chapter 7 on the Student
requisite number of countries: 35. Unfortunately,
CD for information relating to the
neither of the covenants received much support
early development of domestic and
from the superpowers at the time: the US and the
international documents and treaties,
USSR.
including the Magna Carta 1215,
The ICCPR creates an obligation on state parties
English Bill of Rights 1688, the US
to respect civil and political rights of individuals,
Constitution 1787 and Bill of Rights
including equality between men and women
1789, and the French Declaration of
(Articles 2 and 3), the right to life (Article 6), the
the Rights of Man 1789.
right to freedom of movement, the right to a fair

trial and the right to be presumed innocent until
proven guilty (Articles 9 and 14). It also guarantees
freedom of thought, conscience, speech, religion
International Bill of Rights
and assembly (Articles 1819, 27, 22). In addition,
When the UDHR was originally drafted, it was
ever they wish and have a family and it provides for
intended to include three components: the dec-
all children to be given special protection under the
laration itself, an international treaty relating to it,
law (2324). Torture and slavery are outlawed and
and measures of implementation. However, once
prisoners must be treated with respect (Articles 7
the UDHR was approved by the General Assembly,
and 8). Finally, the covenant guarantees the right
it was many years before any binding covenants
to vote and receive equal protection under the law
relating to the rights were nally established.
and ensures that ethnic minorities have the right to
The formation of a binding treaty of rights would
164
it states that people have the right to marry who-
enjoy their own cultures (Article 26).
oblige nation-states to guarantee human rights in
The ICCPR contains monitoring and periodic
their domestic legislation. The UN Commission on
reporting arrangements for member states. It
Human Rights was given the task of drafting this
is monitored by the Human Rights Committee
document. However, Cold War tensions in the
(a separate body to the Human Rights Council)
1960s led to a dispute over what rights should be
which reports on compliance by member states
covered in the treaty. The Western European and
and investigates violations. At the beginning of
American nation-states wanted only civil and politi-
2010, the ICCPR had been widely ratied, with 165
Hum an rig hts

Figure 7.13 The ICESCR ensures that children such as 7-year-old Nang Paysaung from Dakcheung,
Lao, have the right to a free education.
state parties. Notable exceptions include China,
The ICESCR is monitored by the UN Committee
Pakistan and Cuba who although signing, have
on Economic, Social and Cultural Rights. At the
not ratied the treaty. The US ratied the ICCPR
beginning of 2010, the ICESCR had also been
in 1992 but added many reservations that signi-
widely ratied, with 160 state parties. Notably,
cantly reduced its domestic effect. A number
the US signed the ICESCR in 1979 but has never
of countries, including Burma, Malaysia, Saudi
ratied it. South Africa has also signed but never
Arabia and Singapore have to this day neither
ratied the covenant. Notable countries that have
signed nor ratied the ICCPR.
neither signed nor ratied the ICESCR include

Burma, Malaysia and Saudi Arabia.
Rights (ICESCR)
Like the ICCPR, the ICESCR was approved in 1966
and came into force in 1976. It created an obligation on state parties to work towards granting economic, social and cultural rights to individuals.
The ICESCR includes labour rights, such as the
right to just conditions and fair wages at work, as
well as the right to join trade unions. It also created
rights to an adequate standard of living, including
R EVI EW 7 . 9
1 Describe why a formal statement of human
rights was needed.
2 Identify the link between the UN Charter
and the UDHR.
3 Examine the claim that the UDHR
represented a critical turning point in
human rights.
4 Explain the reasons why the ICCPR and
the right to adequate food, clothing, housing and
ICESCR were needed on top of the UDHR.
health care. Finally, the right to education is guar-
5 Assess the differences between the ICCPR
anteed stating primary education should be
and ICESCR.
compulsory and free for all.
165
C hap ter s u m m a ry
M u l t ip l e- c hoi ce q ues ti ons
166
s The term human rights came into existence

in a formal way in the 20th century and refers
to fundamental and inalienable rights and
freedoms for every person.
s Human rights are now an integral part of
international law.
s Slavery was for most of human history, a
legitimate institution and has only recently
been outlawed in international law.
s Trade unions in many countries fought long
and hard campaigns for labour rights in many
countries but the right to join one was not
always guaranteed.
s Universal suffrage has only become a feature
of many nations governments in the last 120
years or so.
s Universal education came to be valued by
European governments little more than a
hundred years ago but hundreds of millions
of people in developing countries are not yet
guaranteed a full primary school education.
1 The effect of the Slavery Abolition Act of

1833 was to end slavery as a legal institution
in:
a Medieval Europe
b the British Empire
c the world
d Australia
2 The International Labour Organization:
a was formed in 1945
b was based in The Hague in the Netherlands
c was one of the few areas in which
individual human rights were promoted in
international law in the 1920s
d derived its legal authority from the UN
Charter
3 The country that rst adopted equal female
suffrage was:
a Australia
b New Zealand
c Great Britain
d the United States
s The collective right of self-determination was

long fought for and followed centuries of
colonisation, yet some indigenous peoples
around the world are still struggling to have
their rights respected.
s Environmental rights are a type of collective
right that advocates say should be protected
as a human right.
s Peace rights are recognised as fundamental
to the United Nations, yet war still continues.
s The Universal Declaration of Human Rights
was created in 1948 and is the formal
international statement of human rights.
s The UDHR, ICCPR and ICESCR together
comprise what is called the International
Bill of Rights, which together impose
obligations on states to respect and promote
human rights.
4 Which of the following was not included in

the Declaration of the Rights of Peoples to
Peace of 1984?
a The settlement of international disputes
by peaceful means on the basis of the UN
Charter
b The renunciation of the use of force in
international affairs
c The elimination of the threat of nuclear
weapons
d A requirement that this resolution be
binding on all nations
5 The UDHR:
a was adopted in 1945
b is soft law
c only deals with crimes committed in
wartime
d no longer has any legal standing in
international law because it has been
superseded by the ICCPR and the ICESCR
Hum
Hu m an rig hts
C hap ter s u m m a ry ta s k s
1 Dene the meaning of the term human

rights.
2 Explain the history behind the abolition of
slavery.
3 Assess the effectiveness of the right to peace.

4 Describe the process that led to the creation
of the UDHR.
5 Critically evaluate the effectiveness of the
UDHR in promoting human rights. Discuss its
effect when combined as the International Bill
of Rights with the ICCPR and ICESCR.
167
CHAPTER 8
Promoting and
enforcing human rights
168

s evaluate the effect of state sovereignty on the
protection of human rights
s describe the role of the various United Nations
agencies and programs in advancing the cause of
human rights
s describe the role of various non-government
organisations and the media in promoting human
rights
division of powers
dualist system
Economic and Social Council
(ECOSOC)
express rights
General Assembly (UNGA)
heads of power
Human Rights Council (UNHRC)
implied rights
incorporation
International Court of Justice (ICJ)
international humanitarian law
monist system
nation
Ofce of the High Commissioner
for Human Rights
ratify (ratication)
residual powers
resolutions
Secretariat
s identify the international and domestic courts and

tribunals that investigate and enforce human rights
s explain how international human rights treaties
become integrated into Australian domestic law
s outline the sections of the Australian Constitution
that give some protection of human rights
s explain how the High Court can protect human
rights
s discuss the arguments for and against having a
Charter of Rights.
Security Council (UNSC)

separation of powers
state
state sovereignty
Trusteeship Council
I M PORTANT LEGIS L AT ION AN D T R EAT IES

Rights (1966)
Cultural Rights (1966)
Human Rights (Sexual Conduct) Act 1994 (Cth)
International Criminal Court Act 2002 (Cth)
International Criminal Court (Consequential
Amendments) Act 2002 (Cth)
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)
Human Rights Commission Act 1986 (Cth)
od d l a w
In 2009, a Sudanese court sentenced a group
of 12 women to 20 lashes for wearing indecent
trousers.
The women were arrested at a popular
restaurant in the capital, Khartoum, for breaking
Article 152 of the Sudanese penal code (1991)
that stipulates:
(1) Whoever does in a public place an indecent
act or an act contrary to public morals or wears
an obscene outt or contrary to public morals or
causing an annoyance to public feelings shall be
punished with ogging which may not exceed
forty lashes or with ne or with both.
If the ne of 250 Sudanese pounds (A$107) is
not paid, the penalty can also include one month
in prison.
Hum
C rim
Hu
m an
e rig hts
rel ev ant l aw
Toonen v Australia, CCPR/C/50/D/488/1992, UN

Human Rights Committee (HRC), 4 April 1994
Croome v Tasmania (1997) 191 CLR 119
Lange v Australian Broadcasting Corporation
(1997) 189 CLR 520
ABC v Lenah Games Meats Pty Ltd [2001]
HCA 63
Giller v Procopets [2008] VSCA 236
Roach v Electoral Commissioner [2007] HCA 43
Mabo v Queensland (No 2) (1992) 175 CLR 1
Legal Consequences of the Construction of
a Wall in the Occupied Palestinian Territory
(Advisory Opinion), International Court of
Justice, 9 July 2004
Cha pter 8: Promoting a nd enforcing human ri ghts
169
Pro m o t i n g a n d e n f o r c i n g
human rights
Without protection, historically human rights
have developed throughout various campaigns to
Human rights in the

achieve partial and scattered recognition, resul-
state sovereignty
the ultimate law-making
power of a state
over its territory and
population, including
independence and
freedom from external
interference
ting nally in a formal declaration and binding
Since the 1945 establishment of the United
international treaties. The development of human
Nations and recognition of human rights through
rights was discussed in Chapter 7. Like any type
the Universal Declaration of Human Rights, the
of right, however, the effectiveness of their recog-
idea of universal rights has gained importance in
nition depends on the will of the community to
the international community. Yet, despite formal
implement them, and the mechanisms in place
recognition and the development of binding
to ensure they are respected, promoted and
treaties, progress has been gradual in securing
enforced.
governments respect for human rights and
Human rights are advanced on two broad
universal conformance with the treaties. While
levels: internationally and domestically. On each
some states are more advanced, with functioning
level, there are governing bodies responsible for
and independent institutions, a politically free and
complying with and promoting them, courts
active population and available funds to tackle the
responsible for enforcing them, and various
problems, other states may lack the resources,
organisations and pressure groups that report on
structures or political will to enforce those rights.
them and expose violations that occur. This chap-
Today, the promotion and enforcement of
ter will rst consider the international measures
human rights commands a great deal of attention
in place, and then look at the measures available
from both governments and citizens, but also from
in Australia for the promotion and enforcement of
the international community, including:
human rights.
s numerous branches of the United Nations

s international
courts,
tribunals
and
other
authorities
s inter-governmental organisations (IGOs)
s non-government organisations (NGOs)
s media groups.
Each of these will be considered in turn below.
First, however, one of the most important issues
of human rights in international law, and perhaps
one of the largest hurdles to its success, will be
considered the issue of state sovereignty.
State sovereignty
The concept of state sovereignty is central to interFigure 8.1 Since the establishment of the UN in 1945 and recognition of
human rights through the Universal Declaration of Human Rights, the idea
of universal rights has gained importance in the international community.
170
national law and to the capacity of the world to

enforce other states compliance with recognised
human rights.
s the capacity to enter into international relations.
To understand state sovereignty, the concept
A state must also be recognised by a sufcient
of a state needs to be claried. A state is the
number of other states so that it can exercise its
basic unit of the international system. Generally
full international political and legal capacity. This
known as countries, states are the only entities in
recognition is sometimes controversial (refer to
international law capable of exercising full political
the Legal Info below). In most cases, membership
capacity.
of the UN will be the clearest mark of statehood.
Statehood should not be confused with political
The issue of statehood can have implications
entities within a federal system, such as the dom-
for human rights. An unrecognised state or people
estic states of Australia or the United States. Strictly
may be unable to claim protections under the
speaking, a state should also be distinguished from
international human rights regime if they live in a
a nation, which is a people that share a common
territory of an unrecognised state, or if they form
heritage, language, culture or race nations do not
part of another state with which relations have
always correspond with state borders. Nations or
broken down. For example, in 2009 the Taiwanese
peoples seeking independent statehood will often
parliament ratied both the International Covenant
claim a right to self-determination, an issue that
on Civil and Political Rights (ICCPR) and the
was discussed in Chapter 7.

Cultural Rights (ICESCR) into domestic law. As
requires a number of factors. Outlined in article 1
an unrecognised state without UN membership,
of the Montevideo Convention on the Rights and
Taiwan does not have access to the international
Duties of States 1933, these essential characteris-
human rights framework, which includes the right
tics include:
to complain to the UN Human Rights Committee.
s a dened territory
For Taiwans 23 million citizens, this also means
s permanent population
no other state can submit any complaint to the
s effective government
Committee about Taiwan.
l e g al i nfo
In international law, recognition as a state
state
an independent
country; in law,
an internationallyrecognised entity
possessing the
characteristics
required for
statehood; not to
be confused with
political divisions
within a federal
system, like the
states of Australia,
Germany or the
United States.
Hum an rig hts
Statehood
nation
a people that share
common heritage,
language or culture
and sometimes a
common race
How many states are there?

The exact number of states in the world is disputed.
China in the UN, it was replaced in 1971 with
In 2010, the status of states and disputed states is
China (Peoples Republic of China). Currently,
as follows:
Taiwan has no UN representation but continues
s There are 192 fully recognised state members of
to function as a state with informal diplomatic
the United Nations.

s Vatican City (the Holy See) is a recognised state,
but only has observer status at the UN.
s The last state to become a UN member was
Montenegro in 2006.
s Taiwan (Republic of China) has the
relations.
s There are many disputed territories claiming
statehood, including Kosovo, Somaliland,
Abkhazia or Palestine, some with growing
international recognition (e.g. Kosovo is
recognised by 65 other states, including
characteristics of a state, but its international
Australia). Their claim to statehood may be
status is disputed. Originally representing all of
strongly disputed by other states.
171
Sovereignty
rationale to justify mistreatment of their own
The sovereignty of states is one of the most
citizens. In extreme cases, such countries may
essential components of the international system.
commit human rights abuses with impunity, with
State sovereignty refers to the ultimate law-
little or no avenue for their citizens to respond. In
making power of a state its independence and
such cases, state sovereignty may be used as a
freedom from external interference in its own
shield by states against outside interference in
affairs. Sovereignty is the source of a states legal
their own affairs.
and political power to make laws over its own

population and enforce those laws.
It is also a major issue in human rights, as in
they are interdependent and interrelated poli-
its strictest sense it means that no foreign state
tically, nancially, environmentally and legally.
or law can interfere in another states domestic
In particular, states have signed numerous inter-
jurisdiction, except with consent. Under the UN
national agreements (treaties) between themselves
Charter, all states are fundamentally equal
that create concrete legal obligations, including
article 2(1) of the Charter states: the [UN] is based
the UN Charter. These agreements are by nature
on the principle of the sovereign equality of all its
consensual so do not infringe on sovereignty, but
Members and so all states have equal power
do put responsibility squarely on the sovereign
over their own affairs.
state to uphold their commitments or face the
Critically, however, in the modern international
agreed consequences, which may be severe.
system a states sovereignty is not absolute. It is
For example, at the beginning of 2010, 165
limited under international law by certain duties
states had ratied the ICCPR and another 160
owed to the international community. Without any
states had ratied the ICESCR and all UN states
such limitations, a system of international anarchy
are subject to the UDHR. Known collectively as the
would result allowing governments to attack each
International Bill of Rights, these treaties create
other without cause, abuse their own citizens or
concrete legal obligations on states to comply
commit genocide on their own populations, with
with their human rights provisions, obliging them
no fear of consequences nor any means for their
to submit periodic reports to the Human Rights
citizens to seek help. Such a system is reminiscent
Committee, allow other states to submit com-
of the atrocities committed by Nazi Germany or the
plaints about them, and for most members allow
Empire of Japan during the Second World War. For
their own citizens to complain to the Committee
this reason, the international community imposes
about their treatment in the state.
limitations which, along with the consequences of
These and other mechanisms, including the
their violation, were discussed under Chapter 6 in
capacity of the UN to intervene, are discussed in
the context of crimes against humanity.
the relevant sections that follow.
State sovereignty and human

rights
In regard to human rights, one of the major problems of state sovereignty is that not all governments equally accept the idea that their own
people have certain rights. While robust democracies may have developed institutional respect
172
However, countries today do not exist in a

vacuum. They form part of a community where
R EVI EW 8 . 1
1 Describe the role of statehood in the
international community and assess how
this might impact on human rights.
2 Dene the modern concept of state
sovereignty.
for their citizens rights, with internal mechanisms
3 Evaluate the impact of state sovereignty on
to keep this in check, some countries without
the promotion and enforcement of human
democratic processes may rely on sovereignty as a
rights.
The background and development of the UN

was briefly described in Chapter 7, including
the role of the UN in the development and
recognition of international human rights stan
dards through an International Bill of Rights.
Today, the UN is a vast organisation with
substantial power, consisting of 192 member
states, including almost every sovereign state
in the world. It is the principal international
organisation, with responsibility for almost
every aspect of international affairs. The UN
has five principal organs under the UN Charter
(not including the former Trusteeship Council)
all of these have some role to play in the
promotion or protection of human rights. They
are outlined as follows.
General Assembly (UNGA) consisting of

representatives from all member states with
equal voting power, this is the main forum
for international discussions, deliberations,
and
directly to the General Assembly.

Security Council (UNSC) this is the UN
organ charged with maintenance of inter
national peace and security. It exercises its
power through legally binding resolutions,
and can authorise military actions, sanc
tions or peacekeeping operations. The UNSC
has five permanent members with power to
veto decisions (US, UK, China, Russia and
France), and ten non-permanent members
with two-year terms. The Council is argued
to have power to intervene in the most
serious of human rights abuses by states.
Economic and Social Council (ECOSOC)
this organ has 54 rotating members
meeting annually to assist in promoting
international
Organs of the UN human

rights responsibilities
declarations
Human Rights Council (UNHRC), reports
recommendations,
many relating to issues of human rights.

Numerous committees, programmes and
funds are attached to the General Assembly,
such as the UN Development Program. The
UNs principal human rights body, the UN
economic
and
social
cooperation and development. It includes

various committees and acts as the central
forum for discussion of economic, social,
environmental and humanitarian issues.
It used to house the Commission on
Human Rights, but in 2006 this body was
transferred to the General Assembly to
become the UN Human Rights Council.
Secretariat the main administrative body
of the UN with over 40000 staff working
worldwide, it provides the various infor
mation, studies, tasks and facilities needed
by the UN. It includes the departments
and offices of the UN, including the Office
of the High Commissioner for Human
Rights (OHCHR). The Secretariat is headed
by the UN Secretary-General, Ban Ki-moon,
the most visible and influential figure of
theUN.
International Court of Justice (ICJ) the
principal judicial organ of the UN, the ICJ
has jurisdiction under the UN Charter to
settle international disputes submitted to
it by member states, and produce advisory
opinions when requested on matters of
international law. Its cases will only rarely
Figure 8.2 The UN emblem
relate to issues of human rights.
Trusteeship Council
inactive since 1994 but
originally responsible for
overseeing transition of
UN trust territories after
decolonisation
General Assembly (UNGA)
the UN organ representing
all UN members states;
acts as a forum for global
discussion and runs numerous
committees and programs
Human Rights Council
(UNHRC)
UN forum of member states
responsible for overseeing
and making recommendations
on human rights in all
member states
H uman rig hts
The role of the UN
Security Council (UNSC)

the UN organ responsible for
maintenance of international
peace and security; power to
authorise military action or
other measures
resolutions
decisions passed by the
General Assembly or Security
Council; when passed by the
Security Council they can be
legally binding on all member
states
Economic and Social
Council (ECOSOC)
the UN organ acting as
a forum for international
economic and social
cooperation and development
Secretariat
the UN administrative body
headed by the UN SecretaryGeneral; contains the
departments and offices of
the UN
Office of the High
Commissioner for Human
Rights (OHCHR)
UN human rights office
responsible for monitoring
and reporting on human
rights worldwide
International Court of
Justice (ICJ)
the principal judicial organ
of the UN; has jurisdiction
to hear disputes submitted
by member states and issue
advisory opinions
Chapter 8: Promoting and enforc i n g h u m a n r i g h t s
173
Office of the High

Commissioner for Human
Rights (OHCHR)
Human Rights, which had been a part of ECOSOC
The Ofce of the UN High Commissioner for
courtiers with some of the poorest records on
Human Rights (OHCHR) is an administrative
human rights to be members, effectively prevent-
agency under the UN Secretariat that works to
ing criticism of those states actions and allowing
promote and protect the human rights contained
the abuses to continue.
since 1946, but had been heavily criticised for

failing its purpose. The previous body had allowed
in the UDHR and international law. Established in
The Human Rights Council has recently
1993 after a World Conference on Human Rights
adopted a series of specic measures that aim
held by the UN, the OHCHRs purposes include:
to increase its power to address human rights
s advancing universal ratication and implemen-
abuses, including:
tation of the UDHR and human rights standards

and treaties
s promoting universal enjoyment of human
rights and international cooperation, including
s a complaints procedure allowing individual

people to bring issues to the Councils attention
where they have been a victim of human rights
abuse in a state
education, information and technical assis-
s compulsory periodic reviews of the human
tance, taking preventative action and respond-
rights situation in all 192 member states (not
ing to serious human rights violations
just those who are members of the ICCPR and
s providing support and information for other
other treaties)
UN human rights bodies and treaty monitoring
s an Advisory Committee to provide expertise
bodies, including the Human Rights Council
and advice and recommend issues for the
and Human Rights Committee.
Council to consider.
The ofce is headed by the High Commissioner
The Human Rights Council is relatively new and
for Human Rights who responds directly to the
its success is too early to judge. The United States,
Secretary-General. In 2008, Navanethem Pillay, a
under former President George Bush, originally re-
former judge of both the High Court of South Africa
fused to participate in the Human Rights Council,
and the International Criminal Court, was appoint-
but in 2009 US President Barack Obama reversed
ed as the High Commissioner for Human Rights.
the USs position and joined the Council, thereby

strengthening its international inuence.
174
However, the Council has already received
The Human Rights Council is a relatively new
some criticism, from both current and former
inter-governmental body under the UN General
Secretary-Generals Ban Ki-moon and Ko Anan,
Assembly that contains representatives of mem-
as well as the former High Commissioner for
ber states its 47 member seats are rotated on
Human Rights. It has been criticised for not acting
three-year terms. It aims to address human rights
in the interests of human rights, but according
violations worldwide and make recommendations,
political considerations particularly inuential
and works closely with the OHCHR to perform its
states, including China and Russia, have also
duties.
been accused of backing and controlling certain
The Human Rights Council was established in
candidates to block criticism of themselves. It
2006 following a General Assembly resolution it
remains to be seen if or how effective the Council
was set up to replace the previous Commission on
can become.
One of the most contentious arguments on the
to take military or non-military action to restore
role of the UN relates to the ability of the UN
international peace and security. This ultimately
Security Council to act in cases of the most
makes the Security Council the most powerful
serious human rights abuses within a states
organ of the UN, and indeed the world, as it
own borders. Limitations of state sovereignty
provides the power to intervene without a states
traditionally restrain the international community
consent.
from interfering in another states territory. When
The Security Council has been heavily criticised
situations of serious human rights abuses are
for reluctance to use its intervention powers to
exposed, usually involving crimes against humanity
prevent mass atrocities or intervene where serious
or genocide, the international community will
abuses are occurring. At the World Summit
often call for the UN to intervene to put a stop to
2005 on reform of the UN, the world community
atrocities that are about to occur or are occurring.
decided to embrace a new doctrine of international
Recent examples include serious human rights
approach to human rights abuses, called the
abuses in Zimbabwe and crimes against humanity
Responsibility to Protect, or R2P. The doctrine
in Sudan.
aims to make protection of human rights an
However, the UNs powers to intervene within
integral part of the responsibility that goes with
any state are restricted by the UN Charter. Under
being a sovereign state if a state fails to protect its
the UN Charter, the principle of sovereignty is
own citizens, then the international community has
stated in article 2(7): nothing contained in the
the responsibility to step in under the Chapter VI or
present Charter shall authorise the United Nations
Chapter VII powers.
to intervene in matters which are essentially within

the domestic jurisdiction of any state
Under Chapter VI of the Charter, the Security
In 2006, the Security Council (by Resolution

1647) reafrmed the World Summit Outcome
Document regarding the responsibility to protect
Council can recommend measures for the peaceful
populations from genocide, war crimes, ethnic
settlement of disputes or situations that may
cleansing and crimes against humanity. In 2009,
lead to international friction. Although this has
the UN Secretary-General, later supported by a
occasionally been used to send UN peace-keeping
resolution of the General Assembly, expressed
troops into troubled regions, this requires the
commitment to the doctrine under three Pillars
consent of the state or states involved and will fail
of responsibility:
if the state refuses intervention. Since 2002, the
s states have a responsibility to protect their
Security Council can also refer criminal matters to

the International Criminal Court (ICC), as it did with
populations from these crimes

s the international community is responsible for
Darfur, Sudan in 2005, but this may do little to stop
assisting states to build capacity to protect their
a situation that is still occurring.
populations before such crises or conicts break
Article 2(7) of the Charter does limit sovereignty

in one instance: this principle shall not prejudice
Hum an rig hts
l e g a l i n fo
UN intervention and the Responsibility to Protect (R2P)
out
s importantly, when a state has manifestly failed
the application of enforcement measures under
to protect its citizens and where peaceful means
Chapter Vll. Chapter VII of the UN Charter
are inadequate, the international community
empowers the members of the Security Council
must take action to prevent harm.
175
legal links
The following UN websites offer a

wealth of information on human rights
sOfce of the High Commissioner for

Human Rights: www.ohchr.org
internationally, including current status,
sUN Council on Human Rights: www2.
progress, goals and various complaints
ohchr.org/english/bodies/hrcouncil
mechanisms:
sMillennium Development Goals:

www.undp.org/mdg
Millennium Development
Goals
as a charter outlining the organisations purpose
of the UN and briey
In 2002, all member states of the UN at
regularly and have international legal personality
describe what role
the time agreed to a declaration at the
and so can enter into enforceable agreements and
they play in promoting
end of a conference on world poverty.
are subject to international law.
or protecting human
This became known as the Millennium
rights.
Declaration.
R E VIE W 8.2
1 Identify the ve organs
and operation. They are usually permanent, meet
Some of the rst worldwide IGOs included the
outlined
International Telegraphic Union in 1865 and the
eight ambitious Millennium Development
Universal Postal Union in 1874. In 1909, there
the UN Human Rights
Goals that all member states pledged to
were 37 IGOs in the world and by 1960, this gure
Council and evaluate
try to reach by 2015. The goals include
had risen to 154. Today, the number stands at
its effectiveness in
eradicating extreme poverty and hunger,
around 1000. The UN, created by the 1945 treaty
responding to cases of
achieve universal primary education,
the United Nations Charter, is the most important
human rights violations.
promote gender equality and empower
of all IGOs. Other powerful IGOs include the World
2 Describe the role of
3 Dene the doctrine of

R2P and how it differs
The
declaration
women, and combat HIV/AIDS, malaria
Trade Organization, the International Monetary
and other diseases, among others.
Fund (IMF), the North Atlantic Treaty Organization
As 2015 approaches, many countries
from the traditional role
(NATO) and INTERPOL.
have improved their performances in
Apart from the UN, a number of IGOs have the
4 One concern about the
these areas, but others show little or no
promotion of human rights as part of their stated
R2P is that Security
real improvement. There has been some
goals and can exert signicant inuence on the
Council politics might
criticism of using such a goal-based
human rights of their member states, although
inuence its use, either
approach to difcult areas of development
the inuence of every organisation will differ. For
in favour of or in bias
and human rights. However, the goals
example:
against certain states.
have provided signicant funding, re-
s Commonwealth of Nations made up of 54
Critically evaluate the
sources and an important focus for states,
members, including the UK, Australia and
effectiveness of the
UN agencies and various organisations
almost all former colonies of the British Empire.
doctrine in light of this
to eradicate some of the most serious
The Commonwealths stated aims include
or any other issues you
problems of our times with effects that
the promotion of democracy, the rule of law,
can identify.
will last well beyond 2015.
human rights, individual liberty and good
of the UN.
governance. Several members have been sus-
176
Intergovernmental
organisations
pended due to serious or persistent violations
An intergovernmental organisation (IGO) is an
military coups.
and human rights abuses, including Zimbabwe

in 2002 and Fiji on various occasions due to
international institution comprised of various
s African Union includes almost all African
member states. IGOs are created by agreement
states, the African Union among its many
between states, by an international treaty that acts
aims includes achieving peace and security in
Africa and promoting democratic institutions,
and to issue advisory opinions on matters of
good governance and human rights. The Union
international law.
includes the African Commission on Human
The ICJ has heard relatively few cases since its
and Peoples Rights, with responsibility for
establishment, but has issued some important
monitoring and promoting compliance with
judgments and opinions. For instance, in Legal
the African Charter of the same name, and the
Consequences of the Construction of a Wall in the
African Court on Human and Peoples Rights,
Occupied Palestinian Territory (Advisory Opinion),
currently being merged with the overarching
International Court of Justice, 9 July 2004, the ICJ
African Court of Justice.
issued an important, though controversial, advi-
s Organization of American States includes
sory opinion declaring the Israeli West Bank barrier
almost all the states of North, Central and South
a 700 kilometre wall partitioning the Palestinian-
America. Two of the organisations bodies, the
occupied West Bank from Israeli territory
Inter-American Commission on Human Rights
contrary to international law and encroaching on
and the Inter-American Court of Human Rights
disputed territory. International NGOs such as the
are responsible for overseeing the regional
ICRC and Amnesty International have claimed that
human rights instrument the American Con-
the barrier causes serious humanitarian problems
vention on Human Rights.
or violates Israels obligations under international
Hu m an rig hts
Figure 8.3 In 2004, the ICJ issued an important, though controversial, advisory opinion declaring the
Israeli West Bank barrier contrary to international law.
humanitarian law. Israel has disputed these
Courts, tribunals and

independent authorities
claims, and the Security Council has yet to accept
There are numerous international courts, tribunals
the consent of state parties to hear matters and so
and other independent authorities with power to
has very little jurisdiction. States can consent to
hear matters involving human rights abuse. These
compulsory jurisdiction of the court, but in 2010
are considered below.
only 66 states have done so, most with some form
and enforce the ICJs ruling.

The strongest criticism of the ICJ is that it requires
of reservation limiting the courts power, including
International Court of Justice

(ICJ)
Australia. The court is unable to hear cases brought
The International Court of Justice (ICJ) is an organ
is restricted to states themselves, and has very
of the UN. It started operation in 1946 at the Peace
little power of enforcement, with Security Council
Palace in the Hague, Netherlands. The ICJ has two
members being able to veto any enforcement
roles: to hear and judge disputes between states,
action. Despite these limitations, the court has
by individual people or private organisations,
177
issued important judgments that carry the weight
a landmark human rights treaty drawn up follow-
of international law and act as signicant guides to
ing the Second World War. Its members include
future actions.
47 countries on the continent of Europe, including
Other forums are arguably much more effective
Russia and Turkey, but excluding Belarus.
for hearing matters of serious human rights vio-
The ECHR is an extremely inuential human
lations, including the Security Council discussed
rights body, and compliance has crucially been
above, the International Criminal Court, regional
incorporated into the treaties of the European
courts such as the European Court on Human
Union (EU). This means that the laws of all 27
Rights, or the Committee on Human Rights.
member states of the EU must comply with the

rulings of the ECHR. This has had an enormous

(ICC) and ad hoc tribunals
effect on member state laws for example,
The International Criminal Court (ICC) was estab-
following ECHR rulings. The ECHR has proved
lished in 2002 to prosecute international crime.
successful, but almost too successful in 2010 the
The ICC was preceded by various tribunals that had
ECHR announced various procedural reforms in
been established by the UN Security Council to
order to deal with a backlog of some 120 000 cases
deal with specic historical events involving seri-
across Europe waiting to be heard.
numerous laws of the UK have had to be revised
ous international crime (known as ad hoc tribunals), such as the International Criminal Tribunal
The Australian situation
for the Former Yugoslavia (ICTY), or similar tribu-
Unlike Europe, or Africa or the American states,
nals for Rwanda, Sierra Leone and Cambodia.
Australia is not currently party to any regional
The ICC is not a court for human rights viola-
human rights instrument or human rights court.
tions, but prosecutes and hears matters of the most

serious international crimes, including genocide,
crimes against humanity and war crimes, although
these acts would also constitute serious human
Other authorities
established by treaties
rights abuse. It also has jurisdiction to hear crimes
The International Bill of Rights, as well as some
of aggression (illegal war) but the international
other key human rights treaties, has established
community is still in the process of agreeing
particular authorities to hear matters of com-
on a denition for this. Importantly, the ICC has
pliance by member states with the treaties.
jurisdiction to prosecute individual people rather
One of the most important of these is the
than states, which makes it a powerful institution
Human Rights Committee, which assesses mem-
for combating individuals who seek to use state
ber state compliance with the ICCPR and can hear
sovereignty as a defence for their abuses. The work
petitions raised by the states about each others
of the ICC is discussed in more detail in Chapter 6.
compliance. Signicantly, the First Optional Protocol to the ICCPR also gives the Committee
178
European Court of Human

Rights (ECHR)
jurisdiction to hear personal complaints brought
The European Court of Human Rights (ECHR) was
rights violations in their own country. In 2010,
set up in 1959 in Strasbourg, France, to apply and
112 countries have ratied this optional protocol,
protect human rights of the citizens of Europe. It
including Australia. Citizens can take complaints
considers cases brought by individuals, as well as
directly to the Committee, providing they have
organisations and state, against all countries bound
rst attempted to resolve the matter with human
by the European Convention on Human Rights
rights bodies in their own country, or region if
(ECHR). This convention, similar to the UDHR, was
applicable, such as the ECHR.
by individuals of member states about human
experts will hear a complaint brought against a
member state, which will include re-occurring
state and make rulings on compliance, making it
recommendations to address the issues until the
a quasi-judicial body. Although decisions are not
Committee is satised that the state is compliant.
enforceable, they are highly inuential, embar-
A number of cases have been raised against
rassing for the government of a state accused of
Australia, and the strong persuasive power of the
violation and might inuence local legal inter-
Committees rulings can be seen in the case of
pretation. These judgments will also be raised
Toonen v Australia.
Toonen v Australia, CCPR/C/50/D/488/1992, UN Human Rights Committee (HRC), 4 April 1994;

Croome v Tasmania (1997) 191 CLR 119
Toonen was a landmark case on Australias human
was interfered with by Tasmanias laws, without
rights. It was brought to the UN Human Rights
any reasonable justication for that interference.
Committee by Nicholas Toonen, a Tasmanian
The law violated Article 17 of the ICCPR, and the
resident. The case illustrates the power of human
Committee ordered Australia to respond to the
rights laws to effect local change.
Committees nding and repeal the incompatible
The case revolved around a complaint by
law. The Committees views were also widely
Toonen that existing Tasmanian laws that
publicised internationally and carried signicant
criminalised consensual sex between adult males
authority.
were in violation of his human right to privacy.
Tasmania, however, refused to repeal the law.
This right is protected under Article 12 of the
The federal government was forced to enact
UDHR and Article 17 of the ICCPR. The complaint
the Human Rights (Sexual Conduct) Act 1994
also claimed discrimination on the basis of sexual
(Cth), which legalised consenting sexual activity
activity and orientation, and that homosexual men
between adults throughout all of Australia.
were unequal before Tasmanian law, in violation of
Yet Tasmania still refused to repeal its law and
Articles 2 and 7 of the UDHR and Article 26 of the
in 1997 Tasmanian rights campaigner Rodney
ICCPR.
Croome took the matter to the High Court of
Australia historically inherited anti-
Australia (Croome v Tasmania (1997) 191 CLR 119),
homosexuality laws from Great Britain, which were
where the law was deemed illegal as it was now
then retained in the states criminal codes. These
inconsistent with both the ICCPR and Australian
were gradually repealed by states, commencing in
law. Tasmania had no option but to abolish its law
South Australia in 1972. By 1991, Tasmania was the
and decriminalise homosexuality.
last remaining state to maintain these laws, where
Since being forced to overturn its laws, with
they were still active. Toonen also complained that
the negative national and international publicity
people in authority in Tasmania would regularly
it received, Tasmania has become one of the
make derogatory remarks about homosexual
most progressive states in Australia in combating
people amounting to a campaign of ofcial and
discrimination based on sexuality, as well as other
unofcial hatred.
human rights. In 2003, Tasmania became the rst
The UN Committee found that adult consensual
Hu m an rig hts
by the Committee in its periodic reports to each
ca s e s p a ce
At the Committee, a group of human rights
jurisdiction in Australian and one of the rst in the
sexual activity in private was covered by the
world to legally recognise and register same-sex
human right to privacy, and that Toonens right
domestic partnerships.
179
l e g a l i n fo
Human rights treaty bodies

A number of treaty bodies similar in function to the
s Committee on the Elimination of Racial
Human Rights Committee have been established

by various human rights treaties. Some of these are
Discrimination
s Committee on the Elimination of Discrimination
listed below:
Against Women
s Committee on Economic, Social and Cultural
s Committee against Torture

s Committee on the Rights of the Child.
Rights
R ESEARCH 8.1
international
humanitarian law
a body of international
law developed from
the Geneva and Hague
conventions that deals
with conduct of states
and individuals during
armed conict; also
known as the law of
armed conict
1 Visit the website of UN High Commissioner

for Human Rights (OHCHR) at: www2.ohchr.
org/english/bodies.
2 Research two of the committees listed in the
government and intergovernmental organisations

and specialised UN agencies.
NGOs engaged in human rights play an indispensable role in informing the global community,
governments and the UN of human rights viola-
Legal Info box and identify the international
tions and progress. They help ensure greater
treaty the committee is responsible for,
government compliance by investigating, research-
and the power the committee has to hear
ing, documenting and publicising cases of human
matters against its member states.
rights violations. This process of naming and

shaming can have a profound effect on gov-
Non-government
organisations (NGOs)
ernment behaviour. Some NGOs will also work
Non-government organisations (NGOs) are organi-
other states or the UN to place diplomatic pressure
sations created by people that are independent
or take action on violating states.
evidence to international courts, or encouraging
and without representation of any government.
One of the oldest and most important inter-
They include private voluntary
national NGOs is the International Committee of
organisations, citizen associations
the Red Cross (ICRC). With origins tracing back to
and civil society organisation.
1863, the ICRCs missions are strictly concerned
NGOs have grown exponentially
with international humanitarian law, to protect
in recent times. In 1914 there were
the life and dignity of the victims of international
an estimated 176, in 1970 there
and internal armed conicts, although this work
were an estimated 2000, and by
often overlaps with human rights abuses. The
the beginning of the 21st century,
importance of the ICRC is recognised internation-
there were over 40 000 NGOs. At
ally and since 1990 it has been allowed observer
the establishment of the UN in
status at the UN General Assembly. The ICRC also
1945, NGOs were already playing
works closely with the International Federation
an important role in contributing
of Red Cross and Red Crescent Societies (IFRC),
to international discussion. Today,
which includes 186 National Red Cross and Red
many NGOs collaborate on a
Crescent Societies that lead and organise relief
daily basis on human rights and
assistance missions in response to large-scale
humanitarian work with various
emergencies.
Figure 8.4 The International

Committee of the Red Cross is one
of the most important international
NGOs and is permitted observer
status at the UN General Assembly.
180
directly with violators or victims, providing
legal links
Some of the most important international
s Human Rights Watch: www.hrw.org
NGOs working for human rights include:
s Carter Center: www.cartercenter.org
s Amnesty International:
s International Committee of the Red
www.amnesty.org
s Freedom House:
Cross: www.icrc.org
s Reprieve: www.reprieve.org.au
RES E A RCH 8.2
NGO, the Committee to Protect Journalists, 71
Visit two of the NGO websites provided above
journalists were killed in 2009, including 29 who
and answer the following:
were killed in one brutal massacre in an unstable
1 Identify when the NGO was rst established
region of the Southern Philippines. Almost 140
and who established it.

2 Describe the work that the NGO does in
promoting human rights.
3 Consider the types of human rights that the
NGO is attempting to protect.
4 Evaluate how the NGO might affect the
human rights performance of governments.
Hum an rig hts
www.freedomhouse.org
were jailed worldwide, with most in either China,

Iran or Cuba. Over half those imprisoned were
arrested in relation to internet reports.
The international NGO, Reporters Sans Frontires (RSF) (Reporters Without Borders) releases
an annual index of media freedom of all states. In
2009, Australia ranked near the top with an index
of 3.13. At the other end of the index were China
The media
(index of 84.50), Iran (index of 104.14) and North

Korea (index of 112.50).
Like NGOs, the media plays a crucial role in the

naming and shaming of governments and human
rights violators by exposing instances of human
rights abuse and helping to bring about change.
By investigating and reporting on human rights
issues the media can have a signicant inuence
on public opinion and government action.
The role of a free and impartial media and
peoples right to information is recognised as
a human right article 19 of the UDHR states
everyone has the right toseek, receive and
impart information and ideas through any media
regardless of frontiers.
Yet the inuence of the media is also recognised
by violators of human rights. Media freedom is
severely restricted in many countries where it is
often unsafe for reporters to undertake their work,
which could result in censorship, imprisonment,
beatings or even death. According to one important
Figure 8.5 By investigating and reporting

on human rights issues the media can have
a signicant inuence on public opinion and
government action.
181
1 Explain the difference between

IGOs and NGOs and assess
legal links
R E VIE W 8.3
Reporters Sans Frontires (RSF)

(Reporters Without Borders)
In recognition of the
organisations importance,
RSF is a vital international
RWB holds consultant status at
NGO with correspondents and
the UN. Detailed information on
ofces worldwide. RSF aims to
press freedom in every country
courts, tribunals and other
promote press freedom in all
around the world is available on
authorities in hearing matters
countries by ghting censorship
the RSFs website at:
of human rights. Identify what
and laws undermining the press,
www.rsf.org.
types of human rights matters
defending journalists imprisoned
can be heard by which body.
or persecuted in their job, and
how either organisation can

help to promote human rights.
2 Compare the role of different
3 Identify the dangers faced by

journalists in countries where
working for safety of journalists,

especially in war zones.
there is little press freedom.
ratify (ratication)
the process of a
country formally
approving a treaty,
making it legally
binding
monist system
a legal system that
deems treaties
enforceable in
domestic law as soon
as they have been
signed
dualist system
a legal system that
does not deem
treaties enforceable
domestically but
requires incorporation
into domestic law,
usually by passing
similar legislation
Hu ma n right s i n Au s t ra lia n law

In Australia, there is no one document where all
On the other hand, Australia, like the UK, is a
human rights can be found rights that correspond
dualist system. This means that simply signing a
with internationally recognised human rights
treaty does not make it enforceable in Australian
are drawn from different sources. These sources
law. The rights and obligations of the treaty will
include international treaties, the Constitution of
need to be incorporated into Australian law in
Australia, the common law, and statute law of the
some way. Parliament will usually pass legislation
Commonwealth, states and territories.
that echoes the words of the treaty or amends

existing laws. For example, when Australia ratied
Incorporation of human
rights into domestic law
the Rome Statute of the International Criminal Court
When an international treaty is negotiated and
Act 2002 (Cth) and the International Criminal Court
formed, states indicate their agreement to the
(Consequential Amendments) Act 2002 (Cth) to enact
principles of the treaty by signing it. Signing a
the provisions of the treaty into Australian law.
in 2002, the Commonwealth Parliament simultaneously passed the International Criminal Court
treaty means the country will have to act in the
The Australian
Constitution
incorporation
the process by which
a country implements
a treaty into domestic
law
spirit of the treaty, but it is not directly binding. In
the prevention of
one person or group
from gaining total
power by dividing
power between
the executive, the
legislature and the
judiciary
systems, meaning that when the countrys
roles in protecting human rights for Australians:
government raties a treaty, the words of the
s it lays down the system of Australian govern-
treaty automatically become law in the country
ment through which human rights are recog-
as if it was an act of parliament. Such countries
nised, including the separation of powers and
can sign and ratify a treaty at the same time.
division of powers, and
182
most cases a treaty will need to be ratied by the

state before it becomes binding and enforceable.
Some countries around the world are monist
Countries such as France or the Netherlands are

monist systems.
The Australian Constitution plays two important
s it is the source of some specic human rights,

including express rights and implied rights.
Legislative
Power
Parliament
House of
Representatives
Executive
Power
Judicial
Power
Governor-General
High Court
The Ministry
Other Federal Courts
Senate
Government Departments
Hum an rig hts
THE CONSTITUTION
Figure 8.6 Separation of powers under the Australian Constitution judicial power is strictly separated from political
powers. Under the Westminster system of responsible government, legislative and executive branches are not as strictly
separated Ministers perform an executive role as heads of departments while also sitting in Parliament.
Division of powers and

including government, are equally subject to the
The doctrine of separation of powers, as previously
ties are protected from the risk of abuses of power
studied, is important in protecting human rights. It
that could come with a politicised judiciary. Finally,
involves the separation of the branches of state:
the separation of power enables the judiciary to
s the
legislature
elected
law-makers
same law. It also helps ensure that rights and liber-
in
parliament
s the executive government, including ministers and agencies,
s the judiciary the courts that interpret and
apply the law.
strike down any legislation that is deemed incompatible with the provisions of the Australian Constitution and the rights and limitations it contains.
The Constitution also denes the division of
powers between the Commonwealth and Australian states. This is the basis of the Australian
In Australia, separation of powers is protected
federation how legislative power is divided
under Chapters I to III of the Australian Con-
between Commonwealth and state parliaments.
stitution which describe the functions of each
Most specic areas that the Commonwealth can
branch respectively. As a Westminster system of
make laws on are listed under s 51 of the Consti-
responsible government, Australia has no strict
tution these areas are known as Commonwealth
separation between the legislature and executive
heads of power and include, for example,
the Constitution provides for Ministers to sit in
currency (s 51(xii)), marriage (s 51(xxi)) or copy-
parliament and the executive can make delegated
right and patents (s 51(xviii)). Powers that are not
legislation.
listed in the Constitution are deemed residual
However, the High Court has constantly ruled
powers for the states. States can decide to refer
that strict separation of the judiciary from the other
that power to the Commonwealth, as states did,
two political branches is a fundamental principle
for example, with air navigation and terrorism
in the Constitution. The independence of the judi-
regulation.
ciary can be seen as an essential mechanism in
While division of power can act as a check
upholding the rule of law, ensuring that all people,
on government by ensuring power is not too
division of powers
the arrangement
for the how the
powers between
the federal and
state government
and divided.
heads of power
powers listed in
ss 51 and 52 of
the Constitution
that describe the
areas that the
Commonwealth
can legislate on
residual powers
powers not listed in
the Constitution for
the Commonwealth
to legislate on that
are deemed to
remain the power
of states
183
centralised in one place, the Commonwealths
and structure of the Constitution. For example, the
power has grown signicantly since federation
High Court has on a number of occasions (most
in 1901, especially for example in use of the
clearly
corporations power (s 51(xx)).
Corporation (1997) 189 CLR 520) held that the
in
Lange
Australian
Broadcasting
One particular area that has been crucial for the
Constitution contains an implied right to freedom
development of human rights in Australia has been
of political communication, a type of freedom of
the external affairs power in s 51(xxix). This power
speech, in order for Australias political system as
gives the Commonwealth authority to legislate on
established in the Constitution to function
external affairs, which includes Australias treaty
effectively.
obligations. Since federation, the growth of treaties
Despite this, the nding of implied rights by
internationally has been enormous, and treaties
the judiciary has often been controversial and
have developed to cover many of the areas of the
the ability of the Constitution to act as a protector
law that would traditionally have been solely with-
of human rights is very limited. Most Australian
in the power of the Australian states. Human rights
human rights are found in other sources of law.
treaties have transformed the country by enabling

Commonwealth parliament to bind states to those
rights and if necessary legislate to protect rights
universally across Australian jurisdictions.
Common law
In Australia, the common law, the body of law
passed down by judgments of the courts, has
Express and implied rights
evolved over centuries independently of govern-
Unlike the US, Australia does not have a bill of
ment and carries the power to protect many
express rights
rights that are
expressly included in a
document
rights to bind state and Commonwealth action
human rights. Many Australian statutes, particu-
relating to human rights. However, the writers of
larly criminal law, are silent on many aspects of the
the Constitution did include some minimal rights,
law and it is the common law that holds and denes
implied rights
rights that can be
implied through the
text, structure or
purpose of a document
known as express rights. Additionally, over
these rights and obligations. Some examples of
the last century the High Court has interpreted
fundamental rights protected by the common law
the Constitution as necessarily holding certain
are the presumption of innocence and the burden
other rights. Even though they are not expressly
of proof, and the right to a fair trial.
R E VIE W 8.4
1 Explain how international
treaties are incorporated
into Australian law.
2 Dene the doctrine of
However, the common law does not offer
that certain rights must have been
absolute protection of human rights as common
intended in order for the Constitution
law rights are not xed that is, rights in the
to function effectively these are
common law, no matter how crucial they may be
known as implied rights.
seen to be, can be removed by any act of parlia-
Express rights in the Constitution
ment. For example, strict anti-terrorism laws
include: freedom of religion (s 116),
passed by the Commonwealth government in the
separation of powers and
the right to vote in Commonwealth
aftermath of the September 11 attacks and the Bali
identify which power in
elections (s 41), the right to a trial by
bombings were widely criticised as removing long-
Australia is kept strictly
jury in federal indictable cases (sec-
standing criminal law rights for certain people.
separate.
tion 80), or the right to just terms
The common law cannot be relied upon to
3 Describe how the
where the Commonwealth compul-
develop new rights, as judgments will only dene
external affairs power has
sorily acquires property on just terms
those rights on a case-by-case basis, if and when a
transformed Australias law.
(section 51(xxxi)). However, these
relevant matter is brought before a court. However,
184
written in it the High Court has found
rights are very limited and over time
it has still been instrumental in establishing some
between an express and
the High Court has judged that certain
rights in recent times. For example, in 2001 in the
implied right.
other rights can be implied in the text
case of ABC v Lenah Games Meats Pty Ltd [2001]
HCA 63, the High Court suggested the possibility of

a tort for invasion of privacy. In 2008, the Supreme
Court of Victoria recognised a persons right to
privacy in Giller v Procopets [2008] VSCA 236. In
that case, privacy was breached by the defendant,
shared a private sexual videotape of her to her
friends, family and employer. As of 2010, the High
Figure 8.7 The most signicant human rights body in

Australia is the Australian Human Rights Commission.
Court has yet to conrm whether this right of

privacy applies in the common law Australia-wide.
Australian Human Rights

Commission
Statute law
The most signicant human rights body in Australia
Over the last half-century, a large body of
previously known as the Human Rights and Equal
Australian statute law, both Commonwealth and
Opportunity Commission (HREOC). An indepen-
state law, has been adopted by successive parlia-
dent national body, it was established under the
ments to protect human rights. While many of
Human Rights Commission Act 1986 (Cth) to deal
the laws have been adopted in response to the
mainly with alleged violations of Australias anti-
establishment and ratication of international
discrimination legislation, which at the time
treaties protecting rights, some have also been
covered racial and sexual discrimination. States
established independently by state or federal
and territories also have equal opportunity or anti-
parliaments. Statute is a powerful tool in human
discrimination bodies to oversee compliance with
rights protection and many laws have been
state human rights laws.
is the Australian Human Rights Commission. It was
wide-reaching, but like common law discussed
As Australias human rights legislation has
above, rights laid out in statute are not xed, but
matured, the functions of the Australian Human
can be removed by a later act of parliament if a
Rights Commission have grown. It now has res-
government chooses to do so.
ponsibility to:
Some of the most important human rights

legislation in recent times includes:
s Racial Discrimination Act 1975 (Cth)
s Sex Discrimination Act 1984 (Cth)
s Australian Human Rights Commission Act 1986
(Cth)
Hu m an rig hts
who was the plaintiffs partner, after he unlawfully
s receive and investigate complaints into discrimination and breaches of human rights
s promote public awareness about human rights
and provide legal advice
s conduct public inquiries into human rights
issues and issue recommendations
s Disability Discrimination Act 1992 (Cth)
s give advice and make submissions to parlia-
s Age Discrimination Act 2004 (Cth), and
ment and governments on development of
s Anti-Discrimination Act 1977 (NSW).
laws, policies and programs consistent with

human rights.
Courts and tribunals
The Commission has had an important inuence
In Australia, all courts and tribunals will have
ducted an inquiry into the separation of indige-
some role in applying and enforcing human rights
nous children from their families (known as the
laws. Occasionally, courts will also play a role in
Stolen Generation). The Commissions report,
interpreting and developing human rights law. The
Bringing Them Home, recommended an apology
most important Australian human rights bodies
by the Australian government to the victims.
are discussed below.
This recommendation was ignored for over a
on Australias laws. For example, in 1997, it con-
185
take the matter to the Federal Court of Australia,

which has the power to make enforceable orders
on recommendation of the Commission.
Secondly, the Commission can hear complaints
on many other human rights breaches in Australian law and international human rights law. In
these cases, the complainant is unable to take the
matter to the Federal Court, but the Commission
can make a report to the Attorney-General who is
Figure 8.8 The High Court has the power to
set binding precedents on other courts or to
overturn state or Commonwealth legislation
related to human rights.
required to table the report in parliament. As of

2010, over 40 such reports had been made. While
this is an important function, these ndings are
not enforceable and the complainant will have no
decade by the then Coalition government. How-
right to have the wrong rectied. There are calls
ever, in February 2008, a landmark apology to
for many of these matters to be made directly
the stolen generation was made by the then newly
applicable in the courts as is the case with discri-
elected Labor Prime Minister Kevin Rudd. Other
mination cases.
important inquiries have included children in

immigration detention, people with mental illness,
High Court of Australia
racial violence and same-sex entitlements. More
While matters involving human rights might
recently, the Commission has played a key role
appear before the state or federal courts and tribu-
in recommendations on an Australian Charter of
nals, it is in the High Court where human rights
Human Rights.
issues often become most important. This is
The Human Rights Commission has two com-
because the High Court has the power to set
plaints functions. Firstly, it has the power to inves-
binding precedents on other courts or to overturn
tigate many areas of discrimination, including
state or Commonwealth legislation.
race or ethnic origin, age (young or old), disability
High Court cases involving human rights
or sex and can also investigate workplace discri-
include the decriminalisation of homosexuality
mination relating to sexual preference, trade union
(Croome v Tasmania), a Constitutional right to free-
activity or political opinion. The Commission will
dom of political communication (Lange v Australian
investigate and try to conciliate the complaint,
Broadcasting Corporation), or a possible common
but if it cannot be resolved the complainant can
law right to privacy (ABC v Lenah Game Meats). In

another recent case, the High Court upheld the
l eg a l i nf o
Constitutional right of all people to vote, including

The Australian Human Rights Commission
The website of the Australian Human Rights
prisoners (Roach v Electoral Commissioner [2007]

HCA 43).
The High Courts methods of interpretation
Commission (www.hreoc.gov.au) provides detailed
involving human rights have been particularly
information and educational resources on human
inuential, and occasionally controversial. For
rights in Australia. It describes the various complaints
example, the case of Mabo v Queensland (No 2)
procedures available, as well as advice and guidelines
(1992) 175 CLR 1 is one of the most important
on complying with human rights law. It also contains
cases in Australian law and involved recognition
the results of its inquiries into human rights and
for the rst time of Australias Indigenous peoples
reports on all ndings of human rights breaches.
right to title in their traditional land. This principle

became known as native title.
186
was inuential for the judges in reaching their
R ESEAR CH 8 . 3
R EVI EW 8 . 5
1 Explain why common law
Visit the website of the NSW
conclusion. Justice Brennan stated that inter-
rights might be less secure
Council of Civil Liberties
national law was a legitimate and important
than statute law.
(www.nswccl.org.au) and
inuence on the common law, especially when
2 Identify three important
answer the following
international law declares the existence of
human rights statutes and
questions.
universal human rights and that a common law
describe some of the rights
1 Identify when the
doctrine founded on unjust discrimination in the
they protect.
enjoyment of civil and political rights demands
organisation was founded.
3 Explain some of the
2 Describe some of
reconsideration. This represents an important
functions of the Australian
the functions of the
step in human rights recognition, opening up the
Human Rights Commission.
organisation.
numerous international human rights documents
4 Critically evaluate the
3 Find and discuss some of
to domestic consideration. Some, however, have
role of the High Court in
the cases the organisation
criticised the court for exceeding its powers,
protecting human rights in
has conducted defending
under the doctrine of separation of powers, and
Australia.
human rights.
Hu m an rig hts
In the decision in that case, international law
argue that expanding such rights is a matter for

The power of the judiciary, particularly the High
Court, to protect human rights is critical, especially
where judges can be inuenced by agreed international standards, with the potential to apply
those standards in the absence of conforming
legislation passed by parliaments. Combined with
the courts power to declare legislation inconsistent
or invalid, to uphold the rights of the Constitution
and to continue to develop the common law,
the High Court is arguably the most important
l eg al l i nks
parliament only.
Some of the most important NGOs in

Australia in the eld of human rights include:
s NSW Council for Civil Liberties (NSWCCL):
www.nswccl.org.au
sCivil Liberties Australia: www.cla.asn.au
sRights Australia:
www.rightsaustralia.org.au
sAustralian Council of Social Services
(ACOSS): www.acoss.org.au.
protector of human rights in Australia.
Non-government
organisations
The media
As in the international arena, there are numerous
The media play an indispensable role in the
NGOs in Australia that work in the area of human
naming and shaming of governments and human
rights. Similar to international NGOs, these
rights violators by exposing instances of human
organisations will play a vital role in researching
rights abuse and helping to bring about change. It
and reporting on human rights issues, making
has a signicant inuence on public opinion and
submissions to state and Commonwealth parlia-
government action.
ments or law reform bodies on human rights
The rights of Australian reporters to dissemi-
inquiries, or working in the eld of human rights
nate information and the right of the public to
with victims of rights violations. Australian NGOs
receive information are not enshrined in law. The
are important in protecting individuals rights,
freedom of political communication is protected
shaping public and political opinion and exposing
by the Constitution, but in Australia there is not yet
violations of human rights by governments and
any general right to freedom of speech. Neverthe-
individuals.
less, Australia is ranked one of the top countries in
187
the world for media freedom and Australian
bill or charter of rights, which aims to restrict the
reporters, particularly the ABC and SBS, also play
power of future parliaments to reduce or infringe
an important role in investigating and reporting on
certain rights. For example, in 1791, the US
human rights on both a regional and worldwide
introduced a series of constitutional amendments
basis.
known as the US Bill of Rights. This followed some

precedents, notably the English Bill of Rights of
A Charter of Rights for

Australia
rights, such as trial by jury, prohibition on cruel or
This chapter has shown how human rights are
against self-incrimination, or protection from un-
protected internationally by various documents,
reasonable search and seizure. The important
treaties and organisations. Similarly, Australia pro-
thing about the US Bill is that the rights were
tects certain human rights by statute, common
given constitutional force as provisions of the US
law, courts and local organisations. However,
Constitution, ensuring their fundamental status in
the protection of rights in Australia is scattered
American law and their future survival.
1689. The US Bill of Rights included numerous

unusual punishment, due process and protection
and in many cases fragile most rights could be
Other countries have enacted similar bills of
overturned by the simple passing of a statute of
rights by statute, which are highly inuential though
parliament. While Australia currently lives under a
lack the full force of constitutional provisions. This
peaceful and vibrant democracy, where rights for
form has been preferred by some jurisdictions as it
most people are respected and protected, history
allows potential for some future exibility, while still
shows that this may not always be the case.
declaring protection of the wide range of rights and
Many states around the world have opted to
giving the judiciary the power to declare any incon-
protect their citizens rights through adoption of a
sistent legislation as incompatible. For example,

Canada introduced the Canadian Bill of Rights in
1960, New Zealand introduced a Bill of Rights in
1993, and the UK enacted the Human Rights Act
1998 (UK). In Australia, both the Australian Capital
Territory (in 2004) and Victoria (in 2006) have
enacted human rights charters in line with many
of the rights protected under the UDHR, ICCPR and
ICESCR to protect human rights in relation to state
and territory legislation and decisions.
In Commonwealth law, various attempts have
been made to introduce greater human rights protection but have failed. The most notable attempts
were in 1944 when the Labor Government tried to
introduce constitutional amendments to guarantee
freedom of expression and freedom from want
and fear, and the 1983 Australian Human Rights
Bill. In 1997, the issue of a human rights bill was
again raised yet failed during the Constitutional
Convention on making Australia a republic.
Figure 8.9 Many states around the world have opted to protect
their citizens rights through adoption of a bill or charter of
rights, for example, in 1791, the US introduced a series of
constitutional amendments known as the US Bill of Rights.
188
In 2008, on the 60th anniversary of the Universal

Declaration of Human Rights, the Federal AttorneyGeneral Robert McClelland announced an inquiry,
called the National Human Rights Consultation, into
were opposed. In April 2010, the Australian govern-
Charter of Rights. The inquiry sparked a nation-
ment rejected the key recommendation of the
wide debate about the status of rights protection,
National Human Rights Consultation Committee
the merits of adopting a charter and the future of
report to implement a legislative Charter of Human
rights in Australia. The consultation was widely
Rights. Instead, the government announced that it
successful. After receiving over 35 000 submis-
would adopt a human rights framework including
sions, conducting 66 community roundtables and
various measures, such as education initiatives
three days of public hearing, and conducting exten-
and enhanced parliamentary processes, but with-
sive research into the issue, the Consultation
out the protection of a binding legislative charter.
released its report at the end of 2009.
It remains to be seen whether a future government
While the form a charter would take is not clear,
will decide to act on the recommendation and
of all the submissions entered to the Consultation,
implement a comprehensive Charter of Human
95 per cent discussed enacting a Charter of Rights
Rights.
or Human Rights Act, similar to that of the UK or
Table 8.1 contains a basic summary of all the
New Zealand. Of all those, 87.4 per cent were in
main arguments put forward by supporters and
favour of such a charter and only 12.6 per cent
opponents of a Charter of Rights.
Hu m an rig hts
whether Australia should adopt some form of a
Table 8.1
R ESEAR CH 8 . 4
Arguments for a
Charter of Rights
Arguments against a
Charter of Rights
s Extremely high community support

for a Charter of Rights
s Redressing the inadequacy of
existing human rights protections
s Reecting basic Australian values
s Protecting the marginalised and
disadvantaged
s Improving the quality and
accountability of government
s Contributing to a culture of respect
for human rights
s Improving Australias international
standing in relation to human
rights
s Bringing Australia into line with
other democracies
s Generating economic benets
s The adequacy of current human

rights protections in Australia
s Undermining a tradition of
parliamentary sovereignty,
including transferring legislative
power to unelected judges
s No better human rights protection
is guaranteed
s Potentially negative outcomes for
human rights
s Excessive and costly litigation
s Democratic processes and
institutions offer better protection
of rights
s A major economic cost
s Unnecessarily legalised human
rights
Read all of the arguments for

and against adopting a Charter
of Rights, then review the more
detailed arguments contained in
Chapters 12 and 13 of the National
Human Rights Consultation Report
(www.humanrightsconsultation.
gov.au) and answer the following
questions.
1 Research at least three
arguments for and three
arguments against introducing a
charter in the report.
2 Explain in detail what the
argument consists of and any
arguments against it.
3 Based on your analysis, critically
l eg a l l in k s
evaluate whether a Charter of

Rights should be introduced in
The full National Human Rights Consultation Report is available
on the following website: www.humanrights consultation.gov.au.
Chapters 12 and 13 of the report are relatively short but
Australia.
4 Research the latest media articles
available on an Australian Charter
explain in detail each of the cases for and against a charter
of Rights and explain if there
respectively. The headings in the arguments box above reect
has been any recent progress or
each of the arguments examined in the report.
decisions by the government to

introduce such a charter.
189
190
s Protection of human rights differs

internationally and domestically.
s State sovereignty can be used to promote or
to hinder human rights.
s The various bodies of the UN and
international courts have differing roles to
play in protection of human rights.
s The responsibility to protect is a new
UN doctrine that attempts to make the
prevention of human rights abuses the
collective responsibility of the international
community.
s Many IGOs and NGOs play an important role
in promoting human rights internationally.
s The UN Human Rights Committee can hear
complaints submitted directly by citizens of
states.
s The ICC was the rst permanent international
court to deal with violations of human rights
and crimes against humanity.
s Australia incorporates international treaties

into domestic law by legislation.
s The Australian Constitution enshrines some
minimal human rights.
s Most Australian human rights are found in
statute or in common law.
s The High Court has a crucial role in upholding
human rights in the Constitution and common
law.
s Freedom of speech and freedom of
information are essential for a healthy
democracy and the maintenance of the rule
of law.
s A Charter of Rights has been proposed for
introduction into Australian law. There are
many arguments for and against a charter, but
the majority of Australians are in favour of it.
1 Which of the following is NOT an organ of the

UN?
a Security Council
b International Criminal Court
c Secretariat
d Economic and Social Council
2 Which of the following best describes the
responsibility to protect?
a states have the sole responsibility to
protect their populations from human
rights abuses
b the international community has the
responsibility to intervene whenever there
are human rights abuses
c the responsibility to protect peoples
human rights is shared between the state
and the collective international community
d the responsibility to protect peoples
human rights is shared between the
UN Security Council and the collective
3 Which of the following is NOT protected by
the Australian Constitution?
a The right to vote
b The right to religious freedom
c The right to privacy
d The right to federal trial by jury
4 The separation of powers in Australia is best

described by which of the following?
a The separation of parliament, the army and
the judiciary
b The separation of legislative power
between the Commonwealth and the
states
c The separation of parliament, the executive
and the judiciary
d The separation of parliament, the judiciary
and the senate
5 Which of the following contains only
arguments FOR a Charter of Rights?
a reecting basic Australian values; high
community support; excessive and costly
litigation
b high community support; adequacy
of current human rights protections;
generating economic benets
c improving Australias international
standing; reecting basic Australian values;
transferring legislative power to unelected
judges
d high community support; improving the
quality and accountability of government;
redressing the inadequacy of existing
protections
Hum an rig hts
1 Assess how state sovereignty can be used to

shield human rights violations.
2 Describe the role of the UN in protecting
human rights.
3 Describe the role of the various international

courts in enforcing human rights.
4 Assess the power of the High Court to protect
and advance human rights.
5 Critically evaluate the view that only a Charter
of Rights can fully protect citizens human
rights.
191
I s s u e 1: H u m a n t r a f f i c k i n g a n d s l a v e r y
CHAPTER 9
Contemporary
human rights issues
192

s identify and apply legal terminology to
contemporary human rights issues
s describe how international and domestic law are
used in the promotion of human rights
s discuss ways in which the law is used to deal with
human rights issues
s explain the role of the law in educating the public
about human rights and encouraging cooperation as
a means of progress on human rights issues
child soldier
contemporary slavery
debt bondage
forced labour
forced marriage
human shield
human trafcking
people smuggling
press-ganging
sexual slavery
war crime
s evaluate the effectiveness of legal measures to

promote human rights
s communicate legal information about contemporary
human rights issues using logical and wellstructured arguments
s analyse the operation of international law and
domestic legal systems in promoting human rights.
rel ev ant l aw
I M PORTANT LEGIS L AT ION AN D T R EAT IES

Slavery Convention (1926)
Supplementary Convention on the Abolition of
Slavery, the Slave Trade and Practices Similar
to Slavery (1956)
Protocol to Prevent, Suppress and Punish
Trafcking in Persons, especially Women and
Children (2000)
Supplementary Protocol to Prevent, Suppress
and Punish Trafcking in Persons, Especially
Women and Children (2004)
Criminal Code (Slavery and Sexual Servitude)
Amendment Act 1999 (Cth)
Criminal Code Amendment (Trafcking in
Persons Offences) Act 2005 (Cth)
Criminal Code Act 1995 (Cth)
Trafcking Victims Protection Act of 2000 (US)
United Nations Declaration of the Rights of the
Child (1959)
Convention on the Rights of the Child (1989)
(1998)
Worst Forms of Child Labor Convention (1999)
Optional Protocol to the Rights of the Child on
the Involvement of Children in Armed Conict
(2000)
Defence Act 1903 (Cth)
od d l a w
While human rights abuses continue to present a
challenge to governments and non-government
organisations (NGOs) around the world,
animal rights groups in Switzerland have taken
the challenge one step further, presenting a
proposal to introduce a nationwide system of
state-funded lawyers to represent animals in
court.
Switzerland already has some of the strictest
animal welfare legislation in the world. Animals
such as pigs and goldsh cannot be kept alone;
horses and cows must have regular exercise
outside in summer and winter; and dog owners
have to take training courses to learn how to
care for their pets.
In 2010, the proposal was rejected in a
referendum by approximately 70 per cent of
voters. Opponents argued that Switzerland did
not need more legislation and that the cost of
such a scheme would be unsustainable.
Hum
C riman
e rig hts
Issue 1 Human trafcking and slavery

Issue 2 Child soldiers
R v Tang (2008) 237 CLR 1; R v Wei Tang (2009)

233 FLR 399
Prosecutor v Thomas Lubanga Dyilo ICC-01/0401/06
Cha pter 9: Contempora ry huma n rights i s s ues
193
Int roduc t ion

Although the world has come far in recognising
This chapter analyses two contemporary
numerous
human rights issues and evaluates the effective-
reforms internationally, there is still no shortage of
ness of both legal and non-legal responses to
human rights issues that remain to be addressed.
these issues. These issues include:
Despite the best efforts of the United Nations,
1 human trafcking and slavery
governments and thousands of national and inter-
2 child soldiers.
human
rights
and
implementing
national human rights organisations, human rights
Note that to meet the requirements of the
violations are still relatively commonplace, and
New South Wales Legal Studies syllabus, only
even on the rise, in some areas around the world.
one of these two issues must be studied.
Figure 9.1 Despite the efforts of the UN, governments and thousands of national and international
human rights organisations, human rights violations such as human trafcking and slavery and the use
of children in armed conict are still issues of major concern.
194
I s s u e 1: H u m a n t r a f f ic k i n g a n d s l ave r y
The history of slavery and the advancement of the
As contemporary slavery involves illicit acti-
abolitionist movement were discussed in Chapter
vity, accurate statistics describing the extent of the
7. As discussed in that chapter, the worldwide
problem are difcult to obtain. The UN Interna-
movement to abolish slavery began in the 18th
tional Labour Organization (ILO) estimates at least
century. It culminated in the development of
12.3 million adults and children are in forced or
numerous anti-slavery treaties in the 20th century,
bonded labor or commercial sexual servitude at
leading eventually to the abolition of slavery world-
any given time. According to some researchers
wide. Article 4 was included in the 1948 Universal
and NGOs, as many as 27 million people or more
Declaration of Human Rights, stating: no one shall
may currently be enslaved around the world; see
be held in slavery or servitude; slavery and the
for example, the websites of Anti-Slavery Inter-
slave trade shall be prohibited in all their forms.
national (www.antislavery.org) or iAbolish (www.
Today,
every
country
has
enacted
laws
ofcially abolishing slavery, and by doing so has

undertaken to end the practice within their own
contemporary
slavery
a form of forced
or bonded labour,
with or without
pay, under threat of
violence
forced labour
work performed
under the threat of
a penalty or harm
which the person
has not voluntarily
submitted to
Hu m an rig hts
Co ntempora r y s l aver y
iabolish.org). This includes more people than at

any other time in history.
Contemporary slavery can take a number of
borders. Minimum working conditions have been
forms. The main categories of slavery include:
established, as have complex laws on the migration
s Forced labour this refers to work performed
and movement of individuals across international
under the threat of a penalty or harm which the
borders. Yet despite this, slavery is still far from
person has not voluntarily submitted to, such as
being an issue of the past. Illegal slavery and the
threat of hardship, detention, violence or even
trade and trafcking of human beings continues
death to the person or to another person. Victims
to this day, including in developed countries such
might include domestic workers or workers in
as Australia.
factories or sweatshops, mining and agriculture
Figure 9.2 Forced labour refers to work performed under the threat of a penalty or harm which
the person has not voluntarily submitted to. Victims might include domestic workers or workers in
factories or sweatshops, mining and agriculture or construction.
195
debt bondage
a situation where a
person is forced to
repay a loan with labour
instead of money,
where the proper
value of the labour is
not applied towards
repayment or the type
or duration of services
are not properly limited
sexual slavery
repeated violation or
sexual abuse or forcing
of a victim to provide
sexual services; it often
takes the form of forced
prostitution or forced
labour where sexual
abuse is also common
child soldier
a person under the age
of 18 who participates,
directly or indirectly, in
armed conict as part
of an armed force or
group, including both
armed and support
roles
or construction. A person may, for example, be
s Sexual slavery this involves repeated vio-
lured by the promise of a legitimate job opportu-
lation or sexual abuse or forcing the victim
nity and instead forced to work without pay or
to provide sexual services. It can take many
enduring physical abuse. It can often be difcult
forms, including forced prostitution, single-
for authorities to nd such individuals or groups.
owner sexual slavery, slavery associated with
s Debt bondage often a form of forced labour,
religious practices or another type of slavery
this refers to a situation where a person is forced
such as forced labour where sexual abuse is
to repay a loan with labour instead of money.
also common. Sexual slaves are usually women
Debt bondage occurs where the proper value of
and children. The victims might be captured,
the labour is not applied towards repayment of
coerced, deceived or even sold by their own
the debt, or the type or duration of services are
families or acquaintances into sexual slavery.
not properly limited. In many cases, the person
There are other more specic situations that may
may be deceived into paying extremely high
result in conditions of slavery. Though they might
rates of interest making it impossible to repay
arguably fall into one or more of the categories
the debt. They might be tricked or trapped into
above, they include for example, domestic workers
working for no or very little money, or have
kept in captivity, the adoption of children who are
unreasonable expenses deducted from any pay
effectively forced to work as slaves, child soldiers
or further added to the debt. In some cases,
or forced marriage.
children of the borrower may be forced to repay

the debt across generations.
forced marriage
marriage in which
one or both parties
is married against his
or her will, often on
promise of payment of
money or goods to the
family or other person
involved
H u m a n t ra f f ic k i n g a n d s l ave r y
human trafcking
the commercial
trade or trafcking
in human beings for
the purpose of some
form of slavery, usually
recruiting, transporting
or obtaining a person
by force, coercion or
deceptive means
people smuggling
illegal transportation
of people across
borders, where people
voluntarily pay a fee to
the smuggler, usually
free to continue on their
own after arrival in the
hope of starting a new
life in the destination
country
Today, many victims of slavery are forced into
Human trafcking can involve a whole line of
slavery by way of human trafcking, which refers
criminal activity, from recruitment and harbour-
to the commercial trade or trafcking in human
ing of victims, to transport and sale, to obtaining
beings for the purpose of some form of slavery.
or buying and nally exploiting that person in
It includes, for example, recruiting or transporting
slavery or forced labour. Victims of human trafck-
a person for forced labour or debt bondage, or
ing might be recruited in a number of ways, for
providing or obtaining a person for forced labour
example, they may be lured by a false job offer or
or debt bondage by use of force, fraud or coercion,
offer of migration or a marriage proposal. In other
or trafcking people for sexual slavery.
cases, victims may be sold by family members,
Human trafcking is a complex crime involving

some of the most serious violations of human
or even physically abducted.
rights. It should be distinguished from people
The victims might be falsely imprisoned or
smuggling, which refers to a situation where
threatened, bonded with debt or it might be prac-
people voluntarily pay a fee for the smugglers
tically impossible for the victim to survive outside.
service, not necessarily involving any deception.
Victims might be exploited in a commercial
With people smuggling, the person is usually free
industry, for example the commercial sex industry
to continue on their own after arrival, often in the
or agriculture and mining, or may be exploited in a
hope of starting a new life in the new country. With
private residence, for example in forced marriage
human trafcking, however, the victim will usually
or exploitation of domestic workers.
be exploited or forced into performing some sort

of labour or service on arrival.
196
recruited by former slaves, deceived, intimidated
Estimates of the number of people trafcked
It is a global problem involving people of diverse
across international borders vary dramatically. A
nationalities trafcked in many countries, including
2009 Australian Government report, Trafcking in
Australia, the United States and European Union
Persons, places the number at anywhere from
states. While many victims come from developing
700 000 to four million. However, this does not
countries, poverty is not the sole source of the
include the millions of people trafcked within
problem, which is driven by fraudulent recruiters,
their own countries, which may be especially
exploitative employers or corrupt ofcials, all seek-
difcult to detect. According to the UNs 2009
ing to reap prots from the victims exploitation. At
Global Report on Trafcking in Persons, sexual
least one researcher into human trafcking,
exploitation is the most documented type of traf-
Siddharth Kara, has suggested that illicit prots
ck ing because it is more frequently reported by
from human trafcking worldwide may be as high
countries, whereas instances of forced labour and
as $92 billion, second only to drug trafcking.
debt slavery, as well as forced marriage and
Regardless of the numbers, human trafcking
domestic servitude, may be less well documented.
is an important issue and affects almost every
The ILO estimates that at least 56 per cent of all
country in the world whether as a source, transit
forced labor victims are women and girls.
or destination country. The following section
Hu m an rig hts
E x t e n t o f h u m a n t ra f f ic k i n g
explores some of the measures adopted worldwide to combat the problem.
main reported destinations

main reported origins
both origindestination
Figure 9.3 Human trafcking countries of origin and destination. Source UNODC
197
ca s e s tu d y
Human trafcking victims stories

The following stories are extracted from the US
s In Cambodia, Phirun worked in the rice and
Department of States Trafcking in Persons Report
vegetable elds, until convinced by a recruiter
for 2009. They illustrate some of the suffering of
that he would receive higher wages working in
victims of human trafcking and the different places
a Thai factory. He and fellow workers paid the
and circumstances in which it can occur.
recruiter to smuggle them across the border to
s From Uzbekistan, Nila and Miram (aged 20 and
Thailand. On their arrival, the recruiter seized
22), after hearing a friends stories of lavish
their passports and locked them up. They were
parties and unending wealth, decided to travel
then sold to work on a shing boat, where they
to India to work for a fashion design company.
were given little food or water, and worked day
On arrival, however, their passports were taken
and night. Phirun witnessed the crew beat and
and they were told they would not be designing
shoot other workers, dumping their bodies in the
clothing, but were instead forced to service
water. He himself was beaten unconscious. After
clients at luxury hotels as part of a sex trafcking
two years of forced labour, he persuaded his
ring. Eventually, they were discovered by Indian

authorities and returned home where they
trafckers to release him.

s In China, Xiao Ping (20) was from a small village
received care and rehabilitative assistance from a
in Sichuan Province. Her new boyfriend offered
shelter.
to take her on a weekend trip to his hometown.
s From Indonesia, Keni binti Carda (28), decided
Instead, he took her to a desert village in Inner
to go and work as a domestic worker in a Gulf
Mongolia and sold her to a farmer to be his wife,
state. When she arrived her employer locked
where she was imprisoned, beaten and raped
her inside the house and forced her to work
over 32 months. Her family borrowed a large sum
extremely long hours each day. She allegedly
of money to pay for her rescue, but the farmer
burned Keni repeatedly with an iron, forced her to
forced her to leave behind a newborn son she had
ingest faeces and abused her psychologically. She
given birth to during her imprisonment. After she
threatened to kill Keni if she tried to escape, and
returned she was forced to marry the man who
among other forms of abuse applied household
had provided the loan. The marriage did not last,
cleaners to Kenis open wounds and pried her
however, as he regarded her as stained goods.
teeth loose and forced them down her throat.

Keni was eventually sent home before she could
Source: US Department of States Trafcking in Persons
seek help from local authorities, but suffers long-
Report (2009) available at: http://www.state.gov/g/tip/rls/
term disability caused by her abuse.
tiprpt/2009/123145.htm. The information used can be found on

pages 22, 30, 34 and 38 of the full report.
R EVIEW 9.1
1 Identify the form or forms of slavery
applicable to each story featured above.
2 Explain how each of these individuals was
Looking at the latest edition of the US

Trafcking in Persons Report, make a brief
list of some of the highest (Tier 1) and lowest
trafcked describe the methods used and
(Tier 3) ranked countries.
the purpose for which they were trafcked.
1 Identify any patterns you can nd in the
3 Describe the person or persons likely to

benet from the victims exploitation in
198
R ESEAR CH 9 . 1
highest and lowest country rankings.

2 Choose one country featured in the Report.
each of these instances. Identify where any
Find more detailed information on that
prot was likely to be involved.
country and summarise its progress.
The Report also lists each country
an important annual report on human
according to their development or success
trafcking titled Trafcking in Persons
in combating human trafcking according
Report. The report contains detailed
to different levels or tiers. The most
information on measures against human
recent report is available on the State
trafcking worldwide, including the status
Departments website at: www.state.
of current national legislation, and on
gov/g/tip/rls/tiprpt/index.htm
prosecution and prevention of human

trafcking and protection of victims.
Hu m an rig hts
legal links
The US Department of State releases
Res p o n s es t o h u m a n
t ra f f ic k i n g a n d s l ave r y
The international community has responded
The Protocol entered into force in 2003 and
to human trafcking in numerous ways, both
was the rst legally binding instrument with an
internationally and domestically. Some of these
agreed denition on human trafcking. It aimed
measures are considered below.
to provide an umbrella of overall protection,

outlining an appropriate regime of protection,
Legal responses
prosecution and prevention in order to effectively
Legal responses to human trafcking began with
It was designed for member states to enact into
the worldwide abolition of slavery, largely in the
the most appropriate domestic laws. The Protocol
early 20th century through the Slavery Convention
has created greater global awareness of the issue,
of 1926. This treaty was expanded in 1956 by the
greater conformity in national laws in tackling the
Supplementary Convention on the Abolition of
various issues of human trafcking, and better
Slavery, the Slave Trade and Practices Similar to
cross-border cooperation in investigating and
Slavery, which claried and expanded the de-
prosecuting violations.
nition of slavery, including for example debt

bondage, forced marriage and child slavery.
and more uniformly combat human trafcking.
As of 2010, there are 137 state parties to the

Protocol. The UNs Global Report on Trafcking in
Although these treaties provided for the of-
Persons in 2009 shows that in the past few years
cial abolishment of slavery worldwide, they did
the number of states seriously implementing the
not address issues of illicit slavery and human
Protocol has more than doubled. However, there
trafcking. Greater awareness of human trafck-
are still many countries that lack the necessary
ing and international pressure to deal with it
legal instruments or political will. Although the
grew particularly at the end of the 20th century,
Protocol has been reasonably successful, there is
culminating in 2000 with the UN General Assem-
still a lot of progress to be made that will require
blys adoption of the Protocol to Prevent, Suppress
sufcient resources, focus and cooperation to
and Punish Trafcking in Persons, especially Women
ensure the problem can be adequately tackled.
and Children (the Protocol), as part of a larger

treaty tackling transnational crimes.
199
R ES E A RC H 9.2
Domestic responses
bondage. This division makes it an offence to
The full text of the Protocol

to Prevent, Suppress and
Punish Trafcking in Persons,
especially Women and
Children is available on the
UN High Commissioner for
Human Rights website at
Although opportunities for trafcking
trafc in persons or children, whether inter-
into Australia may be fewer than for
nationally or domestically. It also contains
some other countries, due to geographic
offences relating to debt bondage of persons,
isolation and strong migration controls,
forced labour and the trade in human organs.
Australia is still a destination country
Additional measures have been introduced by the
for victims of trafcking.
Australian government since 2003, in particular
The Australian government estab-
under the 2004 Commonwealth Action Plan to
lished a human trafcking strategy
Eradicate Trafcking in Persons, which included the
in 2003 and since then has dedicated
aims of prevention, detection and investigation,
almost $60 million to tackling the
criminal prosecution, victim support and rehabi-
problem.
anti-
litation. In 2008, the federal government also
trafck ing strategy addresses the full
introduced new measures under the Common-
trafcking cycle, from recruitment to
wealth Government Anti-Trafcking Strategy. Some
reintegration, and lends equal weight to
of the measures introduced include:
the critical areas of prevention, detec-
s increased specialist training and funding for
tion and investigation, prosecution
the Australian Federal Police to detect and
and victim support. Australia ratied
investigate human trafcking operations
the following address:

www2.ohchr.org/english/
law/protocoltrafc.htm
Look at the text of the
Protocol and complete the
following tasks.
1 Looking at both the
Preamble and Article 2 of
the Protocol, summarise
the main reasons why the
treaty was created.
2 Identify the article
containing the denition
of human trafcking and
Australias
the Supplementary Protocol to Prevent,
s additional funding and training for the prose-
Suppress and Punish Trafcking in
cution of human trafcking for Commonwealth
Persons, Especially Women and Children

s a National Policy Strategy to combat trafcking
Australia rst introduced sexual
apply to the various types
slavery laws with the Criminal Code
of and participants in
(Slavery and Sexual Servitude) Amend-
human trafcking.
3 Describe the purpose
of Parts II and III to the
Protocol and evaluate how
these might improve the
effectiveness of the treaty.
200
Overall,
on 27 May 2004.
explain how this might
s Division 271 Trafcking in persons and debt
in women for sexual servitude

s victim support measures and special visa
arrangements to support victims of trafcking
ment Act 1999 (Cth). It further rened
s a targeted Communication Awareness Strategy
these and added more specic human
providing information about trafcking and the
trafcking offences to the federal
help available
Criminal Code in the Criminal Code

Amendment
(Trafcking
in
Persons
s cooperation with regional and international

agencies in tackling the sources of human traf-
Offences) Act 2005 (Cth). The current
ck ing and prosecuting offenders.
provisions are found under Divisions
The Australian government has made a number
270 and 271 of the Criminal Code Act 1995 (Cth),
of prosecutions under the criminal provisions, in
and includes severe penalties of up to 25 years
particular the case of Wei Tang, as described in
imprisonment for some offences. Similar offences
detail in the following Case Space. One of the
also included under state and territory legislation
serious problems in Australias enforcement cam-
include:
paign has been the issue of protection visas and
s Division 270 Slavery, sexual servitude and de-
threat of deportation of victims on discovery by
ceptive recruiting, contains offences including
authorities. This can effectively deprive the system
possession of a slave, engaging in slave trading
of necessary witnesses and can have the effect of
or entering into any commercial transaction
punishing the victims of the crimes. A number of
involving a slave. It also contains prohibitions on
government proposals in recent years have attemp-
the deceptive recruiting of a person for sexual
ted to address these deciencies and their effective-
servitude.
ness remains to be seen in future prosecutions.
This case involved Australias rst jury conviction
over a slave, contrary to section 270.3(1)(a) of the
under the slavery provisions of Division 270 of
Commonwealth Criminal Code, and sentenced to
the Commonwealth Criminal Code. It involved
10 years imprisonment. However, the conviction
a brothel owner, Wei Tang, who was accused of
was overturned and ordered for retrial in the
purchasing ve women from Thailand to work in
Victorian Court of Appeal in 2007 on the basis
a licensed brothel in Fitzroy, Melbourne, under
that the judge had misdirected the jury on the
illegal conditions of slavery and debt bondage.
meaning of the term slavery and whether Wei
The women arrived in Australia on fraudulently

obtained tourist visas, although the owners
applied for protection visas for them after they
Tang had to know or believe that the women were

actually slaves.
The prosecution then appealed to the High
arrived so that they could work legally. The women
Court of Australia, where the original conviction
had worked in the sex industry in Thailand, and
was upheld in 2008 by a 6-1 majority. Wei Tang
voluntarily entered agreements with a broker,
was found to have exercised the power to make
Wei Tang then purchased from the Thai recruiter
each woman an object of purchase, the capacity
for $20 000.
to use the women in a substantially unrestricted
Each woman was required to repay a debt
manner for the duration of their contracts, the
of $45 000, and the repayments for this formed
power to control and restrict their movements,
the basis of the slave trading charges. When the
and the power to use their services without
women arrived, Wei Tang withheld the womens
adequate compensation.
Hu m an rig hts
ca s e s p a ce
R v Tang (2008) 237 CLR 1; R v Wei Tang (2009) 233 FLR 399.
passports as well as their return aeroplane tickets,

and the women were told the debt was to be
repaid by working six-day weeks over seven to
eight months. Each client serviced by the women
counted towards $50 off the payment, amounting
to a total 900 clients required to repay the debt.
If the women worked on the seventh day as well,
they were permitted to keep $50 per client for
themselves.
There was no evidence that Wei Tang had
physically abused the accused and two women
paid off their debts in six months after which they
were paid and could choose their working hours.
Although the women were not usually under lock
and key, they had little money and limited English,
their passports were retained, their visas were
illegally obtained so they feared immigration
authorities, and they were required to work
extremely long hours.
Wei Tang was convicted in 2006 of ve counts
of intentionally possessing a slave and ve counts
of intentionally exercising a power of ownership
Figure 9.4 Wei Tang
201
R EVIEW 9.2
1 Identify the section and division of the
and surveys, on such diverse aspects of forced

labour as bonded labour, human trafcking,
Commonwealth Criminal Code under which
forced domestic work, rural servitude, and forced
Wei Tang was prosecuted.
prison labour.
2 Describe where the women came from and
As discussed in Chapter 8, NGOs play an
how they came to be working in Australia.
extremely important role in combating human
3 Outline the conditions of the contract that
rights abuses, for example by reporting on and
Wei Tang had made with the women.
exposing abuses, by researching and informing
4 Describe some of the conditions that
the public and governments on incidents and
amounted to a nding of the women being
patterns of abuse, or by working to combat causes,
kept as slaves, and outline the powers that
incidents of or effects of abuse. Some particular
Wei Tang was found to have exercised.
NGOs involved in combating human trafcking

and slavery include:
Non-legal responses
s Anti-Slavery International (www.antislavery.

org) is an international NGO founded in 1839
There are many programs and organisations, both
and based in the UK. It aims to draw attention
international and domestic, that aim to combat the
to the continuing problem of slavery worldwide
causes, organisation and execution, and effects of
and campaign for recognition and action in the
human trafcking worldwide.
countries most affected today.

s American Anti-Slavery Group (www.iabolish.
International responses
org) is an anti-slavery NGO that works on aware-
At the international level the UN, the International
ness, advocacy and aid against contemporary
Labour Organization (ILO) and various NGOs
slavery. It focuses primarily on slavery in Sudan
are involved in combating slavery and human
and Mauritania.
Initiative to Fight Human Trafcking (UN.GIFT), with

the aim of mobilising non-state actors to help rid
the world of human trafcking. UN.GIFT aims to:
s increase awareness about human trafcking
s assist non-state actors (e.g. NGOs) in their
anti-trafcking campaigns by encouraging co-
l eg al l i nks
trafcking. The UN has established a Global

UN.GIFT For more information
on the UN.GIFT initiative, visit the
programs website at:
www.ungift.org
ILO Information on the ILOs
operation and joint action between NGOs and
forced labour program SAP-FL is
efcient prosecution of criminals
available at:
s reduce the demand for the exploitation of people
www.ilo.org/sap
and the vulnerability of potential victims, and

ensure support for victims who have escaped.
202
The ILO also plays a crucial role in implementing
Domestic responses
and reporting on workers rights worldwide. The
Actions by states are also crucial in combating
ILO has campaigned ceaselessly against forced
slavery. As mentioned earlier, the US plays an
labour. More recently, in 2001, the ILO established
important role in combating human trafcking
a Special Action Programme on Forced Labour (SAP-
worldwide.
FL) to attempt to raise global awareness of forced
human trafcking in 1994 and has broadened
labour in its different forms. It has undertaken
its reporting over the years to cover all main
several worldwide and country-specic studies
forms of contemporary slavery. In 2000, the US
The
US
rst
began
monitoring
Hum an rig hts

Figure 9.5 American Anti-Slavery Group (www.iabolish.org) is an anti-slavery NGO that works on advocacy, aid and
awareness of contemporary slavery. It focuses primarily on slavery in Mauritania and Sudan, pictured above.
passed the Trafcking Victims Protection Act of
July 2006, SBS aired Trafcked, a documentary
2000 which established an ofce to monitor and
about sex slavery in Australia which was watched
combat trafcking, and has initiated programs
by over 500 000 viewers. Trafcked shocked the
and provided millions in grants to organisations
country and acted as a catalyst for some victims
around the world. It has assisted many countries
of trafcking to lodge compensation claims. As
on training, investigating, prosecuting and on
the director, Luigi Acquisto said, the lm made
protection of victims from abuse. In 2004, the US
legal history and set precedents for future victims
established a centre to coordinate the activities of
(Source: www.documentaryaustralia.com.au/da/
federal agencies, police, intelligence, and diplomatic
issues/details.php?recordID=13).
representatives together to coordinate activities to
Australian universities are also crucial in
stop trafcking. One of the USs most important
researching and reporting on trends in human
efforts has been the US Department of States
trafcking in Australia. For example, University
detailed annual Trafcking in Persons Report.
of Technology Sydneys Anti-Slavery Project began
In Australia, there are also a number of NGOs
in 2004 and is dedicated to the elimination of
that make an indispensable contribution to
modern slavery in all its forms through collab-
ghting all forms of modern slavery. The media
oration with government agencies and community
also plays a role informing the public about the
groups. The University of Queensland also estab-
existence and nature of modern slavery in this
lished a Human Trafcking Working Group in 2008,
country. Films, books and documentaries have
which researches and analyses cases and statistics
also played an important role. For example, in
on human trafcking and slavery in Australia.
203
legal links
Trafcked further information on the
Human Trafcking Working Group
SBS documentary Trafcked is available
research, case reports and statistics on
at: www.documentaryaustralia.com.au/
human trafcking in Australia are available
da/issues/details.php?recordID=13
on the University of Queenslands Human
Anti-Slavery Project information on the
Trafcking Working Group website at:
activities of the Anti-Slavery Project is
www.law.uq.edu.au/humantrafcking
available at www.antislavery.org.au
Effectiveness of
responses
as a Tier 1 best practice country, but identies
At the international level, the problem of modern
made. The report noted that crime was becoming
slavery as yet is showing no sign of going away.
increasingly recognised in the Asia-Pacic region,
The main factors contributing to the risk of
with a 30 percent increase in prosecutions in one
people trafcking and slavery and the difculty in
year in Indonesia, and legislation now in place in
preventing it have been identied as:
over half of Pacic Island nations. Regional reform
s limited resources or effectiveness of developing
has been key, with many policy frameworks and
states to combat forms of exploitation and
technical assistance programs produced or man-
transnational crime
aged by regional bodies, with Australia playing a
s socio-political and economic factors that underpin the movement of people from one place to
The Trafcking in Persons Report lists Australia

a number of areas where improvements can be
particularly important role.

There is unlikely to be much change to the
another.
economic drivers of people movement and migra-
In a globalised economic system there is an
tion in the short-term, but improved awareness
increased demand for all types of labour, legal
and monitoring of vulnerabilities, including loca-
and illegal. This demand is exploited by criminal
tions, sectors and businesses where it occurs will
organisations, and vulnerable people are trafcked
help to prevent and reduce trafcking in persons
as victims to meet this demand. Poverty in source
within Australia and the wider region.
countries, combined with a lack of education and

rule of law, can contribute to the vulnerability of
victims and the success of recruiters coercive or
deceitful techniques.
The implementation and enforcement of international treaties, especially the 2000 Protocol
1 Describe some of the efforts of the UN and

the ILO in tackling human trafcking.
2 Explain the role of the media, NGOs and
is left up to national governments. While some
other non-legal responses in combating
states vigorously pursue offenders, others may
human trafcking. Evaluate how these
be unwilling or unable to effectively tackle the
groups can complement the legal measures
problem. The UN, ILO and NGOs play a crucial role
in place.
in encouraging such countries to continue their
204
R EVI EW 9 . 3
efforts, and reporting mechanisms such as the
legal and non-legal responses to human
US Trafcking in Persons Report help to expose the
trafcking based on consideration of the
continuing deciencies of these countries efforts.
causes and drivers behind the problem.
Children, like adults, are entitled to the protection
Hitler Youth in Nazi Germany during the Second
of human rights. The Universal Declaration of
World War.
Human Rights is intended to be universally applied,
In the 20th century, many international cam-
and the rights it declares apply to children and
paigns were undertaken to stop the participation
young people just as they do to adults. However,
of children in armed conict and to bring about
children may have less power in society and they
greater awareness of their exploitation. However,
may be more susceptible to victimisation and
use of children is still widespread in some areas
child soldier
a person under
the age of 18 who
participates, directly
or indirectly, in armed
conict as part of an
armed force or group,
in either armed and
supporting roles
Hum an rig hts
Defining the issue of child soldiers
human rights violations than the average citizen.

The special vulnerability of children is recognised in Article 25 of the UDHR which provides
that children are entitled to special care and
assistance. In 1959, the UN expanded on this with
the adoption of the Declaration of the Rights of the
Child. The declaration restates several provisions
of the UDHR as applicable to children, adding
that children need special safeguards and care,
including appropriate legal protection, before as
well as after birth.
Although signicant progress has been made in
childrens rights in the last century, many children
across the world today are still denied basic human
rights or have those rights violated. For example,
denying the right to education or right to a fair
trial, suffering forms of violence, or punishment by
cruel and inhumane methods, including in some
countries the death penalty. In some countries,
children are also recruited into armed forces as
so-called child soldiers.
Children have been involved in military campaigns in many cultures throughout history, even
where their use was widely condemned by society.
For example, child soldiers were documented to
have participated as aides, scouts, support per sonnel or in historical events such as the Childrens
Crusade of medieval Europe in 1212, as drummerboys under Napoleon in the Battle of Waterloo,
as young militia in the Spanish Civil War, or the
Figure 9.6 Although signicant progress has been made in childrens

rights in the last century, many children across the world today are
still denied basic human rights or have those rights violated.
205
Figure 9.7 Children have been exploited throughout history for use in military campaigns, for
example, the famous drummer-boy, John Clem, in the American Civil War (pictured left) and Chinese
child soldiers serving in Burma during World War II.
contemporary slavery
a form of forced or
bonded labour, with
or without pay, under
threat of violence
human trafcking
the commercial
trade or trafcking
in human beings for
the purpose of some
form of slavery, usually
recruiting, transporting
or obtaining a person
by force, coercion or
deceptive means
press-ganging
the act of forced
conscription used in
England during the
1800s; groups of men
known as press gangs
were employed by the
government to recruit
people forcibly into
lifetime service with the
armed forces
206
of the world, particular in areas where instability
manipulate. Children may also be more willing
is rife. The use of children in armed conict will
than adults to take risks, while the other side may
usually be highly exploitative and is often consid-
also be less inclined to suspect children or hesitate
ered a form of contemporary slavery or human
to attack where children are present. Children are
trafcking. It involves the unlawful recruitment of
particularly vulnerable to military recruitment
children, often through force, fraud or coercion,
they may be more easily manipulated and drawn
for labour or even sexual exploitation in conict
into conicts that they are too young to resist or
areas.
fully understand.
Children in armed conict may be exposed
The parties recruiting children can be govern-
to high levels of danger or abuse and signicant
ment forces, paramilitary organisations or rebel
psychological trauma. They may be frequently
groups. Children might be recruited for example at
injured or killed or suffer serious harm. Although
home, on the street or even at school, or they
some children are claimed to join an armed group
might be physically abducted by recruiters. They
voluntarily this often involves some form of co-
might even be forcibly conscripted by govern-
ercion, force or deception, or the child may see no
ments. Many children may join armed groups
other option for survival but to join the recruiters.
supposedly voluntarily because of economic or
The reasons groups may target children for use
social pressures or because they believe the group
in armed conict is that they may be seen as free
will offer food or security, while others might be
and expendable labour, or as easier to abduct or
abducted or press-ganged by the armed groups.
1 Direct involvement in armed conict, where
jected to severe punishment for attempting to
the child may be expected to take part in the
escape. Sometimes children may be forced or
ghting and armed with a weapon.
indoctrinated into committing atrocities against
2 Indirect involvement through support roles,
neighbours or even their own families and may
such as messengers, scouts, cooks, porters,
become stigmatised in their communities making
servants, to lay or clear land mines or even as
it impossible for them to return home.
sexual slaves.
The use of child soldiers can take three main

forms:
3 Use for particular political advantage, such as

propaganda or as human shields.
E x t e n t o f t he i s s u e
It is impossible to calculate how many children
sons Report, boys in the rebel group are forced to
around the world are involved in armed conict
loot and burn villages and torture and kill neigh-
as child soldiers. Child soldiers may serve in gov-
bours. Girls abducted are routinely raped or
ernment armies, but also in government-linked
become sex slaves.
militias or opposition or rebel forces, where
In some countries such as Uganda, Sri Lanka
reliable data is unavailable. Some countries may
or Nepal, a third or more of the children recruited
have inadequate procedures to verify the ages
were reported to be girls. Girls in particular may be
of new recruits. In other countries, low levels
at additional risk of rape or sexual harassment, or
of birth registration mean that children may be
may be given to military commanders as wives,
inadvertently or even deliberately recruited, for
possibly under an arrangement of forced marriage.
example in Paraguay where this assisted forced
The majority are between the ages of 15 and 18
conscription of children as young as twelve.
human shields
the placement of
civilians in or around
military targets to
deter the other party
from attacking that
target
Hu m an rig hts
Children will usually be unable to leave or sub-
war crime
an action carried out
during a war that
violates accepted
international rules
of war
and in some cases their use may still be considered
Reports by the UN and by international NGO
legal under national laws. However, in some coun-
Human Rights Watch in 2007 estimated the
tries children under 15 years old, and in some
number of children serving in armed conicts at
cases as young as 7 years old, may be recruited,
between 200 000 and 300 000. In that year, the
especially by rebel or guerrilla movements. The
UN reported 57 armed groups worldwide using
recruitment of children under the age of 15 years is
child soldiers. The Coalition to Stop the Use of
considered a war crime under international law.
Child Soldiers, an NGO dedicated to stopping the
While the use of child soldiers is universally
use of child soldiers, estimates the number today
condemned, according to the Coalition to Stop
to be many tens of thousands, in conicts as wide
the Use of Child Soldiers, hundreds of thousands
apart as Africa, Asia, the Middle East and South
of children have fought and died in conicts
America.
around the world over the last decade. They are
For example, recent conicts in Sri Lanka,
frequently forced to conduct hazardous tasks such
Uganda, Colombia, Myanmar, Iraq, Israel and the
as laying land mines or explosives, or even suicide
Occupied Palestinian Territories or Sudan have
missions, and are usually forced to live in harsh
involved some use of child soldiers. In one of the
conditions often with no healthcare or without
worst cases in Uganda, more than 30 000 children
enough food. Almost always they will be subject to
have been kidnapped to serve as soldiers and
cruel and brutal treatment, including beatings and
slaves by the rebel group Lords Resistance Army
humiliation, or severe punishment for mistakes or
(LRA). According to a 2009 US Trafcking in Per-
attempts to escape.
207
Technological advances in weaponry have also
R ESEAR CH 9 . 3
contributed to an increase in the use of child
Looking at the Coalitions website
soldiers small arms and lightweight automatic
provided below, answer the following
weapons are simpler and lighter to operate for
questions.
children. Recently some armed groups have given
1 Identify and make a list of the countries
children drugs to make them more dangerous or
around the world where the use of
less fearful during conict. For example, during
child soldiers is currently an issue (there
conict in Sierra Leone children were reportedly
should be about 20 countries). Describe
given a mixture of gunpowder and cocaine before
the regions where the use of child
battle. Sexually transmitted diseases and other

health problems have also become more preva lent
among children recruited, and there are high rates
of unwanted pregnancies in girls. Where children
do manage to escape, the physical and psychological scarring, as well as stigmatisation in their
former communities, makes reintegration into
normal life very difcult.
As a nal point to note, many countries around
the world also continue to ofcially recruit under-
soldiers is particularly widespread.

2 Choose one country and download the
most recent Global Report on that
country from the site. Analysing the
report, summarise the context including
a description of the conict and armed
groups involved. Describe the extent of
the use of child soldiers, the recruitment
practice and roles they are forced into.
Briey discuss any recent developments
in the country.
18s into government armed forces. Over 60

countries, including developed countries such as
Australia or the US still allow voluntary recruitment of 17-year-olds into the army, and calls to
raise the minimum age to 18 have been resisted
by arguments of manpower requirements. For
1 Identify the place, age and gender

of the children involved in the stories
above.
2 Explain whether the children in these
example, the US Army has acknowledged that
stories were recruited by ofcial or by
nearly 60 17-year-old US soldiers were deployed
non-government forces and describe
to Iraq and Afghanistan in 2003 to 2004 and in

recent years there has been a dramatic increase in
the way in which they were recruited.

3 Describe the tasks the children were
the number of under-18s joining the military due
forced to do and the way in which they
to increased recruitment bonuses and lowered
were treated, including any abuse or
requirements for educational standards.
hazards they were exposed to.
l eg a l l in k s
208
R EV I EW 9 . 4
The Coalition to Stop the Use of Child
soldiers in countries worldwide, as well
Soldiers is the main international non-
as assessment of compliance to legal
government organisation involved in
standards.
advocacy, public education, research
The Coalitions website provides up
and monitoring of child soldiers. It
to date status reports by region and
provides crucial reports on situations
country at the following web address:
and conicts involving the use of child
www.child-soldiers.org/regions
The following stories illustrate some of the
the bush, nearly losing her own life during the
suffering endured by children forced to serve
delivery of her first child. Charlotte and her
in armed conflicts, as well as the different
children escaped after eight years in captivity,
circumstances and places around the world where
and have been reunited with Charlottes family.
the practice occurs.
Charlotte has also returned to school.
H uman rig hts
ca s e s tu d y
Child soldiers victims stories
In Democratic Republic of the Congo, a militia
In Colombia, 16-year-old Estelle voluntarily
group abducted 11-year-old Lucien and eleven
joined the guerrilla movement, FARC, when
of his classmates from their school. Lucien
she was 11, in order to escape the physical and
submitted to military training after he was
sexual abuse she suffered at home. Estelle
tied up and stabbed in the stomach. Sixty
believed that FARC would offer her protection
other children submitted to the severe training
and a support network. Once she joined
and those who resisted were beaten. Lucien
however, she was told that if she attempted to
witnessed people die from starvation and
escape she would be sentenced to death. Before
illness, with the children given only one plate
managing to escape, Estelle was forced to kill
of a maize per day to share with twelve others.
and lived in constant fear of being killed.
Lucien managed to escape after several years in

captivity and now lives with a host family.
In Burma, 11-year-old Aung was travelling home
when army recruiters picked him up. Aung tried
Source: (BURMA AND UGANDA) Excerpts taken from pages 8

and 9 of the Red Hand Campaign Resource pack, available at:
http://www.pcusa.org/children/peace/redhand.pdf. (CONGO) The
information above can be found on the US Department of States
to refuse, but the soldiers told him that if he did
Trafficking in Persons Report (2009) available at: http://www.state.
not join them, he would be imprisoned for six
gov/g/tip/rls/tiprpt/2009/123145.htm. For the full report, please
years. Believing he had no choice, Aung agreed
see: http://www.state.gov/documents/organization/123357.pdf.
to join. During training, Aung was repeatedly
(COLUMBIA) Excerpt taken from http://www.warchild.nl/
beaten. At only 12 he was sent into combat
download.php?fileId=1357, pages 26-28.
and at 13, he witnessed members of his unit

murder fifteen women and children. At 14,
Aung managed to escape across the border
into Thailand. He found an illegal job and hoped
that he wouldnt be discovered and returned
to Burmese authorities, where he would be
arrested and also risk his familys safety.
In Uganda, rebel soldiers from the Lords
Resistance Army (LRA) abducted 14-yearold Charlotte and 139 other girls from their
dormitories at a Catholic boarding school. They
were marched to a military camp in Sudan.
Charlotte received 35 days of military training
before being sent to fight the government army.
She was also given to an older male soldier as
a wife and gave birth to two children while in
Figure 9.8 Bloody conflict in northern Uganda

where many children have been abducted and
forced to serve in the LRA.
Chapter 9: Contemporary hu m a n r i g h t s i s s u e s
209
Respo n ses to t he i ss ue
o f c h i l d so l die r s
The international community has responded to
The Rome Statute of the International Criminal
the issue of child soldiers in numerous ways, both
Court (1998), as discussed in Chapter 6, estab
internationally and domestically. Some of these
lished a permanent court to try persons charged
measures are considered below.
with committing war crimes, crimes against

humanity, and genocide. Recruiting children
Legal responses
under 15 years old into armed forces or using
Although the use of child soldiers has throughout
added as a war crime that can be tried and
history been condemned by groups as morally or
punished by the International Criminal Court.
ethically wrong, it is only relatively recently that
The Rome Statute entered into force on 1 July
a proper international framework has been put in

place to try to bring the practice to an end.
them to participate in hostilities was specific ally
2002.
The Worst Forms of Child Labor Convention (1999)
prohibits the forced or compulsory recruitment
International responses
of children under the age of 18 for direct use in
The recognition of childrens special vulnerability
armed conflict and defines it as one of the worst
and need for a higher level of human rights pro
forms of child labor, as well as other forms of
tection was mentioned in the introduction to this
slavery and sexual exploitation. The treaty has
section. However, it was not until 1977 that the
now been ratified by over 170 countries.
specific issue of child soldiers was first addressed.
The UN, NGOs and countries around the world
The Geneva Conventions, known as the laws of
became particularly focused on eradicating the use
war, were a series of four treaties adopted between
of child soldiers towards the end of the century. In
1864 to 1949 to regulate the conduct of armed
the year 2000, the UN adopted the most important
conflict and attempt to limit its effects. In 1977, a
and comprehensive treaty on child soldiers the
number of Additional Protocols to the Geneva Con
Optional Protocol to the Convention on the Rights of
ventions were adopted, in which the problem of
the Child on the Involvement of Children in Armed
child soldiers was recognised. The minimum age
Conflict (2000).
for recruitment or use in armed conflict was set at
The Optional Protocol, which entered into force
15 years old for both government and non-
in 2002, sets the minimum age for direct partici
government parties. This standard is now con
pation in hostilities or compulsory recruitment at
sidered customary international law and so cannot
18 years old, and it raises the absolute minimum
be violated anywhere in the world.
voluntary recruitment age to 16. It requires certain
Later treaties also aimed to address the issue in
210
safeguards for recruitment and calls on govern
different ways:
ments to cooperate to put an end to child soldiers
The Convention on the Rights of the Child (1989),
and to provide for support and rehabilitation of
one of the most important international human
former child soldiers. The Optional Protocol has
rights treaties now all but universally adopted,
received wide support and has now been ratified
included Article 38 relating to children in armed
by over 130 countries.
conflict. Article 38 restates the minimum age
Many countries, however, including Australia
of recruitment at 15, and also discourages
and the US among others, have signed up with
recruitment of children under 18 years old. It
reservations lowering the recruitment age to 17
also creates obligations to minimise harm to all
years. For example, the Australian Defence Force
children during armed conflicts.
(ADF) currently permits voluntary recruitment at
In 2006, Thomas Lubanga Dyilo of the Democratic
Netherlands, in March 2006, where he was held in
Republic of Congo (DRC) became the rst person
an ICC prison cell. He was accused of the following
ever arrested under a warrant issued by the
war crimes:
International Criminal Court (ICC). In 2009, his trial
sEnlisting and conscripting of children under the
became the rst ever by the ICC. A rebel militia
age of 15 years and using them to participate
leader, he is accused of conscripting child soldiers
actively in hostilities in the context of an
to ght in armed conicts in the DRC during 2002
international armed conict from September
and 2003.
2002 to June 2003 (Article 8(2)(b)(xxvi) of the
Context
Conict between groups has been occurring in
the north-eastern region of DRC for many years.
It related mainly to competition for land, and later
became entangled in larger conicts over mineral
and diamond deposits involving ethnic groups
from neighbouring Rwanda and Uganda. There
were many ghting groups and factions forming
complicated rivalries. As part of the ongoing
conict, many children were recruited into armed
groups on all sides. Without any accountability,
many atrocities were committed against civilians,
including widespread killing and horric levels
of sexual violence. By 2004, around four million
people had died as a result of the conict, through
disease, starvation, and directly through killings.
Lubanga was alleged to have served from 2002
as commander-in-chief of one armed group, the
Patriotic Forces for the Liberation of Congo. In
March 2004, the DRC government authorised the
ICC to investigate and prosecute international
crimes in the DRC relating to the conict.
Rome Statute)
sEnlisting and conscripting children under the
age of 15 years and using them to participate
Hu m an rig hts
ca s e s p a ce
Prosecutor v. Thomas Lubanga Dyilo ICC-01/04-01/06
actively in hostilities in the context of an armed

conict not of an international character from
June to August 2003 (Article 8(2)(e)(vii)).
Human rights organisations claimed that at one
point Lubanga maintained around 3000 child
soldiers between the ages of 8 and 15 he
had also reportedly ordered every family in the
territory under his control to assist the war effort
by donating something: money, a cow, or a child
to join his militia.
Trial
The ICC held multiple hearings in preparation for
the Lubanga trial to determine evidence, victim
and witness testimony and the process and form
of the trial. In total, eight legal representatives of
victims, representing a total of 93 victims, would
take part. After many delays, the trial commenced
on 26 January 2009.
By the beginning of 2010, the prosecution and
Arrest
defence cases had been made and a number of
Lubanga was strongly suspected of committing
witness testimonies heard, with the trial expected
war crimes during the conict. Rebels under his
to continue for a long time before any determi-
command were accused of massive human rights
nation is reached. The trial has received extensive
violations, including ethnic massacres, murder,
international attention and controversy, and the
torture, rape, mutilation, and forcibly conscripting
whole world is watching to see how it is played out,
child soldiers. He was arrested in March 2005 and
and how effective the powers of the ICC will prove
transferred from the DRC to the ICC in The Hague,
to be in achieving justice for the victims.
211
legal links
Updates on the ICC trial of Thomas

Lubanga Dyilo are available on the
ICCs website (www.icc-cpi.int)
and at a website devoted to the
Lubanga Trial (www.lubangatrial.
org), which is an initiative of the
Open Society Justice Initiative.
Visit the websites and report back
on the current status of the case
and any recent developments.
Figure 9.9 Thomas Lubanga Dyilo
17 years, with a birth certificate and written
international prosecution of individuals where
informed consent of a parent or guardian, and
countries themselves are unable or unwilling to
ADF must fully inform the child of the nature of
prosecute is a critical way of putting an end to
the duties and be satisfied that the child is signing
local practices, seeking justice for victims involved
up on a genuinely voluntary basis.
and acting as a deterrent for future would-be off
The various treaties have been some of the

most rapidly and widely ratified treaties worldwide
enders. The case of Thomas Lubanga Dyilo is

discussed in the Case Space on page 211.
and have created a much stronger international

framework for ending the recruitment and use of
child soldiers. However, violations do continue by
both government and non-government parties.
Although numerous treaties have now been estab
The UN Security Council has adopted a number of
lished to try to combat the various issues around
recent resolutions, particularly in 2004
child soldiers, these treaties rely on the will of the
and 2005, condemning the use of
states to effectively implement them and pursue
child soldiers and calling for a rigorous
their objectives.
REVIEW 9.5
1 Identify the articles of the
Rome Statute under which
Lubanga was charged and
describe the crimes he was
charged with.
2 Briefly summarise the
context of the charges and
the allegations against
Lubanga.
3 Describe the process by
which Lubanga was arrested
and finally brought to trial.
4 Critically evaluate the
effectiveness of the ICC in
achieving justice for the
victims. Consider issues of
national resources, delay,
exposure and deterrence.
212
Domestic responses
monitoring and reporting system
There are few known cases of domestic prose
monitoring
cutions for the recruitment or use of children
and reporting on compliance by
in armed conflicts, with the exception of some
all countries around the world now
cases in the DRC and recent truth commissions
occurs and abuses are more regularly
established following serious conflicts in Sierra
exposed.
Leone, Timor-Leste and Liberia that are known to
of
abuses.
The
Research,
framework
is
relatively
have addressed child soldier issues.
new and will take time to take full
As mentioned above, the international treaties
effect. However, in one of the most
have been well accepted and widely ratified and
significant developments, the Inter
domestic legal systems have had to be brought into
national Criminal Court under the
line with their requirements. For example, in 2008,
Rome Statute has begun to charge
the US enacted the Child Soldiers Accountability Act
a number of individuals with war
which allowed the US to prosecute individuals
crimes relating to child soldiers in
domestically who have knowingly recruited
armed conflicts, particularly in recent
or served as soldiers in or outside the US or to
conflicts in Uganda, Sudan and the
deny such people entry into the country. Similar
Democratic Republic of the Congo.
laws have been enacted in other countries that
This is particularly important as the
not only send an important message to military
International
responses
The full text of the Optional
In Australia, the minimum compulsory con-
At the international level, the UN
Protocol to the Convention
scription age under s 59 of the Defence Act 1903
plays an impor tant role in moni-
on the Rights of the Child on
(Cth) is 18 years, but voluntary recruitment is
toring the use of child soldiers
the involvement of children in
different. After ratication of the Rome Statute
around the world. The ILO and the
armed conict is available on
in 2002 and the child soldiers Optional Protocol
UN Childrens Fund (UNICEF) in
the UN High Commissioner
in 2006, the Criminal Code Act 1995 (Cth) was
particular play a role in research
for Human Rights website at
amended to meet Australias ICC and treaty obli-
and studies into the status of the
the following address: www2.
gations. Sections 268.68 and 268.88 were added
problem,
ohchr.org/english/law/crc-
to the Criminal Code to criminalise the use,
dations to the UN and to member
conscription or enlistment of children as part of
states where necessary and pro-
Looking at the text of the
an international or national armed conict. These
moting the spirit and obligations of
Protocol answer the following
sections make it a crime to use, conscript or enlist
the treaties on children in armed
questions.
children under 18 years for armed groups or forces
conict.
1 Looking at the Preamble to
offenders to international safe havens.
providing
R ESEAR CH 9 . 4
recommen-
conict.htm
other than national armed forces. However, for
There are also a host of inter-
the Protocol, summarise the
national armed forces it is only a crime if the child
national NGOs that conduct impor-
main reasons why the treaty
is under 15 years old.
tant
was created.
work
in
monitoring
and
Hu m an rig hts
commanders but also prevent travel or eeing by
In 2007, in Australia there were almost 500
reporting on the issue, educating
young people under 18 years old, boys and girls,
the public and lobbying government
containing the prohibition
ser ving in ADF, but the ADF had no record of under-
and international organisations to
on recruiting and using child
18s being deployed into operation areas. As men-
take action. The most signicant of
soldiers and explain the
tioned earlier, the minimum voluntary recruitment
these is the Coalition to Stop the Use
age is 17 years according to the ADFs Defence
of Child Soldiers. The Coalition is
Instructions, and the ADF has put procedures
different to other NGOs in that it is
Australias reservation to
in place to ensure child recruitments are on a
an organisation that comprises
the Protocol and current
genuinely voluntary basis. Young applicants can
many different member organisa-
recruitment practice
rst apply to join at 16 years and 6 months old, and
tions with a common purpose of:
corresponds with the
children as young as 10 can register their interest
s preventing the recruitment and
purpose and obligations of
online with Defence Force Recruiting.

In 2005, the ADF Ombudsman released a report
on the management and administration of underage personnel. It included a recommendation for
review of the costs and benets of accepting chil-
use of children as soldiers
2 Identify the article(s)
obligations they impose.

3 Critically evaluate how
the treaty.
s securing the demobilisation of

child soldiers, and
s ensuring the rehabilitation of child soldiers and
their reintegration into society.
dren for enlistment with a view to raising the age
With headquarters in London, the Coalition was
to 18 years. The Defence Department disagreed
formed in May 1998 by leading international
with the recommendation, claiming that to raise
humanitarian and human rights organisations and
the minimum age would severely restrict the
includes Amnesty International and Human Rights
quality and quantity of recruits.
Watch. It also has active links with UNICEF and the

ILO, as well as the International Committee of the
Non-legal responses
Red Cross and works to achieve its aims through
There are many programs and organisations, both
toring, including period Global Reports on all
international and domestic, that aim to combat
countries, and lobbying of individual governments
the causes and effects of the recruitment and use
for change as well as international organisations,
of child soldiers worldwide.
in particular the UN.
public education of the issue, research and moni-
213
legal links
Further information from particular
s Ofce of the UN High Commissioner
intergovernmental organisations (IGOs)
for Human Rights recent
and NGOs on the issue of child soldiers is
publications on child soldiers
available via the links below:
www.unhcr.org/refworld/
s Coalition to Stop the Use of Child
topic/4565c2254a/4565c25f575.html
Soldiers www.child-soldiers.org
s International Labour Organization
s Amnesty International www.amnesty.

org/en/children
www.ilo.org/ipec/areas/Armedconict/
lang--en/
Domestic responses
successful and participants all over the world take
As on the international level, there are many
part every year, particularly in local schools, in
domestic NGOs that work in the area of childrens
raising funds, showing support, educating others
rights. These may include focusing on issues relating
and lobbying governments to action.
to child soldiers, particularly in countries where
Other forms of domestic responses include
recruitment of child soldiers is a signicant prob-
groups or individuals, who assist in the rehabi-
lem. Recently one strong movement has developed
litation of former child soldiers, by helping to
internationally that enables local interest groups,
relocate their families, get back into school,
individuals, schools and other institutions to take
provide vocational training and re-enter life. The
part in a global effort to raise awareness on children
media also plays a role informing the public about
in armed conict. Red Hand Day, as it is known,
the existence and problems of child soldiers. Films,
is a campaign that takes place on 12 February
books and documentaries have also played an
every year to commemorate and draw attention
important role. For example the 2006 movie Blood
to the issue of child soldiers. It has proved hugely
Diamond focused on some of the horric aspects of
Figure 9.10 Red Hand Day is an initiative of the Coalition to Stop the Use of Child Soldiers that takes
place on 12 February every year to commemorate and draw attention to the issue of child soldiers.
214
the diamond trade in parts of Africa, including the

recruitment and use of child soldiers in diamondrelated conflict areas. Films like this with wide
audience appeal are an effective non-legal means
of focusing global attention on the issue.
H uman rig hts
Effectiveness of
responses
According to the Coalition to Stop the Use of Child
Soldiers, progress has been made on child soldiers
but there is still a long way to go and any further
advances will require commitment and political
will. As stated in their 2008 Global Report:
Ultimately, if the international community is to
make good its promise to protect children from
military exploitation, the level of political will, the
amount of human and financial resources, the
adherence to established best practice and the
quantity as well as the quality of collaborative
effort and imaginative endeavour must all be
multiplied.
Despite the significant efforts of the international

community, particularly in the last decade with
the adoption and ratification of ground-breaking
human rights treaties, the pace of progress has
been slow and the tens of thousands of children
Figure 9.11 The 2006 film Blood Diamond helped bring the plight
of child soldiers to the publics attention.
currently involved in armed forces have yet to feel

its impact. More must be done to make it less
attractive to recruit children for use in armed
forces
by
strengthening
the
enforcement
mechanisms.
While the establishment of the ICC and the
first trial of charges relating to child soldiers is
REVIEW 9.6
1 Describe some of the efforts of NGOs and
governments in tackling the issue of child
soldiers.
2 Explain the role of the media, NGOs and
encouraging, this is only the tip of the iceberg.
other non-legal responses in combating the
Political will is needed at all levels to strengthen
issue of child soldiers. Evaluate how these
the enforcement mechanisms but it will be an
groups can complement the legal measures
uphill battle if the root causes of conflicts that draw
in place.
children into the battlefield are not addressed. This
3 Critically evaluate the effectiveness of legal
involves the wider issues of tackling poverty,
and non-legal responses to child soldiers
ending conflicts and establishing the rule of law
based on consideration of the causes and
and respect for human rights in all countries.
drivers behind the problem.
Chapter 9: Contemporary hu m a n r i g h t s i s s u e s
215
216
s Although slavery has ofcially been abolished

internationally, it continues as a form of
criminal activity today.
s Slavery can take the form of forced labour,
debt bondage or sexual slavery.
s Human trafcking is an illicit activity involving
the trade in illegal slaves.
s International treaties have provided a
framework to help countries implement
measures to deal with human trafcking.
1 Human trafcking differs from people

smuggling in that:
a human trafcking is a criminal activity while
people smuggling is not
b human trafcking involves deception of the
person involved
c people smugglers allow a person free after
transport is complete
d all of the above
2 The Protocol to Prevent, Suppress and Punish
Trafcking in Persons, especially Women and
Children achieves which of the following?
a it makes trafcking an international crime
punishable by the ICC
b it makes all UN states enact domestic laws
on human trafcking
c it lays out agreed denitions and a
framework of approach
d it gives signatories the resources to tackle
the underlying problems
s There are many IGOs and NGOs doing

important work all over the world to end
contemporary slavery.
s The Australian government has recently
improved its approach to combating human
trafcking and a number of prosecutions have
been made.
3 Australias approach to combating human

trafcking has included which of the
following?
a amendment of the Criminal Code, funding
of around $60 million, specialist training for
the AFP
b funding of around $60 million, training
for Commonwealth prosecutors, more
detention centres
c developing a new treaty, cooperation
with regional and international agencies,
specialist training for the AFP
d training for Commonwealth prosecutors,
mandatory detention, improved victim
protection scheme
4 The annual Trafcking in Persons Report has
been invaluable in monitoring the progress of
anti-trafcking efforts worldwide. It represents
which type of response below?
a a domestic response of the Australian
government
b a domestic response of the US government
c an international response of the UN
d an international response of a coalition of
NGOs
5 Which of the following is one of the main
contributors to the risk of people trafcking?
a a lack of political will
b a lack of international consensus
c inadequate interception and detention
facilities
d socio-political and economic factors
Hu m an rig hts
1 Explain when slavery was ofcially abolished

and why it still remains a problem today.
2 Identify the forms of contemporary slavery
and the ways in which slaves are recruited and
trafcked.
3 Outline the international responses to human

trafcking, including reference to the purpose
of the main treaties.
4 Describe some of the non-legal responses to
the issue of human trafcking.
and non-legal responses to the issue of
human trafcking and contemporary slavery.
217
218
s The use and recruitment of child soldiers in

armed conict can involve serious abuses of
human rights and can amount to a war crime.
s The extent of the problem is hard to gauge,
but child soldiers are still used in conict all
over the world.
s International responses to child soldiers are
relatively recent but have accelerated in the
last decade, and the rst international trial
has now been brought before the ICC.
1 Which of the following statements about the

issue of child soldiers is NOT true?
a the UN has estimated there could be as
many as 300 000 child soldiers worldwide
b the use of children under 18 in armed
conict is generally conned to developing
countries
c the advent of modern weaponry has
worsened the problem of child soldiers
d the recruitment of children under 15 years
into armed conict is an international war
crime
2 Which of the following treaties was used to
prosecute Thomas Lubanga Dyilo?
a Kyoto Protocol
b Optional Protocol to the Rights of the
Child on the Involvement of Children in
Armed Conict
c Rome Statute
d Additional Protocol to the Geneva
Convention
3 Which of the following best describes
the Australian position on recruiting child
soldiers?
a it is a crime to recruit children under
18 years into national armed forces for
participation in armed conict and under
15 years for other armed forces or groups
s IGOs and NGOs play an important role in

monitoring and reporting on the issue of child
soldiers.
s More needs to be done to combat the issue
of child soldiers, and poverty, conict, the
lack of the rule of law and respect for human
rights remain as root causes of the problem.
b it is a crime to recruit children under 18

years into armed forces or groups other
than national armed forces, but national
forces recruit at 17 years
c it is a crime to recruit children under 18
years for direct involvement in armed
conict in either national or other armed
forces, but recruitment for indirect
involvement is possible at 17 years
d it is a crime to recruit children under 18
years into armed forces other than national
armed forces, but national armed forces
recruit at 15 years
4 The Coalition to Stop the Use of Child
Soldiers is:
a a collection of NGOs with a shared
purpose on child soldiers
b an IGO that researches and releases annual
reports on child soldiers
c a humanitarian NGO that works with
former child soldiers
d a body of the UN that campaigns against
child soldiers
5 Which of the following is most needed to
address the issue of child soldiers?
a tackling poverty and ending conicts
b encouraging respect for human rights and
the rule of law
c prosecutions by governments and the ICC
d all of the above
Hum an rig hts
1 Describe how child soldiers are recruited

and some of the conditions they may have to
endure.
2 Explain the different roles that child soldiers
might be expected to perform in a conict.
3 Outline the international responses to child

soldiers, including reference to the purpose of
the main treaties.
4 Describe some of the non-legal responses to
the issue of child soldiers.
and non-legal responses to the issue of child
soldiers and contemporary slavery.
219
The changing understanding of the relationship

between state sovereignty and human rights
This area of the syllabus requires examination of

the reasons why state sovereignty can be used
both to promote human rights and undermine
human rights.
s sovereignty sovereignty assumes that the
government of a nation has the sovereign right
to make any laws they like within their borders
and that no other nations have the right to
intervene.
s human rights law has gradually undermined
the idea that sovereignty is a barrier to
external intervention. The international
community is able to exert pressure in a
number of ways on states that blatantly allow
violations of human rights.
s Responsibility to Protect this new UN
doctrine makes it every governments
responsibility to protect the human rights of
their citizens. If a government is unable to do
this then it is the international communitys
responsibility to assist them.
Issues of compliance and non-compliance in
relation to human rights
In this area of the syllabus it is necessary to

examine why nation states comply with the law
as opposed to reasons why they put themselves
outside the law.
s monitoring and enforcement mechanisms
there are now monitoring and enforcement
mechanisms, such as international courts and
tribunals, that aim to hold people accountable
for violations of human rights, such as the
Human Rights Committee or the ICC.
s mutual benet nations realise that they have
much to gain from following the vast majority
of international law regarding human rights.
The development of human rights as a
reection of changing values and ethical
standards
s moral values and ethical standards the

bitter experience of two world wars and
genocide on a massive scale in the rst half of
the 20th century had led to a change in values
and a determination to do everything to build
a new world order where human rights are
respected and upheld.
220
s UN Charter, Genocide Convention, UDHR

and Geneva Conventions these great historic
events, which occurred within a few years of
the end of the Second World War, promoted a
dramatic shift in the international community
by placing human rights centre stage in
international law as they never had before.
s human rights law now a major branch of
international law, connecting in some way with
all other areas of international law.
The role of law reform in protecting human
rights
s human rights treaties never before in

history have human rights been given so much
protec tion. However, enforcement of human
rights is not guaranteed in many countries of
the world.
s rule of law countries that are governed
by the rule of law have the best chance of
protecting human rights.
s Responsibility to Protect promotes reform
in which the international community has the
responsibility to help struggling nations build
their capacity in their economic development,
their government administration and
institutions.
responses in protecting human rights
s political will the effectiveness often

depends on the political will of the leaders
of major world powers to take action to
strengthen the enforcement mechanisms to
protect human rights.
s public opinion a public that is informed
and made aware of human rights issues
can pressure their leaders to promote
human rights. NGOs, IGOs and the media
play a critical role in the areas of research,
documentation, education and lobbying. In
many cases, little would be achieved without
these groups playing these roles.
2010 Copyright Board of Studies NSW for and on behalf

of the Crown in right of the State of New South Wales.
HSC Legal Studies Syllabus 2009.
PART III
Options
Students must study two
of the following options
(each option amounts to
25% of course time)
Option 2: Global environmental protection
C rim e
50% of course time
Option 1: Consumers
Option 3: Family
Option 4: Workplace
Options
Options
221
CHAPTER 10
Option 1: Consumers
O pt i o n 1 :
Co n su m e r s
Principal focus
Through the use of contemporary examples, students investigate the legal rights
of consumers and the effectiveness of the law in achieving justice for consumers.
25% of course time

Themes and challenges to be incorporated throughout this option include:
s the role of the law in encouraging cooperation and resolving conict in regard
to consumers
s issues of compliance and non-compliance
s laws relating to consumers as a reection of changing values and ethical
standards
s the role of law reform in recognising the rights of consumers
s the effectiveness of legal and non-legal responses in achieving justice for
consumers.
At the end of Chapter 10, on pages 264265, you will nd a summary of the
themes and challenges relating to consumers. The summary draws on key points
from the text and links them to each of the themes and challenges. This summary
is designed to help you revise for the external examination.

Questions relating to Part III of the syllabus Options will appear in Section
III of the examination. There will be seven extended response questions, one for
each Option offered in the syllabus. Students will be required to answer two of
these questions, each relating to a different option they have studied.
Section III: Options 50 marks total (25 of the possible 50 marks per Option)
The question relating to each Option will have two alternatives. The expected
length of response is around 1000 words (approximately eight examination writing
booklet pages).
222
acceptance
bait advertising
caveat emptor
condition
consideration
contract
cooling-off period
damages
duress
recognise the importance of awareness and self-help

examine the range of different remedies available to
consumers
evaluate the effectiveness of non-legal and legal
measures in achieving justice for consumers
identify and investigate contemporary issues involving
the protection of consumers and evaluate the
effectiveness of legal and non-legal responses to
these issues.
express terms
fiduciary duty
fit for purpose
implied terms
injunction
invitation to treat
laissez-faire economy
licensee
merchantable quality
IMPORTANT LEGISLATION
Australian Securities and Investment Commission Act

2001 (Cth)
Spam Act 2003 (Cth)
Telecommunications Act 1997 (Cth)
Trade Practices Act 1974 (Cth)
Trade Practices Amendment (Australian Consumer
Law) Act 2009 (Cth)
Competition and Consumer Act 2010 (Cth)
Consumer, Trader and Tenancy Tribunal Act 2001
(NSW)
Contracts Review Act 1980 (NSW)
Corporations Act 2001 (Cth)
Credit Act 1984 (NSW)
Fair Trading Act 1987 (NSW)
Minors (Property & Contracts) Act 1970 (NSW)
Motor Dealers Act 1974 (NSW)
Motor Vehicle Repairs Act 1980 (NSW)
The buyer of a house in Nyack, New York, USA

brought an action requesting rescission of the
contract of sale, and damages, when he discovered
that the vendor, Helen Ackley, had bragged about
the house being haunted. Neither Ackley nor her
real estate agent had told him about the ghosts. The
court held that since Ackley had also reported the
presence of the ghosts to a local newspaper and to
Readers Digest magazine, she could not now deny
their existence and, as a matter of law, the house is
monopoly
offer
offeror
offeree
pyramid selling
rescission (of a contract)
remedies
unconscionable conduct
warranty
O p t i on 1: Cons umers
ch a p te r o b j e cti ve s
k e y te r m s
re l e v a n t l a w
od d l aw

outline the developing need for consumer protection
outline the objectives of consumer law
examine the nature, function and regulation of contracts
evaluate the effectiveness of the regulation of
marketing, advertising and product certification in
achieving consumer protection
examine the role of occupational licensing in
achieving consumer protection
Sale of Goods Act 1923 (NSW)

Travel Agents Act 1986 (NSW)
SIGNIFICANT CASES
Carlill v Carbolic Smoke Ball Co (1893) 1QB 256

Blomley v Ryan (1956) 99 CLR 362
Commercial Bank of Australia Ltd v Amadio (1983) 151
CLR 447
Handley v Snoid (1981) 4 TPR 361
Johnson v Buttress (1936) 56 CLR 113
Astley v Austrust (1999) 161 ALR 155
G. H. Myers v Brent Cross Service Co. (1934) 1 KB 46
Australian Knitting Mills Ltd v Grant (1936) 50 CLR 387
Beale v Taylor (1967) 1 WLR 1193
Qanstruct Pty Ltd v Bongiorno Ltd (1993) 113 ALR 667
Director of Consumer Affairs of Victoria v AAPT Ltd
(Civil Claims) [2006] VCAT 1493
Reardon v Morley Ford Pty Ltd (1980) 49 FLR 401
haunted. Although the estate agent was under no

duty to disclose to a potential buyer the phantasmal
reputation of the premises and ... in his pursuit of a
legal remedy for fraudulent misrepresentation against
the seller, [the] plaintiff hasnt a ghost of a chance, the
court was nevertheless moved by the spirit of equity
to allow the buyer to seek rescission of the contract of
sale and recovery of his downpayment (Stambovsky v
Ackley, 572 NYS 2d 672 (NY Sup Ct App Div 1991)).
Chapter 10: Op t i o n 1 : C o n s u m e r s
223
T h e n a t u r e o f co n s u m e r l aw
The developing need for
consumer protection
A peasant consumer often had the advantage

of knowing the producer of the goods. If any problems arose with the item that had been bought or
The need for consumer protection has grown
bartered for, the buyer could easily confront the
over time. Prior to the Industrial Revolution, the
seller to resolve the problem. Modern consumers,
vast majority of people throughout Europe lived
on the other hand, usually deal with salespeople
simple lives based on subsistence agriculture. The
(who rarely have a role in the production of the
typical marketplace of the time offered a small
goods they sell) or multinational corporations that
range of products. The consumer therefore didnt
may be remote or inexibly bureaucratic.
need sophisticated knowledge of the quality and

caveat emptor
let the buyer beware;
it implies that
consumers should use
their own powers of
care and knowledge
to protect themselves
against exploitation
laissez-faire economy
an economic system in
which the state refrains
from interfering with
markets by regulation
or other means
Early markets were also characterised by the
value of most goods in order to make a purchase.
common law notion of caveat emptor. Purchases
Furthermore, because there was no product pack-
in pre-industrial markets were at the buyers own
aging, goods could be inspected more closely.
risk. If a product was faulty, it was the buyers
The situation for contemporary consumers
problem. Caveat emptor is based on the assump-
could not be more different. Today, we often need
tion that the buyer and seller meet on equal terms.
to rely upon the expertise of others (shop
Modern Australian consumer protection laws
assistants, nancial advisors) when purchasing
recognise that this is not the case.
products such as superannuation plans, or elec-
In a laissez-faire economy, the interaction
trical equipment such as computers and mobile
between buyers and sellers of goods is considered
phones. A highly specialised level of product know-
to be a private realm, and intervention by the state
ledge is required in the marketplace of the twenty-
is minimal. In the late 18th century, manufac-
rst century. Therefore, it is essential that legi-
turers and sellers of goods were generally wealthy,
slators put safeguards in place designed to resolve
well-educated industrialists, while the buyers
conict and protect consumers from exploitation.
were often poor, uneducated workers. The power
Figure 10.1 Consumers today often require a highly specialised level of

product knowledge when purchasing goods and services.
Figure 10.2 It is important that tourists

shopping at the Grand Bazaar in Istanbul, Turkey
understand the concept of caveat emptor.
224
imbalance was evident, and the notion of caveat

emptor came into question. Governments began
to create laws that would, in time, address the
need for consumer protection.
R EVI EW 1 0 . 1
1 Identify some of the risks to consumers in
a laissez-faire economy.
2 Explain why acceptance of caveat emptor
may not provide sufcient protection to
The definition of a
consumer
consumers.
3 Contrast the markets of medieval Europe
with those of 21st-century Australia.
A consumer is a person who buys or uses goods or

cases a consumer can decide whether or not to
purchase an item whether its a can of soft drink,
a computer or an insurance policy and can be
inuenced by marketing and advertisements.
When making purchases, consumers have a
Objectives of consumer
laws
Consumer law relates to the interaction between
three categories of actor:
range of expectations about the products and/or
s manufacturers or suppliers of goods and
services they are buying. Primarily, consumers
services that are intended for consumption in
expect that the products they buy will work prop-
domestic households
erly for a period of time as indicated by the manu-
s the state (parliament and judiciary)
facturer, and that the services they receive will be
s consumers.
of a standard promised by the supplier. Although
All three groups pursue particular interests
these types of expectations have existed since the
under the law, and can be considered to be inter-
trade in goods and services began, laws to protect
dependent in the contemporary marketplace. The
consumers and their rights are relatively new.
common law of contract and a variety of federal
As far as the law is concerned, an individual is

generally considered to be a consumer when the
and state statutes govern much of our day-to-day

dealings with merchants.
goods or services purchased are essentially for pri-
The primary objective of consumer law is to
vate use or consumption. Every time we purchase
protect the welfare of consumers. The law achieves
a commodity or service, we enter into a special
this by:
legal relationship with the seller. Accordingly, both
s educating the public to make them aware of
parties to a commercial transaction are governed
their rights educated consumers can protect
by what lawyers refer to as a bundle of legal
themselves from exploitation
rights and responsibilities. In other words, there
s articulating and mandating standards for the
is a legal expectation that parties will behave in
quality of goods and services this promotes
a manner that ensures that both buyer and seller
transparency and accountability in the manu-
are treated fairly. Without this legal arrangement,

purchases would be characterised by mistrust and
uncertainty, with greatly increased vulnerability
for the party in the weaker bargaining position.
This chapter will examine the legal rights of
consumers and evaluate the effectiveness of the
O p t i o n 1: C o n s u m e rs
services generated within the economy. In most
facturing and service sectors

s providing statutory and common law remedies
for consumers
s implementing weights and measures laws
providing consumers with reliable benchmarks
of quality
law in achieving justice. It will also explore the legal
s ensuring that various occupations are licensed
and non-legal remedies available when consumer
s protecting consumers in a time of global
rights are denied by manufacturers and suppliers.
advertising, mass marketing and e-commerce
remedies
means by which
redress or reparation
is provided for the
breach of a legal right
weights and
measures laws
laws that govern
weights and
measures stated on
the packaging of
products (such as
food and beverages)
or as indicated on the
trading premises (e.g.
at a petrol station)
in order to protect
consumers from being
cheated or deceived
advertising
any action designed
to draw the attention
of consumers to the
availability of goods
or services in the
marketplace
Cha pter 10: Option 1: Co ns umers
225
Figure 10.3 The primary objective of consumer law is to protect the welfare of consumers.
where there has been a marked reduction in personal interaction between buyers and sellers
s regulating contractual relationships between
buyers and sellers especially unfair contract
s a clear identication of the parties to the

contract
s contractual terms that are in writing for all to
see
s precise language which describes the terms
terms
s guarding against unsafe and defective products
of the contract in such a manner as to avoid
s helping
the need to rely upon memories of the original
vulnerable
and
disadvantaged
consumers.
agreement
s the parties signatures and the assumption that
all the terms have been read and agreed to.
Contracts
Normally, parties to contracts opt for written

contracts in order to avoid having to prove that:
contract
an agreement made
between two or
more persons that
is recognised by the
courts as being legally
binding on the parties
offeror
the person making an
offer of a contract
offeree
the person to whom
the offer of a contract
is made
good faith
the intention to
honour a commitment
undertaken
Types of contracts
s the contract existed
A contract is an agreement made between two or
s the contract is in some way an incomplete
more persons that is recognised by the courts as

being legally binding on the parties.
The basis of a contract is agreement, which in
most cases consists of an offer made by one party
document
s oral undertakings were given in the negotiation
phase
s a partys words or conduct were misinterpreted.
to another person, and an acceptance of the offer

by that person. The person making the offer is
O RA L C O NTRA C TS
referred to as the offeror and the person to whom
Oral agreements rely on the good faith of all the
the offer is made is known as the offeree.
parties. Such agreements may be difcult to prove
Contracts can be:
and/or remember precisely. Hence, theyre open
s written in a formal manner
to misunderstanding. In resolving a contractual
s oral
dispute, the court will closely examine conduct
s a mixture of the two.
and statements made by each party leading up to
It should be remembered that contracts do not

have to be in writing to be legally binding.
the negotiation of the contract.

Oral agreements can be supported in court by:
s the conduct of the other party both before and
WR IT T EN C ON T R AC T S
226
after the agreement
These are the most common form of consumer
s specic actions of the other party
contracts. They are usually characterised by:
s past dealings with the other party.
Figure 10.4 Contracts do not have to be in writing to be legally binding.
WRITTENORAL C ON T R AC T S
Consequently, a legally binding
R EV I EW 1 0 . 2
Contracts can be a mixture of written and
contract does not necessarily
1 Identify the ways in
oral agreements. This is true when the written
arise out of a purely social
which the law protects
agreement does not contain many terms. If a
arrangement or an agreement
consumers.
written contract appears to be incomplete, oral
between family members. For
undertakings and conduct will be scrutinised very
example, a promise to meet
the parties to a contractual
closely by the court. Further, it is a rule of law that
someone for dinner or to provide
agreement.
when a contract has been put in writing, and it
a colleague with a lift home
appears to be complete, it will be accepted against
from work would not be legally
a contradictory oral agreement.
enforceable should one of the
2 Identify and distinguish
3 Compare oral and written

contracts.
parties fail to arrive. If your parents offered to
Elements of a contract
pay you a sum of money for doing the housework
The law of contract is one of the areas of civil law
or the gardening, and then changed their minds
and is essential to the successful operation of
after you did the work, the law presumes that
modern capitalist economies. It attempts to dene
this arrangement did not involve the intention to
the circumstances under which parties who make
create legal relations, and would not entitle you to
promises to each other are legally bound by them.
sue them for breach of contract.
For a contract to exist, the following elements

must be present:
O FFE R
s the parties intention to create a binding
The second element required for the formation of
contract
a contract is an offer. If there has been no offer
s an offer by one party
there can be no acceptance, and hence no agree-
s acceptance of that offer by the other party
ment between the parties.
s consideration from the promisee.
An offer is a rm proposal, made with a willingness to be bound by the terms. A preliminary
I NTENTION TO C R EAT E L EGAL
proposal, enquiry or price quotation during the
R E LATIONS
process of negotiation does not constitute an offer.
If an agreement is to be treated as a contract, it
Sometimes what might appear to be an offer may
is essential that the parties to it intended to enter
only be an invitation to others to make offers. This
into a legally binding relationship. A court will look
is known as an invitation to treat.
at the behaviour and statements of the parties to
An offer that is accepted forms an agreement
determine whether they had such an intention.
that is the basis of a contract, and if all other
offer
a rm proposal
to form a binding
contract, made with
a willingness to be
bound by its terms
invitation to treat
words or conduct
made to invite
someone to make an
offer or to negotiate
227
essential elements of a contract are present, the
then any attempt to accept after ve days will be
agreement will be enforceable.
invalid. If no time period is prescribed, then the
The acceptance of an invitation to treat cannot
offer may be accepted within a reasonable time.
give rise to an agreement, as the invitation to

treat is not an offer. At an auction sale, the call
C O NSI DERATI O N
for bids by an auctioneer is an invitation to treat
The element of consideration is essential in any
(that is, an invitation to buyers to make an offer)
valid contract. It is this element that turns a mere
and the bid by the intending buyer is the offer.
promise into a contract that the law will enforce.
The acceptance is indicated and completed by the
Every contract contains at least one promise, and
fall of the auctioneers hammer. Thus a bid may
the enforceability of a promise depends on the
be withdrawn by a buyer at any time before it is
promisees response. The promisee must have
accepted by the auctioneer. Similarly, an auction-
given, done or suffered something in exchange for
eer may refuse to accept an offer if the bid does not
the promise, and that price paid for the promise
reach the minimum (or reserve) price set by the
is called consideration. It shows that the parties
seller. Marked prices on articles displayed for sale
intended to form a binding contract. In most
in shop windows are merely invitations to treat
cases, consideration is in the form of giving money
not offers to sell at the stated price. Consequently,
in return for goods or services. Alternatively,
a shopkeeper is not obliged to sell an item on
consideration may take the form of someones
display, nor is he or she obliged to sell it at the
reliance on a promise, to his or her disadvantage or
displayed price. Catalogues and advertisements
detriment: for example doing something, refraining
that offer goods or services for sale, and time-
from doing something, giving up something, or
tables that offer transport at a particular time and
taking on some responsibility in order to obtain
place, are in most cases mere invitations to treat.
the benet promised by the promisor.
AC C EPTAN C E OF T H E OF F ER
O TH ER REQU I RE M E NTS
acceptance
the unconditional
consent to all the terms
of the offer
An acceptance of an offer is the unconditional
Other conditions for an enforceable contract
agreement to all the terms of the offer. For accep-
include the following:
tance to be complete, or effective in law, it must
s Parties must have the capacity to contract that
consideration
something given, done
or suffered in return for
a promise in a contract
be communicated to the offeror. It is open to the
is, they must be capable of voluntary agree-
offeror to state how the offer shall be accepted.
ment. Hence, contracts entered into by people
Quite often, an offeror makes it clear that the
who lack that capacity for example children,
offer must be accepted in writing by mail. The
people with mental disorders, and people under
acceptance is taken to be when the contract was
the inuence of alcohol or drugs cannot be
posted, not when it was received.
enforced by the other party.
duress
coercion or pressure
used to inuence
someone
The offeree must accept, without qualication,
s Certain types of contracts have requirements
all the terms of the offer. Any attempt to impose a
set out in legislation. For example, in NSW,
conditional acceptance will amount to a counter-
contracts for the sale of land must either be
offer and constitute a rejection of the offer.
in writing or there must be a written note or
An offer can be accepted only by those persons

to whom the offer was made. Once an offer has
228
memorandum of the contract (Conveyancing Act

1919 (NSW) s 54A).
been accepted, it may only be revoked with the
s The obligations in a contract will be negated
consent of the offeror. Any acceptance of an offer
if both parties have not given their free and
outside the time period stipulated in the offer will
voluntary consent, due to mistake (one or both
be ineffective. If an offer, for example, species
parties misunderstand each other or agree on
that acceptance is required within three days,
the basis of an incorrect understanding of the
Louisa Carlill purchased a device
so that they could verify that
that the manufacturer advertised
she was using it properly. Mrs
as a cure for inuenza. It
Carlill brought an action claiming
consisted of a rubber ball with
that she had a contract with
a tube attached. When the tube
the company, which they were
was inserted in the users nose
refusing to honour. Carbolic
and the ball squeezed, it gave
Smoke Ball Co. argued that
off vapours of carbolic acid. The
the advertisement was not a
advertisement promised 100
contract, but mere puff, not a
to anyone who used the ball
serious offer.
but still contracted the u, and
The English Court of
stated that a sum of money had
Appeal held in Mrs Carlills
been deposited in a named bank
favour, concluding that the
to show good faith.
advertisement constituted an
Mrs Carlill used the ball
Figure 10.5 The original

advertisement for the Carbolic
Smoke Ball.
offer to the whole world; that
regularly for two months.
she had accepted the offer by
When she became ill with the
following the directions for
u, she wrote to the company
use; that buying and using it
requesting her 100. Her letters
constituted consideration given
were ignored. The company
by Mrs Carlill; and that the money
nally responded, stating that to
deposited in the bank showed
claim the money she would have
the companys intention to enter
to use the device in their ofce
a legally binding contract.
R ESEAR CH 1 0 . 1
facts), misrepresentation (one party induces
the terms of the contract
the other to enter the contract by making a
and can be expressly or
Visit the website of the Law Society
false statement), duress (a partys consent
implicitly agreed to by
of NSW at: www.lawsociety.com.
was obtained by violence or threats), or undue
both parties.
au/community/publicationsandfaqs/
inuence (one partys use of power or status to

obtain the consent of the other).
Terms may appear in
ca s e s p a ce
Carlill v Carbolic Smoke Ball Co. (1893) 1 QB 256
legalquestions/Whatisacontract/
the form of a written
index.htm and answer the following
s Contracts for illegal acts (e.g. a contract to kill
document, usually signed
questions.
someone) or that otherwise contravene public
by both parties, or may
1 Who can make a contract?
policy (e.g. that endanger public safety) are
consist of oral statements.
2 Who decides the terms of a
invalid and unenforceable.
If a contractual document
contract?
is not signed, the terms
Terms of contracts
may be incor porated into
The terms of a contract relate to the basis of the
the contract by a notice from the supplier to the
agreement: for example, Amy agrees to sell certain
purchaser, e.g. terms on the back of a ticket, or on
goods to Liam and Liam agrees to pay the sum
a sign at the entrance to a place where the customer
of $500 to Amy. These promises are known as
has paid for entry.
229
condition
(of a contract) a term
of fundamental and
essential importance; if
a condition is breached
by a party the other
party is entitled to end
the contract
warranty
a term of a contract
whose breach entitles
the aggrieved party to
sue for damages, but
not to end the contract
Figure 10.6 If a party fails to honour its warranty, a term of their contract, the aggrieved party is
entitled to sue for damages.
damages
money ordered by
a court to be paid
to a plaintiff as
compensation for
damage suffered
consensus ad idem
agreement as to
the same things;
agreement between
the parties to a contract
about the terms
express terms
contractual terms that
have been specically
stated and agreed by
both parties at the time
the contract is made,
either in writing or
orally
implied terms
contractual terms
that have not been
expressly stated, but
which the courts are
willing or required by
statute to enforce
merchantable quality
a condition in contracts,
implied by statute,
guaranteeing that
goods offered for sale
are of a sufciently high
quality to be suitable
for sale, and are t for
their usual purpose
t for purpose
an implied term in
contracts of sale,
guaranteeing that the
goods sold will do what
they were designed
to do
230
Figure 10.7 Implied contractual terms protect consumers in the modern marketplace.
C ON DIT ION S AN D WAR R AN TI ES
EX PRE SS A ND I M PL I ED TE RM S
A term within a contract can be either a condition
Contracts contain both express and implied
or a warranty. If one party to a contract breaches a
terms to protect consumers. Express terms are
condition (for instance, using the earlier example,
contractual terms that are either spoken or written
if Liam refuses to pay Amy), the aggrieved party
into a contract and are agreed to by both parties.
can terminate the contract and sue for damages.
They clearly set out the legal rights of both parties.
Warranties, on the other hand, are terms that are
The legislature and judiciary of Australia
less important or peripheral aspects of a contract;
operate on the principle that certain standards
for example, a manufacturers promise to repair or
must be upheld when persons enter contractual
replace faulty goods. If a party fails to honour its
agreements, even where these standards are not
warranty, the aggrieved party can sue for damages
stated expressly. Consequently implied terms are
but is not entitled to end the contract.
built into contracts. For example, the notion of
Once a contract is made, legal obligations and
merchantable quality is an implied term in all
rights ow from it. Consequently, if one party to a
contracts for the sale of goods, where the goods
contract fails to perform their side of the bargain
are bought on the basis of a description. In simple
(that is, if they breach the contract), contract
terms, this means that when a consumer makes a
law recognises that a duty exists, and provides a
purchase, there is the expectation that the goods
remedy. For a contract to be valid and therefore
will be t for purpose.
legally enforceable, the parties to the agreement
Implied terms therefore add another layer of
must demonstrate consensus ad idem. Whether
consumer protection because they ensure that
or not there is a subjective meeting of the minds,
individuals who enter contracts hurriedly, without
a court must determine whether or not the parties
due consideration, are spared the expense of costly
agree from their words and behaviour.
litigation in order to attain an equitable remedy.
Terms may be implied in contracts of a
station will take no responsibility for any
REVIEW 10.3
certain type, for example contracts for the
damage to the car while it is parked on
1 Distinguish between
sale of goods. They may also be implied in
their premises. Other examples include an
conditions and warranties.
a particular contract based on the parties
airline ticket that guarantees a flight, but
2 Explain how a court would
presumed intentions, or on the basis of
not necessarily on the stipulated date, and
determine whether the
ordinary custom or usage in a particular
housing insurance that wont cover acts of
parties to a contract were
market or situation.
God, or terrorism.
in agreement about the
equitable and consistent with the express
Unjust contracts
terms of the contract. In other words, it
Where a contract is unjust or unfair as
needs to allow the parties to perform their
a result of a partys unconscionable
tasks both efficiently and fairly.
conduct, the innocent party can bring
obligations contained in its

terms. Give examples.
3 Distinguish between express
and implied terms.
4 Explain why contractual terms
a civil action seeking rescission of the
may be implied in certain
EXCLUSION CLAUSES
contract. The victim may also be en
types of contracts. Discuss, in
Exclusion clauses are incorporated into
titled to any of various remedies, such
the context of consumer law.
contracts to limit a partys liability for
as damages. Both the common law and
conduct that would otherwise breach the
legislation provide protection from unjust
person breaching a contract.
contract or cause harm. These terms limit
contracts.
Contrast the breach of a
5 Discuss the consequences of a
The legal notion of unconscionability
damages. Such clauses are almost always
is best understood when one considers
warranty, and explain how the
contained in a written document that may
whether both parties to a contract have
remedies would differ.
or may not be signed. For example, when
bargained on equal terms, or whether
a motorist parks in a car park, a contract
one party has used his or her superior
clauses. Provide two
is entered into the moment a ticket is
position to take advantage of another.
examples of contracts that
accepted from an automatic dispensing
For example, if someone is induced to
might employ exclusion
machine. On the back of the ticket or on a
enter a contract by the other persons
clauses, and justify their use.
sign near the ticket machine there may be
misleading statements or greater bar
a notice drawing the motorists attention
gaining strength, he or she can seek to
to the fact that the owners of the parking
have the court set it aside.
case space
or take away the other partys right to claim
Blomley v Ryan (1956) 99 CLR 362

An elderly, uneducated man, suffering from poor health and the
effects of prolonged and heavy alcohol consumption, entered
into a contract to sell a farm to Blomley. When he discovered
that he had been persuaded to sell it at a greatly reduced price,
he sought to have the contract set aside. The High Court of
Australia held that where a party has taken advantage of the
condition of another to secure an unfair contract, equity will
condition and the breach of a
An implied term should be reasonable,
6 Assess the use of exclusion
unconscionable conduct
one partys exploitation of the
vulnerability of another party
to a contract; the victim may
have been impaired by some
external factor (e.g. age,
disability, lack of education)
or he or she may have been
deceived or threatened by
the stronger party
rescission
(of a contract) the termination
of a contract with the courts
approval; rescission treats the
contract as if it never existed
and discharges the parties
from their obligations
refuse to enforce the contract. The factors that may provide a

basis for rescission include illness, poverty, age, illiteracy, and
lack of understanding, as well as the victims being under the
influence of alcohol or drugs.
231
ca s e s p a ce
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447

An elderly Italian couple who
the bank made no attempt to
where the stronger party knows
were not uent in English agreed
explain it to them. When the
of the weaker partys special
to provide a guarantee to the
sons business was liquidated,
disadvantage, it is prima facie
bank for their sons business
the bank began proceedings
unfair to take advantage of this.
debts, promising to pay on
to sell the building that the
In this case the disadvantages
demand all money owed to
Amadios had provided as
included age, limited
the bank at that time or in the
security. The contract was
command of English, lack of
future, with interest. Their sons
set aside on the basis of
understanding of the contract
explanation to them of the
unconscionable dealing by the
terms, and lack of assistance or
guarantee was inaccurate, and
bank. The High Court held that
explanation.
C OMMON L AW PR OT EC T IO N: I M PL I ED
For example, a person who is materially or
T ER MS
emotionally dependent upon another can be
As noted previously, a party who is a victim of
easily inuenced: see Johnson v Buttress (1936)
duress, undue inuence, or unconscionable deal-
56 CLR 113, in which a will was successfully
ing is entitled to obtain relief and can have the
challenged on the ground that the personality
contract rescinded. In addition, the law will also
and mental state of the testator, an eccentric
imply contractual terms into a contract requiring
old man, and his dependent relationship with
parties to do what is necessary to enable the per-
a friend who had taken care of him since his
formance of the contract. In some cases, courts
wife died, inuenced him in his disposition of
will ask whether the parties would have expressly
a house.
agreed to the term if they had considered the issue
s A contract for professional services must be
when entering their contract. In other cases
performed with reasonable care. For example,
standard terms will be implied without the need
in Astley v Austrust (1999) 161 ALR 155, a
for inquiry into the actual intent of the parties.
company sued a law rm in negligence for poor
However, if the parties have demonstrated a clear
business advice, which had left the company
intention to the contrary, the terms will not be
with onerous debts. In addition to the tort
implied.
case, the court also considered the question
There is considerable overlap between the
of whether the company could also succeed
common law and statutory protection, and most
in an action for breach of the implied term in
of the requirements for contract formation can
the contract that the solicitors would act with
be found in current legislation. In addition, most
reasonable care.
contractual terms implied by the common law are

now implied by statute.
The following cases illustrate some of the ways
232
s A contract must be entered in the absence of

duress or coercion. For example, in Hawker
Pacic Pty Ltd v Helicopter Charter Pty Ltd (1991)
that the law protects consumers.
22 NSWLR 298, the contract was for paintwork
s A contract must be fairly negotiated without
on a helicopter. When the charter company
any undue inuence. Where the parties are
arrived to pick up the helicopter, which had
in a relationship in which one party may be
been sent back to correct defects in the
able to exercise considerable inuence over
paintwork, the document presented by Hawker
the other, there is a risk of abuse of trust.
Pacic showed a lower price but included a
term excluding liability for unsatisfactory work.
cial loss as a result of going
R E V I EW 1 0 . 4
The company urgently needed the helicopter,
into debt without realising the
1 Define unconscionable
which had been chartered for that same day,
promised tax benefits. The
conduct and list some of
and argued successfully that the contract was
statements of the defendant
the forms it can take during
void for duress.
company, Bongiorno, were held

to have been misleading.
able quality. For example, in Australian
negotiations for a contract.

2 Explain the remedies
available for unconscionable
Knitting Mills Ltd v Grant (1933) 50 CLR 387,
S TAT U T O RY P R O T E C T I O N
underwear purchased caused a severe skin
A number of state and federal
reaction. Grant succeeded in negligence against
statutes ensure that all consumer
the manufacturer and against the retail shop for
contracts contain implied terms
terms in a contract. Provide
breach of the implied term of the contract of
providing broad protection against
three to five hypothetical
sale, that the goods would be satisfactory for
unconscionable conduct, defec
examples of circumstances
the buyers use.
tive products, and deceptive or
in which a court might imply
The product must be fit for the purpose for
misleading advertising. The most
standard terms, and support
which it is required. In an early English case,
significant of these include the
your examples with actual
G.H. Myers & Co. v Brent Cross Service Co. (1934)
Sale of Goods Act 1923 (NSW),
cases in which the court did
1 KB 46, the court held that a repair company
the Competition and Consumer Act
imply terms.
that installed faulty connecting rods in a car
2010 (Cth), and the Fair Trading Act
was liable for the breach of this implied term.
1987 (NSW). The Fair Trading Act
This case established that this term should
mirrors its federal counterpart (the Competition and
be implied both in contracts for the supply of
Consumer Act 2010 (Cth), formerly the Trade Practice
goods (only), and in contracts for the supply of
Act). However, it was enacted because the Trade
goods along with work to be done.
Practices Act applied only to corporations (relying
advertised
on section 51(xx) of the Australian Constitution).

The Fair Trading Act regulates businesses in NSW
description, whether or not he or she has seen
that are not incorporated.
must
its
be used.
3 Justify the use of implied
description, where the buyer relies on that
product
match
conduct and when each may
the product or has bought on the basis of the
Section 74 of the Competition and Consumer
description alone. For example, in Beale v Taylor
Act 2010 (Cth) mandated that all contracts for the
(1967) 1 WLR 1193, a car for sale was advertised
supply of services contain an implied warranty that
as a 1961 Herald 1200 convertible. Although
they will be rendered with due care and skill, and
the buyer examined the car and saw that there
that any materials supplied in connection with the
was a metal disc on the rear of the car showing
services will be fit for purpose. Section68 of that
1200, in fact a 1961 model and an earlier
Act ensured that suppliers cannot contract out
one had been welded together. The buyer was
of their statutory obligations regarding consumer
entitled to damages for breach of the English
protection.
The Contracts Review Act 1980 (NSW) allows the
statute applying to the sale of goods.

Manufacturers/suppliers
in
court to grant relief for unjust contracts. The court
deceptive or misleading marketing behaviour.
may refuse to enforce any or all provisions of the
In Qanstruct Pty Ltd v Bongiorno Ltd (1993) 113
contract, make an order declaring the contract
ALR 667, the members of a company were
void, or make an order varying (changing) any
induced to purchase four life insurance policies,
provision in the contract (s 7). When deciding
and also to finance their purchase by borrowing
whether a contract or a term is unjust, the court
from a company associated with Bongiorno.
must consider the public interest, as well as all the
They were told that payments on the policies
circumstances of the case, whether the aggrieved
would be tax deductible. They suffered finan
party had the opportunity to negotiate the terms
cannot
engage
The product purchased must be of merchant
233
consumer contract
a contract for the
supply of goods or
services, or for a sale
or grant of interest in
land, to an individual
purchasing the goods,
services or land for
personal or household
use
product warranty
a manufacturers
promise or assurance
that it will repair or
replace or otherwise
compensate for
defective goods;
breach of a warranty
entitles the aggrieved
party to sue for
damages, but not to
end the contract
before signing, whether the terms were reasonable
as the amendments to the former Trade Practices
or difficult to comply with, and whether the parties
Act 1974 (Cth), discussed above. In 2003, Part 2B
had equal bargaining power (s9(2)). Section9(2)
was inserted into the Fair Trading Act 1999 (Vic),
sets out the different ways in which a party may
making an unfair term in a consumer contract
have been at a disadvantage, such as undue influ
void. Consumer Affairs Victoria (CAV) brought
ence or pressure, but also conditions of age,
an application before the Victorian Civil and
mental capacity, literacy, and lack of legal or other
Administrative Tribunal against the telephone
expert advice.
company AAPT, alleging that certain terms in its
The Australian Securities and Investment Com
mobile telephone contracts were unfair. Some of
mission Act 2001 (Cth) sets out the powers of the
these terms concerned variations to the contract
Australian Securities and Investment Commission
that could be made by AAPT but not by the
(ASIC) and governs consumer protection in rela
customer, and AAPTs ability to terminate service
tion to financial services, including enforcement
and to charge a reconnection fee for an overly
and court-ordered remedies.
broad range of reasons. The Tribunal held that
The Trade Practices Amendment (Australian Con
these terms were indeed unfair.
sumer Law) Act 2009 (Cth) amended both the then

Trade Practices Act 1974 (Cth) and the Australian
Securities and Investment Commission Act 2001
(Cth) by inserting new provisions in relation to
consumer contracts, and in relation to financial
services contracts. This was the first stage of the
process that would result in the new consumer
legislation of 2010. Unfair terms of standard form
contracts will be void, without requiring any
action by a court. A standard form contract is a
contract that is prepared by one party generally
the party with all or most of the bargaining power
and then presented to the other party (the
consumer), who is required to accept or reject the
terms. An unfair term of a standard form contract
is defined as a term that would cause a significant
imbalance in the parties rights and obligations
under the contract.
In determining whether a term in a consumer
RESEARCH 10.2
The Sale of Goods Act 1923 (NSW) can be
viewed at www.austlii.edu.au/au/legis/nsw/
consol_act/soga1923128/index.html#s5. Look
at sections 5 and 54 of the Act. Then visit the
NSW Office of Fair Trading website at www.
fairtrading.nsw.gov.au/Consumers/Refunds_
and_warranties.html and answer the following
questions.
1 Explain the difference between a warranty
and a condition in a contract.
2 Summarise the relevant provisions of the
Sale of Goods Act 1923 (NSW) with regard
to product warranties.
3 Describe a consumers options if he or she is
not satisfied with a product purchased.
contract is unfair, a court must take into account:

the extent to which the term would cause
detriment to a party if it was to be applied or
relied upon;
the extent to which the term is transparent and
Where goods manufactured without proper care
readily understood by both contracting parties.
cause injury, loss, damage or death, the con
The court may also take into account any other
sumer is entitled to bring an action under the
matters it considers relevant.
234
Negligence and
consumer protection law
relevant federal or state legislation. Alternatively,
A good example can be seen in Director of
he or she may have a cause of action for breach
Consumer Affairs of Victoria v AAPT Ltd (Civil
of contract, if the supplier or manufacturer has
Claims) [2006] VCAT 1493. This case concerned
expressly or impliedly promised that the goods
state legislation with similar objectives and terms
are free of defect. A third type of claim is an action
ded to prevent or reduce the risk of injury to any
consumers).
person. See, for example, Fair Trading Act 1987
In Australia, governments seek to keep unsafe
(NSW) s 38. Childrens prams, smoke detectors
products from the market and inform consu
and kitchen ovens are examples in which the
mers about product safety. Federal and state
importance of these safety standards is particularly
governments seek to ensure that:
evident.
unsafe products that reach the market are
In addition to these provisions, there are state

and federal laws governing the provision of infor
readily detected and reported

there is effective and timely removal of unsafe
mation about products and services.
products from the market

compulsory product recall occurs if required
compensation is available to consumers who
purchase unsafe products
Regulation of marketing
and advertising
negligence
breach of a duty
of care resulting in
harm that could be
foreseen
the Australian
Consumer Law
the collection of
federal consumer
laws, attached as
Schedule 2 of the
Competition and
Consumer Act 2010
(Cth) formerly the
Trade Practices Act
breaches of consumer protection laws attract

sanctions.
Statutory protection
Suppliers have a duty to warn consumers of
Although common law provides some protection
products whose dangerous characteristics are dis
for consumers with regard to the deceptive prac
covered after they are already on the market. They
tices of manufacturers/suppliers, it wasnt until it
may also be required to recall the product, under
was codified into statute that consumer law truly
the Competition and Consumer Act 2010 (Cth) or
emerged as a force for social and economic justice.
ss3435 of the Fair Trading Act 1987 (NSW). Even
Provisions protecting consumers from deceptive
where a product has been recalled, consumers
advertising and marketing practices are contained
may still be able to sue for damages if they do not
in both federal and state consumer legislation. The
know of the recall.
provisions of the Competition and Consumer Act
Some recent examples of product recalls
in negligence (breach of a duty of care owed to
2010 (Cth) governing marketing and advertising
include:
will be incorporated into the new Australian
Hewlett-Packard (HP) and Compaq Notebook
consumer law of 2010, to come into force by 2011.
Computer Lithium-Ion Battery Packs these

were overheating and exploding (2009)
DECEPTIVE OR MISLEADING CONDUCT
Cadbury Old Gold Dark Chocolate, 70% Cocoa,
Section 18 of the Australian Consumer Law
200 gram block the milk solids werent
(formerly section 52 of the Trade Practices Act)
declared on the labelling and this caused aller
Section 41 of the Fair Trading Act contains a similar
gic reactions for lactose-intolerant consumers
provision.
(2009).
Legislative
Conduct means doing or refusing to do any

provisions
regarding
consumer
act. Making a statement that is literally true may
product safety standards, which include require
nonetheless constitute misleading or deceptive
ments for testing of the goods and the inclusion of
conduct. Misleading or deceptive conduct includes
warnings or instructions with products, are inten
exaggerated statements about a product, failure

to disclose all relevant information, and in some
le g al l i nk s
circumstances silence. It also includes promises

See www.recalls.gov.au for a
comprehensive list of product
recalls.
that are not kept and incorrect predictions.

It makes no difference whether the company
intended to mislead or deceive consumers; it is
how the conduct affected the consumers beliefs
about the product or service. If an advertisement
creates a misleading perception about an item
235
for example, if a manufacturer of small toys

with many detachable parts misrepresented or
failed to disclose the risks to infants and toddlers
then the company is likely to be in breach of
a claim that goods are new when in fact they

are second-hand
a representation that a product is sponsored by
or used by a celebrity when in fact it is not
the Act. Under the federal legislation, a consumer
a false or misleading representation concerning
can recover damages for personal injury or death
a potential buyers need for any goods or
resulting from a suppliers misleading or deceptive
services
conduct.
Under the Australian Constitution, a federal Act
only applies to corporations that trade across state
borders. The Fair Trading Act 1987 (NSW) regulates
firms that operate only within NSW, and has a
a false claim concerning the existence or effect

of any condition, warranty or guarantee
a false or misleading representation about the
place of origin of a product
a false claim as to the availability of repair
broader application, extending to individuals.
facilities or spare parts for a product.
Section 42 of that Act prohibits misleading or
Section 44 of the Fair Trading Act 1987 (NSW)
deceptive conduct.
has similar content.

UNCONSCIONABLE CONDUCT
case space
The federal legislation (the Australian Consumer

Law s21) and Fair Trading Act (s43) also provide
Handley v Snoid (1981) 4 TPR 361
broad protection for vulnerable consumers against

unscrupulous suppliers who use their greater
A band called Popular Mechanics successfully
bargaining power to obtain an advantage.
sued to obtain an injunction preventing another

band from performing or recording under a similar
OFFERING GIFTS AND PRIZES
name, Pop Mechanix. Had this new band been
Suppliers who entice consumers to buy their prod
allowed to use a similar name, consumers would have
ucts by offering gifts, prizes or other free items
been deceived when it came to the marketing and
with the intention of not providing the advertised
advertising of tickets for their concerts, or indeed,
gift breach federal law (s 32 of the Australian
any albums that may have been offered for sale.
Consumer Law). Suppliers participating in such

marketing schemes are considered to have been
engaging in deceptive practice. Section 48 of the
Fair Trading Act is identical.
B A I T A D V E RT I S I N G
injunction
a court order that
requires a party to
refrain from completing
a particular action
FALSE OR MISLEAD I N G
Bait advertising is the practice of advertising
REPRESENTATIONS
something at a specified price, with the knowledge
In addition to the general prohibition of misleading
that it will not be possible to offer it at that price for
and deceptive conduct, the Australian Consumer
a reasonable time and in reasonable quantities.
bait advertising
advertising goods or
services for sale at a
specified price with
the knowledge that
the company will not
be able to offer them
at that price for a
reasonable period
Law contains specific provisions in s29 regarding
Often referred to as the bait and switch, it has
representations. A representation is a statement or
the objective of getting the consumer into shops
assertion. Suppliers breach the law by making false
where sales staff inform customers that theyve
representations to consumers:about their products
run out of a particular line and attempt to
or services. Such representations include:
convince consumers to buy a more expensive
a false claim about the quality or value of a
product or model. Such behaviour breaches
236
product
federal law (s35 of the Australian Consumer Law)
Figure 10.8 Used car yards are heavily regulated by the state.
as illustrated in Reardon v Morley Ford Pty Ltd
credit card companies providing a replacement
(1980) 49 FLR 401, when the Federal Court found
for an expired card. Similarly, s 40 prohibits
against a car dealer who advertised two cars at a
suppliers from sending unsolicited goods and then
low price, but then failed to sell them at that price
demanding payment.
during the stated period.

COERCION
REFERR AL SELLING
Under s 50 of the Australian Consumer Law,
Section 49 of the Australian Consumer Law makes
corporations
it illegal for a supplier to offer discounts, rebates
harassment
or other benefits to consumers in return for
connection with the sale or possible sale of goods
introducing other customers to the supplier.
or services, or to obtain payment for goods or
may
or
not
coercion
use
on
physical
force,
consumers
in
services.
PYRAMID SELLING
Under s 44 of the Australian Consumer Law, it is

illegal for a corporation to participate in a pyramid
selling scheme. This is a scheme in which new
participants are told they will receive a payment
in exchange for recruiting others. The practice is
fraudulent because what is really being sold is the
right to distribute, and not the actual product or
service being marketed.
REVIEW 10.5
1 List the different avenues by which a
consumer may seek relief for damage or
loss caused by defective goods.
2 Explain how federal and state governments
ensure product safety.
3 Distinguish between deceptive or
pyramid selling
an illegal form of
selling whereby an
individual pays to
become a distributor
of a good in return for
a reward for recruiting
new distributors
misleading conduct and false or

misleading representations. Provide
UNSOLICITED AND UNORDERED G O O D S
Section 39 of the Australian Consumer Law makes
examples.
4 Explain why it is important that
it illegal for suppliers to send unsolicited credit
advertising and marketing be regulated by
cards through the mail, with the exception of
government.
237
m e d i a cl i p
Keep it real,
watchdog tells agents
By Mark Russell
Sydney Morning Herald, 7 June 2009
It is time to put an end to puffery that

misleads potential buyers and renters in
real estate advertisements, according to the
national consumer watchdog.
The acting chairman of the Australian
Competition and Consumer Commission,
Peter Kell, said people were fed up with
visiting advertised homes for sale or rent
only to nd the best features had been
exaggerated and the worst ignored.
He said there would always be some form
of puffery in the industry, but sometimes it
went too far.
What the ACCC is concerned to address
are statements that are actually misleading
or statements that are likely to induce a
consumer to purchase a property on false
grounds, he said.
Silence or omitting information can also
be just as misleading as any other sort of
behaviour.
If the agent fails to reveal an important fact
about the property to a potential buyer, he
or she may risk breaching the Trade Practices
Act.
There is no point dragging people to an
open for inspection or fooling them into
coming to look at something if its not what
theyre looking for.
The NSW Ofce of Fair Trading said agents
often used photographs of beach scenes
that were insufciently labelled. In its latest
guidelines, it said such unlabelled photos
were acceptable only if they show the view
from the property.
Otherwise, captions such as location shot
and 750 metres from beach must be used,
it said.
Agents found to have misled potential
buyers through inaccurate or embellished
descriptions face penalties of up to $22,000
238
for individuals and $110,000 for companies.

They cannot avoid liability by claiming the
buyer should have made reasonable inquiries
and checked the information provided.
The ACCC received 833 complaints or
inquiries about real estate agents in 200708,
compared with 551 the previous year.
Consumer Affairs Victoria said it had
received nearly 40 complaints or inquiries so
far this nancial year relating to misleading
advertising for properties for sale on the
internet, and 10 complaints or inquiries
about rental properties. These included
misleading statements about certain features
of a property; alteration of photographs; the
potential development of a property; and the
land size.
The president of the Real Estate Institute
of Victoria, Adrian Jones, said puffery
had long been an accepted practice in
the industry as long as it did not involve
misleading or deceptive conduct. Anyone
who contemplates buying a property without
a thorough inspection is taking a great risk,
he said. Unless you see it warts and all, you
dont really know what its like.
Real Estate Institute of Australia guidelines
state that agents must not alter or permit
to be altered photographic images of
properties, digitally or by other means, such
that the images no longer truthfully and fairly
represent that property.
CRACKING THE CODE
Harbour views if you climb on the roof.

Close to public transport backs on to train
line.
Sunny outlook faces west.
Leafy outlook the brick wall has ivy
growing on it.
Tidy kitchen small and unrenovated.
Well maintained old but not quite falling
down.
RE VIE W 10.6
Advertising Claims Board. These boards operate
Read the article on the previous page and
on the principle that advertisers share a common
interest in promoting consumer condence in and
1 According to the article, what is the ACCC
respect for general standards of advertising.
concerned about?
The Advertising Standards Board provides:a
2 Outline the types of penalties that real
free complaint resolution service to the public. It
estate agents can face for misleading
also makes determinations on complaints about
potential buyers if they employ inaccurate
most forms of advertising and marketing. Issues
or embellished descriptions.
from which complaints arise may include the use

concerns about children; portrayals of violence,
Cooling-off periods
sexuality and nudity; and health and safety. There
Legislative provisions permit cooling-off periods
is an appeal mechanism by which the community
in contracts because the law acknowledges the
and advertisers can challenge decisions made by
existence of high-pressure sales tactics that can
the ASB.
inuence consumers to make purchases they
The Advertising Claims Board provides a
other wise would not. These tactics may not con-
complaint resolution service regarding issues of
stitute unconscionable conduct, but may result in
truth, accuracy and legality of advertising. The
purchases that put the buyer at a disadvantage.
complainant bears the cost of the resolution
Statutes that provide for the insertion of a cooling-
process. Its primary purpose is to resolve disputes
off period in contracts include:
between competitors through alternative dispute
s Fair Trading Act 1987 (NSW) regulates direct
resolution (ADR), rather than
commerce contracts (door-to-door and tele-
expensive and time-consuming
phone sales) and permits a ve-day cooling-off
litigation.
period (s 40E)
cooling-off period
a period of time
that gives buyers
an opportunity to
rethink their decision
to enter into a
contract of sale
alternative dispute
resolution (ADR)
dispute resolution
processes, such as
mediation, arbitration
and conciliation, that
do not involve courts
R EV I EW 1 0 . 7
Both boards use professional
1 Briey outline the statutory
codes of ethics as the basis for
guidelines that regulate
day cooling-off period for sales of residential
their
advertising.
property (s 66S)
s Conveyancing Act 1919 (NSW) species a ve-
determinations.
These
codes include the Australian
2 Dene cooling-off period.
s Student Assistance Act 1973 (Cth) provides
Association of National Adver-
Explain why cooling-off
for a fourteen-day cooling-off period for a loan
tisers (AANA) Code of Ethics,
periods are incorporated
contract between a student and a nancial
AANA Food & Beverages Code,
into contracts.
company.
and
the
AANA
Advertising
Non-statutory controls on
advertising
O p t i o n 1: C o ns u m e rs
of language; discriminatory portrayal of people;
Code
and
for
Marketing
3 Differentiate between the

roles of the Advertising
Communications to Children,
Standards Board and the
among others.
Advertising Claims Board.
Non-statutory controls also afford consumer

protection when it comes to deceptive and/or
has a highly accessible, self-regulatory framework
which complements its statutory regime.
Australias system for the non-statutory regulation of advertising and marketing is administered
by the Advertising Standards Bureau (ASB)
l e ga l l i nk s
misleading marketing and advertising. Australia

The AANA codes can be viewed at
www.adstandards.com.au/pages/
page16.asp
through the Advertising Standards Board and the
239
Occupational licensing
Table 10.1 Occupations and businesses required

to be licensed in New South Wales
Regulation of professions and occupations may

s Registration listing practitioners on an ofcial
register, to identify them and ensure that they
comply with legal requirements;
s Certication a means of recognising those who
have obtained qualications that are necessary
Professions
Trades
Businesses
Doctors
Lawyers
Engineers
Dentists
Architects
Veterinarians
Plumbers
Electricians
Builders
Motor
mechanics
Carpenters
Fitters and
turners
Travel agents
Car dealers
Credit
providers
Hotels
Motels
Restaurants
and/or desirable for practising the profession.

It also provides information to the public that
will help them choose between competing
professionals;
duciary duty
(1) legal obligations
that must be fullled
without regard to
self-interest or the
opportunity to make
unauthorised prot
from the position
(2) the legal duty to
manage a clients
money while it is held
in a trust account
Self-regulation
s Licensing a means of identifying those who
One way that industries may set practising stan-
have fullled criteria related to education, ex-
dards and regulate the entry of individuals into
perience and compliance with professional
their eld is self-regulation through professional
codes of ethics, and authorising them to prac-
bodies. Two notable examples of this are the
tise. It generally involves a regulatory body to
Australian Medical Association (AMA) and the
administer the licensing regime.
NSW Law Society. The former is a national body
If all individuals in the workforce could be
that regulates the ethics, work standards and aca-
trusted to maintain high standards of ethical prac-
demic qualications of doctors, while the latter
tice, there would be no real need for licensing.
performs the same role for solicitors in New South
The imposition of licensing and registration is an
Wales.
attempt to guarantee that people employed in
In some professions, self-regulation works
various occupations have attained the requisite
closely in tandem with legal requirements. How-
skills and perform their roles honestly. Licensing
ever, in others, the absence of compulsory
controls govern most professions, trades and
standards can lead to a lack of uniformity in
businesses, including those in Table 10.1.
matters such as complaints and disciplinary

processes; difculty for employers in assessing
a breach of professional ethics; and a burden
on consumers to inform themselves about the
quality of a professionals practice. Individuals
in occupations as diverse as social workers,
accountants, migration agents and opticians as
well as their professional organisations have
addressed the need for legislation to ensure that
all practitioners meet standards of competence
and ethical behaviour.
State regulation
As a consequence of the problems with selfregulation, states have been forced to intercede
via legislation. In recent times, for example, state
parliaments have enacted legislation that provides
Figure 10.9 Licensing is designed to protect consumers from unqualied
professionals, tradespersons and businesses.
240
strict guidelines regarding the duciary duty of

solicitors, real estate agents and travel agents. The
objective is to compel businesses, tradespersons
Ofce of Fair Trading oversees the operation of
and professionals to act honestly and in accor-
this statute. Disputes between agents and their
dance with their legal duties to the consumer.
clients are heard by the NSW Consumer, Trader
Two examples of statutory licensing regimes in

NSW, those for automobile dealers and repairers,
and travel agents, are discussed below.
Figure 10.10 The activities of car dealers and repairers in New South Wales are governed by the
Motor Dealers Act 1974 (NSW) and the Motor Vehicle Repairs Act 1980 (NSW).
and Tenancy Tribunal.

The Act requires all travel agents to be
licensed and to contribute nancially to a Travel
Compensation Fund (TCF) established to com-
T H E LICENSING OF MOT OR C AR
pensate consumers if an agent becomes bankrupt.
DEALERS AND REPAIR ER S
Travel agents are not required to keep a trust
The activities of car dealers and repairers in New
account, but in some circumstances the trustees
South Wales are governed by the Motor Dealers
of the TCF can require them to do so.
Act 1974 (NSW) and the Motor Vehicle Repairs Act
It is illegal for travel agents to behave in an
1980 (NSW). The Motor Dealers Act ensures that
unjust manner. Unjust conduct is dened in s 28
rms seeking to buy or sell cars are licensed
of the Act as conduct that is dishonest or unfair;
by the NSW Ofce of Fair Trading. This statute
is in breach of contract; infringes the Act or a
stipulates that dealers must refrain from making
regulation; or fails to comply with a condition of
false or misleading statements regarding the
the agents licence. The Director General of the
quality of the vehicles they are selling and that
state government department under which the
all guarantees and warranties are honoured.
Ofce of Fair Trading operates can apply to the
The Motor Vehicle Repairs Act makes it illegal to
NSW Administrative Decisions Tribunal for an
trade as a vehicle repairer without a licence. This
order that the agent refrain from that conduct
statute also governs the activities of all licensed
(s 31). In addition, the Commissioner of the Ofce
auto-electricians, panel beaters, spray painters,
of Fair Trading has the power to discipline licence
and brake and transmission mechanics to ensure
holders. Disciplinary measures may range from
that only qualied repairers complete such work.
a reprimand to suspension or cancellation of the
Any licensee whose work is below the industry
agents licence.
licensee
licence holder
trust account
a bank account
for money held
and dealt with on
behalf of clients by
a professional or
business acting as
a duciary for the
clients
natural justice
the body of rules that
ensure that decisionmakers act fairly,
in good faith and
without bias when
resolving disputes
minimum standard has his or her licence revoked

and hence will not be able to undertake any repair
RE V I EW O F L I C ENSI NG DEC I SI O NS
work which could potentially harm a vehicle owner
The regulatory body for a particular profession or
or cause further damage to the car.
occupation may grant or revoke a licence. When

it makes an administrative decision to deny
T H E LICENSING OF T R AVEL AGEN T S
access to, or revoke a licence, it must do so in
In New South Wales, travel agents are regulated
accordance with the rules of natural justice. In
via the Travel Agents Act 1986 (NSW). The NSW
simple terms, this means that individuals must be
241
given an opportunity to hear the reasons why a

licence has been denied or revoked and to present
arguments as to why the licence should be granted
or reinstated. If an individual is unsuccessful in
REVIEW 10.8
1 Identify some of the problems with industry
self-regulation.
2 Identify three occupations that are licensed.
obtaining or retaining a licence, he or she can
Explain why it is important for these
apply to the Office of Fair Trading for an internal
occupations to be licensed.
review. If dissatisfied with the result, the person

can apply to the Administrative Decisions Tribunal
3 Outline and explain the main reasons why a

licence might be revoked.
for further review.
Table 10.2 Reasons for a licence to be refused or revoked

Possible reasons for the refusal of a licence
Possible reasons for revoking a licence
Inadequate training or education of the

applicant
Malpractice by the licence holder
Inability of the licence holder to meet minimum

industry or professional standards
Fraudulent, misleading or deceptive behaviour

by the licence holder
A breach of the licence holders fiduciary duty

with regard to trust funds
Concern regarding the character of the
applicant, such as his or her honesty
Co n s u me r redress a n d re med ies

Awareness and self-help
in person to the supplier. Usually, the supplier of a

faulty product will repair or replace the product or
Self-help avenues are open to consumers who
provide a refund. This is because most suppliers
feel they have been badly treated by suppliers
are aware of the statutory protections in place for
or manufacturers. Redress can be obtained by
consumers, but also because it is an opportunity to
complaining to the supplier or manufacturer. Self-
foster goodwill and customer loyalty. A dissatisfied
help is a useful mechanism for consumer redress
customer whose complaint is taken seriously and
because it is resource-efficient and easily carried
promptly addressed can become an ambassador
out. Further, it can provide just outcomes for
for that supplier through word of mouth.
consumers without undertaking costly litigation.
Complaints to manufacturers
242
Complaints to suppliers
Consumers do not always have direct access to
Under the law, consumers can seek redress in
manufacturers. Once the location of the manu
the form of repair, replacement or refund. If the
facturer has been determined, it is prudent for
product or service supplied does not do the job that
the aggrieved consumer to contact the firm via
the customer was led to believe it would, or there is
telephone and in writing.
some serious fault in the product, the customer is
Under the Competition and Consumer Act 2010
entitled to seek a legal remedy. In most cases, this
(Cth), manufacturers are legally obliged to stand
is initially achieved by the consumer complaining
by their warranties or guarantees and to ensure
RESEARCH 10.3
a reasonable supply of spare parts and repair
ing of building or renovating a
facilities for goods that cost less than $40000 and
house; and information for ten
Visit the website of the Office of
are for personal or household use. Manufacturers
ants, landlords and real estate
Fair Trading, at www.fairtrading.
must also meet the requirements for merchantable
agents about their rights and
nsw.gov.au/About_us/What_
quality and fitness for purpose.
responsibilities.
the_Office_of_Fair_Trading_
The Office of Fair Trading is
does.html
Government organisations
also the agency where business

owners can register their busi
State government organisations
menu to research some
ness names, as well as obtain the
of the other services this
There are various bodies within or authorised
licences and certific ates needed
agency offers specifically for
by the NSW state government that deal with
to operate in the State of NSW.
consumers.
consumer complaints. The roles of these agencies
2 From the How Fair Trading
include:
COMMUNITY SERVICES
works link, research statutory
educating the public about their rights in the
COMMISSION
authorities and advisory
The Community Services Com
bodies that carry out other
providing advice to consumers about negoti
mission is a statutory watchdog
functions. Identify the role
ating with providers of goods and services, and
body overseeing community ser
of each and explain how it
assisting them in their negotiations
vices in NSW. Its primaryfunction
fits in with the regulation of
advising the government about consumer issues
is dealing with complaints rela
consumersupplier relations.
investigating serious complaints
ting to the NSW Department of
in the event of a breach, applying to the relevant
Community Services and Department of Ageing,
area of consumer law
tribunal or court to bring an action.
Disability and Home Care, and non-government
Some of the relevant agencies are discussed
services that get funding from these departments.
below.
1 Use the links in the left-hand
It also conducts reviews of people in care and

monitors community service issues. The Commis
NSW OFFICE OF FAIR TRADING
sion can assist anyone who receives or is eligible to
This organisation is a division of the NSW
receive community services in NSW, including:
Department of Services, Technology and Admini
children and young people in care and their
stration, whose role is to safeguard consumer

rights and to advise business and traders on fair
and ethical practice. The legislative framework
families and advocates

people with disabilities and their families and
advocates
that governs this organisation sets the rules for fair
users of supported accommodation services
ness in the daily transactions between consumers
users of child care services
and traders. It investigates unfair practices and
users of local neighbourhood centre services
administers the licensing of operators in a range
users of home and community care services.
of industries, including home building, the auto

motive trades, real estate, business and retail, and
N E W S O U T H WA L E S L E G A L A I D
retirement villages.
This organisation was established under the Legal
Consumers can contact the Office of Fair
Aid Commission Act 1979 (NSW) and is an inde
Trading for information on their rights and res
pendent statutory body. It provides legal advice
ponsibilities and for resolution of disputes. It offers
and assistance to socially and economically
a range of services, including a statutory public
disadvantaged people, including court represen
register with information to help buyers of second-
tation upon successful application for a grant of
hand cars, bicycles and boats; help selecting quali
legal aid. Legal Aid also gives talks in schools,
fied builders and tradespersons for those think
community centres and libraries to educate the
243
public about the law, peoples legal rights and
s to identify emerging issues affecting Australian
responsibilities, and services; has information
markets and consumers and draw these to the
stalls at community events; and publishes book-
attention of the Minister.
lets, CDs and DVDs for purchase. Legal Aid deals

with a wide range of legal areas, not just consumer
TH E A U STRA L I A N SE C U RI TI ES A ND
law, but it is available to consumers in disputes
I NV E STM E NTS C O M M I SSI O N (A SI C )
with commercial organisations. All Australian
ASIC is an independent statutory body which
states and territories have Legal Aid Commissions.
regulates Australias corporate markets and nancial services sectors and ensures that Australias
Federal government organisations
nancial markets are fair and transparent.
There are several Commonwealth agencies that
Among its responsibilities is the enforcement of
deal with the regulation of industries and protect
consumer protection laws covering investments,
consumer rights.
superannuation, insurance and nancial advice.

These include parts of the Australian Securities
C OMPET IT ION AN D C ON S U M E R PO L I C Y
and Investments Commission Act 2001 (Cth) and
DIVIS ION OF T H E C OMMON WE A LTH
the Corporations Act 2001(Cth), as well as parts of
DEPART MEN T OF T H E T R EA SU RY
other Commonwealth Acts. ASIC licenses nancial
This division of the Treasury provides advice to
services businesses, conducts public education
the Commonwealth Government on the consumer
initiatives for consumers, provides information to
policy framework contained in the federal legis-
businesses to help them to full their obligations,
lation and on how to promote competitive and
and monitors compliance through surveillance.
informed markets. This includes advice on the
ASICs enforcement powers, as set out in the ASIC
policy and regulatory frameworks for promoting
Act 2001 and the Corporations Act 2001, include:
competition, and those for consumer protection.
s criminal prosecution through the Commonwealth Department of Public Prosecutions
C OMMON WEALT H C ON S UME R A FFA I RS
s civil penalties
ADVIS ORY C OUN C IL ( C C AA C )
s administrative action.
CCAAC provides independent advice to the Minister for Competition Policy and Consumer Affairs
A U STRA L I A N C O M PETI TI O N A ND
on consumer policy issues. Its specic tasks are:
C O NSU M E R C O M M I SSI O N (A C C C )
s to consider issues, reports and papers referred
The ACCC is an independent statutory body that
to it by the Minister and report to the Minister
administers the federal consumer legislation. Its
on their consumer policy implications
role is to promote competition and fair trade in
s to investigate and report on consumer issues

referred to it by the Minister
the marketplace. Market competition, or rivalry

among producers and suppliers of goods and
services, uses the economic principles of supply
and demand to discover the kinds of goods and
services that consumers want, and how they can
be supplied at the cheapest price. Competition, by
contrast with a market where there is a monopoly,
is believed to benet consumers, businesses and
the community in general. An unregulated market,
however, has a greater likelihood of unscrupulous
or unfair conduct on the part of suppliers, and
thus risks harm or disadvantage not only to the
Figure 10.11 ASIC logo
244
people providing the labour to businesses, but also
to consumers. Hence the ACCCs responsibility for
Industry organisations
ensuring that businesses and individuals comply

with the federal laws on fair trading and consumer
There are a number of industry organisations that
protection is of great importance. It complements
deal with consumer complaints and assist with
state consumer affairs agencies, provides edu
remedies. They may be classified as follows.
infrastructure industries, which include commu
Industry-based dispute
resolution
nications, energy, water, post and transport.
Some industry groups have developed complaint
relevant laws, and also regulates the national
An example of a recent high-profile prosecution
handling and dispute resolution schemes designed
initiated by the ACCC involved the packaging
to provide consumer remedies, enhance business
and recycling group Visy Industries Pty Ltd. The
reputation, and support claims that these indus
company received a $36 million fine in November
tries are self-regulating. For example, Master
2008 for price-fixing in the market for cardboard
Builders Australia is an employers group that
cartons. The penalty handed down in the Federal
represents and protects businesses in the building
Court followed an ACCC investigation that found
and construction industry. It has a national code
Visy breached the then Trade Practices Act by
of practice setting out the acceptable standards
engaging in illegal cartel behaviour with rival
for commercial behaviour and ethics, by which
packaging company Amcor Ltd. Billionaire Visy
its members are bound. Consumers can make a
chairman Richard Pratt was also to face criminal
complaint to Master Builders in their state, but the
charges for lying to the ACCC, but these were
associations primary duty is to its members.
cation to consumers and businesses about the
dropped when he became terminally ill and died

in April 2009.
Customer-focused corporate
compliance programs
MINISTERIAL COUNCIL ON CONSU M E R
These are internal self-regulatory programs that
AFFAIRS (MCCA)
aim to ensure that a business meets its legal obli
The MCCA consists of the Commonwealth, state
gations to consumers, and to remedy any breach.
and territory ministers responsible for fair trading,
Industries that adopt this approach embrace
consumer protection and credit laws, along with
measures that improve relations with their cus
the New Zealand minister(s) with those portfolios.
tomers. As the different industries and businesses
Its role is to consider consumer policy issues of
have different characteristics and circumstances,
national significance and develop a consistent
compliance programs will also vary. Some
approach to those issues, and it facilitates com
companies will adopt simple programs with a
munication and cooperation between Australia
complaints handling system and training for all
and New Zealand in those areas.
staff members, while others may have a team

dedicated to compliance, regular risk assessments
REVIEW 10.9
1 Briefly explain what state and federal
and reviews, detailed guidelines, and staff edu

cation programs. Compliance programs are often
linked to the strategic goals of companies.
government agencies do, with particular

reference to consumer issues.
Industry-based Ombudsman
2 Explain the purpose of a statutory body and
An Ombudsman takes complaints from citizens
how it is constituted. Give examples of stat
or consumers about agencies, departments or
utory bodies relating to consumer issues.
providers and investigates those complaints
3 Discuss the relationship between

competition and regulation of corporations.
in order to reach a resolution that is fair to

bothsides.
monopoly
exclusive control
of a market by one
company, which
generally results
in increased prices
because there are no
alternative suppliers
price-fixing
suppliers keeping
prices in the market
at a certain level by
agreeing among
themselves not to
lower or raise their
prices
cartel
a group of companies
that work together
to control prices
and markets; if their
behaviour is found to
be anti-competitive, it
is illegal
245
Generally the providers in a particular industry
their evidence and ask questions of each other.
(e.g. telecommunications, energy and water, nan-
The Tribunal Member may also ask that evidence
cial services, insurance, public transport) are
be sworn or afrmed. After both parties have
required to be members of an independent dis-
presented their evidence, the Tribunal Member
pute resolution scheme. The industry then sets up
will make orders and explain the reasoning behind
and funds an Ombudsman scheme. For example,
them. Both parties to the dispute usually receive
the Energy and Water Ombudsman NSW (EWON)
a typed copy of the order within seven days from
investigates and resolves complaints from custom-
the completion of the hearing. Appeals against a
ers of electricity and gas providers in NSW.
CTTT order can be made to the District Court of

NSW on any matter of law.
litigation
civil legal proceedings
whereby disputing
parties seek a binding
remedy by a court
The role of tribunals

and courts
Courts
A tribunal is an adjudicative body that is chosen
through independent avenues (self-help), ADR or
specically, often by the government, to decide
the relevant tribunal, the last resort is court-based
on questions of a particular type. Consumer re-
litigation.
If consumers are unable to obtain a remedy
dress and remedies can be obtained through the

following bodies.
The role of the judiciary is to:

s apply the law as made by the legislature
s where necessary, interpret the laws made by
Consumer, Trader and Tenancy

Tribunal (CTTT)
the legislature
s ensure that laws comply with the Australian
The Consumer, Trader and Tenancy Tribunal Act

2001 (NSW) governs the operation of this tribu-
Constitution
s review the decisions of the executive arm of
nal. The role of the CTTT is to resolve disputes
government (ministers, public servants).
between tenants, landlords, traders and consumers
In recent times, court-based remedies have
in a timely and effective manner. The Tribunal
proven to be very costly. This has given rise to
conducts hearings throughout NSW and deals with
class actions which allow aggrieved consumers
matters under the following nine divisions:
with similar complaints to pursue their legal action
s Tenancy
collectively.
s Social Housing
s Home Building
s Strata and Community Schemes
Other avenues for redress
s Retirement Villages
s Motor Vehicles
The role of non-government

organisations
s General
s Commercial
represent the interests of consumers. Many of
s Residential Parks
of
non-government
organisations
After the parties to a dispute have had an
these are advocacy groups that attempt to inu-
opportunity to conciliate, if an agreement is
ence the legislative program of political parties in
not reached, an application will be heard by the
government. While peak bodies do not generally
Tribunal. CTTT hearings are generally informal,
take on and pursue individual complaints, they
but formal hearings can be held on request and
have links to resources that do.
witnesses can be called.
246
variety
Some of these groups are:
A Tribunal Member presides at the hearing.
s Consumer Credit Legal Centre (NSW) Inc. a
Both parties are given an opportunity to present
community legal centre specialising in issues
legal links
Consumer Action Law Centre

has information about consumer
issues, and a full list of consumer
advocacy groups, at www.
consumeraction.org.au.
1 Briey explain the different ways that

industry organisations attempt to assist
consumers.
2 Outline the role of the Consumer Trader
and Tenancy Tribunal in the resolution of
consumer disputes.
3 Discuss the ways in which nongovernment groups act on behalf of
Figure 10.12 Choice magazine provides

consumers with independent scientic advice on
product quality. Courtesy of CHOICE magazine,
rst published February 2010.
related to nancial services, such as consumer

credit, banking and debt recovery. It has a
particular focus on issues concerning economically disadvantaged consumers.
s Choice, formerly known as the Australian
Consumers Association a non-prot organisation that researches and campaigns on behalf
of consumers and publishes Choice magazine.
Choice provides consumers with independent
advice on product quality.
s Consumers Health Forum of Australia the
consumers. Give examples.
R EVI EW 1 0 . 1 0
The role of the media

The print and electronic media provide the
consumer with information regarding the release,
quality and safety of new products. Various
lifestyle and current affairs programs feature
segments that address consumer complaints and
interests. While broadcasters and print media
can be biased in favour of their sponsors, there
can be little doubt that they generally provide the
consumer with another layer of information and
publicise the shoddy practices of unscrupulous
suppliers and manufacturers.
national peak body representing the interests

of Australian health care consumers.
Specific remedies
s Consumers Federation of Australia the

national peak body for Australian consumer
Court-based
groups. Its members include legal centres, local
A court may award any of a number of remedies to
organisations and public interest bodies.
a successful complainant. These include:
s Not Good Enough (www.notgoodenough.org)
s Damages monetary compensation awarded
a website created to help consumers to resolve
by the court and paid by the defendant to
disputes with suppliers of goods and services.
someone who proves that loss was suffered as
It publishes individuals input about products
a result of the defendants actions
and services, and facilitates responses from

companies.
s Rescission and modication of contract if

a court considers a contract to be unfair, it can
247
order a contract to be rescinded (cancelled) and

mediation
a form of alternative
dispute resolution
designed to help two
(or more) parties, in the
presence of a neutral
third party, to reach an
agreement
conciliation
a form of alternative
dispute resolution in
which the disputing
parties use the services
of a conciliator, who
takes a more active
role than in mediation,
advising the parties,
suggesting alternatives
and encouraging
the parties to reach
agreement. The
conciliator does not
make the decision for
them.
a new one created

Special orders courts may resolve consumer
Specific performance a court order requiring

a party to a contract to perform the obligations
that he or she has agreed to in the contract.
disputes by issuing orders for rectification of

the wrong, for example the repair of defective
Alternative dispute resolution
goods
Mediation and conciliation are commonly ref
Injunctions a court may order a party to a
erred to as alternative dispute resolution (ADR)
contract to refrain from doing something that is
mechanisms because they provide an alternative
in breach of the contract
to court-based litigation. If a consumer dispute
Table 10.3 Individual consumer remedies against suppliers

Statutory right
Relevant legislation
Unfair contracts will be rescinded

(unconscionable conduct)

Minors (Property and Contracts) Act 1970 (NSW)
Goods offered for sale must be of

merchantable quality and fit for purpose
Sale of Goods Act 1923 (NSW)
Terms of the contract regarding guarantees

and product warranties must be honoured

Deliberately misleading or deceiving

consumers is prohibited

Goods must fit the description given to

consumers by the supplier

Product information standards must be

provided to consumers, e.g. labels relating to
contents, ingredients, design standards etc.

Table 10.4 Individual consumer remedies against manufacturers
248
Statutory right
Relevant legislation
A manufacturer must honour its contractual

warranties or guarantees

Manufacturers must supply reasonable repair

and spare parts facilities

Manufacturers/importers must supply goods

that are safe

Manufactured goods must be fit for purpose

and of merchantable quality

R EV I EW 1 0 . 1 1
cannot be resolved after the initial complaint, it
manufacturer, society benets from the
may be necessary to resort to mediation or con-
legal protections in place. The societal
ciliation. In mediation, a neutral umpire assists an
benets of consumer redress include:
of alternative dispute
aggrieved consumer and a supplier/manufacturer
s the promotion of social equality
resolution and why it is
to resolve their dispute in a manner that is agreed
consumers are treated similarly
to by both parties. Conciliation, on the other hand,
regardless of their educational levels
allows the neutral third party to actively facilitate
and bargaining power
with a view to resolution.
utilised.
2 Explain what a class
action is and why it
s safety dangerous products are not

allowed into our markets
might be initiated.
3 Analyse and argue for
The Community Justice Centres Act 1983 (NSW)
s ethical conduct by requiring sup-
or against two of the
has enabled the establishment of Community
pliers and manufacturers to full
claims about societal
Justice Centres (CJCs) across the state. CJCs pro-
obligations to consumers, expect-
benets resulting from
vide places where mediation and conciliation
ations of responsible behaviour are
consumers access to
can occur. More often than not, the courts have
reinforced
remedies, considering
advised the parties in dispute to use these centres
s international cooperation in a glo-
in the rst instance rather than pursuing costly
balised marketplace, a national com-
court procedures.
mitment to consumer protection may

have
Benefits to the individual and

society
consequences
for
potential objections.
other
countries as well, at least in theory

s greater choice and quality market
In addition to an individual consumer who suc-
conditions become more consumer-
ceeds in obtaining redress from a supplier or
friendly.
communication between the disputing parties,
1 Explain the process
Co n t e m p o ra r y i s s u es co n ce r n i n g
co n s u m e r s
Issue 1: Credit
Credit is the purchase of goods and services in
advance of future payment. Many individuals in
our consumer-driven society obtain goods and
services via the use of a credit card or loans. In
a sense, the 21st century is rapidly becoming a

cashless society in which credit providers issue
loans almost too readily.
In fact, many consumers live well beyond their
means, and as a consequence, can risk exploitation
by unscrupulous lenders. As a result, they have
trouble meeting their repayments, and cars, household goods or even homes are repossessed.
In addition, consumers face other credit issues
such as:
s unfair contract terms
s credit providers with inadequate procedures for
handling complaints
s time delays in the handling of complaints by
credit providers
s too many steps involved in the process of
Figure 10.13 Credit is the purchase of goods

and services in advance of future payment.
seeking legal redress and hence only the most

sophisticated consumers will persevere.
249
Legal and non-legal

responses
Further provisions were included in the

Australian Consumer Law via a second Bill introduced in 2010. All Australian jurisdictions were
Legal responses
required, in accordance with the National Partner-
A meeting of the Council of Australian Govern-
ship Agreement to Deliver a Seamless National
ments in 2008 determined that there should be
Economy, to apply the full Australian Consumer
a transfer of consumer credit regulation powers
Law by 1 January 2011.
from the states and territories to the Commonwealth
via
the
Trade
Practices
Amendment
(Australian Consumer Law) Act 2009 (Cth). The Act
(U C C C )
includes amendments to the Australian Securities
The amendments to the Australian Securities and
and Investments Commission Act 2001 (Cth), which
Investment Commission Act 2001 (Cth) absorb and
embodies a separate legislative framework for the
strengthen the national Consumer Credit Code
regulation of nancial services. The resulting stan-
across Australia. The objectives of the Code are to
dardisation established a single uniform national
provide laws which apply equally to all forms of
law for the regulation of consumer credit, while
consumer lending and to all credit providers, and
providing both enhanced protection for consumers
which are uniform in all jurisdictions in Australia
and stability for the consumer credit sector. One
The newer code not only guarantees stan-
of the aims of the Act was to ensure consistency
dardisation; it also presents credit information
between generic consumer protections and those
in a clear and easy-to-understand format. Credit
that specically apply to nancial
providers such as banks, building societies, credit
services.
unions, nance companies and businesses, are
Substantial benets arise from

s Consumers and industry benet
s truthfully disclose all relevant information about
that excludes unscrupulous and
the credit arrangement via written contract,
incompetent credit providers.
including interest rates, fees, commissions and

other information.
greater integrity and consumers
Further, credit providers must not to enter into
can be condent that credit pro-
contractual agreements with consumers who may
viders are being monitored by the
nd it difcult to make repayments. Moreover,
government.
courts will order changes to, or rescind, contracts
s Rigorous entry conditions must

be met before the provision of an
Australian credit licence.
s Credit
deemed to be unconscionable.
A national uniform consumer credit code has
many advantages:
meet
s Credit obligations and liabilities are transpar-
standards
ent to all parties. Clearly spelt out obligations
when providing credit or credit
improve consumer condence. Debtors know
providers
responsible
tions in any credit arrangement
from a robust licensing regime
s The credit market in Australia has
Figure 10.14 The widespread use

of credit in contemporary times
has produced a society that is
reliant on both plastic money and
e-commerce technology.
required to:
s inform consumers of their rights and obliga-
this legislation:
250
TH E U NI FO RM C O NSU M E R C REDI T CO D E
must
lending
assistance.
their contract is backed by national legislation.
s The credit market benets from
s It allows credit providers more freedom to
an assurance that consumers are
organise their fees and charges as long as they
well protected.
are explicitly disclosed.
s Failure to comply with the Code can lead to
s Consumer Credit Legal Centre (NSW) pro-
civil penalties up to $500 000 and/or criminal
vides free telephone and nancial counselling
charges.
advice, particularly for low-income consumers.
s A Consumer Credit Code Business Checklist
The Centre is a community legal centre
provides business owners with a Plain English
specialising in nancial services, particularly
guide to setting out a credit contract.
matters and policy issues related to consumer
consumers must be in the form of a written

contract.
credit and banking. Visit www.cclcnsw.org.au

for more information.
s Redfern Legal Centre (RLC) offers free legal
s Credit providers must ensure that the consumer
advice, referral and case work to disadvantaged
is given both a Pre-contractual Statement dis-
people and groups in the Botany, Leichhardt
closing mandatory details about fees and
and City of Sydney municipal areas. It is an
charges; and an Information Statement explain-
independent, non-prot community centre
ing the consumers rights and obligations.
that provides face-to-face and telephone advice

about credit and debt. Visit www.rlc.org.au for
Non-legal responses
more information.
There are a number of useful non-legal avenues
All of these resources have the advantage of
available for consumers experiencing credit con-
being free and thus accessible to all, regardless of
cerns. Some examples are:
income.
s NSW Ofce of Fair Trading provides free adthe Consumer Credit Code, for example regar-
Responsiveness of the legal

system
ding loan repayments, default notices and car
The uniform laws outlined above are designed to
repossession. Visit www.fairtrading.nsw.gov.au
protect consumers entering credit agreements,
for more information.
and also regulate credit providers. A national res-
vice (via phone, in person or online) regarding
s Community Justice Centres (CJCs) provide
ponse to this issue is appropriate, so that all
free mediation and conict management ser-
Australian consumers are protected from uncon-
vices throughout New South Wales to help
scionable credit contracts to the same extent and
people resolve disputes. They are funded by the
with the same consequences for breach. These
NSW Government (Attorney Generals Depart-
include:
ment). Visit www.cjc.nsw.gov.au for more
s criminal penalties for licensee misconduct,
information.
s Financial Ombudsman Service (FOS) provides a free mediation service specically for
including possible imprisonment for up to

two years for those who lend contrary to the
responsible lending protocols
resolving credit disputes between consumers
s civil penalties for licensee misconduct, with
and nancial institutions. It employs inde-
ASIC empowered to levy nes of up to
pendent dispute resolution processes and
$220 000 for an individual and $1.1 million for
addresses complaints about nancial services
a corporation
relating to banking, credit, loans, general insurance, life insurance, nancial planning, invest-
s Credit agreements between businesses and
s infringement notices enabling ASIC to act

quickly to penalise breaches of the law
ments, stock broking, managed funds and
s remedies such as compensation, which aims to
pooled superannuation trusts. Visit www.fos.
put aggrieved consumers back in their original
org.au for more information.
position prior to the nancial loss suffered.
251
Conclusion
meet certain minimum safety and performance
The UCCC guarantees standardisation of credit
standards before they can be sold to Australian
contracts across Australia and ensures that credit
consumers.
information is presented in a clear and easyto-understand format. Further, credit providers

are now required to inform consumers of their
rights and obligations in any credit arrangement,
Legal and non-legal

responses
and to truthf ully disclose all relevant information

about the credit arrangement in a written con
Legal responses
tract
The
incorporating
interest
rates,
fees
and
commissions.
Australian
Competition
and
Consumer
Commission (ACCC) enforces mandatory product
In addition to civil remedies for consumers
safety and information standards and bans unsafe
against credit providers who breach the code, the
goods under the Competition and Consumer Act
state can initiate a criminal prosecution. However,
2010 (Cth). The NSW Office of Fair Trading, via the
it remains to be seen how effective this statutory
Fair Trading Act 1987 (NSW), also has an important
consumer protection will be when it comes to
role in monitoring product safety.
the prosecution of powerful multinational
REVIEW 10.12
1 What is credit and why
corporations, banks and/or their directors.
PRODUCT SAFETY
Finally, while the legislation can be enforced,
Under Australian law, product suppliers and manu
one may wonder whether the civil and crimi
facturers have an obligation to ensure that only
is it a major consumer
nal penalties will be sufficient to deter some
safe products are marketed. This is done by:
issue?
corporations from licensee misconduct.
providing clear instructions for use, including
2 Outline the major
Historically, there appears to have been a
benefits to Australian
reluctance by courts to impose criminal sanc
consumers resulting
tions on the board members of corporations,
from uniform national
and a reliance instead on fines that hardly
credit laws.
put a dent in annual profit figures.
warnings against possible misuse

being aware of and meeting industry and man
datory standards
developing product recall plans and procedures,
including strategies for effective communica
tion to the public
Issue 2: Product
certification
incorporating safety into product design

raising the level of safety standards through
product improvement
Product certification is the

process of providing docu
mented assurance that goods
or services have passed perfor
implementing a quality assurance program

which includes consumer feedback
responding quickly to safety concerns that
arise.
mance and quality tests before

they are marketed.
Figure 10.15 A mobile phone

displaying the CE product certification
symbol
252
M A N D AT O RY P R O D U C T S TA N D A R D S
In a globalised world, trade
A standard can be made mandatory by either a
knows no boundaries. Products
statutory regulation or a notice published in the
made in Australia can be sold
Commonwealth Gazette. The notice will refer to a
anywhere on Earth. The same
published Australian Standard and may contain
is true of goods manufactured
variations to that standard. There is a legal require
in countries that dont have the
ment that suppliers must refer to both the gazette
same level of quality assurance
notice and its Standards Australia benchmark.
as
Australia.
Consequently,
it is vital that all products
There are two types of mandatory product

standards in our country:
s Safety standards these are legal require-
benchmark performance testing. It operates
ments and contain safety, labelling and
more than 1000 ofces and laboratories in
design requirements. They are established
110 countries.
when there is a clear risk to consumers, for
s The CE mark afxed to a product indicates
example. childrens nightwear and otation
that it can be legally sold within the European
toys. If these standards are not met, the
Union. It means that a manufacturer
product cannot be sold.
has had to prepare a Technical File to

demonstrate a products compliance with
mation must be given to consumers when
applicable
they purchase specied goods, for example
obtain a product-specic CE marking
label information as to contents and risks
certicate from a body specied by the
for cosmetics and tobacco products, and

label information as to care for clothing
and textile products.
essential
requirements
and
European Union.
s British Standards are produced by the
British Standards Institution (BSI). This
non-prot distributing organisation is incor-
P ROD UCT CERT IF IC AT ION
porated under a Royal Charter and is for-
As mentioned above, consumer goods must
mally designated as the National Standards
pass performance and quality assurance tests
Body (NSB) for the United Kingdom. Pro-
according to an industry code and/or nation-
ducts and services which the BSI certies
ally accredited test standards. Essentially, if
as having met the requirements of specic
a product gains certication, it has complied
standards within designated schemes are
with a set of regulations governing quality and
awarded the above certication mark.
Certication of products indicates their

suitability
for
specied
Figure 10.17 CE
certication symbol
s Japanese Industrial Standards (JIS) speci-
minimum performance standards.

established
Figure 10.16 SEMKO S

certication symbol
s Information standards prescribed infor-
es the standards used for industrial
pur-
activities in Japan. The standardisation
poses. For example, computers and relevant
process is coordinated by the Japanese
soft ware may have to be certied as being
Industrial Standards Committee.
compatible with one another prior to market-
s The Five Ticks StandardsMark is a well-
ing. Further, the certication process has
known product certication symbol used
varying levels of stringency. The greater
both in Australia and internationally. It is
the risk of injury to consumers, the more
recognised as a symbol of safety and
demanding the certication process will be for
quality, proving that the product and its
the manufacturer/supplier.
production processes have been assessed
Once a good is certied, it may be endorsed
to recognised national or international stan-
with a certication mark or logo. As stated
dards. The StandardsMark is more than a
above, in Australia consumer goods (both dom-
manufacturers claim, giving consumers
estic and imported) must meet safety bench-
extra condence in the safety and perfor-
marks prior to sale. Certication or quality
mance of the product they are purchasing.
marks are also regarded as powerful market-
It is available only through certication by
ing tools that build consumer condence.

Some common Australian and internation-
Figure 10.18 BSI

certication symbol
Figure 10.19 JIS

certication symbol
SAI Global.
Certication marks on goods provide the
al certication marks include:
consumer with legal assurance that:
s ETL SEMKO (formerly Electrical Testing
s there is a product certication agreement
Laboratory and now part of Intertek) is
between the manufacturer of a product and
an internationally renowned organisation
an organisation with national accreditation
specialising in electrical product safety and
for both testing and certication
Figure 10.20
StandardsMark
certication symbol
253
the product was successfully tested against a

nationally accredited standard
from financial products and services. It has the

power to conduct random national surveys of
the accredited certification organisation guar
retail outlets to detect non-complying products,
antees that the item tested is identical to the
to investigate allegations by consumers and
one offered for sale
suppliers about non-complying goods, and
the successful test has resulted in a certification
to investigate goods sold by direct marketing
listing, which sets out the conditions of use for
(internet and television). It can conduct recalls,
the certified product and its compliance with
obtain court-enforceable undertakings, and/
the law (de-listing occurs in the case of non-
or initiate prosecutions. It can seek proof of
compliance)
compliance from the supplier or arrange for
the manufacturer is regularly audited by the
the goods to be tested; for example, bicycle
certification organisation to ensure the main
helmets may be tested for impact resistance.
tenance of the original quality standard that
The ACCC also has an educative function and
was employed in the manufacture of the test
provides information and advice to suppliers
specimen
and consumers on the requirements of the
if the manufacturer fails an audit, all goods
mandatory product standards.
certified will be immediately removed from
The Australian Securities and Investment Com
the market with the consumer compensated
mission Act 2001 (Cth) This legislation is
accordingly.
enforced by the Australian Securities and
A certification listing indicates to the consumer
Investment Commission (ASIC). ASIC protects
that:
consumers by ensuring that market partici
the product is manufactured under a certifica
pants act with integrity with regard to contracts
tion that exists between the manufacturer and
for loans, superannuation and other financial
the certification organisation. This means that
products and services.
the certifier will conduct unannounced factory
Various state/territory Fair Trading statutes
audits each year to ensure that the product
whose powers have been absorbed into and/or
being made is still identical to the one that was
mirror the provisions of the Competition and
tested;
Consumer Act 2010 (Cth). In NSW this is the Fair
the manufacturers packaging, literature and

promotional information are authorised to use
the certification mark
listing is a matter of public record and can be
checked for validity.
Trading Act 1987 (NSW).

The Federal Treasury also provides advice to the
government on the consumer law provisions of
the Competition and Consumer Act in order to
promote a safer market for consumers.
In Australia, consumers are protected from

unsafe or substandard goods and services by a
Non-legal responses
number of legal mechanisms:
Individuals may take action through one of the
Part 31-13 of the Australian Consumer Law
independent consumer groups which advocate on
contains provisions specifically addressing
behalf of consumers, lobby Parliament to influ
unsafe products, through mandatory safety
ence legislation, and act as consumer watchdogs
standards and information standards, banning
to highlight unsafe products in the Australian
of unsafe goods, compulsory product recalls,
market.
and warning notices to the public. This statute is

policed by the ACCC, which is responsible for all
areas of consumer protection and safety apart
254
The media can also be a powerful tool for high

lighting and publicising consumer safety issues.

system
Conclusion
Federal and state governments enforce manda-
to ensure that all products that consumers buy are
tory product safety and information standards
safe and meet internationally recognised quality
via the ACCC and the NSW Ofce of Fair Trading.
standards. This is achieved via product certica-
Both organisations play a central role in educating
tion, which demonstrates that a product, process,
businesses and consumers about product safety,
or service satises specied requirements.
and publish publications on safety and standards.
Clearly, without a product certication process
They also conduct ongoing marketplace surveys to
in operation, there would be a very real risk to the
ensure that products continue to meet acceptable
health and safety of Australian consumers, as a
standards. Both organisations can prosecute sup-
consequence of inadequate quality assurance and
pliers who ignore their statutory obligations.
safety measures. Despite this, however, Australia

is one of the most open markets in the world. With
the ACCC and Ofce of Fair Trading have powers
thousands of importers across our country, it is
to remove unsafe goods from sale. This might
very difcult to ensure that unsafe products will
include recalling dangerous products or a public
not enter our market. While we have the requisite
warning of a particular defect.
laws in place to protect consumers, we have to
c as e s tud y
Where problems do occur with a product, both
Bindeez beads
Bindeez Beads (also marketed under the names
after a two-year-old boy and a 10-year-old girl
Aqua Dots, Beados and Pixos) is the name of a
became seriously ill.
product that was awarded Australian Toy of the
As we have seen, the Australian legal system seeks
In Australia, replacement beads were available
Year in 2007. They are plastic beads designed
from March 2008 onwards, once the interim ban
to be assembled into pictures and designs
was lifted. The beads are now manufactured
using a water spray device included with the kit.
using only approved ingredients, with a bitter-
Bindeez beads were manufactured in China for
tasting coating to discourage children from eating
the Australian-owned company Moose Enterprise
them. The name of the product was also changed
Pty Ltd, and were distributed in 40 countries
from Bindeez to Beados, in an attempt to sever
worldwide. 12 million packets, containing more
the connection in peoples minds between the
than 8 billion beads, were sold.
hazardous toy and the new toy.
In 2007, the toy was subject to a product

recall in a number of countries around the world,
including Australia, after it was found that the
Wangqi Product Factory in Shenzhen, China had
used a toxic chemical in place of one that is safe.
Insert AW 1027
When swallowed, the substance metabolises to

form Gamma-hydroxybutyrate (GHB), a sedative
and anaesthetic. The connection between the
illness and the beads was discovered by doctors
at The Childrens Hospital at Westmead, Sydney,
Figure 10.21 Bindeez Beads
255
rely upon consumer watchdogs such as the ACCC,
global marketing technologies are of particular
the media and various industry self-regulatory
interest to lawmakers.
bodies to bring unsafe goods to the attention of the
As soon as a business website becomes oper-
public. Sadly, this sometimes happens only after a
ational, it is marketing to the world. When this
consumer is injured.
is combined with Australian consumers increasing reliance on their credit cards and online
R EVIEW 10.13
1 Summarise your understanding of the
notion of product certication. Explain how
it is advantageous to consumers.
2 Briey outline the major legal responses to
the issue of product safety. How effective
do you think they are?
purchasing, consumer protection becomes problematic. Governments have a vital role to play in
developing appropriate legislative responses that
will facilitate a fair marketplace.
Legal and non-legal responses

L E G A L RE SPO NSES
Marketing innovation can be utilised for bogus

purposes, posing new challenges to Australian law.
Issue 3: Marketing
innovations
For example:
Marketing is a process by which a business creates
s Scammers have the ability to obtain e-mail
a consumer interest in its products. Over time,
addresses and contact millions of internet users
the marketing process has become increasingly
very quickly.
s Many Australian consumers routinely receive

fraudulent overseas offers via the internet.
more sophisticated especially with the advent
s Overseas pyramid selling schemes proliferate.
of e-commerce. Therefore, recent innovations in
s Householders receive overseas phone calls

from dubious investment advisors promoting
suspicious share deals.
s Phishing attacks are becoming quite common.
This is a form of internet fraud that aims to
steal valuable information such as credit card
numbers, user IDs and passwords. It is often
undertaken through the creation of forged
websites that request consumer information.
Often phishing scams rely on placing links in
e-mail messages, on websites, or in instant
messages that seem to come from a trusted
service such as a bank, credit card company, or
social networking site.
s Spam is also becoming commonplace. Spam
is unsolicited commercial messages, sent via
e-mail, SMS, MMS, instant messaging, or any
other form of electronic communication. The
Spam Act 2003 (Cth) made it a civil offence to
use address-harvesting software to construct
Figure 10.22 Phishing scams are becoming

more prevalent in contemporary times.
256
distribution lists of recipients. Despite this, its

use is on the rise by e-marketing companies.
Figure 10.23 Spam is unsolicited commercial messages, sent by e-mail, SMS, MMS, instant
messaging, or any other form of electronic communication.
RESEARCH 10.4
As discussed above, deceptive advertising and
Visit the Australian Consumer and Competition
marketing practices are addressed in both the
Commission at www.accc.gov.au/content/
Competition and Consumer Law 2010 (Cth) and
index.phtml/itemId/815400
the Fair Trading Act 1987 (NSW). The Australian
1 Research the difference between phishing,
Consumer Law strictly prohibits such practices.
mishing and vishing.

2 Outline the legal problems they pose for con
sumer protection bodies such as the ACCC.
3 Discuss how someone who suspects that he
or she has fallen for one of the above scams
might reduce the damage.
The key provisions that relate to marketing can be

summarised as follows:
Section 18 outlaws the deliberate misleading or
deception of consumers.
Section 29 states that it is illegal for suppliers to
make false or misleading representations when
marketing/advertising their goods or services.
Section 32 makes it illegal for suppliers or
As a consequence of these developments, con
merchants to offer gifts and prizes with the
sumer protection agencies such as the ACCC and
intention of not providing the advertised gift.
the NSW Office of Fair Trading regularly scan the
Section 35 makes it illegal to use bait
internet, radio and TV for illegal offers designed to

exploit consumers. They also rely on consumers
reporting deceptive marketing schemes.
advertising.
Section 49 outlaws referral selling; that is,
offering discounts or benefits to consumers in
257
return for introducing other customers to the
ing that originates from foreign countries via
supplier.
theinternet.
Section 50 makes it illegal to coerce consumers

via aggressive marketing practices.
Advances in electronic marketing allow fraud

ulent marketers to communicate easily with their
Section 44 prohibits pyramid selling. It is illegal
victims and to transfer ill-gotten gains across
to sell the right to distribute as opposed to the
borders. The transnational nature of scams makes
actual product.
it very difficult for Australian authorities to catch
Section 39 makes it illegal for suppliers to send

unsolicited credit cards through the mail.
Section 40 prohibits the act of sending
unsolicited goods to a person and then demand
ing payment.
the perpetrators. Further, there are complicated

and problematic questions of jurisdiction and
foreign law.
If marketers in country X use a service provider
in country Y to establish a home page upon which
false claims are made about the safety of their
NON - LEGAL RESPON S E S
goods, where does the act of false representation
There are a number of consumer watchdogs,
take place? Millions of consumers globally can
whose objective is identifying fraudulent market
access that page and purchase online. How do
ing practices and scams. These groups include:
Australian authorities prosecute violations in that
Choice publishes a magazine for consumers
instance? This will be an ongoing challenge for our
and reports on a variety of issues including
domestic law.
deceptive marketing practice.

SCAMwatch is a website operated by the ACCC.
It provides information to consumers and small
businesses regarding the recognition, avoidance
and reporting of scams. For more information
visit www.scamwatch.gov.au.
The Australian Communications and Media
Authority (ACMA) is a government agency res
ponsible for the regulation of broadcasting, the
internet, radio communications and telecom
munications. Consumers can make complaints
to ACMA regarding deceptive marketing and
advertising practice. For more information visit
www.acma.gov.au.
The print and electronic media who report
on questionable marketing activity to provide
the consumer with a greater awareness of the
Conclusion
There will continue to be consumer protection
issues raised by marketing in the information
society. Domestic law has served us well, but
it may prove to be powerless when it comes to
online purchases from foreign marketers. Australia
doesnt exist in a vacuum we are part of a global
marketplace, which employs rapidly changing
technologies. Countries cannot shut down their
borders to keep out an incoming cyber-threat.
Attempts to solve these challenges at the national
or regional levels are simply not sufficient. Cyber
criminals are not bound to geographical locations,
so laws and technological measures can no longer
be limited to national or regional boundaries.
nature and prevalence of scams.
REVIEW 10.14

system
responses to marketing innovation in the
The legal system responds very well to domestic
21st century. Predict how the law may
marketing issues. Australian consumers buying
adapt to the use of the new technology.
products in Australia are clearly protected. The
2 Define the term phishing and explain why
emerging problem, however, relates to market
258
1 Evaluate the effectiveness of the legal
it is a problem.
Legal and non-legal responses
Technology is the application of scientic know-
L E G A L RE SPO NSES
ledge to make life easier for humans. To that end,
The use of technology in the global marketplace
the use of new technology in the areas of compu-
makes it very difcult for Australian law because
ting and global communication is constantly
it has no international jurisdiction, and legislative
changing the level and complexity of interaction
strategies for meeting these challenges are still dev-
between consumers and sellers. Technology has
eloping. However, some effective legal responses
inltrated all levels of consumer transaction ser-
can be utilised to achieve justice for consumers:
vices, from the Automated Teller Machine (ATM) to
s The assets of a foreign online marketer can be
Electronic Funds Transfer at Point of Sale (EFTPOS)
frozen if the Australian legal system has infor-
and electronic home and ofce banking services.
mation about the location of the marketers
The problem facing consumer law is that the
assets. However, the absence of international
various services now available over the internet
treaties and foreign bank privacy laws may make
operate in a less regulated environment. These
it difcult to recover a consumers money.
include e-mail, le transfer capability (FTP),
s When an online marketers assets are within
and most signicantly, Hyper Text Transaction
Australia and their location is known, a court
Protocol (HTTP), which provides the basis of the
can impose an order freezing them for compen-
World Wide Web.
sation purposes.
The web and telephony have facilitated elec-
s Arrest warrants can be issued in Australia
tronic services such as:
and if there is an extradition treaty with the
s internet marketing
foreign country, individuals in that country who
s electronic service delivery
breach our consumer laws can be extradited to
s electronic lodgment services for ofcial submissions, e.g. tax returns
Australia for trial.

s It is technologically possible for government
s branchless banking from home
monitors to seek out and remove fraudulent
s tele-shopping in virtual malls anywhere in the
telemarketing sites from the internet, although
world
s online reservation schemes for entertainment,
travel and accommodation
governments are often reluctant to do this.

s Part 20 of the Telecommunications Act 1997 (Cth)
gives the ACCC the authority to administer the
s online ordering of and payment for goods
Rules of Conduct (contained in that Act)
s telemarketing via telephone
governing dealings with international telecom-
s interactive voice response (IVR) used by sup-
munications operators. While this power has
pliers via answering machine, which provides
limitations, its inclusion in the legislation demon-
automated prompts for simple transactions
strates a recognition of the scope of the adap-
s electronic service delivery (ESD) programs
tations that the law must continue to make.
based on customer convenience, e.g. websites
Problems associated with the use of technology
such as that of the ACCC which provide con-
are not conned to international transactions.
sumer protection advice and service 24 hours a
Consumers making domestic online purchases are
day, seven days a week.
also potential victims of unscrupulous behaviour.
As global marketing and virtual shopping
Issues that arise in respect of online transactions,
become the norm, Australian and international
whether local or across international borders,
law will have to work hard to protect consumers
regardless of whether a product is purchased
s There is a need to ensure fair dealings between
domestically or internationally.
Issue 4: Technology
suppliers and consumers regarding terms and
259
conditions of the sales contract. Where once
responsible for the regulation of broadcasting,
consumers could speak with someone over a
radio and television communications, and the
counter to obtain product information, people
internet.
are increasingly forced to interact via telephone
The Australian Direct Marketing Association
and internet. Not all consumers have the requi
(ADMA) is an industry body for direct marketing
site information technology (IT) skills, and this
companies. It is strongly committed to self-
could lead to exploitation.
regulation. With other industry and consumer
Computer-generated responses to consumer
representatives, it formulated the eMarketing
complaints (for example using IVR) act as
Code of Practice (registered in 2005) to sup
barriers to self-help strategies.
plement the Spam Act 2003 (Cth), which
The increasing trend towards remote purchas
regulates
commercial
electronic
messages
ing can potentially compromise such things as
and outlaws spam. This code stipulates how
product quality, correct installation, adequate
direct marketers can and cant use electronic
demonstration of operation, provision of advice
messages, including email, SMS and other
and after-sales service.
online and wireless applications, with the aim
There is a need to ensure that the identity data
of reducing the volume of spam.
gathered about consumers via their online
The Internet Industry Association (IIA) is a
transactions is protected and peoples privacy
similar organisation for internet service pro
maintained.
viders. It has developed several codes of
Information gathered about consumers can be
practice, notably the IIA Spam Code of Practice
used inappropriately by suppliers for consumer
(registered in 2006), to supplement the Spam
profiling, for example collecting consumer pur
Act 2003 (Cth), explaining its requirements and
chase data for the marketing of like products
how to comply with it.
via telephone, internet or direct mail.
The Australian Securities and Investments
It is important to ensure that biometric data
Commission (ASIC) has the mission of regulat
collected for consumer identification purposes
ing and enforcing laws relating to fairness and
(e.g. fingerprints, retina scans, and voice recog
honesty in financial services, markets and com
nition) are not transmitted digitally to other
panies. In this context, it oversees the regulatory
organisations without the persons consent.
issues posed by developments in electronic
The Competition and Consumer Act empowers the
communication. ASIC is also responsible for
ACCC to enforce the prohibitions contained in that
approving codes of practice in the financial
Act, and as noted above, it also has enforcement
services industries. One of these is the Electronic
powers under Part 20 of the Telecommunications Act
Funds Transfer Code of Conduct, which applies
1997 (Cth). The extension of trade and commerce
to banks and other financial institutions that
into the online environment poses interesting
offer EFT services to their customers.
challenges for thelaw.
260
NON-LEGAL RESPON S E S

system
A number of organisations have a role in ensuring
Generally, the Australian legal system affords con
that technology is not misused. These include:
sumers adequate protection against the misuse of
The Australian Communications and Media
technology provided that emarketers are located
Authority (ACMA) is a statutory authority
within Australian borders. The Competition and
within the federal Department of Broadband,
Consumer Act 2010 (Cth) and Telecommunications
Communications and the Digital Economy. It is
Act 1997 (Cth) allow the ACCC to police the con
sumer law domestically, with an arsenal of criminal

and civil sanctions at its disposal. However, crossborder emarketing raises complex jurisdictional
questions, and the laws evolution in order to
adapt is ongoing. Future consumer remedies may
be dependent upon the existence of multilateral
international treaties.
Conclusion
As can be seen above, the legal system will always

trail behind technological innovation. It is clear
that lawmakers will encounter significant prob
lems into the future as they attempt to ensure that
the use of technology for sales, advertising and
marketing doesnt weaken consumer protection in
the domestic and global marketplace.
E-commerce and e-marketing will continue to
evolve and new technologies will challenge law
enforcers by creating new opportunities for fraud.
Effective consumer protection will require not
only government enforcement, but also private
self-regulatory initiatives on the part of industry
and the combined efforts of government, busi
ness, and consumer groups to equip consumers
with the tools to protect themselves.
REVIEW 10.15
1 Outline the ways in which technology has
affected consumer protection.
2 Evaluate the effectiveness of non-legal
responses to the use of technology in the
advertising of goods and services.
RESEARCH 10.5
Learn about the work of Professor Kevin
Warwick from the University of Reading,
England at: www.kevinwarwick.com,
particularly his work on microchip implants.
1 Explain how this technology may affect
consumers in the future.
2 Outline legal concerns that may arise as a
consequence of microchipped consumers.
Figure 10.24 New technologies will continue to challenge law

enforcers by creating new opportunities for fraud.
261
C h a p t e r s u m m a ry
C h ap t e r s u m m a r y t a s k s
262
The need for consumer protection grew from

the operation of caveat emptor in laissez-faire
economies.
Contract law attempts to define the
circumstances under which parties who make
promises to each other are legally bound.
The essential elements of a contract
are intention to be legally bound, offer,
acceptance and consideration.
Implied terms can provide protection to
consumers from unjust contracts.
The Competition and Consumer Act 2010
(Cth) (formerly the Trade Practices Act 1974
(Cth)), and the Fair Trading Act 1987 (NSW)
prohibit sellers knowingly deceiving or
misleading consumers.
Occupational licensing and practising
standards may come from either industry selfregulation or from state regulation.
1 Outline the essential elements of a contract.

2 List three ways a consumer can seek a remedy
for injury or loss suffered as a result of
defective goods.
3 List the major statutory provisions that govern
marketing and advertising.
4 Briefly outline the main avenues available to
consumers seeking redress.
5 Explain why both marketing innovations and
technology pose challenges for consumer
protection law.
Consumer remedies are available through

tribunals, courts, self-help, government
agencies, and industry organisations.
The Uniform Consumer Credit Code
standardises credit transactions throughout
Australia.
Product certification guarantees that goods
have passed performance and quality
assurance tests.
Advances in electronic marketing innovation
have allowed fraudulent marketers to exploit
consumers via internet scams.
The use of technology in the global
marketplace makes it problematic for
Australian law due to jurisdictional questions.
E xt e nd ed res p on s e q uesti ons
1 How effective is state and federal legislation

in preventing manufacturers from making
false claims about a product?
2 Discuss the types of assistance offered by
the various non-government consumer
organisations. In your answer, consider issues
of access, awareness, resources available to
the organisation, and effectiveness of the
solutions offered.
3 Evaluate the effectiveness of industry selfregulation in protecting consumers as
compared with government regulation.
4 Discuss the role of competition in the
Australian and global economies. In your
answer, consider the relationship between
a competitive marketplace and consumer
protection.
5 Phishing scams rely on:

a placing links in e-mail messages, on
websites, or in instant messages that
seem to come from a trusted service such
as a bank, credit card company, or social
networking site
b downloading advertisements that seem to
come from a trusted source such as a shop
or social networking site
c sending instant messages that seem to
come from a trusted service such as a bank,
credit card company, or social networking
site
d inserting links in instant messages that
seem to come from a trusted service such
as a bank, credit card company, or social
networking site
M ul ti p l e c hoi ce qu e s ti o n s
1 Merchantable quality has been achieved if

goods:
a are t for purpose
b t the description of the manufacturer
c t the description in the advertisement
d t the description of the seller
2 Caveat emptor means let the:
a seller beware
b manufacturer beware
c buyer beware
d producer beware
3 Compliance with consumer law is
guaranteed by:
a statutory controls
b the cost of goods and services
c the goodwill of the supplier
d the honesty of the supplier
4 Product certication is the process of:
a ensuring that all goods sold in Australia
have been certied
b certifying that a product has passed
performance and quality assurance tests
c ensuring that all goods are labelled
correctly
d certifying that a product has undergone
government inspection

your response.
263
264
The role of consumer law in encouraging

cooperation and resolving conflict
Compliance and non-compliance in

consumer law
To ensure that consumers and suppliers

operated on an equal footing, the laissezfaire approach to the marketplace, along
with the principle of caveat emptor, had to
be modified or superseded by a greater
emphasis on state regulation.
Contract law ensures that promises made by
consumers, manufacturers and suppliers are
kept.
To constitute a legally binding contract,
an agreement must have the essential
elements of intention, offer, acceptance and
consideration.
Self-help remedies can be a means of
achieving redress without costly litigation,
and is more likely to encourage cooperative
communication between the consumer and
the supplier or manufacturer, rather than
conflict.
Cooling-off periods inserted into contracts
allow consumers to rethink their position and
withdraw without penalty.
In an economy increasingly dominated by
e-commerce, Australian direct marketers have
established a code of conduct, which results
in less conflict between buyers and sellers.
Despite this, however, the global nature of
the marketplace makes it increasingly difficult
to resolve such conflict.
A wide range of federal and state legislation

operates to ensure that buyers and sellers
comply with the law. Sanctions are imposed
on parties who fail to do so.
Express and implied terms of contracts
guarantee that all goods sold are of
merchantable quality, match their description,
and are fit for purpose.
The Australian Consumer Law makes it an
offence for a supplier or manufacturer to
deliberately mislead or deceive a consumer.
Any action by unscrupulous suppliers is
punishable by law. The statutes seek to
protect vulnerable consumers, especially with
regard to unconscionable contracts.
Non-statutory mechanisms such as industry
self-regulation and media scrutiny will
continue to have a significant role in ensuring
compliance with consumer law.
Laws relating to consumers as a reflection of

changing values and ethical standards
The fact that caveat emptor (let the buyer

beware) no longer governs contracts of sale
demonstrates that societal values and ethical
standards have changed.
Consumer law reflects community awareness
that modern markets are extremely complex
and consumers need to be protected by a raft
of legal regulations.
The Office of Fair Trading (NSW) and the
ACCC (Commonwealth) are consumer
watchdogs whose activities implicitly promote
ethical standards in all consumer dealings.
The Australian legal system endeavours to
balance the rights and values of individuals
against those of the community at large.
Ethical standards are reflected in
occupational licensing schemes, which ensure
that unqualified and unscrupulous individuals
cannot legally provide services to consumers.

responses in achieving justice for consumers
Consumer laws are constantly undergoing

reform so that consumers are provided with
uniform protection.
The Trade Practices Act 1974 (Cth) and
the Australian Securities and Investment
Commission Act 2001 (Cth) were both
amended in 2009 to standardise the
regulation of consumer credit across the
entire nation. The Uniform Consumer Credit
Code guarantees that consumers have the
same rights to redress no matter where they
live in Australia.
The ACCC monitors e-marketing and provides
consumer protection advice and service
delivery 24 hours a day, seven days a week.
Further, it advises the government in areas of
consumer law such as telemarketing.
The Spam Act 2003 (Cth) outlaws the
sending of unsolicited commercial electronic
messages by e-mail, instant messaging, SMS
and MMS.
Two federal acts governing consumer

protection are the Competition and
Consumer Act 2010 (Cth) (formerly known
as the Trade Practices Act 1974 (Cth)) and
the Australian Securities and Investments
Commission Act 2001 (Cth). At state level,
there is the Fair Trading Act 1987 (NSW) and
the Sale of Goods Act 1923 (NSW).
Occupational licensing protects consumers
by ensuring that only licensed individuals
can provide services. It is a state/territory
responsibility. Self-regulating professional
bodies such as the Australian Medical
Association and the Law Society of NSW
perform much the same role.
The rise of the global marketplace and
e-commerce will continue to be problematic
as the state seeks to remedy consumer
injustice. As more Australians purchase goods
and services online from foreign suppliers,
the jurisdiction of the above statutes will
be keenly tested, especially with respect to
fraud and the provision of after-sales service,
guarantees and warranties.
Effective consumer protection requires not
only legislation against fraud and deception,
but also initiatives resulting from the
combined efforts of government, business,
and consumer groups.
The role of law reform in recognising the

rights of consumers
265
CHAPTER 11
Option 2: Global
environmental protection
O pt i o n 2 :
Global
e n v iro n m e n t a l
pro t ec t i o n
Principal focus
Through the use of contemporary examples, students investigate the effectiveness
of legal and non-legal processes in promoting and achieving environmental
protection.
25% of course time

s the impact of state sovereignty on international cooperation and the resolution
of conict in regard to environmental protection
s the impact of changing values and ethical standards on environmental protection
s the role of law reform in protecting the global environment
s the effectiveness of legal and non-legal responses in protecting the environment.
At the end of Chapter 11, on pages 308309, you will nd a summary of
the themes and challenges relating to global environmental protection. The
summary draws on key points from the text and links them to each of the themes
and challenges. This summary is designed to help you revise for the external
examination.

The HSC examination will be a written paper worth a total of 100 marks. The paper
will consist of three sections.
Questions relating to Part III of the syllabus Options will appear in Section III
of the examination. There will be seven extended response questions, one for each
Option offered in the syllabus. Students will be required to answer two of these
questions, each relating to a different option they have studied.
booklet pages).
266
biodiversity
built environment
codication
convention
customary international law
declaration
ecologically sustainable
development (ESD)
enumerated powers
external costs
free trade
globalisation
hard law
instrument
intergenerational equity
international conference
IM PORTAN T L EGIS L AT ION
Environment Protection and Biodiversity Conservation

Act 1999 (Cth)
Environmental Planning and Assessment Act 1979 (NSW)
Protection of the Environment Operations Act 1997
(NSW)
INTERN AT ION AL T R EAT IES AN D P RO TO C O L S
o dd l a w
Convention on Wetlands of International Importance

(1971) (Ramsar Convention)
United Nations Convention on International Trade in
Endangered Species of Wild Fauna and Flora (1975)
(CITES)
United Nations Convention on the Law of the Sea
(1982) (UNCLOS)
Convention on the Conservation of Migratory Species
of Wild Animals (1983) (CMS)
Vienna Convention for the Protection of the Ozone
Layer (1985) and Montreal Protocol
All sovereign states have the right to join international

bodies that have an impact on them in some way. The
International Convention for the Regulation of Whaling
(ICRW), signed in 1946, established the International
Whaling Commission and aims to conserve whale
stocks. In 2002, Mongolia exercised its sovereign
right and became a party to the ICRW. Mongolia is
s describe the interrelationship between the legal

system and society in relation to global environmental
issues and the subsequent responses to global
s communicate legal information using well-structured
and logical arguments
s evaluate the effectiveness of legal and non-legal
responses with respect to the global environment
s analyse different perspectives on contemporary issues
concerning global environmental protection.
intragenerational equity
locus standi
multilateral treaty
nation-state
natural environment
non-government
organisations (NGOs)
observer status
pollution
precautionary principle
protocol
ratication
residual powers
soft law
sovereignty
O p t i o n 2: G lo b al env iro nm e ntal p ro te c tio n
ke y te r m s
rel evant l aw

s identify the key legal concepts and terminology that
relate to global environmental protection, especially
the need to protect the global environment
s describe the key features of the relationship between
Australian and international law and understand the
effect of international law on sovereign states
s discuss the effectiveness of the legal system in
addressing global environmental issues
s explain the role of the law in encouraging cooperation
and resolving conict, as well as its ability to respond
to the dynamic nature of global issues
United Nations Convention on Biological Diversity

(1993) and Cartagena Protocol on Biosafety
United Nations Framework Convention on Climate
Change (1994) and Kyoto Protocol
SI G NI FI C A NT C A SE S
Australian Conservation Foundation v The

Commonwealth (1980) 28 ALR 257
Murphyores v The Commonwealth (1976) 136 CLR 1
Commonwealth v Tasmania (1983) 158 CLR 1
Trail Smelter Case (United States v Canada) 3 RIAA
1905 (1941)
Certain Phosphate Lands in Nauru (Nauru v Australia)
[1992] ICJ 2 (26 June 1992)
Nuclear Tests (Australia v France) [1974] ICJ 4 (20
December 1974)
Nuclear Tests (New Zealand v France) [1974] ICJ 3 (20
December 1974)
Case Concerning the GabckovoNagymoros
Project
(Hungary/Slovakia) [1997] ICJ 1 (25 September 1997)
landlocked, without any direct ocean access, but has

been a keen supporter of Japans ambitions to open
up whaling. In fact, Mongolia has voted with Japan
on every issue relating to whaling, but it strongly
denies any Japanese inuence. For an NGOs view on
this situation go to www.seashepherd.org/news-andmedia/editorial-060626-1.html
Cha pter 11: Option 2: Globa l environmenta l protecti on
267
T h e n a t u r e o f g l oba l
e nv i r o n m e n t a l p r o t ec t io n
The concept and scope of
Modern efforts to protect the natural environment were rst seen in 1863 in England, when the
rst Alkali Act was passed to regulate the emission
Since the Industrial Revolution, the environment
into the air of hydrochloric acid, a by-product of
has largely been seen as a resource to be exploited.
the process for manufacturing alkali (sodium car-
For generations, capitalists, industrialists and dev-
bonate), which was used in manufacturing glass
elopers were able to use the land, the waterways
and other products. The Act set dilution standards
and the living organisms and non-living materials
for what was emitted and appointed inspectors to
in any way they saw t. Decisions as to the use of
enforce the law.
prot
nancial gain; money
remaining after
expenditures have been
subtracted from total
income
these resources were driven by prot, with little
Initially, environmental laws were national or
or no regard for the environmental consequences.
local. It was only in the latter half of the 20th century
Neither businesses nor governments gave much
that nation-states recognised the need for a coordi-
thought to the external costs (externalities) of
nated approach. As businesses began to operate on
economic activity.
an international scale, environmental problems also
external costs
(externalities) the
effects of an activity,
such as the production,
transport and sale of
goods, which affect
persons who are not
directly involved in the
activity and are not paid
for by those who are
involved, such as the
producer
A persons entitlement to use his own land
became globalised. These new issues for example
under the common law meant that the effects of
acid rain, the hole in the ozone layer, the depletion of
the use to which the land was put only became
sh stocks, and climate change could not be
an issue after damage had occurred. A party who
adequately dealt with at a national level. In addition,
suffered harm as a result could bring a tort action
the afuence of industrialised nations has been built
(e.g. nuisance, negligence or trespassing) to seek
on the use and exploitation of the resources as well
compensation. In other words, the law was used
as the work force of developing countries. Poverty,
not to prevent environmental damage, but only to
population growth and the accelerated pace of indus-
act after the damage was done, and applied only
trial development in Third World countries have all
to individual persons welfare and interests. Such
contributed to the environmental challenges faced.
an approach is not compatible with a long-term
This chapter will examine the development of
view of consequences as they apply to present and
environmental law at the international level and
future communities.
evaluate its effectiveness.
Figure 11.1 In a legal sense, the environment encompasses both the natural and built environments.
268
O p t i o n 2: G lo b al e nv iro nm e ntal p ro te c tio n

Figure 11.2 The unique ecosystem around the town of 1770, Queensland one of a number of
tourist destinations where the local community is trying to balance the benets of development
against potential negative environmental effects.
Interests with respect to

more holistic view of components, causes and

effects. The denition of environment in s 528 of
the Environment Protection and Biodiversity Conser-
Definitions of environment
vation Act 1999 (Cth) clearly illustrates the evolution
How the law denes and perceives the environ-
of what constitutes the environment. In addition,
ment will shape the attitude of legislative and
this denition encompasses what decision-makers
judicial decision-makers towards environmental
need to take into account when deciding on matters
protection at all levels. In a legal sense, the environ-
that have environmental implications.
ment can be considered in terms of the natural
The denition of the environment in the Act
environment and/or the built environment. In
considers:
some ways, these two elements of environmental
a ecosystems and their constituent parts, inclu-
law represent competing interests.

Current legal interpretations of what constitutes
the environment reect a gradual change in social
attitudes. This is evident in both Australian and
ding people and communities

b natural and physical resources
c the qualities and characteristics of locations,
places and areas
international law. No longer does the law focus on
d the heritage values of places
the rights of landowners, as was the case under
e the social, economic and cultural aspects of a
common law. Laws are now designed to take a
thing mentioned in paragraph (a), (b) or (c).
natural environment
all of the elements
that surround and
inuence life on Earth,
including atmospheric
conditions, soil,
plants, animals and
micro-organisms, the
water cycle, and the
systems in which these
elements interact
built environment
all of the buildings,
transport routes and
infrastructure, parks,
and other surroundings
that have been
made by people and
constitute the setting
for human activities
holistic
taking into account
all aspects; looking
at the whole system
rather than just specic
components
269
ca s e s p a ce
Australian Conservation Foundation v The Commonwealth (1980) 28 ALR 257

The case concerned a
Act, which was at that time the
large. In other words, a party
challenge by the Australian
Environment Protection (Impact
must be likely to gain some
Conservation Foundation (ACF),
of Proposals) Act 1974 (Cth).
advantage, other than the
an organisation with the aim of
satisfaction of righting a wrong,
protecting the environment.
standi because it was held
upholding a principle or winning
The ACF challenged the
to lack a special interest in
a contest, if his action succeeds,
statutory validity of federal
the subject matter. Individual
or to suffer some disadvantage,
Ministers decisions to approve
or special interest in the
other than a sense of grievance
a development proposal for
subject matter was the test of
or a debt for costs, if his action
a resort and tourist area near
standing to seek a declaration
fails. Instead, the ACF was held
Rockhampton, Queensland. It
or injunction. The party would
to have a mere intellectual or
sought declarations that the
have to be affected to a greater
emotional concern about the
decisions did not comply with
degree or in a signicantly
environment.
the requirements of the relevant
different way than the public at
locus standi
a place for standing;
also standing: a
requirement that a
person or group have
a sufcient interest in
the subject matter in
order to be permitted
to bring an action
270
The ACF was denied locus
Standing and interests
(Cth) extends standing to persons who have been
Since the decision in ACF v The Commonwealth,
involved in conservation activities for the past two
discussed in the Case Space above, a more liberal
years or more, and to organisations established
approach to standing has been taken by the lower
with the purpose of protecting the environment
courts. In Australian Conservation Foundation &
which have been similarly involved for the past
Anor v Minister for Resources & Anor (1989) 76
two years or more (ss 475(6) and (7); s 528).
LGRA 200, in which the ACF challenged a decision
While environmental issues affect everyone,
to grant an export licence for woodchips from
the role of state, federal and international law in
state forests, the Federal Court held that the ACF
protecting those interests is not a clear-cut one.
satised the special interest test it was a national
The different perspectives of people, shaped by
organisation, established with government nan-
their individual values and ethics, ensure that
cial support for the specic purpose of environ-
conict and heated debates inevitably arise when
mental protection. Moreover, logging was not a
discussions turn to prioritising environmental
local concern, but was one of the major environ-
issues. Citizens from Pacic nations under threat
mental issues of the present time.
from rising sea levels, those people suffering from
At state level, the Environmental Planning and
more extreme weather patterns, loggers losing
Assessment Act 1979 (NSW) grants open standing
their family livelihood due to forest conservation,
to anyone seeking an injunction to remedy or pre-
people paying increasing energy costs and
vent a breach of the Act (s 123). Sections 252 and
indigenous communities losing their traditional
253 of the Protection of the Environment Operations
ways of life because of expanding urbanisation
Act 1997 (NSW) similarly grant open standing
will all have different views on how environmental
where the breach in question involves harm to the
issues should be managed.
environment. Although there remain restrictions
Global environmental protection requires an
on standing at federal level, the Environment
interdisciplinary approach involving science, world
Protection and Biodiversity Conservation Act 1999
politics, social justice, international diplomacy,
international priorities. It will require a global,

coordinated and holistic approach to ensuring that
the planets capacity to support its inhabitants can
be maintained indenitely.
REVIEW 11.1
1 Explain why environmental protection was
not initially a major concern for the law.
2 Dene environment and distinguish
between two ways it can be understood.
Give examples of conicts that can arise
between the interests representing these
two categories.
3 Explain why global environmental
protection requires a holistic approach.
4 Explain what is meant by locus standi in a
challenge to the validity of a statute.
5 Justify a broader conception of locus standi
in relation to environmental issues.
Figure 11.3 The customs of many indigenous peoples

around the world have evolved in harmony with the natural
environment. Today, many indigenous cultures are in danger
as a direct result of environmental degradation.
economic reforms and changes in national and
T h e deve l op m e n t o f g l oba l
e nv i r o n m e n t a l l aw
Local activism and
domestic legislation
own bans. Another example is state and federal

government rebates for insulation of houses, rainwater tanks and solar panels.
Localised issues generally form the basis for com-
Any event that has an adverse effect on a per-
munity reaction and pressure. The phrase Think
sons day-to-day life can prompt him or her to learn
globally, act locally has been used frequently in
more about the consequences of environmental
the context of environmental activism; it suggests
degradation, and to take action. As a result of
the power of grassroots initiatives undertaken
growing awareness of environmental issues,
with a view to the health of the whole planet.
individuals have joined forces to form lobby or
This theme is evident in trends such as the use
pressure groups to educate others and to push
of fabric bags to replace plastic shopping bags. In
governments into taking action. A prominent
an example of legislation passed in response to
public issue in the 1970s was pollution. Some of
calls for government support of individual com-
the major disasters around the world involving
mitment and efforts, South Australia was the rst
pollution are shown in the timeline on p. 274.
Australian state to ban plastic bags, through its
In response to the public concerns, domestic
Plastic Shopping Bags (Waste Avoidance) Act 2008. A
legislation
of
industrialised
nations
in
the
number of municipalities have also imposed their
1970s, including Australia, focused on pollution
pollution
environmental
damage caused by
the discharge or
emission of solid,
liquid or gaseous
materials into the
environment
271
prevention and control. Much of Australian state

and federal legislation relating to the environment
Recent interest in food miles has prompted
falls into two general categories:
consumers to try to buy and eat only locally
s Environmental impact assessment a process
grown produce, and some restaurants and
for looking at and evaluating the environmental
shops have responded to these concerns. The
effects of proposed activities that are likely
term was coined by Dr Tim Lang, professor
to affect the environment in signicant ways.
of food policy at Londons City University,
Most of the procedural requirements for
in the 1990s. It measures the distance that
environmental impact assessment at both state
agricultural produce travels between the time
and federal level are contained in legislation
it is harvested and the time it is consumed,
regulating the use of land (planning laws), e.g.
as a way of measuring its impact on the
Environmental Planning and Assessment Act 1979
environment in terms of carbon emissions.
(NSW), or in legislation regulating protection of
Research the food miles movement.
the environment generally, e.g. Environment
1 Summarise the arguments for and against
Protection and Biodiversity Conservation Act 1999
the effectiveness of eating only locally
(Cth), although there is also separate legislation
grown food as a means of reducing damage
in Victoria and the Northern Territory.
to the environment.
s Pollution control legislation setting standards

international
conference
a forum held for the
purpose of debate
and agreement among
nation-states
multilateral treaty
an international
agreement involving
three or more parties
convention
another term for
a treaty: that is,
an international
agreement between
parties who are subject
to international law
(i.e. nation-states
but also international
organisations such as
the United Nations and
its bodies)
R ESEAR CH 1 1 . 1
2 List other factors besides distance travelled
for the quality of air, water and soil, identifying
that critics say should be taken into
activities that can potentially cause pollution,
consideration.
and restricting these activities, for example by
3 Critically analyse possible consequences
imposing conditions and/or requiring a permit
if legislation were passed to support the
or approval before they can be carried out.
food miles movement.

Some articles that could be used as starting
International conferences
and treaties
points can be found at:

s www.theage.com.au/news/national/
this-meal-has-travelled-all-over-the-
The 1970s and 1980s also saw a number of international conferences and multilateral treaties
world/2006/05/06/1146335969069.html
s http://news.nationalgeographic.com/
on the environment in response to global threats,
news/2008/04/080422-green-food.html
especially highly visible ones such as marine pollu-
s www.theage.com.au/environment/food-
tion. For example, the United Nations Convention
miles-concept-rubbished-20091204-kay0.
on the Law of the Sea was the result of the third UN
html
Conference on the Law of the Sea (UNCLOS),

which took place from 1973 to 1982. It was a
codication
the spelling out
of obligations in
legislation (domestic
law) or in a treaty
(international law)
unique treaty in that it dealt comprehensively with
The UN Conference on the Human Environ-
a wide range of issues regarding the sea, unlike
ment, which was held in 1972 in Stockholm,
previous conventions, and was global in its reach.
Sweden, was the rst major conference to address
It was a codication of existing customary
broadly dened environmental issues. It was
international law, and took the place of four
motivated primarily by concern about regional
customary
international law
a general practice of
law, which is followed
by nation-states
because they view it as
obligatory and legally
binding
previous treaties of 1958 governing the rights and
pollution that crossed national boundaries, parti-
responsibilities of nation-states with respect to the
cularly acid rain in northern Europe. Subsequent
sea and its resources. Part IV of UNCLOS deals
conferences following on from Stockholm have
specically with environmental protection, which
included the 1992 UN Conference on Environ-
had not previously been a central element of
ment and Development (UNCED) in Rio de
international law with respect to the seas.
Janeiro, Brazil (the Rio Conference) and the
272
1976 Seveso disaster, Milan, Italy

An explosion in a chemical plant in
the town of Seveso outside Milan
released a toxic cloud containing
tetrachlorodibenzoparadioxin, a
chemical used in the manufacture
of pesticides and herbicides
and commonly known as dioxin.
Downwind from the factory the
dioxin cloud contaminated a
densely populated area, killing
more than 3000 animals within
a few days and necessitating
the slaughter of 70 000 more to
prevent the chemical from getting
into the food chain. While there
were no human fatalities directly
resulting, more than 200 people
were treated for dioxin poisoning
and various illnesses and increased
incidence of cancers have been
attributed to the disaster.
1984 Bhopal disaster, Bhopal,
India
A gas leak caused the Union
Carbide Companys pesticide
plant to discharge methyl
icocyanate, exposing half a million
people to the poisonous gas.
Estimates of the death toll vary,
but at least 20003800 people
died immediately with another

15 00020 000 premature deaths
resulting in the subsequent 20
years. Twenty-ve years later, the
site was still contaminated, and
the city has an unusually high
incidence of birth defects and
diseases including cancers and
diabetes.
1986 Chernobyl disaster,
Chernobyl, Ukraine
A nuclear reactor exploded at the
Chernobyl Nuclear Power Plant,
killing 31 people immediately.
Over 5000 square kilometres were
evacuated and a radioactive cloud
was detected all across Europe.
Despite high rates of cancers,
mutations and blood diseases in
the years following the accident,
the total death toll and sickness
rates are disputed, because there
have been no comprehensive,
coordinated studies. Hundreds
of thousands of people were
evacuated, and records were lost
after the break-up of the Soviet
Union.
1989 Exxon Valdez oil spill,
Alaska, USA
The Exxon Valdez oil tanker
ran aground in Prince William
Sound, spilling approximately 40
million litres of crude oil, killing
as many as 500 000 seabirds,
and devastating sh and otter
populations in the area.
1993 Braer disaster, Shetland,
Scotland
The oil tanker MV Braer ran
aground on the southern tip of
Shetland and spilled 94 million
litres of crude oil into the North
Sea, killing more than 30 000 birds
and taking a severe toll on marine
mammals and the shing industry.
Even more serious consequences
were averted by severe storms

in Scotland, which dispersed the
oil, as well as the characteristics
of the oil it was carrying, which is
lighter in weight and more easily
biodegradable than other types.
2000 Baia Mare cyanide spill,
Romania
Cyanide solution, used to extract
gold from waste, is carried by pipes
from the mine at Baia Mare to two
storage reservoirs. One of these
burst a wall, releasing 130 million
litres of water contaminated with
cyanide and heavy metals into the
Somes River and subsequently into
the Tisza River. Fish populations
were drastically affected, with all
acquatic life killed on one stretch
of the Tisza.
Timeline of major environmental disasters
1952 London smog disaster,

London, England
The unusual cold in London in
the winter of 195253 meant that
large numbers of people travelled
by car rather than walking,
and required additional coal
combustion for heating of homes.
The copious emissions of black
soot, sticky particles of tar and
gaseous sulphur dioxide resulted
in the heaviest winter smog
episode in history. The smog killed
approximately 12 000 people,
mainly children, elderly people
and people suffering from chronic
respiratory or cardiac disease.
2005 Jilin chemical plant

explosions, Jilin Province, China
A series of explosions at a
petrochemical renery resulted in
the release of benzene and other
poisonous chemicals into the
Songhua River. Five people were
dead and 70 injured. The toxic
plume of chemicals in the river
shut down drinking water supplies
for millions of people in China and
Russia for several days.
2008 Kingston Fossil Plant coal y
ash slurry spill, Tennessee, USA
Over four billion litres of coal y
ash sludge, a waste by-product
of coal combustion, was spilled
when a holding dam broke. Twelve
homes were completely covered
and 42 others damaged, as well
as roads, a rail line, gas and power
lines and a water main. In addition
to sh killed, mussels and other
food sources for riverine birds and
mammals were contaminated. A
year later, clean-up was still not
completed
273
2002 World Summit on Sustainable Development
are bound by it. In many other countries, inclu-
in Johannesburg, South Africa (the Johannesburg
ding Australia, a treaty does not have a direct
Summit). Later in this chapter, we will look at
effect unless and until it is incorporated into
these conferences in greater detail, as well as
domestic law by the enactment of a statute. There
other conferences which focused on specic
are many domestic statutes that implement and
instrument
a document by which
some legal objective
is achieved; may be
binding (e.g. statutes,
treaties and deeds)
or non-binding (e.g.
guidelines, declarations
and recommendations)
issues, and at the international instruments that
reect Australias international treaty obligations.
ratication
a nations formal
declaration of consent
to be bound by a treaty
and to give it domestic
effect
implementation.
are formulated as a result of a conference (e.g. the

United Nations Framework Convention on Climate
was one of the three Rio Conventions that came
out of the Rio Conference in 1992) and that may
prompt subsequent conferences to discuss their
In some countries, a treaty that the nation has
signed and ratied automatically becomes part of
legal links
Change (the Climate Change Convention), which

A list of Commonwealth Acts
pertaining to the natural and
built environments is available at
www.environment.gov.au/about/
legislation.html
the domestic law of that country, and its citizens
The need for globa l

globalisation
the ongoing
integration of regional
economies, societies
and cultures brought
about by the removal
of restrictions on
international trade,
travel and mass
communication
free trade
trade between
countries that is
subject to few or
no government
restrictions on imports
or exports
274
Environmental impact
of consumption and
development
dards in all countries is another factor in the
Human activities have global dimensions. Dev-
operation, providing consumers with the goods
eloping countries whose economies depend on the
they desire from other countries, but it also
export of primary natural resources (such as metal
multiplies the problems associated with the
ores) or agricultural products (for food, housing
production of those goods. With the massive and
and other uses) have been less likely to regulate the
increasing demand for computers, televisions,
methods and extent of production. For example, 1
and mobile phones, the United Nations Environ-
million hectares of forest are cleared per year in
ment Programme estimates that 50 million tonnes
Indonesia the highest rate of deforestation on the
of electronic waste containing lead, cadmium,
planet for illegal logging and to convert the land
mercury and other hazardous substances is
for palm oil plantations. Palm oil is found in 40
discarded each year, and that much of this waste
per cent of the products on supermarket shelves in
is being dumped in Asia and Africa.
The constant demand for higher living staninadequacy of government oversight of industry.
Globalisation not only gives markets worldwide
Australia and other industrialised countries. The
The reasons for the links between development
effects of deforestation include the removal of a
and environmental degradation are complex.
major means by which carbon dioxide buildup
Globalisation and free trade have been accom-
in the atmosphere is minimised, as well as the
panied, in many countries, by policies encouraging
addition of even more greenhouse gases when the
economic growth that is, increases in a countrys
trees are burned.
capacity to produce goods, measured by the
amount of money spent on all of the goods
themselves against the environmental movement,
produced by that countrys residents. Without
arguing that the science is by no means settled.
regulation, production of goods is usually highly
Along with markets and economies in the
energy-intensive, uses enormous amounts of
21st century, detrimental environmental effects
natural resources, and produces vast quantities
are also global. Pollution, global warming, and
of waste.
ecological catastrophes causing massive damage
A globalised economy also has indirect effects.
to an ecosystem or the broader environment are
For example, countries with less oversight of
not conned by national boundaries. However,
environmental and safety standards enjoy a
globalisation has not extended to worldwide
competitive advantage over countries with more
political integration. Hence, there is a need for
regulation. A country with lower standards can
international environmental law.
produce the same item at a cheaper cost, giving
Challenges for international law include the
companies an incentive to relocate their factories
rapidity of technological changes, as well as the
to those countries.
difculty of integrating and reconciling environ-
Businesses reluctance to accept measures
mental protection with measures that could
designed to mitigate negative effects of industry
hinder economic growth. Both international and
on the environment, and in turn governments
domestic law need to be dynamic and to some
reluctance to introduce those measures, can
extent holistic, in order to take account of political
therefore be traced to economic growth pressures.
changes and new issues in human rights. For
In the public arena, they have found powerful
example, the Intergovernmental Panel on Climate
allies in climate change sceptics who have pitted
Change has estimated that by 2050 there could
Figure 11.4 Palm oil fruit (left), is used to produce palm oil, which is found in 40 per cent of supermarket products in
Australia. Indonesia has the highest rate of deforestation in the world, clearing 1 million hectares of land per year for palm
oil plantations and causing signicant damage to the natural environment.
275
be 150 million environmental refugees that

is, people forced to relocate because of environ
mental disasters yet there is no recognition for
Interdependence and
cooperation
such people under the 1951 UN Convention Relating
Nations must cooperate if there is to be a com
to the Status of Refugees of 1951, as they are not
prehensive response to the need for global environ
fleeing persecution.
mental protection. While the environmental issues

faced by different geographic and cultural commu
nities are complex and individual, global environ
REVIEW 11.2
1 Explain the way in which international
treaties are binding, and what parties
they bind.
2 List the benefits and drawbacks of
industrial development and economic
growth. Discuss.
3 Explain how globalisation contributes to
environmental degradation.
Give examples.
RESEARCH 11 . 2
ecological footprint
a measure of
human demand on
Earths ecosystems,
comparing human
demand with the
planets ecological
capacity to regener
ate; a persons impact
on the planet as a
result of his or her
lifestyle
mental problems are sweeping and just as grave.

The situation concerning the overexploitation
of the worlds fishing stocks illustrates this. By
the early 1990s, thirteen of the worlds seventeen
global fisheries were in serious decline. This
represents a threat not only to the maintenance
of a valuable food source and the livelihood of the
fishing industry and those who depend on it, but to
the network of ocean ecosystems. A decision by a
group of countries to limit fishing in a certain fish
breeding ground would have a negligible effect if
even one country continued to exploit that area.
At the 2002 Earth Summit in Johannesburg, 189
To investigate the need for global
countries committed to creating a series of pro
environmental protection students can:
tected marine areas by 2012, and to restrict fishing
1 Research the ecological footprint model
until stocks had recovered. The purpose of the
on the internet (www.footprintnetwork.
protected areas was to provide nurseries for species
org/en/index.php/GFN/page/personal_
such as cod, herring and tuna, and a deadline of
footprint/). Calculate your own footprint
2015 was set for the restoration of fish species.
and work out how many planets are
However, by 2010, it was clear that the objectives
needed if everyone on Earth lived a
had not been accomplished: many species includ
lifestyle like yours.
ing several types of shark and the bluefin tuna were
2 Download the Story of Stuff (www.

storyofstuff.com/) by Annie Leonard and
experiencing critically low numbers.

Another international agreement, a meeting
describe the impacts of our consumer
of the Convention on the Conservation of Migratory
society on the environment. What does
Species of Wild Animals (CMS) in February 2010,
Annie Leonard suggest as a way to a
resulted in 113 countries agreeing to the inclu
better future?
sion of seven species of migratory shark on a

threatened list, and prohibition of their fishing.
Another means of halting the commercial trade in
l eg a l l in ks
certain fish is to have them listed as endangered

For insight into the scientific
aspects of many global
environmental problems go to
www.enviroliteracy.org
under the UN Convention on International Trade

in Endangered Species of Wild Fauna and Flora
(1975) (CITES). It may be the case that measures
such as plans of implementation need to be
supplemented by additional agreements, and with
binding, enforceable prohibitions.
276
The impor t a nce of ecologic a l ly

s u s t a i n a b l e deve l op m e n t
Origins
In 1983 the United Nations asked a commission to
study the consequences of environmental degradation on economic and social development.
Chaired by the then Prime Minister of Norway,
s the United Nations Framework Convention on

Climate Change
s the United Nations Convention on Biological
Diversity
s the Principles of Forest Management.
(Mrs) Gro Harlem Brundtland, the World Commission on Environment and Development (WCED)
produced an inuential report in 1987 titled Our
Central principles of ESD
Common Future, also known as the Brundtland
Four central principles of ESD are found in the
Report. The commission was concerned with eco-
agreements produced by the Rio Conference.
nomic and social equity how resources could be
Although they are not listed as four central
afforded to poorer nations and those nations
principles in a single document, they have been
economic growth encouraged while tackling the
embraced by many groups seeking to promote
problems of environmental degradation and
the goals of ESD. Bodies that have elaborated and
resource depletion that accompany development.
built on them include the Government of Australia
It concluded that both of these urgent goals can be
(Commonwealth Department of the Environment,
met, but to achieve ecologically sustainable
Water, Heritage and the Arts); state governments;
development (ESD), both individuals lifestyles
local councils; and organisations such as state and
and governments policies regarding humans
territory Environmental Defenders Ofces. Each
environmental impact will have to change.
of these components of ESD is set out below.
The Brundtland Report denes sustainable development as development that meets the needs
Biodiversity
of the present without compromising the ability
Biological diversity, or biodiversity, is the vari-
of future generations to meet their own needs. It
ation of life forms within an ecosystem, a biome,
aims to meet the needs of society today, including
or the planet. (An ecosystem is the set of relation-
the alleviation of poverty, while managing natural
ships among the plants, animals, micro-organisms
resources, energy and waste in ways that can
and habitats in a small area, and a biome is a
continue into the future without destroying the
regional, much larger group of ecosystems in a
environment or endangering human health.
wide geographic area.) There are different types
Subsequent to the Brundtland Report, the 1992
of biodiversity as well: diversity among species,
Rio Conference generated ve separate agree-
diversity of habitats on Earth (e.g. deserts, forests,
ments, which further elaborate on the principles
wetlands, rivers), and genetic differences within
of ESD and commit the parties to taking steps to
each species (e.g. different breeds of cattle or
achieve it. These are:
wheat).
s the Rio Declaration 27 principles to guide

nation-states in environmental behaviour
ecologically
sustainable
development (ESD)
development which
aims to meet the
needs of society today,
while maintaining and
conserving ecological
processes for the
benet of future
generations
biodiversity
variation of life forms
on Earth; the complete
range of types that
is possible within an
ecosystem, biome or
species
Biodiversity is important for many reasons.

Diverse ecosystems are more productive: a sig-
s Agenda 21 a work plan setting out actions that
nicant issue for agriculture. They can better
can be taken at local, national and international
withstand and recover from disasters. Diverse
level to achieve ESD
ecosystems, species, and habitats are more
277
intergenerational
equity
fair and just behaviour of
one generation towards
subsequent generations;
in terms of environmental
issues, a concept that
centres on preserving
Earths resources for
future generations
intragenerational
equity
fair and just treatment of
people and groups within
a generation; in terms
of environmental issues,
a concept that focuses
on fair management and
use of Earths resources
between different groups
of the same generation
sustainable over the long term, and species inter-
Intragenerational equity
dependence within an ecosystem contributes to
Intragenerational equity, in contrast to inter-
the health of both the ecosystem itself and that
generational, refers to fair and just treatment of
of the life forms within it. A variety of genes in a
groups of people within a generation. It is accom-
population is important to health, for example in
plished through policies that endeavour to raise
decreasing the incidence of harmful mutations.
the standard of living of disadvantaged peoples
The UN Convention on Biological Diversity sets
and nations, and ensure that the management
out three main goals the conservation of bio-
and use of environment does not exploit them.
logical diversity, the sustainable use of resources,
Principle 5 of the Rio Declaration enjoins states
and the fair and equitable sharing of the benets
and individuals to cooperate in eradicating
from the use of genetic resources and commits
poverty, as a necessary condition of sustainable
the parties to maintaining biological diversity.
development, and Principle 8 articulates their

duty to reduce and eliminate wasteful patterns of
Intergenerational equity
the principle stating that
if an action or policy may
cause serious harm to
people or to the environment, the best course
of action is to halt or
modify that activity, even
when there is no certain
proof of the probability
of the risk or the
seriousness of the harm
production and consumption.
Intergenerational equity, or Equity between
Principle 6 states that international actions
generations, is the idea that ecosystems and the
involving development and the environment
environment in general should not be passed on
should address the interests and needs of all
in any worse condition from one generation to the
countries, and refers to the special situation
next. Principle 3 of the Rio Declaration refers to
and needs of developing countries. Principle 22
development that meets the needs of both present
deals specically with indigenous peoples and
and future generations, reecting the idea that
communities, whose cultural knowledge and
the decision-makers at a particular time as well
traditional practices give them an important role
as the individual consumers and citizens at that
in sustainable environmental management. States
time have a responsibility to those who will be
are to recognise and support their participation in
living in the future.
ESD, and their unique contributions.
The precautionary principle

Principle 15 of the Rio Declaration states that
ECONOMIC
where there are threats of serious or irreversible
growth
efciency
stability
damage [to the environment], lack of full scientic

certainty shall not be used as a reason for post-
N
TIO
LISA S
NA CT
TER PA
IN IM
ON OF
ATI NTS
ALU IDE
sV INC
s
sI
N
sB TRAG
ASI ENE
CN RA
EE TIO
DS NA
LIV LE
ELI QUI
HO TY
OD
S
poning ... measures to prevent environmental
Poverty
Equity
Sustainability
Climate change
degradation. In other words, when an activity

raises the risk of serious harm, but there is uncertainty about how likely the risk and how serious
the harm, a cautious approach is the best way to
avoid that harm. This entails taking steps to halt or
modify the activity, even though the decisionmaker does not and may never know whether it
SOCIAL
sINTERGENERATIONALEQUITY
sVALUESCULTURE
empowerment
inclusion/consultation
institutions/governance
was necessary to stop or change the activity. The

ENVIRONMENTAL
resilience/biodiversity
natural resources
pollution
precautionary principle arose as a response to

effects on the environment and human health
caused by rapid industrial growth after the Second
World War, and the lack of strong environmental
Figure 11.5 Ecologically sustainable development triangle
278
legislation.
As mentioned above, the principles of ESD

are well established in the domestic and international arena. Numerous countries, including
Australia, have incorporated it in their domestic
the Act under which the licence was granted did not
explicitly refer to the precautionary principle, the
court held that the principle applied as a matter of
common sense and was one of the factors that the
Act permitted the court to take into account.
legislation. The importance of ESD at a national

level in Australia is probably best exemplied
by the introduction of the National Strategy for
ESD: Conclusion
Ecologically Sustainable Development which was
At the international level, ecologically sustainable
adopted by all levels of government in 1992 (see
development is referred to in numerous treaties.
www.environment.gov.au/esd/national/nsesd/
The United Nations has declared a Decade of
index.html). It is important to note that none of
Education for Sustainable Development (2005
these principles is to be followed in isolation; as
2014). As the lead agency for this program, the UN
components of ESD, they are a package.
Educational, Scientic and Cultural Organization
Examples of references in domestic legislation
(UNESCO) develops and disseminates materials on
include s 136(2)(a) of the Environment Protection
ESD that can be used by educators, professionals
and Biodiversity Conservation Act 1999 (Cth), which
and organisations. ESD is also a primary consid-
states that the relevant Minister must consider the
eration of the United Nations Environment
principles of ecologically sustainable development
Programme (UNEP).
before deciding whether to approve a project,
The development and application of ESD cor-
development, undertaking or activity, or a change
responds with an evolution in societys values. In
to any of these things. Section 391(1) requires
particular, the precautionary principle is indicative
the Minister to take account of the precautionary
of a new consideration of the potential conse-
principle when making such a decision, and denes
quences of proposed activities,
the precautionary principle in nearly identical
apart from nancial benets.
terms to Principle 15 of the Rio Declaration.
Recognition of the impor tance
R EV I EW 1 1 . 3
1 Explain why ESD is essential
Various state laws include the principles of ESD,
of biodiversity reects a recog-
such as the Fisheries Management Act 1994 (NSW)
nition of the interrelationships
to global environmental
and the Local Government Act 1993 (NSW). As a
between
protection.
consequence, numerous Land and Environment
forms and ecosystems. Seeking
Court decisions in New South Wales have either
intragenerational
directly or indirectly referred to the principles. For
regard
example, in Greenpeace v Redbank Power Co. (1995)
entails consideration of distri-
86 LGERA 143, the court used the formulation of
bution
the
hypothetical examples of
the precautionary principle contained in the Inter-
provision of goods and services
the application of each of
governmental Agreement on the Environment
as well as a healthy environ-
the principles of ESD.
(entered into in 1992 by the federal government
ment)
and all state and territory governments of Australia
indigenous peoples and nations
as part of the National Strategy for ESD) in its
of the world. Addressing inter-
is applied under the
consideration of a development application for a
generational equity illustrates a
Environment Protection and
power plant. In Leatch v National Parks and Wildlife
shift from short-term thinking
Biodiversity Conservation
Service (1993) 81 LGERA 270, the precautionary
to formu lating policies and laws
Act 1999 (Cth).
principle was applied. As a result, a licence granted
regarding global environmental
to take or kill endangered animals in the course of
protection based on the well-
development of ESD
a road development project was reversed. Although
being of future generations.
reects changing values.
humans,
to
equity
living
issues
across
other
life
with
standards
(including
commu nities,
ESD in domestic law
2 Summarise the four central

principles of ESD in your
own words.
3 Construct real or
4 Explain how the
5 Outline how the
279
Responses to globa l
The role of the state and
state sovereignty
been equated with innovation, economic growth

and corporate protability. Australias initial
refusal to ratify the Kyoto Protocol on greenhouse
state
a country that acts as
a sovereign political
entity with dened
national borders
and is able to enter
into international
arrangements as a
discrete entity (also
known as nation-state)
sovereignty
the right of a nation
to control its territory
and peoples without
external interference
The terms country, state (not a state of Australia)
gas emissions and Japans refusal to stop whaling
and nation are often used interchangeably. They
pursued for scientic purposes are illustrations of
all refer to a state, which has a dened border and
national sovereignty in action.
population, is politically recognised and is able to
Some have argued that environmental health is
enter into international arrangements as a discrete
crucial to long-term well-being or that economic
entity.
prosperity without it is ephemeral. In other words,
National sovereignty is the implicit recognition
there are many reasons why international environ-
under international law that a nation has authority
mental protection is essential, apart from consid-
over its citizens and territory, and can govern as it
erations of equity and fairness. As Klaus Toepfer,
sees t. The tension between a consistent global
then executive director of the United Nations
approach to environmental protection and national
Environment Programme (UNEP), stated in his
sovereignty is apparent. At times what is best for
address to the Johannesburg Summit in 2002:
the environment is not considered the best option

for a country. Generally, nations will consent
Our world is characterised by divided and dys-
to behave in a particular way if it is in their best
functional cities, dwindling water supplies and
interests to do so, and best interests have often
potential conict over scarce resources and the

accelerating loss of the environmental capital that
cas e s p ac e
underpins life on Earth. We suffer from problems

of planetary dimensions. They require global
Bradley v The Commonwealth (1973) 128 CLR 557
responses. Investing in sustainable development

will be investing in the future security of us all.
Starting in 1965, the United Nations Security Council

had passed resolutions condemning Rhodesia,
whose white minority party the Rhodesian Front
had declared independence from Britain and
formed a government opposed to majority rule,
complete with apartheid policies. Sanctions were
imposed. Member states, under the terms of the
sanctions, were not to trade with Rhodesia. In
Sydney, the Postmaster General issued a direction
that all communication services with Rhodesia be
withdrawn, in particular to the Rhodesia Information
Centre, which purported to be an ofcial body of
the Government of Rhodesia. Although Australia did
not recognise the Rhodesian regime as legitimate,
the High Court held that the Postmaster Generals
direction was ultra vires (beyond executive power),
as it was unauthorised by domestic legislation.
It is the implementation of various international

agreements and how vigorously they are acted
upon which will determine their effectiveness in
providing global environmental protection. Every
sovereign state has the right to modify or even
reject international law even if it is a signatory to
the treaty in question.
As stated earlier, in Australia treaties and
conventions are not part of domestic law until
they have been incorporated or enacted into law
by domestic legislation. Nor are international
resolutions, declarations or directives sufcient to
authorise the actions of Commonwealth agents or
bodies. The following cases provide authority for
this notion.
State sovereignty therefore enables nations to
carry out the positive implementation of inter-
280
RES E A RC H 11.3
For an interesting perspective on nationstates, go to www.nationstates.net
Simsek v Macphee (1982)148 CLR 636

Simsek, a Turkish national, sought refugee
status under the United Nations Convention
Relating to the Status of Refugees (1951) and the
associated Protocol of 1967. The High Court held,
Create your own nation-state and
in accordance with Chow Hung Ching v R (1948)
investigate the way it operates in a simulated
77 CLR 449 and Bradley v The Commonwealth
world.
(1973) 128 CLR 557, that unless the Australian

Parliament has incorporated an international
The role of the

United Nations
treaty into domestic law, it has no legal effect

upon the rights (or duties) of individuals, whether
citizens or aliens.
The United Nations was established in 1945 with

international peace and security as its main objective, along with the aims of developing friendly
relations among nations, promoting human rights,
and facilitating social and economic progress.
programmes and funds are subsidiary bodies of
Over time, however, its aims and functions have
the General Assembly. The specialised agencies
evolved to keep pace with changing global con-
are linked to the UN by agreements; they report
ditions. In its early years, global environmental
to the Economic and Social Council and/or the
protection was of little signicance, but now it is
General Assembly. The related bodies (e.g. the
one of the dominant aspects of UN affairs.
International Atomic Energy Agency and the World
The United Nations has ve principal organs or
Trade Organization) address particular areas and
bodies:
have their own governing bodies and budgets.
s General Assembly the main organ, composed
have been established by the UN to deal with
s Security Council the organ with responsibility
environmental issues. The main ones are discussed

below. Additionally, many UN bodies have other
s Secretariat the body that handles the day-to-
primary tasks but nonetheless include environ-
day work of the UN, carrying out tasks in all
mental protection and sustainable development as
areas dalt with by the UN
objectives in the course of their activities. Some of
s Economic and Social Council the body that

coordinates this large area of work undertaken
by the UN and its specialised agencies
these are:
s Food and Agriculture Organization of the UN
a specialised agency whose aim is defeating
s International Court of Justice (ICJ) the judicial
hunger and achieving sustainable agricultural
organ, which settles disputes between nation-
development through responsible management
states and provides advisory opinions to the UN
of natural resources. Current focus areas include
and its agencies.
the use of plant material for fuel (bioenergy)
The United Nations organisation is much larger,
and the specic challenges that climate change
however, encompassing 15 specialised agencies

and related bodies, secretariats of conventions
Figure 11.6
Emblem of the
United Nations
Several programmes and specialised agencies
of representatives of all 192 member states

for international peace and security
they so choose.
ca s e s p a ce
national agreements, but also to impede them if
poses to agriculture, shing and forestry.

s United
Nations
Development
Programme
(e.g. the UN Framework Convention on Climate
(UNDP) established by the General Assembly,
Change and the UN Convention to Combat Deserti-
this programme helps developing countries to
cation), and many programmes and funds. The
obtain and use aid effectively in efforts towards
281
democratic governance, poverty reduction and
Biological Diversity (the Biodiversity Conven-
sustainable development.
tion), and the Convention on Migratory Species.
s International Maritime Organization this
Some of its areas of priority are: environmental
autonomous specialised agency works through
aspects of disasters and wars; management of
the coordination of the Economic and Social
ecosystems; harmful substances; resource ef-
Council. It develops international standards to
ciency; and climate change. In 1988, UNEP and
regulate shipping, especially safety standards,
the World Meterological Organization (a special-
and is also concerned with the prevention and
ised agency of the UN) established the Intergovern-
control of marine pollution from ships.
mental Panel on Climate Change (IPCC), the

primary international source of scientic information about climate change.
REVIEW 11.4
1 Dene national sovereignty and explain
how it operates alongside international law.
2 Describe the relationship between inter-
Since the 1992 Rio Conference and the new

focus on ESD, the scope of UNEPs activities have
expanded.
national laws and Australian domestic laws.

3 Describe the types of bodies within the
United Nations organisational structure.
R ESEAR CH 1 1 . 4
Investigate the role of UNEP and Australias
involvement in UNEP at www.environment.
United Nations Environment

Programme (UNEP)
1972, following the UN Conference on the Human
Intergovernmental Panel on
Climate Change (IPCC)
Environment (Stockholm Conference). It is a
As an intergovernmental body, the IPCC is open
programme (i.e. a subsidiary body of the General
to all member states of the UN and of the World
Assembly), and its stated aim is:
Maritime Organization. Member states participate
The UN General Assembly established UNEP in
to provide leadership and encourage partnership

in caring for the environment by inspiring, informing, and enabling nations and peoples to improve
their quality of life without compromising that of
future generations.
in the government review stage of the process of

preparing reports and assessments, and in the
sessions where decisions about the work of the
Panel are made and reports are accepted, adopted
and approved.
The work of the IPCC involves reviewing and
Its work encompasses:
assessing the most recent scientic information
s assessing global, regional and national environmental conditions and trends

s developing international and national instruments and guidelines
from around the world relating to climate change.

It does not itself conduct scientic research.
Reviews
are
conducted
by
scientists
from
every part of the world, working on a voluntary
s acting as an advocate and educator, both with-
basis. The IPCC strives for a complete survey
in the UN and with international organisations,
and assessment of current information, and its
national
non-governmental
reports reect different viewpoints within the
organisations, private corporations and society
scientic community. While it seeks to provide
at large, on behalf of the environment
rigorous scientic information to governments for
governments,
s assisting the transfer of knowledge and technology for sustainable development

s hosting several environmental convention secretariats, including CITES, the Convention on
282
gov.au/about/international/unep/index.html
the purpose of formulating policy, the IPCC does

not itself prescribe policy. It has published four
authoritative Assessment Reports, with a fth due
in 2014.
January 2010 that the comment
scientists say the e-mail is
rocked by emerging news that
was speculative, and he has
unlikely to affect the body of
e-mail messages stolen from the
never repeated the prediction
knowledge, as the data from
University of East Anglia, UK
in a peer-reviewed journal.
the university are very similar to
and published on the internet
The statement was made in an
two other data sets. However,
undermined evidence of human-
interview conducted by New
the procedures for scrutiny
induced climate change. The
Scientist magazine in 1999. The
and publication of data are
e-mail expressed doubts about
IPCC expressed regret that
now themselves likely to be
whether global warming was
the clear and well-established
subjected to increased critical
taking place and suggested
standards of evidence, required
scrutiny. It should be noted that
ways of presenting data to make
by the IPCC procedures, were
views about climate change
it more convincing, including
not applied properly. However,
within the wider, non-scientic
keeping dissenting papers
the vice-chair of the IPCC,
community are frequently
out of the IPCCs 2007 Fourth
Jean-Pascal van Ypersele, said
inuenced by stories in the
Assessment Report. Some of the
the mistake did nothing to
mainstream media often highly
e-mail was written as long ago
undermine the large body of
coloured by the political views
as 1996.
evidence of global warming
of those interviewed, or those
caused by humans.
producing the news stories, or
Two months later, the

world learned that a highly
Climate change sceptics
questionable claim by a
a minority in the scientic
leading glaciologist that all
community have alleged that
of the glaciers in the central
climate scientists engaged in
and eastern Himalayas could
collusion and concealment, on
disappear by 2035 had made its
the basis of the e-mail, and in
way into the 2007 report. The
sloppy research, on the basis
scientist, Syed Hasnain, said in
of the glacier claim. Other
United Nations Educational,

Scientific and Cultural
Organisation (UNESCO)
UNESCO, a specialised agency of the UN, was
founded in 1945. Its primary function is to promote
In November 2009, the IPCC was
le g al li nk s
ca s e s tu d y
Scientic procedure and the media
both.
For an overview of the role of

UNESCO visit its home page at
www.unesco.org/new/en/unesco/
about-us/
international dialogue and cooperation in the

elds of science, communication, education and
culture. Its two highest priorities are Africa and
gender equality, but it also focuses on promoting
sustainable development and biodiversity along
with overcoming poverty and preserving cultural
heritage. Its Natural Sciences Sector has a
particularly direct role in fostering ESD.
R EVI EW 1 1 . 5
1 Describe the functions of UNEP and
UNESCO.
2 Explain the origin of the IPCC and
describe its functions.
283
ca s e s tu d y
UNESCOs work in preserving heritage

Human heritage is a part of our
UNESCO was instrumental
the World Cultural and Natural
environment that needs pro-
in the development of a set of
Heritage (1972). This convention
tection. Sustainable management
conventions for the protection of
led to the establishment of
programs are needed not only
humanitys shared heritage. The
the World Heritage List, which
for natural resources, but also for
rst of these was the Convention
as of June 2009 included 890
cultural heritage sites. There are
Concerning the Protection of
outstanding sites.
hundreds of these around the

world that UNESCO and other
IGOs and NGOs aim to preserve.
Palmyra in eastern Syria is one
example: its remarkable history
and potential as a major future
tourist destination has prompted
UNESCO, in conjunction with the
European Union and the Syrian
Government, to implement a
sustainable management plan for
its preservation for future
generations.
Figure 11.7 Palmyra, Syria a UNESCO World Heritage Site
International instruments
Soft law
Non-binding norms include resolutions and dec-
International instruments are documents setting
larations of the UN General Assembly, as well as
out commitments or obligations of nation-states
statements, principles, codes of conduct, codes of
and sometimes of other parties such as inter-
practice, action plans such as Agenda 21, and other
soft law
any international
instrument, other than
a treaty, that contains
principles, standards
or other statements of
expected behaviour
but does not have
legal consequences
for non-compliance
(e.g. declarations and
resolutions of the UN
General Assembly)
national organisations. They can generally be
obligations that are not contained in a treaty. Soft
classied into two categories: soft law and hard
law instruments usually identify a problem and set
hard law
international laws that
are legally binding
(e.g. treaties and
protocols)
has a different focus, but fundamentally, like all
A framework treaty is a multilateral treaty
international law, its role is to stipulate a body of
whose provisions are not directly applicable to
rules and principles which regulate nation-states
the domestic law of the state parties. It does not
relations with one another.
contain specic commitments or enforcement
284
law. Hard law instruments are those that have
out in general terms how the problem will be dealt
legally binding consequences. By contrast, while
with, but do not include specic commitments.
instruments in the category of soft law impose
They have the potential to become hard law in
moral obligations on nation-states, parties that
the future, if their provisions are later codied in
do not comply are not subject to enforcement
a treaty. Soft law also may have an inuence on
penalties through international law. Table 11.1
the practice of states, and thus become customary
shows a range of key hard law and soft law in the
international law (that is, norms followed by states
area of environmental protection. Each instrument
because they believe them to be legally binding).
Courts
legally non-binding. It sets out a general framenegotiated at a later stage. These commitments
Ad hoc tribunals and the

are often contained in a protocol, or in state
Prior to the establishment of the United Nations
parties domestic legislation. An example is the UN
(and thus the International Court of Justice), there
Framework Convention on Climate Change, which
was practically no court or tribunal in place to
was followed by the Kyoto Protocol setting out
settle environmental conicts between nation-
binding commitments.
states, since few issues had arisen. In 1928, and
work or structure for commitments to be
again in 1935, the United States of America and
Hard law
Canada referred a matter to the International Joint
Hard law includes binding international agree-
Commission (a tribunal that had jurisdiction to
ments (treaties) as well as customary inter-
consider issues arising along the common border)
national law. Treaties are international agreements
for resolution. It involved sulphur dioxide emis-
between states in written form, that are governed
sions from a zinc and lead smelter located in the
by international law. They may be bilateral
town of Trail, British Columbia, 15 kilometres from
(between two parties) or multilateral (more than
the Washington state border. The main problem
two parties).
was the damage being done to fertile farming and
A protocol is a negotiated instrument that
logging lands in the Columbia River Valley.
supplements a treaty or agreement, containing
In both instances the Canadian government
specic actions to be taken to full the terms of
had to pay damages to the state of Washington,
the treaty, or provisions that modify the original
and in the 1935 decision it was decided by the two
treaty. For example, the Montreal Protocol is an
parties to enact a special agreement or conven-
addition to the Vienna Convention for the Protection
tion for settlement of difculties arising from the
of the Ozone Layer (1985), and as noted above the
smelter operation. As part of this agreement a
Kyoto Protocol is an addition to the UN Framework
tribunal was established to determine the extent
Convention on Climate Change. The Cartagena
of damages, whether compensation should be
Protocol on Biosafety, which came into force in
paid, and whether the smelter should operate
2002, is a supplement to the Biodiversity Conven-
under restricted conditions. The tribunal deter-
tion. The Protocol seeks to protect biodiversity
mined that:
from potential risks posed by technological modi-
s Canada had to pay $78 000 in damages to the
cations to living organisms by governing their
protocol
an instrument that
supplements a
treaty, containing
specic provisions
that the parties have
committed to in order
to full the terms of
the treaty
mechanisms. In that sense, it can be considered
USA as compensation for all damage
movement from one country to another. It contains a procedure for nations to obtain the
information necessary to make informed decisions
as to the importation of genetically modied
organisms, and contains several provisions referring to the precautionary principle.
It is important to realise that while a treaty or
protocol may contain enforcement mechanisms,
their effectiveness is questionable. Nation-states
ability to exercise their sovereignty will sometimes
mean that a country will refuse to comply with its
international obligations.
Figure 11.8 In both 1928 and 1935, the US and Canada referred a
matter to the ICJ, regarding environmental damage to the Columbia
River Valley. This resulted in the Canadian government paying damages
to the state of Washington.
285
Table 11.1 A selection of international instruments

International law
Year it
entered
into force
Hard or soft?
Mission or aim
Number
of parties*
Convention on
International Trade in
Endangered Species
of Wild Fauna and
Flora (CITES)
1975
Hard
To ensure that international trade in wild

animals and plants, and products made from
them, does not threaten their survival
175
Convention on
Wetlands of
International
Importance (the
Ramsar Convention)
1971
Hard
Provides the framework for national action

and international cooperation for the
conservation and wise use of wetlands and
their resources
159
Vienna Convention
for the Protection of
the Ozone Layer
1988
No legally binding
targets for reduction
of substances that
deplete the ozone
layer (notably
chlorouorocarbons)
To protect human health and the environment

from adverse effects resulting from human
activities that alter the ozone layer
196
Montreal Protocol
on Substances That
Deplete the Ozone
Layer
1989
Hard
Sets out a mandatory timetable for the

phasing out of ozone-depleting substances
196
UN Convention on
Biological Diversity
1993
Hard
The conservation of biological diversity, the

sustainable use of its components, and the
fair and equitable sharing of the benets from
the use of genetic resources
168
Agenda 21
1992
Soft
Sets out a plan to achieve a sustainable

balance between consumption, population,
and Earths capacity
178
Rio Declaration on
Environment and
Development
1992
Soft
Provides principles guiding sustainable

development: denes humans responsibilities
to safeguard the common environment, as
well as the rights of the people to be involved
in the development of their economies
178
UN Framework
Convention on
Climate Change
1994
No legally binding
targets or enforcement mechanisms
To stabilise atmospheric concentrations

of greenhouse gases at a level that would
prevent harm to the climate system
192
Kyoto Protocol
1997
Hard
Sets binding targets for 37 industrialised

countries and the European Community, for
reducing their greenhouse gas emissions by
an average of 5%
188
Copenhagen Accord
2009
Soft
Was intended to establish an ambitious global

climate agreement starting in 2012 when the
Kyoto Protocol expires, but sets no binding
targets. Recognises that global temperature
rises must be kept below 2 degrees Celsius
but no specics included.
* In the case of a treaty, number of parties means the number of countries for whom the agreement has entered into force.
286
consented, it is rare for a decision of the Court not
ting harmful materials (instruments were put
to be implemented. However, a state can raise
in place to record weather conditions and emis-
preliminary objections to the Courts jurisdiction,
sion levels) and if it exceeded the prescribed
or refuse to appear before the Court because it
levels further compensation was payable.
totally rejects the Courts jurisdiction. This limits
The Trail Smelter Case (United States v Canada) 3
the effectiveness of this judicial body.
RIAA 1905 (1941) highlighted the responsibilities
Article 38 of the Statute of the ICJ lists the
of neighbouring nation-states for damage caused
sources of international law that the ICJ can apply
by transboundary pollution. It is important to
in its rulings. These are:
realise that the nations involved consented to
s international conventions
the establishment of the tribunal and it only had
s customary international law
jurisdiction over this particular matter. With the
s general principles of law recognised by civilised
establishment of the ICJ, a forum for such disputes
nations
came into existence that did not rely on the
s judicial decisions and the teachings of the most
creation of an ad hoc tribunal for each and every
highly qualied academic writers of the various
environmental dispute.
nations.
Only nation-states can be parties to a case
It can also make decisions ex aequo et bono if
before the ICJ. It has the power to decide a case
the parties agree. This means it can simply consider
only where the parties to a dispute have consented
what is fair and just in the circumstances, rather
to its jurisdiction, either by special agreement of
than basing its decision on one of the sources of
the parties, where it is specically provided for in
international law.
Environmental disputes have never dominated
the ICJ recognise its jurisdiction as compulsory in
the ICJ. The UN did recognise the importance of
relation to any other state. Where the parties have
global environmental issues in 1993, establishing
l eg al i nfo
a treaty, or where the state parties to the Statute of
ad hoc
for a particular
purpose, usually
exclusive and often
temporary
ex aequo et bono
according to the
right and the good;
on the basis of what
is fair and just in the
circumstances
s the smelter operators had to refrain from emit-
Cases heard by the ICJ

Since the establishment of the International Court of
compensation for the extensive damage caused to
Justice (ICJ) in 1945, a range of environmental cases
Nauru prior to its independence.
have been heard. These include:

s The nuclear test cases (197475) involving Australia
s The Danube Dam Case of 1997, which concerned a

dispute over water resources between the neigh-
and New Zealand against France, which was testing
bouring countries of Hungary and Slovakia and
nuclear devices in French Polynesia. The cases did
allegations of transboundary environmental harm.
not proceed to the merits stage, as the ICJ decided
After Hungary withdrew from the joint venture to
that once France stated that it was ceasing the
build a dam to drive a hydroelectric plant, Slovakia
atmospheric tests of its own accord, the cases no
diverted the river to operate the dam on its own.
longer had any object. Later, France commenced
The ICJ found both Hungarys withdrawal and Slo-
underground nuclear testing.
vakias diversion of the river unlawful. It held that
s Naurus case against Australia for failing to
the 1977 treaty between the countries was exible
remedy the environmental damage caused by
enough to take account of new international envi-
90 years of phosphate mining (see Figure 11.10).
ronmental norms, and that the Slovakian action was
In 1992 a negotiated settlement was reached
unjustiable in light of shared water resources and
whereby Australia agreed to pay $107 million in
equitable use, and invoked the principle of ESD.
287
Figure 11.9 Naurus case against Australia for failing to remedy

environmental damage caused by 90 years of phosphate mining was
settled in the ICJ in 1992.
Figure 11.10 The International Court of Justice,

located at The Hague, Netherlands.
the Chamber for Environmental Disputes (a
relevant elds to determine complex scientic
discrete section of the ICJ) to provide a forum for
issues. It could also be compulsory, rather than
settling disputes in this area. However, it has never
requiring consent to its jurisdiction.
been used, and in 2006 the UN stopped holding

annual elections for the Chambers membership.
One problem with the ICJs role in settling global
reactionary
responding to a
situation after it has
occurred
Conferences
environmental disputes is that its jurisdiction
Prior to 1972, international instruments promo-
depends on whether two or more states have con-
ting environmental protection were predominantly
sented to be bound by it. This seriously constrains
reactionary. They addressed discrete areas of
its jurisdiction, given that corporations are res-
environmental protection as the need arose. Early
ponsible for a vast number of the
international law in this area was ad hoc and
environmental problems today.
generally regional in its approach; for example,
R E VIEW 11.6
academics
the Protocol amending the Agreement on the
difference between hard and
believe a more effective solution
Protection of the Salmon in the Baltic Sea, adopted
soft international law.
lies with the formulation of an Inter-
in 1972.
1 Using examples, explain the
Some
NGOs
and
national Environmental Court that
During the 1960s it was recognised that this
function of a framework
follows the International Criminal
sort of piecemeal approach was insufcient to
treaty. Give examples.
Court model. It could be permitted
address the global threats facing the environment.
3 Explain the nature and
to settle disputes between private
Under the guidance of the United Nations, the rst
function of a protocol.
and public parties, if the issues
international conference to focus on the global
Discuss in regard to
are global in their magnitude; to
environment was organised for Stockholm in
international law.
mediate and arbitrate; and to insti-
1972. Since then a so-called mega conference
4 The ICJ is ineffective as a
tute investigations. Such a court
has been held every decade to look at global
means of resolving serious
could readily apply ESD principles,
environmental issues. In 2012 Brazil will host the
environmental issues.
and could provide a high level of
Rio Plus 20 Earth Summit with a focus on low-
Discuss.
consistency by utilising experts in
carbon economies.
2 Explain the nature and
288
mental law. It produced non-binding guidelines
been held, focusing on specic issues. These often
that were open to wide interpretation, but it did
relate to a particular treaty or convention. Meet-
introduce the concept of ecologically sustainable
ings of the parties to a framework convention are
development (ESD) and UNEP became the major
generally held at intervals to continue negotiations
forum
for specic, legally binding commitments from
protection.
for
promoting
global
In addition, a number of other conferences have
environmental
the state parties. For example, the Conference

of the Parties to the UN Framework Convention on
Nairobi Conference 1982
Climate Change of 1992 meets every year; the 1997
The main emphasis of the conference held in
Conference of the Parties in Kyoto, Japan gave rise
Nairobi, Kenya was to mark the tenth anniversary
to the Kyoto Protocol.
of Stockholm and reafrm the participants and

the worlds commitment to the Stockholm Declar-
Stockholm Conference 1972
ation and Action Plan. The conference did not
According to the United Nations Environment
generate as much worldwide interest as Stockholm
Programme (UNEP), formed as a result of the
possibly due to international political tensions at
Stockholm Conference, the main aim was to con-
the time between the USA and the Soviet Union,
sider the need for a common outlook and for
and Kenyas internal difculties and for that
common principles to inspire and guide the peoples
reason is not considered an ofcial Earth Summit.
of the world in the preservation and enhancement
The Nairobi Declaration urges all governments
of the human environment. Ofcially titled the
and people of the world ... to ensure that our small
UN Conference on the Human Environment it was
planet is passed over to future generations in a
the rst international gathering to consider the
condition which guarantees a life of human
natural environment and material human needs
dignity for all.
economic development together.

Declaration, which can be credited with providing
Rio Conference: the 1992 Earth

Summit
the impetus for sustainability becoming the focus
The Rio Earth Summit is more formally called the
of global environmental protection. Declarations
United Nations Conference on Environment and
have no binding legal effect, but they do have
Development (UNCED) and was held in Rio de
an undeniable moral force and provide practical
Janeiro, Brazil in 1992. It was hoped that Rio would
guidance to nation-states about how they should
produce a range of binding environmental agree-
behave. The Stockholm Declaration contains four
ments, but the different perspectives of the 180
key themes:
represented nation-states and non-government
s Nation-states have a responsibility to manage
organisations (NGOs) made it difcult to reach a
This conference produced the Stockholm
their environments and they are accountable to

their neighbours.
s All people have a right to an adequate
environment.
declaration
a formal statement
relating to a particular
issue or set of issues,
agreed to by a group
of nation-states but
without binding legal
force
consensus.
While Stockholm provided the general guidelines for ecologically sustainable development, it
was Rio that produced the framework for domestic
s There is a need for intergenerational equity.
and international law aimed at global environ-
s There is a need for international cooperation.
mental protection. As discussed earlier in this
While it can be argued that the Stockholm
chapter, ve key agreements came out of Rio,
Conference produced nothing concrete in inter-
including the UN Framework Convention on Climate
national law, it did result in the formation of UNEP.
Change, the Rio Declaration and Agenda 21. The
Stockholms real success lay in the foundations it
Rio Declaration contains twenty-seven principles
provided for all subsequent international environ-
for utilising the environment in a sustainable
289
manner. Agenda 21 is a comprehensive, voluntary
no specic aims were set for one of the key aims:
plan of action for all levels of government to work
diversication of energy sources.
towards sustainable development. It covers using

resources efciently, fostering an equitable world,
R ESEAR CH 1 1 . 5
protecting global resources, making the world

habitable and increasing the input of disadvantaged groups (such as children, women and
indigenous communities). It also recommended
the strengthening of communication and partner-
Visit the UNEP home page at www.unep.org

and write ONE paragraph on each of the six
environmental challenges listed as priority
areas for UNEP.
ships between governments and non-government

organisations (NGOs). The main achievement of
Agenda 21 is that it placed pressure on nationstates to implement ESD.
Johannesburg 2002
R EVI EW 1 1 . 7
1 Outline the key developments of the four
mega conferences.
2 Explain the purpose of a Conference of the
Parties to a framework convention.
Whereas the earlier conferences provided the

guidelines and the framework for sustainable
development, the aim of the 2002 Earth Summit
in Johannesburg, South Africa was to put these
concepts into practice. In particular, its focus was
to establish time plans and enforcement mecha-
Various other international bodies not directly
nisms. As usual, state sovereignty provided the
linked to the United Nations also play a role in
big gest obstacle, as expressed on the UN website
global environmental protection. The European
for the event: Sadly we have not made much
Union (EU) has developed an Environment Section
progress in realising the grand vision contained
whose function is implementing environmental
in Agenda 21 it is no secret that the global
policies for the 25 nation-states now comprising
community has not demonstrated the will to
the EU; this also includes an EU Sustainable
implement it.
Development Strategy that took effect in 2006.
Johannesburgs theme was Building Partner-
The Organisation for Economic Co-operation
ships for Sustainable Development and its most
and Development (OECD) has a primary focus
notable achievements were:
on the economic growth, employment, and
s setting a target to reduce the proportion of
living standards of its member nations, but it
people without access to safe drinking water by
too has recognised the need for the environment
half by 2015, and obtaining commitments from
to be taken into account. The OECD has
governments such as the USA and the European
introduced environment performance reviews in
Union, as well as bodies such as the Asian
conjunction with its usual economic reviews of
Development Bank, to fund these initiatives
member countries. The OECD Working Party on
s commitments and funding for sustainable
Environmental Performance has been conducting
energy programs in developing countries
290
Intergovernmental
organisations
peer reviews of the environmental performance of
s increased ratication of environmental agree-
OECD member countries since 1992. The review
ments including the Kyoto Protocol Thailand,
assesses the efforts of each nation-state in meeting
India, Canada and Russia all announced their
both domestic objectives and international com-
intentions or that they had ratied Kyoto.
mitments. For example, China was reviewed in
Despite the intentions of the conference, the
2006 and 51 recommendations were made to
nal result was disappointing as not all of the
strengthen Chinas environmental performance
commitments were sufciently rm. For example,
in the context of sustainable development. One
inspection
and
enforcement
capabilities
NGOs are involved in researching and publi-
to
cising environmental issues, and educating the
establish a better mix of incentives and sanctions
public. They are not subjects of international law.
... Implementation of the polluter pays and user
However, they have been formally recognised by
pays principles should be strengthened.
governments, notably in Agenda 21. Some NGOs
In 2004, the Director of the OECD Environment

Directorate, Lorents Lorentsen, stated:
have observer status at the United Nations and

they are often consulted for their views when
We have made progress towards several environmental goals ... But much more progress is needed.
Ecosystems continue to be degraded, persistent
and toxic chemicals are widespread in the
environment, many sh stocks are declining, and
greenhouse gas emissions particularly from road
transport and energy use continue to grow.
In sum, the basic question still is: how can we
international law on the environment is being

drafted.
The most famous (or infamous, depending on
your perspective) activities of some NGOs are
their envirostunts, which are used to pressure
and sometimes embarrass governments and
corporations to change their activities. An NGOs
best weapon is the media.
continue to grow and overcome global poverty,

while doing relatively less damage to the environment that sustains us and all our activities?
The media
The media are one of the most powerful forces on
Source: OECD Observer No. 242, March 2004
When even those institutions with a dominant

focus on economic matters recognise the need for
environmental frameworks and review, it strongly
suggests that the world is a vastly different place
from the one that existed at the time of the
Stockholm Conference in 1972.
the planet. They have the potential not merely to

shape popular opinion, but to determine it.
The nature of media ownership in industrialised countries, especially where it is concentrated
among just a few corporations, means that the line
between information (e.g. reporting the news) and
persuasion (e.g. inuencing opinions about an issue)
non-government
organisations
(NGOs)
associations based on
common interests and
aims, which have no
connection with any
government
observer status
in the United Nations
General Assembly
(GA), the position of
an organisation or
other entity that has
been granted the
right to speak at GA
meetings, participate
in procedural votes,
and sponsor and sign
resolutions, but not
to vote on resolutions
and other important
matters
recommendation was to strengthen monitoring,
envirostunt
a publicity stunt to
attract attention
to a particular
environmental issue
is not always clear. While promoting or protecting
Non-government
organisations
Governments are political in nature and often their
perspectives on an issue are inuenced by factors
such as business and industrial interests. In
response to growing environmental awareness
over
the
last
four
decades,
various
non-
government organisations (NGOs) have put

pressure on governments to take into account
environmental
considerations.
NGOs
use
combination of action and advocacy to advance

their agendas. Some operate nationally (within a
single nation-state) and others are international.
Signicant examples of environmental NGOs are:
s Greenpeace
s World Wide Fund for Nature
s Friends of the Earth.
Figure 11.11 NGOs such as Greenpeace are involved in researching

and publicising environmental issues, and educating the public.
291
ca s e s tu d y
NGOs action
s In 1995 Greenpeace occupied
Franklin Dam Case will be
the Brent Spar oil rig operated
discussed later in this
by Shell Oil in the North Sea
chapter).
to stop it from being scuttled
s People for the Ethical
and dumped in the sea. A
Treatment of Animals
global audience watched the
(PETA) often use attention-
Greenpeace actions and a
grabbing promotions
large section of the public
to raise awareness of
exerted its own pressure
environmental issues
by boycotting Shell service
involving animals, e.g.
stations. Shell then agreed to
the Id rather go nude
dismantle the Brent Spar and
than wear fur campaign,
recycle it on land. The action
and their unique take on
led to a worldwide ban on this
protecting whales.
means of disposing of such

rigs.
s The Wilderness Society and
the Australian Conservation
Foundation were instrumental
in stopping the construction
of a dam in the Wild Rivers
region of Tasmania (the
R E VIE W 11.8
Figure 11.12 PETA campaigns
corporate interests may not be the sole
broadcasters are not as well funded as the ABC and
or primary purpose of the information
SBS in Australia, and must appeal to listeners and
relationship between
transmitted via print, broadcast media or
viewers for nancial support. Also, governments
intergovernmental
the internet, a news agency whose parent
must take care not to exert too much inuence on
organisations, national
company is a multinational with a broad
publicly owned media, even by well-intentioned
governments, and the
range of nancial interests may be to some
efforts to ensure balance. A recognition of
global environment.
degree constrained. Economic impera-
the potential for political spin is important to
2 Using examples, outline
tives, especially in a period of recession,
counteract tendencies towards selective coverage
how NGOs can promote
may also inuence the amounts a news-
or bias. However, the nancial resources of cor-
global environmental
paper or broadcaster can afford to spend
porations mean they are far more likely to
protection.
on investigative journalism: it can be less
inuence public understanding and perspective
expensive to obtain stories from a wire
on environmental issues.
1 Describe the
3 Discuss the positive

and negative roles
service or syndicate than to pay writers
In Australia, the power of the media in
that the media may
and researchers to produce a unique story
environmental matters was highlighted in the
play with respect
or program on current events.
Franklin Dam protest movements of the early
Even where a media agency is public-
1980s, which culminated in the case Common-
ly owned, it is not immune from nancial
wealth v Tasmania (1983) 158 CLR 1. The Wilderness
considerations. In some countries, public
Society and the Australian Conservation Foun-
to environmental
protection.
292
(NSW), which consolidated these Acts and added
effort to use the media to present their version of
some signicant new provisions); the Heritage Act
the situation. They were spectacularly successful.
1977, the Pesticides Act 1978 (repealed and superseded by the Pesticides Act 1999 (NSW)), and the
Australias federal
structure
National Parks and Wildlife Act 1974.

Prior to 1979, environmental law and town planning law developed separately. The creation of the
State powers and legislation
NSW Land and Environment Court in 1979 indi-
Under the Australian Constitution, the power to
cated a major shift in policy and direction. It was
legislate on environmental issues can only be con-
instituted as a superior court of record, with exclu-
sidered a residual power. It is not one of the
sive jurisdiction in environmental and planning
enumerated powers of the Federal Parliament,
law. In that same year, the Environmental Planning
and therefore it falls to the states. Like the rest of
and Assessment Act 1979 (NSW) was passed,
the world, Australia was unaware of the con-
mandating that town planning decisions must take
sequences of exploiting the environment until
account of environmental considerations.
relatively recently. New South Wales passed the

Forestry Act in 1916 but it was primarily concerned
Federal powers and legislation
with the regulation of the timber industry and
The Australian Constitution limited the role the
made little reference to the responsible manage-
Commonwealth could play in environmental
ment of this resource.
affairs for much of the 20th century. However, as

awareness of environmental degradation and the
passed a number of laws that were clearly aimed
loss of species and habitats became increasingly
at the protection of the environment, including
obvious, the federal government began to take
the Clean Air Act 1961, Clean Waters Act 1970,
a more active role. The Case Spaces following
Pollution Control Act 1970 (all since repealed by the
illustrate how this was accomplished, through con-
Protection of the Environment Operations Act 1999
stitutional interpretations by the High Court.
c a se sp ace
During the 1960s and 1970s, New South Wales
residual powers
government powers
that are not listed in
s 51 of the Australian
Constitution as
legislative powers of
the Commonwealth
Parliament, and thus
belong to the states
enumerated powers
legislative powers that
are specically set
out as belonging to a
particular parliament;
in Australia, the
enumerated powers
of the Commonwealth
Parliament are
listed in s 51 of the
Constitution
dation joined forces to mount a well-organised
Murphyores v The Commonwealth (1976) 136 CLR 1

During the early 1970s the
Murphyores to stop. The Com-
constitutional power. Technically,
Queensland Government granted
monwealth did, however, have
the Commonwealth did not stop
a lease to a company called
power over exports and imports
the mining; it stopped access to
Murphyores to extract certain
under s 51(i) of the Constitution:
the markets.
minerals from sand on Fraser
that is, the trade and commerce
Island. Today such a proposal
power. The Commonwealth
case was that it highlighted
would seem preposterous, but at
refused to issue Murphyores with
the increasing importance
the time Queensland saw it is an
an export permit, effectively
placed on the environment
economic opportunity.
denying it a market.
by the Commonwealth, and
The federal government
The case went to the High
The signicance of this
its indication that it would be
requested that the mining cease,
Court, which held that the
prepared to intervene in affairs
but it did not have the consti-
federal governments denial of
traditionally handled by the
tutional authority to order
the permit was a valid use of its
states if necessary.
293
ca s e s p a ce
Tasmania v The Commonwealth (1983) 158 CLR 1

Tasmania wanted to build a hydroelectric dam
The signicance of this case was enormous.
on the Franklin and Gordon River system.
For example:
A group of environmentalists began a
s The Commonwealth could now make
protest campaign against this proposal, and
environmental laws using the external affairs
the Wilderness Society and the Australian
power if this was necessary in order to full its
Conservation Foundation became actively
obligations under international law.
involved. Nationwide protests were organised
s It ensured that Australia could implement its
under the No Dams slogan and a range of high-
international obligations to override unwilling
prole personalities took up the cause.
states.
The Tasmanian Government argued that the
s It is the leading example of how NGOs (in this
building of the dam was a residual power and
case, the Australian Conservation Foundation
the protesters, while entitled to their view, were
and Wilderness Society) can shape community
not going to change the governments decision.
values and standards and thus promote law
In the lead-up to the 1983 federal election the
reform.
leader of the Australian Labor Party promised to
s It highlighted how the democratic process
stop the dam if elected. Labor won the election,
(in this case, the 1983 federal election) can
but Tasmania continued to build the dam.
place pressure on governments to assume
The federal government recognised
responsibility for the environment. Since then,
Tasmanias Wild Rivers area as a region of
the environment has become a central policy
special signicance and it was listed under the
of all political parties.
World Heritage Convention. Since international

law is not binding until implemented by domestic
legislation, the federal government passed the
World Heritage (Property Conservation) Act 1983
(Cth), which specied that such areas of special
signicance should be protected. The Franklin
was included as one such area. This created a
conict however as now there was a state law
allowing the construction of the dam and a
federal law demanding that it be stopped. The
case then went to the High Court.
In a 4 to 3 decision the High Court ruled that
the federal government was making valid use
of the external affairs power (s 51(xxix)), which
gives it the authority to legislate on any matter
of international concern. Under s 109 of the
Constitution, when a law of a state is inconsistent
with a law of the Commonwealth, the
Commonwealth law prevails. The construction of
the dam was stopped.
294
Figure 11.13 Protests against the construction

of the dam did not deter the Tasmanian
Government.
legal framework for the protection and manage-
Australias three-tiered system of government
ment of nationally and internationally important
(federal, state and local) has resulted in a degree
animals, plants, ecosystems, and places dened in
of fragmentation of environmental authority. An
the Act as matters of national environmental
important initiative to dene state and federal
signicance. Under this Act, any activities involving
roles more clearly, reduce jurisdictional disputes,
matters regulated by the Act may require asses-
foster a cooperative approach, and ultimately pro-
sment and approval from the Minister for the
vide better environmental protection was the 1992
Environment. These matters under Common-
Intergovernmental Agreement on the Environment
wealth jurisdiction include:
(IGAE), which reected some elements of the Rio
s World Heritage sites
Declaration as well as setting out the agreed areas
s National Heritage places
of responsibility between the Commonwealth and
Environment Protection and Biodiversity Conser-
s nationally
protected
wetlands
(Ramsar
Environment Protection Council (NEPC) was set
wetlands)
s nationally
all state and territory governments. The National
listed
threatened
species
and
up under the National Environment Protection

Council Act 1994 (Cth) (NEPC Act) to oversee the
s listed migratory species
implementation of the IGAE. As stated in s 3 of
s nuclear actions (including uranium mines)
the NEPC Act, the obects of the legislation are to
s Commonwealth marine areas
ensure that people enjoy the benet of equivalent
s land owned by the Commonwealth
protection from air, water or soil pollution and
s activities by Commonwealth agencies.
from noise, wherever they live in Australia, and to
c as e s p ac e
ecological communities
vation Act 1999 (Cth) (EPBC Act). It provides the
Relationship between
federal and state
environmental law
The main federal environmental law is the
EPA v Gardner LEC [1997] NSWLEC 169

From October 1993 to April
threat to the health and safety
message to polluters. The Land
1996 Charles Gardner, while
of users of the river and the
and Environment Court had
operating a caravan park in
nearby oyster farms.
held the power to imprison
Karuah, pumped over 120 000
The Hon Justice David H.
people since 1989 but had
litres of raw sewage into
Lloyd made history in this case
never used that power until
the Karuah River. Gardner
by sending Gardner to prison
now. Ian Lloyd QC was the
had installed a system of
for his activities. Gardner
prosecutor for the EPA in the
underground pipes and valves
received twelve months in
case and he noted after the
to pump the raw efuent
prison and was also ordered to
decision: I see the function
directly into the river to avoid
pay $420 000 in nes and costs.
of prosecuting environmental
$850 a week in sewage removal
Brian Gilligan, the director of
criminals as equally if not more
fees. Not only did this material
the Environment Protection
important than prosecuting
create offensive smells in
Authority (EPA) stated that
murderers.
Karuah, it posed an enormous
the decision sent a powerful
295
R E VIEW 11.9
between enumerated and
protect businesses and markets from
Environmental Planning and Assessment Act 1979
inconvenient effects of jurisdictional
(NSW) can replace the need for assessment under
variations.
the EPBC Act, although they still require approval
Another means of streamlining fed-
residual powers.
from the Commonwealth Environment Minister.
2 Describe the development
eral and state responsibilities is the use
Often the various levels of government attempt
of environmental law in
of bilateral agreements between the
to operate collaboratively, as with the Murray
New South Wales.
Commonwealth and each of the states
Darling Basin Ministerial Council, comprising the
and territories. In 2007 the federal and
relevant Ministers from NSW, Victoria, South
which federal and state
NSW governments signed a bilateral
Australia, Queensland and the Commonwealth.
governments cooperate
agreement, which allows the Common-
The Council was established by the MurrayDarling
with respect to environ-
wealth to accept an environmental
Basin Agreement in the Water Act 2007 (Cth), and it
mental protection law.
assessment done by the state if it fulls
has a decision-making role in federalstate plans
certain conditions. In other words,
for sustainable use of the resources of the Murray
some assessment procedures under the
Darling Basin, used by all of these states.
3 List some ways in
4 Outline the signicance of

the Tasmanian Dam case.
Co n t e m p o ra r y i s s u es co n ce r n i n g
g l oba l e nv i r o n m e n t a l p r o t ec t io n
Issue 1: The laws role
in relation to global
environmental threats
sovereignty is enshrined in the Charter of the
The law and the legal system not only set out the
development, unless nation-states comply they
rules that all parties in a jurisdiction are expected to
accomplish very little. And unless a nation con-
follow, but also provide for when and how breaches
siders that it is in its best interests to comply with
should be punished. In the area of environmental
an external obligation, it is unlikely to do so.
protocols and declarations may outline brilliant

strategies for promoting ecologically sustainable
law, laws have the aim of preventing, mitigating
However, when nation-states do implement
and/or remedying damage that human activities
their obligations they can be characterised as
have caused to the environment. To achieve these
thinkinging globally and acting locally. To have
aims, the law must also encourage cooperation and
domestic effect in Australia, an international
resolve conicts between parties whose interests
treaty must be implemented in national law.And
are affected.
in Australia there can be heavy penalties for
At an international level, treaties and protocols

set out the rules with respect to environmental
protection. The International Court of Justice is the
pre-eminent body for resolving disputes between
296
United Nations (Article 2). While the conventions,
individuals and organisations that breach domestic environmental law.

When the worlds nation-states do work collaboratively, the results can be spectacular.
nation-states. As we have seen, soft law such
The Vienna Convention for the Protection of the
as declarations and action plans can also play a
Ozone Layer was negotiated in 1985 and came into
role in prompting national government action and
force in 1988. The accompanying Montreal Proto-
inuencing the behaviour of corporations and
col came into force in 1989 and set out legally
other agents. The primary actors at international
binding reduction targets for nation-states. A
level, however, are nation-states, and national
management plan for phasing out CFCs was intro-
The hole in the ozone layer was rst recognised as
global warming, harm to marine life, and
a global issue in 1978, when satellite technology
increased rates of skin cancers.
enabled its size to be measured, and over the next

few years, its growth rate. Chlorouorocarbons
(CFCs), a class of chemical compounds that are
able to break the bonds between ozone molecules,
were identied as the main culprit. CFCs are stable
and non-toxic and have been used in refrigerators
and air-conditioning units, and as propellants in
aerosol products. It soon became apparent that
the only long-term solution to ozone depletion
was to phase out the use of CFCs. Ozone prevents
the most harmful UVB light (ultraviolet radiation
of relatively short wavelengths) from reaching the
Earths surface, and its continued depletion could
duced and nation-states have complied by banning

their use and introducing alternative products. In
September 2006 the ozone hole reached its largest
size of 27.4 million square kilometres, but by
September 2009 it had contracted to 25 million
square kilometres. Roger Dargaville, a research
l eg al l i nks
have dire consequences, including accelerated
Figure 11.14 The hole in the ozone layer.
ca s e s tu d y
Ozone layer destruction
For an insight into the latest

research relating to the ozone
hole, see www.atm.ch.cam.
ac.uk/tour/
fellow in Climate Change at The University of

Melbourne, noted in a 2009 interview by the
Sydney Morning Herald: The Montreal Protocol
cut example. Both Australia and the United States
was absolutely critical. It is ... the worlds most
would not ratify Kyoto because they believed the
successful treaty, with every country on Earth
economic consequences would far outweigh the
signing on. Ko Annan, the former Secretary
benets of compliance and that they would be
General of the United Nations, once referred to it
unfairly burdened compared to the developing
as perhaps the single most successful interna-
nations.
tional agreement to date.
The
Convention on International Trade in
The Montreal Protocol is the classic example of
Endangered Species of Wild Fauna and Flora (CITES)
what can be achieved through global cooperation.
has 175 parties and applies to more than 30 000
At current rates, the hole in the ozone layer is
species. Yet it is common knowledge that the black
expected to be repaired within 50 years.
market trade in endangered species continues.
Conversely, when states do not work together in
The difculties of enforcing treaty provisions are
accordance with international law, the results can
exacerbated by the fact that many of the indi-
be disappointing. The reluctance of many coun-
viduals engaged in the trade are from developing
tries to ratify the Kyoto Protocol provides a clear-
countries. Also, such countries may nd that the
297
c as e s tu d y
costs of maintaining an ofce for administration of
of species and their habitats (see www.trafc.org/
treaty obligations and participating in Convention
overview/). Highlighting the effectiveness, or other-
of the Parties meetings are prohibitive. In addition,
wise, of international law with respect to global
fees for hunting licences and permits may be a
environmental protection is often a focal point for
major source of revenue for the countries.
NGOs. As they are independent of governments
In response to these difculties, NGOs have
as well as corporations, NGOs are able to pub-
arisen to try to ll the gaps. TRAFFIC, formed as a
lish inconsistencies, problems and breaches of
specialist agency of the International Union for the
international obligations without conict of inter-
Conservation of Nature and also afliated with the
est. Nationally based NGOs perform a similar
World Wide Fund for Nature (both of which have
function
a wider scope), actively monitors wildlife trade to
Tasmanian Dam and Brent Spar cases illustrate
ensure it does not pose a threat to the conservation
the potential effectiveness of NGOs.
domestic
jurisdictions.
Southern Bluen Tuna

This Southern Bluen Tuna is one of the worlds
shing within the Australian Fishing Zone and some
most prized delicacies. It is listed as critically
adjacent areas, under international arrangements.)
endangered by the World Conservation Union and
The Sydney Morning Herald reported in August
one-third of the catch takes place in Australian
2006 that Japan had illegally taken over $2 billion
waters, primarily off the coast of South Australia.
worth of southern bluen tuna over the previous 20
Some estimates have only 3% of its breeding
years (the magnitude was increased to $6 billion by
stock remaining. Moves were made by Sweden in
Oct 2007). So signicant have these illegal catches
1991 and Kenya in 1994 to have the bluen tuna
been that the breeding stock of southern bluen
included in CITES Appendix I (which prohibits
tuna has been drastically reduced.
trade) or Appendix II (which provides for enhanced
A voluntary management arrangement between
monitoring of the species but allows limited trade
Australia, Japan and New Zealand, including
under certain conditions). Both attempts failed
quotas, was formalised in 1994 when the
due to intense pressure from Japan. In fact, the
Convention for the Conservation of Southern
Australian government also refused to list the sh
Bluen Tuna, signed by the three countries in May
as endangered under the Environment Protection
1993, came into force. The Convention created the
and Biodiversity Conservation Act 1999 (Cth)
Commission for the Conservation of Southern
because doing so would be detrimental to the
Bluen Tuna (CCSBT).
survival of the species, as it may weaken Australias
According to Australian Fisheries Management
ability to inuence the global conservation of the
Authoritys managing director, Richard
species, and by implication, its conservation in
McLoughlin, Japan has a national quota of 6000
Australian waters.
tonnes but has been catching up to 20 000 tonnes
In 2007 it was uncovered that Japanese boats
298
within
a year. McLoughlin described it as an enormous
had taken billions of dollars worth of southern
international fraud that has been allowed to
bluen tuna illegally and as a result the Australian
occur because the Japanese only ever allowed
government now requires Japanese boats to have
Japanese observers on Japanese boats. If Japan
an independent observer on board to monitor
had stuck to its quota, the sh stock would now be
catches. (Many countries, including Australia, have
ve times larger. Japans quota has been halved to
observer programs which place observers on boats
3000 tonnes a year.
The
A full explanation of the decision
effects of resource use, such as global warming,
by Australian authorities not to list
species extinction, and pollution.
the sh as endangered under the
The ecological footprint and The Story of
EPBC Act can be seen at www.
Stuff highlighted the global use of resources
environment.gov.au/biodiversity/
and clearly illustrated the inequities in resource
threatened/species/southern-
consumption between nations. Redressing this
bluen-tuna.html
imbalance to provide justice for nation-states and

society creates numerous dilemmas. Nation-states
have their own expectations of what they hope
to achieve and are averse to external standards
Conclusion
imposed by the international community.
International law works most effectively when it
NGOs such as the Australian Conservation
is not only directly implemented by domestic law,
Foundation (ACF) have expressed their distrust
but supported by additional domestic initiatives.
of nuclear energy in the strongest terms and Don

Henry, Executive Director of the ACF, stated in
Issue 2: The demand for

resources and global
A non-renewable resource is a naturally occurring
resource that cannot be produced, re-grown, regenerated, or reused on a scale comparable with its
a 2005 interview by the Sydney Morning Herald

that wind and solar energy are far more desirable
alternatives:
Australia should be leading the way by backing renewable energy technology and energy efciency
a truly practical and sustainable solution.
rate of consumption. Non-renewable resources are
The Australian federal government has moved
generally considered nite because their consump-
in this direction in recent years by offering rebates
tion rate far exceeds the rate that nature can
for solar panels on homes, and housing insulation
replenish them; examples include coal, uranium,
that reduces energy use for heating and cooling
petroleum and natural gas. Renewable resources
purposes.
are those that can regenerate themselves via natural
The international legal system is engaged in an
or human management processes, meaning they
ongoing effort to implement a framework to moni-
can be replenished for future generations for
tor climate change and limit greenhouse gas
example, timber, sh, solar energy and wind power.
emissions. The UN Framework Convention on
If a resource such as sh or timber is over-harvested
Climate Change formulated at Rio was the rst step,
it will not have the opportunity to reproduce at a
but it was the additional Kyoto Protocol that
rate that is sufcient to ensure that it can last
outlined a legal response to the conict between
indenitely.
resource use and global environmental protection.
There is obviously a strong link between resource
The Kyoto Protocol recognised that developed
usage and sustainability. Resources are the funda-
countries were primarily responsible for green-
mental component of the economic system in both
house gas emissions and thus placed a heavier
industry and agriculture. The legal system has in
burden on them compared to developing nations,
recent times intervened in the resource markets to
on the basis of common but differentiated res-
provide a more equitable outcome. The paradox is
ponsibilities. This has proved to be quite a
that the use of resources generates revenue, which
stumbling block for nations deciding whether to
provides wealth and raises living standards, but if
comply with the Kyoto Protocol.
the resources are non-renewable, they will not be

available to future generations. The problems for
legal links
future generations will be compounded by the side
The Kyoto Protocol contained some novel

incentives for industrialised countries, including:
299
s emissions trading (the carbon market) allows
accepted that there is a need to keep global
nations to sell emission units not used by them
temperature rises below 2 degrees Celsius, only a
to countries that have exceeded their targets
weak political accord with no legal standing was
s Clean Development Mechanism enables
s No numerical targets were established.
reduction projects in developing countries
s China
(where costs are lower), as an alternative to

more expensive reduction projects in their own
refused
to
accept
international
monitoring.
s Rich nations agreed to pay $30 billion by 2012
territory.
(and $100 billion per year up to 2020) to assist
These mechanisms were designed to stimulate
poor countries with climate change issues, but
green investment and help countries to meet their
the funding details were not addressed in detail.
targets in a more cost-efcient manner. The Kyoto
s A technology transfer deal was created so that
Protocol also required countries to accurately
countries could adapt to climate change and
monitor and report on emissions and any carbon
generate clean energy.

s Carbon markets were deemed to be cost-
trades.
c as e s tud y
achieved. Some of the results were:
industrialised countries to invest in emissions
The need for a more comprehensive global
effective in cutting emissions, but clearly busi-
response after Kyoto led to the Copenhagen Con-
ness will need much more detail in order to
ference in December 2009. While it was generally
enter such arrangements with condence.
Uranium and nuclear energy

Australia has about 40 per cent of
environmental guidelines (the
nuclear process and is the build-
the worlds uranium. One tonne
Four Mile uranium mine in South
ing block for devastating nuclear
of uranium can generate the
Australia was approved in July
weapons. Any nuclear accidents
same amount of energy as 13 000
2009). The fears relate to pluto-
could have dire consequences, as
tonnes of coal. The burning of
nium, which is produced in the
occurred in Chernobyl in 1986.
coal produces 9 billion tones of

greenhouse gases each year.
Australia would reap enormous
economic benets from
embracing nuclear energy and
selling uranium on the global
markets, plus our output of
greenhouse gases would fall
markedly. So why hasnt Australia
embraced nuclear energy?
Australia does sell uranium to
36 nations who are signatories to
the Nuclear Non-Proliferation
Treaty (1970) and the federal government has approved new mines
if they follow very stringent
300
Figure 11.15 Peter Garrett, former lead singer of Midnight Oil, often
spoke and sang about the dangers of uranium. As Minister for the
Environment he controversially approved the Four Mile uranium mine.
Fossil fuels (oil, gas, coal) have
of the developed nations.
Watch Institute, Vital Signs
long been the major contributor
Developing countries have over
Online, 15 October 2009).
to greenhouse gas emissions
four times the population of the
International attempts to curb
and thus are often held to be
industrialised world and there is
consumption will inevitably
the major culprit of climate
a huge demand for more energy
come up against resistance
change. Essentially, greenhouse
resources to fuel economic
from countries that have only
gases allow sunlight to enter
development and thus living
recently begun to enjoy the
the atmosphere and the Earth
standards (James Russell, Fossil
material living standards of the
warms up as it absorbs the
Fuel Production Up Despite
industrialised world.
infrared radiation, but the
Recession, World
greenhouse gases limit the

re-radiation of the sunlight
back into space. According
to the US Energy Information
Administration, about 75% of
anthropogenic (human-caused)
greenhouse gases has come
from the burning of fossil fuels
ca s e s tu d y
Fossil fuels and greenhouse gas emissions
over the past 20 years.

In addition to the excesses
of the afuent, demand for
resources in developing
nations has surged over the
past decade. According to the
World Watch Institute, fossil
fuel consumption in developing
countries has exceeded that
Figure 11.16 According to the US Energy Information

Administration, about 75% of anthropogenic (human-caused)
greenhouse gases have come from the burning of fossil fuels
over the past 20 years.
The hope is that Copenhagen will lay the foun-
poor countries) and somehow balance their
dation stone for a legally binding treaty in the
competing rights. The above case studies illustrate
following years.
some of the dilemmas faced by nation-states,

but underpinning every decision is the doctrine
Conclusion
of sovereignty. The extreme scenario faced by a
The need to resolve the conict between resource
nation-state is exemplied by what is confronting
use and global environmental protection is at the
the Maldives, one of the lowest-lying nations in
core of sustainable development. The legal system
the world. President Nasheed of that country
must take into account an enormous range of
has proclaimed that a fund is being established
competing interests (including developers, nan-
to purchase land to relocate its population in the
cial institutions, NGOs, governments, corpor-
event that rising sea levels make occupation of the
ations, and future generations in both rich and
Maldives untenable.
301
c as e s tud y
Issue 3: Australias
responses to
international initiatives
into domestic legislation. Consequently, Australias

responses to international initiatives must comply
not only with the Constitution, but also with the
limitations set by relevant legislation.
Australia has traditionally been proactive in its
Not only is it the creation of international laws
responses to international initiatives for global
(both hard and soft) that inuences the direc-
environmental protection. The section of this
tion of Australias responses to international en-
chapter on Australias federal structure outlined
vironmental initiatives, but also the outcomes
the constitutional division of power between the
of the various conferences and ndings of inter-
federal government and the states. Essentially, the
governmental organisations.
states have the bulk of the power to legislate
NGOs also play a pivotal role by placing pres-
regarding the environment, as it is considered a
sure on governments. Any environmental event or
residual power, but the Tasmanian Dam case
issue that has a direct impact on Australian citizens
established that the federal government can use
will inevitably lead to pressure from sections of the
its external affairs power (s 51(xxix)) to implement
community on elected representatives. Govern-
international obligations. Furthermore, no inter-
ments will respond to community demands
national law has effect in Australia until enacted
because of the power of elections. If a policy or
Enforcement of environmental laws

The enforcement of laws aimed at global
environmental protection is another
proactive way in which Australia (at both
federal and state levels) has responded
to global initiatives. The case of EPA v
Gardner highlighted the growing recognition

of environmental crimes in domestic
jurisdictions regarding pollution and toxic
waste. The stealing (and destruction) of
biodiversity has been another activity that
has been routinely monitored and the law
enforced. For example, in November 2004
a Sydney man was charged after trying to
smuggle 23 parrot eggs out of Australia in his
underpants. He was charged for attempting
to export regulated native specimens. The
maximum penalty for wildlife smuggling
under the Environment Protection and
Biodiversity Conservation Act is 10 years jail
and/or a $110 000 ne. This is an example of
domestic enforcement of CITES.
302
Figure 11.17 Parrot eggs contained within a specially

designed vest.
expectations, then a governments election

chances are in peril.
However,
the
same
individual
who
is
concerned about the environment may also be a

person who is concerned about his or her job.
Throughout 2009 the Rudd Labor government
The Australian federal government

has a website to inform the public
of its responses to the need for
environmental protection based on
ESD, at www.environment.
gov.au/esd/
attempted to implement carbon emissions laws

(notably, a carbon trading scheme) prior to the
Copenhagen Conference. This stance was
R ESEAR CH 1 1 . 6
strongly supported by NGOs and many sectors
Make a summary of the cascading effect of inter-
some environmentalists about selling permits to
national law on the domestic arena by viewing
pollute), but was opposed by the mining industry
the PowerPoint presentation prepared by Ilona
and many agricultural interests. The Senate
Millar at www.actpla.act.gov.au/__data/assets/
blocked such moves late in 2009.
pdf_le/0007/13894/Millar_presentation.pdf
c as e s tud y
of the community (not without misgivings from
Ratication of international laws
legal links
law is not aligned to community views and
As discussed, there is a vast array of international laws relating to global environmental protection.
The key international laws that Australia has ratied are shown in this table.
International
law
Date of
Australian
ratication
Australian law reecting international obligations
CITES
1976
Initially by the Wildlife Protection (Regulation of Imports and

Exports) Act 1982 (Cth) but since 2002 by Part 13A of the
Environment Protection and Biodiversity Conservation Act 1999
(Cth)
Ramsar
Convention
1975

(Cth) in conjunction with the National Framework and Guidance for
Describing the Ecological Character of Australias Ramsar Wetlands
Biodiversity
Convention
1993

(Cth). Australias rst national report was produced in June 2009
and can be viewed at www.environment.gov.au/biodiversity/
publications/cbd/rst-national-report.html
UN Climate
Change
Convention and
Kyoto Protocol
UNCCC in
1994 and
Kyoto in
2007
Following ratication of the Kyoto Protocol by the Australian

government, the Garnaut Review and the Green Paper on preferred
options for a broad-based emissions trading scheme in Australia (to
be known as the Carbon Pollution Reduction Scheme) rejected by
the Senate in late 2009
Montreal
Protocol
1989
Ozone Protection and Synthetic Greenhouse Gas Management Act

1989 (Cth)
303
Conclusion
refused to undertake the ratication process. This
Australia has been proactive in enacting environ-
situation was further exacerbated by the emergence
mental legislation, including responses to global
of so-called climate change sceptics.
problems, when it identies an issue as one that
Environmental processes and natural pheno-
directly affects its own territory and citizens.
mena are different from political and other social
Resolving the tension between national sovereign-
events; they are arguably more difcult to deal with
ty and international environmental protection may
in the process of negotiation and compromise that
require individuals and governments to see their
constitutes policy-making. Environmental policy-
own interests either as inextricably bound up with
makers must have at least some understanding
those of other peoples and countries, or as being
of the science supporting the instruments they
directly affected by a particular environmental
propose to enact, and must be able to resolve
threat. As Australias population is located primarily
various tensions between the ethical and political
around the coasts, it may be in a position where
implications of the precautionary principle.
global warming and rising sea levels represent an

urgent and immediate threat.
The UN is large and labyrinthine, and there is

some lack of coordination between the General
Assembly and the other organs and agencies and
304
Issue 4: Barriers to
achieving an international
response to global
between the separate development funds and pro-
A cohesive, coordinated, global and holistic
international law.
grammes. These all may be factors in international

bodies difculty in inuencing national laws and
policies.
There is also the inherent difculty of enforcing
approach based on ESD is the most effective way
International agreements are often geared to
to achieve global environmental protection. Such a
specic issues considered in relative isolation.
large-scale international response is the ideal, but
When they are not, as in the framework conven-
what is attainable is a different matter. A number
tions arising out of international conferences,
of barriers limit a coordinated international res-
there is a greater potential for fragmentation and
ponse and the most obvious one is sovereignty.
disagreement about the various issues, resulting
A nations own unique circumstances can make
only in soft law.
it very reluctant to comply with international
The treaty-making process is time-consuming.
initiatives. The United Nations is in the difcult
Ratication by the parties requires persuasion at
position of having to respect national sovereignty
the domestic level, as governments attempt to
as mandated by its own Charter while serving as
create support for the treaty and consensus among
the means of achieving international cooperation.
their citizens.
When nation-states work collaboratively the
Other challenges for international environmen-
results can be extremely positive, as evidenced by
tal protection stem from the fact that the world
the results of the Montreal Protocol on ozone deple-
is much more complex than it was when the UN
tion. The reluctance of nation-states to take decisive
was initially formed. Development, consumers
action on climate change over the past two decades
expectations and population growth all contribute
suggests that they found the short-term costs too
to increased competition for natural resources. In
high, and had insufcient incentives to work together
addition, corporations exert a much greater inu-
for long-term goals. Nations were generally more
ence on domestic economic and social policies
than willing to sign and ratify the UN Climate Change
today, and governments must nd ways of making
Convention in 1992 but once legally binding targets
sustainability attractive to entities whose chief
were set, many (including Australia and the USA)
objective is prot.
The Copenhagen Conference on Climate Change
s One of the more positive results of the
in December 2009 illustrated some of the key
conference was a deal by which developed
issues relating to international responses regarding
countries would pay poorer ones to preserve
global environmental protection. For example:
their tropical forests, obtaining carbon credits
s Although the parties recognised the scientic
for the nancing. The deal was popular with
case for keeping temperature rises to no more
the USA because it is cheaper than actually
than 2C, the Copenhagen Accord does not
reducing emissions, but it is weak on details
contain binding commitments. Nations did not
and how it will be governed.
want to undermine economic development.
s Some American commentators blamed China
s In early negotiations the 40 key developed
for the lack of a binding treaty. Many blamed
nations were expected to make cuts in
the US for coming to the talks with an offer of
greenhouse gas emissions by up to 40% of 1990
just 4% emissions cuts from 1990 levels.
levels by 2020 and 80% by 2050. Developing
s There was a quarrel over whether to abandon
nations, with their increased populations and
the Kyoto Protocols legal distinction between
growing wealth, were expected to reduce
developing and developed countries. This could
greenhouse gas emissions by 25% of 2000
be seen as an attempt by the West to get out of
levels by 2050. With such a large gap in
its responsibility for climate change.
expectations it was simply not feasible that
On the nal day of negotiations, UN Secretary-
developed nations would commit to deep cuts
General Ban Ki-moon said in an address to the
without what they considered a fair reduction
conference: We do not have another year to
by developing countries. The reference to
deliberate. Nature does not negotiate.
ca s e s tu d y
The Copenhagen Conference
deeper cuts was dropped, as was the goal of

80% cuts by 2050.
Conclusion
The key barrier to achieving international
R EVI EW 1 1 . 1 0
1 Outline the role of international and domestic
environmental protection is resolving the
law in relation to global threats to the
tension between the need for coordinated
environment.
action and nation-states protection of their

own interests. It is universally recognised
that deep cuts in greenhouse gas emissions
must be made, but who should shoulder
the burden? Developing and industrialised
countries have different views on what is
2 Write a report explaining the success of the

Montreal Protocol.
3 Explain the difference between renewable and
non-renewable resources.
4 Explain the link between resource usage and
sustainability.
fair. Frequently, in order to simply get a
5 Describe the changes in Australian government
global response conditions and enforcement
policy towards climate change since the 1990s.
mechanisms are watered down. Is a soft law

better than no agreement at all?
6 Outline the barriers that limit a coordinated

international response to global environmental
protection.
305
306
C hap ter s umm a ry
s Environmental problems, like economic

development, have become globalised.
s Current laws and policies recognise that
ecologically sustainable development (ESD)
should be the basis of all efforts aimed at
global environmental protection.
s The four key elements of ESD are biodiversity,
intergenerational equity, intragenerational
equity and the precautionary principle.
s The United Nations and its various agencies
(UNEP, UNESCO) have a major role in
promoting ESD internationally.
s A vast array of international instruments (both
hard and soft law) have focused on global
environmental protection.
s The two major international conferences on
the environment have been Stockholm (1972)
and Rio (1992). The Rio Conference resulted
in several inuential instruments, including
the Rio Declaration, Agenda 21, the United
Nations Framework Convention on Climate
Change, and the United Nations Convention
on Biological Diversity.
s Other international conferences focus
primarily on a single treaty and elaborate its
provisions or negotiate binding commitments,
formulated in a protocol.
C h a pt e r su mm ary tasks
1 Use examples to explain the operation of

international law in Australia.
2 Outline how national sovereignty can limit
the effectiveness of international instruments
aimed at global environmental protection.
3 Use examples to illustrate how soft law can
protect the global environment.
4 With reference to specic cases, outline the
effectiveness of the International Court of
Justice in resolving environmental disputes.
5 Explain how the worlds demand for
resources conicts with the need for global
environmental protection.
s In addition to ad hoc tribunals, the

International Court of Justice is the main
forum for resolving environmental disputes
between nation-states.
s Intergovernmental and non-government
organisations (IGOs and NGOs) play a pivotal
role in publicising, educating and promoting
global environmental issues.
s Australias federal structure and power over
environmental issues are determined by the
Constitution. The environment is a residual
power and thus the states have the bulk of
environmental law-making power, but the
precedent set in the Tasmanian Dam case has
given the federal government the authority to
introduce environmental laws of international
importance.
s National sovereignty is a key factor in the
success of international initiatives. Nations
will act in their own best interests and this
can both assist and impede international law.
1 Choose a global environmental issue (e.g.

depletion of food resources, climate change,
industrial pollution) and discuss past and
current attempts to remedy it. Evaluate the
effectiveness of these attempts.
2 Discuss the principles of ecologically
sustainable development (ESD) in relation
to industrialised countries and developing
countries. What factors will inuence the
choice of the means to implement ESD in
these countries?
3 Explain the conict between increasing
standards of living and environmental
protection. Suggest strategies for resolving
this conict. What agencies should take an
active role? Would the United Nations (or
agencies of the UN), national governments,
intergovernmental organisations, or some
other body be most effective?
c High Court of Australia

d The Intergovernmental Panel on Climate
Change
4 Which of the following activities are
regulated by the Environment Protection and
Biodiversity Conservation Act 1999 (Cth) and
require ministerial approval?
a proposed alterations to World Heritage
sites
b shing by ships registered in Japan or New
Zealand
c activities by Australian NGOs
d proposed alterations to New South Wales
state parks
5 Which of the following international
instruments sets binding targets for emissions
of CFCs?
a UN Framework Convention on Climate
Change
b Kyoto Protocol
c Vienna Convention for the Protection of
the Ozone Layer
d Montreal Protocol
M ul ti p l e c hoi ce q u e s ti o n s
Ex t e nd e d res po ns e q ues ti ons
1 What element of ecologically sustainable

development refers to looking after the needs
of future generations?
a the precautionary principle
b biodiversity
c intergenerational equity
d intragenerational equity
2 The Stockholm Declaration, the Rio
Declaration, the Copenhagen Accord and
Agenda 21 are all considered:
a hard law because they contain enforcement
mechanisms
b hard law because they were all formulated
at UN mega conferences
c soft law because they do not contain
enforcement mechanisms
d soft law because they only come into effect
after they have been ratied by nationstates
3 Which court has the jurisdiction to resolve
disputes between nation-states concerning
environmental matters?
a Land and Environment Court
b International Court of Justice
4 Discuss the relationship between domestic

law and international law. What changes
could feasibly be made at either national
or international levels to strengthen global
environmental protection?

your response.
307
308
The effect of state sovereignty on

international cooperation and the resolution
of conict regarding environmental protection
s Sovereignty plays a crucial role in

determining nation-states cooperation with
international initiatives.
s Sovereignty is a fundamental right of nationstates, as is clearly stated in Article 2 of the
Charter of the United Nations.
s Nation-states may sign and ratify international
agreements, but unless they incorporate
them into the domestic arena they are of little
effect.
s Consequently, international law aimed at
environmental protection relies heavily
on the willingness of nation-states to act
in accordance with global needs, or their
perception that it is in their own best interests
to do so.
s The means of enforcing compliance with

international agreements are limited.
Without the enforcement mechanisms
that exist at a domestic level (see EPA v
Gardner), compliance at an international
level often involves intense negotiations and
compromise.
s The means of enforcing compliance (e.g. by
the ICJ) are limited, yet enforcement is the
cornerstone of the laws effectiveness.
s Both individuals and nations decide to comply
or not with the law depending on a range of
factors, such as ethical considerations, fear
of consequences, and what is in their best
interests.
s Overcoming the effects of climate change by
reducing greenhouse gas emissions is clearly
in everyones best interests, but international
compliance is limited by economic
considerations.
s Differences in the circumstances of
developed and developing nations means
that they have different perceptions of a just
and fair agreement that will limit industrial
development.
The role of law reform in protecting the global

environment
s Peoples attitudes towards environmental

protection have changed radically over
the past 50 years but these changes have
certainly not been uniform across the planet.
Cultural characteristics as well as material and
economic circumstances are different.
s Information about the environment has
inuenced these changes in values and
attitudes. Environmental catastrophies,
species extinction, dwindling resource
supplies and pollution have a strong effect
on peoples wellbeing. Communication
technology and the media allow people to
view events in distant locations, and can
strongly inuence the way they view such
issues.
s Social attitudes give rise to pressure placed
on governments and businesses by voters
and consumers to implement change
for example see the Brent Spar and the
Tasmanian Dam protests.
s A major example of changing values is
the emergence of ESD as the basis for
environmental protection, particularly the
idea of considering future generations when
making decisions involving the environment.
s Scientic data indicates that there are

signicant reasons to change current practice,
but the law reform process often reects
priorities that are inconsistent with such data.
s With respect to the environment, the process
of law reform means that both domestic and
international law must be continually updated
to take into account factors such as:
changing values that will inuence
government actions
resource depletion and corresponding
changes in the prices and markets for nonrenewable resources
the failure of existing law
new technology
the effectiveness of legal and non-legal
responses in protecting the environment.
s The general objective of non-legal efforts
towards global environmental protection
is to inuence the legal system. Non-legal
efforts such as the campaigns of NGOs are
generally more effective when they gain
widespread community support so that
genuine pressure can be placed on decisionmakers (governments and corporations) to
introduce measures aimed at protecting the
environment.
s Agenda 21 is credited with being the
blueprint for the 21st century, but it is only
soft law. Some people consider it to be of
immense importance as a guide, while others
claim that it is impotent because it lacks any
form of enforcement process.
s The effectiveness of international legal
measures must be assessed according to their
stated aims, for example whether it contains
achievable targets.
The effect of changing values on

309
CHAPTER 12
Option 3: Family
O pt i o n 3 :
Family
Principal focus
Through the use of contemporary examples, students investigate the legal nature
of family relationships and the effectiveness of the law in achieving justice.
25% of course time

s the role of the law in encouraging cooperation and resolving conict in the
family context
s changes to family law as a response to changing values in the community
s the role of law reform in achieving just outcomes for family members and
society
s the effectiveness of legal and non-legal responses in achieving just outcomes
for family members.
themes and challenges relating to family. The summary draws on key points from
the text and links them to each of the themes and challenges. This summary is

booklet pages).
310
adoption
annulment
Apprehended Domestic
Violence Order (ADVO)
assault
autonomy
blended family
breach
decree nisi
decree absolute
de facto relationship
divorce
domestic violence
ex-nuptial
extended family
injunction
IM PORTAN T L EGIS L AT ION
Family Law Act 1975 (Cth)

Marriage Act 1961 (Cth)
Property (Relationships) Act 1984 (NSW)
Status of Children Act 1996 (NSW)
Children and Young Persons (Care and Protection) Act
1998 (NSW)
Children (Protection and Parental Responsibility) Act
1997 (NSW)
Adoption Act 2000 (NSW)
Crimes (Domestic and Personal Violence) Act 2007
(NSW)
Bail Act 1978 (NSW)
Succession Act 2006 (NSW)
The Mississippi Code of 1972 (USA) provides that a

man may not seduce a woman by lying, and claiming
he will marry her.
97-29-55 Seduction of female over age of eighteen
by promised or pretended marriage
If any person shall obtain carnal knowledge of any
woman, or female child, over the age of eighteen
s understand and outline the legal processes required

in dealing with family relationship problems
s evaluate how effective the law is in protecting
victims of domestic violence
s examine the role of non-government organisations
and the media in relation to family law
s evaluate the laws effectiveness in achieving justice
for parties involved in relationship breakdowns
s identify and investigate contemporary issues that
relate to family law and evaluate the effectiveness
of legal and non-legal responses to these issues.
intestacy
maintenance
marriage
neglect
nullify
nuptial
polygamous
probate
referral of powers
relinquishing parents
testator
will
O p t i o n 3: F am ily
key te r m s
rel evant l aw
o dd l a w

s identify and apply legal concepts and terminology
s communicate legal information using wellstructured and logical arguments
s discuss the problems associated with dening
family and how the concept of family is changing
s distinguish between state and federal jurisdiction in
family law
s outline the legal requirements of a valid marriage
s explain what the legal rights and obligations of
parents and children are, including rights derived
from international law
Some amending acts

Family Law Reform Act 1995 (Cth)
Family Law Amendment (De Facto Financial Matters
and Other Measures) Act 2008 (Cth)
Family Law Amendment (Shared Parental
Responsibility) Act 2006 (Cth)
Same-Sex Relationships (Equal Treatment in Commonwealth Laws General Law Reform) Act 2008 (Cth)
Miscellaneous Acts Amendment (Same-Sex
Relationships) Act 2008 (NSW)
Succession Amendment (Family Provision) Act 2008
(NSW)
Succession Amendment (Intestacy) Act 2009 (NSW)
Hyde v Hyde and Woodmansee (1866) LR 1 P&D 130

Di Mento v Visalli (1973) 1 ALR 352
B v J (1996) 21 Fam LR 212
C and M [2006] Fam CA 212
Re Michael: Surrogacy Arrangements [2009] FamCA 691
years, of previous chaste character, by virtue of any

feigned or pretended marriage or any false or feigned
promise of marriage, he shall, upon conviction, be
imprisoned in the penitentiary not more than ve
years; but the testimony of the female seduced, alone,
shall not be sufcient to warrant a conviction.
Cha pter 12: Option 3 : Fami l y
311
T h e n a t u r e o f f a m i l y l aw
The concept of
family law
Amendment (De Facto Financial Matters and Other
Family law is a wide-ranging area of law governing
ance are now determined under the Family Law Act
behaviour in the context of the family, including
1975 (Cth). In South Australia, state courts continue
rights and responsibilities regarding children
to have jurisdiction over matters concerning de
and the disposition of property when a marriage
facto couples (as of 2010). Western Australia has
breaks down.
maintained a separate Family Court of Western
The main function of the family is the care and

protection of its members. Law governs family
marriage
the union of a man
and a woman to the
exclusion of all others,
voluntarily entered into
for life
de facto relationship
a relationship where
the partners act as a
married couple but are
not legally married
blended family
a family that is
created when a parent
remarries; it includes
the stepmother
or stepfather and
stepchildren
extended family
a family that includes
individuals related
through marriage or
parentage and not
limited to one couple
and their children; in
some cultures, close
family friends are
regarded as members
of the extended family
referral of powers
the giving up of a
states legislative
powers in a certain area
to the Commonwealth
by passing an act,
pursuant to s 51(xxxvii)
of the Australian
Constitution
312
Measures) Act 2008 (Cth), questions regarding

property division and de facto spousal mainten-
Australia, which can deal with both federal and

state family law issues.
relationships so as to ensure that people in family
Although family law is concerned with protect-
relationships are nancially secure and that any
ing the rights of family members and ensuring
children of that relationship are cared for. The
that individuals meet their family obligations, it
more traditional and easily recognisable family
is also about family relationships. For this reason,
relationship is one based on marriage. However,
family law focuses more on reconciliation and
as our society has changed, so too has the struc-
on encouraging compliance than on the use of
ture of families, reecting a great diversity in
sanctions or coercion to enforce compliance.
domestic relationships. The many different family

arrangements within Australian society include
Aboriginal and Torres Strait Islander (ATSI) customary marriages, de facto relationships, same-
Legal requirements of
marriage
sex relationships, single-parent families, blended
Marriage is a legal institution, and individuals who
families and extended families. Family law has
intend to marry must take into consideration the
continued to change in order to extend protection
legal consequences of this union. When two people
to all members of these alternative family
marry, they make a promise, in front of witnesses,
relationships.
to provide and care for one another. The law has
Under s 51(xxi) of the Australian Constitution,
evolved to enforce this promise, to protect the
the federal government has the power and author-
rights of both parties and to protect the rights of
ity to make laws governing marriage and divorce.
any children born during the relationship.
The Marriage Act 1961 (Cth) established the legal

requirements of a valid marriage, while the Family
The legal definition of marriage
Law Act 1975 (Cth) sets out the legal duties and
The descriptions of marriage in Australian legi-
obligations that a marriage creates. The principal
slation are based on the denition in the English
aim of the Family Law Act was to reform the law
case of Hyde v Hyde and Woodmansee (1866) LR 1
governing the dissolution of a marriage.
P&D 130. Lord Penzance, in his decision, stated
In the past, only state parliaments could pass
that a marriage is the voluntary union for life of one
legislation about de facto relationships. However,
man and one woman, to the exclusion of all others,
most state governments have now referred their
i.e. a formal, monogamous and heterosexual union.
powers to the Commonwealth with respect to
These elements can be explained as follows:
both parenting disputes and property disputes,
s Marriage must be voluntarily entered into. The
whether in the context of a marriage or a de facto
marriage is not legally binding if one of the
relationship. After the passage of the Family Law
parties was forced or tricked into the marriage.
s Marriage, by denition, is for life. However, a

married couple do have the right to divorce,
thereby ending the marriage legally, before the
death of either party.
s The specication of one man and one woman
indicates that the parties to the marriage must
be of different sexes.
s To the exclusion of all others means that
marriage is the union of two people only. Some
cultures and societies do allow individuals to
have more than one spouse, that is, to have
mous marriages are not recognised in Australia
and are void if entered into within Australia.
Requirements for a valid

marriage
Figure 12.1 According to the Marriage Act 1961

(Cth), marriage is the union of a man and a
woman to the exclusion of all others, voluntarily
entered into for life.
Certain requirements must be met if a marriage is

to be legally valid. These requirements, found in
PRO H I B I TED REL ATI O NSH I PS
the Marriage Act 1961 (Cth), are discussed below.
A person cannot marry anyone who is closely

related
to
him
or
her
either
by
blood
G END ER
(consanguinity) or by marriage (afnity). This
In 2004, the Commonwealth Government passed
means that a person cannot marry his or her
the Marriage Amendment Act to add the above
descendant, ancestor, brother or sister. This also
denition of marriage to the Marriage Act 1961
applies to half-siblings and to adopted siblings,
(Cth), which had not previously contained one.
which includes adopted descendants and ances-
Section 5(1) of the Act denes marriage as the
tors who are related to the person by marriage.
union of a man and a woman to the exclusion of
However, a person can marry her uncle or his
all others, voluntarily entered into for life, and
aunt, his niece or her nephew, or a rst cousin.
s 88EA explicitly states that a same-sex marriage

solemnised in a foreign country will not be
NO TI C E O F M A RRI A G E
recognised in Australia.
A couple intending to be married must give a

completed Notice of Intended Marriage form to the
MARRIAGEAB LE AGE
authorised marriage celebrant who will conduct
A person may marry at the age of 18 (s 11). If
the ceremony, no earlier than 18 months before
either of the parties wanting to marry is between
the marriage and no later than one month and one
the ages of 16 and 18, he or she must apply to
day before it. The notice must be in writing and be
a judge or magistrate for an order authorising
signed by both parties in the presence of a witness.
the marriage (s 12). Such an order will only be
Approved witnesses include marriage celebrants,
granted in circumstances that are sufciently
justices of the peace, police ofcers, solicitors and
exceptional and unusual: for example, if the
doctors. Parties who intend to marry must provide
couples parents consent and/or if the couple are
proof of age, usually their birth certicate. If either
shown to be mature and nancially independent.
party has been married previously, he or she must
Pregnancy alone will not guarantee an order. No
provide evidence that that marriage has been
person under 16 can marry.
dissolved, by death of the spouse or divorce.
polygamous
having more than one
wife or husband at the
same time
polygamous relationships. However, polyga-
descendant
a person who by
genetics or adoption
follows the family line
of another; a child,
grandchild, greatgrandchild, etc.
ancestor
a person from
whom someone
is descended, on
either parents side; a
parent, grandparent,
great-grandparent,
etc.
celebrant
a person who is
authorised to perform
a civil or religious
marriage ceremony
313
R EVIEW 12.1
of the marriage certicate. One copy must be
1 Dene family.
lodged at the state Registry of Births, Deaths and
2 Explain how families have changed. Provide
Marriages within fourteen days of the date of the
examples to illustrate your answer.
marriage.
3 Outline the main function of families.

4 Explain the meaning of each part of Lord
Void marriages
Penzances denition of marriage and use
A marriage can be declared void, or invalid, if
examples to illustrate each part.
it fails to meet the denition of marriage; if, for
5 Dene prohibited relationship, providing
example:
examples of whom a person is and is not
s the parties were of the same-sex
permitted to marry.
s consent was not freely given by one of the

parties
s one or both parties at the time of the marriage
Requirements for a valid

marriage ceremony
were married to someone else.

A marriage may also become void if the mar-
The marriage ceremony must meet set criteria. An
riage fails to meet the criteria for a valid marriage;
authorised marriage celebrant must perform the
if, for instance:
ceremony, and there must be two witnesses, both
s one or both parties were too young
aged over 18. There are no formal requirements
s the parties are too closely related, by blood or
concerning the attire, the structure of the ceremony or the words of the ceremony. If the marriage
nullify
to declare legally void
or invalid
c a s e s pa c e
annulment
a declaration by a
court that a supposed
marriage is in fact void
ceremony satises the conditions in Parts IV and V
out in the Marriage Act 1961 (Cth).
of the Marriage Act 1961, then it is valid.
If a marriage is found to be invalid, the court
The celebrant issues a marriage certicate after
can nullify the marriage. This (annulment) means
the ceremony is completed. This document is legal
that the marriage, in the eyes of the law, is deemed
proof that the ceremony took place according to
to have never taken place because it was illegal.
law. The marriage celebrant usually provides three
However, any children born during the marriage
copies of the certicate. The celebrant, husband,
are considered to be the legitimate children of the
wife and two witnesses must each sign all copies
marriage.
Di Mento v Visalli (1973) 1 ALR 352

Mattia Di Mento, who was 14
The father argued that if she
the marriage annulled on
at the time, was living in Sicily
did not marry him the familys
the grounds that she did not
with her parents when she was
reputation would be ruined. Di
voluntarily give her consent. The
kidnapped by Visalli, a 20-year-
Mento agreed and she married
court held that the marriage was
old man. Visalli repeatedly
Visalli. Two years later, she gave
void because it was obtained by
asked her to marry him, but she
birth to a child, and when the
duress, and noted that the Act
refused. Di Mento was eventually
child was a month old Visalli left
does not require that the duress
released; however, her father
her, never to return.
exerted be that of the spouse;
told her that he would shoot

her if she did not marry Visalli.
314
marriage
s the marriage did not meet the requirements set
Di Mento emigrated to
Australia and sought to have
in this case, it was exerted by Di

Mentos father.
Legal consequences
and responsibilities of
marriage
Marriage often forms the basis of our most important emotional relationships and is regarded as
a signicant social institution. In addition, it is a
legally binding agreement between a man and a
woman, which imposes mutual duties and obligations. In the event that the relationship breaks
down, the law acts to ensure that the parties to the
marriage will full their obligations and resolve
any issues in dispute. It also acts to protect the

more vulnerable family members, notably by
ensuring that both parents provide for the welfare
of their children.
Mutual duties of husband

and wife
A husband and wife are mutually responsible to
one another. The law does not concern itself with
Figure 12.2 Most spouses buying a home

together choose to hold the title as joint
tenants. This means they own the home equally.
how partners in a marriage carry out their duties

and responsibilities. Rather, the law tends to intervene only in cases where the marriage has broken
ance. Some examples of instances where this is
down, where one or both parties to the marriage
required are:
have not fullled their responsibilities, or when
s the person has the care and control of a child of
spousal rights have been infringed. Generally, the

expectation is that both parties will support each
the marriage who is under 18 years old

s the person is not able to be employed because
other nancially and emotionally and remain
of age or physical or mental incapacity.
faithful. However, no law exists to enforce these
Spousal maintenance is not automatic. The
expectations. For instance, there is no law against
court considers the question of need when deci-
adultery nor is it now grounds for divorce. Nor is
ding on matters of maintenance. For example, it
there an automatic right to sexual relations with
will consider whether the spouse seeking mainten-
ones spouse. Anyone who intentionally engages in
ance has income, property or nancial assets that
sex with a person who has not consented has
could provide the means of nancial indepen-
committed a crime, whether or not he (or she) is
dence, and whether the spouse from whom it is
married to the victim.
sought has the capacity to pay. The court must

consider the factors set out in ss 75(2) and 79(4)
Maintenance
with respect to both spouses.
Maintenance is a nancial payment made by one
Spousal maintenance is usually only sought
spouse to contribute to the care and welfare of the
after the marriage has ended. It is usually granted
other spouse and/or children of the marriage.
for a limited period, until the spouse gains the
Under s 72 of the Family Law Act 1975 (Cth), if
ability to be nancially independent. Both parties
someone is unable to support himself or herself,
have a duty to maintain any child of their
his or her spouse is obligated to provide mainten-
marriage.
maintenance
a nancial payment
made by one spouse
to contribute to the
care and welfare of
the other spouse and/
or children of the
marriage
315
will
a document that states
how a person intends
to have his or her
property distributed
after his or her death
probate
a legal document
that is issued by the
court and certies that
the will is true and
correct (proved), and
authorises the executor
to administer the estate
intestacy
the situation in which a
person dies without a
legally valid will
Property rights
make orders altering property interests, under the
The largest asset acquired during a marriage is
Family Law Act 1975 (Cth) s 79. In addition, spouses
usually the marital home. When two people buy
have the right to sue each other in contract or tort
a house together, they can choose to own equal
(s 119).
shares in the property (as joint tenants), or in

unequal shares (as tenants in common). Joint
Wills
tenancy is the more popular option for most
A will is a document that states how a person
married and de facto couples; if one partner
intends to have his or her property distributed
dies, the surviving spouse will inherit the whole
after his or her death. The executor must obtain a
property. Tenancy in common may be preferred if
grant of probate before the will of the deceased
the parties do not want their shares necessarily to
person can be administered, that is, before monies
go to the other; for example, if someone wants to
and/or assets can be released.
leave his or her share to another individual such as

a child of a previous relationship.
Not all property acquired during the marriage
A person who dies without leaving a will is

referred to as intestate, or partially intestate if his
or her will does not effectively dispose of all of his
may be owned jointly. Any property purchased
or her property. State laws governing intestacy
by one spouse during the marriage remains the
determine how the property of the deceased is
property of the spouse who paid for it. Also, any
divided. Generally, with the exception of some
property owned by a person prior to marriage still
monies that will be deducted for probate, the
belongs to that person after marriage.
entire property will go to the surviving spouse, or
Marriage does not automatically
the spouse and any children of the marriage. Other
change ownership of property. How-
family members can also inherit. The parents and
ever, the length of time the parties
siblings of the deceased may all inherit if no valid
1 Outline the reasons why a
have been married and the nancial
will exists. In NSW, the property is distributed
marriage may be declared
and non-nancial contributions, inclu-
to certain family members according to a pre-
invalid.
ding any improvements made to the
determined formula under the Succession Act 2006
property, will alter ownership.
(NSW), as amended in 2009 by the Succession
R E VIE W 12.2
2 Explain why a court may

order a person to provide
Contract and agency
or her spouse after the
Any individual can enter into a
Succession Amendment (Family Provision) Act 2008
marriage has ended.
contract, acting for himself or herself
(NSW). While a person can leave his or her property
3 Explain who owns property
The Succession Act was also amended by the
alone. This is not altered by marriage.
to anyone he or she chooses, s 58 of the Succession
purchased:
Although a person (the principal)
Act 2006 (NSW) now allows certain family members
a by one spouse before
can appoint someone else (an agent)
to apply for a family provision order. A spouse or
to enter into a contract on his or her
de facto spouse, child, grandchild, former spouse,
behalf, and the contract is then legally
or another person who was in a close personal
binding on the principal, a spouse is
relationship with or dependent on the deceased
not automatically authorised as an
can apply to the court for such an order. However,
agent in all contractual situations.
the Act encourages disputing parties to enter into
marriage.
b by one person during
the marriage.
c by the couple during the
marriage.
4 Outline the factors that are
Just as there is no law that assets
mediation rather than contesting the will.
taken into account when
become joint property upon marriage,
Marriage automatically cancels any pre-existing
deciding ownership of
the same applies to debts in the sole
will unless the person made the will in anticipation
property in the event the
name of one individual: spouses
of marriage (Succession Act 2006 (NSW) s 12).
relationship breaks down.
cannot be held liable for each others
Divorce or annulment cancels any provision in
debts. It is only upon the breakdown
an existing will that favours the divorced spouse
of a marriage that the court may
(Succession Act 2006 (NSW) s 13).
5 Explain how marriage

affects wills.
316
Amendment (Intestacy) Act 2009 (NSW).
nancial support to his
Alternative family
relationships
in state and territory law. However, the circumstances of Indigenous children are specically
provided for in legislation such as the Family Law
Aboriginal and Torres Strait

Islander peoples customary
law marriages
Act 1975 (Cth); for example s 61F states that a court
Relationships within Aboriginal and Torres Strait
child-rearing practices of the childs Aboriginal or
Islander (ATSI) communities are bound by tradi-
Torres Strait Islander culture.
making decisions about parental responsibility
tions and enforced through customary law. Children
The state parliaments have addressed some
may be betrothed at an early age and parents or
of the recommendations since then, including
elders generally arrange marriages. Typically,
recognition of traditional marriages for limited
ATSI customary law marriages do not conform to
purposes.
the requirements of a valid marriage under the
Children of any relationship whether ATSI
Marriage Act 1961 (Cth). These ATSI marriages are
or not, or ex-nuptial or nuptial are protected
generally not legally recorded, nor are they regis-
under the Family Law Act 1975 (Cth) and the Status
tered with the relevant authorities. The law, there-
of Children Act 1996 (NSW). If an ATSI customary
fore, does not formally recognise ATSI customary
marriage does break down, the Family Court
law marriages as having any legal standing.
will determine an appropriate parenting order,
In 1986, the Australian Law Reform Commission
including maintenance arrangements and deci-
tabled a report in parliament dealing with the
ding which parent will be given care and control of
lack of recognition afforded to ATSI customary
the child. The order is made on the basis of what
laws by general Australian law. The part of the
the court determines is in the best interest of the
report focusing on marriage, children and prop-
child and the childs need to maintain a connection
erty settlement recommended that traditional
with the ATSI lifestyle, culture and traditions.
ex-nuptial
outside marriage; an
ex-nuptial child is a
child born outside a
marriage
nuptial
marriage; a nuptial
child is a child born
within a marriage
O p t i o n 3: Fam ily
must take account of any kinship obligations and
marriages of Indigenous Australians should be

recognised and given legal status in order to:
Single-parent families
s ensure the legitimacy of the children of those
The increase in the number of divorces, the
relationships
changes in social attitudes, an improved welfare
s ensure that any child of those relationships will
state and greater nancial independence of
be given the same protection as children of mar-
women have all contributed to the growth of
ried couples under adoption and welfare laws
single-parent families. According to the Australian
s protect the right of inheritance of the surviving
Bureau of Statistics, in 200607 there were 5.9
spouse if his or her partner dies intestate

s allow a surviving spouse to claim any compensation payments owing to his or her partner,
including workers compensation
s ensure that spouses in these relationships are
covered by the same laws of evidence, in court
proceedings, that apply to spouses married
under general Australian law
million families in Australia; of these 14 per cent

(808 000) were single-parent families.
One in ve children live in single-parent families. In 2006, 87 per cent of single-parent families
with children under 15 years were headed by
women.
In addition to the many social issues confronting single parents, they may face difculties in
s allow the couple to claim the same tax benets
accessing legal advice, pursuing their rights in
as those that are currently available to de facto
court and obtaining adequate legal protection. The
or married couples.
high cost associated with taking a matter to court
The federal governments response to the report
may discourage single parents from actively
in 1995 suggested that most of the recommen-
pursuing the protection of their rights through the
dations are more appropriate for implementation
courts.
317
legal links
of child support owed, again using an adminiFor more statistics on one-parent
strative rather than judicial procedure.
families visit the ABS web page at

www.abs.gov.au/AUSSTATS/abs@.
Blended families
nsf/0/F4B15709EC89CB1ECA
A blended family is created when a parent re-
25732C002079B2?
marries. When a parent and his or her children

from a former marriage or relationship live with
another parent and children in similar circumstances, it is considered to be a blended family. The
The Child Support Scheme was introduced in
family includes the stepmother or stepfather and
1988 to enforce maintenance orders on parents
stepchildren. One-third of all registered marriages
who do not reside with their dependent children.
in 2008 involved individuals who were marrying
The scheme, which was originally part of the
for the second time. Many divorced couples choose
Australian Taxation Ofce and is now part of the
to cohabit (live together) rather than remarry.
Commonwealth Department of Human Services,
Although a step-parent may be viewed as the
ensures that parents full their responsibility
parent of his or her partners child, step-parents
towards their children by automatically deducting
do not have the same legal responsibilities for the
payments from the supporting parents wage. The
care and control of the child. A step-parent does
Child Support (Registration and Collection) Act 1988
not have an automatic right or duty to discipline
(Cth) shifted the collection and enforcement of
his or her partners child or to make the day-to-
child support from the courts to an administrative
day decisions concerning the health and welfare
system, and the Child Support (Assessment) Act
of the child. A step-parent is not responsible for
1989 (Cth) introduced a formula for the calculation
the maintenance or support of a partners child;
Figure 12.3 A blended family is created when a parent remarries. The family includes the stepmother
or stepfather and stepchildren.
318
the nancial obligations towards a child remain
De facto relationships
with the childs parents. However, a court may
A de facto relationship is dened in s 4AA of the
make an order requiring a step-parent to pay
Family Law Act 1975 (Cth) as one in which:
nancial support if satised that the step-parent
s the partners are not legally married to each
1975 (Cth) ss 66D, 66M, 66N). A step-parent may

also become nancially responsible for his or her
partners children if the family has existed for a
other
s neither is the parent, child, descendant or
sibling of the other, and
s they have a relationship as a couple living
long time and the natural parent is dead or cannot
together on a genuine domestic basis.
be found.
According to the Australian Bureau of Statistics,
Step-parents intending to adopt must rst apply

to the Family Court (Family Law Act s 60G). Upon
as of 2008, over 70 per cent of couples who marry

have lived together prior to marriage.
approval, the step-parent must then apply to the
As discussed at the beginning of this chapter,
state Supreme Court for an adoption order. For
the marriage power is one of the enumerated
such an order to be granted in NSW, the step-
powers of the Federal Parliament under the Austra-
parent must have lived with the child and the
lian Constitution. However, as a result of states
childs natural or adoptive parent for no less than
referring their powers to the federal government,
two years, and the child must be at least ve years
the Family Law Act 1975 (Cth), as amended by the
old (Adoption Act 2000 (NSW) s 30). If a step-parent
does adopt his or her partners children, these
and Other Measures) Act 2008 (Cth), governs
children will have the same legal rights as children
property settlements and maintenance orders for
born naturally into the parental relationship.
separating de facto couples. The federal legislation
Stepchildren do not have an automatic claim
applies to couples whose relationship broke down
to the estate of their step-parent if the step-parent
on or after 1 March 2009, and to those whose
dies intestate. In order to claim successfully
relationship broke down earlier if they choose to
against the estate of a step-parent, stepchildren
be bound by federal rather than state law in this
must prove that they were nancially dependent
matter. Matters relating to the children of de facto
upon the step-parent. Stepchildren in this situation
relationships will be heard in the Family Court.
has a duty to maintain the child (Family Law Act
may apply for a family provision order under s 58

of the Succession Act 2006 (NSW).
Same-sex relationships
STATE L E G I SL ATI O N
REVIEW 12.3
The law has recognised relationships that exist
1 Discuss the status of traditional Aboriginal
outside the traditional concept of marriage. The De
and Torres Strait Islander marriages under
Facto Relationships Act 1984 (NSW) was amended
federal and state law.
by the Property (Relationships) Legislation Amend-
2 Identify some challenges for single-parent
ment Act 1999 (NSW) and renamed the Property
families and ways the federal government
(Relationships) Act 1984 (NSW). The Property (Rela-
has tried to address these challenges.
tionships) Act 1984 (NSW) recognises same-sex
3 Discuss the rights of stepchildren under:
relationships as having the same legal standing as
a federal law
heterosexual de facto relationships, and provides
b state law.
the same protection. Section 4 of this Act denes
4 Explain the interaction of state and
a de facto relationship as a relationship between
federal law with respect to adoptions of
two adult persons who live together as a couple,
stepchildren by a step-parent.
and who are not married to one another or related
319
federal government amended 84 Commonwealth

Acts in 2008 to remove differential treatment
of same-sex couples. These Acts include laws
about tax, superannuation, Medicare, aged care,
veterans entitlements, workers compensation,
employment entitlements, family law and child
support.
While these recent amendments give same-sex
couples most of the same rights as de facto heteroFigure 12.4 Same-sex relationships have the
same legal standing as de facto relationships.
sexual couples, no federal government has been in

favour of amending the denition in the Marriage
Act 1961 (Cth) to allow same-sex marriage. A bill
by family. The Act provided protection to people
that would have done so, the Marriage Equality
in same-sex de facto relationships in property
Amendment Bill 2009, was introduced by the
division, inheritance and decision-making in ill-
Greens but defeated in the Senate in February
ness and after death.
2010.
The denition of de facto in this Act also

applies to persons making an application for fami-
Polygamous marriages
ly provision under the Succession Act 2008 (NSW),
A polygamous marriage refers to a relationship
and to entitlements of the de facto partners of
that is formed when an individual marries more
individuals who died intestate, under the laws
than one person. While some cultures and reli-
amended by the Succession Amendment (Intestacy)
gions permit polygamous marriages overseas,
Act 2009 (NSW). In other words, same-sex partners
polygamous marriages are not legal in Australia.
have the same entitlements under those laws as if
However, under s 6 of the Family Law Act 1975
they were married.
(Cth), a polygamous marriage that was entered
Section 4AA(5) of the Family Law Act 1975
into overseas is deemed to be a marriage for the
(Cth) states that a de facto relationship can exist
purpose of childrens matters, property settle-
whether the persons are of the same sex or dif-
ments and other court proceedings under the
ferent sexes. Therefore, the Family Law Act governs
Family Law Act. This means that if the marriage
property settlements between separating same-
does break down, the parties may seek orders for
sex couples.
child and/or spousal maintenance, division of

property, and parenting plans. A party can also
F EDER AL L EGIS L AT ION
seek domestic violence orders.
Under s 18 of the Evidence Act 1995 (Cth) and s 18

of the NSW and Victorian Evidence Acts modelled
on that Act (the Uniform Evidence Acts), a de
facto partner in either a same-sex or opposite-sex
1 Dene de facto relationship.
relationship cannot be compelled to give evidence
2 Explain the status of same-sex relationships
against his or her partner in certain criminal
with respect to:
proceedings. Not all states have such provisions in
a property settlements
their Evidence Acts, however.
b wills
In response to the Australian Human Rights

Commissions report Same-Sex: Same Entitlements:
320
R EVI EW 1 2 . 4
c giving evidence against ones partner in

a criminal proceeding
A National Inquiry into Discrimination against
d superannuation
People in Same-Sex Relationships: Financial and
and identify whether the matter is
Work-Related Entitlements and Benets (2007), the
governed by state or federal law.
Parental care
R I G H T S D E R I V E D F R O M I N T E R N AT I O N A L
L AW
Within the family, the rights of the child are
The rights of children are articulated and pro
paramount because they are seen to be the most
tected by the United Nations Convention on the
vulnerable members of the family and as such
Rights of the Child (CROC), which was adopted by
require the greatest legal protection.
the UN in 1989 and has been signed and ratified
As noted above, the Family Law Act 1975 (Cth)
by all but two member states as of March 2010.
governs proceedings for a divorce or annulment of
The convention declares that persons under 18
a marriage, as well as maintenance and property
years of age must be protected from violence,
proceedings, whether the parties are married or
discrimination, exploitation and neglect.
in the process of ending the marriage. Its Part
Australia ratified CROC in 1990 and so is bound,
VII governs proceedings in relation to children,
in international law, to its terms. Ratification is a
particularly parenting arrangements. However,
statement to the international community that the
most of the laws relating to the care and protection
federal government will adhere to its terms and
of children are at state or territory level.
act in a certain way in its international conduct.
Children have the obligation to obey the law just
International instruments may be used by
as adults do, though the procedures for enforcing
courts in interpreting statutes or developing the
those laws are different from the legal mecha
common law. In addition, CROC was declared
nisms appropriate to adults.
a relevant international instrument under the
Some of the Acts concerning children in New
Australian Human Rights Commission Act 1986 (Cth)
South Wales are listed in table 12.1. (For more
and the Australian Human Rights Commission can
information about children and the law, go to the
therefore refer to it when hearing complaints of
Web Law website: www.weblaw.edu.au.)
discrimination.
O p t i on 3: Family
Legal rights and

obligations of parents
and children
Table 12.1 Legislation concerning children in NSW

Name of the Act
Area covered by the Act
Adoption Act 2000 (NSW)
Adoption of children and access to information relating to adoption
Child Protection (Offenders

Registration) Act 2000 (NSW)
Requirements of persons convicted of certain offences against children, including the

requirement to register with the police upon their release into the community and to
provide specified information about themselves to police
Children (Criminal Proceedings)

Act 1987 (NSW)
Conduct of criminal proceedings against children and other young persons
Children (Protection and Parental

Responsibility) Act 1997 (NSW)
Responsibility of parents for the behaviour of their children; greater police powers
in respect of children, e.g. removal of children from public places and their return to
their parents residence
Children and Young Persons (Care

and Protection) Act 1998 (NSW)
Responsibilities of the NSW Department of Community Services and other agencies

regarding the care and protection of children and young persons who are at risk of
harm or are being abused
Establishment of a Childrens Court of New South Wales; its jurisdiction and functions
Status of Children Act 1996 (NSW)
Enshrines the rights of ex-nuptial children to be treated the same as children born
within marriage, for legal purposes including the disposition of property; also allows
parentage to be established via DNA testing
Procedures for dealing with child offenders, including youth justice conferences,
cautions and warnings; court proceedings are seen as a last resort
Chapter 12 : O p t i o n 3 : F a m i l y
321
However, as with the other human rights

treaties to which Australia is a party, no federal
include:
legislation has been passed implementing it in
s Article 12 A child has the right to express his
Australian domestic law. This means that it is not
or her opinions and be heard in proceedings
binding at the domestic level (not enforceable in
affecting him or her, in a manner consistent
Australian courts). The Commonwealth has left
with the procedural rules of the jurisdiction,
implementation of CROC obligations up to the
and the childs views are to be given due weight
discretion of the state governments.
in accordance with the childs age and maturity.
l eg al i nfo
Nonetheless, many of CROCs principles are
This is reected in legislation providing for
embedded in state child protection legislation.
childrens participation in decision-making.
Following Article 3 of CROC, legislation in both
s Preamble Taking due account of the impor-
federal and state jurisdictions states that childrens
tance of the traditions and cultural values of
best interests should be a primary consideration
each people for the protection and harmonious
in decisions concerning children. Other elements
development of the child is one of the aims
Children and Young Persons (Care and Protection) Act 1998 (NSW) s 10
The principle of participation
(f) an opportunity to respond to a decision made
(1) To ensure that a child or young person is able
under this Act concerning the child or young
to participate in decisions made under or pursuant
person.
to this Act that have a signicant impact on his
(2) In the application of this principle, due regard
or her life, the Director-General is responsible
must be had to the age and developmental capacity
for providing the child or young person with the
of the child or young person.
following:
(3) Decisions that are likely to have a signicant
(a) adequate information, in a manner and
impact on the life of a child or young person
language that he or she can understand,
include, but are not limited to, the following:
concerning the decisions to be made, the reasons

for the Departments intervention, the ways in
which the child or young person can participate
(a) plans for emergency or ongoing care,

including placement,
in decision-making and any relevant complaint
(b) the development of care plans concerning the
mechanisms,
child or young person,
(b) the opportunity to express his or her views
(c) Childrens Court applications concerning the
freely, according to his or her abilities,
child or young person,
(c) any assistance that is necessary for the child
(d) reviews of care plans concerning the child or
or young person to express those views,
young person,
(d) information as to how his or her views will be
(e) provision of counselling or treatment services,
recorded and taken into account,
(f) contact with family or others connected with
(e) information about the outcome of any decision
the child or young person.
concerning the child or young person and a full

explanation of the reasons for the decision,
322
of CROC that are reected in state legislation
scribe taking an Indigenous childs culture into

account in decision-making procedures, for
s protection from physical or psychological harm

from abuse, neglect or violence
s adequate and proper parenting to help the
example Children and Young Persons (Care and
children achieve their full potential.
Protection) Act 1998 (NSW) ss 11, 12 and 13.
Section 60B also sets out the principles under-
s Article 2 enjoins state parties to ensure that

the child is protected against discrimination or
punishment on the basis of the status, activities,
lying these objects:

s Children have the right to know and be cared for
by both their parents.
expressed opinions, or beliefs of the childs
s Children have the right to spend time and com-
parents or family members. This is reected in
municate regularly with their parents, and
s 202 of the Children and Young Persons (Care
others signicant to their welfare, care and
and Protection) Act 1998 (NSW), which states

that those involved in the provision of childrens
services such as education, medical care or day
development (e.g. grandparents).

s Parents share responsibilities for their childrens
care and welfare.
care must have regard to the Anti-Discrimi-
s Parents should agree about parenting matters.
nation Act 1977 (NSW).
s Children have the right to enjoy their culture,

including the right to enjoy it with other people
l eg al l i nks
who share it.

The UNICEF web page has a
simplied version of the UN
Convention on the Rights of the
Child, as well as links to the full
text of the convention:
www.unicef.com.au/Unicef/
SchoolRoom/ForChildrenand
YoungPeople/LearnMoreand
GetInvolved/ChildrensRights/
TheUNConventionon theRights
oftheChild/tabid/126/Default.
aspx
The emphasis on responsibilities shared equally

by both parents was introduced in large part by the
Family Law Reform Act 1995 (Cth), which made signi-
of legislative provisions that specically pre-
cant amendments to the Family Law Act 1975 (Cth)

with respect to children. Further amendments were
made by the Family Law Amendment (Shared Parental
Responsibility) Act 2006 (Cth), which gave further
emphasis to the childs right to meaningful family
relationships and care, rather than either parents
right to have the child live with him or her.
The Family Law Reform Act 1995 (Cth) introduced
parenting plans, which are written agreements
voluntarily agreed to by parents. In contrast to
court orders assigning custody to a parent, parents
are encouraged to create such plans themselves.
The plans can deal with any aspect of a childs care
PA RENTAL RESPON S IBIL IT Y UN DER T H E
and welfare, such as the childs living arrangements,
FA M ILY LAW ACT 1975 ( C T H )
the amount of time the child will spend with each
Part VII of the Family Law Act 1975 (Cth) has the
parent, how the childs educational, cultural and
object of ensuring that the best interests of chil-
religious needs will be handled, and what process
dren are met. This is the chief factor that courts
will be used to make changes to the plan or resolve
must take into consideration when making chil-
disagreements. If the parents cannot agree, they
drens orders. Best interests, as listed in s 60B of
will be issued with a parenting order, which is a
the Act, include:
court-imposed decision.
s the benets of a meaningful involvement in

their lives by both parents
The law allows parents to raise their children

as they see t, within general guidelines. Parental
323
responsibilites to a child are not specically
The Children and Young Persons (Care and
dened in the legislation, but would include:
Protection) Act 1998 (NSW) addresses family prob-
s providing adequate food and shelter
lems in terms of the childs needs and care. Other
s providing access to education
state laws, such as the Children (Protection and
s consenting to medical treatment
Parental Responsibility) Act 1997 (NSW) and the
s providing discipline
Children (Criminal Proceedings) Act 1987 (NSW),
s protecting the child from harm and ensuring
deal with the prevention of juvenile crime and the
that he or she is not exposed to illegal activities
criminal process appropriate to persons under 18.
s ensuring that others are not harmed by their

child.
Education
The right to an education is one of the objects of
neglect
continued failure by
a parent to provide
a child with the basic
things needed for
proper growth and
development, e.g. food,
shelter, medical care,
hygiene and supervision
compensation
a monetary payment
made to a person to
make amends for any
loss, injury, or damage
to property
C ON S EQUEN C ES OF PAR EN TA L NE G L E C T
the Education Act 1900 (NSW), and is also found in
UN DER S TAT E L AWS
the UN Convention on the Rights of the Child (CROC).
Parents who fail in their duty to their child may
The Education Act imposes on the state the duty
face any of a number of consequences. These
to ensure that every child receives an adequate
offences, and their consequences, are provided for
education. Parents cannot refuse their child an
in state and territory legislation, not the Family
education, but they do have the right to choose
Law Act 1975 (Cth). Continued failure by a parent
where their child will be educated. Parents may
to provide the basic things needed for proper
choose to send their child to either a state school
development (food, shelter, hygiene, medical and
or an approved non-government or private school.
dental care, adequate supervision, emotional
There are provisions for the parent to educate the
security) may result in criminal prosecution for
child at home (if government consent has been
neglect of the child. Neglect is a criminal offence
granted) or by distance education, as long as the
under both the Children and Young Persons (Care
child is educated according to curricula approved
and Protection) Act 1998 (NSW) (s 228), which
by the state Board of Studies. Failure to enrol a
carries nes of up to $22 000, and the Crimes Act
child in a school or to provide the child access to
1900 (NSW) (s 43A), which provides for a gaol term
an education is a criminal offence.
of up to ve years. If suspected child abuse or
In NSW it is compulsory for a child to attend
neglect is reported, Community Services will send
an educational facility from the age of 6 until the
a caseworker to talk with parents and other family
minimum school-leaving age, which is 17 years or
members, and may follow up with practical help or
the completion of Year 10. Changes to the Education
counselling. In some cases, Community Services
Act 1900 (NSW) in 2009 now require every young
will apply to the Childrens Court of NSW for an
person who has completed Year 10 to be in some
order, e.g. for supervision of the family relationship
form of education, training or employment until
through visits, support services, or transfer of
he or she reaches the age of 17.
parental responsibilities, e.g. to foster care. Foster

care is usually temporary and involves a couple
Discipline
taking on the parental responsibility of caring for
Parents have the right to discipline their child
and controlling the child. One alternative to foster
by using physical force in order to correct their
care is for children to live in group homes under
childs behaviour, but the physical force must
adult supervision, such as under the care of a
be reasonable, having regard to the age, health,
youth worker and child counsellors.
maturity or other characteristics of the child,
Parents may be held liable in tort for any dam-
324
the nature of the alleged misbehaviour or other
age or injury that their child causes and can be
circumstances (Crimes Act 1900 (NSW) s 61AA).
forced to pay the injured party compensation.
The defence of lawful correction in criminal
proceedings against a parent or other person for
R ESEAR CH 1 2 . 1
assault will not be available if the physical force
Go to the Children (Protection and Parental
was not reasonable.
Responsibility) Act 1997 (NSW) at www.
What is considered to be reasonable and
legislation.nsw.gov.au/viewtop/inforce/
acceptable discipline can vary from culture to
act+78+1997+FIRST+0+N and answer the
culture, but the range of punishment that will not
be considered reasonable by a court in Australia
1 What is a court required to consider when
includes striking the head or neck of a child,
deciding how a child should be dealt with
causing pain lasting for more than a short period,
under this Act? (See s 6.)
shaking a young child and striking a child with a

closed st.
assault
a criminal offence
involving the iniction
of physical force or
the threat of physical
force
Figure 12.5 Parents can be held liable for any damage their child causes.
2 List two ways that a court might respond

to a child found guilty of an offence under
this Act in order to encourage parental
REVIEW 12.5
1 Evaluate the inuence of the UN Convention
responsibility. (See ss 8 and 9.)

3 Look at Part 3 of the Act, especially ss 18, 19,
on the Rights of the Child on family law in
20, 21 and 22.
Australia.
a Summarise the specic issue or issues that
2 Explain the concept of best interests of the

child as elaborated by the Family Law Act
1975 (Cth).
the Act attempts to address.

b Do you think this Act is the best way to
address these issues? Justify your answer.
3 Explain the concept of parents

responsibility to their children, giving
Medical treatment
examples.
As discussed, parents are responsible for ensuring
4 Identify the requirements that must be

satised before a person can leave school.
5 Explain the requirement that physical
that appropriate medical and dental care are

available for their minor children. However,
consent must be given before a doctor can carry
punishment of children must be
out any treatment. As with any decision carrying
reasonable, identifying what must be
risk, a persons consent implies an understanding
considered. Justify this requirement.
of what is involved and agreement or acceptance
325
of the procedure and the risks. For children under
If the child is over 16 and is intellectually dis-
14, the consent of a parent (or guardian) is
abled, such that he or she does not understand the
required, and parents have the right to authorise
problem and the treatment, then the Guardianship
any such treatment considered in the childs best
Act 1987 (NSW) species who can give consent.
interests. For those between 14 and 16, either the
Usually, this will be a person responsible, such
childs consent or a parents consent is required.
as a parent.
Medical or dental treatment of young persons aged

1617 requires the consent of the young person.
Autonomy of children
These requirements are contained in the Minors
Children are regarded as not yet having developed
(Property and Contracts) Act 1970 (NSW) s 49. If the
the cognitive abilities and the capacity to under-
parents refuse medical or dental treatment (for
stand the consequences of their actions, and
instance, on religious grounds), a court can author-
are considered unable to make fully informed
ise the treatment.
decisions. In an effort to protect children, the
Table 12.2 Legal autonomy of children in Australia*

Area of responsibility
Explanation
Alcohol and cigarettes
It is illegal for a child under 18 to purchase, possess and/or consume alcohol and cigarettes.
Arrest
The police can only question a child in the presence of an adult. This adult could be the childs
parent or guardian.
Civil law
Children can be sued for any damage or injury that they cause. In some situations a childs
parents may be held responsible for the damage their child caused.
Contracts
A child can only enter into a contract if an adult acts as guarantor. The contract must be for the
benet of the child.
Criminal responsibility
Children under 10 are not criminally responsible for their actions because there is a
presumption that they do not have the capacity to understand the difference between right
and wrong and so cannot form an intention to commit a criminal act. If the child is aged 10 to
14 years the prosecution must prove that the child understood that his or her act was illegal;
that is, that criminal intent was present. Children aged 14 years or older are considered to be
responsible for their criminal actions.
Driving
A child can obtain his or her learners permit at 16 years in NSW. Once the child turns 17 he or
she can obtain a probationary licence.
Employment
There is no minimum age for starting work in NSW. However, those under 15 who want to
leave school and start full-time work must seek permission from the Department of Education
and Training. Otherwise, anyone who has completed Year 10 but is under 17 must enrol in a
training or education course or undertake an apprenticeship.
Evidence
Children can give evidence at any age if they understand the nature and consequences of the
oath or afrmation.
Leaving home
There is no minimum age for leaving home in NSW. Persons over 16 will not normally be forced
to return to their parents home, as long as they have a safe place to go and can support
themselves nancially.
Marriage
A person under 16 years cannot marry. A person between the ages of 16 and 18 can only
marry with the courts permission and only in exceptional circumstances.
Sexual intercourse
The legal age for consensual sex is 16. It is an offence to have sexual intercourse with a child
under 16.
*The legal denition of a child is any person aged under 18. (For more information regarding children and the law go to the Law stuff website: www.lawstuff.org.au.)
326
law makes it illegal for them to engage in certain
2006 (NSW) permits any child to apply for a family
activities. A childs ability to make his or her own
provision order, whether nuptial or ex-nuptial.
decisions changes as he or she reaches maturity,

autonomy and rights. As suggested above with
respect to consent to medical treatment, some
laws distinguish between children and young
persons. For example, the Children and Young
Persons (Care and Protection) Act 1987 (NSW)
denes a child as a person who is under 16 years,
and a young person as one who is aged 16 or older
R EVI EW 1 2 . 6
1 Explain why consent to medical treatment
is necessary, and why age determines legal
capacity to give consent.
2 Explain the term autonomy and how it is
relevant to minors.
3 Explain the term presumption of
parentage.
but who is under the age of 18 years.
Ex-nuptial children
In the past, ex-nuptial children had no legal status
Adoption
and therefore had no legal rights. Legitimacy is
Adoption is the process of transferring parental
important because it provides a child with certain
rights and responsibilities from the biological
rights, such as inheritance and maintenance.
parents to the adoptive parents. The aim of adop-
Legitimacy automatically existed for a child if the
tion law is to ensure that the best and most
child was:
appropriate parents are found for the child. The
s born during marriage that is, was a nuptial
needs of the adults are secondary to the needs of
child
s ex-nuptial but the parents of the child later
autonomy
freedom of the will,
self-government; the
ability to act without
outside interference
testator
a person who makes
a will
adoption
the legal process
of transferring
parental rights and
responsibilities from the
biological parents to
the adoptive parents
relinquishing parents
parents who nominate
their child for adoption
and this is reected in the law regarding childrens
the child. Adoption re-creates the legal relationship

between the child and his or her parents.
married
s adopted.
With the passage of the Children (Equality of
Legal requirements
and process
Status) Act 1976 (NSW) later replaced by the
Adoption is a state responsibility. In NSW, adop-
Status of Children Act 1996 (NSW) ex-nuptial chil-
tion is governed by the Adoption Act 2000 (NSW).
dren were given the same rights as those born to
If the birth parents are married or in a de facto
parents who are married. Subsequent Acts have
relationship, both parents must give consent to
reinforced the status of ex-nuptial children. All
give up the child. In the case of a single mother,
children have the right to be cared for by their
only the mother need give consent; the father must
parents.
have been notied prior to the adoption and given
The Act allows certain presumptions to be
14 days to respond. Children aged over 12 years
made about a childs parentage, and evidence to
must consent to their own adoption. The birth
be provided to a court to disprove the presumption.
mother cannot consent to adoption within three
Parentage can be established through DNA
days of the childs birth. Once the birth parent
analysis of a blood sample, or the parents volun-
or parents have given consent, there is a 30-day
tary recognition of the child as his or hers.
cooling off period during which they can change
If a person making a will wants to exclude
their minds. If the childs parents cannot be found
any of his or her children, this must be explicitly
or are incapable of giving informed consent, the
stated, for example by listing only the children
court can give consent.
the testator wants to inherit his or her property.
Relinquishing parents can nominate a relative
The Family Provision Act 1982 (NSW) removed the
to adopt their child, but all adoption criteria must
concept of illegitimacy and the Succession Act
be met and the adoption can only proceed if the
327
court permits the adoption. Parents who give up
the adoptive parents. The birth parents no longer
their child for adoption can nominate the desired
have any rights or obligations concerning the child.
religious upbringing for their child.
The adopting parents have the legal responsibility
Because adoption laws are primarily concerned
for the care and well-being of the child, who is
with the rights of the child, the law has established
now legally their child. The adopted childs rights
strict guidelines as to who can adopt. The following
of inheritance to the estate of his or her biological
restrictions must be met:
parents are removed (unless the child is specifically
Married couples and those in long-term, stable
mentioned in a will), and the adopted child will
de facto relationships of not less than two years
have the automatic right to inherit from the estate
(including same-sex couples) can apply to
of his or her adoptive parents.
adopt.
Individuals who are not in a relationship can
Overseas adoptions
apply as single applicants. (There is no distinc
An increasing number of Australian couples are
tion between heterosexual and homosexual
applying to adopt children born overseas. Inter
applicants.)
country adoptions are governed by the Hague
Applicants must be over 21 years of age, but

under 51 years of age.
The prospective male parent must be at least 18
years older than the child and the female parent
must be at least 16 years older than the child.
Convention on the Protection of Children and

Cooperation in Respect of Intercountry Adoption, and
by bilateral agreements between Australia and
countries that have not ratified the convention.
In NSW, prospective parents must apply
The applicant must be a person of good repute,
through Community Services to arrange for an
be a fit and proper parent, and be able to
intercountry adoption. They will be allocated a
fulfil the responsibilities of a good and caring
child from the other country, and if the parents
parent.
accept the offer they may lodge an adoption visa
Where applicable, the childs culture, language
application, which is then forwarded to the appro
and religion will be taken into account when
priate overseas welfare agency. The child is then
determining an adoption order, as well as the
subject to standard migration medical checks.
principle that the childs given name, identity,
If the child satisfies the health requirements, the
language and cultural and religious ties should,
adoption will either be finalised overseas in the
as far as possible, be preserved.
childs country of origin or the overseas welfare
After meeting the criteria, the prospective
agency will authorise the child to leave so that the
parents are placed on a waiting list. The decision
adoption can take place in Australia. The child will
as to who will adopt is based on what is in the
then be granted permanent residence in Australia.
best interests of the child and whether the childs
Privately arranged adoption is possible if the
overall welfare will improve by being adopted by
adoptive parents can prove they have been living
the applicant(s).
in the overseas country for more than 12 months
Once the birth parents agree to the adoption,
prior to their application, and if the authorities in
the court will make an adoption order following
the overseas country have approved the departure
official notification from the relevant agency or
of the child to Australia. The Australian Depart
department. An adoption order creates certain
ment of Immigration and Citizenship can refuse to
legal changes. The Registrar of Births, Deaths and
grant an entry visa for the child and the child must
Marriages will issue a new birth certificate in the
meet migration standards.
childs adopted name. The birth certificate will
328
include the family details of the adoptive family,
Access to information
such as the full names and dates of birth of the
Previously all personal information, of both the
childs adoptive parents and any other children of
parent and the child, could only be released by
the Reunion and Information Register, and only if
Alternatively, the contact details of adopted chil
both parties placed their information on the regis
dren and relinquishing parents can be placed on
ter. This register, maintained by Community Ser
the Advance Notice Register, which notifies them
vices in NSW, is still in operation, but Community
if any application for infor
Services does not help parties to search for each
mation is made. Even though
other. The Adoption Act 2000 (NSW) gives relin
the relinquishing parents or
quishing parents and adopted children the right
the adopted child may not
to request personal identifying information from
wish to be contacted, their
and discuss how adoption
Community Services, which they can then use to
information will be released
changes the relationship
contact one another and other family members.
once the party seeking the
between the child and the
Adopted children over 18 may apply to Com
information has signed an
relinquishing parents.
munity Services to obtain for a supply authority,
undertaking not to make
2 List the conditions that must be
which contains identifying information of the
contact. A party who breach
met by prospective adoptive
birth parents. This document then allows them to
es a contact veto may be
parents. Evaluate these
obtain further information from adoption records.
subject to a fine and/or im
requirements.
Parents who have given up their child for adoption
prisonment. Both relinquish
3 Explain why adopted children
can also ask for a supply authority allowing
ing parents and adopted
may want their birth parents
them to obtain a copy of their childs amended
children who want to make
personal information. Critically
birth certificate (the one prepared after their
contact with one another
analyse whether they should
adoption), which now contains information about
can enter their names in the
have complete access to all
the adoptive family.
Reunion and Information
information regarding their
Register.
parents and possible siblings.
Parents and children who do not want to be
REVIEW 12.7
1 Explain the concept of adoption
contacted by the other can lodge a contact veto.
Respo n ses to p rob le m s

i n fa m i l y re l a t io n s h ips
Divorce
The Family Law Act removed all other grounds
Divorce is the legal dissolution (termination) of a
for divorce and established the Family Court,
marriage. Under s 48 of the Family Law Act 1975
which hears all matters related to marriage and
(Cth), the only ground for divorce is the irretrievable
divorce. The single ground for divorce removes the
breakdown of the marriage. This means that there
need to find fault. In order to prove that the rela
is little chance that the parties to the marriage
tionship has irretrievably broken down, the parties
wish to remain in a relationship.
must have been living separately and apart for a
Prior to 1974, married couples who wanted to

divorce had to apply under the Matrimonial Causes
divorce
the legal termination
of a marriage by an
official court decision
period of 12 months. Once divorced, each party is

free to marry another person.
Act 1959 (Cth) on the ground of fault: that is, on
The twelve-month separation begins when one
the basis that one or both spouses admitted to
party tells the other that he or she intends to leave
acting in a way that undermined their marriage.
the marriage. It does not matter that only one party
Grounds for divorce under the Matrimonial Causes
to the marriage wishes to end the relationship.
Act included adultery, cruelty (family violence),
The law will not force an individual to stay in a
insanity and desertion.
relationship he or she does not want to continue.
329
decree nisi
a Family Court order
that is made to
signal the intended
termination of a
marriage
decree absolute
a nal decree of the
dissolution of marriage
The parties can be held to be living separately
responsible for the long-term care of their child
and apart even if they are still sharing the same
and the presumption is that it is in the best
house. In this instance, parties are considered to
interests of the child for both parents to share
be living separately and apart if they can show
this responsibility equally. Therefore, irrespective
that they are leading separate lives: for example,
of where the child resides, both parents are still
they sleep separately, do not socialise with friends
responsible. Parental responsibility will only cease
together, do not share meals, and no longer share
with a court order, the adoption of the child, the
nances.
childs 18th birthday, or the childs marriage.
Although the Act removed fault and established
Parents are encouraged to make and voluntarily
one ground for divorce, the Act did not intend
agree to their own arrangements in relation to the
to encourage divorce. Rather, it was designed to
care and responsibility of their children, rather
encourage parties to seek an amicable resolution,
than asking the court to do so.
including the use of counselling services. The
Under Part VII of the Family Law Act 1975 (Cth),
Act allows for one period of reconciliation of up
any disputes concerning children must be decided
to three months during the period of separation,
in the best interests of the child. The court
under s 50 (the kiss and make up clause). If
determines best interests by reference to primary
they do not succeed in reviving the marriage, the
and additional considerations set out in s 60CC.
separation period resumes, with the total time
The two primary considerations include the childs
before and after the reconciliation period counting
right to maintain a meaningful relationship with
towards the 12 months.
both parents, and the need to protect the child
If the couple seeking to dissolve their marriage
from harm. Additional considerations include
have been married for a period of time less than
factors that may modify the ability of parents to
two years, they must attend family counselling
share the parenting of the child equally, such as
before they can divorce. Counselling in this situ-
the views of the child, the nature of the childs
ation is compulsory. Also, if the court feels there is
relationship with each parent, and where the
a chance the parties may be reconciled, the court
parent lives.
can order marriage counselling.
The presumption that equal shared parental

responsibility is in the best interests of the child
Legal consequences
of separation
will not apply if there are reasonable grounds to

believe that a parent has engaged in abuse of the
child, or of any other child, or in family violence
(s 61DA). Nevertheless, the 2006 amendments to
330
Children
the Act, which introduced shared parental res-
If the couple have children, no application for
ponsibility and other provisions of Part VII (via the
dissolution will be approved until all of the issues
Family Law Amendment (Shared Parental Responsi-
involving the children have been solved. Once
bility) Act 2006 (Cth)), have been criticised for not
this has occurred, the court will order a decree
dealing adequately with family violence, exposing
nisi, which begins the process of divorce. About
children who had previously been victims of
one month later, the decree nisi becomes a decree
parental abuse to the possibility of further abuse.
absolute, at which time the marriage is legally
Some provisions in the Act, such as provisions for
dissolved. If there are children (under 18 years )
orders of costs against anyone making false
involved, the court will only grant a divorce once
allegations, suggest that allegations of violence are
all matters relating to the care and support of the
regarded with suspicion. Another criticism centres
children have been made.
on the idea that the childs views are not given
The focus of the law is not on parental rights
enough weight. There have also been complaints
but rather parental responsibility. Parents are
that the Act does not make clear the distinction
between shared parental responsibility and shared
property allocation can choose to have the matter
care some parents mistakenly believed that
heard in the Family Court. When determining
shared parental responsibility entailed 50-50
property allocation under ss 75 and 79 of the
custody of the children.
Family Law Act (or ss 90SF3 and 90SM4 for de

facto spouses), the court will consider:
pulsory family dispute resolution and enter into
s the nancial and non-nancial contribution to
a parenting plan. Parenting plans must consider
the property by both parties (including contri-
the practicality of children having equal time with
butions made as homemaker and carer for
both parents, contact with other family members,
children)
and the day-to-day care of the children, and
s the effect of the subsequent property allocation
ensure that the children maintain their cultural
order on the earning capacity of either party
links. A parenting plan is a voluntary agreement
s the age of both parties and the income, prop-
and most parents are compliant. If parents cannot
erty and nancial resources of both parties
reach an agreement then the court will make a
s whether each or either party has the care and
parenting order. Section 64B of the Family Law Act
control of a child of the marriage who is under
explains that parenting orders may deal with any
18 ears of age
matters relating to the care and welfare of a child,
s other contributions, such as any inheritance
such as the parent with whom the child is to live,
and the acquisition, conservation and improve-
the time to be spent with the other parent, and
ment of any assets (including maintenance
maintenance.
of the family home or working for the family

business).
REVIEW 12.8
1 Identify the sole ground for divorce in
Australia, and the consequences of there
being only one ground.
2 Describe what it means for a couple to be
living separately and apart.
3 Contrast shared parental responsibility
and shared parental care.
4 Identify the considerations the court must
take into account when determining the
best interests of the child.
Separating parents are required to attend com-
The court can order the disputing couple to

attend a conference in an attempt to have the
parties determine a fair and equitable allocation
of property and an agreeable settlement. If this
mediation process is unsuccessful, the Family
Court can make an order about the allocation of
matrimonial property, which includes all property
purchased or acquired during the marriage. Superannuation is regarded as a nancial resource
and the court takes into account the nancial
and non-nancial contributions made by both
parties to superannuation entitlements. Since
2002, separating couples have been able to claim
superannuation that each spouse had accumulated
Property
during the marriage as part of the matrimonial
The Family Law Act 1975 (Cth) uses a broad de-
property.
nition of property. Property includes homes,
There is no set formula regarding the distribu-
bank accounts, companies and partnerships,
tion of property. Rather the court aims to be as fair
shares, superannuation and household goods. If
as possible and to achieve an equitable outcome
the separating couple reach an agreement as to
for both parties, while taking into account their
the allocation of property and want to formalise it
differing needs and contributions.
and make it binding, they can apply to the Family

Court for consent orders. If the division of property
FI NA NC I A L A G RE E M E NTS
is fair and equitable, the court will then make a
Financial agreements arose out of individuals
legally binding order. A couple in dispute regarding
desire to protect their property rights. They can
331
cas e s p ac e
include guidelines for the division of property,
In the past, agreements between spouses were
debt and other nancial concerns in the event
not binding, and were just one of the matters
that the relationship ends. Such agreements tend
that a court could consider when determining a
to diminish the combative nature of separation
property settlement. Amendments to the Family
by removing two of the main sources of hostility
Law Act in 2000 now allow the Family Court to
between the parties: money and property.
recognise them as binding nancial agreements.
Financial agreements can be made between a
A party can apply to the Family Court to have the
couple prior to their marriage (these were formerly
agreement set aside, but this can be a costly and
known as pre-nuptial agreements), during the
time-consuming process.
marriage, or at the end of the marriage (see
As discussed earlier in this chapter, property
Family Law Act 1975 (Cth) ss 90B, 90C and 90D).
settlements for separating de facto couples are
They may prescribe what property is and is not
now governed by the Family Law Act. De facto
to be included in the settlement, settle questions
couples can also have binding nancial agree-
relating to how property is to be divided after the
ments, just as married couples, for property
marriage has ended, or establish who owns what
settlements in the event that they separate. They
property. Financial agreements can also include
can be made before, during or after the break-
provisions as to whether, how and by whom
down of a relationship (see Family Law Act 1975
spousal maintenance is to be paid.
(Cth) ss 90UB, 90UC and 90UD).
C and M [2006] FamCA 212

The parties (both aged 29)
claim the property. During the
calculation of the parties assets
married in October 2002
period 20022006 the husband
and liabilities effectively left
after a lengthy engagement.
continued to pay the mortgage
the wife with only 3.8% of the
However, after two months
and his parents provided
net assets. The court ordered
they separated. During their
him with substantial nancial
that the wifes share of the
engagement the couple bought
support in order to build a
asset (the land and house)
land on which they intended
home on the land.
should reect her nancial
to build their home. The land
332
The court in the rst instance
contributions to the mortgage
was purchased in the husbands
found that both parties had
repayments (assessed at 20
name and he was responsible
contributed equally to one
per cent of the total assets).
for paying the mortgage. The
anothers debt. The husband
However, taking into account
couple had been using the
was ordered to pay half his
the short period of time that the
wifes credit cards and personal
wifes debt, but was awarded
marriage and hence nancial
savings for day-to-day expenses
92.5% of the assets. No
contributions had lasted, the
and she was now deeply in debt.
adjustment under s 75(2) of the
ages of the parties, and the
When the couple separated,
Family Law Act 1975 (Cth) had
lack of any restrictions on the
the husband transferred the
been made for the husbands
wifes earning capacity, the
property to himself and his
higher income or greater
court held that there would be
parents, therefore preventing
earning capacity. On appeal,
no adjustment for disparity of
his wife from attempting to
it was held that the method of
earning capacity.
1 The following tasks relate to the Case Space

box on the left.
a Assess whether a just and equitable
outcome for all parties was achieved in
this case. Why or why not?
b Describe the factors that are taken into
account when deciding the allocation of
property after a marriage or de facto
relationship has broken down.
2 Outline the major changes that have been
made in family law regarding property
allocation.
3 Identify and explain the various orders that
the Family Court can make.
Legal responses to
domestic violence
Table 12.3 Potential causes of family problems

Psychological problems
s Lack of self-esteem and poor self-image
s Inability to express anger or frustration appropriately
s Strong desire to control or dominate others
s Cycle of violence: an abused child may become an abusing adult
s Mental illness, including depression
s Lack of positive male and female role models
Social problems
s Drug dependency, including alcoholism and addiction to prescribed
drugs or illegal substances
s Disputes over housework, other domestic duties
s Disputes over child discipline issues
s Lack of quality time spent with family members
s Cultural or geographic isolation
Financial problems
s Lack of money (due to unemployment, low-paid work or part-time
work), making it difcult to pay bills and mortgage or rent
s Disputes over how to spend a limited supply of money
s Expectation that the children will need to nd employment to
contribute to the familys nances
s Inadequate amount of money for child care
REVIEW 12.9
The Australian Law Reform Commission states

that assault occurring in the home is not a private
2800
matter but one that is of concern for the commu-
Dec. 2004
Oct. 2004
Jul. 2004
Apr. 2004
Jan. 2004
There are many reasons why families experience interpersonal problems. Causes of family
1900
Oct. 2003
ship (such as between a parent and child).
2000
Jul. 2003
facto relationship or other close personal relation-
2100
Apr. 2003
a domestic relationship that is, a marriage, de
2200
Jan. 2003
someone with whom the offender has, or has had,
2300
Oct. 2002
violence is personal violence committed against
2400
Jul. 2002
15A of the Crimes Act 1900 (NSW), domestic
2500
Apr. 2002
which came into force in 2008 and replaced Part
2600
Jan. 2002
(Domestic and Personal Violence) Act 2007 (NSW),
2700
Number of recorded incidents
nity as a whole. According to s 11 of the Crimes
Figure 12.6 Incidence of family violence in NSW, 200204
crises can range from psychological or social problems to nancial difculties. Examples of these
problems are listed in table 12.3.
a marriage, de facto relationship or other close
Violence between spouses
personal relationship (such as between a parent
According to the Crimes (Domestic and Personal
and child).
Violence) Act 2007 (NSW), which came into force in
Violence between spouses may take the form of
2008 and replaced Part 15A of the Crimes Act 1900
physical, verbal, emotional, nancial, psychological
(NSW), domestic violence is personal violence
and/or sexual abuse, social isolation, or actual or
committed against someone with whom the
threatened violence or harassment. Males tend to
offender has, or has had, a domestic relationship:
commit domestic violence more than women and
domestic violence
any act, whether verbal
or physical, of a violent
or abusive nature that
takes place within a
domestic relationship
333
women and children. However, men are also

victims of domestic violence. The number of
female victims of domestic violence rose from 236
in 1995 to 607 per 100 000 in 2007, while the
number of male victims of domestic violence rose
legal links
the majority of domestic violence victims are
For more information on domestic

violence see www.aph.gov.au/
library/intguide/sp/Dom_
violence.htm
from 46 in 1995 to 266 per 100 000 in 2007. In

2007, 2336 women were charged with domestic
violence, compared to 800 in 1999 (source:
Go to www.aph.gov.au/library/intguide/SP/
Australian Bureau of Statistics).

Women are at greater risk of violence at the
hands of someone they know: 82 per cent of
women who have been assaulted knew the offender. Research ndings also show that women are
more likely to experience violence in the context
of the home (64%) than by a stranger or in a public
place, and one-third of physical assaults were
committed by the victims spouse or partner. Of all
women assaulted, nearly half will experience
repeated attacks (source: Australian Bureau of
Statistics 4102.0, Australian Social Trends, 2007).
Victims of domestic violence can press criminal
charges or can apply to the Local Court for an
Order
1 Discuss whether or not domestic violence is

increasing.
2 Describe who are typically victims and
perpetrators.
3 Discuss the economic, social and health costs
of domestic violence.
4 Explain who the major groups at risk of
domestic violence are.
5 Analyse the graph per cent of females
experiencing violence during the last 12
months. Which groups are most at risk and
why?
6 What are the Human Rights and Equal
Apprehended
son is charged with a criminal offence. However, if
VI O L E NC E A G A I NST C H I L DRE N
injunction
a court order
directing someone
to do something or
prohibiting someone
from doing something
the person breaches the order, he or she may be
Article 19 of the UN Convention on the Rights of
charged with a criminal offence. If there is suf-
the Child (CROC) declares that no child should be
cient evidence available to support a conviction for
subjected to violence and it is the responsibility of
this offence and any associated offence, police will
the state to protect them from all forms of physical
arrest and charge the person with a breach of the
or mental violence, neglect or negligent treatment,
ADVO, in addition to any other offence committed
maltreatment or exploitation, including sexual
at that time.
abuse, while in the care of parents, legal guardians
334
Violence
ViolenceAgainstWomen.htm
Apprehended
Domestic Violence
Order (ADVO)
a court order that aims
to protect the applicant
from violence and other
forms of intimidation or
abuse perpetrated by a
family member
breach
to fail to obey
Domestic
R ESEAR CH 1 2 . 2
(ADVO). Alternatively, it may be possible to apply
Opportunity Commission recommendations
to the Family Court for an injunction for personal
regarding Indigenous Australians?
protection, but these are often more complex and

less easily enforced by local police.
The issue of an ADVO does not mean the per-
Violence involving children
Domestic violence offenders or those in breach
or any other person who has the care of the child.
of an ADVO may have their bail application
The Children and Young Persons (Care and
denied. Section 9A of the Bail Act 1978 (NSW)
Protection) Act 1998 (NSW) covers abuse as well
excludes domestic violence offenders from an
as neglect. Specically, s 227 prohibits intentional
automatic presumption in favour of bail. The Act
acts resulting or likely to result in physical injury or
was amended in 1993 in response to the murder
sexual abuse, emotional or psychological harm, or
of a woman by her estranged husband, who had
harm to health or physical development. Children
been released on bail after he had been arrested
can be included on an adults ADVO application, or
for breaching an ADVO.
a separate application can be made for children.
The Children (Criminal Proceedings) Act 1987
for an ADVO for children under 16 years of age;
(NSW) s 5 states that children under the age of
those over 16 can apply for their own ADVOs.
10 years cannot be guilty of a criminal offence.
However, a court may grant an ADVO for protec-
The law considers a child under 10 as being unable
tion of a child even if the application was not made
to understand the consequences of their actions.
by a police ofcer (Crimes (Domestic and Personal
Children aged between 10 and 14 years are also
Violence) Act 2007 (NSW) s 38(5)). If there is a
presumed to be incapable of committing a crime;
parenting order in place that allows the offender
the prosecution in a case where the accused is
access to the children, and their safety is at risk,
in this age range must rebut the presumption by
the applicant for an ADVO must inform the court
proving that the child did the act alleged and that
of its existence (Crimes (Domestic and Personal
he or she knew that it was wrong. If this is proved
Violence) Act s 42(1)).
the child can be held criminally liable.
In NSW, certain professionals are required by
Once a charge is laid the child or young person
law to report to Community Services if they sus-
will usually face proceedings in the Childrens
pect that a child is at risk of harm (Children and
Court. The Young Offenders Act 1997 (NSW)
Young Persons (Care and Protection) Act ss 24
provides alternative options to court for young
27). These persons include teachers, doctors,
offenders. Options include the use of warnings and
school counsellors, and anyone who works with
cautions and youth conferencing. Having the child
children. If a report has been made, Community
offender face proceedings in the
Services is legally required to investigate the case.
Childrens Court is the last resort.
Possible outcomes after notication include the
The emphasis is on preventing the
R EVI EW 1 2 . 1 0
following:
child from coming into contact
1 Identify and explain the
s If the notication concerns a threat of abuse or
with the justice system, to employ
various factors that may
a welfare approach through coun-
cause problems within a
s The police can charge the accused.
selling and education, and to en-
family.
s The Family Court can restrict contact by the
courage young offenders to take
2 Explain what an ADVO is.
offender with any children the court feels are
responsibility for their actions,
3 Outline the legal remedies
at risk.
actual abuse, then an ADVO is made.
rather than to punish them. The
that are available to victims
s Community Services can apply for a variety of
long-term goal is to prevent the
of domestic violence.
care and protection orders, including the re-
child from becoming an offender
moval of the child from a violent environment.
as an adult.
A police ofcer is the only person who can apply
4 Explain how the law deals

with juvenile offenders.
s Less serious cases from reports will be referred

to Child Wellbeing Units in NSW Health, Police,
and provide support to the children and
Effectiveness of the law in

protecting victims of domestic
violence
families.
Recent educational campaigns have raised com-
Education and Training, and Human Services

departments, which have the power to assess
munity awareness of domestic violence as an

V IOLENCE B Y C H IL DR EN
important social issue, and the understanding that
Violent acts are not committed solely by adults.
domestic violence is no longer a private matter,
However, the law deals with child offenders
nor is it acceptable. Legislative reforms reect this
differently. Laws relating to child offenders reect
changing attitude to domestic violence. Domestic
the basic philosophy underlying the UN Convention
violence is recognised as a community problem,
on the Rights of the Child: all decisions relating
not an individual or isolated occurrence, and most
to children should be in the best interests of
people now appreciate that reducing its incidence
the child.
is in some respects a societal responsibility.
335
med i a cl i p
ADVOs have become an important means of
laws have slowly evolved in response to circum-
reducing the incidence of domestic violence. One
stances that legislators or the courts had not
advantage of these orders is that they are a quick,
considered.
inexpensive and accessible form of protection,
For example, the concept of battered wife
which are complemented and supported by the
syndrome, which was originally applied only
full weight of the criminal law if they are breached.
to women in heterosexual marriages, has been
However, it has been argued that only those indi-
extended to include battered partners in de facto
viduals who are normally law-abiding will comply
relationships, including homosexual relationships.
and that these orders do little to deter individuals
The automatic presumption in favour of bail was
who are persistent offenders. In addition, pro-
removed after several women had been stalked
tection orders can only be effective if they are
and killed by their respective partners who had
policed. But it is unfair to state that laws aimed at
been released on bail. And although gun-related
domestic violence have failed utterly. Rather, these
crime is relatively low in Australia, the Firearms
Murder verdict: Mum starved girl to death

Tue Jun 23, 2009
ABC/AAP
A man and woman have been found guilty of

starving their autistic daughter to death.
The seven-year-old girl died in November 2007
at her home in the New South Wales Hunter
Valley, weighing just nine kilograms.
She died of malnutrition and dehydration
resulting from starvation.
The trial heard the girl was so thin that she
looked mummied to ambulance ofcers.
A six-woman, six-man Supreme Court jury
spent the past week deliberating on the charges
against each of the girls parents.
They found the 35-year-old mother guilty of
murder and her 48-year-old husband guilty of
manslaughter.
The couple stared straight ahead as the verdict
was read out and showed no emotion.
Both parents had pleaded not guilty to
murdering the child at their Hawks Nest home.
Several doctors testied the girl suffered the
most severe case of malnutrition they had ever
seen, with one expert saying the childs head
resembled a skull wrapped in skin.
During the trial the parents admitted lying to
police when they claimed she was happy and well
336
the night before her death, with the jury told she
would have been semi-conscious to comatose
for days.
The childs father blamed the mother for the
death, saying she was solely responsible for the
seven-year-olds care.
The mother told the jury the thought her
daughter may die never entered her head.
The couples three other daughters remain in
the custody of the Department of Community
Services (DoCS).
DoCS statement
Today DoCS released a statement saying the
case is one of the most disturbing it has had to
deal with.
Following this tragedy, the whole child
protection system underwent an extensive,
independent review by Commissioner [James]
Wood and the government responded
with a detailed, funded ve-year plan, the
statement said.
Changes are underway to respond to some of
the issues that this case highlighted.
By expanding the role of other government
and non-government agencies to work with
families in crisis and children at risk of harm, the
system is being strengthened and improved.
may be dealt with by a court order under Part VII
prohibiting the issue of, or revoking, a gun licence
of the Act (involving children) to make a genuine
or permit if the individual has been subject to an
effort to resolve their dispute, using family dispute
ADVO. All of these legislative changes have been
resolution, before applying for an order. If there is
in response to community pressure and specic
a history of family violence, then family dispute
instances of domestic violence.
resolution may not be appropriate.
Several states have introduced mandatory
Different forms of dispute resolution are pro-
counselling for perpetrators of domestic violence.
vided by Family Relationship Centres (government-
Criminal penalties apply if they fail to attend. NSW
funded community centres that assist couples
has not initiated such a program. There exists little
and families at all stages of relationships), but
evidence supporting the effectiveness of such a
disputing parties can go to private providers of
program on reducing domestic violence.
counselling services if they choose. The Family
There have been allegations made that appre-
Court and the Federal Magistrates Court (the
hended violence orders are too easy to obtain and
Family Law Courts) can refer disputing parties to
that women have falsely claimed to be victims
an extensive range of counselling ser vices for
of domestic violence when contesting parenting
both adults and children, and can also order
orders. However, claims of domestic violence
separating couples to attend dispute resolution.
do not necessarily adversely affect family law
Although individuals are required to pay for these
proceedings and there is little evidence to support
services, some associated costs may be subsidised
such allegations.
by the government depending on the nancial

circumstances of the individual parties.
REVIEW 12.11
Read the Media Clip and answer the following
questions.
1 Given that both parents are equally
responsible for the care of their child,
suggest reasons why the father of the child
was charged with manslaughter rather than
murder.
2 Explain what the relevant authorities could
have done to prevent the childs death.
Act 1996 (NSW) offers the additional protection of
Types of dispute resolution services include:

s Reconciliation counselling for separating
couples who are attempting to reconcile
s Post-separation parenting programs for
couples whose issues adversely affect their
carrying out of parenting responsibilities. The
program usually takes the form of family counselling, group lectures and discussions, and
teaching techniques to resolve disputes.
s Mediation for separating couples who have
made an application to the Family Court,
mediation involves a neutral, impartial third
Methods of resolving
disputes
party (a mediator) helping them to identify

issues, formulate options, consider alternatives
and reach agreement. This service may be used
prior to a court hearing.
Family dispute resolution
Couples are more likely to comply with an
Family dispute resolution is dened by s 10F of the
agreement that they have had some say in. Indi-
Family Law Act 1975 (Cth) as a non-judicial process
viduals also learn additional skills, such as better
in which an independent practitioner helps people
communication, which may help to minimise
affected by a separation or divorce to resolve some
future conicts. In addition, this form of dispute
of their disputes with each other.
resolution is less costly than court proceedings,
The Family Law Act 1975 (Cth) s 60I requires

couples who have a dispute about matters that
in both time and money, and less stressful for all

parties involved.
337
Individualised counselling is available to any

child whose parents are separating. The counsellor
The role of the courts in

family law matters
(mediator) will meet and discuss with the child

his or her needs, issues, fears and concerns. The
The law is primarily concerned with protecting
counsellor (mediator) will then present to the
the rights of family members and ensuring that
presiding judge a Family Report, which will contain
individuals meet their family obligations. But the
a summary of the information that the child
law also aims to provide structures and processes
has given to the counsellor. The purpose of this
that will help disputing parties to reach an
process is to ensure that the needs and welfare of
amicable resolution. For this reason, the Family
the child are identied and met by any parenting
Court focuses more on reconciliation and on
order issued by the Family court.
encouraging compliance rather than on arbitration
Once an agreement has been reached, separ-
and the use of sanctions or coercion.
ating parents enter into a parenting plan or le

to the children of the relationship must be nalised
Family Court of Australia and

Federal Magistrates Court
before the divorce is granted. If parties fail to
Prior to the establishment of the Family Court in
reach an agreement, or if there are issues relating
1975, the various state courts would hear matters
to abuse or family violence, then the matter will be
relating to divorce. The Family Court is a special-
heard by a court.
ised court that is, outside the judicial hierarchy
consent orders with the court. All matters relating
and it hears matters relating to separation,
Adjudication
divorce and other disputes related to marriage. Its
Adjudication is the determination of a matter by a
jurisdiction is limited to those areas controlled by
court judgment or ruling. The Federal Magistrates
the Family Law Act 1975 (Cth), which include
Court and Family Court can make decisions
property and nancial matters, maintenance, and
regarding division of property, maintenance
parenting arrangements.
and any decision that may affect children of the
In late 1999 the Federal Magistrates Court
relationship. Divorce is automatic if the parties
was established to relieve some of the case load
can show irretrievable breakdown of marriage
of the Federal Court and the Family Court, and
and the required period of separation. This will
to reduce the cost and time required to deal with
only occur after all other counselling and family
some federal matters. The Federal Magistrates
dispute resolution processes have been exhausted.
Court has a similar jurisdiction to the Family Court
Once the court has made its decision it will impose
in that it can hear matters relating to divorce, the
an order, such as a parenting order, with which
division of property, and children. It cannot hear
both parties must comply. Unlike a parenting plan
any matters related to adoption, applications
(agreement), any breach of this court order may
concerning nullity (that the marriage did not exist
result in further court action, nancial penalties or
in the rst place) or validity of a marriage.
other criminal sanctions being imposed.
338
The majority of divorce applications are
Individuals wishing to divorce can now le an
now heard in the Federal Magistrates Court while
application for divorce online through the Family
more complex issues involving multiple parents,
Law Courts portal (www.familylawcourts.gov.au).
the intention of a parent to move interstate or to
A small administrative fee is also payable once
emigrate, and serious allegations of family violence
the application has been made. This fee can be
or child abuse (Magellan cases) are heard in the
waived in certain circumstances, for example for
Family Court. All other issues (such as adoption,
those who hold government concession cards or
inheritance and wills) must go to courts within the
are experiencing nancial hardship.
state court hierarchy.
relationship breaks down, parents themselves

reach an agreement about the ongoing parenting
arrangements for their children. If an application is
made seeking an order of the court, the court will
usually provide the parties with an opportunity
legal links
In most situations where a marriage or de facto

Visit www.familylawcourts.gov.au/
to learn more about the family law
system in Australia.
to resolve the issue through counselling and

the court may determine the issue through a
The Childrens Court
hearing before a judge. When the court is called
The Childrens Court is a state court. There are six
upon to decide whether to make a particular
permanent Childrens Courts in NSW, but Chil-
parenting order, the childs best interests are the
drens Magistrates conduct hearings in other
paramount consideration.
locations. The Childrens Court is headed by a
Initially the jurisdiction of the Family Court did
president, who is also chairperson of the Childrens
not extend to ex-nuptial children. This is because
Court Advisory Committee, which provides advice
the Commonwealth Parliaments constitutional
on the rules, practice and procedure of the Court.
power to enact legislation only extended to mar-
The Childrens Legal Service, which operates
riage and divorce, and matrimonial causes arising
through Legal Aid NSW, will provide representa-
from divorce; therefore only children of a marriage
tion for children and young people, in both criminal
came within the Act. However, all of the states
cases and child welfare cases before the Childrens
except Western Australia referred their power to
Court.
make law regarding certain matters relating to
The Childrens Court hears cases relating to
children to the Commonwealth in 1986, through
the care and protection of children under the
Acts including Commonwealth Powers (Family Law
Children and Young Persons (Care and Protection)
Children) Act 1986 (NSW). Any matter relating to
Act 1998 (NSW). Such cases are usually brought
the care and maintenance of a child will now be
by Community Services, the division of the
heard in the Family Court, and the same federal
NSW Department of Human Services whose res-
provisions cover all children.
ponsibility is keeping children and young people
The Family Court and Federal Magistrates

Court have the power to determine matters relating to the division of property and maintenance
for both married and de facto couples.
mediation. In the cases where this is not successful,
safe from harm and supporting the families of

children and young people.
The Childrens Court is a closed court, which
means that people not directly involved in the
case are not allowed to be present unless the Court
otherwise orders. Court proceedings are informal
and each step is explained to the child. During the
REVIEW 12.12
1 Explain the concept and purposes of family
dispute resolution. Give examples of types
of family dispute resolution.
hearing the child will be represented by a solicitor.

The standard of proof required is that it is very
highly probable that the child is in need of care.
If the Childrens Court nds that a child is in
need of care, it can make a variety of orders, which
adjudication and other methods of dispute
can be either short-term or long-term. Community
resolution.
Services may be required to supervise the parents to
3 Outline and contrast the tasks of the Family
ensure that they full their parental responsibility.
Court and the family law jurisdiction of the
Alternatively, the court may decide to place the
Federal Magistrates Court.
child with a relative, foster family or other appro-
339
priate adult. If this decision is reached the childs

parents no longer have control over their child. Con-
The role of nongovernment organisations
tact visits may be permitted to allow the parent(s)

and child to maintain a personal relationship, but
There are a number of non-government organi-
such visits are closely supervised and regulated.
sations that provide support for families and
A variety of support services may be provided to
individuals who may be struggling with personal
both parents and children, including educational,
relationships and other family issues. Many of the
psychological and welfare services. Orders by the
better known organisations are operated by various
Childrens Court cease when the child turns 18.
religious groups such as the Salvation Army, or by
The jurisdiction of the Childrens Court also
churches, such as Centacare (www.centacare.woll.
covers crimes committed by persons who were
catholic.org.au/) and Anglicare (www.anglicare.
under 18 at the time of the alleged offence.
org.au).
Bringing a child to court for a criminal offence is
Non-government organisations which are not
seen as the last resort. Many have argued that the
associated with religious groups and which provide
earlier a child comes into contact with the law, the
similar services include Relationships Australia
more likely he or she is to commit serious offences
(www.relationships.com.au) and the Smith Family
upon reaching adulthood. Consequently, the legal
(www.thesmithfamily.com.au). Ser vices provided
system should minimise contact between children
by these organisations include mentoring, support
and the legal system, in the hope that fewer
for new parents, counselling and relationship ad-
children will become repeat offenders. This view
vice, assistance with managing conict and dealing
underlies the objectives of the Young Offenders Act
with violence in the family, emotional support to
1997 (NSW), set out in s 3 of that Act:
children of separating parents, mediation, and

advice on creating parenting plans. Unfortunately
(a) to establish a scheme that provides an alter-
many of these organisations are dependent on
native process to court proceedings for dealing
donations and/or have to apply for government
with children who commit certain offences through
funding and the goodwill of volunteers.
warnings, and
(b) to establish a scheme for the purpose of
providing an efcient and direct response to the
commission by children of certain offences, and
(c) to establish and use youth justice conferences
to deal with alleged offenders in a way that:
l eg al l i nks
the use of youth justice conferences, cautions and
A more complete list of

community-based family
relationship services can be found
at www.frsa.org.au/site/Services_
Directory.php?state =NSW.
(i) enables a community based negotiated response to offences involving all the affected
parties, and
(ii) emphasizes restitution by the offender and
the acceptance of responsibility by the offender
for his or her behaviour, and
340

The media have changed dramatically within the
last few years and will continue to change with the
introduction of new communication technologies.
(iii) meets the needs of victims and offenders,
The Family Law Courts have embraced these
and
new media technologies, placing self-help guides,
(d) to address the over representation of Aboriginal
brochures and forms, and links to other sites on
and Torres Strait Islander children in the criminal
their internet site, and establishing the National
justice system through the use of youth justice
Enquiry Centre to answer telephone and e-mail
conferences, cautions and warnings.
enquiries about general court procedures and
individual cases, as well as referrals to legal advice

and other services, and the provision of forms and
publications.
The courts have effectively used these new
media technologies to provide better information
about rights and obligations under family law, as
R EV I EW 1 2 . 1 3
1 Explain how and why children are treated
differently within the legal system.
2 Explain the two roles of the Childrens
Court.
3 The emphasis of the Young Offenders
well as additional support services. They are also
Act 1997 (NSW) is to provide sentencing
keenly aware of the need to protect the privacy
alternatives other than detention. Outline
of individuals affected by the breakdown of a
the types of alternative orders the
relationship, restricting how the media publish
Childrens Court can make.
of information and legal direction with protection
4 Explain how non-government organisations

support families.
court proceedings and so balancing the provision

of personal information about separating families.
Co ntempora r y issues
co n ce r n i n g f a m i l y l aw
Issue 1: Recognition of
same-sex relationships
nition by adding those words to s 5(1) of the

Marriage Act. The purpose of the amendment was
to clarify that parties to a marriage must be one
The Marriage Act 1961 (Cth) and various state legi-
man and one woman. This means that any same-
slation give heterosexual couples a number of
sex marriage is automatically void in Australia,
rights and obligations from which same-sex couples
including the marriage of any same-sex couple
are excluded, and although the Sex Discrimination
who had previously married in a country that
Act 1984 (Cth) and state anti-discrimination Acts
granted same-sex marriages legal status.
protect heterosexual de factos against discrimination on the basis of marital status, same-sex
couples do not enjoy the same protection because
their legal marital status remains single.
In 2001, the Netherlands became the rst
country to recognise same-sex relationships. Since
then, Belgium, Spain and Canada have passed laws
recognising them. For some same-sex couples, the
desire for legal recognition of their relationship
does not necessarily mean that they want the right
to be married. The removal of institutionalised
discrimination and the provision of adequate legal
protections may be a more pressing concern.
In 2004, the Commonwealth Government reafrmed the traditional concept of marriage as
the union of a man and a woman when it passed
the Marriage Amendment Act amending the de-
Figure 12.7 For same-sex couples, legal recognition

of their marriage can mean more than the right to be
married. It also signies the removal of institutionalised
discrimination.
341
Legal and non-legal

responses
support. Same-sex couples will be able to claim the

same tax concession as those presently available
to married or heterosexual de factos. They and
Changes to the law have been slow and haphazard,
their children will be able to claim superannuation
but the law is gradually changing. Such changes
benefits, and to receive the same social security
are to be encouraged if the law is to continue to
and family assistance payments as heterosexual
protect the rights and mutual obligations that are
couples.
created when two individuals form a relationship.
A major change in state laws concerns the re
In addition, there are cumulative benefits for our
cognition of a same-sex partner as the parent of
society in protecting any mutually supportive
their partners child. Male partners in a hetero
relationship, not least of which is the economic
sexual marriage or de facto relationship have
benefits associated with a two-income family
parental rights and responsibilities towards a child
(more likely without children). This purchasing
conceived during the relationship that is, bio
power has been acknowledged by marketing and
logical parents are regarded as having joint res
sales representatives as they try to attract the pink
ponsibility for the child. However, a partner of the
dollar. It is arguably against societys interests to
same sex had no legal standing and could not make
penalise such relationships.
decisions about the day-to-day care of the child
Legal responses
unless the Family Court had so ordered. Children

conceived through donor insemination or assisted
Between 2000 and 2009, various Australian
reproduction had only the mother listed on their
states and territories introduced a number of law
birth certificates. The Miscellaneous Acts Amend
reforms recognising same-sex relationships in
ment (Same-Sex Relationships) Act 2008 (NSW)
specific areas. But same-sex relationships were
granted equal parenting rights for the female par
still not recognised as having the same status as
tners of mothers, and both are listed as mothers on
a marriage under federal laws. In 2008, following
the childs birth certificate. This change gives chil
the Australian Human Rights Commissions report
dren born into same-sex relationships equal rights
Same-Sex: Same Entitlements, the Australian gov
to inheritance from both parents and protects the
ernment introduced reforms with the aim of
rights of both mothers in matters involving the
removing discrimination and providing same-sex
children if the relationship were to end.
couples the same entitlements as those presently

enjoyed by heterosexual de facto couples. Since
In September 2010 the NSW Parliament passed

a law allowing same-sex couples to adopt.
2008 under the Same-Sex Relationships (Equal
Under the Family Law Amendment (De Facto
Treatment in Commonwealth Laws General Law
Financial Matters and Other Measures) Act 2008
Reform) Act, federal law reforms have removed
(Cth), property and maintenance matters for
areas of discrimination from a range of laws
separating homosexual couples are determined
and programs by amending and/or extending
by the Family Court or the Federal Magistrates
definitions such as de facto partner, child,
Court. The Act extends the definition of de facto
parent, couple and family to include same-sex
to include two people who are not married or
relationships.
related by blood who live together on a genuine
For example, the Health Insurance Act 1973 (Cth)
basis. The Act does not distinguish between a
now allows a same-sex couple and their children
relationship between two people of the same or
to register as a family for Medicare and receive
opposite sex.
the same entitlements as a heterosexual couple
342
and their children. Additional areas amended
Non-legal responses
have been tax, social security, family law, super
Non legal responses to the reforms have been
annuation, workers compensation and child
varied, ranging from complete support and criti
cism of the various state and federal governments
and a written apology in The Sydney Morning
for not going far enough, to individuals and groups
Herald.
who are highly critical of any added protection of

the rights of same-sex couples.
Most of the lobby groups that oppose equal

rights for homosexual couples have a religious
The Australian Human Rights Commission
affiliation, such as the Australian Christian Lobby
has held a number of inquiries into areas of
(www.acl.org.au/). Under the current discrimina
discrimination and human rights violations. The
tion laws, religious groups continue to be able to
Commission also makes recommendations to the
discriminate on the basis of sex, sexuality, race,
government regarding the removal of institutional
disability and age. This allows these organisations
ised discrimination and legislation which does not
to withhold services to individuals.
(www.hreoc.gov.au/HUMAN_RIGHTS/samesex/

system
report/index.html) recommended amending fed
In order to change the law, courts have to be willing
eral laws that discriminated against same-sex
to act, a significant number of politicians must
couples and their children in the area of financial
support legislative reform, and there also needs to
and work-related entitlements and benefits.
be a societal change. Law reform bodies have the
Commissions report Same-Sex: Same Entitlements
Other groups that actively lobby and campaign
task of investigating and recommending changes.
for the legal rights and social equality of gay and
The Anti-Discrimination Board of NSW is part
lesbian couples include Australian Marriage Equal
of the NSW Department of Justice and Attorney
ity
(www.australianmarriageequality.com)
comply with UN human rights treaties. In 2007,
and
General. It administers the anti-discrimination
the Gay and Lesbian Rights Lobby (http://glrl.org.
laws of New South Wales. It handles complaints of
au/). Australian Marriage Equality argues that the
discrimination, and also informs the public of how
legally recognised institution of marriage should
individuals can prevent and deal with discrimina
not exclude these couples. A different classifi
tion, through consultations, education programs,
cation sends the message that their relationships
seminars, talks, community functions and publi
are of a lesser standard or character and that the
cations. The Boards third function is to advise the
people are second-class citizens. Justice requires
government and make recommendations. It has
changing the law to make marriage available to all
made a number of submissions to both the state
Australians who choose it, not classifying same-
and federal governments concerning changes to
sex couples as de factos or permitting them only
current legislation that are necessary in order to
to form civil unions. The Gay and Lesbian Rights
provide same-sex couples the same legal rights
Lobby has a wide-ranging agenda, including advo
and protections that are now enjoyed by married
cacy, lobbying government and the media to
couples.
address discrimination, hosting consultations,
However, arguments against the recognition of
educating the gay and lesbian community on their
same-sex relationships continue to exert an influ
rights and providing referrals to legal and welfare
ence in the public sphere. The legislative changes
services.
to de facto entitlements by the Rudd government in
Some sections of the media have been critical
2008, while welcomed, sat alongside a continuing
of these changes and have resorted to ridicule. For
refusal to amend the Marriage Act to permit same-
example, in 2003 two radio program hosts made
sex marriage. Then Prime Minister Rudd told the
comments capable of inciting severe ridicule of
media in 2009 that the Australian Labor Party
homosexual men and therefore were held to have
considered marriage to be a union between a man
breached the vilification provisions of the Anti-
and a woman, and that the partys policy opposed
Discrimination Act 1977 (NSW). In 2008 the hosts
gay marriage. I fully accept the integrity of same-
appeal was settled, with a public apology on air
sex relationships but in terms of the policy, its
343
a matter to which we have been committed for

some time, he said.
towards their children.

Parents have joint responsibility for the child
(see Family Law Act 1975 (Cth) ss 61B and 61C).
Conclusion
This applies equally to a child born within mar
In his speech at the Conference on Legal Recog
riage (nuptial) and to a child born outside of
nition of Same-Sex Partnerships in 1999, then
marriage (ex-nuptial). This responsibility is not
High Court Justice Michael Kirby stated:
altered if the parents separate, marry or remarry,
As a people committed to equal justice for all

under the law, I have confidence that the Austra
lian legal system, and those who make laws in
Australia, will, in due course, eradicate unfair dis
crimination on the basis of sexuality. The scales
are dropping rapidly from our eyes. Injustice and
irrational prejudice cannot survive the scrutiny of
just men and women.
Source: www.hcourt.gov.au/speeches/kirbyj/kirbyj_samese.htm
unless there is a court order otherwise. Reforms to

family law have tended to focus on maintaining
positive and supportive family structures even
when parents separate. But the law has also
focused on ensuring that parents meet their res
ponsibilities towards their children.
Legal and non-legal

responses
Both the state and federal governments take
There is a perception that the ideal of shared
note of and continue to respond to issues surround
parental responsibility is frequently not reflected
ing discrimination. These issues are not limited to
in reality. There are always instances where the
same-sex relationships. Similar recognition, rights
child will spend a disproportionate amount of his
and protections for non-traditional and alternative
or her time with one parent. This could be because
or extended family relationships are also needed.
of financial or geographic constraints, or issues

such as a parents alcohol abuse or poor health.
REVIEW 12.1 4
1 List the issues surrounding same-sex
relationships and discuss the effectiveness
of legal and non-legal responses in
addressing these issues.
2 Compare and contrast arguments for
changes to practical entitlements only, and
arguments for full recognition of same-sex
relationships by means of a change to the
definition of marriage.
344
In more than 60 per cent of parenting plans and

orders, children spend more than half of their time
with their mother. The main reason for a child to
spend no time or less than 30 per cent of his or
her time with a male parent was concern about
abuse or family violence and entrenched conflict.
For women it was concerns regarding their mental
health, and issues surrounding transport or finan
ces, as well as abuse.
A key point to remember is that shared parental
responsibility, or shared responsibility for major
Issue 2: The changing

nature of parental
responsibility
decision-making, is not the same as shared care
The concept of parental responsibility has
and care more equally, have had some unintended
changed. In the past, parents sought custody
and undesirable effects. One of these was that
and control over their children, enforcing their
more parents mistakenly believe that they are now
parental rights. Now the courts are less concerned
entitled to 50-50 shared care of their children.
with parental rights and more concerned with
Another is that the legislations emphasis on a
parental responsibility. The focus of the law is on
childs right to a relationship with both parents has
ensuring that parents fulfil their legal obligations
been given more weight than is warranted.
(equal time with both parents). However, it can be

argued that family law reforms in 2006, aimed at
encouraging parents to share both responsibility
Non-legal responses
Reforms introduced by the Family Law Amend-
Community and church-based institutions, as
ment (Shared Parental Responsibility) Act 2006 (Cth)
well as nationwide organisations such as Relation-
included two types of considerations to be taken
ships Australia, can help separating parents to
into account by a court in respect of the best inter-
negotiate their own parenting agreements and can
ests of the child (Family Law Act 1975 (Cth) s 60CC).
also provide a range of information and referrals.
The court will now take into account primary and
Counselling, education and skills training not only
additional considerations. Primary considerations
help parents to develop better parenting skills, but
include the benet of the child having a positive
may also assist in recognising gender issues that
and meaningful relationship with both parents,
affect relationships with children in negative ways,
and the need to protect the child from abuse and
for example the attitude that fathers are inherently
family violence. Additional considerations include
less competent than mothers in caring for tod-
the childs wishes, the nature of the relationship
dlers, or that a good worklife balance is essential
between the child and the parent, the nancial
for mothers but less important for fathers.
ability of the parent to care for the child and the
Resolving problematic issues about shared
ability of the parent to provide for the intellectual
parenting and shared responsibility requires
and emotional needs of the child. Where there
changes in societal attitudes, and these interact
are factors such as the risk of violence, or shared
with legislative enactments and amendments.
responsibility that is not in the childs best inter-
Successful shared care was occurring before the
ests, whether the responsibility is equally shared
2006 amendments, where the parents involved
is not an issue. When this is the case, the court
were willing to cooperate in the effort to achieve
will not have to consider whether the childs time is
the best circumstances for their children. Non-
equally shared by the parents.
legal mechanisms such as womens resource
Another change involved the notion of sub-
centres, the National Council of Women of Australia
stantial and signicant time to be shared by each
(www.ncwa.org.au) and parenting networks for
parent, where equal time is not considered to be
mothers, fathers or both may be of value in further-
in the best interests of the child (Family Law Act
ing this aim. DadsLink is one example of a network
s 65DAA). Some have argued that this provision
that focuses on fathers and their relationships with
has not been sufcient to address parents mis-
their children, and is part of the YMCAs ParentLink
perception that both are entitled to time with the
program for single parents.
Legal responses
child, and that they should both have substantial

and signicant time even when there are other
factors to the contrary.
When more time with children is coupled with
Responsiveness of the
legal system
reduced child support payments, the motivations
Sometimes changes to the law have led to changes
for seeking shared care become less clear, and
in what the community accepts as moral behav-
courts may have a harder time reconciling the
iour, and sometimes they reect these social
aim of facilitating the childs relationship with
changes. The obligation to take responsibility for
both parents with the actual facts of the particular
the care and nancial support of a child is con-
family situation.
sidered to be one that should be met by both
A parent who has been pressured into allowing
parents.
the other parent more time with the child may be
In addition, views about men and women have
discouraged from raising concerns about family
expanded to accommodate a much wider range of
violence, and may think that the court will order
roles for fathers as well as mothers. The idea that
shared care anyway.
responsibility and care for children is primarily
345
a significant number of Australians believe that

fathers are equally capable of parenting, just as
REVIEW 12.15
1 List the issues surrounding parental
mothers are equally capable of fulfilling the other
responsibility and discuss the effectiveness
aims of a satisfying and productive human life.
of legal and non-legal responses in
In order to ensure that parents meet their
addressing these issues.
responsibilities, the government has enacted
2 Consider and discuss whether further
a number of laws. Some of the trends that have
legislative reforms would be useful to
arisen since the 2006 reforms to the Family Law
address the problems raised by parents
Act suggest that courts and society to distin
misunderstanding the idea of shared
guish between families in which shared care is
parental responsibility.
desirable and those in which there are concerns

that override this aim. The most obvious legal
between equal responsibility and equal time.
Issue 3: Surrogacy and

birth technologies
Conclusion
Birth technologies
The emphasis on childrens rights reflects the idea
Under common law, the mother of a child is the
that children are vulnerable members of our
woman who gave birth to the child. The father
society and need greater protection. All decisions
is the man who acknowledges and accepts the
must be in the best interest of the child and the
responsibility for the child or who is proved to be
interests of their parents or caregivers are secon
the father in court. Advances in birth technology
dary. It is important to protect the childs right to
mean that it is no longer possible to presume
maintain a quality relationship with both parents.
the identity of the biological parents. Birth
But the law also needs to ensure that parental res
technologies include:
response would be to change the law to distinguish
ponsibility entails more than the child merely

spending half his or her time with each parent.
artificial insemination where donated sperm

are artificially introduced into the vagina or
uterus
IVF (in-vitro fertilisation) where fertilisation
takes place outside the uterus using the sperm
of a parent or donor and the ovum of a parent
or donor, and the resulting embryo is then
implanted in a uterus
use of genetic manipulation, gene shearing or
donated genetic material to alter a foetus in
utero.
Birth technology has created many legal issues,
from paternity to rights of inheritance to who has
care and control over the child. The father of the
child may not necessarily be the natural father.
For any child conceived via artificial insemination
or in-vitro fertilisation, the parents (whether
married or not) are considered to be the legal
Figure 12.8 The obligation to take responsibility for the care and
financial support of a child is considered to be one that should be met by
both parents.
346
and natural parents of the child and have all the

obligations of maintaining and caring for the child.
Under the Status of Children Act 1996 (NSW), these
children have the same legal status as children

conceived naturally.
The Status of Children Act created the notion
that presumption of paternity is automatic and
is irrefutable if the couple are married or in a
de facto relationship. Under this Act, when a
woman becomes pregnant by using donor sperm
from someone other than her husband, then
that man is presumed not to be the father of the
child born. In the case of B v J (1996) 21 Fam
LR 186, the father refused to pay maintenance,
arguing that the child was not his child and that
maintenance was the responsibility of the sperm

donor because the donors name appeared on the
childs birth certificate. The court rejected this
argument. Under the presumption of paternity he
automatically became the childs father because
he was in a relationship with the childs mother,
and he therefore had all of the responsibilities and
obligations in respect of the maintenance and care
of the child, who was born within the relationship.
A sperm donor is automatically presumed not to
be the father (to have no paternity) and thus he is
not required to pay maintenance even if his name
appears on the childs birth certificate. However,
any such presumption about the sperm donor
Figure 12.9 Advances in medical technology, such as IVF,

are creating new challenges for the law.
may be altered if he makes a written application,

signed by the mother and lodged with the Registry
of Births, Deaths and Marriages. If paternity is in
mother can be found in the Status of Children Act
dispute, the Act allows the identity of the father to
1996 (NSW), the Family Law Act 1975 (Cth) and the
be determined by blood tests.
Marriage Act 1961 (Cth), and under common law.
Surrogacy
commissioning couple would then be denied
Surrogacy involves an agreement between a
any rights to the child. Because the child was not
commissioning couple and a woman, where
conceived within a domestic relationship, the
the woman agrees to bear a child for the
surrogate mother would have exclusive custody
commissioning couple and then give the baby
rights and could not be forced to give up the
to the couple when the child is born. Under the
child, and the natural father would have no claim
law, it is usually the woman who gives birth to the
to the child. The laws relating to surrogacy differ
child whether the child is conceived naturally or
slightly from state to state, which has created
artificially that is the mother. Even if the birth
inconsistency, uncertainty and conflict between
mother uses both donor ova and donor sperm or a
state acts. In NSW, the law in NSW has recently
donated embryo to achieve the pregnancy, she is
been amended to provide special protections
still considered the legal and natural mother of the
for biological and commissioning parents in a
child. The status of the natural mother as the birth
surrogacy arrangement.
Under surrogacy arrangements, however, the
347
Legal and non-legal

responses
have been inconsistent and provided inadequate

protections and guidance. Some state and territory
laws prohibited both altruistic and commercial
Surrogacy raises many complex social, emotional
surrogacy, some allowed altruistic but prohibited
and parenting issues, including the legal recognition
commercial surrogacy, or some laws were silent
of genetic parents. The law distinguishes between
on the issue.
commercial surrogacy and altruistic surrogacy.
In 2008, the Standing Committee of Attorneys
Commercial surrogacy is an agreement involving a
General, a ministerial council drawn from state
fee or reward paid to the woman who gives birth to
and Commonwealth parliaments and including
the child, and the transfer of custody and parental
the New Zealand Minister of Justice, agreed that a
responsibility for the child to another person,
national model law regulating surrogacy is needed.
by adoption or agreement, with the child to be
In 2010, the Standing Committee released a draft
treated as the child of that other person. Altruistic
of 15 principles for a national surrogacy model,
surrogacy, by contrast, is an arrangement in which
including the following characteristics:
the surrogate receives no financial payment for the
informed consent of all parties is essential,
pregnancy or the transfer of the child, though the

commissioning parents may pay expenses related
to her pregnancy and the birth.
along with specialist counselling

court orders should be available to recognise
the commissioning parents as the legal parents
if it is in the best interests of the child
Legal responses
The laws concerning surrogacy in Australia are
state- or territory-based. Until recently, these laws
court orders should not be granted for

commercial surrogacy
all parties consent to the order.
In May 2009, the NSW Legislative Council
Standing Committee on Law and Justice tabled
a report on altruistic surrogacy in NSW, which
aimed to clarify the legal rights and responsibilities
of commissioning parents and birth parents,
and clarify the rights of children born through
surrogacy. Drawing on the recommendations
of the national and state committees, the NSW
Parliament introduced new legislation in 2010 to
regulate surrogacy arrangements in NSW. The
NSW Parliament passed the Surrogacy Act 2010
(NSW), to commence in early in 2011.
Prior to the commencement of the Act, in
most cases in NSW, the Status of Children Act
1996 (NSW) meant that a childs legal parents
were presumed to be the birth parents. This
meant that commissioning parents in a surrogacy
arrangement, although in practice parenting the
child, would not be recognised as the parents and
could face difficulties if trying to enrol the child
in a school, access certain government benefits
Figure 12.10 Susie, holding a scan of the unborn child, is a surrogate

mother for Amasha and Dyon Marshall. Amasha had cervical cancer at
23years of age and is unable to have children.
348
or apply for a passport for the child. Where the

child is conceived in a stable relationship, the male
partner is assumed to be the father even if he was
Clive did not intend to be the legal parents. Even
childs biological father had no rights in regards
though Michaels birth certificate named Sharon
to his child. It was also illegal for the surrogate
and Paul as his parents, the court found that the
mother to give her child to the commissioning
presumption of their parentage based on the birth
parents, as placing a child with a person who is
certificate (s 69R) was rebutted by the provision
not a relative for more than 28 days is illegal under
in s 60H. The court could not make an order for
the Children (Care and Protection) Act 1987 (NSW).
Sharon and Pauls adoption of Michael. However,
If, however, one of the commissioning parents was
they could apply to the Supreme Court of NSW
also the biological parent of the child, this would
for an adoption order under the Adoption Act 2000
be permitted.
(NSW).
Some aspects of altruistic surrogacy were
Under the new legislative framework, the
previously covered by the Human Tissue Act 1983
Surrogacy Act 2010 (NSW) introduces a system of
(NSW) or adoption issues under the Adoption Act
parenting orders, where parties can apply to the
2000 (NSW). There were also only a few federal
NSW Supreme Court for an order to transfer full
provisions addressing surrogacy issues in the
legal parentage of the child from the birth parent
Family Law Act 1975 (Cth) which alone are not
in a surrogacy arrangement to the commissioning
adequate to address all of the potential issues
parent. The new parentage orders grant the
surrounding surrogacy. One important case
commissioning parents full legal capacity to
involving commissioning parents attempting to
make decisions in the childs interests and aim to
have parentage rights recognised was the case Re
provide relief and certainty for parties involved in
Michael: Surrogacy Arrangements [2009] FamCA
surrogacy arrangements.
691. The case was heard under the Family Law Act
Under the framework, the commissioning
because, as noted above, NSW at the time lacked
parents must apply for a parentage order between
clear state legislation relating to surrogacy. The
30 days and six months after the childs birth. The
commissioning parents were attempting to apply
first 30 days are intended to operate as a cooling-
to the Family Court to adopt the child under Family
off period for the birth mother, to encourage
Law Act 1975 (Cth) s 60G. The essential question
careful consideration before consenting to the
was Who are the parents of a child born as a
grant of a parentage order. The orders also apply
result of a surrogacy agreement?. In this case, the
to de facto couple (including same-sex), but do
two biological parents (Sharon and Paul) sought
require that if two people enter into a surrogacy
an order to adopt their child after the surrogate
arrangement as intended parents, they must be a
mother (Lauren) had given birth to Michael.
couple. Some of the other requirements of the new
There was no dispute between the parties over
framework include:
who should have custody and responsibility for
an order can only be made if it is in the best
Michael, but the court had to determine whether

Sharon and Paul were Michaels legal parents, in
order to decide whether or not they could initiate
interests of the child

an order cannot be made in relation to a
commercial surrogacy
proceedings to adopt him. However, under the
the parties must obtain counselling and
Family Law Act, if no orders have been made
legal advice before entering into a surrogacy
under state law regarding parentage, then the
arrangement to ensure they fully understand
child is deemed to be the child of the woman who
the implications, and the arrangement must be
gave birth (the birth mother Lauren) and the
in writing
birth mothers partner (see s 60H) in this case,

these were Lauren, the surrogate mother, and
her partner Clive, neither of whom contributed
genetic material. It was irrelevant that Lauren and
not the biological parent. This would mean that the
the birth mother must be at least 25 years old

before entering the arrangement
the consent of the birth parents is required
before an order can be made
349
there must have been a medical or social need
wide inconsistencies in surrogacy laws between
for the arrangement.
the states and territories. In NSW, previous laws
The framework also made certain amendments
were inadequate and people who seek to become
to other NSW legislation to ensure the parentage
parents under surrogacy arrangements were
orders and the status of the child would be
forced to deal with legal schemes that are not
recognised in matters concerning, for example,
designed for surrogacy situations.
wills, property, relationship registers, or other
This new framework is an important development
government entitlements.
in increasing legal certainty for parties to a

legal
surrgacy arrangement because they are otherwise
framework for altruistic surrogacy the NSW
While
permitting
unable to have children, but also in protecting the
legislation
arrangements
interests of children who are born into surrogacy
involving commercial surrogacy. Commercial
arrangements. The Surrogacy Act 2010 also
surrogacy, and advertising for a commercial
encourages parties to a surrogacy arrangement
surrogacy, are criminal offences in NSW. The
to take steps to thoroughly understand the
Act prohibits commercial surrogacy both within
psychological, social and legal complexity of their
NSW and for NSW residents seeking commercial
decisions and the impact on the child. However,
surrogacies overseas. NSW residents who procure
the framework does deny legal recognition to
commercial surrogacies now risk a fine of over
children born under arrangements of commercial
$100 000 and/or imprisonment of up to two years.
surrogacy, in NSW or overseas, and can see the
expressly
and
providing
prohibits
parties to such an arrangement criminalised. This
Non-legal responses
may fail to reflect the increasing reality of such
Various organisations and lobby groups have
arrangements in Australia.
opposed surrogacy on moral grounds, usually

based on religious principles. These concerns
Conclusion
centre on the concept of a traditional family,
Advances in birth technology have created a great
especially as surrogacy may provide an avenue for
need for law reform. When considering the new
same-sex couples to have children. These lobby
laws in this area, both parliaments and the courts
groups have expressed a desire that surrogacy be
need to address a multitude of conflicting ethical
restricted to infertile heterosexual couples. They
views. The rapid development of birth technology
have claimed that families with parents of the
has challenged long-standing moral and legal
same sex face difficulties ranging from problems
conceptions of family and parent. Prior to IVF,
accompanying ones small child of the opposite
the woman who gave birth and her husband or
sex to a public toilet to social stigma. A slippery-
partner were the childs parents. However, the legal
slope argument has also been employed, for
definition of parent has now been extended to
example the Australian Christian Lobbys 2009
meet the challenges of new family arrangements
claim that surrogacy would pave the way for two
and technological advances.
men or two women to order a baby they are not

even genetically connected to, also denying the
child either a male or a female parent and role
model.
REVIEW 12.16
1 List the issues surrounding surrogacy and
discuss the effectiveness of legal and non-

system
350
legal responses in addressing these issues.

2 Identify the jurisdictional problems in the
The federal government has been slow to pass
area of surrogacy and discuss how the
laws relating to surrogacy issues and the courts are
Family Court met these challenges in Re
constrained by existing legislation. There remain
Michael.
Figure 12.11 The number of reports to Community Services about children at risk of harm has increased.
Issue 4: Care and

protection of children
Ombudsman to the Wood Inquiry (Special
All states and territories, together with the
number of at risk of harm reports made to
Commonwealth government, have passed laws
Community Services has increased steadily
regarding family violence, child abuse and child
and continues to grow. In 2006, 241003 reports
neglect. The focus of the Children and Young Persons
were made about concerns for a childs or young
(Care and Protection) Act 1998 (NSW) is safe
persons safety. In the following year, the number
guarding the health and well-being of children,
of reports increased by 19% to 286022.
Commission of Inquiry into Child Protection

Services in NSW) on mandatory reporting, the
including protecting them from violence or abuse

and provisions for the mandatory reporting of
concerns to Community Services, where a teacher,
doctor, nurse or other professional believes there
Legal and non-legal

responses
to be a risk of harm from family violence or abuse.
The Family Law Act 1975 (Cth) defines family
The amendments to the Family Law Act 1975 (Cth)
violence as any action or threat of violence by
by the Family Law Amendment (Shared Parental
one family member against another, including
Responsibility) Act 2006 (Cth), which had the aim
witnessing that action or threat, that causes fear
of ensuring that children have a meaningful
or apprehension about personal safety. The 2006
relationship with both their parents, require the
amendments to the Family Law Act 1975 (Cth)
court to consider the childs best interests rather
endeavoured to ensure that children are protected
than parental interests. But the amendments have
from both direct harm and from harm resulting
been criticised on the basis that there is a greater
from exposure to family violence. The presumption
potential for a child to be exposed to family
of equal shared parental responsibility does not
violence.
apply if there is a risk of child abuse or family
According to the submission of the NSW
violence.
351
Legal responses
load on Helpline and allows caseworkers to focus
If there is evidence of family violence, the court may
on assessment. During 2008 Community Services
order that the childs contact with the offending
Helpline received approximately 300000 calls.
parent is restricted or that the contact takes place

within a controlled environment, such as with a
Non-legal responses
social worker present. In this instance the concept
Churches and organisations such as the Salvation
of shared parental responsibility does not apply.
Army have traditionally provided extensive sup
In cases where there is evidence that family
port and educational services to children in
violence has occurred, family dispute resolution
need. These services include child care centres,
may be inappropriate. The court will hear cases
counselling services (for example addiction and
that raise family violence issues quickly so that it
bereavement), and emergency housing and youth
can take appropriate action to protect vulnerable
support programs. Although these groups have
family members.
provided necessary help and support to children
The Family Court can order relevant state and
and families in crisis, some groups have also been
territory agencies to provide information regarding
heavily criticised for their lack of action in dealing
allegations of family violence. Under s 117AB of the
with accusations of child abuse made against their
Family Law Act, the court can also order a person
own members.
to pay some or all of the costs of another party
Clergy members of various churches have been
to the proceedings, if the court is satisfied that
accused and found guilty of serious misconduct
the person knowingly provided false information,
and child abuse. Some church organisations have
including false allegations of family violence.
been heavily criticised for their lack of support for
When Community Services NSW receives a
victims of abuse at the hands of the clergy and
risk of harm report involving allegations of phy
some churches have been accused of protecting
sic al or sexual abuse, neglect or other criminal
known child sex offenders within their ranks.
conduct regarding a child, a caseworker makes an
In response, the Anglican Church has estab
assessment to determine the extent of the risk.
lished a Professional Standards Unit that investi
Almost two-thirds of all reports are referred to
gates complaints involving clergy and ancillary
community services centre or Joint Investigation
staff. In 2002 the Anglican Church made a public
Response Team (JIRT) for further assessment
apology for the misconduct of clergy and staff and
and investigation. Members of this team include
reaffirmed the churchs condemnation of such
Community Services representatives, police and
behaviours. In 1996 the Catholic Church estab
representatives from NSW Department of Health.
lished the Melbourne Response to investigate
Once the report has been made, the response
claims of clergy abusing young children.
team will speak to the young victim and act
Victims of abuse have been encouraged to
to protect the child if the child is in immediate
contact the relevant church authorities to lodge a
danger.
complaint. All major religious bodies which have
If police decide that there is evidence of a
contact with children and young people have
crime, the suspect will be charged, the child
established internal procedures for investigating
will be assigned a caseworker, and the child will
abuse claims. As part of this process, each has
receive medical attention if needed. The response
established counselling services for abuse victims
teams were established to improve interagency
and compensation funds to pay future claims
collaboration between NSW Health, the police and
made by victims.
Community Services, and to provide counselling

and trauma support for victims.
Reporting reduces the amount of administra
tive work for a caseworker. This reduces the call
352
There are a number of initiatives to provide

support for families and children in crisis. These
include:
Child Abuse Prevention Service (CAPS) aims
to alleviate child abuse by educating the com
from actual harm, it also indicates that support
munity about child abuse issues and providing
and counselling services provided to perpetrators
counselling and ongoing support for victims
have been less than successful in encouraging
and perpetrators (www.childabuseprevention.
them to modify their abusive behaviours.
provides 24-hour telephone counselling.
Sadly, in 2007 more than 150 children who had

been previously reported to Community Services
as being at risk of harm died at the hands of their
The Benevolent Society (www.bensoc.org.au)
abusive parent or carer. Many of the victims were
offers programs supporting families to over
aged less than 4 years old. Hampered by dwindling
come stresses that lead to abuse and neglect;
financial resources and staff cuts, Community
services include counselling, home visits, access
Services has been unable to provide adequate
to child health professionals, play groups, social
protection and support for families and victims of
groups for parents, art therapy, and links to
child abuse.
local services
com.au)
Child Protection and Family Crisis Service
The federal government has recognised child
Parenting NSW a state government initiative
abuse and neglect as a major issue and is seeking
which aims to make parenting easier by helping
to create a national framework for protecting
parents become better parents.
children. This will necessitate the coordination of
Various local municipal councils also offer
government and non-government organisations,
programs providing help and support for
the creation of uniform child protection laws,
children and young persons.
and a focus on early intervention and prevention

strategies to protect children from abuse and

system
reduce the harmful effects that abuse has on

children.
Criticisms of child protection in NSW have been

made against Community Services, the police, the
Conclusion
courts and community groups. A review of the
Children are considered to be vulnerable members
NSW child protection system began in 2006. A
of our society and therefore deserving of greater
new Childrens Commissioner was established to
levels of protection. The legal system has res
monitor state programs to eradicate child abuse
ponded by strengthening legislation surrounding
and strengthen existing child protection. The
the care and protection of children. Neglect and
review also proposed that a national framework for
the abuse of children are now considered serious
child protection should be established. Presently
crimes and parents who are found guilty of such
no such a framework exists.
crimes can ultimately be charged with murder if
The legal system has been accused of acting too
their child dies in their care.
slowly to protect child victims of abuse and that

existing mechanisms to protect children are in
adequate. An increasing number of persons under
REVIEW 12.17
18 have been placed on care and protection orders.
1 List the issues surrounding the care and
According to the report of the Australian Institute
protection of children and discuss the
of Health and Welfare, A Picture of Australias
effectiveness of legal and non-legal
Children 2009, more than 25000 children were
responses in addressing these issues.
placed on care and protection orders, which repre
2 Consider the question of coordination
sents an increase of 88 per cent since 2000. While
between government and non-government
some would argue that this indicates that people,
bodies, and discuss how this could best
once they are aware of their rights, will seek
be accomplished to provide protection for
ADVOs to protect themselves and their children
children.
353
354
C hap ter s umm ary
s The concept of family includes nuclear,

extended, blended and single-parent families
and the main function of the family is the care
and protection of its members.
s Marriage is the voluntary union for life of one
man and one woman, to the exclusion of all
others. A valid marriage is between one man
and one woman, who must be adults and not
closely related.
s Marriage imposes legal rights and obligations
on both husband and wife. These include matters relating to maintenance, property and wills.
s The Australian federal government has the
power and authority to make laws governing
marriage and divorce. However, state
laws regulate de facto and other domestic
relationships, including adoption.
s Parents have legal and moral obligations to
their children. Children have the right to the
care and protection of their parents, and the
right to education, medical treatment, and
inheritance.
s The United Nations Convention on the Rights
of the Child recognised the need for the universal protection of childrens rights. The convention has inuenced family law within Australia.
s There is only one ground for divorce in
Australia: irretrievable breakdown of marriage.
The spouses must live separately and apart
C h ap t e r su mm ary tasks
1 If a marriage breaks down, should

the dependent spouse be entitled to
maintenance? Outline and explain the various
factors that should be taken into account
when determining maintenance issues.
2 Discuss the issues surrounding blended
families and explain why a step-parent is not
nancially responsible for the children of their
spouse.
3 Briey explain how family law has responded
to changing social values, such as increased
incidence of divorce and the acceptance of de
facto and same-sex relationships.
for 12 months before a divorce order will be

granted.
s In property settlements, courts will consider
nancial and non-nancial contributions, age,
income, child care factors, and other specic
characteristics of the parties.
s Binding nancial agreements can be made
before, during or after a marriage.
s A main focus of family law is the protection
of children. Many of the amendments made
to legislation centre on enforcing parental
responsibility and ensuring that decisions
concerning children are made in the best
interests of the child.
s The law also aims to provide dispute resolution
structures and processes that will help parties
to reach an amicable termination of their
relationship. The court focuses more on
reconciliation and on encouraging compliance
rather than on enforcement through the use of
sanctions.
s Legal responses to domestic violence include
ADVOs, injunctions and criminal charges.
s Advances in birth technology have raised a
number of new ethical and legal issues. The
concept of parentage has expanded. Surrogacy
remains a problematic area within family law.
4 Create a table listing in chronological order

the legislative and common law changes in
family law and their effects.
5 Outline the legal issues surrounding family
violence, and evaluate the effectiveness of
current family law remedies in achieving just
outcomes for all family members.
1 How effective are the existing legislative

responses to the abuse and neglect of
children? Identify any tensions between the
aims and objectives of state and federal
legislation.
2 Identify and evaluate the arguments for and
against changing the denition of marriage
to include same-sex couples. Discuss, with
reference to the claim that practical benets
such as superannuation, tax, property
rights and medical consent issues are more
important than the symbolic social role of
marriage.
3 What weight should be given to childrens
views with respect to disputes about parental
responsibility?
4 Identify and explain some contexts in which
states have referred their legislative powers
d but they dont have to investigate claims of

domestic violence
4 Family Relationship Centres were established
to
a help people nd a partner
b help individuals maintain healthy
relationships and encourage good
parenting practices
c provide information, referrals and
assistance to individuals seeking to have
the dominant share of responsibility and
care for their children
d provide a forum for disputing parents to
negotiate a settlement
5 Individuals who enjoy greater protection of
their rights than others include:
a adults, who have more rights because they
can earn money
b children, who have rights until they are 18
years of age
c adults, because they are seen as vulnerable
members of our community, especially in
their dealings with the law and with other
adults
d children, because they are seen as
vulnerable members of our community,
especially in their dealings with the law and
with adults
M ul ti p l e c hoi ce q ue s ti o n s
Ex t e nd ed res po n se ques ti ons
1 Marriage in Australian society

a can only be entered into by a person of
sound mind and understanding
b is the joining of two people to live together
for the remainder of their lives
c is dened in legislation and not in case law
d is based on the idea of romance and can
only occur once the couple have become
engaged
2 A parenting plan is an agreement between
parents covering:
a living arrangements only
b living arrangements and maintenance
agreements
c living arrangements, maintenance
agreements, religion, culture, education,
health and other issues
d living arrangements and maintenance
agreements but not religion, culture,
education, health and other issues
3 If an ADVO is breached, police can arrest the
offender
a if there is sufcient evidence to prove that
such a breach occurred
b although sufcient evidence is not
necessarily required to prove that such a
breach occurred
c if they suspect the offender of previous
breaches
to the Commonwealth. Are there other areas in

which such a referral would be advantageous?
Discuss, providing examples.

your response.
355

cooperation and resolving conict in regard to
family
s An emphasis on mediation and counselling

as primary dispute resolution processes has
encouraged greater levels of cooperation
between separating couples, and the vast
majority of family disputes are now resolved
without arbitration.
s This has been enhanced by court provision
of information via websites and do-it-yourself
kits.
s Disputing couples are required to attend
compulsory family dispute resolution and
family counselling sessions.
s The Family Court has reviewed its own
internal processes and made substantial
changes to make them less complex.
s The Family Law Council (a Commonwealth

statutory authority established under s 115 of
the Family Law Act 1975 (Cth) to advise the
federal Attorney-General) has recommended
that an enforcement agency be established to
oversee the enforcement of parenting orders
and assist in bringing complaints before the
court.
s It is only when parties cannot reach an
agreement that the dispute will be heard in
the Family Court. Court intervention is seen
as a last resort because individuals are
more likely to comply with a decision that
they negotiated and reached voluntarily.
Enforcement of Family Court orders therefore
only comes into effect when there is a breach.
The court will act to protect individual
rights and enforce spousal or parental
responsibilities.
s An individual must apply to the court to
enforce orders breached by another party.
Once the court is satised that a breach has
occurred, it can impose various sanctions
depending on the type, magnitude and
number of breaches.
356
s If the breach was of orders pertaining to

children, the court has a range of actions
available to it. Remedies available to the
court include variation of parenting orders,
compulsory attendance at parenting
programs, community service orders and
in extreme circumstances, imprisonment
(Division 13A of Part VII of the Family Law Act
1975 (Cth)).
s Although ADVOs are designed to provide
protection against harm, there are concerns
about the their effectiveness. Approximately
10% of individuals do not comply with
protection orders. ADVOs depend on the
named individuals voluntary compliance with
the order, the active policing of the ADVO,
and the victims willingness to report any
breaches to the police.
Changes to family law as a response to
changing values in the community
s The law reects community values. Individuals

are therefore more likely to obey the law
if they believe that the law is essentially
enforcing and promoting right behaviours.
Family law is concerned with managing
human relationships, which is complicated by
the multicultural nature of our society. The
legal system must balance different cultures,
ethical systems, religious values, social and
family attitudes, and individual rights, in
the effort to develop the best processes for
society as a whole.
s When children born in Australia to migrant
parents adopt the cultural beliefs and
practices of their new country, family conict
can result.
s The rst major change in family law was the
introduction of no-fault divorce. The declining
inuence of religion, an interest in removing
the conicts and difculties resulting from
blame, and the idea that marriage does not
always last for life were social factors that
inuenced this change, reected in the Family
Law Act 1975 (Cth), as well as the introduction
of the sole ground for divorce irretrievable
breakdown of the marriage.
The role of law reform in achieving just

outcomes for family members and society
s Agencies of reform are not limited to

parliament and the courts. Law reform may be
initiated by interest groups, the Law Reform
Commission, international treaty bodies and
government departments. Other agents
of law reform include lobby or pressure
groups attempting to inuence members of
parliament who will support the groups aims.
s The Australian Human Rights Commission
monitors and investigates any breaches of
human rights recognised under Australian
law. If the Commission determines that a
breach of human rights has occurred, it can
make recommendations for legislative change
to Parliament.
s One perennial criticism of the law is that

it moves too slowly and does not adjust
to changed circumstances fast enough.
However, if the law changes too quickly, it
may become poor law: too broad or too
narrow, contradictory and hard to enforce.
s One of the main criticisms of legislative
reform is the recurring problem of time
delays between proposing legislative
change, drafting and enacting the change.
Any unnecessary delay may have enormous
consequences; however, passing legislation
without due consideration can lead to an
unjust outcome.
responses in achieving just outcomes for
family members
s The legal system acts to protect the values

that the whole community holds important.
The principles of fairness, justice and equity
constitute key values. In addition, our
community believes that it is important to
protect the disadvantaged, or those who
cannot act to preserve their own rights
particularly children.
s Increasingly, society does not tolerate family
violence. The law has changed to eradicate
family violence and protect its victims.
Mandatory reporting of children at risk is
one way in which this goal is promoted.
Non-legislative mechanisms include
services provided by government and nongovernment organisations to assist families
with conict resolution, such as counselling
and mediation.
s There are still concerns about the
effectiveness of child protection services.
Community Services NSW has been
inundated with reports of alleged abuse.
There is evidence that the laws relating to
domestic violence and the protection of
children are inadequate, particularly when
considering the deaths of children identied
as being at risk.
s Another important change in social attitudes

has been in the increasing acceptance of
gay and lesbian relationships. Recent law
reforms have centred on providing same-sex
couples the same rights and obligations as
de facto heterosexual couples and removing
discrimination based on sexuality.
s The concept of responsible parenthood with
respect to the care and nancial support
of a child is considered an important moral
obligation that should be met by both
parents. The Australian government has
enacted legislation to encourage and enforce
parental responsibility through the legal
system.
s Many of the changes in the law have revolved
around protecting children. The emphasis
on childrens rights reects the idea that
children are vulnerable members of our
society and need greater protection. All
decisions regarding children must be in the
childrens best interests, and the interests
of their parents or caregivers are secondary.
This change can be seen in the emphasis on
parenting plans and parental responsibility,
in contrast to residence and custody. The
legal systems aim is to protect the childs
right to maintain a quality relationship with
both parents.
357
CHAPTER 13
Option 4: Workplace
O pt i o n 4 :
Wo r kp l a c e
Principal focus
Through the use of contemporary examples, students investigate legal rights and
responsibilities and the effectiveness of the law in achieving justice in the workplace.
25% of course time

s the role of the law in encouraging cooperation and resolving conict in the
workplace
s laws relating to the workplace as a reection of changing values and ethical
standards
s the role of law reform in recognising rights and enforcing responsibilities in the
workplace
s the effectiveness of legal and non-legal responses in achieving justice in the
workplace.
themes and challenges relating to the workplace. The summary draws on key
points from the text and links them to each of the themes and challenges. This
summary is designed to help you revise for the external examination.

The HSC examination will be a written paper worth a total of 100 marks. The paper
will consist of three sections.
Questions relating to Part III of the syllabus Options will appear in Section III
of the examination. There will be seven extended response questions, one for each
Option offered in the syllabus. Students will be required to answer two of these
questions, each relating to a different option they have studied.
booklet pages).
358
arbitration
Australian Workplace
Agreement
casual employment
conciliation
constitutional corporation
contract for services
contract of service
direct discrimination
discrimination
employment
enterprise agreement
equal employment
opportunity legislation
express terms
freedom of contract
greenfields agreement
implied terms
independent contractor
indirect discrimination
IMPORTANT LEGISLATION
Conciliation and Arbitration Act 1904 (Cth)

Fair Work Act 2009 (Cth)
Industrial Relations Act 1996 (NSW)
Workplace Relations Act 1996 (Cth)
Workplace Relations Amendment (Work Choices) Act
2005 (Cth)
Superannuation Guarantee (Administration) Act 1992
(Cth)
Occupational Health and Safety Act 2000 (NSW)
Workers Compensation Act 1987 (NSW)
A Finnish court has ruled that taxi drivers must pay

copyright fees on the music they play on the radio.
The Supreme Court of Finland upheld a decision
by two lower courts. Under Finnish law, royalty fees
have to be paid on almost all music played in public.
Since the 2002 ruling, a cab driver in Finland must pay
22 euros (about $40) annually for playing music while
transporting a fare.
The sum is fairly small but, of course, higher
expenses result in higher prices for customers, said
Nina Nizovsky of the Finnish Taxi Association, the
countrys taxi driver union.
assess regulation of the workplace and the legal

systems role
outline what determines renumeration
evaluate the effectiveness of legal and non-legal
actions in recognising and protecting workplace rights
identify and investigate some contemporary
workplace issues, and evaluate the effectiveness of
legal and non-legal responses to these issues.
industrial action
industrial award
industrial relations
injury management
mediation
outworker
picket line
regulation
retrenchment
sexual harassment
stand down
strike
trade union
unfair dismissal
vicarious liability
workers compensation
wrongful dismissal
O p t i on 4: Workp lace
k e y te r m s
re l e v a n t l a w
odd law

outline the increasing need for workplace law
outline where workplace regulations come from
describe the rights and responsibilities employees and
employers have in the workplace
examine workplace law and the legal framework
behind it
evaluate the effectiveness of dispute resolution
processes

Equal Opportunity for Women in the Workplace Act
1999 (Cth)
SIGNIFICANT CASES
Ex parte H. V. McKay (Harvester Case) (1907) 2 CAR 1

R v Kirby; Ex parte Boilermakers Society of Australia
(1956) 94 CLR 254
Hollis v Vabu Pty Ltd (2001) 207 CLR 21
Paris v Stepney Borough Council [1951] AC 367
Zuijs v Wirth Bros Pty Ltd (1955) 93 CLR 561
Australian Municipal, Administrative, Clerical and Services
Union v Ansett Australia Ltd (2000) 175 ALR 173
Wilsons & Clyde Coal Co. v English [1938] AC 57
Russell v Trustees of the Roman Catholic Church [2007]
NSWSC 104
Briggs v James Hardie & Co. Pty Ltd (1989) NSWLR 549
The issue of royalties arose when Lauri Luotonen

refused to pay his bills from the Finnish Copyright
Society, Teosto, in 1997 and 1998.
Teosto, which administers and redirects royalty
payments to artists, argued that playing music for
customers in a taxi was similar to playing music in a
public setting, such as a restaurant or pub.
Almost all taxis play music, so we are now expecting
to collect as many payments as there are taxis, said
Kalle Jamsen, a Teosto spokesman. Teosto said it
would meet the drivers union to work out methods for
enforcing the ruling and collecting the royalties.
Chapter 13: Op t i o n 4 : Wo r k p l a c e
359
T h e n a t u r e o f wo r k p l a ce l aw
Development of
workplace law
As the cities developed, there was greater

regulation of the work of artisans and craftsmen.
These laws usually had the purpose of preventing
The main subject matter of workplace law is
people from making a prot from their own work
employment
the contractual
relationship between
an employer and an
employee, involving
work performed for
monetary payment and
other benets
employment. To be employed means to have a
or having much say in the terms, conditions
particular type of contract with another person
and price paid for it. Laws were also designed
(a contract of service), under which the employee
to prevent people from leaving the agricultural
receives monetary payment and other benets
areas, as labour was scarce due to the toll taken
in exchange for doing work. It is also possible to
by disease. Statutes enacted throughout the 14th
have a contract for work that does not involve
and 15th centuries allowed lords to be sued if
independent
contractor
someone who is
paid for work done
for another person
without there being a
contract of employment
between them; instead,
the parties will have a
an employeremployee relationship. The person
they paid their workers more than others, pressed
doing the work in such a situation is usually called
people into work with penalties if they refused,
an independent contractor.
and required parents to put their children to work
guild
a medieval association
of craftsmen or
merchants
journeyman
dating from the later
Middle Ages, a worker
who had completed his
apprenticeship (period
of training) and was
then qualied to work
for wages for a master
the period in Great
Britain during the late
18th and early 19th
centuries when small
home-based methods
of production of goods
were replaced by
industry and machine
manufacturing
trade union
an association of wage
earners, formed to
maintain and improve
the working conditions
of its members
360
Laws about employment have changed over the
on lords estates. In some rural areas of England,
centuries due to changes in economic conditions,
gangs of people, often women and children,
attitudes, technology and the inuence of trade
moved from farm to farm under the direction of a
unions. Australian workplace laws were originally
gang master, who was paid by farmers seeking a
based on British industrial laws, but over the past
temporary workforce.
100 years these laws have been amended to reect

the changing nature and specic demands of the
Early employment law
Australian workplace.
The law related to employment in Britain from

medieval times through the 18th century was
The Middle Ages
limited, due to the nature and type of employment
The rst laws governing labour and industrial
available. Some protections began to be instituted,
relations within the workplace originated in
gradually and erratically, such as a 1514 statute
England during the feudal period (the later part
that limited wages but also xed the hours of
of the Middle Ages, from approximately 800 to
labour. The Statute of Labourers, passed in 1562,
1400 CE). However, legal regulation of working
punished people for refusing to work, but also had
arrangements was based on status, rather than on
the expressed aim of protecting workers from low
contract or negotiations. The majority of people
wages.
in feudal England either worked on the land
The law was also limited by and reected
(farming) or produced clothing, household goods
the prevailing attitudes and values of the time.
and/or food for their own use. The family could
It favoured the rich and inuential members of
trade any excess production or use it to barter for
society who were more concerned with making
products that they could not produce. These people
prots than with the needs of their employees.
were called villeins or vassals. Villeins did not
Poor Laws penalised beggars and vagrants, who
receive payment for their labour and so were not
supposedly could work but refused to do so, and
employed by the local lord, who generally was the
were regarded as potential criminals. Poor Laws
owner of the land that the villein tenant worked.
eventually evolved to provide relief for those who
They had few rights and little choice but to work
were unemployed through no fault of their own.
for the landowner in exchange for the right to live
Guilds of craftsmen or merchants were asso-
on the land, although the lord might have provided
ciations of people in a particular trade. Their
protection from external threats.
purpose was primarily to ensure that the products
were of good quality. They also regulated con-
produce and sell. People who had earned money
ditions of labour, but generally in the interest
by working at home producing small amounts
of maintaining the quality of the goods, rather
of manufactured items, such as cloth, were now
than to protect the workers rights: for example
employed in the new factories and mills. Whole
work ing on holidays was prohibited to ensure
cities began to grow around these new industries as
that some craftsmen did not enjoy an advantage
more and more people left their villages in search
over the others by having a larger stock of goods.
of employment. Employeeemployer relationships
When conicts arose between journeymen and
also changed. People worked in a factory to produce
their masters, laws were passed to regulate the
goods, which were then sold. The employees
formation of guilds, and perhaps also to ensure
wages were paid out of the sale of these goods and
that they did not gain too much inuence.
the factory owners received a prot.
The Industrial Revolution
during the Industrial Revolution also resulted in
The invention of powered machines during the
changes in labour laws. Initially these laws favoured
Industrial Revolution that took place in Britain
the owners of the factory (who were also usually
O p t i o n 4: Wo rkp lac e
Figure 13.1 The arrival of the Industrial Revolution meant skilled labour was not necessarily required
to manufacture goods.
The changing nature of employment in Britain
during the late 18th and early 19th centuries
landed gentry and had some parliamentary inu-
changed the way in which goods were produced.
ence). Those who owned the factories created laws
These machines changed not only how people
to maintain their prots and to protect their inter-
worked but also where people lived. The bulk of
ests and growing economic
the working population turned from agriculture
power. One British statute,
to industry. This was encouraged by changes in
the Combination Act of 1799,
agricultural methods, as well as an increased need
stated that being a member
conditions for most people in
for transport for the products.
of a trade union was grounds
feudal England.
As machines were needed for manufacturing,
for
imprisonment.
Some
R EV I EW 1 3 . 1
1 Describe the social and economic
2 Describe the ways in which
further industrialisation to build those machines
early union leaders were
wealthy and powerful people
resulted. With the increased use of machines,
hung for sedition; that is,
used the law to their advantage
employees became specialised or skilled in only a
encouraging people to rise
at the expense of workers, and
few aspects of the production of an item. Clothing
up against and overthrow the
identify the advantages they
factories no longer required highly skilled weavers;
lawful government. Unions
machines could do this faster and cheaper than any
were legalised in 1832, with
individual. Cheaper methods of production meant
the passing of the Reform Act
employment changed during the
that hand-woven cloth was now too expensive to
by the British Parliament.
Industrial Revolution.
obtained.
3 Outline how the nature of
Cha pter 13: Option 4: Work pl ace
361
freedom of contract
the freedom of
individuals to bargain
the terms of their own
contracts, without
regulation by the state
laissez-faire
a French term used
to describe economic
philosophies that
government should not
intervene in business
Laissez-faire and state

intervention
Employers did have to pay a minimum wage to
During the Industrial Revolution, when the major-
enough to pay for food, clothing and shelter. Unions
ity of people had to become employees in order
had effectively been banned and so they did not
to survive, factory owners found themselves in a
exist, meaning that working conditions were poor
position of superior bargaining power. Nineteenth-
and people worked long hours. Employees often
century employment was based on the concept of
had to work up to sixteen hours a day, seven
freedom of contract individuals freedom to
days a week. These working conditions were also
negotiate the terms of the contracts they enter,
experienced by children, some of whom started
without government restrictions. This idea is the
work in cotton mills or textile factories when
foundation of laissez-faire capitalism, which
they were as young as seven years of age. The
regards government intervention in economic
Poor Laws were partly to blame for this. These
activity, including employment, as inappropriate. It
laws were based on charitable efforts to prevent
is based on the assumptions that since individuals
future unemployment and vagrancy by training
are the best judges of their own interests, they
children to work from a young age. There was no
should be allowed to bargain freely and create
difference between the working conditions for
a contract that suits them, without interference;
adults and children but there was a large difference
and that the parties have equal bargaining power.
in the wages they received. Factory owners were
This, of course, is not true, as people will often
concerned with making a prot, not with providing
agree to terms that are not in their best interests in
safe and healthy working conditions. Factories
order to get a job or keep a job. An employer could
were often poorly ventilated, poorly lit, noisy and
simply sack a worker he regarded as troublesome
extremely dangerous places to work.
and hire someone else.
workers, but this amount was very low and hardly
These substandard working conditions led to
There was no set minimum wage that took into
the beginning of state intervention in workplace
account how much it cost an employee to live.
relations in 19th-century Britain. Legislation began
Figure 13.2 As a result of the Industrial Revolution, manual labour was replaced by machines in a wide variety of industries.
362
During the Australian gold rush in the 1850s,
suffering and injuries having taken place. In 1819 an
many workers left their employers in order to seek
Act was passed prohibiting the employment of chil-
gold. At the same time, Australia experienced an
dren under nine years old, and limiting childrens
inux of immigrants hoping to make their fortune.
working hours to twelve in a day. Further legis-
The subsequent increased demand for goods and
lation progressively expanded these protections.
services meant that industries could not meet
These included prohibiting night work, limiting
supply unless employers were willing to pay higher
childrens employment underground in mines,
wages and improve working conditions to attract
requiring ventilation and working equipment in
individuals back to their jobs. During this period
the mines, raising the minimum age for working
Australian trade unions became increasingly
in textile factories to ten, and eventually (in 1901)
political and gained important rights for workers.
an effort to limit the employment of women too

soon after they had given birth.
Conciliation and arbitration have been at the

centre of Australian industrial relations law since
1904, when the Conciliation and Arbitration Court
Trade unions
was established by the Conciliation and Arbitration
A trade union is an association of wage earners
Act 1904 (Cth). The court could settle disputes
that exists in order to maintain and improve the
by making an award an order that sets out the
pay and working conditions of its members. When
workplace terms and conditions for a group of
trade unions began to form in Britain in the late
employees and could also enforce that award.
1700s
the
In 1956 the court was replaced by two bodies,
Combination Acts of 1799 and 1800, which
the
British
government
passed
the Commonwealth Conciliation and Arbitration
outlawed unions. The second of these Acts was
Commission and the Commonwealth Industrial
repealed in 1824, largely due to the lobbying
Court. This came about as the result of the High
efforts of the reformer Francis Place, and a
Courts decision, in R v Kirby; Ex parte Boilermakers
new Combination Act was passed in 1825.
Society of Australia (1956) 94 CLR 254, that
The new Act allowed trade unions to form,
because of the doctrine of separation of powers,
but placed severe restrictions on union activities.
it was unconstitutional for the Conciliation and
Their rights were narrowly dened in terms of
Arbitration Court to exercise both judicial powers
meeting to bargain over wages and conditions,
and also the non-judicial power of arbitration. In
but they were prohibited from doing anything
1977 the functions of the Industrial Court were
to molest, obstruct or intimidate others.
taken over by the Federal Court of Australia,
Subsequently, any trade union that engaged in
and in 1988 the Australian Industrial Relations
industrial action was punished under criminal
Commission
law until the 1870s, when the Trade Union Act
Arbitration Commission.
replaced
the
Conciliation
industrial action
any action taken
by employees to
reduce productivity
in the workplace, e.g.
strikes, slowdowns of
work, refusal to work
overtime, or doing
only the minimum
required; the purpose
is usually to protest
unjust workplace
policies of the
employer
conciliation
process of resolving
an industrial dispute
by mutual agreement
of the parties,
ratied by a court or
commission
arbitration
(industrial relations
law) process of
resolving an industrial
dispute, often after
conciliation has
failed, by a legally
enforceable order of a
court or commission
to be enacted, but not without a great deal of
and
of 1871 was passed, granting trade unions legal

status for the rst time in England.
R EV I EW 1 3 . 2
Industrial relations in Australia

Australian craftsmen and other workers began to
organise themselves into trade unions in the early
19th century. The rst signicant union campaign
1 Dene freedom of contract and explain

the assumption on which this doctrine is
based.
2 Identify some of the circumstances that
in Australia was the effort to achieve an eight-hour
led to greater workplace regulation by
working day, by stonemasons in Sydney in 1855
the state in 19th-century Britain.
and Melbourne in 1856. Although the eight-hour
3 Explain why workers might want to form
day was achieved for only some trades, it was the
a trade union rather than negotiating
rst in the world.
their own contracts of employment.
363
Contracts
direction of the employer. It imposes certain

duties on each party and provides each with
Types of work contracts
certain rights.
When parties enter into a contract for work to
A contract of employment may be for a xed
contract of service
an employment
agreement, under
which a worker
(employee) works for
an employer, imposing
certain duties on each
party and providing
specic rights for the
period of employment,
which may be for a
xed term or ongoing
be done, it will generally be either a contract of
term or ongoing. Generally, a xed-term contract
service or a contract for services. A contract of
cannot be terminated before the end of the
service is also known as a contract of employment.
specied period, unless the contract provides
It is an agreement between an employer and an
otherwise. If the contract does not contain such
employee, containing the rights and obligations
a term, it can only be terminated if one party has
of the parties. A contract for services, by contrast,
breached an essential term. At the end of the xed
is an agreement to do certain work for someone
period of time, if the employer continues to accept
without being employed by that person or
an employees work, the contract may be deemed
corporation. The person doing the work in such
to have been converted to an indenite contract.

an agreement between
a contractor and a
client, under which the
contractor performs
agreed tasks for an
agreed fee but is not
employed by the other
party
arrangements is usually known as an independent
Whether there is a contract of service (contract
contractor. The duration of the contract is the
of employment) between two parties, rather than
period of time agreed for completion of the tasks,
a contract for services, will depend on all of the
and once those tasks are completed, there is no
characteristics of their relationship. The most
continuing legal relationship between the client
important factor has traditionally been whether the
and the contractor.
employer has the right to control the way in which
Both types of contract are legally binding,
the work is performed: that is, to tell the employee
vicarious liability
legal liability of an
employer for the
wrongful act of another
and both types may be either in written or oral
how to perform the tasks. An employer generally
form, although a written contract is more easily
provides the equipment or tools necessary for the
enforced because it is easier to prove the existence
work to be done; an independent contractor must
of a particular term of the contract.
usually provide his or her own tools of trade.

Another factor is the manner of payment. An
C ON T R AC T F OR S ER VIC ES
employee is usually paid a regular salary or wages
A contract for services (also known as an inde-
rather than being paid for each job completed,
pendent contract for services) arises when a
and the employer will deduct tax and pay
person agrees to do one or more specic tasks for
superannuation on behalf of the employee. An
another person. For example, a plumber agrees
independent contractor is responsible for his or
to unblock a sink and is paid for the work once it
her own taxes and must charge fees that will take
has been successfully accomplished. The plumber
account of future retirement needs.
is not the employee of the person with whom he
Employees are entitled to annual leave, sick
or she has the contract, and there is no ongoing
leave, and long service leave. While an indepen-
legal relationship between the two once the work
dent contractor has the exibility of arranging his
has been completed. However, there may be an
or her own working hours, he or she must nego-
ongoing series of contracts between a contractor
tiate both fees and work schedules that will allow
and a client. For example, a freelance writer may
time off for holidays, illness, family commitments
provide articles primarily to one newspaper or
and so on.
magazine, without being employed by that client.
One reason why it is signicant whether someone is employed under a contract of service or
364
C ON T R AC T OF S ER VIC E
works under a contract for services is that it is
A contract of service (contract of employment)
relevant in determining vicarious liability. An
is an agreement between an employer and an
employer can be held legally responsible for the
employee for work specied by and under the
conduct of an employee as long as the employee
was acting in the course of employment in other

words, the employee was carrying out the duties
that he or she was contracted to perform. It is
often justied on the basis that the employer gains
benets from the work done by employees, and
should also bear the risk of employees behaviour
at work.
RE VIE W 13.3
service and a contract for services.
Provide an example of a type of worker
who would enter into a contract for
services.
2 Dene vicarious liability.
3 Discuss whether or not an employer
should be held vicariously liable for the
actions of an employee. Use examples to
c as e s p ac e
illustrate.
Figure 13.3 A self-employed plumber would enter

into contract for service rather than a contract of
service when being contracted by a client.
1 Distinguish between a contract of
Hollis v Vabu Pty Ltd (2001) 207 CLR 21

Mr Hollis was injured when
expense of maintaining them.
imposed. The couriers had little
struck by a courier who was
They received no annual leave
control over how their work was
unlawfully riding a bicycle on
or sick leave, were taxed as
to be performed, the hours or
the footpath. The courier was
independent contractors, and
the pay, and the only tool they
wearing a jacket with the words
had contributions towards
had to provide was a bicycle,
Crisis Couriers. Crisis Couriers
Vabus insurance deducted from
which could be used for other
was a business operated by
their pay.
purposes besides courier work.
Vabu Pty Ltd. It contracted
The High Court held that
The court noted that a different
with bicycle couriers, who were
the couriers were employees
conclusion might result in a case
required to be available during
rather than independent
where the couriers invested
certain hours every day, to take
contractors, and Vabu was
more in equipment, and greater
the jobs that were allocated to
therefore vicariously liable for
specialised skills and training
them, and to wear the uniforms
the negligence of the courier
were required in order to do
issued by Vabu. Vabu set the
who ran into Mr Hollis. The
the job.
pay rates and there was no
judgment was based on all of
room for negotiation. However,
the factors of the relationship,
the couriers had to provide
including the terms of the
their own bikes and bear the
contract and the work practices
365
Terms of a contract of
employment
it. Similarly, where an employer has a duty or
All contracts of employment contain express and
employees, or ensure that certain protections are
implied terms.
in place, the employee has a right to expect that
obligation to do something, provide something to
protection or provision.
EX PR ES S T ER MS
express terms
contractual terms that
have been specically
stated and agreed by
both parties at the time
the contract is made,
either in writing or
orally
Express terms are terms that have been speci-
casual employment
employment as
needed, on an
irregular basis, with
no set schedule or
guarantee of ongoing
employment; generally
paid at an hourly rate
implied terms
contractual terms
that have not been
expressly stated, but
which the courts are
willing or required by
statute to enforce
The main obligations contained in implied

terms are set out below.
cally stated and agreed by both parties at the

time the contract is made, either in writing or
Duties of employers
orally. Express terms in a contract of employment
s The duty to provide work for the purposes of the
cover only the key elements of the employment
employment contract. Where the employees
relationship, such as the position description;
pay depends on the amount of work done,
whether the position is ongoing or for a xed term,
the employer must ensure that the work and
and whether it is full-time, part-time or casual;
any necessary materials are available. If the
hours of work; pay; the location where the work is
employer cannot achieve this, the employee
to be done; and leave provisions.
must still be paid the agreed wage. The employer
Employers and employees have a duty to satisfy
must also provide work for employees whose
the express terms in a contract, and each has a
skill would diminish without it. For example, a
right to expect that the other party will do so.
hospital must provide a surgeon with enough

surgery to maintain his or her skills.
IMPL IED T ER MS
s The duty to provide a safe working environment.
In addition to express terms, there are also terms
This duty is now largely imposed by and regu-
within an employment contract that are implied.
lated through legislation. A contract of employ-
Implied terms are not recorded in writing and may
ment with provisions stating that employees
not even have been discussed by the parties to the
must work in conditions that are dangerous
contract. These terms may arise from the common
cannot be enforced.
law, from current practice or custom, or from
s The duty to pay reasonable wages. While the
specic state or federal legislative requirements,
actual amount is set by an award or agreement
or where it is clear that the parties would have
and is generally written into the contract as an
included the term as an express term if they had
express term, what is reasonable can be deter-
turned their minds to it. The criteria for when a
mined by the amount of money that is usual for
term can be implied are:
that type of occupation or employment.
s It must be reasonable and fair.

s It must be necessary to ensure that the contract
works effectively.
s It must be so obvious that it goes without
saying.
s The duty to obey lawful directions given by the

employer.
s The duty to exercise reasonable care in carrying
s It must be capable of being expressed clearly.
out the work, and to meet certain standards in
s It must not contradict any express term of the
their work.
contract.
366
Duties of employees
s The duty of delity (faithfulness or loyalty) to
In Australia, courts have held that implied
the employer. This includes obligations not to
terms in a common law employment contract
steal from the employer or damage equipment,
confer certain rights and duties on employers and
not to disclose condential information (e.g. not
employees. Where an employee has a duty to do
to divulge trade secrets to other companies)
something, the employer has a right to expect
or act in a manner designed to undermine the
protability of the company, and not to use

the employers time for their own self-serving
purposes.
Mutual duties of employers and employees
Implied duties of mutual trust and condence and

good faith have been found in some recent state
cases. For example, in Russell v The Trustees of the
Roman Catholic Church [2007] NSWSC 104, the
NSW Supreme Court held that the employment

relationship gives rise to the parties obligation
to exercise their rights or duties honestly and
reasonably, with prudence, caution and diligence.
They must act in such a way as to minimise
adverse consequences to each other, and not act
in a manner likely to damage the relationship
of condence and trust between them. For
example, the way in which an employer conducts
disciplinary investigations into an employees
alleged misconduct would be subject to such an
implied duty.
However, in other cases, courts have held that
Figure 13.4 It is the duty of the employer to provide a

safe working environment, however it is the duty of an
employee to exercise care when carrying out the work.
this implied term will not be found if the employee

is adequately protected against unfair employer
decisions by legislation or awards. Until a High
order of an industrial commission, tribunal or
Court ruling has been rendered, the existence of
arbitrator, which is made to settle a dispute.
an employers implied duty of good faith will not
Today the term usually refers to a legally binding
have been conclusively established.
document, approved by an industrial commission,

which sets out the minimum terms and conditions
RE VIE W 13.4
1 Dene and explain the concepts of express
terms and implied terms in a contract of
employment.
2 Identify the rights of employers and
employees that come from implied terms.
for employees in a particular industry or type

of work, or who are employed by particular
employers.
In 1907, a case was brought before the Conciliation and Arbitration Court, established three
years earlier. An Act designed to provide better
pay to workers had created an excise tax on
locally made machinery, which could be waived
Awards and agreements
if the manufacturers workers were paid fair and

reasonable wages. H. V. McKay, a Melbourne
Background
manufacturer
As discussed earlier in this chapter, Australias
Company, applied to the court to waive the excise
system of conciliation and arbitration included
tax. McKays company was not known for fair and
an independent tribunal with powers to conciliate
reasonable treatment of its employees, and the
and where necessary, to settle industrial disputes
union to which the workers belonged opposed the
through arbitration. An industrial award is an
application.
and
owner
of
the
Harvester
industrial award
a standard set of
wages and working
conditions for
employees in a
particular industry or
type of work, or those
who are employed by
particular employers
367
The decision in Ex parte H. V. McKay (1907) 2
settling procedures. Obviously, the fewer the
CAR 1 was the rst time an industrial tribunal set
number of matters that can be contained in an
wage levels for workers, rather than allowing them
award, the weaker the safety net.
to be set by individual employers. Justice Henry
The 2006 amendments to the Workplace Rela-
Bourne Higgins ruled that McKay was obliged
tions Act 1996 (Cth) by the Howard government,
to pay his employees a fair and reasonable
called WorkChoices, further limited awards
wage, and dened this as an amount sufcient
throughout Australia, combining all federal and
to support the wage earner in reasonable and
many state awards into a national system. State
frugal comfort. He took evidence as to the cost
awards could only apply to unincorporated em-
of housing, food and clothing in Melbourne for a
ployers, although transitional provisions allowed
a man with a non-working wife and two children
them to continue to apply for three years to
to establish the cost of living. The decision applied
those already covered by them. No new awards
to more than 1000 workers at the Harvester
could be made, and federal awards were further
Company, working in a variety of jobs. It is
simplied and trimmed down by reducing their
regarded as a momentous judgment that paved
content to even fewer allowable matters. Some
the way for workers entitlement to a basic living
allowable matters (e.g. notice of termination, jury
wage for their work.
service, long service leave and superannuation)

were removed on the basis that they were covered
by other legislation. The 14 protected award
Industrial awards
Australian Workplace
Agreement (AWA)
an individual workplace
agreement between
an employer and an
employee under the
Workplace Relations
Act 1996 (Cth); an
AWA would override
and take the place of
any award or collective
agreement
constitutional
corporation
a corporation to
which s 51(xx) of the
Australian Constitution
applies; these include
foreign corporations
and companies
incorporated under
Australian law that
engage in nancial
activities and buying
and selling
By 1920, there were 96 federal awards in force and

all of the states, as well as the Commonwealth, had
adopted systems of conciliation and arbitration.
The Australian Industrial Relations Commission
(AIRC), which eventually took the place of earlier
conciliation and arbitration bodies, created federal
awards that covered a wide range of industries.
There
were
also
state
Industrial
Relations
Commissions, which created state awards.

Federal awards were created as a result of
the settlement of interstate industrial disputes,
but disputes taking place within a state were
governed by state awards. In 1996 the State of
Victoria became the rst state to refer its industrial
powers to the Commonwealth. It abolished state
awards and created a limited number of statutory
entitlements, leaving employees to negotiate all
other terms and conditions with their employers.
The Workplace Relations Act 1996 (Cth) aimed to
conditions could be excluded or modied by an

Australian Workplace Agreement (AWA).
The Fair Work Act 2009 (Cth) replaced Work
Choices. In late 2009 all of the states except
Western Australia referred their industrial powers
to the Commonwealth. As a result, all employers
and their employees who were previously covered
by state industrial relations systems moved into
the new federal Fair Work system in 2010, and
existing state awards were replaced by federal
modern awards. Those state awards covering
employees of organisations that are not constitutional corporations (such as sole traders,
partnerships and unincorporated associations)
were permitted to remain in force for a transitional
period of 12 months from 1 January 2010, before
being replaced by modern awards. Some federal
awards created before 2006 may continue in
force, but only if they apply to a single enterprise.
simplify and streamline awards. It contained a list

of only 20 allowable award matters, and any terms
or conditions that were not among the allowable
matters would not be enforced. The allowable
1 Explain why the Harvester decision is
matters included hours of work, including rest
signicant to Australian workplace law.
breaks, rates of pay, annual leave, parental leave,
2 Dene industrial awards and explain their
personal carers leave, penalty rates, and dispute
368
R EV I EW 1 3 . 5
purpose.
Agreements
I NDI V I DU A L A G RE E M E NTS
The Workplace Relations Act 1996 (Cth), and
In 1991 enterprise bargaining was introduced

as an alternative to awards, and enterprise
agreements became the primary means of
setting wages and conditions in 1993. This was
seen as a means of creating a more exible
system of industrial regulation: agreements could
be tailored to a particular enterprise, whereas
awards covered a whole industry or occupation,
either nationwide or within a state. While negotiation at the individual workplace level can
result in different conditions or wages applying to
people in the same occupation, and thus arguably
is not in the best interests of workers, awards
were retained. They set a minimum safety net
for workers. The bargaining system also included
a no disadvantage test. This was a requirement
that an enterprise agreement would not be
approved by the AIRC if it put employees at an
overall disadvantage compared to the applicable
award.
Under the Workplace Relations Act 1996 (Cth),
prior to the WorkChoices amendments of 2006,
especially the WorkChoices amendments, were

aimed at shifting workers from collective to
individual forms of employment contracts. An
employer could make it a condition of hiring
someone that the employee signed an AWA; under
WorkChoices, this did not constitute duress.
Employees had no statutory right to collective
bargaining, and while an AWA was in operation,
it overrode any award or collective agreement.
WorkChoices introduced ve minimum statutory
entitlements, which replaced the no disadvantage
test. Prior to the amendments, both collective
agreements and AWAs had to pass this test, to
ensure that employees would be no worse off under
the agreement than under the relevant award.
Under the Fair Work Act 2009 (Cth), there are
no longer any legislative provisions for individual
agreements. Through 2009, Individual Transitional
Employment Agreements (which replaced AWAs)
could still be made, but after 1 January 2010
it was no longer possible to register individual
agreements of any kind.
enterprise agreements were also known as

certied agreements if they were registered and
enterprise
bargaining
negotiation of an
agreement about
wages and working
conditions by an
employer and its
employees, or
the trade union
representing them
enterprise
agreement
a legally binding
agreement between
the employees of a
corporation, nonprot organisation
or government body,
and their employer,
setting the terms
and conditions of
the employment
relationship
enterprise
a business or
company
E NTERPRISE AGR EEMEN T S
duress
coercion or pressure
used to inuence
someone
Statutory framework
certied by the federal or state Industrial Relations

Commission. The term collective agreements was
Federal legislation
used to refer specically to enterprise agreements
The main features of the Fair Work Act 2009 (Cth)
reached between an employer and a trade union
are:
representing employees. Enterprise agreements
s a legislative safety net of 10 National Employment Standards (NES)
could be either union-negotiated or not.

There is no distinction between union and
s new modern awards
non-union agreements under the Fair Work Act
s new enterprise bargaining arrangements
2009 (Cth). The current process of negotiating
s improved mechanisms to protect industrial
an enterprise agreement has been characterised
rights, including protection against discrimi-
as collective bargaining at the enterprise level.
nation and unfair dismissal
An enterprise agreement will be made between
s the creation of new national industrial relations
an employer and some or all of its employees.
organisations: Fair Work Australia (FWA) and
Employers
the Fair Work Ombudsman.
must
notify
their
employees
of
their right to be represented in the bargaining

process, and employees can choose who will
NATI O NA L E M P L O YM ENT STA NDA RDS
represent them. Those who are union members
The National Employment Standards (NES) are set
will automatically be represented by their union,
out in the Fair Work Act. They comprise 10 mini-
unless they choose otherwise.
mum standards for employees pay and conditions.
369
All awards, agreements and contracts of employ-
All modern awards must also have a exibility
ment between employers and employees in the
term, which allows employees and employers to
national industrial system must meet these mini-
negotiate changes to the award to accommodate
mum standards. These standards include maxi-
individual workplace circumstances.
mum hours of work, exible working arrangements
If an employees take-home pay has been
for parents, leave entitlements (such as sick leave,
reduced by modernisation of an award, an appli-
parental and annual leave), and termination and
cation can be made to Fair Work Australia by
redundancy pay. They also include a requirement
the employee or by the union to which he or she
that a Fair Work Information Statement must be
belongs. A take-home pay order can be made to
provided by employers to all new employees, ex-
ensure that the person earns no less while remain-
plaining all of the elements of the new system (the
ing in the same job. However, such an order will
NES, modern awards, and all rights and entitle-
not be made if Fair Work Australia nds that the
ments under the legislation, including union rights
workers under the award have been adequately
of entry and dispute resolution mechanisms).
compensated in other ways for the reduction.
Only some of the NES entitlements apply to

casual employees.
Modern awards only cover employees in jobs

that have historically been covered by awards.
In addition to the NES, further conditions of
For example, the terms of more senior positions
employment can come from a modern award,
have traditionally been contained in other instru-
agreement, or transitional instrument containing
ments. Employers can exclude employees earning
provisions from an award or agreement made
a guaranteed income of more than $108 300 per
under the previous legislation. They can also come
year (indexed annually) from modern award
from minimum wage orders, state laws or federal
coverage.
laws.
The modern awards will be reviewed by Fair

Work Australia every four years, and minimum
MODER N AWAR DS
wage provisions will be reviewed annually.
The second half of the safety net is the modern

award. Modern awards were created to establish
a single set of minimum conditions for people
working in the same industries or jobs across
Australia. The process of modernisation of previous awards involved updating them to reect
current work environments, and in many cases
their coverage was broadened. They can be made
R EV I EW 1 3 . 6
1 Dene and contrast collective agreements
and individual agreements.
agreements and awards.
and varied by Fair Work Australia, and the awards

that previously applied prior to the Fair Work Act
were replaced by modern awards. Most modern
awards contain transitional provisions that allow
Refer to the following article and answer the
wages that are higher or lower than previous
ones to be progressively introduced in ve annual
1 Explain what steps a worker can take if he
instalments from 1 July 2010.

Modern awards can contain terms setting out
minimum pay (including overtime and penalty
rates), annual wage or salary, leave and leave
370
R EV I EW 1 3 . 7
or she nds that his or her take-home pay

is less than it was before the award was
modernised.
2 Identify difculties that might arise from
loading, superannuation, a redundancy scheme
having to go through this procedure, and
specic to an industry, and procedures regarding
any factors that could prevent a take-
consultation and dispute settlement processes.
home pay order from being made.
by Ewin Hannan
The Australian, 2 March 2010
Fresh tensions have erupted between the

Rudd government and key unions, after union
ofcials demanded an immediate review of
Labors award revamp and warned that the
overhaul risked cutting the safety net for
women in female-dominated industries.
ACTU vice-president, Linda White, said
the award modernisation process had been
soul-destroying. She lashed out at a new
Fair Work Australia ruling that she said risked
leaving thousands of her members in the
airline industry worse off.
Our safety net has been lowered and
it is because of the governments award
modernisation process, she said.
While the government may not have
wanted this to occur, unfortunately their
system has let this happen.
Ms White, assistant national secretary of the
Australian Services Union, said people stood
to be disadvantaged in the retail, hospitality,
clerical and airline sectors.
To me, in the end, what its going to show
is that, in the womens industries, the award
modernisation process has really cut the
safety net for women; thats my impression
of whats happened, she told The Australian
yesterday.
Ahead of an ACTU executive meeting
tomorrow, Transport Workers Union federal
secretary Tony Sheldon said the government
should bring forward a proposed review of the
legislative changes underpinning the awards.
The fact that wages and conditions are
at risk is an unintended consequence of the
current modern award, and it is time we had a
good look at it to prepare for a second round
of industrial relations changes, he said.
But Julia Gillard last night reiterated that
workers could not have their take-home
pay cut.
I want to make clear that under the Fair
Work laws, no employee can have his or her
take-home pay reduced as a result of the

making of a modern award, she said.
Take-home pay orders are available in the
event any employer attempts to cut pay.
Id encourage workers and if they wish
their unions to make an application for a
take-home pay order, if they feel that they are
worse off as a result of award modernisation.
A spokesman for the Workplace Relations
Minister also rejected Mr Sheldons call for a
review.
The award modernisation process has only
recently been completed. Fair Work Australia
will undertake a review in 2012 as planned,
the spokesman said. In a ruling last Friday,
Fair Work Australia refused union attempts to
modify the new award covering thousands of
airline ground staff. Ms Gillard had written to
the tribunal highlighting union concerns about
the award.
Ms White said the rates of pay in the
overseas airlines award were cut by between
$76.23 and $301.56 a week, while the
transport, social disability and tropical zone
allowances were eliminated.
She said the tribunal had found wrongly
that Qantas was award-free and that the
allowances were not in the original awards.
This decision is a disgrace, and there is
no doubt people will be disadvantaged, she
said.
The unions would ght to ensure workers
were not disadvantaged, by pursuing takehome pay orders for award employees and
through enterprise bargaining.
ACTU secretary Jeff Lawrence said the Fair
Work Australia airline ruling was disappointing
but did not mean airline workers would
necessarily be worse off, as their take-home
pay is protected by law.
Mr Lawrence said unions would work
to ensure employers did not use award
modernisation as an excuse to cut the wages
and conditions of their employees.
We will vigorously pursue take-home pay
orders and other legal remedies against any
employers who use the modern awards to cut
pay, he said.
m e d i a cl i p
Unions clash with ALP on award
371
R E SE A RC H 13.1
Use the internet to research
developments that have
taken place since the modern
award for airline ground staff
was made in March 2010,
especially with respect to the
s the 17% pay gap between
similar qualications
s the relationship between
the legislature, Fair Work
Australia, and unions
s the progress or outcome of
workplace surveillance
an employers use of
technology such as
cameras, computers
and tracking devices to
monitor employees
372
2009 ( C T H )
employer or a bargaining representative for the
Enterprise agreements may include
employees. It must meet certain conditions to be
a broader range of matters than
approved by FWA. These include:
modern awards. Like awards, agree-
s the parties have come to a genuine agreement
ments must provide entitlements at
s the agreement has a specied expiry date, not
example a minimum four weeks
more than four years after FWA approval

s the agreement contains a dispute settlement
procedure, a exibility term, and a term
Enterprise agreements between
outlining the consultation procedure to be
an employer and its employees
undertaken by the employer upon deciding to
must be approved by a majority of
make a major change to the enterprise affecting
employees before being submitted
employees
to Fair Work Australia (FWA) for
s the agreement passes the better off overall
approval. Once the parties are sat-
test (BOOT).
ised with the draft agreement,
To pass the better off overall test, the
the employer must ensure that the
agreement must result in each employee covered
employees have been informed of its terms and
being better off overall than they would be under
their consequences, and of the time, place and
the relevant modern award. BOOT replaced the
procedure for voting. A ballot is then held to
no disadvantage test.
any test case.
better off overall test

(BOOT)
a criterion for FWAs
approval of an
enterprise agreement,
requiring that
employees are better
off overall than under
the relevant modern
award
the parties, it is then submitted to FWA by the
paid leave per year.
men and women with
Once the agreement has been approved by
UN DER T H E FAIR WO RK A C T
least as favourable as the NES, for
following issues:
greenelds agreement
an agreement created
to cover prospective
employees of a new
enterprise
EN T ER PR IS E AG RE E M E NTS
approve the agreement.

An enterprise agreement, made with or without
New South Wales arrangements
union involvement, may apply to workers in a
New South Wales enterprise agreements were
specic workplace (single-enterprise agreements)
introduced under the Industrial Relations Act
or at an industry level (multi-enterprise agree-
1996 (NSW). As a result of the states referral
ments). A single-enterprise agreement requires
of its industrial powers to the Commonwealth
a majority of employees to endorse it, and a
in 2009, that Act no longer applies to private
multi-enterprise agreement requires a majority of
sector employers and employees in NSW: from
employees of at least one of the employers to do
1 January 2010, all employees of sole traders and
so. FWA can help certain low-paid employees and
partnerships, as well as employees of constitutional
their employers to negotiate a multi-enterprise
corporations, were covered by the industrial
agreement, if it is in the public interest to do so.
relations system governed by federal law. The
These include people working in child care, aged
Industrial Relations (Commonwealth Powers) Act
care, community services, cleaning, and security,
2009 (NSW) effected the referral. Section 9B of
who have often lacked the bargaining power to
the Industrial Relations Act 1996 (NSW) states that
negotiate for better wages and conditions at the
this Act is subject to the Fair Work Act 2009 of the
single-enterprise level.
Commonwealth, including provisions of that Act
A third type of enterprise agreement is a
that have effect in this State because of the referral
greenelds agreement, which covers future
of matters relating to workplace relations to the
employees of a new enterprise to be established
Commonwealth Parliament.
by one or more employers. The agreement is made
Other state laws dealing with workplace health
when it has been endorsed by each employer
and safety, anti-discrimination provisions, and
and by the trade union or unions that cover the
workplace surveillance continue to operate as
prospective employees.
before.
Transitional instruments called Notional Agree-
relevant state legislation (e.g. occupational health
ments Preserving State Awards (NAPSAs) pre-
and safety and anti-discrimination laws), and it
served the terms and conditions of state awards
must pass the no net detriment test.
and of some state legislation that applied to employ-
The no net detriment test is similar to
ees of constitutional corporations prior to 2006.
BOOT. The agreement must not put employees
These were largely replaced by modern awards in
at a disadvantage compared to state or federal
2010. If parties to the award fail to apply to FWA to
awards that would otherwise apply. This means
convert a NAPSA into a modern award, the NAPSA
that employees cannot make an agreement
ceases to operate on 31 December 2013.
that removes or reduces award conditions. For
However, the referral of powers does not
example, employees cannot make an agreement
include the powers of the State of New South Wales
that provides lower pay or fewer annual leave days
regarding state and local government employers.
than are provided by the relevant award.
Section 9A of the Industrial Relations Act 1996
The Commission must also ensure that the
(NSW) declares those employers not to be national
parties understand the effect of the agreement
system employers. The awards and collective
and that no duress was involved in signing it.
Figure 13.5 Employees may be represented by their union in negotiating enterprise agreements.
agreements in place continued to apply.

Different awards and agreements apply to the
various departments and agencies within state and
R EV I EW 1 3 . 8
local government. The NSW Industrial Relations
1 Discuss the changes made to the industrial
Commission continues to have jurisdiction in
statutory framework under the Fair Work
relation to the employment terms and conditions

for state and local government employees. For the
Act 2009 (Cth).

2 Discuss the legislative powers retained by
Commission to approve an enterprise agreement
New South Wales after referral of industrial
for those employees, similar requirements to
powers to the Commonwealth.
those contained in the Fair Work Act 2009 (Cth)
3 Explain the aim of BOOT and the no net
operate. A majority of employees must vote for
detriment test. Why is it necessary to have
the agreement, the agreement must comply with
these two tests?
373
Re g u l a t io n o f t he wo r k p l a ce
Industrial relations:
the state and federal
framework
the WorkChoices amendments to the Workplace
Commonwealth and state

powers
incorporated companies, replacing the separate
Relations Act 1996 (Cth) in 2006, the government

relied on the corporations power in s 51(xx) to
bring in a national industrial system relating to
state and federal systems.
Section 51(xxxv) of the Australian Constitution
Although WorkChoices was one of the issues
gives the federal government the power to make
that brought about a change of government in
laws with respect to conciliation and arbitration
the 2007 federal election, the federal government
for the prevention and settlement of industrial
has continued to extend its ability to legislate in
disputes extending beyond the limits of any one
areas that were traditionally considered state
state. This means that the Federal Government
jurisdiction. In order to remove some of the cost,
cannot use legislation to regulate industrial rela-
inefciencies and inconsistencies of two systems
tions directly. Rather, it is limited to creating mach-
of industrial relations laws and dispute resolution
inery for the settlement of industrial disputes.
structures, the states have relinquished much
Moreover,
with
Commonwealth
legislative
power limited to interstate disputes, this still leaves
of their industrial relations power to the federal

government.
a large proportion of disputes to be settled at state

industrial relations
the relationship
between employers,
employees, the
government and trade
unions
374
level. As a result of these restrictions, the states
Industrial relations
historically shared the industrial relations power
Industrial relations is a term used to refer to
with the Commonwealth, and there were separate
the relationship between employers, employees,
industrial law systems in place.
the government and trade unions. These four
The Constitution Act 1902 (NSW) s 5 gives the
groups are the major stakeholders in the industrial
NSW Parliament the power to make laws for the
relations process, but it would be reasonable to
peace, welfare and good government of the state.
argue that everyone is a stakeholder because any
The NSW government therefore has the power to
industrial change or dispute could have an impact
pass legislation that aims to improve the welfare
on everyone in the community.
of employees and employers (such as awards)
The NSW Industrial Relations Commission
and to establish procedures for the resolution of
(NSW IRC) and Fair Work Australia were estab-
industrial disputes.
lished to help resolve such disputes. The Fair
As both governments can create law in the
Work Act 2009 (Cth) created Fair Work Australia,
same area, conicts between federal and state
a national tribunal that replaced the AIRC, the
laws sometimes occur. If conict does occur,
Australian Fair Pay Commission (which set mini-
under s 109 of the Australian Constitution, federal
mum wages) and the Workplace Authority (which
laws will prevail.
approved collective agreements made before
The existence of both state and federal laws
1 July 2009 and assessed them using the no
created confusion for individual employers who
disadvantage test). Both tribunals were created
may have found it difcult to determine which
to set salary and working conditions in the form
award or agreement applied to their workplace.
of awards, resolve industrial disputes, and hear
This would often have to be resolved in court.
and determine any industrial matter. An industrial
In recent years, the federal government has
dispute can concern various matters, including
used other constitutional powers to legislate in
unfair dismissal, discrimination or occupational
the area of workplace relations. In order to pass
health and safety.
Fair Work Australia can stop unprotected action. If
Ombudsman, an ofce that will replace the Work-
parties continue with the unprotected action they
place Ombudsman and take over the advisory role
may face severe legal consequences, which are
of the Workplace Authority.
enforceable by the courts.
When employers and employees are in dispute
Fair Work Australia can stop protected action
they may engage in industrial action. Employers,
if it threatens to harm the economy, threatens
as part of their industrial action, may lock out their
the safety of individuals, or if Fair Work Australia
employees (keep them from entering their work-
believes that the parties would benet from a
place) until they agree to certain terms. They may
cooling-off period. The Minister for Employment
stand down their employees or refuse to pay them.
and Workplace Relations can also terminate pro-
Employees may choose to go on strike, do only the
tected industrial action if the action threatens
bare minimum required (work to rule), reduce
peoples safety or threatens the economy.
their productivity (go slow), or form a picket line.
Fair Work Australia acts to ensure that the
All of these actions are done to exert pressure on the
bargaining process complies with industrial laws.
employer to accede to the employees demands.
In order to commence a claim in support of a new
When employers and employees enter into
enterprise agreement after an existing agreement
negotiations to create a new enterprise agreement
has passed its expiry date, employees must rst
they can engage in protected industrial action. This
obtain an order from Fair Work Australia allowing
means that nothing can legally be done to stop the
them to proceed, with a protected action ballot
action unless the action involves injury to persons,
endorsing industrial action.
damage to property, or the unlawful taking or
Disputes under modern awards and enterprise
use of property. Protected industrial action is
agreements will be resolved according to the dis-
not available to employers unless they are taking
pute resolution procedures contained in the award
action in response to employees industrial action.
or agreement.
stand down
to suspend
employees without
pay from the
workplace, usually
temporarily
strike
employees
organised withdrawal
of labour until a
grievance is resolved
picket line
a line of striking
union members
forming a boundary
outside or near
their place of
employment, which
others are asked not
to cross
The Fair Work Act also created the Fair Work
Figure 13.6 Striking workers may engage in public actions to advertise their grievances.
375
The new industrial relations system relies on

increased cooperation between the state and
Negotiations between
employers and employees
federal governments. Although the federal industrial relations system covers the majority of
Negotiations about the type of work and working
Australias workforce, state government employ-
conditions that take place between employees and
ees in NSW are not covered and remain under the
employers are known as workplace bargaining.
jurisdiction of the state.
When all employees within the workplace are

united on a series of workplace issues, they can
R EVIEW 13.9
negotiate with their employer from a position of

strength, and are therefore better able to achieve
1 Explain Australias system of workplace

law as it arose under the Australian
Constitution.
2 Explain the purpose of industrial action on
the part of employees or an employer.
3 Identify the conditions for industrial action
to be protected under the Fair Work Act
2009 (Cth).
their desired results. Enterprise agreements

reached through collective bargaining by the
employees or their union representatives often
contain conditions that are more generous than
those contained in awards.
When an individual employee is hired, the
employer will usually present a contract of employment to be signed by both parties, specifying
working hours, pay rates, leave entitlement, and
so on. The terms of the contract cannot be less
favourable than the wage rates or conditions set
out in the modern award for that occupation or
the applicable enterprise agreement (if the workplace has an enterprise agreement). The employer
should tell the employee which award or agreement he or she will be working under. Most but
not all employees are covered by a modern award,
if not by an enterprise agreement. However, no
employment contract can provide for entitlements
less favourable than the NES.
Award/agreement-free employees (those who
are not covered by either a modern award or an
enterprise agreement) may make agreements
that vary the operation of the NES about a limited
number of matters:
s averaging of hours of work
s cashing out of paid annual leave
s substitution of other days for public holidays
s extra annual leave in exchange for not taking
an equivalent amount of pay
s extra personal or carers leave in exchange for
not taking an equivalent amount of pay.
Fair Work Australia makes minimum wage
Figure 13.7 Workplace bargaining can enable employees to achieve

their desired working conditions.
376
orders for employees who are not covered by a

modern award.
Dispute resolution
mechanisms
The effectiveness of consensual forms of

dispute resolution depends on the nature of the
Industrial disputes may arise in the workplace
is one built on mutual respect, then consensual
over issues such as working conditions, pay and
forms of dispute resolution will be more successful
entitlements, and discrimination. Mechanisms
than arbitration.
used to resolve disputes centre on mediation and
Consensual forms of dispute resolution are less
other consensual forms of resolution. If disputes
costly to all parties concerned. Some of the costs
cannot be resolved then the matter will move to
associated with the supervision and enforcement
arbitration.
of parties obligations will also be reduced, as
relationship between the parties. If the relationship
parties are more likely to comply with an agree-
Consensual forms of dispute

resolution
ment that they negotiated.
Under both the Fair Work Act 2009 (Cth) and the
arises, parties are to follow the dispute resolution
Industrial Relations Act 1996 (NSW), all awards
procedures as outlined in their award or agreement.
and agreements must contain dispute resolution
The initial discussion will usually be between the
procedures (the NSW legislation exempts busi-
employer and employees within the workplace.
Under the Fair Work Act, when a dispute rst
nesses employing fewer than 20 people from this

requirement).
FA I R WO RK A U STRA L I A
An important aim of any dispute resolution
If the dispute cannot be resolved, disputing
process is to encourage disputing parties to come
parties may take the matter to Fair Work Australia
to a peaceful and mutually benecial agreement.
(FWA). The role of FWA is a very broad one and is
The goal is to resolve any matters in dispute
determined by the dispute resolution procedures
through mutual consent or agreement, not through
set down in the relevant agreement or award.
arbitration. Consensual forms of dispute resolution
Generally an FWA representative will discuss the
include conciliation and mediation. These can
issues in dispute with both parties and encourage
take place between an individual employee and
the parties to come to a consensual agreement
his or her employer or could involve a group of
through mediation or conciliation, or may make
employees negotiating with their employer.
a recommendation. If the matter remains un-
Conciliation and mediation are favoured over
resolved, a party can apply to have the matter
arbitration for a number of reasons. Arbitration
heard by the Fair Work division of the Federal
can be extremely costly and time-consuming,
Court or the Federal Magistrates Court. FWA will
and can involve direct confrontation between the
advise the parties if it believes the matter to have
employee and employer. This may lead to addi-
no reasonable prospect of success in court.
tional antagonism. By contrast, in mediation both
FWA can also assist with disputes arising under
parties are encouraged to put forward their claims
the general protections provisions of the Fair Work
and concerns, suggest solutions, and discuss
Act, and with disputes arising during a bargaining
proposed terms and conditions. This allows the
process.
mediation
a form of dispute
resolution in which a
third party helps the
disputing parties to
settle their dispute
parties to see themselves as an integral part of the

dispute-settling process rather than as observers.
TH E FA I R WO RK O M B U DSM A N
Parties in a workplace dispute may feel less
The Fair Work Ombudsman also has jurisdiction to
inclined to honour an agreement that they feel has
deal with complaints about pay and entitlements,
been imposed upon them by an outside third party.
employers breaching the law, and discrimination.
Mediation allows disputing parties to exercise their
Again, the person making the complaint must be
own rights and take a key role in the process.
covered by the national system. The Fair Work
377
consensual processes within the workplace. The
Federal Court and Federal

Magistrates Court
Ombudsman is supported by Fair Work Inspectors
The Industrial Relations Court of Australia was
whose role is to investigate com-
established in 1993 as a superior court equal in
plaints,
Ombudsman strives to resolve disputes through
fact-finding,
status to the Federal and Family Courts. How
assisted voluntary resolution, where
ever, the Workplace Relations Act 1996 (Cth)
Using the internet, research
necessary
full
(now repealed) transferred the jurisdiction of the
recent Australian industrial
investigation and mediation. If investi
Industrial Relations Court to the Federal Court of
disputes and how they were
gation reveals that a party has broken
Australia. The Industrial Relations Court continued
resolved. For each dispute
the law, the inspector can give the
to exist at law as a court administered by the
you investigate, examine the
party notice to remedy the breach, and
Federal Court.
cause of the dispute and the
if the party fails to do so, the matter
resolution procedures that
may go to court.
RESEARCH 13.2
starting
with
proceeding
to
The Fair Work Act 2009 (Cth) created a Fair

Work Division of the Federal Magistrates Court
and a Fair Work Division of the Federal Court.
were employed to settle it.

NEW SOUTH WALES INDUSTRIAL
One consequence has been that when a union
RELATIONS COMMISSION
undertakes illegal industrial action despite being
At the state level, the NSW IRC in
ordered by the FWA to cease the action, the
vestigates alleged breaches of state
employer may take the matter directly to the
emphasis on consensual
industrial legislation, awards and enter
Federal Magistrates Court. This change has made
forms of dispute resolution
prise agreements. It will first order a
some aspects of industrial dispute settlement at
rather than arbitration.
compulsory conference between the
the federal level more combative and adversarial.
2 Summarise the functions
parties, then conciliation. It will only
The Fair Work Act also provides for certain
and powers of the various
employ arbitration to deal with an
matters to be heard as a small claim (the claim
federal and state bodies
industrial dispute if conciliation is un
must be less than ($20000) in the Federal
that can help parties to
successful. Its orders are binding.
Magistrates Court. This allows employees to
REVIEW 13.10
1 Explain why there is an
settle industrial disputes.
The role of courts and

tribunals
pursue the recovery of any unpaid entitlements or

compensation. These proceedings are relatively
informal, a party may not be represented by a
lawyer without the Courts permission, and the
Court is not bound by the rules that normally
Fair Work Australia
control the admission of evidence in legal pro
As discussed above, Fair Work Australia (FWA)
ceedings and can investigate the matter as it sees
is the federal industrial relations tribunal. It can
fit. Use of the small claims tribunal minimises
resolve disputes including those arising in the
costs and is less intimidating for many people.
course of enterprise bargaining and industrial

action, and can adjudicate matters involving
breaches of the law.
378
New South Wales Industrial

Relations Commission
Fair Work Australia can play a role in voluntary
At the state level in NSW, the Industrial Court of
efforts between employers and employees to
New South Wales exercises the judicial function of
resolve disputes at the workplace level. When such
the NSW Industrial Relations Commission. It has
efforts are unsuccessful, it can arbitrate disputes,
the same status as the state Supreme Court, and
as outlined above in the section on the dispute
has an appellate jurisdiction (to hear appeals from
resolution process. It can also hear and determine
decisions of lower courts on industrial matters). It
unfair dismissal claims and matters arising from
has exclusive jurisdiction with respect to industrial
industrial action.
matters in other words, it is the only court that
matters that it hears include:
In its administrative role, the Commission can:

s review awards and enterprise agreements,
s unfair contracts claims
ensuring that these comply with the no net
s offences under the Industrial Relations Act 1996
detriment test and contain no discriminatory
(NSW)
s proceedings for breaches of awards and agreements, including underpayment of entitlements
s superannuation appeals
provisions
s revise awards to comply with legislation that
has been enacted
s register and regulate employer associations
s unfair dismissal claims
and employee organisations (e.g. trade unions),
s criminal prosecution of occupational health and
including proceedings for enforcement of rules
safety offences under the Occupational Health

and Safety Act 2000 (NSW).
and challenges to the validity of rules

The NSW IRC plays a signicant role in supervising enterprise agreements for state and local
Conclusion
government employees in NSW. In addition
Courts and tribunals still play a signicant role in
to ensuring that agreements meet the no net
the resolution of industrial disputes. The use of
detriment test, it must also consider the appro-
a court as the nal arbitrator lends weight to the
priateness of the negotiation process. The IRC has
decision, and parties must comply or face the legal
to ensure that the parties understand the effect of
consequence of their deance. Courts provide cer-
the agreement and that no duress was involved in
tainty by establishing legal principles, clarify legal
the signing of the agreement.
questions, and are able to identify and resolve

industrial issues as they emerge, ensuring that the
Fair Work Australia
law continues to reect community standards and
The role of Fair Work Australia (FWA) is to oversee
satises the changing requirements of the federal
the federal industrial relations system. In addition
or state industrial system.
to its judicial functions, it has an administrative
can arbitrate industrial disputes. The types of
role and can:
REVIEW 13.11
1 Briey outline the role of courts and
tribunals in governing industrial relations.
2 Outline the judicial role of Fair Work
Australia and the NSW IRC and how they
act to protect employee entitlements.
s vary awards
s make minimum wage orders
s review and approve enterprise agreements for
all workplaces in the federal system, ensuring
that they meet BOOT
s assist with the modication of agreements
when a business is transferred or a new business created
The role of government

organisations
s provide assistance and advice about the

industrial relations laws, through its telephone
helpline.
New South Wales Industrial

Relations Commission
The Fair Work Ombudsman
The role of the NSW IRC is not limited to
(Cth) states that the functions of the Fair Work
hearing disputes. It also establishes employment
Ombudsman
conditions and wages by making industrial awards
productive and cooperative workplace relations
and approving enterprise agreements for those
and to ensure compliance with the Act, awards,
employees within the state system.
agreements and orders. It does this by providing
Section 682(1)(a) of the Fair Work Act 2009

are
to
promote
harmonious,
379
education, advice and assistance to employees,

outworker
an employee who
works at home or
another place besides
the premises of his or
her employer, or an
independent contractor
in the textile, clothing or
footwear industry who
works at home or other
premises
peak body
an association made
up of a number of
organisations that have
similar interests and
aims; the peak body
will set policy and
coordinate common
activities for the
organisations
employers, outworkers and registered organisations of employees and of employers. The

Ombudsman publishes information on the federal
industrial relations system, and has ofces
throughout Australia as well as an online advisory
service. The Fair Work Ombudsman encourages
Figure 13.8 Australian Council of

Trade Unions logo
employees and employers to take the initiative

themselves in resolving complaints.
tries. The Australian Workers Union was formed to
The Ombudsman has the power to investigate
represent the interests of shearers and miners, but
and enforce breaches of the Act and of awards,
later expanded into manufacturing and today
agreements and orders. For example, Fair Work
covers employees in aviation, food processing and
Inspectors can inspect and copy documents at an
retail areas as well as its traditional industries. The
employers premises.
Media, Entertainment and Arts Alliance represents
The Ombudsman can represent employees or

outworkers in proceedings before a court or FWA.
people working in lm and theatre, journalism,

and the wider publishing industry.
Unions may act together in pursuit of a common
The role of trade unions
goal. The NSW State Wage Case of 2009 is one
Trade unions are employee organisations. A group
to the NSW Industrial Relations Commission for a
of people with a common interest enjoy greater
general wage increase in awards. Unions NSW is
bargaining
power
than
such example. In this case, Unions NSW applied
individuals,
and unions have been instrumental
R E SE A RC H 13.3
the state peak body for unions, comprising more

than 67 unions.
in achieving better workplace safety,
The Australian Council of Trade Unions (ACTU)
Go to www.lawlink.
superannuation, a 38-hour working
is the national peak body for all Australian unions.
nsw.gov.au/lawlink/
week, penalty rates, rest breaks and
It was formed in 1927. The ACTU represents
irc/ll_irc.nsf/pages/
other benets for employees.
Australian labour organisations internationally,
IRC_research_information_
A union usually represents employ-
of human rights and other issues. The ACTU
industries. The union may engage in
has been inuential in campaigns to further the
Wage Case 2009 Statement
discussions with employers regarding
rights of workers within Australia as well, such as
of the Commission.
working conditions, awards and enter-
the 2007 federal election campaign that focused
1 Discuss the arguments
prise agreements. All employees have
on the detrimental effects on employees of
presented by the different
the right to join a union if they wish and
WorkChoices.
stakeholders (unions,
many occupations and industries have
Unions may act as a lobby group to exert
employer associations and
their own specic union. One such union
pressure for government reform. The ACTU has
the government).
is the Electrical Trades Union. Other
successfully backed government nancial assis-
unions represent a broad range of
tance for working parents: as of January 2011
the Commission take into
employees within diverse workplaces.
new parents will receive 18 weeks payment at
account when setting the
For example, the Construction, Forestry,
minimum wage rates, or nearly $10 000. Unions
minimum wage?
Mining and Energy Union represents
continue to lobby for better parental leave for
3 What was the nal
people work ing in the building, timber,
both fathers and mothers, e.g. longer periods of
mining and energy production indus-
employer-provided paid leave.
Click on the link State
2 What other factors did
decision?
380
from
similar
occupations
articulating positions and advocating on behalf
or
announcements_2009_06
ees
The role of employer

associations
Act 1984 (Cth), Racial Discrimination Act 1975 (Cth))

and has powers under the Fair Work Act 2009 (Cth)
consideration in review of modern awards and
within the same or related industries. Employer
enterprise agreements. If a provision of an award
associations can represent their members during
or agreement requires a person to do something
the negotiation of a new enterprise agreement.
that is illegal under one of the anti-discrimination
Associations may also act to present a case to the
Acts, FWA must vary the award or agreement.
relevant industrial relations commission or court
The Commission can accept complaints about
in support of their members interests. Employer
discrimination in the workplace, and generally will
associations include the Australian Chamber of
conciliate, although it can also refer matters to the
Commerce and Industry, the Chamber of Com-
Fair Work Division of the Federal Court.
merce (NSW), the Business Council of Australia,

and Master Builders Associations of Australia and
Other NGOs
the various states and territories.
Safe Work Australia is an independent statutory

body whose main aims are to promote safer
The role of nongovernment organisations
workplaces and improve occupational health
Non-government organisations (NGOs) may pro-
private organisation that monitors and publicises
vide training and education to raise awareness
the performance of governments, and provides
of issues involving industrial relations, employ-
links between Australian human rights activists
ment conditions and workplace safety. They may
and those in other countries. It works to promote
also engage in research and make submissions
the development of Australian policy in human
to government and other appropriate bodies on
rights, which includes workplace issues such as
regarding these issues. Some may undertake
discrimination and safety.
political campaigns to pressure the government.

A non-government organisation may have been
established by statute or may receive govern-
and safety.
The Human Rights Council of Australia is a
to make submissions to Fair Work Australia for

Employer associations are composed of employers
The National Womens Justice Coalition promotes womens equality before the law, through
education and lobbying.
ment funding, but nonetheless is not afliated
The International Labour Organization (ILO), an
with any government and excludes government
agency of the United Nations, aims to encourage
representatives from its membership and gover-
member nations to undertake common action
nance. A national NGO may endure over time
in the protection of workers rights around the
through many changes of government.
world. It drafts and oversees international labour

standards, and seeks to promote compliance with
Australian Human Rights

Commission
these standards.
The Australian Human Rights Commission is an
independent statutory organisation established

in 1986 to act as the human rights watchdog. It
The role of the media and associated technologies
administers federal anti-discrimination statutes
has changed over the past decade. New and
(Age Discrimination Act 2004 (Cth), Disability
innovative
Discrimination Act 1992 (Cth), Sex Discrimination
meant that all stakeholders within the workplace
communication
technologies
have
381
are better informed and better placed to gather
the union delegate for using the workplace e-mail
support for their cause with both the public and
server to distribute union material. The Federal
the government. Employer associations and trade
Court held that the employees dismissal was un-
unions use the internet extensively to inform the
lawful. Her use of e-mail to distribute the material
public about current claims and negotiations.
was considered reasonable, given her role in the
Unions, in particular, use the internet to survey
union and because Ansett had impliedly per-
employees regarding hours of work and workplace
mitted it by permitting a union working group
conditions, and have used the information as the
to be established at the work site. In addition, the
basis for test cases. The IRC and Fair Work Aus-
court held that a union should be entitled to pro-
tralia have also effectively used these new tech-
vide information on the outcome of a meeting to
nologies to inform employees and employers
its members.
about their rights and obligations under workplace

law, and to provide additional support services.
Use of the internet as a method of communi-
sexual harassment
unwelcome and
uninvited behaviour of
a sexual nature, which
is likely to intimidate,
humiliate or offend the
person towards whom
it is directed
Remuneration
cation and a source of information within the
Remuneration refers to an employees salary
workplace has given rise to various issues. One
package, which can include pay, superannuation,
issue is the extent to which an employer can and
share offers, educational expenses, and car and
should be allowed to monitor and/or regulate
rental assistance. The remuneration package must
employees use of the internet while at work.
satisfy the NES as to minimum award rates of pay
There is a risk for employers in not monitoring
and entitlements. It may also include an incentive
e-mail and internet trafc. In the case of sexual
package, which is based on the employees
harassment, employers may be held liable if they
performance.
have not taken reasonable steps to prevent the

distribution of offensive material.
Many employers now bundle a variety of services and benets as part of the salary package to
Employees using the internet at work for private
attract and retain staff. This means the employee
correspondence and web browsing may not be
receives the benet as part of his or her salary,
aware that their activity may not be protected from
rather than a higher salary on which income tax
scrutiny by their employer. There is no common
would be payable. The nancial advantage for
law right to privacy in Australia. The federal
employees is that although they may sacrice part
Ofce of the Privacy Commissioner has developed
of their salary, this is more than made up by the
guidelines for employers, to ensure that their staff
tax benet.
understand the employers expectations and what
382
is permitted at work, and what will be done with
Superannuation Guarantee
any personal information collected as a result of
The Superannuation Guarantee Scheme was
monitoring.
established in the early 1990s under the Super-
Finally, the use of workplace electronic commu-
annuation Guarantee (Administration) Act 1992
nication for purposes related to trade union aims
(Cth). Its main aim is to ensure that employees,
has been addressed in at least one Federal Court
on retirement, will have adequate funds to sup-
case. In Australian Municipal, Administrative, Cleri-
port them. The scheme relies on the employer
cal and Services Union v Ansett Australia Ltd (2000)
contributing a sum equivalent to percentage of
175 ALR 173, Ansett objected to the content of a
the employees annual salary to a fund that will
union bulletin distributed via e-mail, and sacked
be preserved (cannot be touched by either the
employer or the employee) until the employee

retires and has reached preser vation age, deter-
R EV I EW 1 3 . 1 2
1 Briey outline the role of government
mined by the year of birth. The employee can also
organisations, unions, industry groups and
make personal contributions to his or her own
non-government organisations in industrial
superannuation fund, and these contributions can
relations.
be accessed prior to retirement but will be subject
2 Critically evaluate the role of the media in
co nce rn i n g t he wo rkp l a ce
Issue 1: Discrimination
The International Labour Organization (ILO) rst
articulated and advocated equal opportunity and
the adoption of anti-discriminatory work practices
as a basic workers right in 1919. The preamble
of the Constitution of the ILO states its general
intention to eradicate working conditions which
cause ... injustice, hardship and privation to large
numbers of people. This general aim is reected in
Australian anti-discrimination, equal opportunity
and human rights legislation.
Discrimination
is
unfavourable
treatment
of a person or group relative to the way others

are treated. It may take the form of direct
discrimination or indirect discrimination. In
the context of the workplace, it is unlawful to
discriminate between employees on the basis
of characteristics such as sex, race, pregnancy,
religion, national origin, marital status, sexual
orientation, etc.
notion of equality in workplace law centres on

equality of opportunity. The law acts to ensure
that there is equal opportunity for individuals
within
the
workplace,
by
making
acts
or
omissions that discriminate against them illegal.

All workplaces must have equal opportunity and
anti-discrimination procedures and complaints
mechanisms in place.
Legal responses
The Anti-Discrimination Act 1977 (NSW) initially
prohibited only discrimination on the grounds of
race, gender and marital status. Over the following
years a number of additional grounds have been
added and the Act slightly modied, but this was
done in a piecemeal fashion. Although it was
found that the Act had been successful in changing
community attitudes and behaviour, the NSW
Industrial Relations Commission argued that the
Act needed to be extended to include new grounds
for discrimination in order to remain relevant
and up-to-date. Three additional grounds for
Legal and non-legal

responses
discrimination were recommended. These were

religion, political opinion and carer responsibilities
(in employment).
The ideal of equality implies that all persons
Discrimination is illegal in New South Wales
should be treated equally before the law. The
under the various state and federal Acts listed in
discrimination
unfavourable treatment of a person or
group relative to the
way others are treated
industrial relations.
to a tax penalty.
direct discrimination
a practice or policy
of treating a person
or group of people
less favourably than
another person or
group in the same
position, on the basis
of sex, race, national
or ethnic origin, age,
sexuality or other
characteristic
indirect
discrimination
practices or policies
that appear to
be neutral or fair
because they treat
everyone in the
same way, but which
adversely affect a
higher proportion
of people from one
particular group
383
Table 13.1. The Acts cover different grounds for
RACISM
discrimination. In the workplace, employers must
Persons cannot be treated differently because of
treat all employees, and anyone applying for a job,
their membership of a particular race or cultural
fairly that is, on the basis of their individual merit,
group. This is prohibited by the Racial Discrimi
skills and suitability for the job, not irrelevant
nation Act 1975 (Cth) and the Anti-Discrimination
personal characteristics.
Act 1977 (NSW).
Table 13.1 Discrimination laws

Australian Human Rights Commission Act
1986 (Cth)
Equal Opportunity for Women in the
Workplace Act 1999 (Cth)
Fair Work Act 2009 (Cth)
Industrial Relations Act 1996 (NSW)
SEXISM
A person cannot be treated differently simply

because she is a woman or he is a man. This form of
discrimination, which includes sexual harassment
and discrimination due to pregnancy, is illegal
under the Sex Discrimination Act 1984 (Cth) and
the Anti-Discrimination Act 1977 (NSW).
D I S C R I M I N AT I O N O N T H E B A S I S O F
S E X U A L O R I E N TAT I O N
Both the Anti-Discrimination Act 1977 (NSW) and

the Fair Work Act 2009 (Cth) make it illegal to treat
someone less favourably because he or she is
gay, lesbian, or bisexual. The Anti-Discrimination
Act also makes it illegal to discriminate against
someone because he or she has a relative or
associate who is homosexual.
D I S A B I L I T Y D I S C R I M I N AT I O N
Under both the Disability Discrimination Act 1992

(Cth) and the Anti-Discrimination Act 1977 (NSW),
it is illegal to discriminate against someone on
the grounds of his or her disability. This includes
intellectual, physical, sensory, psychiatric and
learning disabilities. These Acts also prohibits dis
crimination against someone because he or she
has HIV/AIDS or is associated with someone who
has HIV/AIDS.
A G E D I S C R I M I N AT I O N
It is illegal to discriminate on the basis of age

under the Age Discrimination Act 2004 (Cth).
This legislation also makes it illegal to force an
employee to retire because of his or her age. There
are specific types of employment that are excluded
Figure 13.9 It is illegal to discriminate on the basis of sexual orientation,
age, gender or disability.
384
due to the nature of the employment, such as the

job of a judge or aircraft pilot.
same or comparable conditions. As the average
Equal employment opportunity legislation
earnings of women in 2010 were still only 67
consists of the Anti-Discrimination Act 1977
per cent of mens average earnings, unions and
(NSW) and the Equal Opportunity for Women in
womens advocacy groups have continued to press
the Workplace Act 1999 (Cth). The NSW Act aims
for change, with the ACTU likely to run further pay
to
equity test cases.
provide
equal
employment
opportunities
for women, members of racial minorities, and

disabled persons. The Commonwealth Act is
Non-legal responses
aimed at women only.
Numerous independent and non-government
Unfortunately, these Acts do not make dis-
crimination illegal. Rather, they provide for work-
researching discrimination issues, and in making
places to develop appropriate programs to ensure
recommendations to government or providing
the absence of discrimination and to take positive
policy advice to relevant departments. These
steps to promote equal employment opportunity
organisations usually concentrate their efforts
for members of disadvantaged groups. The major
in particular areas. The NSW Council of Social
difculty in ensuring that employers comply
Services (NCOSS) and the Federation of Ethnic
with the legislation is the lack of an enforcement
Communities Councils of Australia (FECCA)
provision. Publicising the name of a workplace
are examples. As a lobby group each seeks to
that fails to comply is one punishment available,
represent the interests of disadvantaged people
as is excluding the employer from obtaining
and modify government policy to support social
government contracts.
justice issues. The National Disability Services
equal employment
opportunity
legislation
laws requiring
employers to ensure
that people are
not subjected to
discrimination, to
eliminate factors
that restrict groups
opportunity to
enjoy employment
benets, and
perhaps to
implement programs
that provide specic
opportunities to
disadvantaged
groups
E QUAL EM PLOY MEN T OPPORT UN IT Y
is the peak body for non-prot organisations

E QUAL PAY FOR EQ UAL WOR K
that provide services to the disabled and the
Two test cases, the Equal Pay for Equal Work Case
disadvantaged.
(1969) 127 CAR 1142 and the Equal Pay for Work of
Important independent statutory bodies such
Equal Value Case (1972) 147 CAR 172, established
as the Australian Human Rights Commission aim
certain principles with respect to wages for
to protect and promote the rights of all people. The
women. In the rst, the court held that women
commission is responsible for the administration
doing the same work as men should receive the
of federal discrimination laws. The commission
same pay. In the second, it held that different jobs
can investigate complaints, research human rights
of the same worth warrant the same minimum
issues and make recommendations. Other organ-
wage. This decision was intended to address
isations such as Amnesty International regularly
the difference between mens and womens pay
campaign for the recognition of human rights
resulting from the preponderance of men in some
and the removal of discriminatory practices.
jobs and women in others.
These bodies do not have the legal authority to
The worth of a job has no legal denition.
make or amend laws; rather, their role tends to
However, one signicant reason for the difference
be limited to investigating complaints and making
in pay between work traditionally regarded as
recommendations to government.
mens work and womens work is the greater

to others. One way to determine whether two

system
different jobs are of equal value or worth might
To a certain extent the law has responded to
be to ask whether there are equal levels of skill
the need to protect individuals and groups from
required or responsibility attached, under the
discriminatory practices. Changing social attitudes
value placed on some types of work compared
385
and human rights movements of the 1960s,
been critical of Evans taking leave to care for her
such as the feminist and civil rights movements,
sick son. It was held that the leave she had taken
provided the initial impetus to create legislation
was within her entitlements.
protecting rights. Later Australia became a party to
Although the legal system has acted to remove
several UN conventions, including the Convention
discriminatory practices within the workplace it
on the Elimination of All Forms of Discrimination
has not been entirely successful. For example,
Against Women (CEDAW) and the Convention on
more than 30 years after the Equal Pay for Equal
the Elimination of Racial Discrimination (CERD). As
Work Case and the passing of numerous Acts
such, Australia was obligated to create domestic
making discriminatory pay practices illegal,
legislation in line with these conventions.
there still exist pay and promotional disparities
Legislatures have responded to a number of
between men and women. In addition, those who
recommendations which pointed out that loop-
have family or carer responsibilities continue to
holes still existed with respect to protection from
face inequities in the workplace, such as lack of
discriminatory practices. The Anti-Discrimination
professional development, promotional and over-
Amendment (Carers Responsibilities) Act 2000
time opportunities.
(NSW) amended the Anti-Discrimination Act 1977

(NSW) to prohibit direct or indirect discrimination
Conclusion
in
employees
In 2008 the Australian Human Rights Commission
responsibilities as a carer for children, adults with
conducted a telephone survey (Sexual Harass-
disabilities, or other family members.
ment: Serious Business) to investigate the nature
employment
because
of
an
The courts and various tribunals have also
and extent of sexual harassment in the workplace.
responded to protect individual rights in this area.
Responses to the survey indicate that it continues
In Mayer v Australian Nuclear Science and Tech-
to be a major issue. The majority of victims sur-
nology Organisation [2003] FMCA 209, the com-
veyed were women (22% claimed to have been
plainant wanted to work part-time after returning
victims of harassment) while only 5% of men said
from maternity leave. She was unable to return
that they had experienced some form of sexual
to work on a full-time basis because she now
harassment. In addition, one in three women
had to care for her child. Mayer was told that her
aged 1864 claimed to have experienced sexual
position was only available
harassment.
as a full-time position and
The Commission received 438 complaints
R E VIEW 13.13
she was dismissed. The court
under the Sex Discrimination Act 1984 (Cth) in
1 Dene discrimination.
companys refusal to allow her
200708. The majority of complaints were related
2 Discrimination can occur on
to work part-time was found to
to employment (87% of complaints). 22% of
many grounds. Discuss the
be indirect sex discrimination,
the complaints were related to discrimination
different forms of discrimination
on the basis that it is still often
based on pregnancy and 18% concerned sexual
and how legislation protects
women who bear the brunt of
harassment.
employees.
child care in a family.
3 Explain the concepts of equal
In a similar case, Evans
duced in response to changing social attitudes
opportunity and equal pay for
Authority
and values. Recent workplace reform has centred
equal work.
[2003] FMCA 375, Evans left
on removing discriminatory practices involving
her employment before her
workfamily issues and the introduction of family-
never really existed. Discuss this
contract ended. She had been
friendly initiatives within the workplace. However,
statement, providing examples
told that her contract would not
there is a continuing need for further workplace
to support your discussion.
be renewed. Her supervisor had
reforms in the area of parental leave.
4 Equal pay for equal work has
386
The various discrimination laws were intro-
National
Crime
A safe workplace includes safe equipment, safe

work systems and appropriate training procedures. The court will decide what constitutes
safe and the courts decision concerning this
is usually determined by the relevant legislation
and the individual facts of the case. Therefore,
workplace safety is a variable concept. What is
safe in an ofce workplace will differ very much
from what is safe on a naval destroyer carrying
nuclear weapons.
On average each year, over 690 000 workers
suffer a work-related injury or illness almost 10
per cent of Australian workers. According to the
ACTU, in 200708 there were 150 work fatalities.
Approximately one-fth of the workers who are
injured or become ill are absent from work for more
than ve days. This means that for the employer
there is an enormous loss of production and
prot; for the worker there is the cost of medical
treatment and lost wages; for the government and
the community there are additional costs to the
health system.
As mentioned earlier in this chapter, occupational health and safety (OHS) is a matter that
is falls within state jurisdiction and is primarily
governed by state legislation.
Legal and non-legal

responses
the course of performing his or her duties amounts

to the tort of negligence.
The employer is negligent if it fails to:
s employ competent staff and provide proper
supervision, which includes maintaining the
skill levels of employees
s provide a safe working environment and
equipment
s provide a safe means of access to the
workplace
s ensure a safe system of conducting work.
Authority for these principles is found in the
English case Wilsons & Clyde Coal Co. v English
[1938] AC 57.
Employers obligations to their employees are
enforceable in tort. If someone owes a duty of
care to another person, and his or her action or
omission (failure to act) causes foreseeable loss or
injury to that person, compensation in the form of
damages may be payable to the victim. Medical
bills, lost wages and the cost of retraining are
Issue 2: Safety
some examples of compensable losses.

In order to prove negligence, the plaintiff (the
injured party) must prove three elements:
s that a relationship existed between the parties:
that is, the employer owed the employee a duty
of care
s that there was a breach of that duty of care in
that the employer did not provide a safe working
environment: for example, the employer failed
to provide adequate training or did not install a
safety guard on a machine
Legal responses
s that the plaintiff suffered damage as a result of
The legal system has responded to workplace
the breach; that is, the worker was injured or
safety concerns through further development of the
suffered a loss.
common law duty of care in relation to employer

negligence, and through legislative reforms.
Employers duty of care includes a duty not

to expose employees to unreasonable hazards,
such as toxic chemicals, dust or disease-causing
C O M M ON LAW DUT Y OF C AR E
agents.
Employee rights concerning safety were originally
In certain instances, workers may nd it dif-
protected under the common law. Employers had
cult to establish that they were owed a duty of care.
an implied duty of care to their employees, to
In todays workplace, the dividing line between
safeguard their health and safety. A breach of the
an employment relationship and a contract
duty of care resulting in injury to an employee in
for services is not always clear. For example,
387
a business may contract with a hire company,

which in turn engages workers. The business
might argue that it had no contract of any kind
with the workers, and that liability for their safety
rests with the hire company. In another example,
an employee might be responsible for his or her
hours or work and the manner in which the job
is performed. The employer might argue that the
control test points to an independent contract for
services, not a contract of service, and therefore
there is no duty of care owed to the worker and no
liability for loss suffered. In such cases, the court
would need to look at other aspects of the parties
relationship, such as whether the employee uses a
business structure under which invoices are issued
c a s e s pa c e
cas e s p ac e
(the economic reality test).
388
Figure 13.10 Employers have a duty to care for

the health and safety of their employees.
Paris v Stepney Borough Council [1951] AC 367

In this UK case, Mr Paris was
in total blindness. It was held
should have provided him
already blind in one eye when he
that the potential seriousness
with safety goggles. The duty
began working for the council
of the harm to Paris was much
owed by the employer to the
as a motor mechanic. It was not
greater than for an employee
individual employee must take
the practice to provide safety
with sight in both eyes, and
into account the employees
goggles to employees. Paris
therefore the standard of the
circumstances, and therefore
was hammering at a rusty bolt
duty of care owed to him was
the standard of care owed may
when a shard of rust ew off and
higher. Knowing of his unique
be greater.
lodged in his good eye, resulting
circumstances, the council
Zuijs v Wirth Bros Pty Ltd (1955) 93 CLR 561

Zuijs, a circus trapeze artist,
rehearsal and performance, he
employee, controlling his hours
was injured when he fell during
was not their employee and
of work and his workplace. The
a performance. His employer,
they did not owe him a duty
courts agreed with Zuijs and
the circus owners, argued
of care. Zuijs countered that
held that Wirth Bros had been
that because Zuijs was largely
Wirth Bros paid him a wage
negligent.
responsible for his own training,
and generally treated him as an
scheme, which is workplace injury insurance.
Statutory duties are found in a number of different
The WorkCover premiums paid by an employer
Acts. In NSW, the principal Act governing workplace
cover the costs of the compensation provided to
safety is the Occupational Health and Safety Act
employees if they are hurt or become ill because of
2000 (NSW). It contains general requirements
their job. WorkCover NSW is a statutory body that
which must be met at all places of work in NSW. It
administers the scheme and also investigates and
covers self-employed people as well as employees
monitors OHS issues. Under the Workplace Injury
and contractors.
Management and Workers Compensation Act 1998
Other legal requirements regarding health and
(NSW), another role of WorkCover is to oversee the
safety at work are contained in associated legis-
development of appropriate injury management
lation, which may be specic to an occupation,
programs. All employers are required to take out
for example the Nurses Act 1991 (NSW). This
a WorkCover policy if their annual payroll is $7500
also
includes
statutes
governing
workers
or more.
compensation and injury management. Injury

management programs that employers may be
DE V E L O P M E NT O F STATU TO RY DU TI ES
required to institute cover treatment, rehabil-
Workplace safety in NSW was originally covered
itation and retraining, to facilitate the employees
by individual Acts that were conned to specic
return to work.
industries. These included:
Some of the statutes providing for employer
s Employers Liability Act 1880 (NSW): this Act
compensation for a workers injury or death
provided workmen who were injured in speci-
include:
c work situations or by fellow employees with
s Workers Compensation Act 1987 (NSW)
the right to sue the employer for damages.
s Workplace Injury Management and Workers
The Act only referred to workmen who were

manual labourers; other types of workers were
Compensation Act 1998 (NSW)

s Workers Compensation (Bushre, Emergency and
excluded.
s Factories and Shops Act 1912 (NSW): this Act
Rescue Services) Act 1987 (NSW)

s Workers Compensation (Dust Diseases) Act 1942
required employers to follow specic work pro-
(NSW).
cedures or risk criminal penalties. The Act was
Some statutes govern compensation payable
written in general terms and was limited to
as a result of industry-specic injuries or diseases.
factory settings, excluding those employed in
For example, the Workers Compensation (Dust
services industries.
Diseases) Act covers occupational lung diseases
In the early 1970s, Lord Robens was charged
caused by exposure to particular types of dust
with inquiring into workplace health and safety
in industries ranging from textile manufacturing,
issues in the UK. The Robens Report, published
aluminium mining and production, mushroom
in 1972, recommended a number of changes.
farming, poultry breeding, and asbestos industries
These recommendations formed the basis for legi-
(mining,
slative reform in the area of workplace safety in
building
construction,
shipbuilding,
plumbing and electrical work) and many others.
workers
compensation
a compulsory
insurance scheme
paid into by
employers to
compensate
employees injured
at work through
nancial payments;
claims do not require
proof of fault
S TATUTORY D UT IES OF EMPL OY ER S
injury management
a program developed
for an injured worker
that includes all
aspects of his or
her treatment,
rehabilitation and
retraining, and is
aimed at facilitating
his or her return to
work
both England and Australia. The Robens Report
Provisions for workers compensation have
concluded that not only were there serious
become mandatory in all workplaces, and employ-
problems in the safety legislation existing at that
ers who do not comply are subject to large nes.
time, but that there existed a certain degree of
Workers compensation in New South Wales
worker apathy towards safety, and this was one
is governed by the Workers Compensation Act
of the primary causes of workplace accidents.
1987 (NSW). This Act introduced the WorkCover
The Robens Report considered self-regulation to
389
codication
the spelling out of
obligations in legislation
regulation
a form of subordinate
legislation, comprising
a set of rules made
under an act on the
legislatures delegated
authority (e.g. the
Executive), providing
the technical and
administrative detail
required by the Act
be the best method of achieving a safer working
in order to provide uniform workplace practices
environment. In this context, self-regulation meant
across all industries. A few years later, the
workers and management working together to
Occupational Health and Safety Act 1983 (NSW)
meet and improve on the OHS standards pre-
was passed, codifying much of the law that had
scribed in legislation. The aims included workers
evolved through the courts. Later reforms and
having a greater responsibility for their own safety,
amendments to the 1983 Act resulted in the
with education and training about safety issues
current Occupational Health and Safety Act 2000
becoming integral elements of all workplaces.
(NSW), the consolidation of NSW regulations in
The report also recommended that employers
2001, and increased penalties for breach.
should be subject to statutory duties to consult
The Occupational Health and Safety Act 2000
with employees about OHS measures and provide
(NSW) introduces employees obligation to take
for their participation in the development of such
reasonable care for the health and safety of
measures. The chief means of having employee
people at their workplace and those who may be
representation in OHS matters would be through
affected by their acts or omissions, and broadens
the selection of an OHS representative in the
employers duty of care to those who are not
workplace.
their employees but are visitors to the workplace.
Within a decade of the publication of the
In other words, not only employers, but also
Robens Report, workplace safety in New South
employees and the self-employed are obliged to
Wales was also being scrutinised. In 1981, the NSW
take reasonable care to ensure the health and
government established a commission of inquiry
safety of those in the workplace.
into occupational health and safety within the
These statutory duties reect the common law
workplace. Chaired by NSW Industrial Magistrate
duty of employees to work with due skill and care.
T. G. Williams, the Williams Report pointed out that
Section 17 of the Act mandates that a workplace
NSW workplace safety legislation was inadequate
of 20 or more employees must have an OHS
and did not do enough to prevent workplace
committee, and that an OHS representative is
accidents. The report recommended that any
to be elected if at least one person requests it
new legislation must include specic employer
or WorkCover so directs. The function of the
and employee duties and rights.
committee and/or representatives is to consult
In addition, the report stated that
with the employer about risks to health and safety,
R E V IE W 13.14
there had to be greater cooperation
and regarding decisions as to the measures to be
1 Explain, in detail, what
between employers and employees
taken.
is meant by safety in the
in
workplace
An OHS committee is made up of both employer
workplace. Use examples
safety. The report introduced the
and employee representatives. Regulation 24
to illustrate your answer.
notion of individual workplace safety
of the Occupational Health and Safety Regulation
2 Outline the elements
order
to
improve
committees. More importantly, the
2001 (NSW) states that the number of employer
that must be proved to
report recognised that workplace
representatives must not exceed the number of
establish negligence.
safety was the responsibility not
employee representatives. The committee can
just of the employer but of everyone
investigate any matter that may be a risk to health
within the workplace.
and safety in the workplace. Inspectors from
3 Dene and explain the role

of workers compensation
and injury management.
4 Discuss employees
390
the WorkCover Authority of NSW can also visit

EMPL OY EES R O L E I N
workplaces and are authorised to investigate a
statutory duties in relation
WOR K PL AC E S AF ETY
wide range of safety-related activities. Their powers
to occupational health and
The Williams Report recommended
include prohibiting any further work and imposing
safety.
the codication of common law
on-the-spot nes for any breaches discovered.
Non-legal responses
The ACTU has played a major role in lobbying
governments to strengthen workers rights to a safe
workplace. In 2009, it launched a media campaign
entitled Dont Risk Second-Rate Safety, with the
aim of ensuring that any new harmonised set of
OHS laws would not compromise existing laws
and standards protecting workers. The campaign
was a response to new legislation under which
the states and territories would retain separate

legislation, but agree to base their respective laws
on a national model: in other words, the same law
would be passed separately in state, territory and
federal jurisdictions.
Safe Work Australia is an independent statutory
body established in 2009 to improve occupational
health and safety and workers compensation
throughout Australia. It provides advice to the
government concerning workplace health and
safety issues. In February 2010 it began work on
the development of regulations to accompany the
model OHS law.

system
The introduction of reforms to occupational
health and safety legislation and the emphasis
Figure 13.11 WorkCover provides workers compensation and

rehabilitation benets to injured workers and investigates and
monitors workplace health and safety issues.
on preventive measures (such as educating

employees and employers, making them more
negligence when a worker contracted asbestosis
aware of workplace issues and imposing a mutual
while working for a Hardie subsidiary (see Briggs v
responsibility on employers and employees for
James Hardie & Co. Pty Ltd (1989) 16 NSWLR 549)
workplace safety) have reduced the number of
arguing that the subsidiary was responsible. In a
claims and the severity of workplace injuries.
similar case where a parent company attempted
However, there are times when the legal res-
to avoid its liability (Barrow & Heys v CSR Ltd &
ponse is inadequate in protecting victims and
Midalco Pty Ltd (unreported), Supreme Court of
their rights. The legal system has acted to make
Western Australia, 1988), CSR stripped its sub-
companies more accountable for damages to
sidiary Midalco of most of its assets as a way of
employees in the course of their employment
minimising a possible compensation payout. In
during the manufacture of their products. James
both these cases the companies were held liable
Hardie was a company that mined asbestos and
and compensation was paid to the victims.
manufactured and distributed various products
With the increasing number of asbestos victims,
containing it, including building products, in-
court claims and increasing public pressure, the
sulation, pipes and brake linings. In 1989
government enacted the James Hardie (Civil Penalty
James Hardie attempted to avoid its liability for
Compensation Release) Act 2005 (NSW). The Act
harmonised
legislation
statutes in two or
more jurisdictions
which deal with
certain matters in
the same way
391
required Hardie to establish a compensation fund,
injury and disease is estimated at over $50 billion
which would provide monetary compensation
each year. The cooperation of governments,
for asbestos victims well into the future. The
unions and employer associations has thus far
Act attempted to protect future victims rights
proven to be the most effective means of reducing
to compensation by creating a $4.5 billion fund,
the number of deaths, injuries and illnesses,
and included provisions to stop Hardie from
although it has been argued that a greater willing-
restructuring its operations to distance itself from
ness to impose statutory regulation of business is
its manufacturing and mining divisions, thereby
needed.
avoiding liability.
Unfortunately the Act failed to properly protect
victims rights. In 1998 Hardie applied to move
the parent company to the Netherlands. The NSW
Issue 3: Termination of
employment
Supreme Court agreed, but required Hardie to
Termination of employment may occur as a result
deposit $1.9 billion into the asbestos fund. At the
of the employee leaving a job of his or her own
same time, Hardie transferred $2 billion from its
accord, or the employer asking the employee to
Australian subsidiaries to the parent company in
leave. Termination can occur in a number of ways:
the Netherlands and in 2003 was able to separate
s resignation
itself entirely from its subsidiaries in Australia,
s retirement
resulting in the fund having insufcient money
s dismissal
to pay compensation. It was only after intense
s retrenchment.
media coverage and public outcry that Hardie

shareholders approved the compensation and
the Asbestos Injury Compensation Fund was
established in 2007.
Legal and non-legal

responses
Several of Hardies executives were found

to have acted illegally in an effort to minimise
Legal responses
Hardies liability. The nes ranged from $30 000

to $350 000. Despite the intense media coverage,
RE SI G NATI O N
legal battles and government intervention, Hardie
When an employee wishes to leave a job, he or she
announced that the asbestos fund was almost out
can resign. The procedure to follow when resigning
of money. In 2009, Hardie began legal action for
and the conditions imposed on resignation are
the recovery of money paid to a worker who had
usually contained in an enterprise agreement or
made a successful compensation claim, arguing
award, or within the contract of service. Usually a
that the mans employer, Ipswich Council, was
person intending to resign must give notice: that
negligent in protecting its employee from asbestos
is, inform the employer of ones intention to leave
and that the council should share liability for the
the job. The employee may be required to give two
compensation.
to four weeks notice or an amount of time that

is seen as reasonable. Notice is usually in writing.
392
Conclusion
An employee who does not give reasonable notice
Workplace deaths and injuries have tragic conse-
may be in breach of the contract of employment
quences for victims and their families. In addition,
and could be sued by the employer.
economic losses from work-related deaths, injur-
Constructive dismissal occurs when a worker
ies and disease impose a heavy burden on the
resigns because conditions at work leave him
Australian economy. The total cost of workplace
or her no alternative but to do so. This may be
conduct of the employer that is designed to force
for the period of notice and immediately leave the
the employee to resign. For example, a worker
workplace rather than continue to work during the
may resign as a result of sexual harassment at
period of notice.
work, which the employer has failed to act upon

Dismissal without notice
the employee to sue the employer for wrongful
An employer may dismiss an employee without
dismissal or unfair dismissal.
notice. Dismissal without notice is also referred

to as summary dismissal or immediate dismissal.
R E TIREM ENT
Under common law, an employer can summarily
A person retires when he or she voluntary leaves
dismiss an employee under any of the following
a job, usually due to age or health issues. Over
circumstances:
the last few years the Australian government has
s the employee is extremely incompetent
attempted to encourage individuals to continue
s the employee has committed an act of serious
working by removing the statutory retirement

age for many areas of employment. Some areas
misconduct
s the employee has acted in a certain way, despite
of employment do have mandatory retirement
being warned not to do so.
ages, for example judges (70 years of age) and
In the last example, the number of warnings
individuals employed under federal awards such
required may vary slightly between individual
as airplane pilots (65 years). Many Australians
workplaces. However, usually three warnings must
now choose to continue to work into their sixties,
be given. In this instance, each time a warning is
moving from full-time to part-time or casual
given (usually in writing), the employer is required
employment.
to make it clear that the employees action was
wrongful dismissal
termination of
employment that
constitutes a breach
of the employment
contract, an award or
a statute
unfair dismissal
under the Fair Work
Act 2009 (Cth) s 385,
termination of
employment for
reasons that are
harsh, unjust or
unreasonable, as
found by Fair Work
Australia
and halt. Constructive dismissal may entitle
unacceptable, and to provide counselling for the

DISM ISSAL
worker. The counselling should have included an

explanation of what is expected of the employee,
Dismissal with notice
and assistance in the form of retraining or
An employer can dismiss an employee with
additional training.
notice, provided the dismissal is not harsh, unjust
Under s 388 of the Fair Work Act 2009 (Cth),
or unreasonable. In considering whether a dis-
small businesses employing fewer than 15 full-
missal was harsh, unjust or unreasonable, Fair
time employees are covered by a Small Business
Work Australia must take into account whether
Fair Dismissal Code. Summary dismissal or
there was a valid reason for the dismissal, related
dismissal without notice may be considered fair if
to the persons capacity or conduct, including
the employee committed fraud, theft or violence.
OHS considerations, and whether the person was
Under the code, all other dismissals maybe
notied of that reason.
considered fair if the employee was warned and
The period of notice of dismissal that must be

given is usually in the contract of employment,
given the opportunity to respond to the warning

and correct the problem.
award or enterprise agreement. For casual workers

the period of notice may be one hour, while for
Unfair dismissal
other workers it may be two weeks or more. An
If a dismissal is harsh, unjust or unreasonable,
employee who is dismissed is entitled to be paid for
the employee can le a claim of unfair dismissal
the period of notice of the dismissal. An employee
with Fair Work Australia (FWA) (or the NSW IRC if
who is dismissed may ask for pay in lieu of notice.
he or she is a state or local government employee
In this instance, the employee chooses to be paid
in NSW). Remedies available under the Fair Work
393
Act 2009 (Cth) include reinstatement, in which the
Section 14 of the Employment Protection Act
employee is re-employed. Monetary compensation
1982 (NSW) gives the NSW Industrial Relations
may also be sought.
Commission wide-ranging powers where state or

local government employees are retrenched.
Unlawful termination
In the late 1990s, over 3000 Australian workers
Section 772 of the Fair Work Act 2009 (Cth) pro
lost an estimated $30 million of entitlements,
hibits dismissal of an employee on the following
along with their jobs, because their employers
grounds:
went bankrupt and had insufficient capital to pay
temporary absence from work due to certain
the employees their entitlements. Unions agitated
illnesses or injuries
very strongly for both the state and federal
trade union membership or participation
governments to establish some means to protect
non-membership of a union
worker entitlements. Today, when a firm is facing
acting as, or seeking office as, an employee
bankruptcy, employee entitlements are one of the
representative
filing a complaint or action against an employer
involving alleged violation of laws
first obligations that must be protected. Employees

who have lost their jobs as a result of their
employers bankruptcy may apply to the General
race, sex, sexual orientation, age, disability,
Employee Entitlement and Redundancy Scheme
marital status, carers responsibilities, preg
(GEERS) for basic entitlements such as unpaid
nancy, religion, political opinion, or national
wages, unpaid leave and long service leave and upt
origin
to 16 weeks unpaid redundancy entitlement.
absence from work during parental or mater

nity leave
temporary absence from work for the purpose
The Corporations Law Amendment (Employee

Entitlements) Act 2000 (Cth) was passed to make it
illegal for companies to alter corporate structures,
of voluntary emergency service.
their accounts or their procedures in a way that
If a private conference between employer and
would allow them to avoid paying their workers
employee, initiated by FWA, is unsuccessful in

resolving the matter, the employee can apply to
the Fair Work Ombudsman or the Federal Court.
entitlements.
In 1984, the Australian Industrial Relations
Commission (AIRC) handed down a decision
regarding redundancy. This decision is referred
retrenchment
the loss of a job
because there is no
longer a job for the
employee to do
394
RETRENCHMENT
to as the Termination Change and Redundancy
Retrenchment occurs when an employee loses his
Case (TCR Test Case). Employers of more than 15
or her job because there is no longer a job for that
workers must consult with staff if the introduction
employee to do. When the job that person used to
of new technology will reduce the number of
do disappears, the employee becomes redundant.
workers needed and thus lead to redundancies.
Redundancy has become a major area of dispute,
The AIRC decided that there should exist a
as the real reason for the loss of jobs in an econo
minimum redundancy package. A redundancy
mic downturn may be the need to reduce costs.
package may include monetary compensation,
There is protection for redundant employees
assistance in finding other employment, retraining
in both federal and state legislation. Section 119
and counselling. It also held that, in addition to the
of the Fair Work Act 2009 (Cth) sets out minimum
usual period of notice of dismissal, a worker should
rates of redundancy pay. The amount of payment
be given four weeks notice that he or she will be
owed depends on the length of service minimum
retrenched. Retrenched workers may be given one
amount is four weeks pay, increasing to a
paid day of leave during each week of notice in
maximum of 12 weeks.
order to look for another job. Employees who are
aged over 45 and have worked for the employer for
payments. There have been suggestions that
two or more years can be given one weeks extra
larger workplaces should also be excluded from
notice as well as the four weeks retrenchment
making redundancy payments, due to the nancial
notice. Allowing for this extra notice for those aged
burdens such payments place on employers.
Figure 13.12 Legislation provides protection for employees who are retrenched for technological, economic or
restructuring reasons.
over 45 years was considered necessary because

those individuals may nd it more difcult to
secure another job.
The Fair Work Ombudsman has now taken over
the role of investigating and hearing complaints
regarding unpaid redundancy entitlements.
As well as normal termination payments (which
include paid leave not taken, superannuation and
R EVI EW 1 3 . 1 5
1 List and explain the various ways in which
employment can be terminated. Identify
which of these would be considered
voluntary.
wages and overtime owed), a retrenched worker
2 Under common law an employer can dismiss
may receive extra redundancy payments. These
an employee. Outline the procedure that
additional payments reect the number of years
must be followed and list the grounds
worked and current salary. For example, on top of
available for dismissal.
his or her termination pay a worker may be paid
3 Discuss whether or not an employer should
one weeks salary for every year worked, up to an
have the right to summary dismissal of an
agreed limit.
employee.
Small businesses employing 15 or fewer employ-
4 Discuss how federal legislation protects the
ees are excluded from redundancy legislation,
rights of redundant employees and whether
meaning they do not have to provide redundancy
this protection has been adequate.
395
Non-legal responses
Conclusion
Industry interest groups lobby governments to
Recently, a major means of changing the law
inuence policy direction or legislation, other
relating to dismissal has been through a change
groups act on behalf of their members to promote
of government and legislative reform. Achieving
the objectives of their group, and there exist
protection for employees against retrenchment
groups that are motivated by concerns for the
continues to challenge trade unions and other
general welfare of workers and their families and
advocates of workers rights, as the global economy
the protection of workers rights.
and the power of domestic and multinational
Groups that lobby on behalf of their members
corporations raise formidable hurdles.
include the ACTU and the major industry associations representing employers interests, such
as the Australian Chamber of Commerce and
Issue 4: Leave
Industry. One role that these two groups perform is
Leave is a fundamental right of employees and
presenting arguments in test cases that may affect
can be found within ILO conventions and UN
legal entitlements and obligations of employees
treaties. Minimum leave entitlements are included
and employers. Other groups, such as the Equal
in all modern awards and enterprise agreements
Opportunity for Women in the Workplace Agency,
and are protected under both state and federal
work with employers to advance the interests
legislation.
of particular groups of workers and to address
The types of leave available include:

s annual leave a period of paid holiday time to
inequities in legal entitlements.

Non-government organisations such as the
which an employee is entitled each year
Salvation Army provide training and education
s long service leave an additional period of
opportunities as well as counselling and welfare
holiday time, provided in recognition of a long
support to those struggling to nd employment.
period of service to an employer

s sick leave time off while ill

system
purpose of voluntary emergency management
A number of factors inuence the ways in which
activity, such as service with a re-ghting or
the law responds to issues involving dismissal and
rescue organisation, and for jury service

s parental (maternity and paternity), family, and
redundancy. These include:

s Australias
obligations
under
international
treaties
adoption leave
s carers leave time off to provide care to a
s public opinion
member of ones immediate family.
s pressures arising from global and national
The AIRCs decision in the Maternity Leave
economic circumstances
s the government of the day, its labour policies
396
s community service leave time off work for the
Test Case of 1979 decision established employed

mothers right to 52 weeks unpaid maternity leave.
and afliations.
In 1985 the AIRC extended this right to adoptive
Under WorkChoices, people working in a busi-
mothers, and to fathers in 1990. Although unpaid
ness employing fewer than 100 employees could
parental leave could be found in awards, it was
be dismissed for no reason. Those working in
not until 1998 with the passing of the Industrial
larger businesses could also be unfairly dismissed
Relations Act 1988 (Cth) that it was included in
on grounds of operational reasons. The Fair Work
legislation. In 2005 the AIRC Family Provisions Test
Act 2009 (Cth) abolished these provisions and
Case established the right to request an extension
introduced some safeguards for employees of
of leave and to return to work on a part-time basis.
small businesses.
This was later extended to part-time and casual
employees (who must be continuously employed
to employees for many years, the same cannot be
for more than 12 months).
said of paid parental leave. Moreover, it has been
Unpaid parental leave became one of the ve
seen as an entitlement of concern only to women,
minimum statutory entitlements of employees
as traditionally it was mothers who bore the bulk
under WorkChoices, but it removed the return
of the responsibility for child care. Mens higher
to work guarantee. A womans return to work
wages and greater career opportunities, nancial
became dependent on her employers decision.
necessity within families, and social expectations
The National Employment Standards (NES)
have been mutually reinforcing factors making
established under the Fair Work Act 2009 (Cth)
it difcult to advocate equal parental leave
retained the WorkChoices provisions for parental
entitlements for fathers and mothers, concurrent
leave, but re-established the right to return to
parental leave for both parents, or other legislative
work. At the end of the period of leave, an employ-
incentives to make parental leave an issue for
ee is entitled to return to the position held prior to
working parents of both sexes. Parental leave for
leave. If the position no longer exists, the employee
both men and women will not, by itself, solve the
has the right to be employed in a similar position,
gender inequities, though it would be a good start;
of the same status and pay.
other issues of high priority include the problem
Figure 13.13 The Maternity Leave Test case (1979) decision established the right of employed women to 52 weeks
unpaid maternity leave.
of low value placed on certain types of labour
Legal and non-legal

responses
and correspondingly low pay, and the difculties

for business posed by employee parents need for
exible hours or part-time work.
The connection between work and family has
Even on maternity leave, Australia has not
become an increasingly important issue. Although
been a world leader in providing support for
annual and long service leave have been available
work ing parents. Despite public criticism the
397
federal government refused to ratify the ILOs
but many companies discourage employees from
Maternity Protection Convention of 2000, which
accumulating large amounts of annual leave. Part-
recommended 14 weeks paid leave. The govern-
time employees have the same entitlements but
ment argued that paid maternity leave should be
accumulate them on a pro rata basis.
decided on an individual basis by the employee

and the employer.
Long service leave for employees in the NSW

industrial law system is governed by the Long
The recent announcement that 18 weeks paid
Service Leave Act 1955 (NSW). Two months long
leave for a parent earning less than $150 000 per
service leave is available after 10 years continuous
year will be available from 2011 heralds a gradual
service with the same employer. For each sub-
move by Australia to adopt world standards.
sequent ve years completed, the employee is
The World Health Organization recommended a
entitled to an additional one months leave. Long
minimum of 16 weeks; the ILO now encourages
service leave is paid according to the individuals
governments to provide 18 weeks. However,
normal wage prior to leave, excluding penalty
even though Australia has moved to 18 weeks,
and overtime rates. Leave can be taken prior to
it still lags behind other OECD countries. France
completing 10 years service. If the employee
(1626 weeks), Germany (14 weeks) and Norway
leaves his or her job prior to taking long service,
(18 weeks) provide for maternity leave paid at
he or she will receive payment for the untaken
100 per cent of the employees wage. The United
leave.
Kingdom (26 weeks) provides for 90 per cent of

the employees wage. In contrast, the rate payable
PA RENTA L L E AV E
in Australia is set at the current federal minimum
The NES contain similar minimum parental
weekly wage of $543.
leave provisions to those that existed under the
Periods of paternity leave are still much shorter
Workplace Relations Act 1996 (Cth), except that it
than for maternity leave, worldwide. On average,
has been extended to both male and female same-
OECD countries provide 18 weeks paid maternity
sex couples. Parental leave can be taken for up
leave and two weeks paternity leave. However,
to 52 weeks (unpaid) by either the mother or the
because of the short period of absence, workers on
father. Generally, only one parent may be on leave,
paternity leave often continue to receive full wage
other than a concurrent period of three weeks. For
payments. In some countries, father-specic leave
parents who are adopting, the primary carer is
entitlement is part of the parental leave scheme,
entitled to 52 weeks unpaid leave and two days
rather than a separate right. France and Spain
pre-adoption leave.
allow both parents to stay at home until their
Under the NES, employees can request an
childs third birthday, and return to their previous
extension of unpaid parental leave for up to 12
jobs or comparable ones.
months. The employee must have already taken

12 months unpaid leave and the additional leave is
Legal responses
a continuation of leave. At the end of the leave, the

employee is entitled to return to the same position
AN N UAL AN D OT H ER L EAVE
398
he or she held prior to leave.
Under the National Employment Standards (NES),
The federal Paid Parental Leave (PPL) scheme
employees are entitled to four weeks paid annual
will commence in 2011. The scheme provides
leave, 10 days paid sick or carers leave, two days
eligible parents up to 18 weeks of paid leave
unpaid compassionate leave or carers leave as
(capped at the Federal Minimum Wage currently
required, and up to 12 months unpaid parental
$543 per week). To be eligible, the primary carer
leave. Annual and personal leave can accumulate
of the child must be in paid employment and earn
less than $150 000 per year. If a parent returns
cost, lack of adequate replacement staff during the
to work before taking all of his or her PPL entitle-
leave period, the effect of the leave on efciency,
ment, the unused part may be transferred to
and the effect on customer service.
another person (usually the other parent) who

covers the self-employed, contractors and casual

system
employees.
Leave has become an important issue. More than
meets eligibility requirements. The scheme also
the care of someone else. The economic need or
The idea of paid parental leave is not new. In
personal choice of both parents to work and an
2001 the Australian Human Rights Commission
increase in the number of single-parent families
(then ofcially titled the Human Rights and Equal
means that in a majority of families, all of the
Opportunity Commission) released a discussion
adults are employed. The workplace has had to
paper, Valuing Parenthood. The paper argued
become more exible to meet the demands of
that womens general health and well-being were
a changing workforce. The number of people in
adversely affected by the economic instability
casual employment has also meant that their need
resulting after the birth of a child. The ILO
for leave entitlements cannot be dismissed.
(Convention 183) and the UN Convention on the
The Australian Parliament has and is attempting
Elimination of All Forms of Discrimination Against
to meet these needs through legislation providing
Women also promoted paid leave to help women
greater entitlements for working families. While it
return to the workforce after childbirth. The ACTU
must also respond to the concerns of the business
has, over the past 30 years, lobbied Australian
community, the progress made by other countries
governments to provide greater assistance in the
suggests that the global economy not only should
form of parental leave.
but can accommodate the social necessities of the
The Family Provisions Test Case [2005] AIRC

692 prompted the Commonwealth government
5 million Australians have responsibilities for
Non-legal responses
people who constitute the labour element in the

production of goods and services.
to include new leave provisions in awards. These

included parental leave, exible working hours,
Conclusion
emergency family leave and personal or carers
Issues relating to leave, such as
leave. The ACTU had argued for these inclusions
demographic changes, will continue
over a signicant period. Industry groups had
to be driving forces for law reform.
R EVI EW 1 3 . 1 6
1 List and explain the
different forms of leave
available.
opposed elements of the ACTU case. Industry
In the future the government may
2 Why has leave become
groups suggested that the nancial burden of
have to consider extending leave and
an important issue?
childbirth should be with the government, arguing
creating more exible workplaces, as
3 To what extent should
that the lack of appropriate and affordable child
more Australians age and increasing-
the government provide
care facilities, rather than a lack of paid time off,
ly need the support of their families.
support to working
is a real cause of why women often do not return
Changes to parental leave focusing
parents?
to work. While an award clause was introduced
only on mothers have raised issues of
4 Discuss whether or not
giving employees the right to request that their
equity, as many families want fathers
employers should be
employers allow them to extend the one years
to have an equal role in caring for
expected to contribute
unpaid parental leave to a second 12 months,
their children. The capping of leave
to the PPL scheme and
return to work part-time, or extend the existing
payments under the PPL at the federal
provide parents with
period of unpaid leave, an employer had the right
minimum wage is a second issue of
additional nancial
to refuse on reasonable grounds, which included
concern that will require resolution.
support.
399
C hap ter s umm ary

C h ap t e r su mm a r y t as ks
400
s Workplace law regulates the relationship

between employees and employers, ensuring
that the rights of workers are protected and
that both employees and employers comply
with their obligations.
s Labour laws began to develop during the
Industrial Revolution in Britain, and government intervention in employment began to
replace laissez-faire policies, which assumed
that parties negotiating an employment
contract had equal bargaining power.
s Conciliation and arbitration have been at the
centre of Australian industrial relations law
since 1904.
s The Australian Constitution gives the Federal
Parliament the power to make laws to settle
interstate industrial disputes, but broader
industrial powers were shared with the states
until they all (apart from Western Australia)
referred their powers to the Commonwealth
between 1996 and 2009.
s A contract of employment is a contract of
service between an employer and employee,
which provides specic rights and imposes
specic duties on both parties. By contrast, a
contract for services is an agreement to do
work for an agreed fee, but the worker is not
employed by the other party.
s All contracts of employment contain both
express and implied terms. Examples of
implied terms include an employers duty to
provide a safe working environment, and an
1 Why is there an emphasis on consensual forms

of dispute resolution rather than arbitration?
2 Discuss the advantages of being employed
under a contract of service rather than having
a contract for services. Use appropriate
examples to support your discussion.
3 Explain the importance of injury management
programs.
4 Evaluate the effectiveness of the law in
protecting and enforcing the rights of
employees and employers.
5 Assess the effectiveness of the law in
responding to the changing needs of the
workplace and in resolving disputes between
employees and employers.
employees duty to obey lawful directions of

the employer.
s Australias industrial relations framework includes
industrial awards and enterprise agreements.
The federal system covers most employees in
Australia, but NSW retains legislative powers
relating to state and local government
employees.
s In their judicial role, Fair Work Australia and the
NSW Industrial Relations Commission hear
disputes, resolving issues through a process of
negotiation and conciliation to achieve a con sensual solution. These bodies also have the
administrative functions of setting conditions and
wages and approving enterprise agreements.
s The Fair Work Ombudsman can investigate and
enforce breaches of the Act, awards or
agreements. It also provides education, advice
and assistance.
s The National Employment Standards comprise
10 minimum standards for employees pay and
entitlements. All awards, agreements and contracts of employment must meet these
standards.
s Trade unions represent workers interests and
work to achieve better conditions and pay.
s Occupational health and safety is regulated by
state legislation such as the Occupational Health
and Safety Act 2000 (NSW). Workers compensation is a compulsory insurance scheme to
compensate employees injured at work.
1 Critically analyse the interaction between

legislative changes and changes in social
attitudes with reference to parental leave.
2 Discuss the tension between the rights of
employees and the needs of Australian
businesses and how governments have
addressed these competing concerns.
3 Outline the role that trade unions have played
in obtaining entitlements for workers, and
discuss the question of whether unions are
still relevant in todays economy. Justify your
answer.
4 Explain why legislation is necessary to protect
peoples health and safety at work, providing
examples. How does technology give rise to
the need for legislative change?
4 In order not to be found negligent, an

employer must
a hire only competent staff who require no
training or supervision
b provide all employees with safe transport
to work
c provide a safe working environment and
equipment
d require employees to provide their own
equipment and a certicate of safety
5 Protected industrial action is available
a during negotiations for an enterprise
agreement, if it does not threaten
individuals personal safety
b only after negotiations for an enterprise
agreement have concluded
c only to employees who are not members
of a union
d only if conciliation has failed
M ul ti p l e c hoi ce q ues ti ons

E xt en d ed re sp o ns e q u es t i ons
1 Under the Occupational Health and Safety

Act 2000 (NSW) s 13, an employer has the
duty to consult with their employees allowing
that affect their
a health, safety and welfare at work
b childrens health, safety and welfare
c health, safety and welfare at home as well
as at work
d child care arrangements
2 Non-voluntary termination of employment
includes:
a unfair dismissal, retirement and long
service leave
b resignation, redundancy and dismissal
c resignation, retrenchment and retirement
d summary dismissal, retrenchment and
dismissal with notice
3 A valid enterprise agreement requires
a equal bargaining power between the
parties
b trade union representation for employees
c approval by Fair Work Australia upon
completion
d a greenelds clause to cover employees
commuting to work from rural areas

your response.
401

cooperation and resolving conict in the
workplace
s Legislation at both state and federal level

has created industrial relations processes
with the aim of minimising conict within the
workplace as well as encouraging cooperation
between employers and employees.
s Enterprise agreements encourage employers
and employees to negotiate satisfactory work
arrangements on an individual workplace
level.
s Occupational health and safety (OHS)
legislation also emphasises employees duty
to take reasonable care for the health and
safety of others in their workplace, and their
participation in maintaining a safe work
environment through representation on OHS
committees.
s Employees and employers are encouraged
to resolve disputes about pay and conditions
through negotiation and conciliation. All
modern awards and enterprise agreements
contain dispute resolution procedures, which
must be followed before taking the matter
further. It is only when discussions break
down that the dispute will go to arbitration.
s The Fair Work Ombudsman is able to
investigate complaints within the workplace
and make an order resolving the conict.
s Fair Work Australia and the NSW Industrial
Relations Commission have a judicial role in
settling disputes. The Federal Court and the
Federal Magistrates Court have industrial
divisions that hear workplace disputes and
appeals.
s Effective industrial laws require that

governing bodies be given the resources and
authority to enforce compliance. Enforcement
also includes the availability of penalties that
will deter non-compliance. Criminal sanctions
are sometimes more effective than the
imposition of a ne.
402
s In order to remove ambiguity and ensure

enforceability, employee and employer rights
and duties have been clearly dened in
legislation, as well as the penalties that can
be imposed for any breaches of the law. For
example, under the Occupational Health and
Safety Act 2000 (NSW) s 13, an employer has
the duty to consult with employees to enable
affecting their health, safety and welfare at
work. Failing to do so results in heavy nes.
s Mutual obligations and employees active
involvement in maintaining safety at work
have been shown to be a way to increase
compliance with OHS legislation.
Laws relating to the workplace as a reection
of changing values and ethical standards
s All legislation is subject to review, including

the opportunity for members of the public
to comment on proposed amendments. This
enables legislation to reect current social
values, attitudes and issues.
s A national review into model OHS laws is
concluding in 2010. The model laws will
create uniform OHS laws in all Australian
jurisdictions. The process of review and public
comment, including publication of discussion
papers and establishment of reference
groups, aimed to provide all interested
parties with the opportunity to have a voice
in the drafting, and to ensure that existing
OHS laws are not undermined. The ACTU has
expressed concerns in this respect.
s Various employer groups, including the
Business Council of Australia (BCA), have
been critical of elements of the governments
Fair Work reforms, arguing that the new laws
unfairly favour unions. Some advocates of
workers rights have argued that the laws do
not go far enough.
s The law needs to reect prevailing community

standards and expectations. Laws that are in
conict with current attitudes are less likely
to be effective. Individuals may engage in
civil disobedience, openly opposing the laws,
or may simply ignore the laws. To determine
the best means of ensuring that laws reect
community standards and expectations,
legislators may call for public submissions
before debating issues in parliament. They
are, in the end, accountable to the electorate
for the laws that are passed.
s Those responsible for law reform aim to
balance the needs of all stakeholders while
ensuring that the law is consistent with
Australias international obligations.
s While the laws passed may reect the views
of the majority, this does not mean that the
rights of minority groups are secondary.
Numerous laws have been passed protecting
individual rights, which is seen as necessary
for the protection of the entire community.
For example, laws that make discrimination
illegal protect the rights of all employees.
s The General Employee Entitlement and
Redundancy Scheme (GEERS) was established
to protect workers entitlements in the event
that their employer became bankrupt.
s The protection of individual rights with
respect to occupational health and safety can
be seen in laws prohibiting smoking in the
workplace.
s Well-drafted legislation clearly sets out
the rights and duties of employees and
employers, and provides for a process of
resolving disputes.
responses in achieving justice in the workplace
s Employers associations, as well as groups

representing workers interests, lobby
governments to inuence legislation. Nonlegal responses to industrial relations issues
include the activities of unions. The peak
body for unions in Australia, the ACTU, has

argued for an increase in the minimum wage,
equal pay for women, and the eradication of
discriminatory practices in the workplace.
s Other groups, such as Equal Opportunity
for Women in the Workplace Agency, act
to inuence policy and industrial laws in the
promotion of the rights of particular groups.
However, women still earn substantially less
than men. One of the reasons is that they
comprise a large proportion of casual and
part-time employees and as a consequence
do not have the same employment
protections as full-time employees.
s Non-government organisations include social
welfare groups such as the Salvation Army.
They may help individuals nd employment
and provide training, counselling and welfare
support to people seeking jobs.
s Non-government organisations play a varied
role within state and federal industrial
relations. Non-government organisations such
as the Australian Human Rights Commission
can investigate discrimination complaints. If
the complaint cannot be resolved, the matter
may go to court. While the Commission does
not have the authority to enforce its rulings,
for example by imposing a ne or order, its
ndings can be used in a court or a tribunal in
support of the complainants case.
s The International Labour Organization aims
to encourage member nations to undertake
common action in the protection of workers
rights around the world.
s Numerous independent and non-government
researching issues relating to discrimination,
pay inequities and substandard conditions,
for example for outworkers. They may
make recommendations to government or
provide policy advice to relevant government
departments. However, the power of these
groups is limited. How effective they are in
changing government policy is difcult to
determine.
The role of law reform in recognising rights

and enforcing responsibilities in the workplace
403
CHAPTER 14

O pt i o n 5 :
Wo r ld o rd e r
Principal focus
Through the use of contemporary examples, students investigate the
effectiveness of legal and non-legal measures in promoting peace and resolving
conict between states.
25% of course time

s the role of law in encouraging cooperation and resolving conict in the world
s the impact of changing values and ethical standards on world order
s the role of law reform in promoting and maintaining world order
s the effectiveness of legal and non-legal responses in promoting and maintaining
world order.
themes and challenges relating to world order. The summary draws on key points
from the text and links them to each of the themes and challenges. This summary
is designed to help you revise for the external examination.

booklet pages).
404
Cold War
collective security
communal killing
crimes against humanity
dictatorial
ethnic cleansing
genocide
global nancial crisis
globalisation
hegemony
humanitarian intervention
s describe and explain the interaction between

international law and domestic law, particularly in
relation to Australia
s locate authoritative information from a variety of
sources and effectively analyse and synthesise that
information
s examine the role of sovereignty in assisting and
impeding the resolution of world order issues
s identify and investigate these contemporary issues
involving world order and evaluate the effectiveness
of legal and non-legal responses to these issues
interdependence
intergovernmental organisation
(IGO)
international humanitarian law
jus cogens
mass atrocity crimes (mass
atrocities)
militia
multilateralism
non-government organisation
(NGO)
IM PORTAN T IN T ER N AT ION AL IN S TRU M ENTS
Treaty of Westphalia (1648)

United Nations Charter (1945)
United Nations Convention on the Prevention and
Punishment of the Crime of Genocide (1948)
Treaty of Rome (1957)
Treaty on European Union (Maastricht Treaty) (1992)
Geneva Conventions (1949)
Limited Nuclear Test Ban Treaty (1963)
Nuclear Non-Proliferation Treaty (1968)
In July 2009, marketing standards for 26 types of fruit

and vegetables in the European Union were scrapped,
in an effort to cut down on unnecessary bureaucracy.
This move was welcomed by supermarkets, which had
been forced to reject about 20% of produce because it
failed to meet the requirements. It was also cheered by
consumers who failed to see the need to prohibit curly
cucumbers, crooked carrots and ugly apples.
peacekeeping
Permanent Five
state sovereignty
terrorism
The Hague
unilateral
veto
war crimes
world order
O p t i o n 5: Wo rld o rd er
key te r m s
rel evant l aw
o dd l a w

s discuss the concept of world order
s outline the evolving nature of world order
s describe the need for world order, its benets and the
threats to it
s identify key treaties that underpin international law
s describe the various mechanisms by which
international law is created and enforced
s explain the role of international law in encouraging
cooperation and resolving conict
s describe key international and non-government
organisations that contribute to world order
Comprehensive Test Ban Treaty (1996)

Anti-Ballistic Missile Treaty (1972)
(1998)
United Nations Convention Against Torture and Other
Cruel, Inhuman and Degrading Treatment (1984)
Military and Paramilitary Activities in and against

Nicaragua (Nicragua v United States of America),
Merits, 1986 ICJ Rep 14
The rules were introduced in 1989 to ensure

common EU standards. Examples included
Commission Regulation no. (EC) 730/1999, which
required carrots to be rm, not woody, not forked,
and free from secondary roots, and Commission
Regulation (EEC) Number 2257/94, under which
cucumbers had to be at least 5.5 inches long and 1
inch wide, and free from abnormal curvature.
Cha pter 14: Option 5: Wor l d order
405
T h e n a t u r e o f wo r l d o r de r
world order
the activities and
relationships between
the worlds states, and
other signicant nonstate global actors,
that occur within a
legal, political and
economic framework;
an international set
of arrangements for
promoting stability
The term world order refers to the way in which
As world order implies a certain level of peace
global events and circumstances are inuenced
and stability, world order issues are those that
by the major actors in the world. Until the 1990s,
relate to promoting peace and resolving conicts
commentators on world affairs called their dis-
between states. The importance of world order
cipline international relations. Since the advent
as a goal can be seen in the dramatic growth and
of globalisation the term international relations
development of international law over the past 60
relations between nations is no longer broad
years. A major aim of this chapter is to explore the
enough to describe the world. To understand the
role of international law in promoting world order.
world today, it is necessary to look at more than
It is also important to consider the relationships
Cold War
the state of hostility,
without actual warfare,
between the USSR and
its satellites and the
USA and its allies in the
Western world, which
lasted from just after
the Second World War
until about 1991
just the activities of countries.
globalisation
the ongoing
integration of regional
economies, societies
and cultures brought
about by the removal
of restrictions on
international trade,
travel and mass
communication
between political and economic issues. Not only
The term new world order originated in the
are global peace and security prerequisites for
early 1990s in the wake of the optimism at the end
economic stability and social progress for every
of the Cold War. Many world leaders hoped that
nation on Earth, whether rich or poor; material
the end of communism and the Cold War would
disadvantage and inequities have historically led
mark the beginning of a new era in which states
to conict both within and between nations and
would act collectively to address global problems
regions. While international trade, on its face, may
that were beyond the capability of any of them
not appear to be a world order issue, differences
to solve individually. Both former US president
in the various countries laws relating to workers
George Bush (senior) and former president Mikhail
and the environment are a factor in a countrys
Gorbachev of the USSR used the phrase to dene
attractiveness as a factory site for multinational
the emerging spirit of cooperation between the
corporations. There is thus a very real potential for
superpowers, which they hoped would continue.
labour exploitation, environmental degradation

and danger to human health, with attendant,
though usually indirect, risks to international
peace and security.
global nancial crisis

the international
collapse of banks and
credit institutions,
along with devaluation
of many currencies,
a downturn in stock
markets, and decline
in international trade,
caused by a cluster
of factors including
the sudden drop in
property values in the
USA in September
2008
The need for world order

Interdependence and global
threats
Never in history has there been a time like ours,
when the fate of all human beings is so dependent
not just on good governance in individual countries
but also on a healthy global economic, political and
social order. The need for world order has never
been greater due to the high level of interdependence that has resulted from globalisation. As the
recent global nancial crisis has demonstrated,
a nancial problem in one part of the world can
Figure 14.1 With the end of the Cold War,
Mikhail Gorbachev hailed the beginning of a
new world order.
406
have a quick ripple effect across the globe. This

feature of the globalised world has not promoted
stability, but instead has made the world more
vulnerable. A terrorist attack within a countrys
their interests, the vast majority of international
borders, a regional conventional war, an outbreak
treaties, whether in the areas of trade, nance,
of illness in a single area, or mass atrocity crimes
transport or security, are recognised by the parties
committed by a dictatorial regime can have an
as beneting them in some way.
immediate ow-on effect to the rest the world. We

are all potentially vulnerable if things go terribly
wrong on another part of the planet, as the threats
of nuclear war and climate change demonstrate.
The development of
world order over time
The current world order is founded upon two
Benefits of interdependence
principles that on their face seem contradictory:
Despite these issues, the news is not all bad. Those
state sovereignty and multilateralism. State
in the well-off developed world, representing one-
sovereignty is a nation-states legal power and
sixth of the total global population, benet greatly
authority over everything that occurs within it.
from the current world order. Recognising the
Multilateralism is cooperation between multiple
threats posed by interdependence, states have
states for mutual benet or to deal with common
made serious efforts towards cooperation over the
threats. Multilateralism often requires a surrender
past 20 years. The sheer volume of international
of some degree of sovereignty. Both concepts were
law has grown exponentially, and most incredibly,
evident in the 17th-century Treaty of Westphalia.
there is a high degree of compliance with international law. The reason for this level of compliance
State sovereignty
is simply that most international law is created
State sovereignty had its origins in the Treaty of
by consensus. All treaties are negotiated and no
Westphalia, the collective name given to the two
country is ever forced to sign a treaty. Countries
treaties concluded on 2 October 1648 otherwise
agree to binding treaties and commit themselves to
known as the Peace of Westphalia. The treaties
the treaties provisions because of mutual benet.
ended the Thirty Years War within the Holy
While there are always some nations that do not
Roman Empire and the Eighty Years War between
wish to sign up to treaties seen as detrimental to
Spain and the Dutch Republic, and marked the
O p t i o n 5: Wo rld o rd e r
Figure 14.2 Only swift multilateral action ensured that the world averted an economic depression
after the onset of the Global Financial Crisis in September 2008.
mass atrocity
crimes (mass
atrocities)
a broad term for
crimes that fall
into the categories
of genocide, war
crimes, ethnic
cleansing and
crimes against
humanity; this is
the term favoured
by the UN since
it avoids making
distinctions of
whether the crimes
were committed in
war or peace, or as
part of an intrastate
or interstate conict
interdependence
the interconnection
of two or more
states to such an
extent that they are
mutually dependent
on each other
for survival and
mutually vulnerable
to crises
state sovereignty
a nation-states
power and authority
over persons,
things and events
within its territory;
independence from
external control
multilateralism
cooperation
between multiple
states for mutual
benet or
protection from
common threats
407
NY
AUSTRALIA
CHINA
CA
BR
INDIA
UK
INDONESIA
NE
USA
Figure 14.3 International law is like cement

which binds states together. Todays world
order is like a wall that has cemented together
all the states using international treaties and
agreements. If the cement erodes or is broken,
the world order collapses.
Figure 14.4 The Hague in the Netherlands is

the primary headquarters for the UNs judiciary,
playing host to the ICJ, the ICC and 150
international legal organisations.
beginning of the modern concept of states and
yet gradually the hope of multilateral cooperation
modern diplomacy. As European imperialism,
for mutual benet and to prevent war became
trade and ideas spread throughout the world, so
ingrained in Western Europe.
too did the Westphalian concept of the nation-
The rst modern instance of multilateral co-
state. As European empires dissolved, colonies
operation was the Treaty of Westphalia, ending
became states, following the European model. All
a period of religious war in Europe in which ten
international treaties and agreements are based
million people died. The next signicant example
on states exercising their sovereignty and working
of multilateral cooperation was the Concert of
together. Today, states are like the building blocks
Europe, an agreement by the victorious powers in
of the international system and international
1815 after the Napoleonic Wars to prevent future
treaties and agreements are like the cement that
wars between the nations of Europe.
binds them together.
During the 19th century, there was an increasing

awareness by political leaders that the awesome
Multilateralism
conscription
compulsory enlistment
in the military force of a
nation-state
408
destructive power of new weaponry, combined
Multilateral cooperation occurs when nations act
with the introduction of mass conscription and
together for a common purpose. The reason for
fuelled by imperial rivalry and militarism, could
its emergence was, quite simply, survival. From
lead to a war of disastrous proportions. This aware-
the 17th century, the leaders of Europe gradually
ness, along with a violent series of revolutions
began to nd the political will to act together to
and wars between 1848 and 1870, quickened the
stop the cycle of war and violence. Success in this
desire for multilateral cooperation to ensure peace.
endeavour was patchy, and repeatedly the desire
Two peace conferences were held at The Hague,
for peace was overwhelmed by destructive forces,
Holland (now the Netherlands) in 1899 and 1907.
The Hague Conferences acted as a kind of global
to serious aws in its legal framework and a lack
legislature that drew up conventions to limit war-
of political will on the part of the world leaders
fare by various means, such as banning certain
at the time to fully support it. Finally, it was
types of weapons. Also out of these conferences
blatant military aggression by powerful nations,
came an agreement for a Permanent Court of Arbi-
the very thing that the League was designed to
tration to settle international disputes. This court
prevent, that sealed its fate. The League had no
was based in The Hague in Holland.
answer for Japans annexation of Manchuria in

1931, Italys invasion of Abyssinia in 1935, and
nally Nazi Germanys annexations of Austria
1 Explain the concepts of state sovereignty

and multilateralism.
2 Discuss the interaction between these two
and Czechoslovakia by March 1939. By the time
REVIEW 14.1
Germany invaded Poland in September 1939, the

League was all but a distant memory, though as a
legal entity it did linger on until 1945.
concepts.
President Roosevelt and the

creation of the United Nations
The First World War and the
League of Nations
One would think that the resounding failure of
The trend towards multilateral cooperation that had
killed off any further ambitious experiments in
developed in the early years of the 20th century
multilateral cooperation to prevent war. However,
seemed to vanish instantly upon the outbreak of
in the rst dark years of the Second World War,
war in Europe in 1914. The world became divided
at a time when the Nazi war machine seemed
into two armed camps, with nations choosing to
unstoppable as it overwhelmed all opposition in
side with the Allies, led by Britain, or the Central
Europe, another blueprint for a world organisation
Powers, led by Germany. Both armed camps were
was placed back on the agenda. In August 1941,
prepared to ght to the nish and the warring
two experienced world leaders, both of whom
nations of Europe bled themselves dry as they
had been in ofce during the First World War,
unleashed all the horrors of modern technological
met on a battleship off the coast of Canada and
warfare on each other. The pursuit of victory on
drew up a document that was to become the rst
both sides seemed elusive. Meanwhile, there were
step in the creation of a new world organisation.
many people who viewed the war as insanity and
The document, drafted by US President Franklin
argued for a return to multilateralism through
Delano Roosevelt (affectionately known as FDR
the creation of a league of nations. In 1917, US
by his contemporaries) and British Prime Minister
President Woodrow Wilson committed the United
Winston Churchill, has since become known as
States to joining the war on the side of the Allies
the Atlantic Charter. This was an eight-point plan
on condition that the league of nations was
in which they pledged themselves:
established at the end of the war. At the 1919 Peace
s after the nal destruction of the Nazi tyranny
Conference its establishment was agreed. The
to see a peace which will afford to all nations
main aim of the League of Nations was to prevent
the means of dwelling safely within their own
war; international peace would be guaranteed by
boundaries, and which will afford assurance
the principle of collective security.
that all the men in all the lands may live out
The creation of the League of Nations based

on the principle of collective security was a sub-
the League of Nations in the 1930s would have
their lives in freedom from fear and want

(6th point)
stantial act of multilateral cooperation. The League
s to the abandonment of the use of force and the
achieved some notable successes in the 1920s.
the establishment of a wider and permanent
However, the League was doomed to failure due
system of general security (8th point).
collective security
the principle based
on the agreement of
a group of nations not
to attack one another
and to defend each
other from attack from
others; the idea is
that an attack on one
country is an attack
on all
409
to advances in technology combined with changed

approaches to strategy. Biological weapons (such
as disease-causing agents capable of triggering a
global pandemic) and nuclear weapons are two
types that threaten the existence of all human life
(in the rst instance) and even the existence of all
life on the planet (in the second).
Interstate
C O NV E NTI O NA L WA R
Conventional war is the use of large, well-organised

military forces. During such a war, soldiers wear
Figure 14.5 In August 1941, US President Roosevelt and Prime Minister
Churchill wrote the Atlantic Charter which became a blueprint for the
post-war world.
clearly identied uniforms and there is a clear

command structure. The majority of wars in history have been conventional. Both World Wars
were conventional wars, as were the Korean War,
The Atlantic Charter was a visionary attempt
Vietnam War, Gulf War, IranIraq War, the two Gulf
to avoid the mistakes of the past, to place on the
Wars and many more. From the beginning of the
record early in the dark days of the Second World
20th century technological advances have made
War exactly what the Allies were ghting for, and
each successive conventional war more and more
to bring about the just and lasting peace that had
deadly. It was interstate conventional warfare that
eluded the peacemakers at Versailles in 1919.
the drafters of the UN Charter had in mind when
However, FDR was also a realist. He built biparti-
they wrote the rst words of the preamble: We
san support within the American political system
the peoples of the United Nations determined to
for a new world organisation, and he and Churchill
save succeeding generations from the scourge of
worked hard with their wartime allies to secure
war, which twice in our lifetime has brought un-
their support. The name United Nations was rst
told sorrow to mankind ....The provisions for the
used on 1 January 1942, when 26 nations pledged
use of armed force in Chapter VII of the Charter
their governments to ght for a common purpose
were designed to deal with an aggressive attack
against the Axis powers. Detailed planning for the
by one state against another: that is, conventional
new world organisation proceeded throughout
interstate war.
the following three years of the war. The United

Nations Charter was signed in San Francisco by
50 nations on 26 June 1945, and on 24 October
1945 the United Nations became a legal entity.
The second try at a grand scheme for multilateral
cooperation had begun.
The nature of conflict:

Interstate and intrastate
Throughout human history, conict has been
a destabilising factor and a constant threat to
world order. Warfare has evolved over time due
410
Figure 14.6 A well-trained infantry soldier is the

backbone of the modern conventional army.
massive cuts were made to the arsenals of both
Nuclear war involves the use of atomic or hydro-
powers. The 1990s saw a new era of cooperation
gen bombs. Since 1945 the number of types of
between these once determined enemies. How-
nuclear weapons has increased. During the height
ever, the election of George W. Bush as US
of the Cold War, the United States and the USSR
President in 2000 saw a revival of American
possessed 50 000 nuclear weapons. The use of just
interest in modernising their nuclear weapons
a few hundred of these would have caused utter
and developing new types, and a weakening of
devastation to the planet. The United States and
the international mechanisms to control nuclear
the USSR ended atmospheric testing of nuclear
weapons. Since 2008 and the election of Barack
weapons with the signing of the Limited Nuclear
Obama as President of the United States, there
Test Ban Treaty in 1963. According to Robert
has been a renewed commitment on the part of
McNamara, US Secretary of Defense from 1961 to
that country to pursuing a multilateral approach
1968, luck has been the major factor preventing a
to nuclear disarmament and to strengthening the
nuclear war in the past 60 years.
Nuclear Non-Proliferation Treaty.
Currently, nuclear weapons are possessed by
There are still 30 000 nuclear weapons in exis-
the United States, Russia, Britain, France, China,
tence. A regional war using nuclear weapons
India, Pakistan and Israel. Both North Korea and
would be devastating not only for the region, but
Iran are suspected of attempting to build nuclear
for the world.
weapons in violation of the 1968 Nuclear NonProliferation Treaty, which prohibits any nation-
C YB ER-WA RFA RE
state that does not already have nuclear weapons
A cyber-attack can direct a carefully engineered
from acquiring or building them. Another major
packet of data towards systems that control essen-
concern since the attacks of 11 September 2001
tial infrastructure, such as power stations, dams,
is that terrorist groups may succeed in acquiring
airports, hospitals, electricity grids or nancial
nuclear weapons.
systems. It can affect:
With the end of the Cold War, tensions between
N U CLEAR WAR
s internet nodes
the USA and Russia decreased dramatically,
s defence systems
nuclear weapons treaties were negotiated and
s networks and computer systems
Figure 14.7 Modern ballistic nuclear missile on display

during a military parade in Moscow, Russia.
Figure 14.8 Countries need to develop defence

systems to guard against cyber-attack.
411
s telecommunications infrastructure
C I V I L WA R
s the stock market
A civil war is a conict between two or more sides
s nuclear power plants
within one country. Prominent examples are
s critical infrastructure such as electricity grids
the American Civil War (186165) and the war
s water supply
in Lebanon in the 1980s. Both the Korean War
s transportation systems
(195053) and the Vietnam War (196475) were
s health infrastructure.
civil wars in that there were two opposing sides in
One of the problems of a cyber-attack is that
each country. These latter two wars also became
it is hard to determine the origin of the attack. It
Cold War conicts by drawing in the superpowers.
may take days after the beginning of an attack to
Some notable examples of places where civil wars
determine the origin of the attack, if that can be
occurred since the 1990s are: Bosnia, Burundi,
done at all. A cyber-attack could be launched by
Cambodia, Congo, Darfur, Georgia, Iraq, Liberia,
terrorists, criminals or states.
Rwanda, Sierra Leone, Sri Lanka, Somalia, Sudan,

Yemen and Kosovo.
C OL D WAR
The Cold War is the name given to the state of
G U ERRI L L A WA R
armed, uneasy peace between the United States
Guerrilla war involves the use of hit-and-run tactics
and the USSR (the superpowers) between 1947 and
and the element of surprise. Guerrilla ghters
1991. It involved rivalry in almost every political,
harass the enemy, hide, retreat and repeat this
economic, military and strategic matter but did
pattern until the enemys army is worn down. Only
not lead to direct war. Direct war was avoided
then will the guerrillas attack with some force.
due to the threat of mutual annihilation if nuclear
Such tactics can bog down a greatly superior
weapons were used. This situation is referred to by
military force. The Vietnam War (195475) is a
historians as the balance of terror.
prime example of a much smaller force, the Viet-
The Cold War did not only involve the super-
cong, using guerrilla tactics against the techno-
powers. Each side called upon its allies to wage
logically superior US forces. Guerrilla war tactics
war with the other superpowers allies in order to
have been used by some armed groups opposing
gain more inuence and to counter the threat from
US occupation in Iraq and Afghanistan.
the other side. The Cold War also paralysed the UN

Security Council, and this dramatically reduced
WA R WA G ED B Y G O V E RNM ENTS
the effectiveness of the UN in dealing with world
A G A I NST TH E I R O WN PEO P L E
Dictatorial regimes often engage in systematic
dictatorial
(of a government)
having unrestricted
authority or power
order issues.
Intrastate
nation of classes of people, or state-sponsored
genocide
the deliberate
extermination of a
national, ethnic, racial
or religious group
The one thing that all of the following forms of war-
terror and death squads. These activities can
fare have in common is that the United Nations
also be classied as war crimes, crimes against
Charter was not written with them in mind. The
humanity or mass atrocity crimes.
412
campaigns of genocide, mass murder, the elimi-
UN Charter focused mainly on provisions to deal
In his 1998 study of the spread of global
with interstate conventional warfare, yet today
democracy, Pax Democratica, James Huntley found
internal conict now outstrips interstate conict.
it useful to describe this kind of warfare waged by
The UN has had to develop approaches to each
a regime against its own people as democide.
of these types of warfare and graft them into
Huntley argued that democide captures the
the UN system. The notable example of this is
essence of this sort of activity, which is the killing
peacekeeping.
of a democracy. The term was coined in 1994 by
Figure 14.10 About one million people were slaughtered in the

Rwandan genocide in 1994.
R. J. Rummel, an international law expert. It does
end of the Cold War in the 1990s. During the Cold
not include military deaths in war or the deaths
War, the superpowers exerted some restraining
of non-combatants killed in attacks on military
inuence on rival groups in countries within their
targets, because under international law, war
political orbit. Following the collapse of the USSRs
deaths are seen as legitimate killing. The term
empire in Eastern Europe, however, there were
democide has not gained the same status as
outbreaks of communal killing in Yugoslavia in the
the term genocide, which is dened by the UN
1990s after it was split up into the states of Bosnia,
Convention on the Prevention and Punishment of the
Serbia and Croatia. Communal killing has also
Crime of Genocide (1948), Article 2.
occurred in the African states of Somalia (1993)

and Rwanda (1994). Since 2004 the international
T E RRORISM
community has been concerned about this type
Terrorism is actions intended to cause death or
of conict in the Darfur region in Sudan. Many
physical injury to civilians and to cause terror,
of these activities may t into the categories of
with the intent of coercing a government or other
crimes against humanity, war crimes or mass
body to meet certain demands. Terrorism has
atrocity crimes. This type of internal warfare often
became a greater global phenomenon since the
spills into neighbouring nations, thus becoming a
11 September 2001 terrorist attacks against the
serious issue of regional security and world order.
United States. Terrorist networks such as Al Qaeda,
United Nations has found it very difcult to deal
which was widely regarded as being responsible
with communal killing.
for those attacks, have loosely connected cells

in many countries. In the 21st century, terrorist
groups display a common characteristic of thinking globally, but acting locally.
R EVI EW 1 4 . 2
1 Explain why an organisation of states was
seen as desirable after the First and Second
C O M M UNAL KILL IN G
Communal killing refers to violence and warfare

within communities, not necessarily perpetrated
by the government. This may be a result of ethnic
World Wars.
terrorism
acts of violence
against a population,
intended to
cause terror and
thereby inuence a
government
communal killing
violence and killing
within communities
Figure 14.9 The policies pursued by President

Robert Mugabe caused untold suffering for the
people of Zimbabwe.
crimes against
humanity
crimes such as
murder, enslavement,
deportation from a
country, torture, rape
and persecution that
occur on a large and
systematic scale
war crimes
crimes such as willful
killing, deportation
or ill-treatment of
civilians, taking
of hostages and
extensive destruction
of property
committed in
interstate and
intrastate conicts
and that are in
violation of the
Geneva Conventions
2 Identify potential and actual objections to

such an organisation.
3 Distinguish between interstate and
rivalries, historical differences, religious dif fer-
intrastate conict, giving examples and
ences or territorial grievances. This type of vio-
identifying potential causes for each type of
lence has been a feature of the world since the
conict.
413
Access to resources as a
source of conflict
in the Middle East is to secure resources for an

economy dependent on a high amount of energy.
The US continues to be Israels staunchest ally
War is the continuation of policy by other means.
partly because of its pivotal position in the Middle
Carl von Clausewitz
East, and has sought good relations with oil-rich
When nations do not get what they want by
Arab states like Saudi Arabia and the Gulf states.
peaceful means, they are often tempted to revert
One major factor in the rst Gulf War (199091)
to war. War has been a constant feature of the
was the American fear that not only would Iraq
human race throughout history. However, for most
succeed in its annexation of oil-rich Kuwait, but
of human history war was also seen as a legitimate
also that it stood poised to invade Saudi Arabia.
and in many cases a desirable way of sorting out
The US viewed the prospect of an enlarged Iraqi
issues between nations. Technological advances in
superstate with control over the vast majority of
the weapons of warfare in the 20th century led to
the worlds oil supplies as an unacceptable situ-
the belief that war was now too deadly to allow to
ation. Similarly, a major factor in the US invasion
happen randomly or without just cause. The desire
of Iraq in 2003 was Iraqs oil. Ridding Iraq of its
to prevent war was the main motivation for the
hated leader, Saddam Hussein, and installing a
creation of the United Nations, and the UN Charter
democratic pro-American government in Iraq
made war illegal except in two cases:
would be in American geopolitical interest.
s self-defence (Article 51)
Other major powers are also very concerned to
s UN Security Council authorisation (Chapter VII).
secure future access to essential resources. China,
While war has continued to wreak destruction
with the fastest growing economy in the world,
around the world since the signing of the UN
is making great efforts to secure gas, coal, iron
Charter in 1945, there has been one signicant
ore and oil contracts as well as food supplies in
change. Nations that go to war are now far more
Australia and around the world.
concerned to give a legal justication of their

actions.
It is highly likely that competition for increasingly scarce resources will become a major source
Despite this, the legal reasons that may be
of conict in the future. For example, many geo-
given by various countries for going to war are
scientists and petroleum industry experts believe
quite often merely a front for the real reasons.
that the production of fossil fuels will reach its
For instance, in the First World War, the warring
peak in the not-too-distant future, and then will
nations claimed that they were ghting for their
decline. This is a major concern since so many of
own survival, in defence of small nations, and to
the products and so much of the economic acti-
preserve democracy. However, the secret treaties
vities in developed economies are dependent on
signed with their alliance partners during the
fossil fuels. Some experts argue that before the
war indicated that they were ghting for more
world reaches crisis point with dwindling fossil
base motives such as territory and wealth. More
fuels, an Oil Depletion Protocol needs to be nego-
recently, the stated public reason for United States
tiated, in order to have a planned and equitable
invasion of Iraq in 2003 to eliminate Saddam
approach to cutting back on the use of fossil fuels.
widely criticised as a sham, concealing an agenda

hegemony
dominance of one
nation over others
for securing American hegemony.
Access to resources
One reason why the United States has so many
military bases around the world and particularly
414
l e ga l l i nk s
Husseins weapons of mass destruction has been

For further information on the
Oil Depletion Protocol, see
www.oildepletionprotocol.org/
getinformed/oildepletion
s Ideological disputes The Cold War was in part
conict. Lack of sufcient food for the people of the
a competition of ideas, between communism
world today has a number of causes, including over-
versus capitalism.
population, climate uctuations and drought, soil
s Religion While religious conict has been a
degradation from pesticides and inorganic fertili-
recurring theme in wars throughout history, the
sers, redirection of food crops to biofuels and live-
rise of extreme fundamentalism in a number of
stock production. Water shortages caused by poor
countries has accompanied a backlash against
agricultural practices combined with drought are
the perceived decadence of Western consumer
another source of conict. The upheavals caused by
culture.
climate change will also be catastrophic, creating
s Global or regional hegemony A nations desire
millions of refugees in the Asia-Pacic region alone
for dominance in an area or in the world often
and a rise in tensions between states. The move-
leads to conict as other nations resist what
ment of large numbers of displaced people is almost
may be seen as imperialism or the thwarting of
certain to result in a scarcity of resources and
their own ambitions.
disputes about which countries are to bear responsiblity for the refugees survival and health.
s Ethnic, religious or racial intolerance The wars

that occurred when the country of Yugoslavia
split apart in the 1990s were fought on ethnic
Other causes of war
and religious lines, as have been many contem-
While competition over resources is a major cause
porary conicts in Africa.
of conict, there are many others as well, such as:
Food scarcity is likely to be a cause of future
Responses to wo rld orde r

The role of the nationstate and state
sovereignty
power. States can decide to cooperate with the
As explained earlier in the chapter, the states of
conict with their national interest. The principle
the world are like the building blocks of world
of state sovereignty was enshrined in Article 2.7 of
order. States have sovereignty, which is the right
the UN Charter:
to make all the laws within the territories they

govern. State sovereignty also gives a nation-state
the right to make treaties with other states. The
treaties are the primary source of international
law. However, states can also impede the inuence
of international law to a certain degree, by using
their sovereignty as a barrier to unwanted input
from the international community regarding their
conduct.
international community on matters in which

they have some interest, and they can also decide
to reject international treaties that they believe
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 or shall require the
Members to submit such matters to settlement
under the present Charter; but this principle shall
not prejudice the application of enforcement
measures under Chapter VII.
The architects of the United Nations opted to
The last phrase of Article 2.7 (underlined
use the current system of international law, based
above) allows the UN Security Council (UNSC) to
on treaties made between sovereign states. As a
use its Chapter VII powers to overrule a nation-
result, individual states still have signicant legal
states sovereign right to deal with its own affairs
415
without UN intervention. This, combined with the
with Chinas blocking of effective UN action in
placement of human rights as the second priority
Darfur, due to its interest in obtaining oil from
in the preamble, has provided a thin edge of a
Sudan.
legal wedge which in theory allows the UNSC to
s The Permanent Five members of the UNSC are
intervene in a nation-state if there are widespread
often unwilling to undertake the intervention
human rights violations or mass atrocity crimes.
themselves, yet usually they are the only ones
However, the condition that must be met is that
that have the military muscle to mount an
there must be a threat to peace, a breach of the
humanitarian
intervention
the doctrine justifying
military intervention in
a state in order to stop
serious human suffering
and/or human rights
violations
Permanent Five
the permanent ve
members of the UN
Security Council, namely
France, the United
Kingdom, China, Russia
and the United States
effective humanitarian intervention.
peace, or an act of aggression to allow the UNSC
s It is also hard to get other member nations to
to take action to restore international peace and
place their armed forces in harms way to pro-
security according to Article 39. In short, this
tect the human rights of some distant nation.
means that the effects of human rights violations
Popular opinion back home may have little or
must in some way spill across the border of the
no enthusiasm for placing their own troops in
offending nation-state. For instance, mass killings
danger in some far-off land.
within a nation-state may cause an exodus of
s States have a justied fear of failure, such as
refugees into neighbouring states, which can then
occurred with the US-led and UNSC-sanctioned
be viewed as a threat to peace requiring UNSC-
humanitarian intervention in Somalia in 1993.
sanctioned intervention. This type of action is
The UN and US missions were both ill-dened
known as humanitarian intervention.
and suffered from internal bickering. The UN
The problems with UNSC-sanctioned inter ven-
force lacked sufcient resources, as well as
tion in a nation-state to stop mass atrocity crimes
political and nancial support, and public
are:
opinion in the United States quickly turned
s It is very difcult to get UNSC agreement,
against the intervention when 18 American
especially when the interests of one of the
soldiers were killed in a brutal reght with
Permanent Five is threatened as is the case
Somali gunmen.
In short, although the UN Charter can be used
to justify humanitarian intervention, it is difcult
to motivate military intervention where member
nations own interests are not obviously at stake.
The more realistic option is the placement of
peacekeeping forces once the ghting has stopped.
This may or may not require the use of Chapter VII
powers by the UNSC.
While state sovereignty is the foundation upon
which our global system is based, its exercise can
impede the resolution of world order issues.
R EVI EW 1 4 . 3
1 Explain the relationship between access to
resources and world order. Provide actual
or potential examples of conicts.
2 Explain the concept of humanitarian
Figure 14.11 UN peacekeepers protect the

civilian population of Sarajevo during a siege
in 1993.
416
intervention and identify the conditions

required for the UN Security Council to
authorise it.
The United Nations

In June 1945, the leaders of 50 nations came
together in San Francisco, along with representatives from many non-government organisations
(NGOs). The meeting took place following the end
of the Second World War and was held with the
determination that the world would never again
experience such widespread destruction. These
San Francisco with the structure of a new world
organisation called the United Nations.
The Charter of the United Nations begins with
the following words:
We
the
peoples
of
the
United
Nations
determined:
to save succeeding generations from the
scourge of war, which twice in our lifetime has
brought untold sorrow to mankind, and
Figure 14.12 UN headquarters, New York
to reafrm faith in fundamental human rights,

in the dignity and worth of the human person,
When considering the small amount of fund-
in the equal rights of men and women and of
ing that the United Nations operates on, its
nations large and small,
achievements far outweigh the meagre monetary
to establish conditions under which justice and
budget that it operates on. The total UN system
respect for the obligations arising from treaties
runs on less than $15 billion a year. Leaving out
and other sources of international law can be
peacekeepers, the United Nations employs 98 000
maintained, and
people, which is about one-tenth of all the people
to promote social progress and better standards

of life in larger freedom ...
leaders emerged at the end of the conference at
employed by McDonalds to sell hamburgers worldwide. In addition to the core UN staff, there about
88 000 police, military and civilian peacekeepers
The postwar record of the

United Nations
deployed in about 17 UN peacekeeping missions
In its history the United Nations has achieved the
is about US$7 billion, which is about what the
following aims:
US government was spending in Iraq every three
s promoted the idea that everyone has human
weeks for the duration of the war there.
rights regardless of where they live
around the world. The total peacekeeping budget
The UN has been involved in numerous
s led numerous peacekeeping operations
missions since the 1990s, and although there
s served as the hub of a massive body of inter-
were some dramatic failures such as Rwanda,
national law
s enabled dialogue to continue between hostile
states
Somalia and Bosnia, there have also been many

successes. Furthermore, the great drop in the
number of conict deaths and politically motivated
s kept all nations-states as members, even those
mass murders since the end of the Cold War has
that have been at odds with the international
been attributed to the UNs activities in conict
community
prevention and peace operations.
s acted as a court of world opinion on issues of

great importance.
Problems with the UN have come from a variety

of sources, including its inexible structure under
417
the end of the Cold War), and the dominance of the
The structure of the

United Nations
Permanent Five in the UNSC. However, we must
The United Nations headquarters was built in New
remember that the UN is a collection of member
York during 194849 on land donated by the wealthy
states, and individual member states may act in
American John D. Rockefeller, and ofcially opened
ways that are counterproductive or unhelpful.
in 1951. The United Nations also has other major
the UN Charter, poor leadership (though not since
In 2009 the world spent 1.4 trillion dollars on
agencies situated in Vienna, Geneva and The Hague.
new weapons and armaments while the total UN
Membership of the United Nations is open to
budget was 15 billion dollars or around 1/900
all states of the world that profess themselves
of the military spending. If that funding were
to be peace-loving and are willing to accept
reversed it is likely that the UN could achieve far
the obligations of the UN Charter. In reality, no
greater outcomes.
stringent conditions have to be met for a nationstate to join the United Nations. By 2010 there were
The UN Charter
192 member states.
The UN Charter is similar to a constitution, out-
The United Nations has ve major organs: the
lining the rights and obligations of the members
General Assembly, Security Council, Secretariat,
of the United Nations. The purposes of the United
Economic and Social Council, and International
Nations, as stated in Article 1, are:
Court of Justice. A sixth body, the Trusteeship
s to maintain international peace and security
Council, was also established in 1945 to supervise
s to develop friendly relations between states
11 Trust Territories and to help them prepare for
s to cooperate in solving international problems
self-government and independence. By 1994, all of
of an economic, social, cultural and humani-
the Trust Territories had attained self-government
tarian nature
or independence. The Trusteeship suspended
s to promote respect for human rights.

Article 2 states that the United Nations and its
members should act in accordance with the follow-
as and when occasion may require.

In addition to the myriad day-to-day activities
ing principles:
of the UN and its agencies to promote world
s the full sovereignty and equality of all of its
order, various other organisations participate in

cooperative initiatives with the UN. These include
members
s the
peaceful
settlement
of
international
disputes
s refraining from the threat or use of force against
any nation-state
s non-intervention in matters within the domes-
NGOs as well as regional organisations (such as

the European Union), military alliances (such as
the North Atlantic Treaty Organization), and many
other world organisations that are sympathetic to
the aims of the UN Charter. The United Nations
tic jurisdiction of any nation-state.
also provides leadership in dealing with issues that
The Charter can only be amended by a two-
affect global order in the following ways:
thirds vote in the General Assembly, including the
s commissioning research and reports
ve permanent members of the Security Council.
s convening conferences
A major criticism of the UN Charter is that it is very
s initiating new treaties
hard to change it. Not only is achieving a two-thirds
s promoting arms control
majority of the General Assembly an enormous
s promoting human rights
task, it only takes one permanent member of the
s carrying out peacekeeping operations
Security Council to use its veto for the proposed
s providing
change to the Charter to be rejected.
418
operation, its work completed, and agreed to meet
assistance.
humanitarian
and
development
1 Find out how many states there are in the
the permanent members to stop any substantive

action contemplated by the UNSC from being
world, whether all states are members of the
taken, it can also be used to block the appointment
United Nations, and why or why not.
of someone to the position of Secretary-General
2 Use the UN website (www.un.org) to
and to block any changes to the UN Charter, there-
complete the following tasks:

a Construct a table about the six major
by hampering any substantial reform.

If a permanent member does not agree with a
organs of the United Nations. Draw up
decision but does not want to exercise its power of
the table with columns titled origins,
veto, it can abstain from a vote.
role, functions and history. Complete
The Security Council can order ceasere direc-
the table using information from the UN
tives, dispatch military observers of peacekeepers,
site.
and attempt to create calm conditions to promote
b Examine the membership and system
peaceful settlements. Under Chapter VII, the
of voting in the UN General Assembly.
Security Council may use enforcement measures
Explain how the composition of
such as economic sanctions, arms embargoes or
membership and the system of voting
collective military action.
in the General Assembly can be both
During the Cold War the UNSC was paralysed
democratic and undemocratic. (Hint:
by the inability of its permanent members to co-
What are the respective populations
operate to deal with regional and global issues
of China and East Timor and how many
that threatened world order. This all changed in
votes does each have in the General
1990 with Iraqs invasion of Kuwait. The UNSC,
Assembly? Also, how are the individual
for only the second time in 43 years, used its
representatives of the various countries in
Chapter VII powers. It authorised a US-led military
the General Assembly chosen?)
force against Iraq, ushering in a new era of global
RES E A RCH 14.1
cooperation.
Though the UNSC has worked together much
better since the 1990s, there have been many
The Security Council
calls for reform of its organisation, particularly
The Security Council has the main responsibility
with respect to the permanent members, which
for maintaining international peace and security.
reect the power realities of 1945 rather than of
There are 15 members. Of these, ve are per-
today. For instance, it has been suggested that
manent members, consisting of the United States,
India, Brazil, Germany and Japan would be front
France, the United Kingdom, China and Russia.
runners for permanent member status. Also, there
The ve permanent members are often referred
have been suggestions that there should be one
to as the Permanent Five, PERM 5or P5. The
permanent member from Africa and one from the
ten non-permanent members are elected by the
Arab states. However, the current Permanent Five
General Assembly to two-year terms. For the
are unlikely to agree to any of these proposals and
Security Council to take action on a matter, there
it will only take the use of the veto power by one of
must be nine votes in favour of it, including all ve
them to block any such reform.
permanent members. If one of the ve permanent
The non-permanent members of the Security
members disagrees with a proposal, it can halt
Council are selected according to a geographical
any action by exercising its power of veto. The veto
formula. There must be:
power is one of the most controversial features of
s three African
the Security Council. Not only does it enable any of
s two Asian
419
R E VIE W 14.4
1 Examine whether there
are any membership
s one Eastern European
Five. The issue came to a head in the 1956 Suez
s two Latin American
Crisis, when Britain, France and Israel invaded
s two from Western Europe.
Egypt. The United States, with Canada, sponsored
After taking ofce at the end of 2007,
a Security Council resolution calling for a cease-
the former Rudd government vigorously
re, which was promptly vetoed by Britain and
campaigned for Australia to serve a term
France. The United Nations feared that if the
of the United Nations as
as a non-permanent member of the
United States and USSR were also to become
expressed in its Charter.
UNSC.
involved in the Suez Crisis it could lead to a nuclear
conditions for joining the

United Nations.
2 Identify the main aims
war. So the then Secretary-General of the United
3 Briey outline the roles

and functions of the
Peacekeeping
Nations, Dag Hammarskjld, moved the debate to
major UN organs.
The term peacekeeping is found no-
the General Assembly (over the objections of
4 Outline the structure
where in the UN Charter. However, the
Britain and France) and accepted a plan from
of the United Nations
founders of the United Nations had a
Canadas foreign minister at that time, Lester B.
Security Council and
plan for enforcement action. This was
Pearson, for the establishment of a peacekeeping
evaluate the Security
to be an improvement on the League
force the United Nations Emergency Force to
Councils effectiveness in
of Nations, which had no provision for
supervise a ceasere. Thus, a watered-down ver-
meeting its purposes.
a standing military force. One of the
sion of peace enforcement called peacekeeping
perceived weaknesses of the League of
was born.
Nations was the lack of concrete provisions for a
The main difference from peace enforcement
standing military force to deal with blatant acts
was that peacekeeping could operate without the
of aggression. The League had many successful
agreement of the ve permanent members of the
peacekeeping operations in the 1920s using mili-
Security Council. The whole UN peacekeeping
tary forces put together on an ad hoc basis, but
apparatus has operated out of the Secretary-
in the 1930s it crumbled in the face of blatant
Generals department since 1956.
aggression by two major powers: Italy and Japan.

The framers of the UN Charter were conscious of
this weakness so they sought to give the Security
Council the legal right to use whatever force was
necessary to maintain or restore peace. This
power (sometimes called peace enforcement,
though not in the UN Charter) was incorporated
l eg al l i nks
peacekeeping
the activity of creating
conditions for
sustainable peace in
countries affected by
conict, through the
use of force, quite often
provided by a number
of countries and
consisting of soldiers,
civilian police and
civilian personnel
For further information on

peacekeeping go to the United
Nations Peacekeeping website:
www.un.org/en/peacekeeping/
into Chapter VII of the UN Charter, which provided

for the creation of a permanent military staff
committee consisting of the chiefs of staff of the
ve permanent members of the Security Council
420
The future
all experienced military leaders. Their job was
PEA C E B U I L DI NG C O M M I SSI O N
to coordinate a permanent UN armed force whose
Realising that peacekeeping operations alone are
role was to respond to aggression and the illegal
not enough to deal with regional situations that
use of force. Security Council members were to
threaten peace and security, the UN General
have forces on standby to serve in the UN force.
Assembly and the Security Council together took
The onset of the Cold War in 1947 halted the
the stop of establishing a Peace Building Com-
implementation of the original UN plan for a
mission (PBC) at the 2005 World Summit, a high-
military staff committee and the concept of peace
level meeting of heads of governments coinciding
enforcement. This was because peace enforce-
with the 60th session of the UN General Assembly.
ment relied on the cooperation of the Permanent
The main aim of the PBC is to extend the period of
assistance provided to countries emerging from
Peace Service (UNEPS), which can intervene
recent conict, to help prevent them from slipping
quickly in a crisis. The World Federation of UN
back into violence. The PBC acts as an advisory
Associations (WFUNA) is just one of the NGOs
body to marshal support and resources for re-
pushing for the creation of a UNEPS. The Centre
construction, institution-building and sustainable
for Peace and Conict Studies (CPACS) at The
development.
University of Sydney is also promoting the idea. If
Peacebuilding is a longer process where success
established, a UNEPS would respond to inter-
may not be seen for years, perhaps decades. The
national crises within 4872 hours, rather than
hope is that the new PBC will ensure longer-term
the months it takes for peacekeeping services.
attention by the global community to the tasks of
Military services, negotiators, and specialists
post-conict recovery.
would combine to rebuild infrastructure, especi-
Figure 14.13 Australia provides a military force to the UN peacekeeping mission in East Timor. Here
an Australian serviceman plays with East Timorese orphans.
such as those in Darfur, Sudan. All of these jobs

would be full-time jobs and the faster reaction
Peacebuilding Commission see
times could lead to a reduction in deaths in
www.un.org/peace/peacebuilding/
international crises.
mandate.shtml
P ROPOSAL FOR T H E UN IT ED N AT ION S

E M ERGENCY PE AC E S ER VIC E ( UN EPS )
There are a number of peace and security NGOs
l eg a l l i nk s
l e ga l l i nk s
ally in developing nations with pressing issues,
For further information on

UNEPS see the WFUNA article at
www.wfuna.org/site/c.rvIYIcN1J
wE/b.3783545/k.9D7C/UN_
Connections__Issue_No_77.htm
that are currently lobbying for the establishment

of a permanent group called a United Nations
421
International instruments
Since 1945 all states have been obliged to
Treaties and customary law are the main sources
lodge their treaties with the United Nations. This
of international law. Treaties are also known as
requirement is stated in Article 102 of the UN
conventions, charters, covenants and statutes and
Charter, as follows:
all of these terms refer to a binding agreement

voluntarily entered into by states. The agreement,
or treaty, places an obligation on the parties to
act in a particular way or adopt a certain type
of behaviour as the norm. Usually treaties are
entered into because the states perceive that they
will mutually benet from the treaty.
There are two types of treaty:
Every treaty and every international agreement

entered into by any Member of the United Nations
after the present Charter comes into force shall as
soon as possible be registered with the Secretariat
and published by it.
The requirement has its origins in former US

President Woodrow Wilsons Fourteen Points
s bilateral treaties treaties between two states
speech of January 1919. The rst of Wilsons
(for example the Free Trade Agreement between
Fourteen Points declared that treaties should be
the United States and Australia, signed in 2004)
arrived at openly. This declaration was made in
s multilateral treaties treaties between a
response to the belief that a cause of the First
number of states.
World War was the existence in 1914 of secret
Treaties between states have existed for thou-
treaties between governments that had not been
sands of years, since the beginning of civilisation.
approved by their citizens.
The majority of these treaties have been bilateral.
The most signicant treaties in terms of their
The number of multilateral treaties has increased
contribution to world order would undoubtedly
over the past few hundred years, escalating
be the UN Charter, the Universal Declaration of
sharply since the end of the Second World War.
Human Rights (UDHR), the Geneva Conventions
Multilateral treaties now number in the tens of
and the Nuclear Non-Proliferation Treaty (NPT).
thousands and are an indispensable part of the
These treaties have to a large extent set the
current world order.
framework for international law.
Table 14.1 Signicant treaties signed since 1945

s United Nations Charter (1945)
s General Agreement on Tariffs and Trade (1947) updated in 1994, creating the World Trade
Organization
s United Nations Convention on the Prevention and Punishment of the Crime of Genocide (1948)
s Universal Declaration of Human Rights (1948)
s Geneva Conventions (1949)
s United Nations Convention Relating to the Status of Refugees (1951) and Protocol (1967)
s International Covenant on Civil and Political Rights (ICCPR) and International Covenant on
Economic, Social and Cultural Rights (ICESCR) (1966)
s Nuclear Non-Proliferation Treaty (1968)
s United Nations Convention on the Law of the Sea (1982)
s United Nations Convention Against Torture and Other Cruel, Inhuman and
Degrading Treatment (1984)
s Comprehensive Test Ban Treaty (1996)
s Rome Statute of the International Criminal Court (1998)
422
Courts and tribunals
States do not need to have agreed to or signed a
treaty for an obligation to be considered binding
The International Court of Justice (ICJ) deals with
on them by the international community. The
disputes between states. The ICJ was established
principle of jus cogens refers to a legal norm that
in 1946 as an organ of the United Nations. The
is accepted by the international community and
court is based in the Netherlands and has 15 judges
is therefore binding on everyone regardless of
elected by the United Nations. The questions
whether a particular leader or nation accepts it.
before the court are usually decided by a majority
For example, it is now accepted as a norm that
of judges, and decisions are arrived at by applying
slavery, piracy and torture are prohibited under
international conventions and international cus-
international law.
tomary law. The ICJ may refer to academic writings

and previous decisions to interpret the law,
REVIEW 14.5
1 Distinguish between the enforcement
although it is not bound by previous decisions. If

no clear-cut conventions apply to a case the court
may make decisions based on the concept of
powers given to the UN Security Council
justice and fairness, as long as the two parties
by Chapter VII of the UN Charter and
agree to this basis of decision-making.
peacekeeping powers.
2 Distinguish between treaty law and jus
The ICJ hears two types of case:

s contentious issues between states the court
cogens.
c as e s p ac e
jus cogens
compelling law
also called a
peremptory norm:
a norm of customary
international law
that is indisputably
accepted by the
international
community and is
therefore binding on
everyone regardless
of whether a
particular leader or
nation accepts it
produces binding rulings between states that
Jus cogens
Military and Paramilitary Activities in and against Nicaragua (Nicragua v

United States of America), Merits, 1986 ICJ Rep 14 (June 27, 1986)
In this case, the ICJ ruled that the United
States had to cease unlawful activities
against Nicaragua, which included mining
Nicaraguan harbours and supporting
guerrillas in their rebellion against the
Nicaraguan government. The majority of
the judges reasoned that the United States
actions against Nicaragua were in breach
of the obligation not to use force against
another nation-state, found in customary
international law. The court ordered that the
United States pay reparations to Nicaragua.
However, the United States ignored the
decision, refused to pay Nicaragua and
terminated its acceptance of ICJ jurisdiction.
Figure 14.14 The ICJ resides in the historic Peace Palace

in the city of The Hague in the Netherlands.
423
have agreed to be bound by the rulings of

thecourt.
advisory
RESEARCH 14.2
Research the attitude of the United States to
opinions
the
court
provides
the International Criminal Court during the
reasoned, but non-binding, rulings on questions
two terms of George W. Bush (200108). Then
of international law submitted by the General
use the information you find to complete the
Assembly of the United Nations.
tasks below:
There are numerous treaties that confer juris
1 Outline the US opposition to the ICC.
diction on the ICJ. In theory, the courts decisions
2 Outline the following measures that the
are binding, final and without appeal, except in
United States has taken against the ICC:
cases where it gives an advisory opinion. In prac
a American Service Members Protection
tice, however, the ICJs effectiveness has often

been limited by the losing partys unwillingness to
abide by the courts ruling, as well as the reluctance
of the Security Council to enforce the rulings.
Act (Hague Invasion Act)

b the threat to use the veto in the Security
Council
c Article 98 agreements.
424
The Rome Statute of the International Criminal
Other international tribunals
Court is a treaty signed in 1998 by 121 states,
Following is a discussion of some other major
including Australia, which pledged the parties to
international courts and tribunals. The first two
the establishment of a permanent court in which
of these were ad hoc tribunals set up by the UN
individuals can be tried for mass atrocity crimes
Security Council in the 1990s, to deal with the
such as war crimes and genocide. In July 2002,
human rights abuses that had occurred in the
the Rome Statute came into effect when it was
Balkans and Africa, respectively.
ratified by more than 66 states. The ICC was
The International Criminal Tribunal for the
established at The Hague, although its statute
Former Yugoslavia (ICTY) was established by a UN
allows it to hear cases anywhere in the world if
Security Council resolution in 1993. It has juris
it decides to. The ICC was given jurisdiction over
diction over breaches of the Geneva Conventions
acts of genocide, war crimes and crimes against
and international customary law committed in the
humanity committed since 2002 the three most
territory of the former Yugoslavia since 1991. The
serious types of international crime and the cause
most high-profile case is that of former Serbian
of a great deal of regional disorder.
leader Slobodan Milosevic, who in 2001 was arres
The ICC is a legal entity that was created inde
ted for war crimes and crimes against humanity in
pendently of the United Nations by a separate
Kosovo and was placed on trial in 2002. Milosevic
treaty between states. It was not a product of the
died in 2006 before the completion of his trial.
Security Council acting under the UN Charter, as
The International Criminal Tribunal for Rwanda
was the case with the tribunals set up to deal with
was established in 1994 and is based on the model
war crimes in Rwanda and the former Yugoslavia;
of the ICTY. It has jurisdiction over acts of geno
unlike the ad hoc international tribunals, the
cide committed by the Rwandan government and
Security Council cannot veto referrals to the ICC.
armed forces in 1994. The government, dominated
Despite this autonomy, the ICC works closely
by the majority Hutu ethnic group, engaged in
with the United Nations. By 2010, 110 states were
mass atrocity crimes during 1994 against the
members of the ICC, having both signed and
minority Tutsi people, following the assassination
ratified the Rome Statute, while 41 states had
of President Juvnal Habyarimana.
signed but not ratified the statute. Cases can be
The European Court of Human Rights was
referred to the ICC by either a party to the statute,
first set up by the Council of Europe in 1959 in
the Security Council, or the ICC Prosecutor.
Strasbourg, France. In 1998, it was reformed
types of fish. State parties are obliged to use either

this tribunal or the ICJ to settle peacefully any searelated disputes.
REVIEW 14.6
1 Describe what the International Criminal
Tribunal for the Former Yugoslavia and the
International Criminal Tribunal for Rwanda
2 Evaluate the growing importance of the
European Court of Human Rights.
Intergovernmental
organisations
Figure 14.15 Former Serbian leader Slobodan
Milosevic on trial for war crimes and crimes
against humanity in Kosovo.
Regional intergovernmental organisations (IGOs)

are increasingly making a significant contribution
to world order. Each of these organisations has
been set up for a particular purpose. They vary
enormously in their economic power, effectiveness,
and established as a permanent court, directly
level of cooperation and integration, plans for the
accessible by individuals, with jurisdiction over
future and impact on the rest of the world. Profiled
issues of human rights arising under the European
below are two of the larger regional organisations:
Convention on Human Rights. The Council of
the European Union and NATO. The following are a
Europe (different from the European Union) is an
few other notable examples:
intergovernmental organisation with 47 member
African Union The AU is modelling itself on
states across the continent of Europe, including all
the EU and is receiving assistance from the EU
27 member states of the EU. The court is becoming
to set up its structures. The AU currently has
increasingly important, and in January 2011 there
peacekeepers serving in Darfur under a UN
were almost 140,000 applications pending before
mandate.
the court, more than half of which were lodged
Commonwealth This consists of former
against Russia, Turkey, Romania or Ukraine. The
members of the British Empire. In the past the
court has been highly influential, not only in
Commonwealth made a strong stand against
reforming the laws of the member states, but also
apartheid in South Africa. More recently, the
in promoting the development of human rights law
Commonwealth has taken a strong stand
both regionally and globally.
against the dictatorship that has existed in Fiji
As states intensify their competition for access
since 2006. In 2009, Fiji was suspended from
to natural resources, tribunals with jurisdiction
the Commonwealth for refusing to agree to hold
over the management of these resources, such as
intergovernmental
organisation (IGO)
an organised group
of two or more
states, set up to
pursue mutual
interests in one or
more areas
O p t i on 5: World ord er
have in common.
elections in 2010.
the International Tribunal for the Law of the Sea,
ASEAN (Association of Southeast Asian Nations)
are likely to grow in importance. This tribunal,
This organisation has the most influence in
established under the UN Convention of the Law of
trying to encourage the military dictatorship in
the Sea, can look at any issue relating to the sea,
Myanmar/Burma to stop its systematic human
such as mining the seabed or overfishing of certain
rights violations.
Chapter 14: Opti o n 5 : Wo r l d o rd e r
425
European Union
supranational
an organisation in
which decisions
are made by the
appointed or elected
representatives of
the member states;
because decisions
are made by majority
vote, it is possible for
a member state to be
forced to do something
against its own will
The EU officially began in 1992 after a long
The European Union (EU) stands out as the most
and gradual development from its origin in 1950,
successful and influential regional intergovern
when it was named the European Coal and Steel
mental organisation because it has created
Community and consisted of just six countries:
unprecedented wealth and security for its mem
Belgium, Germany, France, Italy, Luxembourg and
bers and has revitalised European influence in the
the Netherlands. Under the Coal and Steel Treaty,
world. Furthermore, it has made the prospect of
the member states agreed to common manage
war between any of its 27 members unthinkable.
ment of those industries, so that none could make
A large number of states seek admission to the EU
weapons of war to turn against any of the others. As
and it is emulated by other regional organisations,
it evolved, economic and political goals continued
including the African Union. It is a supranational
to coexist. In 1957, the Treaty of Rome was signed,
organisation.
forming the European Economic Community
A European federation of democratic states that
(EEC), which had the aim of allowing free trade
would forever end the scourge of war in Europe
across borders. The 1992 Treaty on European Union,
was a dream of visionaries after the First World
signed at Maastricht, the Netherlands, set rules for
War. Despite their hopes, it took another world war
the future common currency (the euro) as well as
and the political commitment of a few individuals,
common foreign and security policy and closer
especially Jean Monnet (credited as the father
cooperation in justice and legal procedure.
of the EU), to bring the European federation into
As of March 2010, there were 27 member

states with three more awaiting approval. The EU
existence.
has strict membership criteria, adheres to the UN

Charter regarding the use of force, and requires
that its members are democracies that uphold
the rule of law and respect human rights. It has a
Charter of Fundamental Rights and a Fundamental
Rights Agency whose role is to advise policymakers and raise public awareness. The member
states work together to develop common solutions
Finland
in the areas of immigration and asylum, to

Sweden
manage the application process for people coming
Estonia
to Europe to escape war, persecution, natural dis
Latvia
Denmark
Ireland
asters or poverty. The states also cooperate to
Lithuania
fight organised crime including drug and people
Netherlands
United
Kingdom
trafficking, money laundering, and terrorism,
Poland
through both legislation and police powers.
Germany
Belgium
Europol, the European Law Enforcement Agency,
Czech
Republic Slovakia
Luxembourg
Austria
France
Hungary
is responsible for coordinating the various nations

police efforts in this area.
Romania
Slovenia
Italy
The EU has become a powerful role model

Bulgaria
to other states and regional organisations, and
Portugal
exercises a great deal of persuasive power by

Spain
Greece
holding out the promise of membership, by using

Cyprus
Malta
development assistance (of which it provides 50

per cent of the worlds aid), and by developing
strategies for conflict management for use around
Figure 14.16 The membership of the European Union as at May 2010
426
C a m b r i d g e Le g al S tu d ie s HS C
the world.
North Atlantic Treaty

Organization
Non-government
organisations
was established in 1949 to counter the threat from
Groups such as Amnesty International, Human
the USSR-led communist bloc of Eastern Europe. It
Rights Watch, World Vision, Greenpeace and
is an alliance of 28 countries from North America
Oxfam are just a few of the tens of thousands of
and Europe, with the mission of safeguarding
organisations that have come to be known as
its members through political but also military
private voluntary organisations, citizen associa-
means. It provides a forum for European countries,
tions, civil society organisations, or most com-
Canada and the United States to discuss and
monly, non-government organisations (NGOs).
address security issues of common concern.
One of the rst NGOs was the Red Cross. (In some
NATO military forces have helped to end con-
countries the Red Cross is known by other names,
icts in Kosovo and Bosnia. The organisation
such as the Red Crescent or the American Red
provided transport and training for the African
Cross.) The main activities of the Red Cross are to
Unions peacekeeping mission in Darfur, Sudan.
give humanitarian aid to victims of war and nat-
Currently, NATO has forces deployed in Afghani-
ural disasters, and to champion international
stan with the aim of supporting the edgling
humanitarian law. NGOs have played an increas-
democratic government. NATOs International
ingly important part in world order since the end
Security Assistance Force (ISAF) in Afghanistan is
of the Second World War. There are about 25 000
under the authority of the UN Security Council,
NGOs
although it is not a UN body.
humanitarian ideals. NGOs helped to write the UN
today
that
campaign
globally
non-government
organisation (NGO)
an association based
on common interests
and goals, which has
no connection with
any government
for
Like the European Union, NATO has strict
Charter and are an integral part of the United
membership criteria, adheres to the UN Charter
Nations, and many of them collaborate on a daily
regarding the use of force, and requires that its
basis on humanitarian work with various special-
members are democracies that uphold the rule
ised agencies.
of law and respect human rights. Ex-communist
In addition to these NGOs, there are NGOs that
countries from Eastern Europe have ocked to
specialise in world order issues by investigating,
join NATO, which they see as a guarantee against
researching, educating policy-makers and the
Russian domination.
public, and lobbying leaders to take action. The
The North Atlantic Treaty Organization (NATO)
International Crisis Group (ICG) was founded in
REVIEW 14.7
1 Identify the six original members of the
European Coal and Steel Community.
2 Outline the criteria for membership of the
EU and of NATO.
1995 by some retired international leaders in

response to the failure of the international
community to anticipate and respond effectively
to the genocides that occurred in Somalia, Rwanda
and Bosnia in the early 1990s. With a budget of
around $16 billion a year, the ICG monitors 60
conicts and potential conict situations. The
RES E A RCH 14.3

1 Using the Institutions and bodies section of
ICGs aim is to be an accurate source of information for governments, IGOs and NGOs that are
the EU website (http://europa.eu/), identify
working to respond directly to conict situations.
the main institutions within the EU.
The ICG also uses the media effectively, getting
2 Research the other regional
14 000 mentions annually. Gareth Evans, former
intergovernmental organisations listed on
Australian Foreign Minister in the Hawke and
page 425 and create a table with columns
Keating governments, served as president of the
showing the origin, purpose, structure,
ICG from 2000 to 2009. The current president is
membership and role of each organisation.
Louise Arbour.
427
The ICG sees its role as:

s supplying behind-the-scenes support and advice in peace negotiations
s giving highly detailed analysis on policy issues
Americas, and that brings cases before the InterAmerican Commission on Human Rights and
the Inter-American Court of Human Rights)
www.cejil.org/
s offering strategic thinking on the worlds most
s Freedom House (a US organisation that provides
intractable conicts, such as those in Myanmar/
information, advocacy and training relating to
Burma, Iraq, and Israel/Palestine
the promotion of democracy and civil rights)
s giving an early warning when a security situ-
www.freedomhouse.org/
ation is becoming a full crisis. The ICG is
s Global Policy Forum (monitors international
constantly on alert in areas like Darfur, Somalia,
policy-making and has a consultative role with
Pakistan and even Timor-Leste (which is still in
the UN) www.globalpolicy.org/
a fragile nation-building stage after initial UN
s World Federation of United Nations Associations
intervention in 1999).
(a global network connecting UN Associations,
Finally, the ICG is strongly supportive of a
which disseminate information about the UN,
multilateral, rules-based approach to world order
lobby governments, and undertake other acti-
using the current structures of the United Nations
vities in support of the UN) www.wfuna.org/
and other international organisations, regional

organisations and international courts. The ICG is
particularly supportive of the new UN approach to
dealing with crises, the Responsibility to Protect.
(Responsibility to Protect will be covered in Issue 1
at the end of this chapter.)
R ESEAR CH 1 4 . 4
Go to the websites of ve NGOs that are
concerned with world order issues.
1 Outline an issue or a crisis that each NGO
focuses on.
l eg al l i nks
2 Assess the role of each NGO in promoting

world order.
3 Locate two other NGOs (not on the list
International Crisis Group see
above) that are concerned with world order
www.crisisgroup.org/
issues and outline their aims.
Some other NGOs that specialise in world order
Australias federal
government
issues are:
s Centre for Peace and Conict Studies (Sydney
University)
www.arts.usyd.edu.au/peace_
conict/
s Campaign for Nuclear Disarmament (UK)
www.cnduk.org/
428
The Australian Constitution

The structure of Australias federal government has
implications for Australias response to world order
issues. First, under s 51(xxix) of the Australian
Constitution, only the federal parliament has the
s Carnegie Endowment for International Peace
power to make laws relating to external affairs,
(a private, non-prot US organisation dedicated
that is, matters of international concern. As such,
to international cooperation, especially US
only the federal government has the authority to
engagement; it has ofces in Washington,
enter into international treaties and agreements.
Moscow, Beijing, Beirut and Brussels) www.
In order for international obligations to be binding
carnegieendowment.org/
in Australian domestic law, federal legislation must
s Centre for Justice and International Law (a legal
be passed implementing the treaty. All legislation
organisation that defends human rights in the
must go through both houses of parliament. As a
result, the party in power may have to agree to
of Canada, New Zealand and South Africa. As a
compromises in order to pass the legislation.
foundation member of the League, Australia played
In 2004, the federal government was forced to
a very active role internationally. Many of its
agree to signicant amendments to the Free Trade
proposals were taken up by the United Nations
Agreement with the United States to ensure the
upon formation of that body.
Senate would pass it.
A number of Australians have served Australia
Any international agreements entered into by the
with distinction on the international stage. One of
federal government can affect the states in some
these notable individuals was Jessie Street, who
way. The federal government usually consults the
attended League of Nations Assemblies in Geneva
states before signing an international agreement,
in 1930 and 1938. Street was the only woman in
but it is not obliged to do so. Sometimes inter-
the Australian delegation to the San Francisco
national agreements can be a point of contention
conference to write the UN Charter in 1945, and
between the states and the federal government.
one of only four women delegates from all over the
As discussed in Chapter 11, in 1983 the federal
world. After the Second World War, Australia was a
government used its external affairs power to bring
strong supporter of the international organisations
a halt to Tasmanias damming of the Franklin River.
to promote world order. Dr H. V. Evatt, Foreign
During the last years of the Howard government a
Minister in the Chiey Labor government (1945
number of the states, under Labor governments,
49), was elected president of the UN General
were at odds with the federal governments refusal
Assembly in 1949.
to ratify the Kyoto Protocol on global warming.
The states and international

law
Australian involvement in the

United Nations
Many other Australians have also served the
The states cannot enter into international
United Nations with distinction. From 1997 to 1999
agreements in their own right. However, they
Australian Richard Butler was one of the most
can enact their own legislation that is in harmony
powerful and controversial gures in world politics
with international agreements. For instance, the
as head of the UN Special Commission (UNSCOM)
NSW Government went further in adhering to UN
charged with monitoring Iraqs dismantling of its
human rights treaties with its Anti-Discrimination
weapons facilities after the Gulf War of 1990
Act 1977 (NSW) than the federal government did
91. Butler was also involved in the Canberra
with the Racial Discrimination Act 1975 (Cth).
Commission on the Elimination of Nuclear Weapons

in 1996, which was initiated to formulate a plan for
Australias role in global affairs
the reduction and eventual elimination of nuclear
Since federation in 1901, Australia has taken its
weapons. Gareth Evans, who served as Foreign
global responsibilities seriously. Australias mass-
Minister in the Hawke and Keating governments,
ive contribution in the First World War was due to
has been very actively involved in the United
its obligations to the maintenance of the British
Nations in the areas of nuclear disarmament and
Empire, which it saw as essential to global stability,
the new UN doctrine of Responsibility to Protect.
the spread of civilisation and the rule of law. From
In March 2008, the former Rudd government
1907 to 1914 Australia was a dominion of the
embarked on a campaign for Australia to be a
British Empire a political entity that was nomi-
candidate for a non-permanent seat on the United
nally under British sovereignty but independent
Nations Security Council in 201314. From 2009,
from Britain in all matters except its foreign policy.
then Prime Minister Rudd took a leading role in
Australias contribution during World War I won it
the UN-sponsored debate on global warming and
recognition as a nation-state in its own right in the
in the debate at the Copenhagen Conference in
League of Nations, along with the other dominions
December 2009.
dominion
a semi-autonomous
political entity that
was nominally under
the sovereignty of the
British Empire
429
have continued to play a peacekeeping role in

East Timor. Australia has also been engaged in
peacekeeping efforts internationally outside of
the United Nations. In recent years, Australia
has conducted a peacekeeping operation in the
Solomon Islands and committed federal police to
many peacekeeping operations around the world.
Australia and international

agreements
Australia has also been a part of many other
international agreements to promote world order.
Australia is a signatory to the Geneva Conventions
and the Rome Statute establishing the International Criminal Court.
Australia has undertaken many international
Figure 14.17 Australian peacekeepers in the
Solomon Islands playing with local children.
obligations outside its multilateral agreements.

The majority of the 900 treaties and agreements
that Australia has signed are bilateral. In addition,
Dr Michael Fullilove of the Lowy Institute
most of the $1 billion dollars in Australian aid for
for International Policy gave strong support to
the victims of the 2004 Boxing Day tsunami was
Australias bid for a non-permanent seat on the
given as part of bilateral aid partnerships with
UNSC. In September 2009, Dr Fullilove published
Indonesia and Sri Lanka, rather than being chan-
a detailed paper on the subject, The Case for
nelled through multilateral organisations. This
Australias UN Security Council Bid, which can
reects a preference of the Howard government
be found at www.lowyinstitute.org/Publication.
for working through bilateral, not multilateral,
asp?pid=1129.
agreements. After its election to ofce at the end

of 2007, the former Rudd government expressed a
militia
a group of unofcial
soldiers who act
outside international
law and are often
secretly used by
governments
Australias contribution to
peacekeeping
preference for multilateral agreements.
Australia has also taken its responsibilities with
The media
respect to the maintenance of world order seriously, as evidenced by its consistent involvement
The media have an enormous inuence on
in UN peacekeeping missions. Australia has contri-
world order and that inuence can be positive or
buted either military forces or police
negative. A free and unbiased media are an essen-
to 54 peacekeeping forces, two-thirds
tial ingredient for the rule of law in the global
of these since 1991. In 19992000,
sphere.
R E VIE W 14.8
1 Outline the power
Australia played a leading role in
Despite the immense technological advances in
establishing order in East Timor
all areas of mass media, the question of ownership
Constitution gives the
when Indonesian-backed militia went
is a signicant issue. For both print and broadcast
federal government.
on a rampage of killing there after
media, the trend has been towards domination
the East Timorese people voted for
by a few large and powerful transnational
involvement in international
independence from Indonesia in a
corporations.
activities and evaluate its
UN-sponsored referendum in 1999.
No matter who owns the media and controls
contributions.
Australian military and federal police
their various aspects, the media today have a
that s 51(xxix) of the
2 Summarise Australias
430
NGOs achieve their objectives. The United Nations
One characteristic of modern media is the ten-
can also use this tactic, through reports that it
dency to treat news as entertainment. This means
delivers on various issues and the deliberations of
that there is often little effort to provide a full
its human rights bodies. In recent years, the gov-
and considered explanation of the background to
ernment of Zimbabwe has been widely criticised
major problems and issues. Consequently, while
for its mass atrocity crimes.
people know of events taking place all around the
States can also be encouraged to improve their
world, they often lack any real understanding of
behaviour by the prospect of membership of world
the issues. This is particularly the case when it
organisations. For instance, China had to raise its
comes to war.
trade standards in order to comply with the rules
Nevertheless, the media have played a signi-
of the World Trade Organization (e.g. to apply the
cant role in drawing the worlds attention to
same tariff rates to all member countries, and
various disasters and political crises, and have
to apply internal laws equally to domestic and
the potential to inuence political leaders through
imported products). Another example is Turkeys
public opinion. Examples in the past decade have
bid for membership of the EU. To be permitted
included the ongoing crises in Zimbabwe and
to join the EU and receive the massive economic
the Darfur region in Sudan. However, once such
benets of a large, successful market, Turkey has
events are off the front pages of the newspapers
to improve its compliance with human rights. This
and the evening television news, public interest in
type of persuasive power employed by the EU
them tends to fade.
is described as soft power. Soft power co-opts

rather than coerces people.
Non-legal mechanisms
for international dispute
resolution
tremendous effect on how we view major events.
Persuasion is not always effective. To be chosen

to host the 2008 summer Olympics, China promised to improve its conduct in relation to human
rights and civil liberties. However, many commentators feel that China reneged on its promises
Political negotiation
to the International Olympic Committee, given its
Political negotiation is the simplest and most fre-
practices of detention, harassment and torture of
quently used means of working with other states
political dissidents and its censorship of media.
and resolving disputes. Communication between

and each country has a vast array of experts
who can negotiate the details of international
agreements. These changes in the means available
for political negotiation have increased the scope
for greater cooperation. When disputes cannot
l e ga l l i nk s
states now occurs at many levels of government,
be solved through political negotiation, the next

concept of soft power, see the
article Propaganda isnt the way:
Soft power, by Joseph Nye, at
http://belfercenter.ksg.harvard.
edu/publication/1240/propaganda__
option is the use of persuasion.
isnt_the_way.html
Persuasion
States, international organisations and transnational corporations can be persuaded to change
Force
their behaviour through the pressure of world
When political negotiations break down and
public opinion. Persuasion, in the form of naming
persuasion and soft power have no impact, then
and shaming, is one of the main ways in which
the resort to force may occur.
431
The idea that force or the threat of force should

not be the norm in international relations is
enshrined in the UN Charter. Article 2(4) of the
Charter states:
All members shall refrain in their international
relations from the threat or use of force against
the territorial integrity or political independence
of any state, or in any other matter inconsistent
with the Purpose of the United Nations.
However, the architects of the UN Charter were
given due consideration to the amount of political

and economic commitment would be required.
As well as providing a self-defence clause, the
UN Charter was realistic enough to legitimise
the use of force in circumstances other than selfdefence. However, the constraint placed upon this
use of force was that it had to be agreed to by the
Security Council. Article 42 states that the UN
Security Council can take such action by air, sea
or land forces as may be necessary to maintain or
restore international peace and security.
realistic enough to realise that force would some-
ethnic cleansing
a term used as a
euphemism for
genocide
times be used, and so they sought to create a legal
Multilateral action
framework for it. Article 51 of the Charter states
In 1998, the threat of the use of the veto by two
that force can be used in self-defence. The United
Permanent Five members was enough to stop the
States argued that its invasion of Afghanistan in
Security Council from intervening in the genocide
November 2001 was legal because it was carried
taking place in Kosovo. Kosovo is a province of the
out in response to the 11 September attacks by
nation-state of Serbia with a majority Muslim
terrorists purporting to be part of Al Qaeda. At
population. In 1998, the Serbian government, under
the time of the attack, Al Qaeda had bases in
the leadership of Slobodan Milosevic, began
Afghanistan and was supported by the Taliban
engaging in ethnic cleansing against the Muslim
regime in that country. However, after nearly 10
population of Kosovo. In this case, the Security
years of war, commentators, while conceding the
Council was unable to act immediately to pass a
invasion was legal, now question whether it was
resolution condemning Serbias actions and to
wise and whether the Bush Administration had
sanction the use of force by the United Nations, due

to the threat of a veto from China or Russia. Russia
traditionally backed Serbias control of Kosovo, and
China sided with Russia (possibly drawing a parallel
to its own control of Taiwan). However, the prospect
of a humanitarian disaster prompted by the acts of
genocide perpetrated by the Serbian forces caused
great concern in Europe and the United States. As a
result, in March 1999, NATO successfully intervened in Kosovo. The Security Council, minus
China, which abstained, then called for an international civil and security presence in Kosovo, thus
retrospectively ratifying the NATO intervention in
Kosovo and lending it greater legitimacy.
The NATO action in Kosovo invites the question
of what circumstances make the use of force legal
under international law. The question is: Was
the NATO action legal under international law
before it was retrospectively sanctioned by the
Figure 14.18 The NATO action in Kosovo invites the question of what
circumstances make the use of force legal under international law.
432
Security Council? Scholars of international law

would answer that the original NATO action in
Kosovo was legal because it was carried out by a

multilateral force NATO.
R EVI EW 1 4 . 9
1 Outline what the following articles in the
UN Charter say about the use of force:
tary intervention has the sanction of inter national
a Article 2(4)
law if it is in response to a situation where the
b Article 51
threat to peace is signicant. Unilateral military
c Article 41
inter vention has been prohibited under international law since the end of the Second World War.
2 Identify which members of the United
unilateral
undertaken by one
nation-state
Nations can use Chapter VII rules.
As a general rule, multilateral or collective mili-
co nce rn i n g wo rl d o rde r
Issue 1: The principle of
responsibility to protect
How can we possibly do worse ying under the
ag of R2P than we did for centuries accepting, in
effect, that state sovereignty was a license to kill?
Gareth Evans, President of the International Crisis Group, interview with Stiftung Entwicklung und Frieden News, Spring 2008
The Responsibility to Protect is a new international security and human rights norm designed
to address the international communitys repeated
failure to prevent and stop mass atrocity crimes
such as genocide and war crimes. The principle,
known in abbreviated form simply as R2P, came
about in response to the controversy that raged
over whether the international community had
the right of humanitarian intervention in the
conicts
of
Rwanda,
Bosnia
and
Kosovo.
Supporters of humanitarian intervention argued

that the UNSC could use its Chapter VII powers to
Figure 14.19 As President of the International Crisis Group from

2000 to 2009, Gareth Evans (left) championed the concept of the
Responsibility to Protect.
intervene, while opponents argued that the

principle of state sovereignty, upheld by Article
2.7 of the UN Charter, did not permit humanitar-
lobbying, the heads of state attending the World
ian inter vention. R2P was aimed at bridging the
Summit in September 2005 unanimously accepted
gap between these two views of state sovereignty.
R2P. The UN Security Council has also accepted
It had its origin in the 2001 report produced by the
this general principle. Adoption of this new doc-
International Commission on Intervention and
trine represented an international commitment
State Sovereignty, called The Responsibility to
by states to prevent and react to grave crises,
Protect. After several years of negotiations and
wherever they may occur.
433
Legal and non-legal

responses
s raising awareness about R2P and building

NGOs advocacy skills
s promoting the implementation of R2P by the
Legal responses
The Responsibility to Protect places the onus on
states and international organisations to protect
United Nations
s helping NGOs to develop strategies to implement R2P for country-specic situations.
populations from mass atrocity crimes. For individual states, R2P means the responsibility to protect
their own citizens, and to help other states build their
I NTERNATI O NA L C O A L I TI O N FO R TH E
RE SPO NSI B I L I TY TO P RO TEC T (I C RTO P )
capacity to do so. For international organisations,
In January 2009 the R2PCS launched another pro-
including the UN, R2P means the responsibility to
ject, the International Coalition for the Responsi-
warn, to generate effective prevention strategies,
bility to Protect (ICRtoP). This effort is supported
and when necessary to mobilise military action.
by a number of NGOs, such as Oxfam Inter-
For NGOs and individuals, R2P means the
national, Human Rights Watch, the International
responsibility to draw policy-makers attention to
Crisis Group, and Refugees International. The
what needs to be done, by whom and when.
Coalition aims to raise awareness about R2P and
Overwhelmingly, prevention is the key response
to educate NGOs on how to form partnerships with
in the R2P doctrine, through measures such as
other NGOs interested in joining and how to apply
building states capacity to safeguard human
the norm to specic regions.
to the rule of law. But if prevention fails, R2P

requires whatever measures are necessary to stop
mass atrocity crimes, whether those measures are
economic, political, diplomatic, legal, security or in
the last resort military.
l eg al l i nks
rights, remedying grievances, and conforming

For more information on the
Responsibility to Protect,
R2PCS and ICRtoP, see www.
responsibilitytoprotect.org/
Non-legal responses
R ES PON S IBIL IT Y T O PR OT EC T
EN GAGIN G C IVIL S OC IET Y (R2 PC S)
NGOs have taken up the cause of the Responsibi-
Conclusion
lity to Protect. In 2003 the World Federalist Move-
The Responsibility to Protect is a framework that
mentInstitute for Global Policy (WFMIGP)
enables the two contradictory aspects of the UN
launched the Responsibility to Protect Engaging
Charter the non-interference principle in relation
Civil Society project (R2PCS) with the aim of
to state sovereignty and the obligation on UN
building support for R2P. The goals of this project
members to act against human rights violations
were to engage civil society and educate other
to be reconciled. Some work still needs to be done
NGOs about the Responsibility to Protect prin-
in making R2P a useful mechanism for improving
ciples, in order to effectively lobby governments to
the international communitys response to crisis
respond promptly and appropriately to emerging
situations. There are a number of priorities for R2P
humanitarian crises.
more than ve years after its adoption by the UN.
The R2PCS has been involved in:

s strengthening the acceptance of R2P with governments and international organisations
434
These are:
s Care should be taken in labelling conicts R2P
situations. In his 2008 book, The Responsibility
to Protect: Ending Mass Atrocity Crimes Once and

For All, Gareth Evans estimates that of the 60 or
so conicts or potential conict situations in the
world at any time, only about 12 to 15 would be
R2P situations. Evans stressed that R2P does
not apply to all human security situations.
s R2P is more about prevention and should not
be focused narrowly on military action.
Issue 2: Regional and

global situations that
threaten peace and
security: The nuclear
threat
The greatest threat to global peace and security is
the presence of nuclear weapons. At the height of
s The UNSC needs to develop specic guidelines
the Cold war there were 58 000 nuclear warheads.
for when force is used in R2P situations. It
The number has now been reduced to 27 000 war-
needs to clarify the limits of military action.
heads, with thousands still on a 20-minute alert.
s There needs to be a greater emphasis on build-
However, the detonation of only a few hundred
ing the capacity of regional organisations like
would not only destroy targeted cities, but would
the African Union and NATO so that they have
cause massive ecological damage to the rest of the
a variety of options on hand and are prepared
world that was not targeted.
to mount military operations.
Figure 14.20 Many nuclear missiles can reach their targets in 30 minutes.
We were very lucky to survive the Cold War
Finally, there needs to be the political will on
without a nuclear war between the superpowers.
behalf of world leaders to make the hard decisions.
We came close to World War III a few times during
It is also the responsibility of all those people of
the Cold War, particularly in 1962, 1973 and 1985.
goodwill who believe in the R2P principle to press-
Then in 1995 a false reading nearly sparked a
ure their governments to be involved. It remains to
nuclear retaliation by Russia against a suspected
be seen how effective the UNSC will be in dealing
US attack. There have been a number of bilateral
with the question of military intervention when
nuclear weapons treaties and a few multilateral
extreme cases warrant it.
treaties to deal with the threat of nuclear war.
435
However, the world has a long way to go before the
Moscow, and came into force in 1970 when it was
threat of nuclear weapons has been removed.
ratied by a sufcient number of nations. This

treaty is based on a bargain between the ve
Legal and non-legal

responses
Legal responses
nations that possessed nuclear weapons at the

time and all the other nations of the world that do
not possess them. The bargain was that the countries lacking nuclear weapons (with the exceptions
of Israel, India and Pakistan) promised not to
BIL AT ER AL T R EAT IES
develop them if the ve nations that did possess
The thaw in relations between the two super-
them (USA, Russia, China, Britain and France)
powers not only gave the United Nations a new
agreed to gradually reduce the number of weapons
lease of life, but it also led to the most substantial
that they held. The treaty was to be renewed every
progress in the area of nuclear disarmament since
ve years. Optimistically, in 1995 the parties to
the beginning of the Cold War. Unfortunately, the
the treaty decided to extend the treaty indenitely.
UN did not have any role in this progress. Some
At this conference, the parties committed them-
of the highlights of this post-Cold War bilateral
selves to the adoption of a new treaty called the
progress are as follows:
Comprehensive Test Ban Treaty (CTBT) by 1996.
s 1983 The USA and USSR began talks.
This treaty would ban the production of weapons-
s 1991 The USA and Russia signed START I
grade ssile material, eliminate nuclear weapons,
and began reduction of their nuclear arsenals
support nuclear-free zones and give security assur-
from 58 000 nuclear warheads. The aim was
ances to all nations. The Australian government
to reduce their arsenals to about 5000 each.
took the treaty to the General Assembly where it
The total amount between the two countries is
was adopted, and the CTBT entered into force in
about 11 000 at present.
2007. As of March 2010, there were 182 signator-
s 2002 US President Bush and Russian President

Putin signed the SORT treaty. Both states were
ies and 151 ratications. However, the United

States had not ratied the treaty at this time.
to reduce their nuclear weapons to between
In 2000, the nuclear weapons states declared
17002000 each. However, SORT was widely
their unequivocal desire to accomplish the total
criticised as it omitted tactical nuclear weapons
elimination of the nuclear arsenals. However, at
(those intended to be used on a battleeld) and
the same time the USA announced its intention to
only included deployed warheads, meaning
abandon the Anti-Ballistic Missile Treaty (ABM) of
parties could simply put them in storage. It also
1972. This was seen as ominous news at the time
omitted verication procedures.
by other major powers, who feared that this sig-
s 2010 US President Obama and Russian
nalled the rst stage of the United States putting
President Medvedev signed New START, to
weapons into space. Also disturbing was the
replace the expiring START I and SORT treaties.
United States 2002 announcement that it was pre-
The reductions required include a reduction in
pared to use pre-emptive action to strike an
deployed nuclear warheads to 1550 combined,
enemy rst, before the enemy could strike. This
down two-thirds from START I and one third
represented
from SORT. The new treaty has been welcomed
principles.
by commentators, but some have suggested

that it could have gone further.
an
abandonment
of
basic
UN
Multilateral cooperation took another hit at

the 2005 World Summit. There were high expectations that the world leaders would agree to a
436
MULT IL AT ER AL T R EAT IES
strengthening of the NPT. However, despite ve
The Nuclear Non-Proliferation Treaty (NPT) was
weeks of negotiations, nothing was achieved
signed in 1968 in Washington, London and
and no nal document was produced. Unless the
leaders of the worlds major powers show more
dent that the inspection regime had precluded
political and moral commitment to the cause of
the development of these weapons, and that they
nuclear disarmament, the NPT will collapse and
had not been developed was evidenced by the fact
possibly lead to an increase in nuclear prolifer-
that none was found.
ation. President Obamas commitment to the NPT,

expressed in his support of UN Resolution 1887
NO RTH K O RE A
(2009), is an optimistic sign.
In 1993 North Korea was referred to the Interits safeguards. (The IAEA is an independent
For the full text of the NPT, see
organisation within the UN that promotes the
www.un.org/en/conf/npt/2005/
safe, secure and peaceful use of nuclear tech-
npttreaty.html
nologies, and veries countries compliance with

these principles.) The following year North Korea
and the United States signed an Agreed Framework between the United States of America and
the Democratic Peoples Republic of Korea. This
framework was a non-binding political commit-
The UN Security Council and

Nuclear Disarmament
ment, noted by the UN Security Council, under
While the General Assembly has concerned itself
not to manufacture nuclear weapons and to
with general disarmament and supporting both
remain a party to the NPT. However, in 2003
multilateral and bilateral treaties, the Security
North Korea withdrew from the NPT, and in 2006
Council was hamstrung for most of the postwar
it detonated a nuclear bomb, allegedly as a test.
period by the Cold War. However, since the end of
After further pressure from the Security Council in
the Cold War, the Security Council has been able
2007, North Korea agreed to abandon its nuclear
to work together to a certain extent on specic
weapons program. As of 2010 this had still not
cases. The Security Council has tended to act on a
been achieved.
which North Korea agreed, among other things,
legal links
national Atomic Energy Agency (IAEA) for violating
case-by-case basis.
I RA N
I RAQ
From 2006 the Security Council has also been
At the end of the 199091 Gulf War, the Security
putting pressure on Iran, which seems determined
Council passed Resolution 687, which set out the
to develop a nuclear bomb. However, as of 2010,
terms that Saddam Husseins Iraq was to comply
Security Council is divided on how to deal with
with. The resolution required the destruction of
Irans violations of the NPT.
all chemical and biological weapons, and ballistic missiles with a range greater than 150 kilo-
C O NC L U SI O N
metres, and required Iraq to submit to a rigorous
The International Weapons of Mass Destruction
UN inspection system. The inspections were
Commission was set up in 2003 to identify the
conducted by UNSCOM and later the United
most effective ways the international community
Nations Monitoring, Verication and Inspection
can cooperate to reduce the danger of such
Commission (UNMOVIC) throughout the 1990s
weapons. As noted by its chair, Hans Blix, the
and from the end of 2002 until the US-led inva-
Security Council cannot really be said to be doing
sion in 2003. The fact that no weapons of mass
its job with respect to nuclear disarmament. The
destruction were found after the American inva-
Commissions 2006 report, Weapons of Terror:
sion in 2003 attests to the success of the UN
Freeing the World of Nuclear, Biological and Chemical
weapons inspections. The inspectors were con-
Arms, states that the Security Council has not
437
fullled its role of establishing a system for the
Only time will tell whether the leaders of the
regulation of armaments, in order to promote
Permanent Five can make an effort to work
peace and security, as set out in Article 26 of the
together and provide leadership in this area, which
UN Charter. Article 47(1) also lays down a disarm-
represents perhaps its most important responsi-
ament role for the Security Council, and Article 39
bility. One hopeful indication that multilateral
gives the Security Council legal authority to take
approaches to the threat of nuclear weapons
action on any matter affecting international peace
will be pursued by our current world leaders
and security. It therefore has great potential power
was the historic resolution passed by the UNSC
to deal with WMD and conventional weapons by
on 24 September 2009. US President Barack
passing resolutions that virtually legislate what the
Obama chaired the meeting, which was attended
rest of the world can and cannot do. Under Article
by the leaders of all of the Permanent Five. All
25 of the Charter, UN member states are obliged
fteen members of the Security Council voted
to carry out the decisions of the Security Council.
unanimously for Resolution 1887, which pledged
As Blix report states:
the UNSC to restart stalled talks on strengthening
The primary responsibility placed upon the

Council for the maintenance of international peace
and security is thus matched by the authority that
is given to it and that can be exercised to reduce
the risk of WMD, whether in the hands of the ve
permanent members or other members of the
United Nations, or non-state actors.
measures against proliferation and making massive reductions in nuclear stockpiles. The Security
Council reafrmed its strong support for the NPT,
calling on states that were not yet signatories, such
as India, Pakistan and Israel, to sign it.
The meeting also looked towards the 2010
Review Conference, where they hoped to strengthen what they called the three pillars of the NPT.
The three pillars of the NPT were:
s disarmament of countries that currently have
nuclear weapons
s preventing countries not possessing nuclear
weapons from getting them
s peaceful use of nuclear energy for any country
that wishes to use it.
Resolution 1887 also called upon all states
to refrain from nuclear testing and ratify the
Comprehensive Nuclear Test Ban Treaty as soon
as possible.
Non-legal responses
There are numerous non-legal ways of promoting
world order. The following examples are a
government-initiated organisation, a political plan
and a non-government organsiation.
I NTERNATI O NA L WEA P O NS O F M A SS
DE STRU C TI O N C O M M I SSI O N
Figure 14.21 US President Barack Obama spoke

passionately about the need for multilateral
cooperation in urging the UNSC to pass
Resolution 1887 on 24 September 2009.
438
The Weapons of Mass Destruction Commission

was established by the Swedish government in
2003. Dr Hans Blix, former UN weapons inspector,
was appointed as chair of the Commission. It was
in 2010. Former Prime Minister Rudd
proliferation, arms control and disarmament. The
appointed Gareth Evans, who was
Commission sees its role as being a facilitator of
president of the International Crisis
informed public debate about the international
Group at the time, to the International
effort to rid the world of weapons of mass destruc-
Commission. Evans was chosen for
tion. The major achievement of the Commission
his long track record in working for
was the publication of its 2006 report, Weapons of
nuclear disarmament, starting with
Terror: Freeing the World of Nuclear, Biological and
the Canberra Commission in 1995.
Chemical Weapons. The report was in the tradition
The Commissions report was released
of the earlier Canberra Commission (1995) and
in mid December 2009. It was hoped
represented an extremely detailed investigation of
that the report, titled Eliminating
every conceivable aspect of achieving disarma-
Nuclear Threats: A Practical Guide for
ment. Australias Gareth Evans also worked on the
Global
report. In 2007, Hans Blix was awarded the Sydney
a positive contribution to the NPT
Peace Prize for his principled and courageous
Review Conference held in 2010.
Policymakers,
would
make
opposition to proponents of war in Iraq, for lifelong

advocacy of humanitarian law and non-violence,
R ESEAR CH 1 4 . 5
and for leadership of disarmament programs to rid
1 Go to the Eliminating Nuclear
the world of weapons of terror.
Figure 14.22 Hans Blix

received the Sydney
Peace Prize for his efforts
on nuclear disarmament.
Threats website and download

a copy of the report. Read
set up as a response to slowed progress on non-
l eg al l i nks
pp. 15960 detailing the

For further information see
www.wmdcommission.org/
recommendations for the NPT

Review conference.
2 Research the NPT Conference of
2010. Discuss the extent to which
the NPT Review Conference
adopted the recommendations of
the Eliminating Nuclear Threats
report.
T H E INTERNATION AL C OMMIS S ION ON
3 Evaluate the likelihood that
N U CLEAR NON-PR OL IF ER AT ION AN D
real progress will be made in
DISARM AM ENT AN D T H E N PT R EVIEW
the near future in dealing with
C O NFERENCE
the global threat to peace and
Initiatives by world leaders are an important
security posed by the existence
non-legal means of promoting world order. On
of massive arsenals of nuclear
10 June 2008, former Prime Minister Kevin Rudd
weapons.
announced a renewed attempt to kick-start

nate nuclear weapons. On a visit to Kyoto, Rudd
announced that the Australian government would
take the lead in setting up a commission to investigate nuclear disarmament plans, which would be
known as the International Commission on Nuclear
Non-Proliferation and Disarmament. The main goal
of the Commission was to develop tighter rules for
l e ga l l i nk s
global discussion on formulating a plan to elimiFor a full copy of the report,

Eliminating Nuclear Threats:
A Practical Guide for Global
Policymakers, see www.icnnd.
org/reference/reports/ent/
index.html
the 40-year old NPT when it came up for review
439
C AMPAIGN F OR N UC L EAR
s Commit to no weapons in space.
DIS AR MAMEN T ( C N D)
s Strengthen the control and security of nuclear
The Campaign for Nuclear Disarmament is a

British NGO that aims to rid the world of nuclear
weapons using non-violent means. The CND advocates immediate negotiation that will lead to a
rapid, timetabled abolition of nuclear forces world-
weapons, especially in Russia.

s Ban the production and stockpiling of ssile
material.
s Eventually make deep cuts in nuclear arms,
until we get to zero.
wide. Like other NGOs, it attempts to stimulate
s Ban all weapons of mass destruction though
widespread public debate about the global threat
a convention, in the same way that chemical
of nuclear weapons. It also participates in UN
and biological weapons have been banned by
conferences on disarmament.
treaty.
l eg al l i n k s
s Build trust, not bombs, and so assure all states

that they do not need to possess nuclear
For further information about the
CND, see:www.cnduk.org/
Conclusion
The elimination of the threat of nuclear weapons is
an enormous undertaking. However, nuclear
Issue 3: The success of

global cooperation in
achieving world order:
East Timor and UN
intervention
weapons are one of the most serious threats to
The United Nations intervention in East Timor
world order. The only other threat that is of the
in 1999 and in the years since is considered
same magnitude is climate change. The difference
a successful example of global cooperation in
is that nuclear annihilation can occur within
achieving the resolution of world order issues. In
hours, not decades. Furthermore, a decision to
the case of East Timor, the issues were the illegal
launch a nuclear attack can be made by one
invasion of East Timor in 1975, the mass atrocity
person. There will be no lengthy conferences,
crimes committed during the 25-year Indonesian
work ing group and committees to decide whether
occupation, and violence committed by pro-
to start a nuclear war. The only effective way to
Indonesian militias in 1999.
address this issue is through multilateral cooper-
Compared to the catastrophes of Somalia,
ation. No single country can solve this problem.
Rwanda and Srebrenica earlier in the 1990s, the
The UNSCs Resolution 1887 of 2009 and the 2010
UN achieved some success in Haiti, Sierra Leone
Review Conference for the NPT give some cause
and East Timor. For years, East Timor was a classic
for optimism for the future.
case of sovereignty being used as a barrier to
The world depends on the leaders of states
impede the resolution of world order issues. After
with nuclear weapons to undertake the following
illegally invading East Timor in 1975, Indonesia
actions:
governed the annexed territory harshly. It is con-
s Set an example to the rest of the world by dram-
servatively estimated that over 100 000 people
atically cutting their own nuclear arsenals.
440
weapons for their own defence.
died as a result of the Indonesian occupation.
s Take coordinated action against countries such
Reports of mass atrocities being committed
as North Korea, Iran and Myanmar/Burma
against the East Timorese were denied by the
to get them to drop their plans for nuclear
Indonesian authorities and calls for independent
armament.
observers to assess the situation were rejected.
After the Asian nancial crisis in 1998 and the

downfall of the dictatorial Suharto regime in Indonesia, there was a temporary change of heart by
the Indonesians and a UN-sponsored referendum
for the East Timorese on independence was agreed
to. However, when the East Timorese voted overwhelmingly for independence, there was a violent
backlash by pro-Indonesian supporters. Again, the
UN faced disaster. However, the UN did not give
Figure 14.23 The killing of Australian journalists at Balibo by Indonesian troops in 1975 has caused much controversy.
up, and with the strong backing of the UN Security

Council, the diplomatic pressure exerted by UN
Secretary General Ko Annan and US President
Bill Clinton, and the willingness of the Australian
government to send military forces, it was able
to stand up to the violence and guarantee East
Timors future security. The most important conclusion that can be drawn from the UN inter ven-
Figure 14.24 East Timor is one of Australias closest neighbours.
tion in East Timor was that the world organisation

was in it for the long haul. The UN not only guided
East Timor to independence in 2002, but has con-
1949, East Timor continued to be ruled as a colony
tinued nation building policies in the years since.
of Portugal until 1975. In that year, Portugal deci-
East Timor has been a success story for global
ded to give up its colony.
cooperation to resolve world order issues.
Indonesian invasion
Background
When the Portuguese left East Timor, there was
East Timor has had a painful history. Since the
division within the former colony over who should
1600s, East Timor was ruled by the Portuguese as
rule. The Indonesian government did not like the
part of their empire while the rest of Indonesia was
idea of having a small nation on its doorstep which
ruled by the Dutch. As a result of Portuguese rule,
could potentially host groups hostile to Indonesia,
the population of East Timor is a mixture of Malay
such as communists for example. Indonesia deci-
and Portuguese and the people are predominantly
ded to exploit the confusion in East Timor and
Catholic. This is in contrast to the rest of Indonesia,
invade the small country. The invasion was con-
which is mainly Muslim. While the rest of Indo-
demned by the international community and
nesia gained independence from the Dutch in
seen as a blatant case of aggression, the sort that
441
was outlawed by the UN Charter. However, the
President Habibie, asking him to allow the people
Australian government, which was in the middle
of East Timor to vote on whether to remain part of
of an election campaign at the time, turned a blind
Indonesia or become independent. Habibie agreed
eye to the Indonesian invasion. To complicate
to allow the United Nations to conduct a referen-
matters, ve Australian journalists on the border
dum on the issue.
between East Timor and Indonesia were murdered

by Indonesian soldiers. For these reasons, the
issues of East Timor and the death of the Balibo
Five journalists remained sore points in relations
between Indonesia and Australia.
The United Nations never accepted Indonesias
Legal and non-legal

responses
Legal responses
annexation of East Timor and it was debated
TH E U N SE C U RI TY C O U NC I L A ND
repeatedly over the following 25 years in the
RE SO L U TI O N 1 2 4 6
General Assembly. The Australian government did
The matter was then referred to the United Nations
not openly condemn Indonesian rule of East Timor
Security Council, which unanimously adopted
in the UN. Rather, the Australian government tried
Resolution 1246: Ballot to Decide on Special Auto-
to ensure that Indonesia ruled the territory fairly,
nomy for East Timor. The UNSC established the
sending a number of investigative missions to East
United Nations Mission in East Timor (UNAMET)
Timor to report on conditions there. However, in
and authorised the deployment of 280 civilian
1991, there was a terrible massacre of civilians
police to act as advisors to the Indonesian police
in the East Timorese capital, Dili, an event that
(in East Timor) and 50 military liaison ofcers to
happened to be lmed. When the lm footage
keep the lines of communication open to the TNI.
was aired, the world and the Australian public
Despite the robust UNSC mandate, the force
became more inclined to believe the stories of
deployed to implement it was appallingly weak.
mass atrocities that refugees from East Timor had
None of the civilian police, many of whom were
been claiming for years. In addition, there was a
Australians, was armed. The Indonesian author-
growing body of politicians in Australia who felt
ities in East Timor resented the UN-sponsored vote
that we had betrayed the people of East Timor by
and were uncooperative, even to the point of
doing nothing about the 1975 invasion, and that
paying armed groups of thugs to disrupt the pro-
now it was time we stood up for the rights of the
cess. It seemed that the UNSC still had not learnt
East Timorese.
the lessons of UN failures earlier in the 1990s, in

which dismally undermanned and under-armed
The UN-sponsored referendum
forces were sent to do a job against impossible
Since its independence from the Dutch in 1949,
odds. However, the force that the UNSC authorised
Indonesia has not had a true democracy. In 1966,
was all that the Indonesians would allow. Under
the country was ruled by General Suharto, who
international law, the Indonesians still had sover-
called himself President but ruled as a dictator.
eignty over East Timor and the UNSC was not
Suharto allowed the Indonesian army (the TNI
willing to authorise the use of military force. The
Tentara Nasional Indonesia) to have many posi-
Indonesian government was able to use its sover-
tions of power and even to have seats in the
eignty to keep UNAMET as weak as possible.
legislature. However, in 1999, widespread distur-
442
bances and protests led to Suhartos resignation.
THE REFERENDUM AND MILITIA VIOLENCE
The new president, B. J. Habibie, committed his
The referendum UN ballot was organised for
country to becoming truly democratic. In May
August 1999 and was overseen by UNAMET.
1999, Prime Minister John Howard wrote to
Unarmed UN personnel worked courageously to
U NTA ET
harassment from pro-Indonesian militia groups.
The dramatic events of 1999 were only the begin-
On 3 September 1999, the result of the ballot was
ning of the UN involvement in East Timor. INTER
announced. 78.5 per cent of the East Timorese
FET was replaced by UNTAET, which stands for
voted for independence.
the UN Transitional Administration in East Timor.
A violent reaction from pro-Indonesian militias
UNTAET was established to administer the terri-
ensued, killing hundreds of independence sup-
tory, exercise legislative and executive authority
porters, destroying many buildings and forcing
during the transition period and help East Timor
250 000 people from their homes. It is estimated
to prepare for self-government. Its mission was an
that they destroyed over 70 per cent of the infra-
ambitious one, including the exercise of judicial
structure, leaving East Timor without utilities,
powers, assisting with social services and the
health care, food or schools. Also, it was estimated
delivery of humanitarian aid, providing security,
that over the next few weeks, between 1000
and
and 2000 people were killed while the TNI and
short, UNTAETs mission was to lead East Timor
Indonesian police stood by. Foreign aid workers
to statehood and help to build the foundation for
also became targets of the militias. The TNI were
democracy.
promoting
sustainable
development.
In
even seen giving guns to militias and Kopassus
East Timor, now known as Timor-Leste, became
(Indonesian special forces) were alleged to have
an independent country on 20 May 2002. Also on
been supplying the militias with money and drugs.
that day, UNTAET was succeeded by the United
Around the world, people were appalled by the
Nations Mission of Support in East Timor
violence that was lmed by the few remaining
(UNMISET), established by Security Council resolu-
journalists before they ed the country.
tion 1410 to support administrative structures.
UN SECURITY COUNCIL RESOLUTION 1264
U N SU C C E SS I N EA ST TI M O R
The matter of the violence was discussed at the
Overall, the UNs role in East Timor has been widely
UN Security Council in New York. After two-days
judged a success for putting a halt to the militia-led
of consultations, the Security Council adopted
violence that occurred after the UN ballot, although
Resolution 1264. The resolution authorised the
it has also been criticised for not anticipating that
formation of INTERFET (International Force for
violence. Defenders of the UNs role in 1999 argue
East Timor), which was to be a UN peacekeeping
that no intervention could have occurred without
force under Australian command.
the consent of the Indonesian government, and
The Australian-led multinational force was
that proceeding without that consent would have
deployed within days. Humanitarian aid soon
had even more disastrous results. In terms of its
followed. Finally, after tense negotiations between
mission since 1999, the UNs role in East Timor is
the Australian military leaders in East Timor and
viewed as having led to positive outcomes, chiey
the Indonesian commanders, the TNI left East
the creation of East Timor as a nation. However,
Timor. INTERFET successfully brought East Timor
as UN historian Paul Kennedy reminded us in his
under control within a few weeks and the last Indo-
book, The Parliament of Man: The Past, Present
nesian troops left on 1 November 1999. The deci-
and Future of the United Nations, the success of
sive military action of the Australian armed forces
UN intervention in this case depended very much
under a UNSC mandate was hailed as an outstand-
on the willingness of a member state namely
ing success for the UN, for Australia and also for
Australia to provide military assistance. East
global cooperation. Behind the scenes there was
Timors long-term success prospects may depend
signicant diplomatic pressure put on the Indo-
on Australias continued willingness to contribute
nesian government not to attack the Australians.
to the rebuilding of the new country.
administer the vote despite constant threats and
443
Kennedy also argued that the increasing will-
DI PL O M ATI C PRE SSU RE
ingness of smaller powers like Australia to be
UN Secretary-General Ko Annan did everything
involved in peacekeeping was a good thing for the
he could, talking to all of the parties involved in
UN. The 47 000 military personnel and civilian
pursuit of an end to the violence that occurred
police serving in the UNs 15 peacekeeping opera-
after the referendum. He maintained round-the-
tions came from 88 different countries.
clock contact with the governments of Indonesia
East Timors transformation to an independent
and Portugal and governments that might play
nation was an enormous legal step, but it occurred
a key role in mounting and supporting an inter-
relatively quickly due to the help of the United
national force, such as Australia. Meanwhile,
Nations. A few months later, on 27 September
Mary Robinson, the UN High Commissioner for
2002, Timor-Leste became the 191st member of
Human Rights, expressed deep concern over
the United Nations.
reports of the escalating violence and said that

the Security Council must urgently consider
Non-legal responses
444
deploying forces to East Timor. There was much

communication between the UN and Indonesia
T H E MEDIA
in the weeks following the UN ballot, with the UN
Journalists and global media networks were able to
urging Indonesia to accept outside intervention.
broadcast real-time lm footage of the murderous
US President Bill Clinton also pressured the
rampage of pro-Indonesian militia, as well as the
Indonesian president to allow a UN intervention.
lack of action by the Indonesian army and police
Finally, the Indonesian government conceded
to stop the violence. This was highly inuential
and the Australian-led INTERFET mission began
in turning world opinion against the Indonesian
moving into East Timor, as American generals
occupation of East Timor and prompting decisive
quietly warned their Indonesian counterparts not
UN action.
to attack the Australian peacekeepers. Again, in
Figure 14.25 Australian soldiers served as UN

peacekeepers in East Timor.
Figure 14.26 Ko Annan played an important

role in ensuring a peaceful settlement of the
situation in East Timor.
the area of diplomacy global cooperation was an
the United Nations, Australia and the international
essential ingredient.
community. The December 2009 report, Handing
Figure 14.27 It was media images like this one, showing the violence that terrorised the people of East
Timor after the 1999 ballot, that turned public opinion against the Indonesian occupation of East Timor.
Back Responsibility to Timor-Lestes Police, also

N G O EXPERTISE
sounded a cautionary note. The report was very
Many NGOs are involved in East Timor, working
critical of the way in which the UN administration
in a range of areas including improving education,
came in and took control of the East Timor police.
health, womens rights and housing. There are also
In short, work by NGOs such as the ICG is
NGOs working in the area of peace and security.
indispensable for the long-term success of nation-
One notable NGO that has maintained a deep
building in East Timor.
interest in East Timor, particularly since the civil

Group (ICG). The ICG assists the East Timorese
government and the UN administration there
by producing reports on issues that are of vital
importance to East Timors future peace and
security. For instance, the February 2009 report,
No Time For Complacency, noted that the security
situation had dramatically improved since 2008
but that there were still problems with security,
the justice system was weak and corruption was
l eg a l l in k s
strife that arose in 2006, is the International Crisis

The ICG has an extensive
database on Timor-Leste,
including detailed reports on
various issues. For the latest
information on peace and
security in Timor-Leste, go to
the ICG websites at www.crisis
group.org/home/
still a concern. Assistance was still needed from
445
UN N AT ION -BUIL DIN G
The United Nations has committed itself to the

long-term future of Timor-Leste. It has learnt from
s creating 32 000 jobs through public works

projects
s supplying aid, water, food and medicine for
past mistakes of leaving conict zones too early,
thousands of internally displaced people.
only to the see that area slip back into anarchy.
Australia has given strong political and moral
The UN is using all its experience and expertise
support to the government of Timor-Leste. When
while also seeking out support globally to ensure
Timor-Lestes President Jos Ramos-Horta was
that Timor-Leste nally makes the transition to
shot in an attempted revolt by some rebels in 2008,
a strong, economically sustainable nation-state
Australia lent support by rushing the Timorese
characterised by the rule of law. To this end the
leader to hospital in Darwin and ensuring that
UN Security Council passed a resolution in 2006
Australian troops maintained peace and security
to shift the focus of the UN mission to nation-
in the country.
building. On 25 August 2006, Resolution 1704

established the United Nations Integrated Mission
Conclusion
in Timor-Leste (UNMIT). Resolution 1867 in 2009
While the United Nations intervention in East
further extended UN operations into 2010.
Timor is considered a successful example of global

cooperation in world order issues, its work did not
l eg al l i nks
nish in 1999 but continues to this day. The main

task now is building the institutions, infrastructure
For the latest information on the
and economic foundations for the future peace
UN mission in Timor-Leste see
and security of East Timor. In working towards this
unmit.unmissions.org/
goal, the United Nations knows that East Timor will
Default.aspx?tabid=225
need all of the global cooperation that it can get.

The UN also appreciates the special responsibility
that Australia has taken in helping to maintain
peace and security, and continued aid packages.
AUS T R AL IAN AID
Australia has assisted East Timor since 1999 in
fact, Australia has had to step in twice in a sig-
numerous ways. A few examples include:
nicant way in recent years. In 2006, thousands
s providing $890 million in assistance between
of extra Australian soldiers and police were rushed
1999 and 2009

s building partnerships with the World Bank and
the UN to help with the coordination of development assistance
s training 800 police for the East Timorese police
force
s providing medical aid in the form of 10 000
operations and 15 000 consultations by Australian medical personnel, and providing specialist
training for East Timorese
s training and supporting thousands of civil
servants
s 170 scholarships for East Timorese students to
study at universities in Australia
446
Australian commitment has been needed. In
to the country to restore order and prevent further

bloodshed, and in 2008 Australian reinforcements
were again sent.
The United Nations success in East Timor has
been based on global cooperation in the following
areas:
s UN Security Council working together and give
a strong legal mandate for UN intervention
s diplomatic pressure exerted on Indonesia by
John Howard, Ko Annan, Mary Robinson and
Bill Clinton
s media coverage of the violence in East Timor
s Australian willingness and capability with
respect to sending military forces in 1999
s UN commitment to continued nation-building

in East Timor
s Australian commitment to providing long-term
assistance.
which resulted in a treaty that was called Geneva

Convention for the Amelioration of the Condition of
the Wounded in Armies in the Field. This convention,
with 10 articles, was the rst Geneva Convention.
Prior to the treaty, the treatment of people
during wartime was random, with no agreed
universal standards. All nations that signed the
Convention understood that it would afford protection to their own wounded or captured soldiers in
the future. Countries had a mutual stake in agreeing to respect international humanitarian law.
International humanitarian law (IHL) refers to

that regulate the conduct of armed conict and
seek to limit its effects. The treaties that form the
basis for IHL include the Hague Conventions, the
four Geneva Conventions of 1949 and the Geneva
Protocol of 1977.
International humanitarian law had its origins
l eg al l i n k s
the body of treaties and humanitarian principles

Dunants book, A Memory of
Solferino, can be downloaded free
as a PDF le from the Red Cross:
www.icrc.org/WEB/ENG/
siteeng0.nsf/html/p0361
in the late 19th century. While travelling through
international
humanitarian law
the body of
international law
deriving from treaties
and customary
practice that governs
armed conict,
including rules on the
conduct of hostilities
and related issues that
may arise
a war-ravaged part of northern Italy on a business
Issue 4: Rules regarding

the conduct of
hostilities: International
humanitarian law
trip in 1859, a Swiss merchant named Henri

Dunant witnessed the aftermath of a battle
between French and Austrian forces near the town
Legal and non-legal

responses
of Solferino. Thousands of wounded soldiers were

lying on the battleeld, dying lingering and lonely
Today we take the rules regarding the conduct of
deaths. Dunant was appalled, and he abandoned
hostilities for granted. Warfare is still horric and
his original trip to help care for them. Reecting
some soldiers commit atrocities in war. However,
on this experience, Dunant came up with the idea
today everyone knows the standards and the
of setting up a permanent organisation that would
rules of war. No one can say that he or she did
look after the wounded of both sides in wartime.
not know that a particular action was illegal. In an
His book, A Memory of Solferino, was published in
imperfect world in which wars still occur far too
1862 and concluded with two appeals:
often, international humanitarian law encourages
s that permanent relief societies should be estab-
compliance with the standards of human decency
lished in peacetime, with nurses who would
that this branch of international law highlights.
be available to treat the wounded in the event

of war
Legal responses
s that these volunteers who give medical assis-
The International Committee of the Red Cross
tance in wartime should be protected by an
(ICRC) has a hybrid nature. It is an NGO, since it
international treaty.
was created by a group of private individuals and
In 1863 the International Committee for Relief
is not controlled by any government. However, its
to the Wounded was established. International
main role, to provide assistance and protection
conferences in Geneva, Switzerland were held
to people in wartime, is now mandated by inter-
that year and the following year, the second of
national treaties and applies to all states. Indeed,
447
of serving, were to be returned to their home

country; and the use of the white ag with a red
cross as a symbol for neutral medical units.
After the Second World War, the First Geneva
Convention was updated and expanded, giving it a
total of 64 articles. Three other Conventions were
also created. The four Geneva Conventions of 1949
specically protect people who are not taking part
in the conict civilians, medical personnel and
aid workers and those who were but no longer
are participating, such as wounded, sick and shipwrecked soldiers and prisoners of war.
In 1977 two Additional Protocols were drafted
to supplement the Geneva Conventions.
The Conventions and their Protocols contain
strict rules to deal with grave breaches, which
include wilful killing of people protected by the
Figure 14.28 Swiss citizen Henri Dunant
founded the International Committee of the Red
Cross (ICRC) in 1863.
Conventions, torture and inhuman treatment,

including biological experiments, unlawful deportation and forced service in the opposing sides
military. Persons responsible for grave breaches
must be located and tried or extradited, regardless
the Geneva Conventions are the most signed

and ratied set of treaties in the world, with 194
of their nationality.
In brief, the content of the Geneva Conventions
signatories. Therefore the Geneva Conventions
is as follows:
have universal jurisdiction. This makes the ICRC
s The First Geneva Convention (1949) protects
more than just an NGO, because the treaties give
wounded and sick soldiers on land during war,
it a legal personality of its own and raise it to the
as well as medical and religious personnel.
level of an intergovernmental organisation (IGO)
s The Second Geneva Convention (1949) protects
bearing some similarities to the status of the
wounded, sick and shipwrecked personnel at
United Nations. Like the United Nations, the ICRC
sea during war. It also protects medical staff
enjoys privileges and immunities, and its ofces
and hospital ships.
and facilities enjoy exemptions from taxation and
s The Third Geneva Convention (1949) protects
duties, inviolability of documents and premises,
prisoners of war. A central principle is that pris-
and immunity from prosecution.
oners of war shall be released and repatriated

without delay after hostilities have ended.
T R EAT IES
The primary instruments governing IHL are the
civilians, including those in occupied territory.
four Geneva Conventions.
The Second World War brought the necessity of
The 10 articles of the First Geneva Convention
448
s The Fourth Geneva Convention (1949) protects
such a convention into stark relief.
were adopted by 12 nations in 1864. The Conven-
All four Geneva Conventions have a common
tion covered the neutrality of ambulances, mili-
article, Article 3, which covers situations of intra-
tary hospitals and medical personnel; the pro-
state armed conict. This includes civil wars,
vision that wounded prisoners of war, if incapable
internal wars that spill over into other states, and
internal conicts in which other states or a multi-
Moynier, one of the founders of the ICRC, proposed
national force intervenes. This provision is of
a permanent criminal court. At the Paris Peace
essential importance given the nature of armed
Conference in 1919, a permanent criminal court
conict today.
was considered but with the massive agenda facing
s Additional Protocol I (1977) further strengthens
the representatives and the peace conference,
and bans the use of child soldiers.
never eventuated.
In 194546 the Nuremberg Trials put top Nazi
s Additional Protocol II (1977) further strengthens
leaders on trial for war crimes and set a precedent
protection for civilians in intrastate conict.
of holding leaders accountable for their actions. In
s Additional Protocol III (2005) protects people
1948, when the Convention on the Prevention and
working under any of the ofcial symbols of
Punishment of the Crime of Genocide was adopted,
the International Red Cross and Red Crescent
the UN General Assembly asked the International
Movement. (The Red Crescent was formally
Law Commission to develop a treaty establishing a
recognised in 1929, in connection with military
court to hear and determine charges of genocide.
forces from Muslim countries; the Red Crystal
However, the Cold War put an end to the project.
was introduced as an additional symbol with
In the 1990s, the UN Security Council estab-
equal status, for military forces from Israel and
lished ad hoc international tribunals in response
predominantly Jewish countries.)
to the mass killings in Rwanda and the former
The Hague Conventions of 1899 and 1907
Yugoslavia. In 1998, 160 countries and 200 NGOs
govern other aspects of the conduct of war. Along
participated in a conference resulting in the Rome
with the First Geneva Convention, they are among
Statute of the International Criminal Court. After
the earliest formal statements of the laws of
its 60th ratication in 2002 the treaty entered into
war and certain types of war crimes. They were
force and the International Criminal Court came
negotiated at two peace conferences held at The
into being. The ICC nally gave teeth to the Geneva
Hague in the Netherlands. The chief purpose of the
Conventions. Previously, the ICRC had to depend
Hague Convention of 1899 was to prohibit the use
on states to prosecute offenders. Individuals can
of certain types of technology in war, including
now be prosecuted at the ICC for war crimes under
chemical weapons and hollow point bullets, as well
the Geneva Conventions.
protection for civilians in international conict
as the aerial bombing of cities and villages. The

Hague Convention of 1907 modied and expanded
A B U G H RA I B A ND G U A NT NA M O : TH E
upon the 1899 Convention, with a greater focus on
G E NE VA C O NV E NTI O NS DEFI ED
naval warfare.
In recent years the ICRC has had to deal with
In addition to the formal written law contained
breaches of the Geneva Conventions from an un-
in treaties, customary international humanitarian
expected source: the United States. Vice President
law is another source of obligations on states.
Dick Cheney announced in 2001 that the gloves
Customary international law is general practice
were off and the United States now had to be
accepted as law by the international community.
prepared to work on the dark side in its pursuit
In 2005, the ICRC undertook an exhaustive study
of terrorists. This was more than just exaggerated
resulting in the identication of 161 rules consti-
talk. Secret orders were given to allow the use
tuting the body of customary international law.
of various torture methods on detainees in US

detention. The US government claimed that since
C O URTS
these people were terrorists and therefore unlaw-
The ICRC was instrumental in the creation of the
ful combatants, they were outside the protection
International Criminal Court. In 1972, Gustav
of the Geneva Conventions. In addition, the US
449
Figure 14.29 American forces may have violated the Geneva Conventions at Abu Ghraib prison
in Iraq.
military made it difficult for the Red Cross to visit
The Bush Administrations dabbling in the use
detention facilities. Finally, the US government
of torture badly damaged Americas international
set up a prison for people captured in the war
reputation when photos of Iraqi victims being
on terror at their military base in Cuba called
tortured in Abu Ghraib prison in Iraq were released
Guantnamo Bay. Again the reasoning was to avoid
to the media and the Red Cross released a damn
US law, albeit in a highly questionable fashion. The
ing report on the prison. Americas allies in the war,
Fifth and 14th Amendments to the US Constitution
including Britain and Australia, were dismayed
state that a person cannot be deprived of life,
that their alliance partner was sanctioning the use
liberty or property without due process of law
of torture. Not only had many of the Guantnamo
that is, they cannot be held without trial and the
inmates, including the Australian David Hicks,
Eighth Amendment prohibits cruel and unusual
been held in detention for years without being
punishment. The claim was that the constitutional
charged, but other factors made the practices
protections did not extend to foreigners held out
thoroughly imprudent. For example, it was argued
side US borders. Nor, apparently, did the Convention
that terrorists could use these photos showing the
Against Torture and Other Cruel, Inhuman and
truth about Americans treatment of Muslims to
Degrading Treatment, signed and ratified by the US
attract more recruits.
in 1994. That convention prohibits such treatment

without exception.
450
C a m b r i d g e Le g al S tu d ie s HS C
In 2009 President Obama announced that

Guantnamo Bay prison facilities would be closed
down and the remaining inmates brought to trial.

Also in 2009, discussion began in the US about
whether to conduct an inquiry into the actions of
the people at the top levels of the Bush Administration. The Obama Administration has signalled that
s evaluating the conditions of prisoners of war

held in detention
s providing food, medicine, clothes and blankets
to those in need
s facilitating
the
exchange
of
information
it will not use torture and will respect international
between people on both sides of the conict
laws in this regard.
about prisoners of war and missing persons.

million entries, which represent more than 30
The International Committee of the Red Cross
million cases over the last hundred years.
(ICRC) plays a signicant role in educating the
Today the ICRC has ofces in more than 60
military forces of the world and the general
countries and conducts operations in about 80
public about the requirements of IHL. The ICRC
countries. Geneva remains the head ofce and
has detailed guides designed for all the different
provides backup for its eld operations.
s victims
s humanitarian workers
s UN peacekeepers
s journalists
s soldiers.
The ICRC also undertakes extensive education
l eg al l i nks
groups involved in wartime situations, such as:
For further information about

the global work of the ICRC
see www.icrc.org/web/eng/
siteeng0.nsf/htmlall/icrc_
The ICRC has a database in Geneva with 55
Non-legal responses
worldwide?OpenDocument
programs in high schools around the world so

that the next generation may be fully informed
about IHL.
As well as initiating the rules and enforcement
Conclusion
mechanisms regarding the conduct of war, the
The rules regarding the conduct of hostilities
ICRC also works in many non-legal ways to help
have evolved into a sophisticated branch of public
people in armed conict. In this work, the ICRC
international law. The international community
acts as a neutral party and helps people on all sides
has given this body of law universal jurisdiction
in a conict. This does not mean that ICRC repre-
and strengthened the enforcement measures. In
sentatives stay silent if they witness atrocities or
addition, the International Committee of the Red
war crimes. The ICRC is the only organisation that
Cross has served not only to alleviate the suffering
has the right to free movement across battle lines
of people caught up in armed conict, but also as
in times of war. The following is a list of activities
an inspection mechanism on the ground. Inter-
that ICRC delegates are constantly engaged in:
national humanitarian law plays an important role
s visiting prison camps, internment camps or
in the maintenance of the international rule of law,
labour camps of both sides
which in turn promotes world order.
451
C hap ter sum m ar y

C ha p t er s um m ary tasks
452
s An ordered world is needed if states are to

cope with globalisation and to counter global
threats such as nuclear war, climate change
and economic meltdown.
s Our system of international law is based on
the concept of state sovereignty.
s Multilateral approaches are far more effective
than unilateral action in dealing with the
common problems that face the international
community.
s Competition over access to resources such as
fossil fuels and water are likely to become an
even more serious source of conict.
s The creation of the United Nations was a
massive multilateral commitment to a global
environment characterised by the rule of law.
s A growing number of international courts
exist to enforce international treaties and
conventions. These include the International
Court of Justice, the International Criminal
Court, and ad hoc tribunals set up to hear
matters arising from armed conicts.
1 Describe the main means of achieving world

order that were put in place in the rst ve
years after the end of the Second World War.
2 Explain the concept of state sovereignty and
how states can use their sovereign powers
to create treaties and promote world order,
but can also use these powers as a barrier to
international law.
3 Explain how access to resources can become
a cause of conict.
4 Assess the effectiveness of the various legal
responses to the threat of nuclear weapons.
5 Evaluate the effectiveness of the UN missions
in Timor-Leste since 1999.
s Australia has been an enthusiastic contributor

to the United Nations in the areas of the
regulation of nuclear weapons, peacekeeping
and humanitarian assistance.
s Chapter VII of the UN Charter sanctions the
use of force if authorised by the UN Security
Council, and Article 51 of the Charter allows a
nation-state to go to war in self-defence.
s The Geneva Conventions of 1949 are the
most signed treaties and are universally
applicable.
s The UN intervention in East Timor from
1999 to the present has been a success, but
this success has only been possible with the
cooperation and support of the international
community.

multinational efforts to achieve world order
over the past century.
2 Discuss the role of non-government
organisations in limiting the harm resulting
from interstate and intrastate conicts.
3 Choose one or more states and non-state
actors (which can include international
organisations) and an example of a world
order issue from recent history or current
events that has not been discussed in this
chapter. Outline the interrelationships and
critically evaluate the parties conduct.
4 Can pressure be brought to bear on a
nation-state that refuses to participate in
international efforts to promote world order?
Outline potential strategies and identify
the parties that may be able to use such
strategies. Justify your answers.
4 International humanitarian law

a applies to all people in peacetime
b applies to all people affected by armed
conicts
c was created by the Universal Declaration
of Human Rights
d only applies to about half of the states in
the world
5 The UN Security Council can override a
nation-states sovereignty when
a there are widespread human rights abuses
or mass atrocity crimes that require
intervention
b the nation-state does not trade with any
of the Permanent Five members
c there is a greater than 50% chance of
success
d the nation-state agrees to waive
sovereignty
M ul ti p l e choi ce q u e s ti o n s
Ex t en d ed re sp o n se q ues ti ons
1 The principle of the Responsibility to Protect

a is the same as humanitarian intervention
b allows the UNSC to send in peacekeepers
as soon as a country fails to meet basic
standards of human rights
c focuses more on prevention than reaction
d has yet to be agreed to by the UN General
Assembly
2 The Nuclear Non-Proliferation Treaty
a does not apply to the ve permanent
members of the UNSC
b has not been signed by Israel, India and
Pakistan
c has failed to prevent most countries of the
world from acquiring nuclear weapons
d has not been signed by Iran, North Korea
and Myanmar
3 The International Criminal Court
a was authorised by the UN Security Council
in 1998
b was set up to deal with the mass atrocities
committed by the Nazis in the Second
World War
c was created by the Rome Statute, an
agreement between a number of states
d can hear only cases against states, not
individuals

your response.
453
The role of law in encouraging cooperation

and resolving conict in regard to world order
Compliance and non-compliance in world

order contexts
s The UN Charter laid out the mechanisms for

encouraging cooperation for the purpose of
safeguarding human rights and promoting
social and economic progress. It also gave
detailed guidelines for resolving disputes
using peaceful means and for the use of force
by the UNSC if all else fails.
s The ICRC has encouraged all military forces to
educate their personnel about international
humanitarian law, particularly the Geneva
Conventions, and seeks to educate the
community about how to alleviate the
suffering of people affected by war.
s NGOs use education and persuasion to
encourage global cooperation.
s Multilateralism is an approach to world order
that draws on the individual and collective
strengths of the various parties, and is
generally the most effective way to resolve
conicts.
s Peacekeeping has been strengthened since
the 1990s by the willingness of the UNSC to
use Chapter VII powers to give its operations
legal authority.
s Interdependence of states encourages

greater compliance with international law, but
also may contribute to non-compliance.
s State sovereignty can be used as an
impediment to compliance with international
law, but also may encourage compliance,
especially when two or more states agree on
world order issues.
s States that fail to comply with the Geneva
Conventions and other mechanisms that
regulate the conduct of hostilities will usually
face international condemnation.
s The UN and the Security Council sought to
secure compliance from Indonesia in 1999 by
intervening in East Timor.
s International courts and tribunals seek
to enforce individuals compliance with
international law by providing a means to
bring people to justice when their countries
either cannot or will not take action.
s Force, persuasion and political negotiation
are generally used to obtain states
compliance with international law.
s Force alone is generally ineffective in
producing long-term compliance with the law;
hence the need for more measured, longterm approaches, such as are represented by
R2P and the Peace Building Commission.
The effect of changing values and ethical
standards on world order
s The UN Charter represents a fundamental

change in world order; it declared war to be
illegal except in specied conditions, and
declared the protection of human rights to be
one of the world communitys main priorities.
s The Universal Declaration of Human Rights
marked a fundamental change in the values
of the international community and laid
the foundation for a major new branch of
international law.
454
The role of law reform in promoting and

maintaining world order
s As the doctrine of Responsibility to Protect

becomes the norm, all those organisations
involved in dealing with difcult regimes that
have little regard for their citizens will have
clear guidelines on how to proceed.
s The Geneva Conventions have been subject
to ongoing improvement for over 150
years; the ICRC continues to educate both
the public and all military forces about
the Conventions, as well as monitor their
observance.
s The Nuclear Non-Proliferation Treaty has
proved very useful in limiting proliferation
to a small number of countries. However,
genuine reform must occur from 2010 to
tighten the treaty and enforce compliance
by intransigent states, as well as to reduce
nuclear stockpiles signicantly.
s UN peacekeeping was grafted onto the UN
system to meet an urgent need during the
Cold War. Since then it has been accepted as
performing an invaluable role in maintaining
world order.
s The International Criminal Court plays a
critical role in enforcing international human
rights law and international humanitarian law.

responses in promoting and maintaining world
order
s Most international law is made by treaties,

which therefore have a major role in giving
order and direction to global governance.
s UNSC resolutions have the force of law and
are binding upon all UN member states.
However, it is only since the 1990s that a
level of cooperation has existed between
the permanent members of the UNSC to
allow their effective operation. If the UNSC
members are prepared to back them with
action, UNSC resolutions can be the most
powerful legal mechanism.
s The advent of the ad hoc tribunals in the
1990s marked the beginning of a new chapter
in using international courts to maintain world
order by prosecuting serious breaches.
s NGOs use investigation, research, education
and lobbying to promote the welfare of
individuals and groups.
s Wise political leadership is always a necessary
ingredient for promoting a just and stable
world order.
s The Genocide Convention declared that the

international community will never again
tolerate the sort of genocide carried out by
the Nazis against the Jews in the Second
World War.
s Responsibility to Protect places the security
of individuals at the centre of the international
communitys concern, rather than the security
of states.
s UNSC Resolution 1887 of 2009 marked a
return to multilateral cooperation in dealing
with the threat of nuclear war.
455
Pa rt I
Answers to multiplechoice questions
C H APT ER 1
1b
2a
3d
C H A P TER 4
4d
5b
1a
C H APT ER 2
1a
2d
3a
5a
4a
5a
4d
5b
4c
5d
Issu e 1 1 c
2c
3a
4b
5d
Issu e 2 1 b
2c
3b
4a
5a
4b
5a
P art I I
3c
4a
5c
4b
5c
4c
5d
CH A P TER 1 3
1a 2d 3c 4c
5a
1b
C H APT ER 3
2b
3c
C H A P TER 5
4c
1a
2d
2c
3c
C H A P TER 6
1d
2c
3c
C H APT ER 7
1b
2c
3b
C H APT ER 8
1b
2c
3c
Pa r t I I I
C H APT ER 9
C H APT ER 10
1a
2c
3a
C H APT ER 11
1c
2c
3b
C H A P TER 1 4
4a
5d
4d
5d
C H APT ER 12
1c
456
2c
3a
1c
2b
3c
4b
5a
Glossary
abolitionism a worldwide political
movement that sought to abolish
slavery
acceptance the unconditional
consent to all the terms of the offer
accused the person or alleged
offender that the criminal action is
being taken against
acquittal a judgment that a person
is not guilty of the crime with which
the person has been charged
actus reus a Latin term meaning
guilty act that refers to the
physical act of carrying out a crime
ad hoc for a particular purpose,
usually exclusive and often
temporary
adoption the legal process of
transferring parental rights and
responsibilities from the biological
parents to the adoptive parents
adversary system a system of law
where two opponent sides present
their case to an impartial judge or
jury
advertising any action designed to
draw the attention of consumers to
the availability of goods or services
in the marketplace
affray using or threatening to
use violence towards another that
would cause a reasonable person
present at the scene to fear for
their safety
aggravated assault the assault of
a person with an object rather than
the assailants own body
aggravated sexual assault in
company sexual assault performed
with another person or people
present together with aggravating
circumstances
aggravating factors circumstances
that make the offence more serious
and can lead to an increased
sentence
alternative dispute
resolution dispute resolution
processes, such as mediation,
arbitration and conciliation, that do
not involve courts
ancestor a person from whom

someone is descended, on
either parents side; a parent,
grandparent, great-grandparent,
etc.
annulment a declaration by a
court that a supposed marriage is
in fact void
appeal against conviction appeal
where the appellant (the
defendant) argues that they did
not commit the offence for which
they were found guilty
appeal an application to have a
higher court review a decision of a
lower court
appellant in an appeal case, the
party who is making the appeal
appellate jurisdiction the
authority for a court to review
matters on appeal from another
court
Apprehended Domestic Violence
Order (ADVO) a court order
that aims to protect the applicant
from violence and other forms of
intimidation or abuse perpetrated
by a family member
Apprehended Personal Violence
Order (APVO) a court order that
aims to protect the applicant
from violence and other forms of
intimidation or abuse perpetrated
by someone who is not a member
of the applicants family
arbitration (industrial relations law)
process of resolving an industrial
dispute, often after conciliation
has failed, by a legally enforceable
order of a court or commission
arrest to seize a person by legal
authority and take them into
custody
assault a criminal offence involving
the infliction of physical force or
the threat of physical force
attempt an offence where a
principal crime was attempted but
failed or was prevented for some
reason despite the intention to
complete it
Australian Consumer Law the

collection of federal consumer
laws, attached as Schedule 2 of the
Competition and Consumer Act
2010 (Cth) formerly the Trade
Practices Act
Australian Federal Police
(AFP) Australias Commonwealth
police force established to enforce
Commonwealth criminal law and
to protect Australias interests from
crime in Australia and overseas
Australian Workplace Agreement
(AWA) an individual workplace
agreement between an employer
and an employee under the
Workplace Relations Act 1996
(Cth); an AWA would override and
take the place of any award or
collective agreement
autonomy freedom of the will,
self-government; the ability to act
without outside interference
bail the temporary release of an
accused person awaiting trial,
sometimes on particular conditions
such as lodgment of a sum of
money as a guarantee
bait advertising advertising goods
or services for sale at a specified
price with the knowledge that the
company will not be able to offer
them at that price for a reasonable
period
better off overall test (BOOT) a
criterion for Fair Work Australias
approval of an enterprise
agreement, requiring that
employees are better off overall
than under the relevant modern
award
beyond reasonable doubt the
standard of proof required in
criminal law, which requires the
prosecution to show there is no
reasonable doubt that the accused
committed the offence
bilateral agreement an agreement
between two countries
biodiversity variation of life forms
on Earth; the complete range of
types that is possible within an
ecosystem, biome or species
457
blended family a family that is

created when a parent remarries;
it includes the stepmother or
stepfather and stepchildren
bond a compulsory condition
imposed on the offender for a
period of time, which the offender
undertakes to comply with
breach to fail to obey
break and enter commonly
known as burglary, break and enter
offences usually occur when a
person enters a home with intent
to commit an offence
built environment all of the
buildings, transport routes and
infrastructure, parks, and other
surroundings that have been made
by people and constitute the
setting for human activities
burden of proof in criminal
matters, the responsibility of the
prosecution to prove the case
against the accused
cartel a group of companies that
work together to control prices and
markets; if their behaviour is found
to be anti-competitive, it is illegal
casual employment employment
as needed, on an irregular basis,
with no set schedule or guarantee
of ongoing employment; generally
paid at an hourly rate
causation the link between the
behaviour of the accused and the
result (i.e. that the behaviour of
the accused actually caused the
criminal act alleged)
caution (1) a formal, recorded
alternative to prosecution where
the young offender admits to the
offence and consents to receiving
a formal police caution; it can
later be taken into account at the
Childrens Court, but not an adult
court
(2) a statement issued by police to
a suspect when they are detained
to inform them of their rights
celebrant a person who is
authorised to perform a civil or
religious marriage ceremony
challenge for cause when the
legal team strikes a juror because
it is believed that for some reason
the juror will be prejudicial
charge formal accusation of a
person of committing a criminal
offence
458
child soldier a person under the

age of 18 who participates, directly
or indirectly, in armed conflict as
part of an armed force or group,
including both armed and support
roles
circle sentencing a form of
sentencing for some adult
Aboriginal offenders where
sentencing is conducted in a circle
of local community members and a
magistrate
codification the spelling out of
obligations in legislation (domestic
law) or in a treaty (international
law)
Cold War the state of hostility,
without actual warfare, between
the USSR and its satellites and the
USA and its allies in the Western
world, which lasted from just after
the Second World War until about
1991
collective right a right belonging
to a group or a people, as opposed
to an individual right
collective security the principle
based on the agreement of a
group of nations not to attack one
another and to defend each other
from attack from others; the idea is
that an attack on one country is an
attack on all
committal proceedings where
a magistrate determines if there
is enough evidence for a case to
proceed to trial in a higher court
common assault threatening to
cause physical harm to another
person
communal killing violence and
killing within communities
community service order where
the offender is sentenced to serve
specified hours of work in the
community
compensation a monetary
payment made to a person to
make amends for any loss, injury,
or damage to property
consent it is a complete defence
for some crimes if the accused can
show the victim freely consented to
the act in question
conciliation (1) a form of
alternative dispute resolution in
which the disputing parties use
the services of a conciliator, who
takes a more active role than in
mediation, advising the parties,

suggesting alternatives and
encouraging the parties to reach
agreement. The conciliator does
not make the decision for them
(2) process of resolving an
industrial dispute by mutual
agreement of the parties, ratified
by a court or commission
conclusive presumption a legal
presumption in favour of one party
that is final (conclusive) and cannot
be rebutted by the other party
condition (of a contract) a term
of fundamental and essential
importance; if a condition is
breached by a party the other
party is entitled to end the contract
conscription compulsory
enlistment in the military force of a
nation-state
consensus ad idem a Latin term
meaning agreement as to the
same things; agreement between
the parties to a contract about the
terms
consideration something given,
done or suffered in return for a
promise in a contract
conspiracy when two or more
people plot to commit a crime
together
constitutional corporation a
corporation to which s51(xx) of
the Australian Constitution applies;
these include foreign corporations
and companies incorporated under
Australian law that engage in
financial activities and buying and
selling
constructive manslaughter the
killing of a person while the
accused was carrying out another
dangerous or unlawful act
consumer contract a contract for
the supply of goods or services,
or for a sale or grant of interest in
land, to an individual purchasing
the goods, services or land for
personal or household use
contemporary slavery a form of
forced or bonded labour, without
or with pay, under threat of
violence
continued detention on-going
detention of a person after they
have already served the full
sentence for their offence
contract for services an

agreement between a contractor
and a client, under which the
contractor performs agreed
tasks for an agreed fee but is not
employed by the other party
contract of service an
employment agreement, under
which a worker (employee) works
for an employer, imposing certain
duties on each party and providing
specific rights for the period of
employment, which may be for a
fixed term or ongoing
control order similar to an adult
sentence of imprisonment, except
served in a juvenile justice centre
convention another term for a
treaty: that is, an international
agreement between parties who
are subject to international law (i.e.
nation-states but also international
organisations such as the United
Nations and its bodies)
cooling-off period a period of time
that gives buyers an opportunity to
rethink their decision to enter into a
contract of sale
coroner a judicial officer
appointed to investigate deaths in
unusual circumstances
coronial inquest a court hearing
conducted by a coroner to help
determine the manner and cause
of death
correctional centre commonly
known as a prison institution
where offenders are held in
custody for the period of their
imprisonment
court hierarchy the system of
courts within a jurisdiction, from
lower courts to intermediate and
higher courts
crime against the international
community a most serious crime
of concern to the international
community as a whole, and
recognised as punishable by the
crime an act or omission com
mitted against the community at
large that is punishable by the state
crimes against humanity crimes

such as murder, enslavement,
deportation from a country,
torture, rape and persecution that
occur on a large and systematic
scale
criminal infringement notice
a notice issued by the police
outside of court alleging a criminal
infringement and requiring
payment of a fine
criminal negligence where the
accused fails to foresee the risk
where they should have and so
allows the avoidable danger to
manifest
criminology the scientific study of
crime and criminal behaviour
customary international law a
general practice of law, which is
followed by nation-states because
they view it as obligatory and
legally binding
damages money ordered by a
court to be paid to a plaintiff as
compensation for damage suffered
de facto relationship a
relationship where the partners act
as a married couple but are not
legally married
debt bondage a situation where
a person is forced to repay a loan
with labour instead of money,
where the proper value of the
labour is not applied towards
repayment or the type or duration
of services are not properly limited
debt slavery slavery in order to
pay off a loan with forced labour
rather than money
declaration a formal statement
relating to a particular issue or set
of issues, agreed to by a group of
nation-states but without binding
legal force
decree absolute a final decree of
the dissolution of marriage
decree nisi a Family Court order
that is made to signal the intended
termination of a marriage
descendant a person who by
genetics or adoption follows the
family line of another; a child,
grandchild, great-grandchild, etc.
deterrent something that discour
ages or is intended to discourage
someone from doing something
dictatorial (of a government)

having unrestricted authority or
power
diminished responsibility also
known as substantial impairment of
responsibility, this defence is used
when the accused is suffering from
a mental impairment that caused
them to commit the crime
direct discrimination a practice
or policy of treating a person or
group of people less favourably
than another person or group in
the same position, on the basis
of sex, race, national or ethnic
origin, age, sexuality or other
characteristic
G los s ary
contract an agreement made

between two or more persons
that is recognised by the courts as
being legally binding on the parties
discrimination unfavourable treat

ment of a person or group relative
to the way others are treated
diversionary program an
alternative to the traditional court
system, diversionary programs
focus on therapeutic justice and
rehabilitation of offenders
division of powers the
arrangement for the how the
powers between the federal and
state government and divided.
divorce the legal termination of
a marriage by an official court
decision
DNA evidence genetic material
(such as hair, blood and saliva) that
can be used to link a suspect with a
crime scene or criminal offence
doli incapax a Latin term
meaning incapable of wrong; the
presumption that children under a
certain age cannot be held legally
responsible for their actions and
cannot be guilty of an offence
domestic violence any act,
whether verbal or physical, of a
violent or abusive nature that takes
place within
dominion a semi-autonomous
political entity that was nominally
under the sovereignty of the British
Empire
dualist system a legal system that
does not deem treaties enforceable
domestically but requires
incorporation into domestic law,
usually by passing similar legislation
duress coercion or pressure used
to influence someone; a defendant
may be acquitted if they can show
they acted against their will under
unlawful pressure
Gl o s s a r y
459
ecological footprint a measure

of human demand on Earths
ecosystems, comparing human
demand with the planets
ecological capacity to regenerate;
a persons impact on the planet as
a result of his or her lifestyle
ecologically sustainable
development (ESD) development
which aims to meet the needs of
society today, while maintaining
and conserving ecological
processes for the benefit of future
generations
Economic and Social Council
(ECOSOC) the UN organ acting as
a forum for international economic
and social cooperation and
development
embezzlement when a person
steals money from a business over
a period of time while they are
employed at that workplace
employment the contractual
relationship between an employer
and an employee, involving work
performed for monetary payment
and other benefits
enterprise a business or company
enterprise agreement a legally
binding agreement between the
employees of a corporation, nonprofit organisation or government
body, and their employer, setting
the terms and conditions of the
employment relationship
enterprise bargaining negotiation
of an agreement about wages and
working conditions by an employer
and its employees, or the trade
union representing them
enumerated powers legislative
powers that are specifically set
out as belonging to a particular
parliament; in Australia, the
enumerated powers of the
Commonwealth Parliament are
listed in s51 of the Constitution
envirostunt a publicity stunt to
attract attention to a particular
environmental issue
equal employment opportunity
legislation laws requiring
employers to ensure that people
are not subjected to discrimination,
to eliminate factors that restrict
groups opportunity to enjoy
employment benefits, and perhaps
to implement programs that
provide specific opportunities to
disadvantaged groups
ethnic cleansing a term used as a
euphemism for genocide
460
evidence information supporting

to used to establish facts in a legal
investigation or admissible as
testimony in court
ex aequo et bono a Latin term
meaning according to the right
and the good; on the basis of what
is fair and just in the circumstances
ex-nuptial a Latin term meaning
outside marriage; an ex-nuptial
child is a child born outside a
marriage
express rights rights that are
expressly included in a document
express terms contractual terms
that have been specifically stated
and agreed by both parties at the
time the contract is made, either in
writing or orally
extended family a family that
includes individuals related through
marriage or parentage and not
limited to one couple and their
children; in some cultures, close
family friends are regarded as
members of the extended family
external costs (externalities) the
effects of an activity, such as the
production, transport and sale of
goods, which affect persons who
are not directly involved in the
activity and are not paid for by
those who are involved, such as the
producer
extradition the legal surrender of
a suspect or convicted criminal by
one jurisdiction to another to face
criminal charges or sentence
fascism an authoritarian system
of government that is opposed
to democracy and is marked by
the State having total control over
the economic, social, cultural and
political life of the people
fiduciary duty (1) legal obligations
that must be fulfilled without
regard to self-interest or the
opportunity to make unauthorised
profit from the position
(2) the legal duty to manage a
clients money while it is held in a
trust account
fine monetary penalty imposed for
infringement of a law
fit for purpose an implied term in
contracts of sale, guaranteeing that
the goods sold will do what they
were designed to do
forced labour work performed
under the threat of a penalty or
harm which the person has not
voluntarily submitted to
forced marriage marriage in which

one or both parties is married
against his or her will, often on
promise of payment of money or
goods to the family or other person
involved
forfeit (also known as forfeiture)
loss of rights to property or assets
as a penalty for wrongdoing
Four Freedoms the freedoms for
all people called for by US President
Franklin Roosevelt in his 1941 State
of the Union address, including
freedom of speech and conscience,
and freedom from fear and want
fraud deceitful or dishonest con
duct carried out for personal gain
free trade trade between countries
that is subject to few or no
government restrictions on imports
or exports
freedom of contract the freedom
of individuals to bargain the terms
of their own contracts, without
regulation by the state
General Assembly (UNGA) the UN
organ representing all UN members
states; acts as a forum for global
discussion and runs numerous
committees and programs
general deterrence punishment
attempting to make an example
of an offender in order to send
a message to the rest of the
community
Geneva Conventions four treaties
and three additional protocols that
set the standards in international
law for the humane treatment of the
victims of war
genocide the deliberate
extermination of a national, ethnic,
racial or religious group
global financial crisis the
international collapse of banks
and credit institutions, along with
devaluation of many currencies,
a downturn in stock markets, and
decline in international trade,
caused by a cluster of factors
including the sudden drop in
property values in the USA in
September 2008
globalisation the ongoing
integration of regional economies,
societies and cultures brought
about by the removal of restrictions
on international trade, travel and
mass communication
good faith the intention to honour
a commitment undertaken
grave adult behaviour where a

young offender has acted like an
adult in committing the offence,
indicated by the seriousness of
the offence and other factors
surrounding the behaviour such as
premeditation
greenfields agreement an
agreement created to cover
prospective employees of a new
enterprise
guideline judgments a judgment
issued by the court on application
of the Attorney-General that will
set out sentencing guidelines for a
particular offence
guild a medieval association of
craftsmen or merchants
hard law conventions and treaties
that under international law create
legally binding obligations on their
members
harmonised legislation statutes
in two or more jurisdictions which
deal with certain matters in the
same way
form of slavery; usually recruiting,

transporting or obtaining a person
by force, coercion or deceptive
means
to work overtime, or doing only the

minimum required; the purpose is
usually to protest unjust workplace
policies of the employer
humanitarian intervention the

doctrine justifying military
intervention in a state in order to
stop serious human suffering and/
or human rights violations
industrial award a standard set of

wages and working conditions for
employees in a particular industry
or type of work, or those who are
employed by particular employers
implied rights rights that can be

implied through the text, structure
or purpose of a document
industrial relations the

relationship between employers,
employees, the government and
trade unions
implied terms contractual terms

that have not been expressly
stated, but which the courts are
willing or required by statute to
enforce
in situ a Latin term meaning in the
place; used to describe the place
in which a piece of evidence is
found or situated
inadmissible evidence evidence
that cannot be considered by
a judge or jury in court, for
example, evidence that has been
compromised or was obtained by
unlawful means
inalienable right a right that
cannot be taken away
heads of power powers listed in

ss 51 and 52 of the Constitution
that describe the areas that the
Commonwealth can legislate on
incapacitation to make an
offender incapable of committing
further offences by restricting their
freedom
hegemony dominance of one

nation over others
incorporation the process by

which a country implements a
treaty into domestic law
holistic taking into account all

aspects; looking at the whole
system rather than just specific
components
home detention imprisonment
sentence where the offender is
confined to their home under
certain conditions of monitoring
homicide the act of killing a
human being
(UNHRC) UN forum of member
states responsible for overseeing
and making recommendations on
human rights in all member states
human rights in a general sense,
basic rights and freedoms believed
to belong justifiably to all human
beings
human shield the placement of a
civilian in or around military targets
to deter the other party from
attacking that target
human trafficking the commercial
trade or trafficking in human
beings for the purpose of some
indecent assault an assault

and act of indecency on or in
the presence of another person
without their consent
independent contractor someone
who is paid for work done for
another person without there
being a contract of employment
between them; instead, the parties
will have a contract for services
indictable offences more severe
offences that are heard and
sentenced by a judge in a District
Court or tried before a judge and
jury
indirect discrimination practices
or policies that appear to be
neutral or fair because they treat
everyone in the same way, but
which adversely affect a higher
proportion of people from one
particular group
G los s ary
gratuitous violence excessive

amount of violence carried out
without reason, cause or excuse
Industrial Revolution the rapid

development of industry in the 18th
and 19th centuries, characterised
by changes in manufacturing,
agriculture and transport
infanticide the death of a baby
under the age of 12 months at the
hands of its mother
injunction a court order directing
someone to do something or
prohibiting someone from doing
something
injury management a program
developed for an injured worker
that includes all aspects of his
or her treatment, rehabilitation
and retraining, and is aimed at
facilitating his or her return to work
inquisitorial system a system
of law where two sides present
their cases to a judge who directs
the cases and calls for particular
evidence
insider trading when a person
illegally trades on the share market
to their own advantage using
confidential information
instrument a document by which
some legal objective is achieved;
may be binding (e.g. statutes,
treaties and deeds) or non-binding
(e.g. guidelines, declarations and
recommendations)
interdependence the
interconnection of two or more
states to such an extent that they
are mutually dependent on each
other for survival and mutually
vulnerable to crises
intergenerational equity fair and
just behaviour of one generation
towards subsequent generations;
in terms of environmental issues, a
concept that centres on preserving
Earths resources for future
generations
industrial action any action

taken by employees to reduce
productivity in the workplace, e.g.
strikes, slowdowns of work, refusal
Gl o s s a r y
461
intergovernmental organisation
(IGO) an organised group of two
or more states, set up to pursue
mutual interests in one or more
areas
International Labour Organization

(ILO) an international agency of
the United Nations, created with
the aim of improving conditions for
workers around the world
International Bill of
Rights informal term collectively
describing the UDHR, ICCPR and
ICESCR combined
interrogate (interrogation) the act

or process of questioning a suspect
by the investigating officers
international conference a forum

held for the purpose of debate and
agreement among nation-states
(ICJ) the principal judicial organ
of the UN; has jurisdiction to hear
disputes submitted by member
states and issue advisory opinions
Civil and Political Rights
(ICCPR) binding international
treaty creating obligations on
states to respect civil and political
Rights (ICESCR) binding
international treaty creating
obligations on states to respect
economic, social and cultural rights
of individuals
international crime a broad term
covering any crime punishable by
a state with international origin
or consequences, or a crime
recognised as punishable by the
internationally community
(ICC) an independent international
court established by the Rome
Statute in July 2002 to prosecute
and try international crimes of the
most serious nature
International Criminal Police
Organization (INTERPOL) the
worlds largest international police
to facilitate collaboration among
intelligence agencies around the
world
international customary
law actions and concepts that
have developed over time to the
extent that they are accepted by
the international community and
have become law
international humanitarian
law the body of international
law deriving from treaties and
customary practice that governs
armed conflict, including rules
on the conduct of hostilities and
related issues that may arise
462
interview friend a parent,

guardian, friend or legal
representative present at the
police interview of a minor; the
presence of an interview friend is
to offer support and witness that
statements are made voluntarily
intestacy the situation in which a
person dies without a legally valid
will
intragenerational equity fair
and just treatment of people and
groups within a generation; in
terms of environmental issues,
a concept that focuses on fair
management and use of Earths
resources between different groups
of the same generation
regardless of whether a particular

leader or nation accepts it
juvenile justice centre a detention
centre housing young offenders
subject to a control order
juvenile justice the area of law and
policy concerned with young people
and the criminal justice system
labour rights rights at work,
including rights to safe working
conditions, minimum wages, paid
leave or the right to join a trade
union
laissez-faire a French term used to
describe economic philosophies that
government should not intervene in
business
laissez-faire economy an economic
system in which the state refrains
from interfering with markets by
regulation or other means
larceny when one or more persons
intentionally takes another persons
property without consent and
without intention of returning it
investigate for the police, this

means carrying out research to
discover evidence and examine
the facts surrounding an alleged
criminal incident
legal aid a subsidised legal service

provided by the state for lowincome earners
invitation to treat words or

conduct made to invite someone
to make an offer or to negotiate
litigation civil legal proceedings

whereby disputing parties seek a
binding remedy by a court
involuntary behaviour or
automatism an act that could not
be controlled or was not voluntary,
such as an epileptic fit
locus standi a Latin term meaning

a place for standing; also
standing: a requirement that a
person or group have a sufficient
interest in the subject matter in
order to be permitted to bring an
action
involuntary manslaughter the

killing of a person where the death
occurred because the accused
acted in a reckless or negligent
way without intention to kill
licensee licence holder
magistrate a judicial officer in

the Local Court; in NSW they are
appointed by the Governor
journeyman dating from the later

Middle Ages, a worker who had
completed his apprenticeship
(period of training) and was then
qualified to work for wages for a
master
maintenance a financial payment

made by one spouse to contribute
to the care and welfare of the
other spouse and/or children of the
marriage
judicial discretion the power of

a judge or magistrate to make
a decision within a range of
possibilities based on the particular
circumstances of a case
mandatory sentencing removal of

judicial discretion by legislation, by
setting a minimum or mandatory
sentence for a particular offence or
type of offender
jus cogens a Latin term meaning

compelling law also called a
peremptory norm: a norm of
customary international law that
is indisputably accepted by the
international community and is
therefore binding on everyone
manslaughter the killing of a person

in a manner that is considered to be
less intentional than murder
marriage the union of a man and a
woman to the exclusion of all others,
voluntarily entered into for life
maximum penalty set by

parliament, this is the maximum
sentence available to a court
to impose for an offence; the
maximum penalty will rarely be
handed down
mediation a form of dispute
resolution in which a neutral third
party helps the disputing parties to
settle their dispute
mens rea a Latin term meaning
guilty mind, meaning that the
accused intended to commit the
crime knowing their actions were
wrong
mental illness or insanity mental
incapacitation at the time of the
act, meaning the accused cannot
have formed the mens rea, but
rarely proved
merchantable quality a condition
in contracts, implied by statute,
guaranteeing that goods offered
for sale are of a sufficiently high
quality to be suitable for sale, and
are fit for their usual purpose
militia a group of unofficial
soldiers who act outside
international law and are often
secretly used by governments
mistake the defendant acted
under an honest and reasonable
mistake and could not have formed
the mens rea
mitigating factors conditions that
may be considered by a court when
determining guilt or innocence
of a defendant; mitigating
circumstances do not justify or
excuse an offense but may reduce
the severity of a charge
monist system a legal system
that deems treaties enforceable in
domestic law as soon as they have
been signed
monopoly exclusive control of a
market by one company, which
generally results in increased prices
because there are no alternative
suppliers
multilateral treaty an international

agreement involving three or more
parties
multilateralism cooperation
between multiple states for mutual
benefit or protection from common
threats
murder the deliberate killing of a
person
nation a people that share
common heritage, language or
culture and sometimes a common
race
nation-state see state
by the victorious allied powers in

Nuremburg, Germany after the
Second World War; the trials are
famous for their prosecution of
prominent leaders of defeated
Nazi Germany for crimes against
humanity and war crimes
observer status in the United
Nations General Assembly (GA),
the position of an organisation or
other entity that has been granted
the right to speak at GA meetings,
participate in procedural votes,
and sponsor and sign resolutions,
but not to vote on resolutions and
other important matters
natural environment all of the

elements that surround and
influence life on Earth, including
atmospheric conditions, soil, plants,
animals and micro-organisms, the
water cycle, and the systems in
which these elements interact
offer a firm proposal to form a

binding contract, made with a
willingness to be bound by its
terms
natural justice the body of rules

that ensure that decision-makers
act fairly, in good faith and without
bias when resolving disputes
offeror the person making an offer

of a contract
natural law the theory that certain

laws come from an unchanging
natural body of moral principles
as the basis for all human conduct,
and so have validity everywhere
neglect continued failure by a
parent to provide a child with the
basic things needed for proper
growth and development, e.g.
food, shelter, medical care, hygiene
and supervision
negligence breach of a duty of
care resulting in harm that could be
foreseen
non-government organisations
(NGOs) independent nonprofit groups based on common
interests and aims, which have no
connection with any government
and which often play an important
role in advocating, analysing and
reporting on various issues
non-parole period a period of
imprisonment for which parole
cannot be granted
offeree the person to whom the

offer of a contract is made
Office of the High Commissioner

for Human Rights UN human
rights office responsible for
monitoring and reporting on
human rights worldwide
original jurisdiction the authority
for a court to hear a matter for the
first time
outworker an employee who
works at home or another place
besides the premises of his or
her employer, or an independent
contractor in the textile, clothing
or footwear industry who works at
home or other premises
parole release of a prisoner before
the expiry of an imprisonment
term, temporarily or permanently,
on the promise of good behaviour
peacekeeping the activity of
creating conditions for sustainable
peace in countries affected by
conflict, through the use of force,
quite often provided by a number
of countries and consisting of
soldiers, civilian police and civilian
personnel
nuptial a Latin term meaning

marriage; a nuptial child is a child
born within a marriage
peak body an association made

up of a number of organisations
that have similar interests and aims;
the peak body will set policy and
coordinate common activities for
the organisations
Nuremburg trials a series of

military tribunals that took place
from 1945 to 1946; they were held
penalty units a specified unit

of money used in legislation to
describe the fine payable
nullify to declare legally void or

invalid
G los s ary
mass atrocity crimes (mass

atrocities) a broad term for
crimes that fall into the categories
of genocide, war crimes, ethnic
cleansing and crimes against
humanity; this is the term favoured
by the UN since it avoids making
distinctions of whether the crimes
were committed in war or peace,
or as part of an intrastate or
interstate conflict
Gl o s s a r y
463
people smuggling illegal

transportation of people across
borders, where people voluntarily
pay a fee to the smuggler, usually
free to continue on their own after
arrival in the hope of starting a new
life in the destination country
peremptory challenge when the
legal team strikes a juror without
needing a specific reason
preventative detention detention

of a person in custody without
having committed any offence, in
case of some future harm that they
may commit
periodic detention imprisonment

sentence where the offender
spends a period of each week or
month in prison and the rest of the
time at home
price-fixing suppliers keeping

prices in the market at a certain
level by agreeing among
themselves not to lower or raise
their prices
Permanent Five the permanent

five members of the UN Security
Council, namely France, the United
Kingdom, China, Russia and the
United States
probate a legal document that is

issued by the court and certifies
that the will is true and correct
(proved), and authorises the
executor to administer the estate
picket line a line of striking union

members forming a boundary
outside or near their place of
employment, which others are
asked not to cross
probation a type of good

behaviour bond where the offender
is released on condition of good
behaviour but placed under some
form of supervision, such as daily
reporting to a probation officer
plea a formal statement of guilt

or innocence entered into by the
accused
plea bargaining agreement
between the prosecution and the
accused on the acceptance of a
guilty plea, usually in exchange for
something else
police prosecutor a NSW police
officer trained in prosecution,
usually used to prosecute summary
offences
pollution environmental damage
caused by the discharge or
emission of solid, liquid or gaseous
materials into the environment
polygamous having more than
one wife or husband at the same
time
positivism the theory that laws
are valid simply because they
are enacted by authority or from
existing decisions, and that moral
and ideal considerations do not
apply
precautionary principle the
principle stating that if an action
or policy may cause serious harm
to people or to the environment,
the best course of action is to
halt or modify that activity, even
when there is no certain proof of
the probability of the risk or the
seriousness of the harm
press-ganging the act of forced
conscription used in England
464
during the 1800s; groups of

men known as press gangs were
employed by the government to
recruit people forcibly into lifetime
service with the armed forces
proceeds of crime assets (money

or property) obtained by an
offender through their criminal
activities
product warranty a manufacturers
promise or assurance that it will
repair or replace or otherwise
compensate for defective goods;
breach of a warranty entitles
the aggrieved party to sue for
damages, but not to end the
contract
profit financial gain; money
remaining after expenditures have
been subtracted from total income
prosecute when the Crown or
state take action against the
offender in a court of law
protocol an instrument that
supplements a treaty, containing
specific provisions that the parties
have committed to in order to fulfil
the terms of the treaty
provocation a defence where the
accused claims that the actions
of another person caused him or
her temporarily to lose control;
the act of inducing rage, anger, or
resentment in another person that
may cause that person to engage
in an illegal act
public defender public barristers
who can appear for an accused
in serious criminal matters where
legal aid has been granted
public prosecutor a legal prac

titioner employed by the Director
of Public Prosecutions, usually used
to prosecute indictable offences
pyramid selling an illegal form of
selling whereby an individual pays
to become a distributor of a good
in return for a reward for recruiting
new distributors
ratification a nations formal
declaration of consent to be bound
by a treaty and to give it domestic
effect
reactionary responding to a
situation after it has occurred
reasonable force such force as is
reasonably necessary for the officer
to perform the function; the officer
must honestly believe that it was
justified and not excessive
rebuttable presumption a legal
presumption in favour of one party
it can be rebutted by the other
party if they can show sufficient
evidence to disprove it
recidivism habitual or repeated
lapses into crime
recklessness when the accused
was aware that their action could
lead to a crime being committed,
but chose to take that course of
action anyway
referral of powers the giving up
of a states legislative powers in a
certain area to the Commonwealth
by passing an act, pursuant to
s51(xxxvii) of the Australian
Constitution
regulation a form of subordinate
legislation, comprising a set of
rules made under an act on the
legislatures delegated authority
(e.g. the Executive), providing the
technical and administrative detail
required by the Act
rehabilitation an objective of
sentencing designed to reform
the offender to prevent them
committing offences in the future
relinquishing parents parents who
nominate their child for adoption
remand a period spent in custody
awaiting trial at a later date
remedies means by which redress
or reparation is provided for the
breach of a legal right
remorse deep regret or sorrow for
ones wrongdoing
sedition promoting discontent,

hatred or contempt against a
government or leader of the
State through slanderous use of
language; in Australia, sedition
includes offences of urging force or
violence against the government
residual powers government

powers that are not listed in s51
of the Australian Constitution
as legislative powers of the
Commonwealth Parliament, and
which thus belong to the states
self-defence or necessity the

defendant acted in defence of self,
another or property; only accepted
in limited circumstances and only
for reasonable force
resolutions decisions passed by

the General Assembly or Security
Council; when passed by the
Security Council they can be legally
binding on all member states
self-determination the right of

people of a territory or national
grouping to determine their own
political status and how they will
be governed
restorative justice a form of

sentencing involving a voluntary
conference between the offender
and the victim of the crime
sentence appeal an appeal

against the severity or leniency of
a sentence
retrenchment the loss of a job

because there is no longer a job for
the employee to do
retribution punishment considered
to be morally right or deserved
based on the nature of the crime
right to peace the right of citizens
to expect their government will do
all in its power to maintain peace
and work towards the elimination
of war
right to silence the right of a
person to refuse to answer any
question put to them on the
grounds they may incriminate
themselves
riot similar to affray, but with 12 or
more people using or threatening
to use unlawful violence for a
common purpose
robbery when property is taken
directly from a victim, usually
forcefully
Rome Statute the Rome Statute of
the International Criminal Court, an
international treaty that establishes
the International Criminal Court
search and seizure the power to
search a person or their possessions
and seize and detain items that are
discovered
Secretariat the UN administrative
body headed by the UN SecretaryGeneral; contains the departments
and offices of the UN
Security Council (UNSC) the UN
organ responsible for maintenance
of international peace and security;
power to authorise military action or
other measures
sentencing hearing a hearing

following a finding of guilt in
which a magistrate or judge will
determine the sentence to be
handed down to the accused
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
sexual assault when someone is
forced into a sexual intercourse
against their will and without their
consent
sexual harassment unwelcome
and uninvited behaviour of a sexual
nature, which is likely to intimidate,
humiliate or offend the person
towards whom it is directed
sexual intercourse broadly
defined in the Crimes Act 1900
(NSW) to include oral sex or
penetration of the vagina or anus
by any part of another persons
body or by an object manipulated
by another person
sexual slavery repeated violation
or sexual abuse or forcing of a
victim to provide sexual services;
it often takes the form of forced
prostitution or forced labour where
sexual abuse is also common
slavery a type of forced labour
where a person is considered to be
the legal property of another
soft law any international
instrument, other than a treaty,
that contains principles, standards
or other statements of expected
behaviour but does not have legal
consequences for non-compliance
(e.g. declarations and resolutions
of the UN General Assembly)
sovereignty the right of a nation

to control its territory and peoples
without external interference
specific deterrence punishment
against an individual offender
aiming to deter them from
committing crime in the future
stand down to suspend
employees without pay from the
workplace, usually temporarily
standard of proof the level of
proof required for a party to
succeed in court
G los s ary
rescission (of a contract) the

termination of a contract with the
courts approval; rescission treats
the contract as if it never existed
and discharges the parties from
their obligations
state an independent country;

in law, an internationallyrecognised entity possessing
the characteristics required for
statehood; not to be confused with
political divisions within a federal
system, like the states of Australia
or the United States
state sovereignty the authority
of an independent state to govern
itself (e.g. to make and apply laws;
impose and collect taxes; make
war and peace; or form treaties
with foreign states)
strict liability offence an offence
where the mens rea does not need
to be proved; only the actus reus
(the guilty act) needs to be proved
strike employees organised
withdrawal of labour until a
grievance is resolved
suffrage the legal right to vote in
a democratic election
suffragette a supporter of
womens right to vote (or womens
suffrage); the term was first used
in Britain at the end of the 19th
century
summary offences less severe
offences that are heard and
sentenced by a magistrate in the
Local Court
summons a legal document that
states when and where a person
must appear in court and, if they
are the accused, the charge to
which they must answer
supranational an organisation
in which decisions are made
by the appointed or elected
representatives of the member
states; because decisions are made
by majority vote, it is possible for
a member state to be forced to do
something against its own will
surety in bail, where another
person agrees to provide a
financial guarantee that the
accused will return to the court for
trial in exchange for the accuseds
temporary release
Gl o s s a r y
465
suspended sentence a sentence

of imprisonment imposed but
suspended on condition of good
behaviour
tax evasion an attempt to avoid
paying the full amount of taxes due
by concealing or underestimating
a person or businesss income or
assets
terrorism acts of violence against
a population, intended to cause
terror and thereby influence a
government
testator a person who makes a will
the Crown the state party who
commences a criminal action
in a court of law against the
offender. In NSW, the action
is usually commenced by the
Director of Public Prosecutions.
If the alleged crime is against a
federal criminal law then the action
is usually commenced by the
Commonwealth Director of Public
Prosecutions
the state a term used to refer to
the government and the people
that it governs
trade union an association
of wage earners, formed to
maintain and improve the working
conditions of its members
trafficking dealing or trading
in something illegal, particularly
drugs
transatlantic slave trade the
trading of African people by
Europeans, transporting them as
slaves from Africa to the colonies
of the New World
transnational crime crimes that
occur across international borders,
either in origin or effect
treason an attempt or manifest
intention to levy war against the
state, assist the enemy, or cause
harm to or death of a head of state
trust account a bank account
for money held and dealt with on
behalf of clients by a professional
or business acting as a fiduciary for
the clients
466
been impaired by some external

factor (e.g. age, disability, lack of
education) or he or she may have
been deceived or threatened by
the stronger party
unfair dismissal under the Fair
Work Act 2009 (Cth)s385,
termination of employment for
reasons that are harsh, unjust or
unreasonable, as found by Fair
Work Australia
unilateral undertaken by one
nation-state
Universal Declaration of Human
Rights (UDHR) a declaration
of rights signed adopted by
the United Nations in 1948,
representing the first universal
acceptance of the idea of human
rights and becoming the reference
point of all subsequent human
rights treaties
universal education the right to
free and compulsory education for
all children
universal jurisdiction where
a state claims a rare right to
prosecute a person for actions
committed in another state, based
on the common international
opinion that the alleged crime is so
serious that normal laws of criminal
jurisdiction do not apply
universal suffrage the right for
all citizens to vote in political
elections, regardless of status,
gender, race or creed
vicarious liability legal liability of
an employer for the wrongful act
of another
victim impact statement a written
statement by the victim or victims
family about the impact the crime
has had on them, heard at the time
of sentencing
voluntary manslaughter the killing
of a person where the accused did
intend or was reckless about killing
someone but there are mitigating
circumstances
Trusteeship Council inactive since

1994 but originally responsible for
overseeing transition of UN trust
territories after decolonisation
war crimes crimes such as wilful

killing, deportation or ill-treatment
of civilians, taking of hostages and
extensive destruction of property
committed in the context of war
and that are in violation of the
Geneva Conventions
unconscionable conduct one

partys exploitation of the
vulnerability of another party to
a contract; the victim may have
warning a notice given to a young

offender (usually for a first minor
offence) that is recorded by police
but with no conditions attached;
the offender must be told of the

nature, purpose and effect of the
warning
warrant a legal document issued
by magistrate authorising an officer
to perform a particular act, for
example make an arrest, conduct
a search, seize property or use a
phone tap
warranty a term of a contract
whose breach entitles the
aggrieved party to sue for
damages, but not to end the
contract
weights and measures laws laws
that govern weights and measures
stated on the packaging of
products (such as food and
beverages) or as indicated on
the trading premises (e.g. at a
petrol station) in order to protect
consumers from being cheated or
deceived
white-collar crime a general term
for various non-violent crimes
associated with professionals
or businesspeople, such as
embezzlement, tax evasion or
insider trading
will a document that states how a
person intends to have his or her
property distributed after his or her
death
workers compensation a
compulsory insurance scheme paid
into by employers to compensate
employees injured at work through
financial payments; claims do not
require proof of fault
workplace surveillance an
employers use of technology
such as cameras, computers
and tracking devices to monitor
employees
world order the activities and
relationships between the worlds
states, and other significant
non-state global actors, that
occur within a legal, political
and economic framework; an
international set of arrangements
for promoting stability
wrongful dismissal termination
of employment that constitutes
a breach of the employment
contract, an award or a statute
youth justice conference a
measure to divert young offenders
from the court system through
a conference that addresses the
offenders behaviour in a more
holistic manner
Index
A
abolitionism 148
acceptance (of a contract) see contracts
accused 412, 15, 18, 20, 30, 32, 39, 401, 46, 4853,
569, 613, 68, 746, 103, 108, 120, 122, 132,
174, 335, 352
acquittal 58, 61
actus reus 68
adoption 317, 319, 321, 32730, 338, 3489, 396
Adoption Act 2000 (NSW) 319, 321, 329
adversary system 52, 61
affray 9, 18, 30
AFP see Australian Federal Police
African Charter on Human and Peoples Rights 159
Age Discrimination Act 2004 (Cth) 185, 381, 384
aggravated assault see assault
aggravated sexual assault in company see assault
aggravating factors 735, 107
American Convention on Human Rights 159, 177
annulment 314, 316, 321
Anti-Ballistic Missile Treaty 436
Anti-Discrimination Act 1977 (NSW) 185, 323, 343,
3836, 429
Anti-Terrorism Act (No. 2) 2005 (Cth) 14
appeals 46, 767, 133, 140, 201, 343
against conviction 77
appellant 767
appellate jurisdiction 46, 4951, 378
Apprehended Domestic Violence Order (ADVO) 3345,
337, 356
arbitration 239, 338, 356, 363, 3678, 374, 3778, 402
arrest 30, 369, 100, 102, 140, 211, 259, 326
assault 810, 12
aggravated 12
aggravated sexual assault in company 1213, 77
common 12
indecent 12, 49
sexual 9, 1215, 22, 31, 59, 68, 71, 756, 83, 105,
141
attempts 18
Australian Crime Commission Act 2002 (Cth) 129
Australian Federal Police (AFP) 16, 30, 1278, 200
Australian Federal Police Act 1979 (Cth) 127
Australian Human Rights Commission 1857, 3201,
3423, 357, 381, 3856, 399, 403
Australian Human Rights Commission Act 1986 (Cth) 185,
321, 284
Australian Securities and Investment Commission Act 2001
(Cth) 234, 250, 254, 265
Australian Workplace Agreements (AWA) 368
autonomy (of children) 3267
B
bail 30, 401, 55, 100, 102, 113, 141, 3346
hearing 46, 48, 53
Bail Act 1978 (NSW) 40, 334
bait advertising 2367, 257
beyond reasonable doubt 6, 57, 63, 967

bilateral agreements 132, 296, 328
biodiversity 26970, 272, 2779, 2823, 285, 295, 303
birth technologies 3467
blended family see family
bond 20, 80, 108
breach 6, 89, 19, 50, 7980, 83, 109, 119, 161
break and enter 1416, 34
built environment see environment
burden of proof 57, 184
C
care and protection see children
Cartagena Protocol on Biosafety 277
casual employment see employment
caution 39, 789, 1023, 1068
caveat emptor 2245, 264
challenge for cause 62
charge 67, 1012, 18, 2021, 323, 3941, 468, 50,
558, 103
criminal 68, 79, 108, 132, 245, 302
defences to 5861
Charter of the United Nations 121, 296, 308, 417
Child Protection (Offenders Registration) Act 2000 (NSW)
88, 321
child soldiers 205215
defining 2057
extent of issue 2079
responses to 21015
Children (Criminal Proceedings) Act 1987 (NSW) 967, 101,
104, 321, 324, 335
Children (Protection and Parental Responsibility) Act 1997
(NSW) 321, 324
Children and Young Persons (Care and Protection) Act 1998
(NSW) 3225, 327, 3345, 339, 350
children
care and protection of 49, 104, 312, 321, 339, 3503
Childrens Court Act 1987 (NSW) 49, 104, 106, 321
Childrens Court see courts
circle sentencing see sentencing
codification 272, 390
Cold War 164, 406, 41115, 41720, 4357, 449, 455
collective right 1578
collective security 156, 158
committal proceedings 478, 534, 105
common assault see assault
communal killing 413
community service order 8081, 1089, 141, 356
Competition and Consumer Act 2010 (Cth) 2338, 242, 245,
248, 252, 254, 257, 260, 265
Comprehensive Test Ban Treaty 422, 436
conciliation 2489, 363, 3678, 374, 3778, 402
Conciliation and Arbitration Act 1904 (Cth) 363
conclusive presumption 967
condition 401, 807
conspiracy 9, 1819, 50
467
constitutional corporation 368, 3723

constructive manslaughter see manslaughter
Consumer, Trader and Tenancy Tribunal 241, 246
Consumer, Trader and Tenancy Tribunal Act 2001 (NSW)
246
consumers 22265
nature of consumer law 22442
redress and remedies 2429
contemporary issues concerning 24961
contemporary slavery see slavery
Contracts Review Act 1980 (NSW) 233, 248
contracts
acceptance of 2268, 264
contract for services 360, 3645, 3878
contract of service 360, 3645, 3878, 392
freedom of contract 362
rescission of 231, 247
control order 1089, 112
Convention on the Conservation of Migratory Species of
Wild Animals (1983) (CMS) 276
Convention on the Rights of the Child (1989) 96, 100, 104,
107, 210, 321, 324, 3345
Convention on Wetlands of International Importance (1971)
(Ramsar Convention) 286
cooling-off period 239, 375
Copyright Amendment Act 2006 (Cth) 5
coroner 48
Coroners Act 2009 (NSW) 48
Coroners Court see courts
coronial inquest 48
Corporations Act 2001 (Cth) 244
correctional centre 81, 867, 108
court hierarchy 467, 49, 51, 104, 328
Court of Criminal Appeal see courts
courts
Childrens Court 467, 49, 534, 94, 989, 1037,
11012, 3212, 324, 335, 33940
Court of Criminal Appeal 501, 75, 77, 10910
Coroners Court 468
District Court of NSW 20, 46, 4950, 53, 61, 77, 246
High Court of Australia 47, 51, 56, 77, 88, 96, 133,
174, 179, 1837, 201, 2312, 2801, 2934, 344,
365, 367
Land and Environment Court 46, 4950, 279, 293,
295
Local Court of NSW 20, 35, 4650, 534, 61, 77, 83,
334
Supreme Court of NSW 35, 47, 4951, 53, 55, 601,
77, 98, 182, 185, 319, 336, 349, 367, 378, 3912
credit 16, 237, 240, 24552, 256, 258, 265, 232
Credit Act 1984 (NSW) 248
crime
against humanity 120, 1224, 127, 132, 172, 175,
178, 210, 41212, 424
against the international community 11821, 123,
1257, 131, 1367, 162
categories of 820
defining 46, 118
elements of 68
international
nature of 46
parties to a 201
prevention 235
Crimes (Administration of Sentences) Act 1999 (NSW) 86
Crimes (Appeal and Review) Act 2001 (NSW) 77
468
Crimes (Domestic and Personal Violence) Act 2007 (NSW)

333, 335
Crimes (Sentencing Procedure) Act 1999 (NSW) 6870, 73,
76, 7981
Crimes (Serious Sex Offenders) Act 2006 (NSW) 88
Crimes Act 1900 (NSW) 37, 68, 79, 324, 333
Crimes Act 1914 (Cth) 13, 71, 119
Crimes Amendment (Computer Offences) Act 2001 (NSW) 5
Criminal Assets Recovery Act 1990 (NSW) 80
Criminal Code (Slavery and Sexual Servitude) Amendment
Act 1999 (Cth) 200
Criminal Code Act 1995 (Cth) 129, 200, 213
Criminal Code Amendment (Trafficking in Persons Offences)
Act 2005 (Cth) 200
criminal infringement notice 78
criminal negligence 67
criminology 10, 21, 34, 112
Crown, the 4, 6, 13, 60, 767
customary international law 210, 272, 2845, 287, 423,
449
Customs Act 1901 (Cth) 16
D
damages 6, 2302, 247, 285, 387
de facto relationship 312, 316, 31920, 3279, 332,
3367, 339, 342, 343, 347
debt bondage 196, 199201
debt slavery see slavery
Declaration on the Right of Peoples to Peace 161
decree absolute 330
decree nisi 330
Defence Act 1903 (Cth) 213
detention
home detention 73, 813, 141
periodic 81, 83, 86, 141
deterrence
general 70, 75, 82, 109
specific 70
deterrent 6970, 7980,112, 136, 212
diminished responsibility 61
direct discrimination see discrimination
Disability Discrimination Act 1992 (Cth) 185, 381, 384
discrimination 146, 152, 179, 1857, 3205, 3414,
369, 372, 374, 377, 381, 3834, 386, 399, 403
direct 383
indirect 383
District Court Act 1973 (NSW) 49
District Court of NSW see courts
diversionary program 834, 110
division of powers 1823
divorce 31221, 32930, 3379, 356
DNA evidence see evidence
doli incapax 959
domestic violence 10, 31, 40, 320, 3337
Drug Misuse and Trafficking Act 1985 (NSW) 16
dualist system 182
duress 59, 74, 103, 229, 2324, 314, 369
E
East Timor 420, 430, 4407, 454
ecologically sustainable development (ESD) 27780, 289,
296
Economic and Social Council (ECOSOC) 173, 2812,
418
Education Act 1870 (Great Britain) 155, 324
F
Fair Trading Act 1987 (NSW) 233, 2356, 239, 248, 252,
254, 257, 265
Fair Work Act 2009 (Cth) 3689, 3724, 3769, 381, 384,
3934, 3967
family 31057
alternative family relationships 31720
blended 312, 31819
contemporary issues concerning family law 34153
definitions of 3124
extended 111, 312, 344
Family Law Act 1975 (Cth) 312, 31517, 31921,
3234, 32932, 3378, 345, 34851, 356
and Other Measures) Act 2008 (Cth) 312, 319, 342
Family Law Amendment (Shared Parental
Responsibility) Act 2006 (Cth) 323, 330, 345, 350
Family Law Reform Act 1995 (Cth) 323
nature of family law 31229
responses to problems concerning family law
32941
single-parent families 31718
fascism 154
fiduciary duty 240, 242
fines 1820, 70, 79, 108
fit for purpose 230, 233, 248, 264
forced labour 129, 147, 149, 151, 1958, 200, 202
forced marriage see marriage

forfeit 55, 80
Four Freedoms 163
fraud 16, 51, 79, 1256, 130, 1356, 196, 206, 256,
261, 265, 393
free trade 274, 422, 426, 429
freedom of contract see contracts
G
General Act of Brussels 149
General Assembly see United Nations General Assembly
general deterrence see deterrence
Geneva Conventions 124, 127, 141, 210, 220, 4224,
440, 449
Geneva Conventions Act 1957 (Cth) 127
genocide 11924, 1312, 136, 172, 175, 178, 210, 220,
412, 422, 424, 427, 432
global environmental protection
contemporary issues relating to 296305
nature of 26871
development of law 2714
responses to 28096
global financial crisis 4067
globalisation 118, 2746, 406
grave adult behaviour 109
greenfields agreement 372
guideline judgments 689
I nd ex
education
universal 147, 1558
embezzlement 1415, 23, 50
employment
and trade unionism 1512
casual 366, 393, 399
contract 3647
full-time 326, 366, 393, 403
termination of 368, 370, 3925
enterprise agreement 369, 3723, 3756, 381, 3923
enumerated powers 293, 319
Environment Protection and Biodiversity Conservation Act
1999 (Cth) 26970, 272, 279
environment
built 269
natural 269
Environmental Planning and Assessment Act 1979 (NSW)
2702, 296
equal employment opportunity legislation 385
Equal Opportunity for Women in the Workplace Act 1999
(Cth) 3845
ESD see ecologically sustainable development
ethnic cleansing 175, 407, 432
Evidence Act 1995 (NSW) 32, 57, 320
evidence
DNA 334
gathering of 30, 324, 36
inadmissible 32
use of 39, 248, 536
physical 6
ex-nuptial 317, 321, 327, 344
children 327, 329
express rights 182, 184
express terms 2301, 366
extended family see family
external costs 268
extradition 1325, 259
Extradition Act 1988 (Cth) 1323
H
Hague, The 120, 4089, 412, 423
hard law 163, 2845
heads of power 183
hegemony 414
High Court of Australia see courts
home detention see detention
homicide 911, 107
Human Rights (Sexual Conduct) Act 1994 (Cth) 179
Human Rights Commission Act 1986 (Cth) 185
see United Nations Human Rights Council
human rights
and state sovereignty 1712
defining 1467
developing recognition of 14762
formal statements of 1625
in Australian law 1829
in the international community 170
promoting and enforcing 17082
human trafficking 12531, 149, 194204
humanitarian intervention 416, 433
humanitarian law see international humanitarian law
I
ICC see International Criminal Court
ICCPR see International Covenant on Civil and Political
Rights
ICESCR see International Covenant on Economic, Social and
Cultural Rights
ICJ see International Court of Justice
IGO see intergovernmental organisation
ILO see International Labour Organization
implied rights 182, 184
implied terms 230, 2323, 264, 3667
in situ 32
inadmissible evidence see evidence
inalienable right 146
In d e x
469
incapacitation 71, 73, 8187

indecent assault see assault
indictable offence 9, 20, 35, 38, 46, 54, 99100, 1045
indirect discrimination see discrimination
industrial action 363, 375, 378
industrial award 367
industrial relations 360, 363, 36872
Industrial Relations Act 1996 (NSW) 3723, 377, 379, 384
Industrial Revolution 151, 224, 268, 3602
infanticide 1011
injunction 236, 270, 334
inquisitorial system 52
insider trading 1415, 23
intergenerational equity 2789, 289
intergovernmental organisations (IGO) 170, 176, 214,
4256, 448
International Bill of Rights 1645, 1723, 176
International Court of Justice (ICJ) 173, 1778, 281, 285,
287, 296, 418, 423
International Covenant on Civil and Political Rights (ICCPR)
164, 171, 422
International Covenant on Economic, Social and Cultural
Rights (ICESCR) 153, 1645, 171, 422
International Criminal Court (Consequential Amendments)
Act 2002 (Cth) 127, 182
International Criminal Court (ICC) 1207, 1312, 137,
162, 1745, 178, 182, 21012, 288, 422, 424
International Criminal Court Act 2002 (Cth) 127, 182
International Criminal Police Organization (INTERPOL)
134, 176
international customary law 163, 423
international humanitarian law 177, 180, 427, 447, 449,
4545
International Labour Organization (ILO) 152, 195, 197,
203, 213, 381, 383, 403
INTERPOL see International Criminal Police Organization
interrogation 39, 1024
interview friend 1024
intestacy 316, 320
intragenerational equity 2789
invitation to treat 2278
involuntary manslaughter see manslaughter
M
magistrate 20, 33, 356, 3940, 479, 523, 55
maintenance (family) 31527, 3313, 338, 342, 347
mandatory sentencing see sentencing
manslaughter 78, 1012, 4950, 61, 83, 98, 105
involuntary 11
voluntary 10
constructive 11
Marriage Act 1961 (Cth) 31217, 320, 341
marriage
annulment of 314, 316, 321
forced 1969, 207
polygamous 320
mass atrocity crimes (mass atrocities) 407, 41213, 416,
424, 431, 4334, 440
media, the 14, 62, 105, 181, 247, 283, 2912, 340, 343,
3803, 427, 430, 450
mediation 85, 239, 2489, 251, 316, 331, 337, 33940
mens rea 68, 10, 589, 95, 97
merchantable quality 230, 233, 243, 248, 264
Migration Act 1958 (Cth) 689
Miscellaneous Acts Amendment (Same-Sex Relationships)
Act 2008 (NSW) 342
mitigating circumstances 10, 61
mitigating factors 73, 75
monist system 182
monopoly 244
Motor Dealers Act 1974 (NSW) 241
Motor Vehicle Repairs Act 1980 (NSW) 241
multilateral treaty 272, 284
multilateralism 407, 409
murder 4, 8, 10, 123, 1820, 4951, 5961, 6870,
105, 124, 209, 211, 334, 353
partial defences to 61
judicial discretion 689, 73

Judiciary Act 1903 (Cth) 46, 51
Jury Act 1977 (NSW) 61, 63
Jury Amendment (Verdicts) Act 2006 (NSW) 63
jus cogens 423
juvenile justice 945, 100, 108, 111
juvenile justice centre 108
nation 118, 171, 220, 265

nation-state see state
natural environment see environment
natural law 1467
neglect (family) 321, 3235, 334, 3503
NGO see non-government organisation
non-government organisation (NGO) 1812, 202, 207,
381, 427
non-parole period 81, 87, 108
Nuclear Non-Proliferation Treaty 300, 411, 422, 436
nuclear threat 435
nuptial 317
Nuremburg trials 123, 132
K
Kyoto Protocol 159, 280, 2856, 28990, 297, 299300,
303, 429
L
labour rights 147, 151, 165
laissez-faire economy 224, 362
Land and Environment Court see courts
larceny 14, 16, 22, 50, 78
Law Enforcement (Powers and Responsibilities) Act 2002
(NSW) 30, 357, 39, 1004
leave 152, 36474, 376, 380, 3924, 3969
legal aid 54, 56, 243
Legal Aid Commission Act 1979 (NSW) 56, 243
470
Legal Aid NSW 56, 339

licensee 241, 2512
Limited Nuclear Test Ban Treaty 411
Local Court Act 2007 (NSW) 467
Local Court of NSW see courts
locus standi 270
Lubanga Dyilo, Thomas 211
O
observer status 171, 180, 291
Occupational Health and Safety Act 2000 (NSW) 379,
38990, 402
offer (consumers) 2268
offeree 226
offeror 226
P
parental responsibility 317, 324, 3301, 339, 3446
parole 81, 83, 87, 108
peacekeeping 128, 173, 412, 4167, 41921, 427, 430,
443
penalty units 79, 108
people smuggling 125, 196
peremptory challenge 62
periodic detention 81, 83, 867, 141
Permanent Five 416, 41820, 432, 438
plea bargaining 545, 141
police
powers 30, 356, 38, 78, 100, 141, 321
prosecutor 53
polygamous marriages see marriages
positivism 1467
post-sentencing considerations 869
precautionary principle 2789, 285, 304
probation 80, 83, 10811
product certification 2526
product warranty see warranty
Property (Relationships) Act 1984 (NSW) 319
Protection of the Environment Operations Act 1997 (NSW)
270, 293
Protocol to Prevent, Suppress and Punish Trafficking in
Persons, especially Women and Children 135, 199
provocation 10, 601
public defender 54
public prosecutor 20, 54
pyramid selling 237, 256, 258
R
R2P see responsibility to protect
Racial Discrimination Act 1975 (Cth) 381, 384, 429
reasonable force 30, 33, 38, 59, 102
rebuttable presumption 967
recidivism 72, 82, 845, 110, 1401
recklessness 7
referral of powers 312, 373
relinquishing parents 327, 329
remand 41, 63, 81, 108, 110, 113
remedies (consumers) 225, 231, 234, 2429
Representation of the People Act 1918 (Great Britain) 153
rescission (of a contract) see contracts
residual powers 183, 293
responsibility to protect (R2P) 175, 220, 4335
restorative justice 845, 141
retribution 713, 81,109
right to peace 147, 161
right to silence 39, 101
Rio Declaration 159, 2779, 286, 289, 295
robbery 14, 16, 212, 50, 105, 110
Rome Statute of the International Criminal Court 1207,
1312, 182, 21013, 422, 424, 430, 449
S
Sale of Goods Act 1923 (NSW) 233, 248, 265
Same-Sex Relationships (Equal Treatment in
Commonwealth Laws General Law Reform) Act
2008 (Cth) 342
same-sex relationships 179, 186, 31314, 31921,

3414, 349, 357
search and seizure 30, 356, 100, 188
Secretariat see United Nations Secretariat
Security Council see United Nations Security Council
sedition 9, 1314
self-determination 147, 1568
sentence appeal see appeals
sentencing
alternative methods to 845
circle 845
factors affecting 5, 68, 736
guidelines for 55, 68
hearing 689
mandatory 69
role of victim in 76
separation of powers 1823, 187, 363
Sex Discrimination Act 1984 (Cth) 185, 341, 381, 384,
386
sexual assault see assault
sexual harassment 207, 382, 384, 386, 393
sexual slavery see slavery
situational crime prevention 23, 256
Slave Trade Act 1807 (Great Britain) 148
Slavery Abolition Act 1833 (Great Britain) 148
Slavery Convention 149, 199
slavery
abolition of 1478, 150
and human trafficking 129, 149, 194
and torture 164
contemporary 195204
debt 1478
sexual 123,149, 196, 200
social crime prevention 23, 256
soft law 163, 2845, 296, 3045, 309
sovereignty see state sovereignty
Spam Act 2003 (Cth) 256, 260, 265
specific deterrence see deterrence
standard of proof 6, 57, 339
state sovereignty 11819, 137, 170172, 175, 178, 189,
220, 280, 285, 290, 296, 301, 304, 308, 4078,
41518, 433, 440, 442, 454
state 46, 10, 13, 20, 22, 30, 46, 48, 53, 68, 70, 94, 119,
127, 134, 140, 155, 163, 172, 175, 224, 241, 249,
252, 280, 2849, 296, 317, 319, 322, 324, 338,
3746, 412, 41516, 418, 423, 4323
Status of Children Act 1996 (NSW) 317, 321, 327, 3478
Stockholm Declaration (1972) 159, 289
strict liability offence 8, 19
strike 1512, 363, 375
Succession Act 2006 (NSW) 316, 31920, 327
Succession Amendment (Family Provision) Act 2008 (NSW)
316
Succession Amendment (Intestacy) Act 2009 (NSW) 316,
320
suffrage see universal suffrage
summary offence 16, 18, 20, 467, 50, 54, 100, 110
Summary Offences Act 1988 (NSW) 16, 18, 20, 100
summons 40
Superannuation Guarantee (Administration) Act 1992 (Cth)
382
Supplementary Convention on the Abolition of Slavery, the
Slave Trade and Practices Similar to Slavery 199
Supplementary Protocol to Prevent, Suppress and Punish
Trafficking in Persons, Especially Women and
Children 200
I nd ex
Office of the High Commissioner for Human Rights

1736
Optional Protocol to the Rights of the Child on the
Involvement of Children in Armed Conflict 210
original jurisdiction 46, 51
In d e x
471
Supreme Court Act 1970 (NSW) 50

Supreme Court of NSW see courts
surety 40
surrogacy 34651
suspended sentence 34, 80, 82, 108
T
tax evasion 1415, 79, 1256
technology 16, 33, 118, 130, 300, 309, 394, 410, 449
and consumers 25961
birth 34650
Telecommunications Act 1997 (Cth) 25960
termination of employment see employment
Terrorism (Police Powers) Act 2002 (NSW) 88
terrorism 14, 22, 88, 1256, 128, 134, 141, 1834, 231,
413, 426
testator 232, 327
Trade Practices Act 1974 (Cth) see Competition and
Consumer Act 2010 (Cth)
Trade Practices Amendment (Australian Consumer Law) Act
2009 (Cth) 234, 250
trade union 147, 152, 156, 163, 186, 3603, 369, 372,
382, 394
Trade Unions Act 1871 (Great Britain) 152
trafficking see human trafficking
Trafficking Victims Protection Act of 2000 (US) 203
transatlantic slave trade 1489
transnational crimes 11819, 12531, 1346, 199
treason 13, 49
Treaty of Rome 426
Treaty of Versailles 160
Treaty of Westphalia 4078
Treaty on European Union (Maastricht Treaty) 426
Trusteeship Council 157, 173, 418
U
UDHR see Universal Declaration of Human Rights
UN see United Nations
unconscionable conduct 231, 233, 236, 239, 248
unfair dismissal 369, 374, 3789, 393
unilateral 433
union see trade union
United Nations Convention Against Torture and Other Cruel,
Inhuman and Degrading Treatment 422, 450
United Nations Convention on Biological Diversity 277
United Nations Convention on International Trade in
Endangered Species of Wild Fauna and Flora
(CITES) 276, 282, 286, 2978, 3023
United Nations Convention on the Law of the Sea
(UNCLOS) 272, 422, 425
United Nations Convention on the Prevention and
Punishment of the Crime of Genocide 121, 123, 413,
422, 449
United Nations Declaration of the Rights of Indigenous
Peoples 158
United Nations Declaration of the Rights of the Child 205
United Nations Framework Convention on Climate Change
274, 277, 281, 285, 287, 289, 299
United Nations
and education 156, 194
and employment 381
and human rights 321
and the environment 27785, 2906
472
Australias involvement in 42930

Charter 121, 158, 160, 176, 410, 412, 422
establishment of 96, 149, 152, 1603, 170, 40918,
448
organs of 120, 173, 41820
treaties 422
United Nations General Assembly 146, 1614, 1735,
180, 2801, 284, 291, 304, 41820, 424, 429,
4367, 442, 449
United Nations Human Rights Council 164, 1734,
381
United Nations Secretariat 1734, 281, 418, 422
United Nations Security Council 120, 132, 136, 161,
173, 175, 1778, 212, 2801, 412, 41416, 418
20, 424, 42930, 4323, 437, 439, 4426, 449
United Nations Charter 121, 158, 160, 176, 410, 412,
422
Universal Declaration of Human Rights (UDHR) 146,
14950, 1523, 156, 1623, 170, 188, 195, 205,
422, 454
universal education see education
universal jurisdiction 119, 127, 448, 451
universal suffrage 147, 1535
V
veto 173, 177, 41819, 424, 432
vicarious liability 364
victim impact statement 73, 756
Victims Rights Act 1996 (NSW) 76
Vienna Convention for the Protection of the Ozone Layer
2856, 296
voluntary manslaughter see manslaughter
W
war crimes 11920, 1225, 127, 1313, 162, 175, 178,
21012, 407, 41213, 4245, 433, 449, 451
War Crimes Act 1945 (Cth) 127
warning 78, 106, 11011, 321, 335, 340
warrant 302, 359, 1024, 140
warranty 2304
white-collar crime see crime
will 316, 338
Workers Compensation Act 1987 (NSW) 389
workers compensation 317, 320, 342, 389, 391
workplace 358403
nature of workplace law 3603
regulation of the 37482
contemporary issues relating to 38399
Workplace Relations Act 1996 (Cth) 3689, 374, 378,
398
world order 404455
nature of 40615
responses to 41533
contemporary issues related to 43351
Worst Forms of Child Labor Convention 210
wrongful dismissal 393
Y
Young Offenders Act 1997 (NSW) 78, 104, 108, 11012,
321, 335, 340
youth justice conference 108, 11012, 321, 340

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CAMBRIDGE

cambridge university press

Cambridge, New York, Melbourne, Madrid, Cape Town,

About the authors

Using Cambridge Legal Studies HSC

Glossary of key words

The nature of crime

Strict liability offences

Summary and indictable offences

Factors affecting criminal behaviour

Crime prevention: situational and social

C H APTER 2 TH E C R IMIN AL IN VES T IGAT IO N PRO C ESS

Arrest, detention and charge

Summons, bail or remand

C H APTER 3 CR IMIN AL T R IAL PR OC ES S

Court jurisdiction: criminal courts

The adversary system

Legal personnel in a criminal trial

Pleas and charge negotiation

Legal representation and Legal Aid NSW

Burden and standard of proof

Use of evidence, including witnesses

Defences to criminal charges

The role of juries, including verdicts

Sentencing and punishment

Statutory and judicial guidelines

The purposes of punishment

Factors affecting a sentencing decision

The role of the victim in sentencing

Alternative methods of sentencing

C H APT ER 5 Y OUN G OF F ENDERS

Young offenders and the law

Age of criminal responsibility

The rights of children and young people when questioned or arrested

Childrens Court procedures and operation

Penalties for children

Dening international crime

Categories of international crime

Dealing with international crime

The effctiveness of measures dealing with international crime

Themes and challenges for Part I Crime

Part II: Human rights

The denition of human rights

Developing recognition of human rights

Formal statements of human rights

C H APT ER 8 PR OMOT IN G A ND E NFO RC I NG H U M A N RI G H TS

Promoting and enforcing human rights

Human rights in Australian law

Issue 1: Human trafcking and slavery

Human trafcking and slavery

Extent of human trafcking

Responses to human trafcking and slavery

Issue 2: Child soldiers

Dening the issue of child soldiers

Extent of the issue

Responses to the issue of child soldiers

C H APTER 9 CON T EMPOR ARY H UMAN R I G H TS I SSU ES

Issue 2: Child soldiers

Themes and challenges for Part II Human rights

Part III: Options

C H APTER 1 0 O PT ION 1: C ON S UMER S

The nature of consumer law

Consumer redress and remedies