This action might not be possible to undo. Are you sure you want to continue?
100 Marks 3 hours (180 minutes) working time and 5 minutes reading time (~33 seconds per mark)
Section I: Core – Crime and Human Rights (20 Marks) ~20 minutes 20 multiple-choice questions, 1 mark per correct answer o Crime (15 marks) o Human Rights (5 marks)
http://www4.boardofstudies.nsw.edu.au/course/higher-school-certificate/legal-studies/ Section II: Core – Crime and Human Rights (30 marks) ~60 minutes Part A: Human Rights ~30 minutes o Short answers (15 marks) 2 lines per mark o 3-4 items in total, may refer to stimulus o One question on contemporary human rights issue Part B: Crime ~30 minutes o Extended response (15 marks) ~600 words o May refer to stimulus o Usually young offenders
Section III: Options – Consumers and Family (50 marks) ~100 minutes Two extended responses (25 marks) ~50 minutes ~1000 words each Essay plan, logical order
Glossary of key terms ......................................................................................................................................................................... 3 Section I: Crime and Human Rights ................................................................................................................................................... 4 Crime .............................................................................................................................................................................................. 4 The Nature of Crime .................................................................................................................................................................. 4 The Criminal investigation process ............................................................................................................................................ 9 Criminal trial process ............................................................................................................................................................... 13 Sentencing and Punishment ..................................................................................................................................................... 19 Young Offenders ...................................................................................................................................................................... 29 International Crime .................................................................................................................................................................. 38 Crime Themes and Challenges ................................................................................................................................................. 45 Human Rights ............................................................................................................................................................................... 47 The Definition of Human Rights .............................................................................................................................................. 47 Developing recognition of human rights .................................................................................................................................. 47 Formal Statements of Human Rights ....................................................................................................................................... 50 Promoting and enforcing human rights .................................................................................................................................... 51 Human rights in Australian Law .............................................................................................................................................. 57 The Australian Constitution ..................................................................................................................................................... 57 Contemporary slavery .............................................................................................................................................................. 60 Section III - Options.......................................................................................................................................................................... 64 Consumers .................................................................................................................................................................................... 64 The developing need for consumer protection ......................................................................................................................... 65 Consumer redress and remedies ............................................................................................................................................... 70 Family Law................................................................................................................................................................................... 77 The Nature of Family Law ....................................................................................................................................................... 77 Contemporary issues concerning family law ........................................................................................................................... 94 Miscellaneous .................................................................................................................................... Error! Bookmark not defined.
GLOSSARY OF KEY TERMS
Account – Account for: state reasons for, report on. Give an account of: narrate a series of events or transactions Analyse – Identify components and the relationship between them; draw out and relate implications Apply – Use, utilise, employ in a particular situation Appreciate – Make a judgement about the value of Assess – Make a judgement of value, quality, outcomes, results or size Calculate – Ascertain/determine from given facts, figures of information Clarify – Make clear or plain Classify – Arrange or include in classes/categories Compare – Show how things are similar or different Construct – Make; build; put together items or arguments Contrast – Show how things are different or opposite Critically (analyse/evaluate) – Add a degree or level of accuracy, depth, knowledge and understanding, logic, questioning, reflection and quality to (analyse/evaluate) Deduce – Draw conclusions Define – State meaning and identify essential qualities Demonstrate – Show by example Describe – Provide characteristics and features Discuss – Identify issues and provide points for and/or against
Distinguish – Recognise or note/indicate as being distinct or different from; note differences between Evaluate – Make a judgement based on criteria, determine the value of Examine – Inquire into Explain – Relate cause and effect; make the relationships between things evident; provide why and/or how Extract – Choose relevant and/or appropriate details Extrapolate – Infer from what is known Identify – Recognise and name Interpret – Draw meaning from Investigate – Plan, inquire into and draw conclusions about Justify – Support an argument or conclusion Outline – Sketch in general terms; indicate the main features of Predict – Suggest what may happen based on available information Propose – Put forward (for example a point of view, idea, argument, and 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 – Put together various elements to make a whole
sentencing and punishment. It is proven by physical evidence and witness testimonies in court. Crimes are offences against the society as a whole and are punishable by the state. enforcement. that the behaviour of the accused actually caused the criminal act alleged. including investigation. - - Strict liability offences Does no require the prosecution to prove mens rea. Criminal law: The area of law that deals with crime and covers the main areas. The aim of criminal law is to protect the community and provide a sanction or punishment to the offender if found guilty of a crime. o Recklessness: an intermediate level of intent. the state.SECTION I: CRIME AND HUMAN RIGHTS CRIME THE NATURE OF CRIME Crime: Any act that law makers in a particular society deems to be morally and ethically criminal. maliciously. prosecution. or property The Crown or state prosecutes an accused in a court of law to obtain some form of sanction or punishment. - Elements of a Crime Police must prove that the elements of the particular crime are present before it can be taken to court.e. recklessly. fraudulently. i.e. Must be a voluntary act but can also include an omission or failure to act (i. the accused physically committed the crime. In NSW. . criminal trial. but chose to take that course of action anyway. such as traffic offences (speeding offences) or breaches of regulation (selling alcohol to minors) Possible defence if the accused can prove the act was an „honest and reasonable mistake‟. The Crown must prove the case beyond reasonable doubt: if there is any reasonable conclusion besides proving the criminal charges can be made from the evidence. Factors which determine what a crime is: Culture History Legal traditions Social attitudes Religious beliefs Political systems Law reform in crime occurs as society‟s attitudes evolve or when none have existed before. where the accused was aware that the action could lead to a crime being committed. If the crime is against a federal criminal law. defence. negligently. only the element of actus reus will need to be shown. then action is taken by the Commonwealth Director of Public Prosecutions. Key characteristics of criminal law: Against society as a whole. Minor offences. „guilty mind‟. Actus reus: latin. The conscious and willing mind that was present in performing a crime. criminal negligence) Mens rea: latin. o Criminal negligence: where the accused fails to foresee the risk where they should have and so allows the avoidable danger to manifest. Can be against an individual. Includes acting intentionally. „guilty act‟. Three main levels are o Intention: a clear. the accused intended to commit the crime. Causation: the link between the actions of the accused and the result. malicious or wilful intention to commit the crime. Highest level degree of mens rea to prove. the Director of Public Prosecutions (DPP) or the police commence the prosecution procedure in court against the offender (defendant). then there is reasonable doubt. or wilfully.
Constructive manslaughter when the accused kills a person while carrying out another dangerous or unlawful act „constructed‟. In NSW law. but if the offence is aggravated by certain circumstances. which if the accused is found to be suffering from this condition when she killed her baby. The main offences are Offences against the person It involves some form of harm or injury to an individual Further separated into three distinct areas o Homicide It is defined as the unlawful killing of another person. assault without intention to kill or inflict serious bodily harm. It carries a maximum penalty of 10 years. Physical assault: a direct act in which force is applied to another person‟s body unlawfully and without consent. A Bill to provide for mandatory life sentences for the murder of police officers has been passed by the NSW Parliament. there are four main categories of homicide: Murder: The most serious homicide offence and is punishable by life imprisonment. Threats which cause victims to fear immediate and unlawful violence might also constitute such a form of assault. Punishable by up to 5 year‟s imprisonment. It was assented to on 23 June 2011. NSW Act No 20. it can be seen as a mitigating circumstance of the crime. it can carry as much as 14 years‟ imprisonment. o Assault It is broadly defined as „causing physical harm or threatening to cause physical harm to another person‟. See CRIMES AMENDMENT (MURDER OF POLICE OFFICERS) ACT 2011. but there are mitigating circumstances which reduces culpability Involuntary manslaughter when the accused acted in a reckless or negligent way and kills a person. Dangerous driving causing death: Death as a result of unsafe and dangerous driving of a motor vehicle. . There are three main types of manslaughter Voluntary manslaughter when a person kills with intent. Punishable by up to 25 years‟ imprisonment. or if the accused attacks a police officer when the officer is carrying out their duties. Many women suffer from post-natal depression. The prosecution must prove at least The accused intended to deliberately kill the victim The accused set out to inflict serious bodily harm. The Crimes Act requires that the court take into account the state of mind of the mother at the time she committed the crime. which resulted in death The accused did not care that the act might end a human being‟s life The act was done while committing or attempting to commit another serious crime punishable by life or 25 years‟ imprisonment Manslaughter: The killing of a person but with a reduced level of intent from murder. a person may be charged with manslaughter where it cannot be proved they intended to commit murder.CATEGORIES OF CRIME Categorised by: Type of offence Jurisdiction Seriousness of the offence Parties to a crime Types of offences In NSW. Infanticide: Death of a baby under the age of 12 months at the hand of its mother. the Crimes Act 1900 (NSW) is currently divided into roughly 16 parts relating to the main type of offences. Aggravated assault: the assault of a person with an object rather than the assailant‟s own body. both deliberate and accidental (varying degrees of mens rea). The Crimes Amendment (Murder of Police Officers) Bill 2011 was introduced into Parliament by Michael Gallacher on 24 May 2011. but without intention. but death results. Common assault: threatening to cause physical harm to another person. For example. Causation must be established between the actions of the accused and the death of the victim.
and the accused must know about it. usually a stock broker or company director. The three most common are Embezzlement: when a person. such as treason and sedition. except in a medically-supervised injecting centre o Cultivation: Refers to the growth or cultivation of a prohibited plant. In 2007. time consuming and expensive to investigate. - Offences against the sovereign It includes political offences against the state or heads of state. the Australian Law Reform Commission (ALRC) recommended to remove „sedition‟ from the laws as it received widespread public criticism as being unnecessary and a danger to freedom of expression. or if the accused is abusing their position of trust or authority over the victim. Introduced in 2002. Fraud refers to deceitful or dishonest conduct carried out for personal offences and can be included above. whether or not the actual drug or money really changed hands. then it is classed as „armed robbery‟. In NSW. including shared ownership or minding it for another person. The most serious sexual offence in NSW is that of aggravated sexual assault in company. it occurs when one or more persons intentionally take another person‟s property without their consent and without the intention of returning it. Punishable by up to 25 years‟ imprisonment (NSW) or life imprisonment (Commonwealth) o Sedition: promoting discontent. misappropriates another person‟s property or money that they have been entrusted with. s 61JA of the Crimes Act. Break and enter: known commonly as burglary. - - - Drug offences Drug offences relate to acts involving prohibited or restricted drugs. Tax evasion: when a person avoids paying taxes to the government. prime minister or the Queen. usually an employee. sedition includes offences of urging force or violence against the government. It occurs when a person or persons enter a room or building with the intention of committing an offence like larceny o White-collar crime A general term given to various non-violent crimes associated with business people or professionals. (It was formally known in common law as rape.o Sexual offences Sexual assault (offences) occurs when someone is forced into sexual intercourse against their will and without their consent. and some additional offences included in the Summary Offences Act 1988 (NSW) o Possession: The drug is in the accused‟s custody or control. hatred or contempt against a government or leader of the State through slanderous use of language. o Use: Intentional consumption of the drug by any means. assist the enemy. or cause harm to or death of the Governor-General. Indecent assault where the accused commits an assault and „act of indecency‟ on or in the presence of another person without their consent. o Treason: any attempt or manifest intention to levy war against the state. usually by fraudulent tax returns Insider trading: when a person. in Australia. If it is accompanied with the use or threatened use of a weapon. obtains confidential inside information that will affect the share price and takes advantage of this knowledge. such as cannabis o Supply: Offering or agreeing to supply. o Computer offences It includes the various crimes related to hacking and unauthorised access or modification of data. A person does not give consent when they are substantially intoxicated by drugs and alcohol.) Sexual intercourse is defined in the Crimes Act to include oral sex and penetration. They are often difficult to detect. intimidated or coerced into the act. Robbery: occurs when force is present in the act of stealing goods or when property is taken directly from the victim. Driving offences . such as violence. It is punishable by life imprisonment (equal to murder). the Drug Misuse and Trafficking Act 1985 (NSW) outlines numerous offences. Economic offences o Crimes against property Larceny: known commonly as theft or stealing. Aggravated sexual assault will be applicable when there are aggravating circumstances. the victim is under 16 years old or if the victim has a serious physical or intellectual disability.
- Driving offences are included under both the Road Transport (Safety and Traffic Management) Act 1999 (NSW) and the Crimes Act 1900 (NSW) In NSW. Indictable offences: More severe offences that are heard and sentenced by a judge in a District Court or tried before a judge and jury. They are usually strict liability offences. such as: o Obscene. good behaviour bond or community service. such as a fine. o Explosives and firearm offences o Bomb hoaxes o Participation in criminal organisations Preliminary offences o - Refers to offences that precede the commission of a crime or where the crime has not been completed for some reason and fall in two main categories: o o Attempt: an offence where a principal crime was attempted but failed or was prevented for some reason despite the intention to complete it Conspiracy: when two or more people plot to commit a crime together Regulatory offences Regulatory offences are set out in regulations or local laws that address a range of day-to-day situations and standards. Watering the garden despite water restrictions being in place Breach of OHS Travelling on public transport without a valid ticket Lighting a fire or BBQ on a day of total fire ban. SUMMARY AND INDICTABLE OFFENCES Summary offences Less severe offences that are heard and sentenced by a magistrate in a local court The judgement and punishment are determined by a magistrate The charge is usually laid by a police officer or government officer The punishment is usually less severe. The most common offences are o Exceeding the speed limit o Driving without a licence or while disqualified o Ignoring road signs o Driving above the legal blood alcohol limit of 0. driving offences are enforced and regulated by the police and regulated by the NSW Roads and Traffic Authority (RTA). such as murder or rape The judgement is determined by a jury and the punishment is determined by the judge The charge is brought by a public prosecutor working for the state The punishment will usually result in imprisonment or a hefty fine . It is often laid as a result of a public fight or brawl. indecent or threatening language or behaviour in public o Possessing a knife in a public place without a reasonable excuse o Obstructing traffic or ignoring a reasonable police direction to move on More serious offences listed in the Crimes Act: Affray: the use or threatening to use unlawful violence on another that would cause a reasonable person present at the scene to fear for their safety. o Riot: involves 12 or more people use or threatening to use unlawful violence for a common purpose.05 Public order offences Refers to acts which are deemed to disturb the public in some way and are inappropriate or offensive when conducted in public.
revenge. such as: Poor home environment and parenting Social and economic disadvantage Poor school attendance Early contact with the police and other authorities . decreasing the rewards of crime while increasing the risks and costs. Social Crime Prevention Attempts to address the underlying social factors that may lead to criminal behaviour.PARTIES TO A CRIME Principal in the first degree The principal offender or the person who actually commits the criminal act. Colour tags attached to clothing in shops Magnetic strips embedded in items that will set off a detector at the door. Principal in the second degree This is a person who was present at the crime and assisted or encouraged the principal offender to perform the offence. FACTORS AFFECTING CRIMINAL BEHAVIOUR Psychological or pathological factors o Mental illness affecting a person‟s behaviour Social factors o A person‟s attitude towards crime such as family situation or personal relationships o The social environment that the person is living or grew up in Economic factors o People from disadvantaged backgrounds are more likely to commit crimes (AIC – 1/3 or male and ½ of female offenders receive a welfare or government payment as a source of income) o Low level of education and lack of skills o Low income Political factors o Dislike for government Self interest o Profit. but assisting the principal may be sufficient. Accessory before the fact A person who has helped the principal in planning or preparation before the actual crime is carried out. self-interest Genetic theories o People are born criminals. greed. The presence does not need to be immediate physical presence. INCONCLUSIVE - - CRIME PREVENTION: SITUATIONAL AND SOCIAL Situational Crime Prevention Influencing the physical environments where crime occurs to deter people from committing a crime by: Installing bars or an alarm system at home Computer passwords or internet firewalls CCTV Rational choice theory. Accessory after the fact A person who has assisted the principal after the actual act is committed.
By Funding educational programs in school to raise the education of students deemed to be „at risk‟ Parenting workshops to provide skills and empower themselves and their children to make better life choices Youth programs to teach dispute resolution skills and social skills that encourage better decisions THE CRIMINAL INVESTIGATION PROCESS POLICE POWERS The Police are responsible for enforcing criminal laws and ensuring they are adhered to. It is a legal document issued by magistrate authorising an officer to perform a particular act. The Force is overseen by the NSW Ombudsman and the Police Integrity Commission. Suspects are able to complain if they believe his or her rights have been abused. The main police powers include the power to Detain and question suspects Search and seizure Use reasonable force if necessary to carry out their duties Use particular technologies to assist an investigation Arrest and interrogate suspects Recommend whether bail should be granted.000 defending claims of improper use. Management and Evidence). conduct a search. religious or ethnic background. Police are expected to treat all members of the community in a fair and ethical manner regardless of age. or the severity of the crime they have committed. Investigation. The NSW Police Force follows a specific code of behaviour called the Code of Practice for CRIME (Custody. In NSW. tasers were used: 126 times in 2008 407 times in 2009 and 1169 times in 2010. and other specific legislation. seize property or use a phone tap. They are also responsible for the prevention and detection of crime and for the maintenance of public order. REPORTING CRIME . According to this article. crimes will be investigated by the NSW Police Force. the role of police includes: Investigating crimes Making arrests if necessary Interrogating suspects Gathering evidence against the accused Presenting evidence for judgement to a court on behalf of the state The majority of police powers are contained in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). SMH. sex. which sets out the rights of suspects and the manner in which investigations should be carried out. See 'Hundreds more hit as police rely on stun guns' by Anna Patty. police are using them more regularly and the government has spent over $118. How frequently are taser stun guns being used by police since being introduced as part of the standard police kit? According to a recent article in the SMH. A warrant may be necessary for police to be able to use a particular power. 1. 25 June 2011. In the criminal investigation process. unless it is a Commonwealth offence which is handled by the Australian Federal Police. for example make an arrest. Rights.
or a dangerous article when they are in a public place. - Search and Seizure Under Part 4 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) police are given the powers to „search people and seize and detain things‟. Police can seize and detain any of these objects if discovered. Electronic criminal databases are easier and more effective and can be shared across states and internationally. In some situations. o Witness statements and looking at evidence must be done ASAP before witnesses forget what they saw or heard and before evidence is compromised or interfered with. or police officer Community involvement such as Crime Stoppers assists police work and helps promote a sense of participation in the criminal justice system. bag. Police station. whereas domestic violence and sexual assault more frequently go unreported. DNA sampling. o Oral testimonies of the accused. a court order is required and the use of reasonable force. clothes. fingerprints. Use of Warrants . police. such as car theft because a police report is necessary to claim insurance. video surveillance and electronic information stored on HDDs are also use. tape recordings. the police have the broad power to stop and search any person where they believe „on reasonable grounds‟ that they are carrying anything stolen. based on: Severity of the offence The likelihood of success Availability of resources or priorities Gathering evidence When a crime is committed. Investigating a crime Once Police receive information about a crime. If they refuse. such as hair.- 000. or possessions. o All evidence must be obtained in a proper and lawful matter as required by the Evidence Act 1995 (NSW) to be admissible at trial. they will exercise police discretion in whether to investigate or take no further action. used in an indictable or another specified offence. particularly in a public place. However people may be reluctant to report a crime as: Do not want to become involved or have to appear as a witness Fear of the consequences if the crime is reported Inability to report the crime The dispute has already been settled Perceived time or administrative burden of reporting a crime Some crimes are more widely reported. Police can search anything in a person‟s possession or control. This is the most controversial as it is seen as an invasion of privacy or personal place. The Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) also sets a number of procedures when conducting a personal search or strip search. witnesses o Physical evidence such as objects or weapons o Documents. In NSW. a person must consent to a sample. This helps to ensure that the collection of evidence is legitimate and does not interfere with the rights of ordinary citizens. a court warrant is required. Use of Technology Technology has helped the police gather evidence and prove charges DNA evidence: Genetic material. It can also be confronting or embarrassing. including the person‟s body. In NSW. blood and saliva) can be used to link a suspect with a crime scene or criminal offence. prohibited drugs or plants. it is the role of the police to gather evidence to further the investigation and to support a charge in court at a later date.
A warrant is a legal document issued by magistrate authorising an officer to perform a particular act. This ensures special police powers are used only when appropriate and provides an additional layer of protection for ordinary citizens against misuse of that power. Substantial reasons or evidence must be given to a magistrate to justify the use of a warrant Emergency warrants exist when time is of the essence in an investigation NSW Police usually require a valid warrant before they can enter and search any premises, residential or business, without the consent of the occupier or owner. In this particular case, the warrant will state the reason and what articles are being searched for
2. ARREST, DETENTION AND CHARGE
Arrest Law Enforcement (Powers and Responsibilities Act) 2002 (NSW) outlines the conditions in which police can lawfully arrest a person Catching a suspect committing an offence Believing on reasonable grounds that a suspect has committed or is about to commit an offence Where a person has committed a serious indictable offence for which they have not been tried Possessing a warrant for that person‟s arrest
Police can use whatever reasonable force is necessary to make an arrest, and must state that they are and why they are under arrest. Detention and interrogation Law Enforcement (Powers and Responsibilities Act) 2002 (NSW) outlines the conditions in which police can lawfully detain a suspect for questioning and further investigation Can only detain a suspect for a maximum of four hours, by which time that the person must be either charged or unconditionally released A warrant may extend this period up to a further eight hours Rest periods are not included in the total time, including o Transportation time o Waiting for those necessary in the investigation o Time for the suspect to talk to a friend, relative or lawyer o Medical treatment o Refreshment periods
As soon as a suspect is in custody, they are usually questioned. Interrogation refers to the act or process of questioning a suspect by the investigating officers. The police must issue a caution to the suspect as soon as practical, which informs them of their rights (maximum period of detention, „not have to say or do anything but that anything the person does say or do may be used as evidence.) Everyone has the right to a legal representative during a police interview. A suspect under 18 years of age has the right to have a responsible adult present with them at the interrogation. The interview is recorded on videotape as well as on two audiotapes: one for the police records and one for the defendant. Release or charge A suspect can only detained for a maximum of four hours, by which time that the person must be either charged or unconditionally released. If charged, the police must either release the accused or bring them before a magistrate or authorised officer as soon as practicable after the end of the maximum detention periods. The accused will then be brought before the court for a bail hearing.
THE RIGHTS OF THE VICTIM
To have their case reported or recorded
To be informed of all services available to them To be informed of the progress of the investigation To be told of any arrest or charges To be informed of all hearing dates To be informed of any changes to charges/pleases To be informed of their role as a witness To be protected from the accused To be compensated for damages resulting from crime up to the value of $50 000 To be able to make a victim impact statement to the court
THE RIGHTS OF THE ACCUSED
To not be illegally searched and have property seized The right to silence To be allowed bail To have legal representation To have all interviews recorded Only to be detained if arrested Only to be arrested if suspected of committing the offence To not have illegally obtained evidence presented at trial To not have prior charges/convictions detailed to the court prior to a guilty verdict The right of appeal based on legal argument against the conviction or severity of the sentence
3. SUMMONS, BAIL OR REMAND
Summons A legal document that states when and where a person must appear in court and, if they are accused, the charge top which they must answer Bail The temporary release of an accused person awaiting trial, sometimes on particular conditions such as lodgement of a sum of money as a guarantee A bail hearing decides whether the accused should be released on bail or remains in custody until their trial. Bail can take many forms, such as upfront monetary payments or recognisance, which the accused promises to turn up, knowing failure to do so will result in them being fined and arrested. It can also come in the form of surety, where someone else agrees to put up money on behalf of the accused as an assurance that the accused will turn up for court. If on bail, the accused must wear wrist and ankle monitoring devices and diversionary services such as rehabilitation programs. The accused may also need to show up to a police station or a regular basis to prove that they have not moved out of a restricted area and surrender their passport. Bail can be refused particularly in violent offences where the accused may be of a risk to the community or commit another offence. If there is indication that the accused might attempt to flee to another state or country, bail is unlikely to be granted. The Bail Act 1978 (NSW) outlines the guidelines for bail such as the „presumption against bail‟ for certain offences such as drug trafficking or serious domestic violence. It is up to the accused to prove why bail should not be refused. Denying bail can be severe on an accused person and may result in an extensive period of custody before a final verdict is reached and especially if the accused may be innocent and found not guilty. Remand A period spent in custody awaiting trial at a later date. Remand is usually sought against people who have committed particularly violent crimes, dangerous criminals, repeat offenders or those thought to be a flight risk.
CRIMINAL TRIAL PROCESS COURTS JURISDICTION: CRIMINAL COURTS
Different courts have different jurisdiction to hear criminal offences. The seriousness of the matter Whether the matter is being heard for the first time or whether it involves an appeal The nature of the offence – some courts or divisions within courts have authority to hear particular types of offences The age of the accused, particular if they are under 18 years old The type of hearing: bail hearing, committal hearing or trial Whether the alleged crime is an offence under state law or federal law.
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 first time Appeal: An application to have a higher court review a decision of a lower court Appellate jurisdiction: the authority for a court to review matters on appeal from another court In NSW, the court hierarchy is as follows: Lower courts – Local Court of NSW, the Coroner‟s Court, the Children‟s Court and the Land and Environment Court Intermediate courts – the District Court of NSW Superior courts – the Supreme Court of NSW and the High Court of Australia Lower courts Local Court of NSW The Local Court Act 2007 (NSW) sets out the jurisdiction and operation A magistrate (judicial officer in the Local Court; in NSW they are appointed by the Governor) presides proceedings Conducts committal proceedings; where a magistrate determines if there is enough evidence for a case of indictable offence to proceed to trial in a higher court Can hear indictable offences triable summarily if the accused consents Bail hearings No jury present
deaths where a medical certificate has not been issued. Coroner’s Court Powers outlined in the Coroner’s Act 2009 (NSW) Specialist local court that deals specifically with the cause and manner of a person‟s death. robbery. or who were under 18 at the time of an alleged offence. embezzlement. sexual or indecent assault. as well as fires and explosions where property has been damaged or a person has been injured. such as illegal polluting or dumping No jury Prosecutions are brought by the NSW Environment Protection Authority (EPA) Intermediate Courts District Court of NSW Established under the District Court Act 1973 (NSW) Matters heard before a judge and a jury Has appellate jurisdiction from the Local Court and the Children‟s Court Hears serious criminal offences except for murder and treason o Offences against the person such as manslaughter. or break enter and steal o Drug offences such as supply. assault occasioning actual bodily harm or assault of police officers o Property offences such as larceny. Able to conduct post-mortem examination of a body (autopsy) - The findings of the coroner will often be used as evidence in a later criminal trial. Nonetheless. manner and medical cause of death Can also investigate disappearances. and will also determine the sentence if found guilty - . The coroner is a judicial officer appointed to investigate deaths in unusual circumstances and determining the identity of the deceased as well as the date. place. The cost of hearing will also be significantly less for the accused and the state.e. it lacks the jurisdiction to conduct jury trials or to hear appeals. such as deaths occurring: o In a violent or unnatural way. or within 24 hours of administration of an anaesthetic Court hearings are known as coronial inquests and it is where a coroner considers information to help determine the matter and cause of death. or suddenly with unknown cause o After an accident (up to one year and one day) that may have contributed to the death o In police custody or in a prison or detention centre o While receiving care or medical treatment. Children’s Court Established under the Children’s Court Act 1987 (NSW) Specialist court that deals specifically with matters relating to the care and protection of children and young people as well as criminal matters concerning children who are under the age of 18 years old. zoning of parklands) but has criminal jurisdiction to hear some environmental offences.- Jurisdiction to hear civil matters up to the value of $60 000 Criminal matters heard in the local court will usually be heard and determined much faster than in superior courts as fewer formalities are required. manufacture or production of a prohibited drug o Driving offences such as dangerous or negligent driving causing death or serious bodily harm Civil matters up to $750 000 A jury of 12 people will decide on the accused‟s guilt or innocence based on evidence presented in the court trial The judge will control proceedings and decide on questions of law. or deaths that occur in unusual or suspicious circumstances. It also limited on the sentences it can hand out. General public is prohibited from viewing proceedings (closed court) Presided over by a magistrate with no jury More in depth in Young Offenders chapter - Land and Environment Court Specialist court responsible for interpreting and enforcing environmental law in NSW Deals mainly with civil and administrative disputes related to environmental planning (i.
conflict between courts or in the interests of the administration of justice. The High Court of Australia has jurisdiction to hear appeals from state and territory supreme courts. „adversaries‟ each present their case to an impartial judge or jury. or a challenge to the severity or adequacy of a sentence. but only where the High Court grants special permission to appeal. tax or social security fraud. Original jurisdiction in limited Commonwealth matters Appellate jurisdiction to hear all appeals from state and territory supreme courts. skills or knowledge The judge or jury cannot request additional evidence or testimony that would assist the case and in achieving justice Jury system has flaws in understanding of evidence or in making its decision Differs from the inquisitorial system where a judge or group of judges plays a role in investigating the case or calling for evidence of testimony that has not been requested by either side . Commonwealth offences prosecuted by the Commonwealth Director of Public Prosecutions Most common prosecutions for Commonwealth offences include drug importation. Cases which are concerned with the interpretation of the Constitution of Australia and the constitutional validity of laws.More formalities than the Local Court. High Court of Australia Mandated by section 71 of the Constitution of Australia and is constituted under the Judiciary Act 1903 (Cth). money laundering. Federal Courts Commonwealth offences will usually in state or territory courts which can exercise federal criminal jurisdiction under the Judiciary Act 1903 (Cth). manslaughter and attempted murder o Major conspiracy and drug related charges o Commonwealth prosecutions for serious breaches of the Corporations Law o Jury of 12 o Appellate jurisdiction to hear criminal appeals from lower NSW Courts. Criminal appeals are heard in the Court of Criminal Appeal Highest levels of formality and cost of the NSW courts and can carry the highest consequences Court of Criminal Appeal The appellate branch of the Supreme Court of NSW The highest court for criminal matters Can hear appeals from the District and Supreme Court(s). Apart of the English common law system Each party has equal opportunity to present their case Less prone to abuse or bias by the official determining the case Opposite sides may not be equal before the law in resources. offences under the corporate law. THE ADVERSARY SYSTEM A system of law where two opponent sides. as well as civil matters beyond the jurisdiction of the Local and District Courts o Murder. A limited number of criminal proceedings can be heard in the Federal Court of Australia. a question of fact. matters are longer and have greater cost to both the accused and the prosecution Superior Courts Supreme Court of NSW Constituted under the Supreme Court Act 1970 (NSW) Hears the most serious criminal cases. as well as the Land and Environment Court Appeals are usually heard by three Supreme Court judges with the majority view prevailing Where significant legal issues are being considered this may be increased to five judges Grounds for appeal might include a question of law. including criminal laws Only hears matters on appeal where it grants special leave where questions of law of public importance.
the judge hands down sentences and rulings In some cases the judge will sit without the jury The judicial officers that preside over hearings in the Local Court. Specialised magistrates also hears cases in the Children‟s Court In criminal law. maintains order in the court room and ensures that the procedures of the court are followed Makes decisions about points of law and gives instructions to the jury to make sure they understand the proceedings and the evidence presented The jury decides the verdict. magistrates will hear summary proceedings in the local court and indictable offences triable summarily (where the accused has given consent) Conducts committal proceedings for indictable offences to be tried and will usually hear bail proceedings Determines the guilt of the accused based on evidence presented and will also pass an appropriate sentence Prosecutors Represents the state or „Crown‟ and brings the action against the accused Police Prosecutors o Members of the NSW Police with specialised training to conduct prosecutions. o Usually prosecutes summary offences in the Local and Children‟s court NSW Director of Public Prosecutions o Independent authority that prosecutes all serious offences on behalf of the NSW Government. Seriousness of the offence Special circumstances of the offence Accused or victim Maintaining public confidence Length and expense of trial Likely outcome and consequences if the trial succeeds - Barristers and solicitors Solicitors: Provides legal advice on a range of matters. Not influenced by politics or public pressure o Indictable and some summary offences o Some committal proceedings for indictable offences o Prosecutors employed by the DPP are barristers or solicitors o Prosecutes cases once sufficient evidence has been established (reviews cases proposed by the Police and when it is in the public interest to do so) o Factors on deciding to prosecute or not Sufficient evidence to establish the elements of the offence Evidence is sufficient to gain a conviction by a reasonable jury Discretionary factors to determine public interest.LEGAL PERSONNEL IN A CRIMINAL TRIAL Magistrates: Judges The judicial officers that preside over the intermediate and superior courts Oversees proceedings. and may also represent the accused in court Barristers: Provides legal advice for the accused on the likely outcome of a court case and to present that case in court Public defenders Barristers who appear in serious criminal matters for an accused who has been granted legal aid – cannot afford legal representation Independent of the government and perform similar duties to a privately retrained barristers PLEAS AND CHARGE NEGOTIATION .
o Provides legal assistance and representation to people who are socially and economically disadvantaged to ensure that they have equitable access before the law. original documents recovered during the investigation Witnesses Someone who saw the crime take place Expect witness with relevant knowledge about an aspect of the case DEFENCES TO CRIMINAL CHARGES . (Lesser charges) Charge negotiation: (formerly charge bargaining): Negotiations during a criminal trial. usually in exchange for something else. DNA testing. i. photographs. both sides equal and thus able to achieve justice Dietrich v The Queen established a limited right to legal representation in Australia Self-representation is allowed but not advised unless it relates to a very minor matter. DPP will usually not bring a case to court where they believe this standard of proof can be met by all 12 jurors. USE OF EVIDENCE. women. Usually disabled persons. weapons. INCLUDING WITNESSES Evidence Act 1995 (NSW) Relevant to the case and obtained legally Real evidence.e. between an accused person and a prosecutor in which the accused agrees to admit to a crime (sometimes a lesser crime than the one set out in the original charge) Advantages Decreases costs and time delays Increases the rate of criminal conviction Lesser charge better than no charge Disadvantages Crimes may go unpunished or insufficiently unpunished o The offender may receive no real punishment. i. people of Aboriginal and Torres Strait Islander backgrounds and the financially disadvantaged o Free brief legal advice sessions to anyone o Means tested o In some cases. contributions are necessary BURDEN AND STANDARD OF PROOF Onus is on the prosecution to prove the case Standard of proof required is beyond reasonable doubt – there is no reasonable doubt that the accused in fact committed the offence. or a punishment that does not match the crime o Allows certain crimes they commit to go unpunished May result in an accused pleading guilty to a crime for which they are innocent Bullying or manipulation of the accused to forfeit their right to a trial Prosecution can threaten more serious charges to intimidate the accused to plead guilty to the lesser charge Victims may feel they have been treated unjustly - LEGAL REPRESENTATION AND LEGAL AID NSW Right to a fair trial.e. Legal Aid Commission formed under the Legal Aid Commission Act 1979 (NSW). documentary evidence and witness testimony Real evidence o Physical evidence. tape recordings. fingerprints. clothing Documentary evidence. charts.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.
but still exists in NSW o Can only be used to have a murder charge reduced to manslaughter o R v Camplin (1978) – 15 year old boy killed his uncle after he sexually assaulted the boy and mocking him about the incident. pregnant or care for children full time. but this may be reduced in certain circumstances Challenging jurors Both the prosecution and the defence have the right to challenge the selection of the entire panel or individual jurors Peremptory challenges given to both sides to disqualify individual jurors without having to give a reason. no mens rea Mistake o Not generally a defence and will be difficult to prove o If the accused can show it was an honest and reasonable mistake. gender. Diminished responsibility o Substantial impairment of responsibilities reduces it to manslaughter o Low IQ or mental retardation - THE ROLE OF JURIES. 12 jurors In most cases. Western Australia and Tasmania. extreme reaction resulting in murder o Abolished in Victoria. Based on nothing more than name or appearance (age. the accused may be found not guilty on the grounds of insanity Involuntary behaviour or automatism o The accused‟s action was not voluntary or could not be controlled. Ineligible to sit on a jury o Do not speak English o Emergency services staff members (police. clothing. race. hence no mens rea o Difficult to prove o If successful. i. R v Williamson (1972) – disposed of a body while under a death threat Consent o Most often used as an absolute defence in sexual assault cases o Cannot be used in murder – euthanasia - - - Partial defences to murder – mitigating factors that caused them to carry out the act which may reduce the sentence or result in an acquittal Provocation o Their actions were a direct result of the other person‟s actions and caused them to lose control of their actions o There is some level of responsibility on the victim. fire and ambulance) . while attempting to prevent a crime or in defence of property o Must be reasonable force. selected at random for a jury list compiled from electoral roles Determine guilt or innocence based on evidence presented to them in trial Used in the District Court or the Supreme Court In most cases. epileptic fit. physique) Eligibility for jury duty 18 years or older Exemptions for certain people available.e. must reach a unanimous verdict. the relevant mens rea is not present Self-defence or necessity o Defending themselves or another person. those aged over 65. and that the act was not intended. INCLUDING VERDICTS Jury Act 1977 (NSW) Jury is a panel of citizens.Complete defences result in the complete acquittal of the accused Mental illness or insanity o Mentally incapacitated when they committed the offence. R v Zecevic (1987) – their life was threatened and they must use „proportional and reasonable force‟ Duress o Against own free will.
this is the maximum sentence available to a court to impose for an offence. Individual circumstances of the accused and the offence they have committed are disregarded and particular groups may be targeted. This is aimed at being a deterrent but opponents claim that such laws are too harsh. NSW Parliament amended the Jury Act 1977 (NSW) with the Jury Amendment (Verdicts) Act 2006 (NSW) to allow a majority verdict of 11-1 or 10-1 allowed. the maximum penalty will rarely be handed down. . c) To protect the community from the offender. a sentencing hearing will occur. THE PURPOSES OF PUNISHMENT The Crimes (Sentencing Procedure) Act 1999 (NSW) provides the allowable purposes of sentencing in s 3A of the Act „The purposes for which a court may impose a sentence on an offender are as follows: a) To ensure that the offender is adequately punished for the offence. 2008 . The Crimes (Sentencing Procedure) Act also allows for the NSW Attorney-General to apply to the court for guideline judgements. Statutory and Judicial Guidelines Crimes (Sentencing Procedure) Act 1999 (NSW) Main source of sentencing law in NSW Sets out the purpose for which a sentence may be imposed.o o o Jury role - Disabled people Convicted criminals Members of the legal profession Sworn in Listen to evidence and come to a verdict as to the accused‟s guilt or innocence Ask for clarifications from the judge Only talk to fellow jurors about the case Can make notes Remain unbiased and impartial and make a judgement based solely on evidence provided Should not be influenced by the media or their own personal beliefs when reaching a decision No time limit on deliberating a verdict Refer to Sudoku case (Drug trial. where reasonable time for deliberation has passed and the court is satisfied that a unanimous verdict will not be reached. SENTENCING AND PUNISHMENT When the accused is found guilty. b) To prevent crime by deterring the offender and other persons from committing similar offences.$1mil. 20 police) Verdict Hung jury cannot reach a verdict In 2006. District Court. Mandatory sentencing was introduced in some jurisdictions to remove judicial discretion from some offences or type of offender by setting a minimum or mandatory sentencing. as well as a number of factors and guidelines for sentencing generally. Maximum penalties are set by parliament. the types of penalties that can be imposed and when they can be used. 105 witnesses. It is where the judge or magistrate hears and considers arguments and evidence about relevant law and what the most appropriate sentence ought to be in the circumstance. Judicial discretion is used where the judge or magistrate has the power to make a decision on a case-by-case basis. Sydney. This sets out sentencing guidelines for a particular offence. usually on a separate day to the trial or a summary hearing.
this had no significant impact on the murder rate. Sentencing a person for the purpose of deterrence is injustice if it is ineffective. King CJ in Yardley v Betts (1979) 1 A Crim R 329 at 333 remarked: “The courts must assume. the fact that penalties operate as a deterrent is a structural assumption of our criminal justice system. However. but did not heed the Chief Justice‟s qualification which recognised the legal imperative to acknowledge general deterrence: R v Miria at . the ALRC recommended that deterrence should not be used as a sentencing objective. Guideline judgments are a mechanism for increasing the efficiency of the transmission of such knowledge.d) e) f) g) To promote the rehabilitation of the offender. abolished. . It has also been shown that there is apparently no positive variation in the reconviction rate between imposing the lesser sentence of a fine versus a more serious term of imprisonment. the general deterrence of the death penalty for murder was in force. To make the offender accountable for his or her actions. the sentencing judge erred by omitting to incorporate any reflection of general deterrence in his sentencing assessment.” In R v Miria  NSWCCA 68 at . as sentences should be measured to the seriousness of the offence committed. In 1998. although the evidence is wanting. Deterrence only works to the extent to which knowledge is transmitted to potential offenders about actual sentencing practice. Nevertheless. To recognise the harm done to the victim of the crime and the community. and my address „Sentencing Guideline Judgments‟ 11 CICJ 5 at 10–11. reinstated and abolished again. but remains in the Crimes Act 1900 (NSW). Spigelman CJ said in R v Wong (1999) 48 NSWLR 340 at – that legislation would be required to change the court‟s approach to deterrence: “There are significant differences of opinion as to the deterrent effect of sentences. Deterrence is an appropriate basis for promulgation of a guideline. Legislation would be required to change the traditional approach of the courts to this matter. Studies into the effectiveness of deterrence in individual criminal sentencing are either inconclusive or suggest that it is not effective. “The impact of increased drink-driving penalties on recidivism rates in NSW” (2004) 5 Alcohol Studies Bulletin 1. To denounce the conduct of the offender. with much publicity and discussion. that the sentences which they impose have the effect of deterring at least some people from committing crime.” [emphasis added. Specific deterrence states that punishing one individual will prevent that same individual from committing another act in order to avoid being punished a second time. deterrence was not included as a purpose of the federal Crimes Act 1914 (Cth). given that it will at best be published as a statistic and thus unlikely to cause anyone else to act differently”: R v Miria at . Police v Cadd (1997) 94 A Crim R 466 at 511. there is no legal authority permitting a judge to dismiss general deterrence as a factor for assessment in sentencing: R v Miria at . 73 ALJ 876 at 880– 881). However. As a consequence. particularly.‟ DETERRENCE Deterrent is something that discourages or is intended to discourage someone from doing something General deterrence states that by punishing one individual others will be deterred from committing the same act in order to avoid being punished themselves. (See Henry [(1999) 46 NSWLR 346] at  and –.] Before the enactment of s 3A(b) (which affirmed the importance of deterrence). In New Zealand from the year 1924 to 1962. The sentencing judge stated that “[t]he general deterrent effect of any sentence is debatable. Studies have shown that imprisonment of an individual (specific deterrence) does not reduce the chance of reoffending. Deterrence to be applied notwithstanding criticisms The effectiveness of general deterrence has always been the subject of debate. A study by the Bureau of Crime Statistics & Research found that increased severity of sentences for driving offences made no difference on the recidivism rates: S Briscoe. The sentencing judge echoed the first part of Spigelman CJ‟s comments in R v Wong concerning the “significant differences of opinion as to the deterrent effect of sentences”. the deterrent effect of marginal changes in sentence.
May include programs such as drug counselling and drug rehabilitation programs. health worker). designed to reform the offender to prevent recidivism. FACTORS AFFECTING A SENTENCING DECISION Part 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) sets out the factors to which judicial discretion must take into account: the facts of the offence.Overseas studies have analysed the effectiveness of deterrence theory: Von Hirsh et al. Evidence that rehabilitation programs to some degree are successful. reduced to 19 on appeal. University of Chicago Press. the circumstances and seriousness of the offence and certain subjective factors about the offender themselves. REHABILITATION Considered the most important objective of sentencing. judicial officer. old. Aggravating factors. Oxford. teacher. Criminal deterrence and sentence severity. including o Ensuring the offender is adequately punished for the offence. Main justification for inflicting punishment on an offender and is related to a number of points under s 3A purposes above. if it was motivated by any hatred or prejudice. sentence reduced to 28 years Retrial in 2006 o Serve a minimum of 32 years non-parole and a maximum of 38 years o Brother‟s original sentence of 32 years. It ensures that the punishment is proportionate to the crime but not violent or physically harmful to the offender.g. which are circumstances that make the offence more serious and can lead to an increased sentence o It can relate to the way the offence was committed. will now serve a minimum of 18 ½ years.g. if it caused any injury. if there were multiple victims . Hart Publishing. or any threat of them (including gratuitous violence). A Review of Research. licence cancellation and imprisonment. and according to the severity of the offence o Making the offender accountable for his or her actions and denouncing their conduct o Recognising the harm to the victim and the community where three teenagers (Notably Bilaf Skaf & Mohamed Skaf) were sentenced to particularly long terms of imprisonment due to the horrific nature of the offence (sexual assault in company) and the long lasting effective it would have on the victims. alcohol programs or anger management courses. Crime and Justice. community work. The likelihood of the individual person reoffending should be considered in each case to ensure the sentence is not unnecessarily excessive. 2004. It will rarely be the prime consideration for very serious offences. the characteristics of the victim(s) or factors relating to the offender Offence: if the offence involved any violence. harm or damage. - INCAPACITATION Incapacitation is to make an offender incapable of committing further offences by restricting their freedom. young or disabled) or targeted for their occupation (e. with a maximum of 26. if it was committed in company or involved some type of organised crime. Chicago. “Sentencing Severity and Crime” in M Tonry (ed). such as home detention. Victim: if the victim was vulnerable (e. cruelty or weapons. particular for less serious offences or drug and alcohol related offences. Original 55 year sentence. police officer. RETRIBUTION Punishment considered to be morally right or deserved based on the nature of the crime. A Canadian study reviewed empirical research in several countries on deterrence and urged its readers to conditionally accept the hypothesis that crime levels are not affected by the severity of sentences: A Doob and C Webster. 1999. Two counts of aggravated sexual assault without consent in company His brother found guilty of being an accessory before the fact On appeal. It may also include educational or skills courses to give the offender the skills needed to function in society.
the judge referred to general deterrence as a purpose of the sentence.g. character references from teachers or employers) or does not has any prior convictions The offender is youthful or inexperienced and was easily led The offender pleaded guilty or assisted police The offender has shown honest remorse (e. McCartney v R  NSWCCA 244 This case of sexual assault looked at the appropriate balance of aggravating and mitigating factors in sentencing. The offender argued that intoxication affected his judgement and contributed to the offence. A 22 year old male sexually assaulted his intoxicated victim in his home as she lay down to sleep after the offender invited her over for drinks. In sentencing the offender. the judge stated firmly that intoxication was not a mitigating factor and did not excuse the behaviour.‟ Mitigating factors included that the offender was relatively young. and strong character references were given from his friends and employer were given. Aggravating factors included the nature and seriousness of the offence. Section 21A of the Crimes (Sentencing Procedure) Act lists the aggravating and mitigating factors that are to be taken into account. The offender was in study employment as a carpenter in a supervisory position. The appeal was dismissed by a panel of three judges. that „her life and studies have been totally disrupted by this event and she has suffered considerable distress. had no prior criminal history. that sexual assault is not acceptable. which carries a maximum of 14 years. The offender also noted that he had consulted an alcohol counsellor after the offence and the judge expressed that the offender should be given further assistance in rehabilitation. assisting police through to testifying at trial as a witness and submitting a victim impact statement. heard at the time of sentencing. Nonetheless.‟) The judge also reduced the sentence (by one-sixth) due to the offender having pleading guilty.- - - Offender: if the offender abused a position of trust or authority when committing the offence. The offender appealed that too much weight was given to the purpose of deterrence. if the offender is a re-offender or has any prior convictions. The victim repeatedly told the offender that she would not have sex with him. stating that the sentence already fell within the lowest range of available sentences for the offence. and the victim impact statement. (Judge noted that „even people of the best character sometimes „make mistakes and commit offences. and was unlikely to reoffend. Mitigating factors which are circumstances that make the offence less severe and can lead to a reduced sentence o They are usually subjective factors about the mind of the accused or their behaviour The offender is of good character (e. THE ROLE OF THE VICTIM IN SENTENCING Victims are involved in the criminal trial process in reporting the crime committed.g. Any other objective or subjective factor that affects the relative seriousness of the offence o Objective factors refer to the circumstances of the crime o Subjective factors refer to the circumstances and personal state of mind of the offender Whether the accused pleads guilty Whether the offender assisted law enforcement authorities A victim impact statement by the victim or victim‟s family about the impact the crime has had on them. It was pointed out that the offender had managed to drive his utility truck back to the house. but was counter-argued that deterrence was only a very strong consideration and not applied over and above all other purposes. The Victims Rights Act 1996 (NSW) contains a Charter of Victim‟s Rights which recognise and guarantee certain rights including Respect for a victim‟s dignity . for example a doctor a patient or a teacher to a student. The offender was found guilty and convicted to two years and six month‟s imprisonment. by making some compensation or indication or has good prospects of rehabilitation and is unlikely to reoffend The offender was somehow provoked or was acting under duress.
and the just may set aside a sentence. and only if the court considers it appropriate. Statements are heard in the sentencing hearing. any person convicted or sentenced in a Local Court will have a right to appeal to the District Court. There are two types of appeals in criminal cases: Appeal against conviction. vary a sentence or dismiss the appeal. Offender is confronted by the victim and their family Criticisms Some suggestion that statements by family members are based on whether the victim was more or less loved by their family and are irrelevant. Victim impact statements are controversial because they can be very subjective yet had a significant effect on sentencing. The District Court will usually conduct a rehearing of all the evidence. where the defendant argues they did not commit the offence for which they were found guilty. o Will usually involve an argument that there was some legal error at law in the handling and prosecution of their case. Statements are only permitted for serious offences involving violence (actual or threatened) or the death of or any physical harm to a person.- Victim‟s compensation Protection from the accused Protection of identity Certain rights to information and assistance during the criminal trial process. Under the Crimes (Appeal and Review) Act 2001 (NSW). - TYPES OF PENALTIES . A person is able to appeal directly to the Supreme Court if it is on a question of law. A sentence might be increased or reduced to which the appellant must consider in making the appeal. It also introduces victim impact statements to the sentencing process. The statement relates to the personal harm to the victim including physical or psychological harm. o Might be made alone or in conjunction with an appeal against conviction. APPEALS A person convicted of an offence and sentenced will have the right to appeal their case. usually by reading the documents from the initial hearing. A person sentenced in the District or Supreme Court and The Crown seeking a harsher sentence can seek permission to appeal to the Court of Criminal Appeal. the sentence is too lenient. It allows the victim an opportunity to participate in the criminal trial process. Again. The final court of appeal in NSW criminal justice system is the High Court of Australia. The party appealing is known as the appellant. the victim‟s family will relate to the impact of the death has had on them. If successful. an appellant will need to seek permission of the High Court to appeal. Benefits An important opportunity for victims to express themselves in the criminal process If the offender is able to submit personal circumstances in mitigation of their sentence. for example. The crown also has the right to appeal a case where. but otherwise only be seeking permission of the Supreme Court. - The type of appeal will depend on the court the offender was tried in and if there are various time limits and process requirements on when a person can appeal. An appeal will only succeed if the person can prove that there was a legal error. This is a voluntary statement written by the victim or the victim‟s family about the impact that the crime has had on them. then the victim‟s personal circumstances should also be considered. It can include reports or diagrams or pictures (in the case of a child). Sentence appeal against the severity (by the offender) or leniency (by the prosecution) of a sentence. the appellant may be acquitted or the case may be ordered for retrial. If the crime has resulted in death for the victim.
Caution A formal warning without charge issued by police for less serious offences. judicial officers have the option of applying a fine or imprisonment or both. depending on the circumstances. such as larceny of goods less than $300. They will have the option of being challenged in court. breaches of local laws or for particular types of offences such as some violations of environment law or corporate law. or both Effectiveness depends on financial circumstances of the offender - Forfeiture of assets Assets (money or property) obtained by an offender through their criminal activity is known as proceeds of crime Under the Criminal Assets Recovery Act 1990 (NSW). driving offences. seized and forfeited.g. but if the matter goes to court and the offender is found guilty. - Bond . - Fines A monetary penalty imposed for infringement of a law and usually applies for less serious offences e. e. Aims to divert the offender from the court system: that the offender has learnt a lesson and will not reoffend. they allow police to issue on-the-sport fines for certain offences. The most common sentencing option used in Australia For most minor offences. unlawful gambling under the Crimes Act 1900 (NSW) can carry up to 1000 penalty units ($110 000) and imprisonment for up to seven years.g. The type of penalty imposed will depend on how the judicial officer ultimately weights all of the factors discussed above. The maximum fine for a particular offence will be set out in legislation and will be based on penalty units. and cannot exceed the maximum penalty specified for the offence. the court may decide to record the conviction. Alternatively. seeking certain entitlements or applying for travel visas. or pass sentence with not conviction recorded. Conviction or no conviction recorded When a person is charged with an offence and declared guilty by a judge or jury. A person will be required to declare their criminal convictions at various times in their life. It makes the offender accountable and acts as a deterrent. fines will be issued outside of the court by the police or by local law enforcement officers. the judicial officer has the option to record the conviction against the offender. offensive behaviour or language and obstructing traffic. Criminal Infringement Notice A notice issued by the police outside of court alleging a criminal infringement and requiring payment of a fine Introduced in NSW in 2007. Caution may include a warning about health and legal consequences as well as providing details of certain counselling and support services. The value of a penalty unit is defined in s 17 of the Crimes (Sentencing Procedure) Act 1999 (NSW): currently $110 For more serious offences. Although it is an increase in police powers. the NSW court system has the power to examine an offender‟s financial affairs and allow the assets to be restrained.g.The Crimes (Sentencing Procedure) Act 1999 (NSW) lists the various penalties that can be imposed. but impose no other sentence. Aims to remove some burden on the court system for minor offences. A criminal conviction is a serious matter and can have an important impact on a person‟s life. o An example in NSW is the Cannabis Caution Scheme.. where the police may issue a caution for minor offences involving cannabis if a person has no prior conviction. the sentence is likely to be more severe. e. In sentencing. the notices are not final and the offenders have the option of electing to have the matter heard in court. No conviction is recorded if the offender accepts the notice. Normally a conviction will be recorded and an appropriate sentence imposed. Laws are especially important in regards to organised crime as money is the primary incentive for criminal organisations. The court might also require the offender to pay an amount assessed as the value of the proceeds. when applying for certain jobs.
Can only be ordered where the sentence of imprisonment is less than three years. that no penalty other than imprisonment is appropriate. o If breached. o Home detention. if the offender has a history of any violent offences or live at the same address as the victim of the offence. For certain non-violent offences where a person is sentenced to 18 months‟ imprisonment or less. Cannot be used for violent or sexual offences where a victim is involved. with an additional sentence for breaching the bond. „a court must not sentence an offender to imprisonment unless it is satisfied. Community Service Orders Where the offender is sentenced to serve specified hours of work in the community for up to 500 hours. if there is a risk of reoffending. - . According to a recent study undertaken by the NSW Bureau of Crime Statistics and Research. Probation A type of good behaviour bond where the offender is released on condition of good behaviour but placed under some form of supervision. but imprisonment is too severe. the use of suspended sentences has doubled in the Local Courts and risen by 60 per cent in higher criminal courts. Punishing and shaming the offender while allowing for rehabilitation Cost effective and beneficial to the community as a whole while still penalising the offender for the offence Provides freedom to a degree to the offender Imprisonment The most severe sentence that can be imposed in Australia o Section 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Deprives a person of their liberty and removes them from the community Forms varying in levels of severity include full-time imprisonment served at a o Correctional centre.g. such as daily reporting to a probation officer for a period of time. which the offender undertakes to comply with in exchange for a more lenient sentence e. Imposed where there is a high danger of reoffending. they would be required to come before court again and may be sentenced to more serious penalties such as imprisonment Other conditions could be imposed include o Attending family counselling o Attending anger management courses o Avoiding visiting a particular place or associating with certain people o Attending drug or alcohol rehabilitation o Refraining from particular activities. such as gambling Used where lesser penalties are not considered sufficient or effective. Breaches would mean the offender is to return before the court and risk facing a higher sentence Suspended sentence A sentence of imprisonment imposed but suspended on condition of good behaviour for the same period of time Can be imposed by the court where they are sentencing an offender to imprisonment of up to two years. good behaviour bond o A good behaviour bond involves the offender undertaking to be of good behaviour for the bond period (up to five years). Breach can result in the bond being revoked and the original prison sentence reinstated. having considered all possible alternatives.- - - A compulsory condition imposed on the offender for a period of time. but where an order of detention is considered too severe. Can assist in rehabilitation but is not appropriate in offences where incapacitation is the purpose of the sentence. where an offender spends a period of each week or month in prison and the rest of the time at home. where an offender is confined to their home under certain conditions of monitoring. Allows the offender to continue to live in the community but return to prison on allocated days. or gaol o Periodic detention.
Unless there are special circumstances. The two-week snapshot showed that: almost 1 in 3 prison entrants had been told they have a mental health disorder 1 in 5 prisoners in custody was taking medication for a mental health condition more than 4 in 5 prison entrants was a current smoker. diversionary programs focus on therapeutic justice and rehabilitation of offenders. The report also conta Diversionary Programs An alternative to the traditional court system. Participants who completed the program were: 37% less likely to be reconvicted for any offence 65% less likely to be reconvicted for an offence against the person 57% less likely to be reconvicted for a drug offence. The total sentence of imprisonment will include a non-parole period o Parole being the release of a prisoner before the expiry of an imprisonment term. Only available for particular offences or types of offenders. it may include education. The Health of Australia's prisoners 2010 produced by the Australian Institute of Health and Welfare provides some interesting findings. the non-parole period will be at least three-quarters of the total sentence. on the promise of good behaviour. cardiovascular disease or diabetes. being sent to prison actually increases the risk of recidivism. punishment or incapacitation. November 2009 found that imprisonment does not reduce recidivism and. more than 1 in 3 prison entrants had not completed Year 10 at school. rehabilitation or social welfare assistance. for work or to get medical treatment as well as controls and restrictions e. It also found that the Drug Court is more cost-effective than prison in reducing drug related recidivism. but will usually be served concurrently. temporarily or permanently. A sentence will be imposed for each offence that the offender is convicted of. medical or psychiatric treatment. Usually a magistrate will adjourn the case while the offender attends some form of rehabilitation or special hearing. ALTERNATIVE METHODS OF SENTENCING Circle Sentencing .- - Conditions may be added allowing the person leaving the home e. If the offender is in remand.g. provides an opportunity for rehabilitation. NSW Bureau of Crime Statistics and Research – Media Release. Sometimes called „therapeutic justice‟. The Drug Court is a specialised court and is one of the most important diversionary programs. over half report drinking alcohol at risk levels. 2 in 3 had used illicit drugs during the previous 12 months. and 1 in 4 prison entrants had a chronic condition such as asthma. Over 150 offenders a year complete its program. Imprisonment may still be justified on the grounds of general deterrence. electric monitoring Beneficial as it is more cost-effective. o Established in 1999. o The NSW Bureau of Crime Statistics and Research report in 2008 assessing the effectiveness of the Drug Court found those who had completed the program were less likely to be reconvicted than those sentenced with traditional penalties. it is aimed to rehabilitate non-violent drug addicted offenders with the ineffectiveness of the traditional criminal justice system in providing long-term solutions to cycles of crime and drug abuse. They target the causes of offending and improve offenders‟ future prospects by assisting individual needs. the sentence will also take into account the amount of time the offender has already served. reduces burden on prison system and allows to a degree „normal‟ family activity to take place. if anything.g.
Usually accompanied by another form of traditional sentencing. e. Involves safe and private conferencing and mediation services run by a facilitator. e. POST-SENTENCING CONSIDERATIONS Once an offender is sentenced to a community-based order or non-custodial sentence. Medium security prisons allow inmates to move around freely. Run by the Restorative Justice Unit of the NSW Department of Corrective Services of the NSW Department of Corrective Services. o Directly involves local Aboriginal people in the sentencing process to make it more meaningful to the offender and improving Aboriginal confidence in the criminal justice system. they will need to serve out the terms and conditions of that sentence or be returned to face court for a review of their sentence. Goulburn Correctional Centre for men and the Silverwater Women‟s Correctional Centre. Maximum security centres hold offenders who committed the most serious crimes and whose escape would be highly dangerous to the public.- - A form of sentencing based on Aboriginal customary law and more traditional forms of dispute resolution for some adult Aboriginal offenders (repeat offenders and offenders of more serious crimes) Sentencing is conducted in a circle for local community members and a magistrate discussing the offender‟s crime and tailors the most appropriate sentence for the offender. Certain offenders. Offenders will be classified according to factors such as the seriousness of their crime. Restorative justice programs will mainly relate to minor infringements or youth justice and is unlikely to expand greatly beyond this role. but within high walls or security fences. Silverwater Correctional Centre. The Crimes (Administration of Sentences) Act 1999 (NSW) governs the administration of imprisonment and other sentences. When an offender is sentenced to imprisonment. It has the full sentencing powers of a court. including improving participation and support services. Cases of victims finding it helpful in for recovery from crime. Correctional centres are managed by Corrective Services NSW. prospects for rehabilitation and whether they have displayed good behaviour during previous sentences. Restorative Justice A form of sentencing involving a voluntary conference between the offender and the victim of the crime. e. Can be confronting and difficult for both parties involved. such as police officers or politicians may be more vulnerable to attack .g. they will first be sent to an assessment centre to receive a security classification and then sent to an appropriate correctional centre. Effective but improvements are being made in some areas. Security classification Correctional centres are divided into maximum. but Australian studies based on youth conferencing initiatives have shown a 15-20% reduction in reoffending if possible. Offers the chance for the offender to take responsibility for their actions and the impact they have had on others while giving victims a voice and an opportunity to confront the offender and work out a way to repair the damage done. Protective Custody Protective custody is provided in NSW correctional centres to offenders who are vulnerable to attack from other prisoner as correctional authorities have a duty of care for the safety of offenders in their custody. 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. Effectiveness is unclear. medium and minimum security.g.g. o Aims to improve understanding between Aboriginal communities and the courts and reduce recidivism among offenders. Tamworth Correctional Centre Minimum security centres would have fewer barriers to escape and inmates will be allowed more open conditions.
the Terrorism (Police Powers) Act 2002 (NSW) allows police to detain a person for a maximum of 14 days on suspicion that they will engage in a terrorist act. An example of post-sentence preventative detention is Crimes (Serious Sex Offenders) Act 2006 (NSW) that allows the continued detention of offenders serving a sentence for a serious sexual offence. in case of some future harm that they may commit There are two types of preventative detention o Post-sentence preventative detention. and the officer will visit the parolee‟s residence and make inquiries in the community to ensure the parolee is meeting the conditions of their early release. Adult offenders must register for a minimum of eight years. Preventative and continued detention Detention of a person in custody without having committed any offence. juveniles four years. which can occur at any time. Under ss 200 and 201 of the act. or after being found guilty of a registrable offence in another jurisdiction. . if a non-citizen commits an offence for which they receive a custodial sentence for 12 months or more in their first 10 years of residence. which occurs when a person has already been sentenced and has served that sentence o Preventative detention without charge. e. Must provide a range of personal information and travel plans up to date For the protection of the community although certain offenders may be targeted. Parolee is put under the direct supervision of a parole officer. - Deportation Under the Migration Act 1958 (Cth). the responsible minister for migration may decide that they should be deported from Australia. The Attorney-General can apply to court for continued detention of the offender if satisfied „to a high degree of probability‟ that the offender is likely to commit another offence. The allowable purposes include o To ensure the safety and protection of the community o To facilitate the rehabilitation of serious sex offenders - - Sexual offenders’ registration Known sex offenders who have been convicted of certain sexual offences are recorded in both state and federal web-based databases such as the Australian National Child Offenders Register (ANCOR) and the NSW Child Protection Registry designed to assit police with the registering and case management of child sexual offenders. They are required to report to an officer as directed. Highly controversial as they remove a person‟s basic human legal rights without due criminal process The most severe type of preventative detention is legislation that is targeted at individual offenders. Established under the Child Protection (Offenders Registration) Act 2000 (NSW). When a sex offender is paroled they are served with a notice to inform them that they need to register. This was ruled unconstitutional in the High Court case of Kable v DPP (1996) 189 CLR 5 Most jurisdictions have legislation enabling general powers of preventative detention in restricted circumstances. a migrant living in Australia who is not a citizen may be deported if they are tried and convicted of a criminal offence. Encourages better prisoner discipline within the prison setting. person‟s convicted of a nominated violent or sexual offence against a child are required to register at the local police station within 28 days of sentencing or release from custody.g. This may include o Good behaviour bond o Not reoffending during the parole period o Gaining employment o Possibly avoiding certain company or a specified public area o Receiving specific counselling or other treatment o Programs are aimed to assist offenders in their process of gradual reintegration into the community and to prevent recidivism.Parole Parole refers to the conditional release of a prisoner from custody after the minimum term of the sentence (Non-parole period) Provides the incentive for rehabilitation through the prospect of early release.
there are far greater number of males. In June 2004. and that of the sexes. In March 2006. NSW Juvenile Justice suggests various possible factors for young people being involved in crime. NSW Juvenile Justice‟s annual report for 2008-09 states that.- Deportation is highly publicised as the circumstances of such cases will usually be severe. but his residency status remained unclear for a year until he was granted a two-year special protection visa. where he became a permanent resident. Problems for deportee if the place is foreign and without support network If such a person is found to be a threat to national security or convicted of a serious offence. Jovicic developed a heroin addiction and by 2004 he had been charged with more than 100 criminal offences (mainly burglary and theft) to support his heroin addiction. However. he was granted a special purpose visa and allowed to return to Australia. Seen as moving the problem „elsewhere‟. However. Jovicic never became an Australian citizen. Jovicic‟s permanent residency was cancelled under ss 200 and 201 of the Migration Act 1958 by the then Federal Immigration Minister. He returned the same month. The Australian Institute of Criminology has found that the number of juvenile offenders is considerably higher than adult offenders. he was granted a Permanent Residency visa by the Labor Minister for Immigration and Citizenship. . There are two recognised approaches that can be taken by the law with regard to young offenders and juvenile justice. such as social and psychological factors. for every 1000 people in NSW aged 10-17. Serbia. such as: Poor parental supervision Drug and alcohol abuse Neglect and abuse Homelessness Negative peer associations Poor personal and social skills or Difficulties in school and employment. YOUNG OFFENDERS YOUNG OFFENDERS AND THE LAW The community and the law recognises that children and young people who have not reached full young people may have a different level of responsibility for their actions and a different level of protection or assistance is required. Senator Chris Evans. The causes of crime can relate to different factors. These are: The welfare model. 13. Jovicic was then held in custody before being deported to Belgrade.5 had a criminal matter finalised in the Children‟s Court 11 were convicted and/or sentenced in these finalised matters 3. they may be prohibited from ever returning to Australia. or the state of the economy. his family migrated when he two to Australia. In February 2008. he had no knowledge of the Serbian language and no working visa and was declared „stateless‟ by the Serbian government. which recognises the need to protect children and young people from the causes of crime and to assist in their rehabilitation if an offence is committed. The Juvenile Justice system is the area of law concerned with young people. He was discovered homeless and ill sleeping outside the Australian embassy in Belgrade and the case became widely publicised in the Australian media. Case Study: Robert Jovicic Born on 4/12/1966 in France to Serbian parents.3 were given sentences requiring the department to supervise them in the community and 1 was sentenced to detention. Phillip Ruddock.
the law has treated young people in more or less the same way as adult offenders. „doli incapax‟ was a rebuttable presumption. „incapable of wrong‟). Some aspects of the model aim to maximise an offender‟s chance at rehabilitation. By the end of the 19th century. 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. The Juvenile justice system encompasses a combination of both approaches when dealing with offenders. and not just naughty. most countries had adopted a minimum age of criminal responsibility. but varied in most jurisdictions. be interpreted in a way that is consistent with the ruling - Children (under 10 years old) Section 5 of the Children (Criminal Proceedings) Act 1987 (NSW) „[i]t shall be conclusively presumed that no child who is under the age of 10 years can be guilty of an offence‟ o A conclusive presumption cannot be rebutted. but only if the prosecution can prove it beyond reasonable doubt. the United Nations established a treaty on children‟s rights known as the Convention on the Rights of the Child. There are a number of reasons for this: Children and young people are vulnerable to exploitation They can make uninformed decisions without realising the consequences Protects others from being disadvantaged by dealing with a person who is a minor Children and young people can be less responsible due to their relative youth or inexperience.e. Children (10 to 13 years) In NSW. Evidence to prove this may include psychiatric evidence. The mens rea of the crime was difficult to prove in young people. The presumption was that the child could not have committed the offence.. a zero tolerance approach towards offenders of any age. the age of criminal responsibility was considered. o Punishment may also be considered cruel. the prosecution may be able to show that the child. including certain rights for children under criminal law 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 code‟ The treaty is enforced in all countries on the exception of Somalia and the United States In Australia. but elements of justice model have influenced current laws. . or behaviour and statements by the child. No child under the age of ten can be found by law to have committed an offence. o The law recognises that children of this age may have the mens rea element if they commit a crime. and emphasises punishment and deterrence over rehabilitation. calling for the law to lower the age of criminal responsibility or abolish it. AGE OF CRIMINAL RESPONSIBILITY The criminal justice system recognises ‘doli incapax’ (Latin. i. as far as possible. at the time of the alleged offence. evidence of parents and teachers. but is extremely unlikely. and not just „naughty‟.. that children under a certain age cannot be held legally responsible for their actions and cannot be guilty of an offence. the legal notion of „doli incapax‟ is able to be rebutted for children between the age of 10 and 13. a more traditional model which promotes a „tough on crime‟ i. actually knew that their act was seriously wrong.e. unless the prosecution could prove beyond reasonable doubt to the judge. In 1989.- The justice model.e. o i. Historical background Historically. there is no single law that adopts the convention in its entirety. and may prevent rehabilitation o There have been instances of children under the age of 10 of being capable of committing horrific acts. The High Court has ruled that Australian laws should. By the late 20th century. or jury. 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. Under common law. o It included many aims and requirements for the treatment of children. o Proving the existence of mens rea beyond reasonable would be extremely problematic as children under the age of 10 have very limited „life experience‟ when making decisions about right and wrong.
Children’s (Criminal Proceedings) Act 1987 (NSW) has a number of protections for people under the age of 18 o Prohibiting reporting of the child‟s name o A requirement that any convictions will be cleared after three years (if no more have been committed) o Matters will be heard in the Children‟s Court - THE RIGHTS OF CHILDREN AND YOUNG PEOPLE WHEN QUESTIONED OR ARRESTED The law recognises that children and young people require some special protections when dealing with the police The Australian Law Reform Commission (ALRC) inquiry in 1997.R v LMW  NSWSC 1343 10-year-old child. Children develop maturity at different ages. unless the offence was an indictable offence. Offenders aged 14-15 years old cannot have a criminal conviction recorded against them. The DPP depicted LMW as a bully who showed malice and deception. Ultimately. ‘Doli incapax: Why Children Deserve its Protection’ ((2003) 10 (3) Murdoch University Electronic Journal of Law) – Thomas Crofts. in conjunction with the Human Rights and Equal Opportunity Commission titled „Seen and Heard: Young People and the Legal Process‟ recommended changes in compliance with Australia‟s obligations under the UN‟s Convention on the Rights of the Child. Evidence raised included a child psychiatrist who determined that LMW probably could understand the difference between right and wrong. o If it is an indictable offence. it does not stop them if there truly is proof of a guilty mind Young people (14 to 17 years) Offenders can be found criminally responsible for their actions. was accused of manslaughter after he dropped another six-year-old boy. but was capable of following school rules and from two other six-year-old witnesses. (National standards have not yet been implemented in compliance with the UN‟s Convention on the Rights of the Child. (achieved in 2000) . Full criminal responsibility. three teachers that informed the court LMW was behind intellectually at school. Associate Professor at Murdoch university School of Law Criticisms Opponents argue that doli incapax should be lessened or removed because children today are better educated and the criminal law is not as harsh as it once was The rule can be unfair. especially to the victims of the crime It makes the prosecution‟s role in criminal trial more difficult. into the Georges River. LMW was the youngest person to face the Supreme Court of NSW and the youngest in Australia to be charged with manslaughter. After 18 months and high media and political interest in the case. knowing that he could not swim. the Supreme Court jury acquitted LMW after three hours of deliberation. as there is not always enough evidence to rebut the presumption of doli incapax Support It is consistent with the principals of international law of which Australia is a signatory. The prosecution argued that LMW had and was capable of forming criminal intent. and the notion forces prosecution to prove understanding on a case-by-case basis. public triable in adult courts does not occur until a person reaches 18 years of age.) Standardising the minimum age of criminal responsibility across Australian jurisdictions. and that he understood the consequences of pushing Corey Davis into the river. LMW. The defence argued that it was a „childish prank‟ gone wrong and that LMW did not understand the consequences of his actions. the judicial officer may decide to record a conviction. Corey Davis.
Police can never perform a strip search on a child under 10 A responsible adult other than a police officer must also be present for a person between 10 and 18. sentencing and detention The inquiry also surveyed 843 children and young people on dealings with the police. be adhered to. and have to respect a person‟s privacy and must not touch the person. If the person is 14 or older they must agree who the adult should be Police may only conduct strip searches in serious and urgent circumstances. the power to approach young people and ask them questions at any time.g. any information or statement a child or child person gives to police will be inadmissible as evidence in court proceedings against that person. Conditions listed in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) require that: Police know or believe on reasonable grounds that the person has committed or is about to commit an offence Police must have a warrant for the person‟s arrest Certain other conditions. Their answers may later be used as evidence against them. Identification.- Standardising national standards through legislation or policy for juvenile justice Covering investigation and arrest. guardian or lawyer The judge or magistrate otherwise decides that it should be admitted o The law assumes that young people may not be aware of their rights. youth worker. Police must tell a person: . and most compulsory powers of search and seizure. name and address o Right to ask a person to identify themselves with their name and address A person can ask a police officer for their name and their police station o A person is legally required to respond and may commit an offence if they do not When they are suspected on reasonable grounds that the person can assist them in investigating an indictable offence that was committed nearby In a number of situations relating to vehicles and traffic Where a person is suspected of committing an offence on a train. Questioning of young people Most police powers that apply to adults apply equally to children and young offenders. A person suspected of committing an offence should usually not answer police questions or sign any statements until they have received independent legal advice Right to support of a responsible adult o Under s 13 of the Children (Criminal Proceedings Act 1987 (NSW). - - - Arrest and Interrogation The conditions under which a young person can be lawfully arrested are the same as those for adults. Main legislation outlining police powers in NSW in regards to young offenders is in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). to ask a person to „move on‟. relating to people who are on bail conditions. even if they have been taken to a police station for questioning or arrested. apart from strip searches o Under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). may not fully understand the law or may be more vulnerable than adults in these circumstances Searches o Largely the same. 78% stated that the police rarely treated young people with a sufficient degree of respect. but improvements in the relationship between young people and police can be improved. such as a parent. e. unless There is a responsible adult other than the police member present. Does not necessarily suggest inadequate policing. bail conditions. Questions and right to silence o In most circumstances a person is not required to respond and may exercise their right to silence Can refuse to answer questions.
police may take fingerprints or photographs if it is for the purpose of identifying them. resist arrest or use offensive language. guardian or carer on the child‟s behalf. The police must find out as soon as possible who the child‟s parent or guardian is and to contact them o Young people must have a support person. can be detained for a maximum of four hours. or they may be guilty of further offences. a statement issued by police to a suspect when they are detained to inform them of their rights. i. any person arrested has the right to receive a caution. people under the age of 18 are defined as „vulnerable people‟ and are given special protection when arrested and detained for question.e. the „best interests‟ of the child and the wishes of the child and their parent and or a guardian. or interview friend.- That they are under arrest and why. or up to a further eight hours if a warrant for the extension is granted Forensic procedures. photos and searches o For young people 14 years or older. as soon as practical „Not have to say or do anything but that anything the person does say or do may be used as evidence‟ They must also inform them of the maximum allowable for detention without charge (4 hours) Accused to sign an acknowledgement that this caution has been given – usually would be completed by an interview friend. like adults. Police may not conduct any interview of a child or young person unless a support person is present. o For children under 14 years. especially indigenous youth. a person can also not assault a police officer. police must get their agreement on who they want as the support person. Additional comments (for essay?) o In some jurisdictions. unless for example the offence was a serious or violence one. Suggestion that police arrest young people on suspicion unlawfully and they enter the criminal justice system unnecessarily. - - - - The age of criminal responsibility in NSW 0-9 years old o Cannot be charged with a criminal offence. with detailed provisions about when and for what purpose an arrest can be made Section 8 of the Children (Criminal Proceedings) Act 1987 (NSW) also creates a presumption that children should not be arrested or detained. Detention and identification o People less than 18 years of age in NSW. or there is a danger of further offences or violent behaviour. the police can only take photos or fingerprints if they apply to the Children‟s Court to do so. Caution of rights o Under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). Inform the person of the police officer‟s name and station Police may use reasonable force in arresting a person or young person. but the force may not be excessive. 10-13 years old - . which could negatively impact on their perceptions and experiences. Likewise. o The police custody manager has a positive requirement to assist the child or young person o At present there is no requirement to have legal representation during a police interview. o Police cannot take a DNA sample of any suspect under 18 years old unless they have a court order allowing them to do so. UN Convention on the Rights of the Child obliges countries to use arrest only as a „last resort‟. present such as a parent. Child may not be held in custody while the application is being obtained. and the police officer may not assault or intimidate them. The support person will assist the child or young person and observe that the interview is conducted properly. Children and young people cannot give this consent on their own. For people 14 years and over. criticisms that police may rely too heavily on powers of arrest to gather evidence or to further the interrogation of suspects. cultural and ethnicity considerations. as it can often be a negative and traumatic experience Section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) lays down the principle in NSW. Children under 10 are not seen as mature enough to commit criminal offences. and the Court will consider the seriousness of the offence. guardian or solicitor. Support person and legal advice o Under the Law Enforcement (Powers and Responsibilities) Regulation 2005 (NSW).
police must find out details of the person‟s parent or guardian as soon as possible and contact them Children and young people must have a support person present during a police interview Police must give caution of rights in presence of the support person Police must inform of right to contact Legal Aid and give opportunity to do so Same period of detention as for adults. the matter will be heard summarily (with no jury). and answer any questions that the child asks about the process or decision Available penalties and sentencing procedures differ from ordinary courts Children’s Court statistics Main findings of the NSW Commission for Children and Young people. fingerprints and photos can only be taken with a Children‟s Court order If under 18 years old. and reporters or family victims if the court allows Prohibition on the media publishing any child‟s name who is involved in the process. CHILDREN‟S COURT. but the case will still be heard in the Children‟s Court 18 years or older o Full adult responsibility. 16-17 years old o Criminally responsible for any offence committed and a conviction may be recorded. including serious ones. unless authorised by the court or the child is deceased Courts in children‟s proceedings will need to consider the main trial and sentencing principles under s 6 of the Children’s (Criminal Proceedings) Act 1987 (NSW) Court will give the child the fullest opportunity to be heard and to participate Court must take measures to ensure that the child understands the proceeding. before a single magistrate Children‟s proceedings are conducted in a close court in order to protect the identity of the child – only parties to the proceedings are present. o Children and young people – special rights and procedures with police Right to a have a responsible adult present when police ask questions If less than 18 years old. Differences in children‟s criminal proceedings In the Children‟s court. no strip searches permitted for children under 10 years old If arrested. but prosecution may show the child knew what they did was „seriously wrong‟ and not just „naughty‟. Presumed not capable of committing an offence.PROCEDURES AND OPERATION The Children‟s Court was established under the Children’s Court 1987 (NSW) and has a dual role: Dealing with criminal matters of children and young people under 18 years of age Dealing with matters of care and protection of children and young people referred to it by the Department of Community Services Criminal jurisdiction Any offence other than a serious indictable offence committed by a child (serious indictable offences will be heard in a higher court. If the offence was committed before the accused‟s 18th birthday. it can still be heard in the Children‟s Court until the accused turns 21. committed by a child. then strip search can only be conducted if an independent responsible adult is present. cautions or conferencing) .- - - Rebuttable presumption of doli incapax. no DNA sample can be taken without a Children‟s Court order. which looks at matters heard before the Children‟s Court (statistics do not include diversionary methods such as warnings. with case to be heard in adult courts. armed robbery or sexual assault) Committal proceedings of any indictable offence. but no conviction can be recorded unless it is a serious offence. but a shorter period is strongly recommended If under 14 years old. 14-15 years old o Criminally responsible for any offence committed. including murder and manslaughter.
The involvement of males in these matters is over four times that of females. May report the child‟s mental health. psycho-social or mental health issues present in the child‟s situation that the court needs to consider prior to passing sentence. the court can decide whether to record a conviction. The Convention on the Rights of the Child acknowledges that children and young people have the best chance of any offenders of being rehabilitated and reintegrated back into society. Specific psychological. overseen by an officer of NSW Juvenile Justice o Community service order A community service order is a severe penalty. but for children under 16 years old no conviction can be recorded o Adjournment The sentencing can be adjourned or deferred for up to 12 months to assess the child‟s prospects of rehabilitation and reconsider at a later date o Bond Release the child on a good behaviour bond for up to a maximum of two years. sexual abuse/assault. The Children’s Court Clinic Established under the Children’s Court Act 1987 (NSW). drug and alcohol use use. an assessment is required to confirm if the child is suitable for a community service order o Suspended control order Similar to a suspended sentence. or up to 250 hours if they are 16 or over. a court can suspend a control order for up to two years. or psychological issues. but may decide to issue a caution to the offender o Conviction For young offenders. the clinic‟s main role is to make clinical assessments of children and submit reports to the court.- - The number of young people with at least one finalised criminal matter before the NSW Children‟s Court has increased from 2003 to 2007 following a downward trend since 1996. Additional s 6 of the Children’s (Criminal Proceedings) Act 1987 (NSW) that relate more specifically to the sentencing process include that: o The penalty imposed on a child shall be no greater than that of an adult for the same offence o Children should be assisted with reintegration into the community to sustain ties to their family and community o Children accept responsibility for their actions and if possible make reparation for them o Subject to other principles. but the court must take into the child‟s age and ability to repay it o Probation A bond with a probation order of up to two year. consideration should be given to the effect on the victim. with conditions that the court sees fit to impose. Overall. violence. and can be made for up 100 hours if the child is under 16 years old. subject to good behaviour o Control order - . PENALTIES FOR CHILDREN The purpose of rehabilitation is given primary weight. From 1996 to 2007 the majority of finalised matters before the NSW Children‟s Court involved males. Since 2003. it can also be combined with a fine o Youth justice conference Release subject to the child complying with a youth justice conference outcome plan o Fine A fine of up to 10 penalty units ($1 100). the 10-14 year old age group has shown the greatest increase in the number of young people with at least one finalised criminal matter. the numbers in 2007 are almost 40% are almost 40% lower than those in 1996. intellectual disability. Section 33 of the Children‟s (Criminal Proceedings) Act 1987 (NSW) lists the penalties that can be applied to children o Dismissal The court can dismiss the charge without punishment or conviction.
where a young offender has acted like an adult in committing the offence. there must be reasonable proportion between the sentence and the serious of the crime committed with the need to protect the community. who committed a robbery together: breaking into a house and injuring the occupants. educational needs or the special health and other requirements of children and young people and economic situation. Involved two main offenders . i. i. The program only applies to summary offences and to indictable offences triable summarily. or where they engage in „grave adult behaviour‟. the maximum time a child can be sentenced to a control order is two years Juvenile justice centres Centres house young offenders sentenced to control orders and some accused held on remand Managed by NSW Juvenile Justice. and is similar to an adult sentence of imprisonment except it involves detention in a juvenile justice centre. They invaded the home early in the morning knowing the occupants were home. such as premeditation. The offenders then proceeded to rob the property. indicated by the seriousness of the offence and other factors surrounding the behaviour.one just under the age of 18. The court reversed the original sentence and substituted it with a 12-month probation order. even with the seriousness of the offence often being a significant consideration. GDP appealed to the court of Criminal Appeal. sexual offence. but can still be released before the end of their non-parole period Sentencing considerations for young offenders Seen and Heard Report noted in sentencing. The judge sentenced both offenders to 12 months on remand. taking jewellery and a number of other items. The case was appealed and The Court of Criminal Appeal overturned the original sentence as „wholly inappropriate‟ and inadequate. ALTERNATIVES TO COURT The Young Offenders Act 1997 (NSW) became operational in 1998 to provide various diversionary measures for young offenders and police as an alternative to the traditional criminal processes and court penalties. The principles of the Act are that: .e.e. A control order is the most severe penalty.. At the time. where a panel of three judges held that the sentence was manifestly excessive. or any offence that results in a person‟s death cannot be heard. such as robbery. exceptions are made when a young offender is involved in repeated offences. Rehabilitation is of paramount concern. who by now facing year 12 and his HSC certificate. serious offences. However. which is a part of the Department of Human Services and overseen by the Children (Detention Centres) Act 1987 (NSW). R v Pham & Ly Element of „Grave adult behaviour‟ is present in an offence committed by a young offender. The occupants were gagged with sticky tape and a blanket put over their heads. Courts must announce a non-parole period for any control order longer than six months. had no prior incidents and was well regarded by his teachers. The aim is to encourage rehabilitation. one of the offenders was on bail and the other was on probation. reduce rates of recidivism and reduce the burden on the court system. Despite the offenders‟ ages. more attention was needed on social factors such as homelessness. A custodial sentence would have severely affected GDP‟s rehabilitation. R v GDP (1991) 54 A Crim R 112 Rehabilitation is the primary aim for the sentencing of young offenders GDP was 14 years old when he committed serious criminal damage (to the value of $550 000) with two of his friends. The case was referred for resentencing. GDP was very young. The judge sentenced him to a 12-month custodial sentence. family circumstances.
and there must be concessions and protection Rehabilitation for such young people is intended to be the primary concern for the criminal justice system and young offenders. but not an adult court. It has been well received by commentators. Statistics from the Australian Institute of Criminology shows that the rate of detention of young offenders has decreased since 1981 by 50%.3% of a total 6488 total young offenders who appeared before the NSW Children‟s Court were given a control order o In Australia. where suitable. embracing the welfare model of juvenile justice (diversionary methods) in encouraging rehabilitation of the offender.- The least restrictive sanction should be applied where possible Children should be informed of their right to seek legal advice Criminal proceedings are not to be started if there is an appropriate alternative for dealing with matter. as well as any support people the victim may want present. make reparations to the victim. - - THE EFFECTIVENESS OF THE CRIMINAL JUSTICE SYSTEM WHEN DEALING WITH YOUNG OFFENDERS The age of criminal responsibility recognises that child and young people need time to mature up until adulthood. recorded alternative to prosecution where the young offender admits to the offence and consents to receiving a formal police caution. 900-1000 young people are held in custody on an average day. Cautions o A formal. Under the act. o The young offender admits to an offence and consents to have it dealt by a conference of different parties. to promote better family understanding of the issues and to provide the offender with appropriate support services to assist them to overcome their difficulties o The system enhances the rights of the victim(s) as it holds the offender accountable. it can later be taken into account at the Children‟s Court. 10. o Those involved include the Child A conference convenor Investigating official A member of the child‟s family or extended family The offender‟s legal representative Another adult chosen by the offender A specialised youth officer and The victim can also attend. the offender must be told of the nature. o Expressed in the purposes of the Children (Criminal Proceedings) Act 1987 (NSW) and attempted through programs available in the Young Offender’s Act 1997 (NSW). One criticism is that it is not being used for a wide range of offences and thus excluding some young offenders from the benefits. children and young offenders who have committed an offence covered in the Act may proceed through a threetiered system of diversionary processes: Warnings o A notice given to a young offender (usually for a first minor offence) that is recorded by police but with no conditions attached. empower families and victims in decisions about the child‟s offence and. o It found no difference in the rate of reoffending in young offenders given a custodial sentence than those given another form of sentence - - . Shopfront Youth Legal Centre in response to a 2003 review of the NSW Law Reform Commission on sentencing of young offenders argued it could even be suitable for very serious offences. o The purpose of a YJC is to allow the offender to take some responsibility for their actions. In the Australian Institute of Criminology‟s 2009 study. o In 2007. The Specific Deterrent Effect of Custodial Penalties on Juvenile Offenders. purpose and effect of the warning. Youth justice conferences o A measure to divert young offenders from the court system through a conference that addresses the offender‟s behaviour in a more holistic manner.
There have been instances where Australian legislators have deemed it necessary to criminalise acts committed by Australians travelling abroad Part IIIA of the Crimes Act 1914 (Cth) on Child Sex Tourism which makes it an offence for an Australian citizen or permanent resident to engage in sexual activity with a child under 16 years old while overseas. or under foreign criminal law if the act is also a crime in that jurisdiction. increased international travel and advances in technology has led to transnational crimes (crimes occurring across international borders). including victims. or a crime recognised as punishable by the international community. - CATEGORIES OF INTERNATIONAL CRIME A domestic citizen who commits a crime in a foreign country (according to its own laws) are criminally liable to any applicable sentence that country imposes. Magistrates frequently impose tougher bail conditions on children than on adults The Criminal Law Review Division is reviewing two key juvenile justice Acts: Young Offenders Act 1997 (NSW) and Children (Criminal Proceedings) Act 1987 (NSW). most commonly not complying with a curfew.e. Can be broadly divided into two main categories: Crimes against the international community . but in 2008 this figure jumped to 5082 66% had been locked up for breaching other bail conditions. to make and apply laws. i. In 2006.‟ The Young Offenders Act 1997 (NSW) has been particularly successful in diverting young people away from the traditional court system and thus custodial sentences. - INTERNATIONAL CRIME DEFINING INTERNATIONAL CRIME State sovereignty is the authority of an independent state to govern itself. The aim of this review is to ensure these pieces of youth justice legislation continue to reflect best practice and meet the needs of young people and the community. make war and peace. impose and collect taxes. International crime is a broad term covering any crime punishable by a state with international origin or consequences. o Even though the criminal act occurs overseas. a foreign citizen in a domestic country will be subject to their criminal laws. as to constitute a crime against the international community and is punishable by the international community With globalisation. The Children‟s Court has the power to refer young people who before it to the Children‟s Court o 50% of conferences have been referred by the Court Other aspects of the criminal justice system continue the justice model o Changes to the Bail Act 1978 (NSW) in 2007 allowed only one application for bail unless there was a change in „circumstances‟. there is recognition that certain actions committed within sovereign state jurisdictions may be so extreme. the offender is still liable under Australian domestic law. Likewise. there were 3623 minors admitted to remand. and so universally condemned.- „adverse effects of imprisonment on employment outcomes and the absence of strong evidence that custodial penalties act as a specific deterrent for juvenile offending suggest that custodial penalties ought to be used very sparingly with juvenile offenders. or form treaties with foreign states With closer ties between countries and the development of the international community.
based on international opinion that the alleged crime is so serious that normal laws of criminal jurisdiction do not apply. but there has yet been agreement on the definition of it.- - No fully agreed list of such crimes: many countries will disagree about the specific aspects of the offence. Can be very controversial: most crimes committed in the context of a war. In other instances. served in a state prison designated by the court. Before ICC genocide (and other war crimes and crimes against humanity) were dealt with by the international community in specific ad hoc tribunals. over 110 state parties to the ICC o Permanent court and independent from the United Nations or from any nation state o Consists of 18 judges who come from different signatory countries o Jurisdiction over three categories of crime: genocide. after the Rome Statute of the International Criminal Court (Rome Statute) came into force in July 2002 when the requisite number of states (60) had formally ratified it o As of 2010. such as the International Criminal Tribunal for the Formal Yugoslavia and the International Criminal Tribunal for Rwanda. The ICC can only exercise jurisdiction where: The accused is a national of a member state of the treaty The alleged crime occur in the territory of a member state. crimes against humanity and war crimes Also has jurisdiction to prosecute crimes of aggression. the ICC has not yet succeeded in convicting any person of genocide - - Crimes against humanity Article 7 of the Rome Statute define „crimes against humanity‟ as any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population. first signed in 1948. or have been ordered or committed by the state itself (or by those in positions of power). war crimes. politically motivated. a fine or forfeiture of assets. Change in the view of state sovereignty International Criminal Court (ICC) First signed at the 1968 UN Conference in Rome Established in 2002 in The Hague. Criminalised in one of the first ever treaties established by the United Nations – The Convention on the Prevention and Punishment of the Crime of Genocide. or The situation is referred to the ICC by the UN Security Council o Can impose a sentence of imprisonment up to life imprisonment. piracy (at sea). Since its establishment. o Other states condemning the action may claim a right to prosecute the offender under a claim of universal jurisdiction (where a state claims a rare right to prosecute a person for actions committed in another state. but will almost always include certain crimes such as genocide. Netherlands. o The ICC can only prosecute a case when state courts cannot or are unwilling to do so. or o Forcibly transferring children of the group to another group. or about the inclusion of certain crimes. Genocide Rome Statute defines the crime of genocide as including: o Killing members of the group o Causing serious bodily or mental harm to members of the group o Deliberately inflicting conditions of life calculated to bring about the group‟s physical destruction o Imposing measures to prevent births within the group. the offenders may have fled to a different jurisdiction to attempt to escape prosecution o The importance of all states condemning crimes against the international community is that the criminals may be unable to escape prosecution. hijacking of aircraft and slave trading. and in addition. with knowledge of the attack o Murder o Extermination o Enslavement o Deportation or forcible transfer of population o Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law o Torture .
Some causes of transnational crimes might include: o Differences in socioeconomic conditions between countries. shipping and postal networks. o Hope that transnational element will prevent detection o Opportunistic desire for power or financial gain Difficult for domestic law enforcement authorities to track down offenders operating transnationally and prosecute. cultural. enforced prosecution. national. for example human trafficking or even internet fraud from developing countries. o Desire for prohibited goods or services. radical. Nuremburg trials of prominent Nazi Germany leaders charged leaders for crimes against humanity. sexual slavery. forced pregnancy. copyright infringements or spam networks o International tourism including cyber terrorism such as disruption of infrastructure counting electrical systems or computer networks o Creation and trafficking of child pornography. either international or domestic o Any „grave breaches‟ of the Geneva Conventions and listed under the Rome Statute Torture or inhuman treatment. in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court o Enforced disappearance of persons. or serious injury to body or to mental or physical health Easier to prosecute by the ICC than genocide because of the broader definition and issues of proof. - Transnational crimes Crimes that take place across international borders. international fraud. o Many crimes are now underpinned by international cooperation agreements between affected countries - - - DEALING WITH INTERNATIONAL CRIME . enforced sterilization. the sick and wounded. or as part of a large-scale commission of war crimes. where suppliers are based in one country and consumers in another o Differences in political or ideological reasons. including biological experiments Wilful killing or wilfully causing great suffering or serious injury Extensive and militarily unjustified destruction or appropriation of property Intentionally directing attacks at civilian populations or objects Intentionally directing attacks at humanitarian personnel or equipment. but involve movement across international borders as an element of the act o Rapid rise of international telecommunications and international travel. including international air. Does not need to be committed within the context of an armed conflict o War Crimes Action carried out during the conduct of a war that violates accepted international rules of war: the most well-known of which is the Geneva Conventions o Four treaties and three additional protocols that sets the standards in international law for the human treatment of the victims of war Civilians. o ICC has jurisdiction where the acts are part of a plan or policy. o Similar to domestic crimes. as well as war crimes. or any other form of sexual violence of comparable gravity o Prosecution against any identifiable group or collectivity on political. ethnic.e. globalisation and diversity of migration Main types include o Human trafficking and people smuggling across borders o International fraud and white collar crime like tax evasion or money laundering o Transnational internet crimes including data theft. gender as defined in paragraph 3 (:S) or other grounds that universally recognised as impermissible under international law. religious. o i. prisoners of war and medical or religious personnel. Article 8 of the Rome statute provides an extensive list of activities that can constitute war crimes o Must have taken place during an armed conflict.- - Rape. o The crime of apartheid (forced segregation of populations) o Other inhumane acts of a similar character intentionally causing great suffering. or transnational trade in illegal substances.
g. for example where express permission has been granted for the presence of Australian law enforcement agencies by the host country (e. Crimes against the international community Most significant is the signing (on 9 December 1998) and ratification (1 July 2002) of the Rome Statute o International Criminal Court Act 2002 (Cth) and the International Criminal Court (Consequential Amendments) Act 2002 (Cth) was passed to ensure that Australia‟s domestic laws would comply with the statute o Introduced a new section to Commonwealth Criminal Code. 2005 Marriot hotel bombing o Established the Jakarta Centre for Law Enforcement Co-operation.Domestic Measures Australian law enforcement cannot operate in a foreign country. universal jurisdiction). where parliament legislates on actions involving Australian residents abroad (e. assisting in crisis relief efforts). Chapter 8 – Offences against Humanity and Related Offences Created domestic offences in Australia for all the crimes listed in the Rome statute and existing offences Prior to Rome Statute Australia had legislation in force: War Crimes Act 1945 (Cth) and the Geneva Conventions Act 1957 (Cth) which outlawed the recognised war crimes under the Geneva Conventions - Transnational Crime Australian Federal Police (AFP) Established under the Australian Federal Police Act 1979 (Cth) to enforce Commonwealth criminal law and to protect Australia‟s interests from crime in Australia and overseas Works closely with range of law enforcement bodies at state. Some specific examples o Jakarta Regional Co-operation Team assisted Indonesian police in the 2002 Bali bombings. territory. Effectiveness of the Australian legal system requires co-operation from foreign countries. which aims to enhance regional law enforcement skills in dealing with transnational crimes o Continuing to develop relations with other regional bodies such as the South East Asian Regional Centre for Counter-Terrorism in Kuala Lumpur and the International Law Enforcement Academy in Bangkok Commonwealth Attorney-General’s Department Reports and provides o valuable advice on Australia‟s compliance with its international obligations o oversees the operation of legislation relating to transnational crimes and provides advice on their implementation and o provides general information to the public and to parliament on the status of Australia‟s efforts against transnational crimes. Exceptions may be possible. monitoring and peacekeeping o Specialist training for international law enforcement agencies. child sex tourism laws) or where a court claims rare jurisdiction under a rule of international law (e. Investigates matters of national concern an in coordination with other international law enforcement agencies it delivers specialist law enforcement capabilities to assist in investigating and analysing intelligence concerning national and transnational crimes - - . Commonwealth and the international levels Role has grown in recent years with growth of transnational crimes Engages in various international activities in the region and worldwide o Posts in more than 25 countries o Deployed for international capacity-building. encouraging greater international co-operation and preventing transnational crimes at their source.g.g. do not have jurisdiction over crimes committed under foreign laws and Australian parliaments cannot legislate on the laws of other countries. 2004 Australian Embassy bombings. Australian Crime Commission (ACC) A national statutory body established under the Australian Crime Commission Act 2002 (Cth) to combat serious and organised crime.
o Nuremburg trials and Tokyo trials prosecuting surviving leaders of Nazi Germany and the Empire of Japan for crimes against humanity and war crimes relating to the Second World War o International Criminal Tribunal for the formal Yugoslavia (ICTY) in 1993 prosecuting individuals for war crimes. o Australia has received three extradition requests from the ICTY against people residing in Australia accused of committing war crimes Extradition Act 1988 (Cth) sets out the criteria required before extradition will be granted. money laundering and tax fraud.- Some areas the ACC specifically investigates include South East Asian organised crime (heroin importation. - Independent Commission against Corruption (ICAC) NSW Crime Commission Police Integrity Commission and divisions within the NSW Police Service International Measures Co-operation between governments through international treaties and international organisations targeted at specific types of international crime International courts and tribunals to deal with enforcement of international crimes Co-operation and intelligence sharing between nations and sub-national agencies to tackle problems of trans-border crime Crimes Against the International Community Development of treaties such as the Geneva Conventions and the Rome Statute of the International Criminal Court Courts and Tribunals Prior to ICC. and human trafficking for sexual exploitation Australian Customs and Border Protection Service - The national agency responsible for the security and integrity of Australian borders Works closely with other government and international agencies to detect and deter the unlawful movement of goods or people across Australia‟s borders. Ad hoc international tribunals were established in order to prosecute atrocities. o Accused has a case to answer on the evidence - - - - - . o Australia currently has extradition agreements with about 130 countries A few international agreements also have their own specific extradition arrangements. a number of state parties have requested investigations into internal matters and one matter has been referred to the court by the UN Security Council Extradition Treaties Extradition is the legal surrender of a suspect or convicted criminal by one jurisdiction to another to face criminal charges or sentence International extradition is generally governed by a series of bilateral agreements between Australia and other countries. including the Rome Statute of the International Criminal Court and the Geneva Conventions. crimes against humanity and genocide committed during the Yugoslav conflict between 1999 and 2001 o To date. these crimes were usually dealt with on a domestic level by court or military tribunals on a case-by-case basis. identity crime. Australian High Tech Crime Centre (AHTCC) - Created in 2002 to coordinate all Australian law enforcement authorities in fighting serious types of crime that involves the use of technology Main functions include o Coordinating a national approach to serious. complex and multi-jurisdictional crimes o Assist all Australian jurisdictions in their ability to deal with high-tech crime State Bodies In NSW.
religion. and o International terrorism INTERPOL advocating a movement to a „global police force‟ in cooperation with the United Nations aimed to improve the skills of police peacekeepers and sharing of communications networks and criminal data o Increase the ability to track international criminals by sharing resources and common standards The United Nations Convention against Transnational Organised Crime Established in 2000 and is regarded as the main international instrument in the fight against transnational organised crime Three protocols o Protocol to Prevent. a Serbian paramilitary leader from Australia to face questioning of war crimes committed during the ethnic conflict in the Balkans between 1991 and 1993 Commander of a paramilitary unit known as the Red Berets Allegations against him including that he directed his troops to commit the war crime of torture o He has denied these claims Been in custody in Australia since January 2006 Walked free after Federal Court decision on September 4. Australian Government appealed the ruling. France Currently lists its six priority crime areas as: o Drugs and criminal organisations o Public safety and terrorism o Financial and high-tech crime o Trafficking in humans o Fugitives o Corruption Specific examples o Targeting organised crime in Asia and Eurasia. detained or restricted in his or her personal liberty. Especially Women and Children o Protocol against the Smuggling of Migrants by Land. Air and Sea - - - . Found 6 weeks later and detained. or punished. Federal Court found that Croatia‟s courts had allowed its own soldiers to rely upon their service in the Croatian armed forces during the war to mitigate sentences. o International counterfeiting and money laundering. Lost appeal in Australian Federal Court in September 2011 Transnational crimes International Criminal Police Organisation (INTERPOL) World‟s largest international police organisation with to date 188 member countries including Australia Established in 1923 to improve transnational cooperation between police around the world and to prevent or combat international crime Headquarters in Lyon. 2009 The Federal Court prevented the extradition under section 7c of the Extradition Act 1988 (Cth). which was successfully overturned by the High Court in 2010. nationality or political opinions‟. Suppress and Punish Trafficking in Persons. and if convicted. but the AFP lost track of Mr Vasiljkovic. by reason of race. but Serbian soldiers had not received the same considerations Federal Court concluded that if Mr Vasiljkovic would not be given a fair trial. where 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. would be given a a longer sentence because of his political beliefs The High Court has granted the Croatian Government special leave to appeal. o Trafficking in arms and drugs.- o Will receive a fair trial in the state to which they are being returned o The offence is a crime in both Australia and the target country Extradition is important to prevent offenders simply fleeing the prosecution for their crime by leaving the jurisdiction where the offence was committed Croatia to appeal to High Court over Dragan Vasiljkovic extradition Croatia requests the extradition of „Captain Dragan‟.
Crimes against the international community The establishment of the International Criminal Court (ICC) and ad hoc tribunals cannot eradicate crimes against the international community. Political interference Enormous costs of such investigations and prosecutions Can‟t prosecute all of the offenders who commit the crime . Darfur. there is also no international force or police that can capture such offenders. short of rare intervention by the UN Security Council. The ICC is symbolically very powerful. but serve justice to offenders after it has occurred. training and resources to combat such crimes or may be unable due to political factors and corruption. Unlike domestic courts. Their Parts and Components and Ammunition Signature states commit themselves to ensuring their own domestic criminal offences regulate participation of organised crimes. Sudan. The main criticism is that the response from the international community has been too slow to stop these atrocities before they occur. 3rd and 4th trials led to resignation of the German judge. commit to providing „mutual‟ legal assistance and co-operation between law enforcement agencies. o The Effectiveness of Measures Dealing with international Crime Effectiveness is mixed Transnational crime Organised crime groups and the crimes they commit are sophisticated and so take complex measures to avoid detection from law enforcement authorities Some states may lack the skills. Khmer Rouge Tribunal – many high ranking government officials – including prime minister hun sen – were former Khmer rouge leaders. transnational crimes will continue to exist. Samoa Pacific nations have less resources to tackle law enforcement Particularly successful o In 2004. especially where they remain inside their own state jurisdiction. It also offers enormous support to victims of the crimes by attempting to bring to justice those responsible for these human atrocities. the then largest methamphetamine laboratory in the southern hemisphere was discovered and dismantled in Suva. or even while they are occurring. warning leaders or other criminals that they can no longer hide behind the immunity of state sovereignty. There has been some success with the domestic and international response but like with domestic crimes. and undertake to upgrade the capacity of national authorities to deal with organised transnational crime networks Pacific Transnational Crime Network (PCTN) Formed in July 2002 as a response to increases in regional transnational crime Initiative of the AFP to develop strong relationships with Pacific neighbours. funding and intelligence on an unprecedented scale. Headquarters at the Pacific Transnational Crime Co-ordination Centre in Apia. money laundering and other aspects of corruption.exchange of information The level of compliance among weaker or poorer states – states where rule law may be weak become targets by organised crime groups States will require significant cooperation and sharing of skills.- - Protocol against the Illicit Manufacturing and Trafficking in Firearms. These states may attract more organised crime groups making it very difficult to combat the problem The main areas for efforts against transnational crime to address include: The extent of international cooperation between states – provision of adequate resources The effectiveness of coordination among international agencies. The threat of later prosecution may act as a deterrent against those who plan to exploit that „immunity‟. the ICC did not lay charges against President al-Bashir until 2008. Fiji. 5 years after the atrocities began. resources. States must also adopt broad changes to extradition procedures.
Although the ICC now has over 110 member states. the ICC has the potential to make a significant difference. With adequate resources and political determination by states around the world. - - Issues of compliance and non-compliance in regard to criminal law The majority of individuals within a society obey the law most of the time. rules of evidence and procedure as well as in sentencing matters. Police have discretionary power of arrest in certain matters and they also have discretion in the exercising of their powers when carrying out their duties. It is partly for this reason that the majority . coercion or deceptive means. 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. often trafficking women and children into the sex industry. having a permanent court. investigate and provide specialist training for tackling the crime National Policy Strategy to combat trafficking of women for sexual servitude Victim support measures and special visa arrangements to support victims of trafficking Co-operation with regional and international agencies in tackling the sources and prosecuting the offenders Support and training for the Commonwealth Director of Public Prosecutions to help prosecute people trafficking CRIME THEMES AND CHALLENGES The role of discretion in the criminal justice sentence Discretion acknowledges that the law can be a blunt instrument in delivering justice. They also have discretion in matters on appeal.Nonetheless. There are many people in authority who have discretionary power in the exercising of their roles. making it a difficult and complex crime to address. Similar legislation have been passed by Australian states and terrotiries $60 mil in 2003 dedicated to tackling the problem AFP Funding to strengthen its ability to detect. It allows individual circumstances to be taken into account when applying the law. Crimes against the international community Australia in dealing with human trafficking Human trafficking involves the movement of people by force. Individuals also enjoy the freedoms and protection a well-organised and. well-regulated society gives. China and India) and some very influential countries (such as Pakistan. or trafficking in persons and forced labour. is a step towards greater efficiency. They examine if there is enough evidence and if it is in the public interest to prosecute Magistrates and judges have discretion in matters pertaining to bail. Vietnam and Indonesia) have not joined. over 250 matters of trafficking were referred to the AFP Offences related to human trafficking are found in the Criminal Code Act 1995 (Cth). Discretion can also be used in a bias or corrupt way undermining justice. In the last decade. It still has jurisdiction over any individuals from non-member states who commit crimes against or in the territory of a member state) o India over Kashmir o China over Tibet or Xinjiang Development of the international criminal justice system is promising. including slavery or any commercial transaction involving a slave. Estimated 500 000 to 4 000 000 victims annually. at times. Most countries object to joining the ICC as it would violate their state sovereignty Critics claim that in many cases states fear subjecting themselves to investigation over their own affairs (However. the ICC only has jurisdiction for crimes committed after its establishment. with established investigative and court mechanisms as well as permanent staff. References to course material can be used here and critiqued. sexual servitude or deceptive recruiting. Discretion is a part of most steps in the criminal justice system. The Director of Public Prosecutions (DPP) has discretion with respect to what matters they will prosecute. several influential countries including some of the world‟s major powers (such as the United States.
The role of law reform in the criminal justice system Any example where the law changes is law reform. remote witness facilities. jurisdictions will differ in what actions will constitute a crime. Issues that could be critiqued could include ways the criminal justice system tries to ensure greater compliance through: o Crime prevention (situational and social) o More effective investigation of crime o The purposes of punishment to reduce criminal behaviour (the lack of success with high rates of recidivism) o Emphasis on rehabilitative initiative with young offenders (such as youth justice conferencing) o Measures to combat transnational crime The extent to which the law reflects moral and ethical standards Crimes are actions that individual societies have decided should be illegal. and the areas today that are in a state of flux. where individual civil liberties have been eroded in the name of protection of the community. Some examples of law reform in the criminal justice system could include: laws of sexual assault Majority verdicts in juries Guidelines in plea bargaining. offenders and society In many instances society‟s needs may be outweighing the rights of individuals in light of. The law and order debate that has been on-going in some areas has gained the upper hand in the balancing act which is the tension mentioned above Areas that could be critiqued include police powers against the rights of suspects. home detention or community service orders International crime – the ICC. mental illness. anti-terrorism legislation or restriction in bail laws. alternative methods of sentencing such as circle sentencing. is fundamental to the criminal justice system and this balancing act. Most crimes are the result of moral and ethical judgements by society about behaviour that may be deemed harmful and therefore warrant sanctions by the state. INTERPOL or initiatives of the AFP Failure of the existing law to deal effectively with sexual assault matters (low reporting and conviction rates) Rehabilitation. The law can also enforce compliance and sanction violations on behalf of society where individuals do not comply.- - complies with the law. The right to a fair trial. surveillance. sexual assault laws. the growth of the international criminal system. reflect the moral and ethical standards of our community. thrill. refer to the prison system Gathering of evidence – DNA. plea bargains negotiated by the DPP and the ability of the international criminal justice system to bring offenders of mass atrocities to justice - The effectiveness of legal and non-legal measures in achieving justice . peer pressure. Agencies of law reform such as Law Reform Commissions. decriminalisation of certain behaviours. Some of the reasons why people do not comply with the law include greed. or the criminal trial procedures that aim to balance the rights of victims. For this reason. addiction. The criteria used by judges when sentencing is also a feature of this balance and on-going tension. In other words. The ways the law may change to respond to shifts in public morality. political need or necessity. supported by strict rules of evidence and procedure. for example. offenders and society. restorative justice Youth justice conferencing or other alternatives for young offenders Alternatives to full-time imprisonment such as periodic detention. This balance is further reflected in the decision to grant bail. self-interest. reliability and process of such evidence contributing to delays of court system. what currently exists in international law. - The extent to which the law balances the rights of victims. transcript evidence. and crimes will change over time. Courts and other non-legal measures can be examined here with examples of how they have reformed the law. Some examples may include: o Specific domestic legislation and international treaties concerning international crime that reflect a degree of public morality o Areas where there have been law reforms or changes to the law as a result of shifting public morality – sentencing laws. statute and common law is a reflection of our public morality. balance police powers with the rights of the individual. There is no set pattern and the specific reason for an individual‟s noncompliance may vary. rates of recidivism. legislation concerning young offenders. Parliaments.
states ‘recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom. or the sentencing process. slavery ruled illegal by common law in the case of Somersett (R v Knowles. and that moral and ideal considerations do not apply The abolition of slavery o A type of forced labour where a person is considered to be the legal property of another o Moves to abolish slavery and slave trading in European cities and states began as early as the 12th century Iceland officially abolished slavery in 1117 o European empires supported the use of slaves from new territories. these rights are considered to be: Universal Inalienable Inherent Indivisible DEVELOPING RECOGNITION OF HUMAN RIGHTS Natural law: the theory that certain laws come from an unchanging „natural‟ body of moral principles as the basis for all human conduct. international crime. and slavery abolished by the 13 th Amendment to the US Constitution . southern states were against abolition One of the main causes of the American Civil War (1861-1865) All US slaves were freed by the end of war in 1865. Slavery elsewhere in the British Empire still allowed Slave trade officially ended in British empire with the passing of the Slave Trade Act 1807 (UK) . develop awareness of. the media and so on can also be highlighted here and their role outlined and evaluated. or pressure law-makers to regulate or deal with an area of concern within the criminal justice system. As stated in the UDHR. HUMAN RIGHTS THE DEFINITION OF HUMAN RIGHTS Human rights: the basic rights and freedoms believed to belong justifiably to all human beings. but particularly from trade posts in Africa Transatlantic slave trade between the 17th to early 19th centuries West Africa to New World Colonies Estimated 12 million Africans shipped to the Americas o Abolition movement. Non-legal measures must also be critiqued as a change agent that can help improve. but slavery itself abolished in the Slavery Abolition Act 1833 (UK) All remaining slaves in the British Empire freed in the following year US followed in 1808 Following the 1776 Declaration of Independence. justice and peace in the world’. Non-government organisations. Broad areas of criminal law may be chosen that outline the statute/common law responses such as young offenders. the northern states of America began to abolish slavery. Indian and East Asian slaves being brought back to England to work as servants.- - The legal measures include all institutions and processes enabled by law to deal with aspects of the criminal justice system. ex parte Somersett (1772) 20 State Tr 1) which followed a recent trend of African. or abolitionism which sought to abolish slavery began in the 18 th century Rational thinkers began to criticise slavery as violating the rights of man Evangelical thinkers began to criticise it as „unchristian‟ In Britain. The Universal Declaration of Human Rights (UDHR). adopted by the United Nations in 1948. and so have validity everywhere Positivism: the theory that laws are valid simply because they are enacted by authority or from existing decisions.
Demand for suffrage for all males began in world democracies in the 19th century 1832 – Males who rented land of a certain value 1867 – All male householders 1884 – Males in the countryside Representation of the People Act 1918 (UK) – vote extended to the whole adult population Suffragettes were supporters of women‟s suffrage. including the right to be counted in the Australian census. Indigenous people were permitted the right to vote since federation in 1901. characterised by changes in manufacturing. This was usually due to a mistrust or suspicion of the general population. In New Zealand. agriculture and transport. The trade union movement and labour rights o Employment conditions and wage outcomes o Major changes with the Industrial Revolution in the 18th and 19th century. Removed in 1867 In Australia.- - European countries ceased exporting slaves in the following decades Many countries in Latin America abolished it during the wars of independence from Spain in 18101822 In 1890. colour or previous servitude were allowed to vote under the 15 th Amendment implemented in 1870. thus excluding Maori voters. comprehensive international convention on abolishing slavery worldwide. equality In 1893. Employers want to keep costs of production low Industrial action and strikes by the entire workforce o UK Laws were created to criminalise workers‟ involvement in trade unions and heavy penalties were applied. or an assumption that they could not understand the affairs of government. Article 4 of the Universal Declaration of Human Rights prohibits slavery Last state to officially abolish slavery was Mauritania in West Africa in 1981 Illegal slavery still exists. all adult males. symbolically. o Later interpretations by the government and discriminatory measures adopted by the states denied them the right to vote until 1962 o 1967 referendum gave Indigenous Australians equal status as citizens. with an estimated 27 million people enslaved worldwide. lack of safety. if their state granted them that right. New Zealand was the first country to allow women to vote South Australia followed in 1894 Australian Commonwealth allowing women‟s suffrage in 1902 In the UK. The right to vote was recognised as a universal human right in Article 21 of the Universal Declaration of Human Rights. In the first modern democratic countries. voters required to own property. European countries met and signed the General Act of Brussels First ever major collaboration of international states to abolish slavery and was mainly at the slave trade in European protectorates in Africa League of Nations Slavery Convention passed in 1926 after the end of the First World War by the League of Nations (precursor body to the United Nations). o Trade unions first emerged in the industrial revolution in response to the appalling conditions. regardless of race (African-Americans & native Americans). Tolpuddle Martyrs – six leaders of a group of farm labourers who formed a society to campaign for higher wages were arrested and sentenced to transportation to Australia for seven years . usually those with higher status who owned large amounts of property or came from certain backgrounds. low wages and long working hours in the factories of the new industrial cities. limited in 1918 and made equal in 1928 The US passed the 19th amendment allowing women the right to vote in 1920 By race In the Americas. only a limited number of men were allowed to work. The campaign for universal suffrage o Suffrage is the legal right to vote.
which goes on to state that Children‟s elementary education should be compulsory and made widely available There are still many children that cannot access education. and making education free. Economic and Cultural Rights. maternity leave. secular and compulsory. the increasing demand of industrialisation led to governments providing funding for schools. the leaving age in NSW was raised to 17 years United Nations made education a majority priority of its economic and social development programs and the right to free education for all human beings was included under Article 26 of the UDHR. known as the Australian Labour Party (ALP) o Unions have achieved minimum wages and working conditions. following the end of WWI. unions joined together to form their own political party. The First International (1864-1876) and the Second International (18891916) o In 1919. indigenous people have been oppressed. In France. equal pay. annual leave. long service leave. o The international Covenant on Social. adopted by the UN in 1966 and in force in 1976 includes self-determination as its primary right. under Article 1(1) o Between 1960 and 1993. and over time the government also administered these schools. The campaign for universal education o The idea that all human beings have a right to an education o Began in the 19th century onwards Churches By mid-1800s in Europe. UN‟s Millennium Development goals aimed To improve social and economic conditions in the world‟s poorest countries Ensure that all children will have a minimum education up to the end of primary level by 2015. and in 1880 education was compulsory for all children 5-10. paid public holidays. OHS laws and workers compensation. the Middle East and Oceania o Rise to self-determination as a right began with the 1776 Declaration of Independence against British Colonial Rule French Revolution of 1789-1799. forcefully assimilated or excluded from society and the democratic system. later raised to 12 in 1889. exploited. From 210. the International Labour Organisation (ILO) was created to discuss social reforms and to put them into practice. depending on the state. In 1870. o In 2007. o Closely related to democratic rights as it involves the consent of the people as the basis of a sovereign state o Particularly important after world colonisation by the European powers in Africa. Compulsory for all Australians to attend school from at least the ages of 6 to15. except those run by the Catholic Church. union movement developed from the 19 th century In the 1890‟s after harsh tactics by governments and employers were used to break large scale strikes. Asia. which secured the legal status of trade unions. o In the late 19th century. associations of workers began to link up with similar organisations in other countries to protect workers‟ rights internationally. o In Australia. by 1880 all children under the age of 15 were required to attend school. The right of a group to self-determination o A collective right o People of a territory or national grouping have the right to determine their own political status – the group has the right to choose how it will be governed without undue influence from another country. with free and secular public instruction In New South Wales. the British Parliament passed the Education Act 1870 (UK). In 2001. the Public Instruction Act 1880 (NSW) led to the government taking control of all the Church-run schools. the United Nations adopted the Declaration of Rights of Indigenous Peoples . the Americas. 53 territories became self-governing independent states o Self-determination of indigenous people In many countries.- - British Parliament pressured to pass the Trade Unions Act 1871 (UK). Created in the aim of improving conditions for workers around the world and over time has been responsible for many conventions on working conditions and rights. Latin America from the 18th century onwards against European colonial rule o UN Charter Article 1(2) calls for respect of the principle of self-determination o Article 15 of the UDHR states that everyone has a right to a nationality and no-one should be arbitrarily deprived of this or of the right to change nationality.
and individuals within those states. These rights cannot be fully realised without the right to a healthy. o The right is said to relate not only to current generations. to live in peace o In 1984. health or property already contained in human rights declaration treaties and many other international agreements. the UN adopted a Declaration on the Rights of Peoples to Peace.‟ Promoting and implementing the right to peace is a fundamental obligation of states.- - As with the UDHR. it is only a non-binding declaration on member states Only four states rejected the declaration. the Rio Declaration (1992) and the Kyoto Protocol (1997) environmental problems including global warming. Global issue needs a global community The attempt to establish a right to peace o After WWI. except in specific circumstances They can be taken to declare the right of every state. 2003 Invasion of Iraq led by the US Coalition was claimed to be legal under a resolution made by the Security Council under Article 39 (Resolution 1441) o ICC given jurisdiction to try individual people for wars of aggression. marine pollution. such as the African Charter on Human and Peoples’ Rights under Article 23 „all people have the right to a general satisfactory environment favourable to their development‟ and the American Convention on Human Rights in its second protocol „the right to a health environment‟. the Stockholm Declaration (1972). UN Charter signed 26 June 1945 „to save succeeding generations from the scourge of war. the first world body with the primary aim of preventing war: the League of Nations Covenant of the League of Nations: „to promote international co-operation and to achieve international peace and security‟ LOL fail WWII -> US was not a member of the LoN o After WWII. particularly nuclear war Renunciation of the use of force in international relations The settlement of international disuptes by peaceful means on the basis of the UN charter o War still happens o Right of self-defence. including Australia (endorsed by Rudd in 2009) Stepping stone to greater awareness and protection of the world‟s indigenous people. which twice in our lifetime has brought untold sorrow to mankind‟. in the dignity and worth of the human person‟. Emerging environmental rights o Supporters of environmental rights argue that it is related to many existing rights.g. and under Article 39 the UN Security Council can authorise actions to maintain or restore peace if necessary. „people of our planet have a sacred right to peace. the depletion of the ozone layer and atmospheric pollution o UN Climate Change Conference in Copenhagen 2009 demonstrated how difficult it is for all states to agree. and that government policies should be directed towards: Elimination of the threat of war. Article 1(1) of the Charter makes the maintenance of peace its primary purpose and gives the power to take measures to prevent and remove threats to peace (with war…) Effectively outlawed war. The UN Charter did not define human rights and fundamental freedoms o „to reaffirm faith in fundamental human rights. Intergenerational equity o They have been recognised in some international agreements. the spread of epidemics. . safe and adequate environment. but also future generations. contained in Article 51 of the UN Charter which declares that states have an inherent right of individual or collective defence if an armed attack occurs against them. such as the rights to life. as well as war crimes and other crimes against the community FORMAL STATEMENTS OF HUMAN RIGHTS UNIVERSAL DECLARATION OF HUMAN RIGHTS US President Roosevelt in his State of the Union Address 1941 called for the protection of Four Freedoms: the freedom of speech and conscience. the United Nations was formed. o Treaties that attempt to deal universally with specific environmental threats e. and the freedom from fear and want.
Neither covenant received much support from the superpowers.- - Obligation under Article 2(2) for the promotion of „universal respect for. conventions. inspiring more than 200 international treaties. clothing. 160 state parties. US has signed but never ratified PROMOTING AND ENFORCING HUMAN RIGHTS The promotion and enforcement human rights depends on the will of the international community and individual nation states On the international level. and various organisations and pressure groups that report on them and expose violations that occur. while communist countries wanted only economic and social rights dealt with The covenant was split in two and collectively known as the International Bill of Rights: The International Covenant on Civil and Political Rights (ICCPR) and The International Covenant on Economic. Notable exceptions include China. o Meant more countries were willing to sign it The most important human rights document. 167 state parties. but came into force in 1976 when they were finally ratified by the requisite number of countries: 35. The International Covenant on Economic. the right to a fair trial and the right to be presumed innocent until proven guilty (Articles 9 and 14) Freedom of thought. Social and Cultural Rights In 2011. Pakistan and Cuba who have signed but not ratified. 22) Right to marry whoever they wish and have a family and it provides for all children to be given special protection under law (23-24) Torture and slavery are outlawed and prisoners must be treated with respect (Articles 7 and 8) Right to vote and receive equal protection under the law and ensures that ethnic minorities have the right to enjoy their own cultures Monitored by the Human Rights Committee which reports on compliance by member states and investigates violations In 2011. 27. Social and Cultural Rights (ICESCR) Includes labour rights. Social and Cultural Rights (ICESCR) Both declarations were drafted and approved in 1966. The International Covenant on Civil and Political Rights (ICCPR) Equality between men and women (Article 2 and 3) The right to life (Article 6) Right to freedom. . such as the right to just conditions and fair wages at work as well as the right to join trade unions Rights to an adequate standard of living. speech. housing and health care The right to education – primary education should be compulsory and free to all Monitored by the UN Committee on Economic. Originally signed by 48 of the 58 states that existed in the world at that time UDHR is ‘soft law’ as it is a declaration: they are officially non-binding upon states but do create pressure to act in accordance with them. courts responsible for enforcing them. and observance of. including the right to adequate food. declarations and bills of rights in the last 50 years. governing bodies are responsible for promotion of compliance. human rights and fundamental freedoms for all‟ Adopted on 10 December 1948 by the recently formed United Nations. religion and assembly (Articles 18-19. conscience. Foundation for eight core human rights treaties Become a part of international customary law o INTERNATIONAL BILL OF RIGHTS Formation of a binding treaty of rights Cold War tensions in the 1960‟s Western European and American nation-states wanted only civil and political rights covered.
In regards to human rights. culture or race: they do not always correspond with state borders. an internationally recognised entity possessing the characteristics required for statehood. in law. in its strictest sense it means that no foreign state or law can interfere in another state‟s domestic affairs without consent. Taiwan cannot access the international framework. language. o In extreme cases. which is a group of people that share a common heritage. but also means no other state can submit any complaint to the UN Human Rights Committee about Taiwan Sovereignty State sovereignty is the ultimate authority of an independent state to govern itself (population): independence and freedom from external interference in its own affairs. - An unrecognised state or people may be unable to claim protections under the international human rights framework if they live in a territory of an unrecognised state. tribunals and other authorities Inter-governmental organisations (IGOs) Non-government organisations (NGOs) Media groups STATE SOVEREIGNITY Statehood A state is an independent country. submit periodic reports to the Human Rights Committee. allow other states to submit complaints about them. but in 2009 the Taiwanese Parliament has ratified both the ICCPR and ICESCR into domestic law. article 2(1) „the [UN] is based on the principle of the sovereign equality of all its Members‟ Nonetheless. It is not to be confused with a nation. and for most members allow their own citizens to complain to the committee about the treatment in the state. or if they form part of another state with which relations have broken down. States who have signed international agreements (treaties) between themselves create legal obligations to comply with their human rights provisions.HUMAN RIGHTS IN THE INTERNATIONAL COMMUNITY Began with the establishment of United Nations in 1945 and recognition of human rights through the Universal Declaration of Human Rights Numerous branches of the United Nations International courts. o Nations seeking state-hood will often claim a right to self-determination Characteristics necessary for the recognition of a state is outlined in article 1 of the Montevideo Convention on the Rights and Duties of States 1933 o A defined territory o Permanent population o Effective government o The capacity to enter into international relations It must also be recognised by a sufficient number of other states so it can exercise its full international political and legal capacity. Taiwan (Republic of China) is an unrecognised state without UN membership. these countries may commit human rights abuses with impunity. where there are no checks on the power of the government and use the excuse of sovereignty as a rationale to justify mistreatment of their own citizens. o Under the UN Charter. - . For example. state sovereignty is not absolute: it is limited under international law by certain responsibilities to the international community - State Sovereignty Not all governments equally accept the idea that their own people have certain rights o Most commonly this occurs in non-democratic countries. with little or no avenue for their citizens to respond.
THE ROLE OF THE UN It is the main international organisation. including the Office of the High Commissioner for Human Rights (OHCHR) UN human rights office responsible for monitoring and reporting on human rights world-wide. taking preventative action and responding to serious human rights violations. o Jurisdiction under the UN Charter to settle international disputes submitted to it by member states. including education. Established in 1993. o Has five permanent members with the power to veto decisions: US. including the Human Rights Council and Human Rights Committee Reports directly to the Secretary-General - Human Rights Council A inter-governmental body under the UN General Assembly that contains representatives of members states 47 seats rotated on three-year terms Established in 2006 to replace the previous Commission on Human Rights (which had been a part of ECOSOC since 2006. with 193 member states. appointed in 2008 and was the former judge of both the High Court of South Australia and the International Criminal Court. and produce advisory opinions when requested on matters of international law Note. China. The UN has five principal organs under the UN Charter Organs of the UN – human rights responsibilities General Assembly (UNGA) – forum for global discussion and runs numerous committees and programs. It has representatives from all member states with equal voting power. it‟s purposes include: o Advancing universal ratification and implementation of the UDHR and human rights standards and treaties o Promoting universal enjoyment of human rights and international cooperation. information and technical assistance. its cases will only rarely relate to issues of human rights - - - - Office of the High Commission of Human Rights (OHCHR) An administrative agency under the UN Secretariat that works to promote and protect the human rights contained in the UDHR and international law High Commissioner for Human Rights is Navanethem Pillay. o The UN Human Rights Council (UNHRC) is the UN‟s principal human rights body. A forum of member states responsible for overseeing and making recommendations on human rights in all member states. with responsibility for most international affairs. Russia and France. but criticised for failing its purpose .it had allowed courtiers with some of the poorest records on human rights to be members. tasks and facilities needed by the UN o Includes the departments and offices of the UN. Economic and Social Council (ECOSOC) – the UN organ acting as a forum for international economic and social cooperation and development as well as environmental and humanitarian issues o 54 rotating members meeting annually Secretariat – the UN administrative body headed by the UN Secretary General(Currently Ban Ki-moon). Security Council (UNSC) – the UN organ responsible for maintenance of international peace and security. UK. and reports directly to the UNGA. International Court of Justice (ICJ) – the principle judicial organ of the UN. It includes almost every sovereign state in the world. and ten nonpermanent members with two-year terms o The Council is argued to have power to intervene in the most serious of human rights abuses by states. o Providing support and information for other UN human rights bodies and treaty monitoring bodies. when passed by the UNSC they can be legally binding on all member states. effectively preventing criticism of those states‟ actions and allowing the abuses to continue) . has jurisdiction to hear disputes submitted by member states and issue advisory opinions. contains the departments and offices of the UN o Provides various information. power to authorise military action or other measures o It exercises its power through legally binding resolutions Decisions passed by the General Assembly or Security Council. studies.
human rights. resources and provide a focus for states. which became known as the Millennium Declaration. including Zimbabwe in 2002 and Fiji on various occasions due to military coups. malaria and other diseases o Ensure environmental sustainability o Develop a global partnership for development The goals have provided significant funding. Millennium Development Goals The declaration outlined eight ambitious Millennium Development Goals that all members pledged to try reach by 2015 Began in 2002. The Council has already received from criticism. o African Union Comprises of almost all the African states Among its many aims including achieving peace and security in Africa and promoting democratic institutions. They are usually permanent. Around 1000 IGOs The UN is the most important of all IGOs Other notable IGOs include the World Trade Organisation (WTO). with 54 members including the UK. a number of IGOs have the promotion of human rights as part of their stated goals and can exert significant influence on the human rights of their member states o Commonwealth of Nations Made up of almost all the former colonies of the British Empire. Many countries have improved their performances in these areas. from both current and former Secretary-Generals Ban Ki-moon and Kofi Anan. as well as the former High Commissioner for Human Rights o It has criticised for not acting in the interests of human rights. meet regularly and have international legal personality and so can enter into enforceable agreements and are subject to international law. by an international treaty that acts as a charter outlining the organisation‟s purpose and operation. where all member states of the UN at the time agreed to a declaration at the end of a conference on world poverty. Its stated aims include the promotion of democracy. Australia and Canada. have also been accused of backing and controlling certain candidates to block criticism of themselves.- - The Human Rights Council has recently adopted a series of specific measures that aim to increase its power to address human rights abuses. UN agencies and various organisations to eradicate some of the most serious problems of our times with effects that will last well beyond 2015. IGOs are created by agreement between states. Several members have been suspended due to serious or continued violations and human rights abuse. but according to political considerations – particularly influential states. good governance and human rights . the North Atlantic Treaty Organisation (NATO) and INTERPOL Apart from the UN. but in 2009 President Barack Obama joined the council and strengthened its international influence. o Promote gender equality and empower women o Reduce child mortality rates o Improve maternal health o Combat HIV/AIDS. including: o A complaints procedure allowing individual people to bring issues to the Council‟s attention where they have been a victim of human rights abuse in a state o Compulsory periodic reviews of the human rights situation in all 193 states (not just those who are members of the ICCPR and other treaties) o An Advisory Committee to provide expertise and advice and recommend issues for the Council to reconsider President George Bush originally refused to participate in the Human Rights Council. individual liberty and good governance. the International Monetary Fund (IMF). but others show little or no real improvement - INTERGOVERNMENTAL ORGANISATIONS An intergovernmental organisation (IGO) is an international institution comprised of various member states. including China and Russia. The goals include o Eradicating extreme poverty and hunger. o Achieve universal primary education. the rule of law.
but ultimately failed to gain support . it was established in 1946 at the Peace Palace in the Hague. it has jurisdiction to prosecute individual people rather than states. and has very little power of enforcement. important for those who use state sovereignty as a defence for their abuses European Court of Human Rights (ECHR) Set up in 1959 in Strasbourg. such tribunals for the Former Yugoslavia and Cambodia The ICC is not a court for human rights violations. Strongest criticism is that it requires the consent of state parties to hear matters and so has very little jurisdiction. TRIBUNALS AND INDEPENDENT AUTHORITIES International Court of Justice (ICJ) An organ of the United Nations. to apply and protect human rights of the citizens of Europe Hears cases brought by individuals. with Security Council members being able to veto any enforcement action. but prosecutes and hears matters of the most serious international crimes. responsible for monitoring and promoting compliance with the African Charter of the same name and the African Court on Human and People‟s Rights (currently being merged with the overarching African Court of Justice) Organisation of American States Includes almost all the states of North. The American Convention on Human Rights is overseen by the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights COURTS. Nonetheless. is restricted to states themselves. 9 July 2004 The Israeli West Bank barrier. Netherlands The ICJ has two roles: to hear and judge disputes between states and to issue advisory opinions on matters of international law ICJ has heard relatively few cases. 700km wall dividing the Palestinian-occupied West Bank from Israeli territory contrary to international law and encroaching on disputed territory International NGOs including the International Red Cross and Amnesty International argues the barrier causes serious humanitarian problems or violates Israel‟s obligations under international humanitarian law. crimes against humanity and war crimes (serious human rights abuse) Also has undefined jurisdiction to hear crimes of aggression (illegal war) Importantly. Suggestion of a Commonwealth Human Rights Commissioner in the CHOAM meeting in Perth. 2011. Central and South America. France. o States can consent to „compulsory‟ jurisdiction of the court but as of 2011 only 66 states have done so. but has issued some important judgements and opinions o Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) International Court of Justice. Australia has consented. it was also drawn up after WWII and includes 47 European countries Compliance with the ECHR has been incorporated into the treaties of the EU: member states must comply with the rulings of the ECHR Very successful.o The union includes the African Commission on Human and People‟s Rights. important judgements in international law and act as significant guides to future actions. most with some form of reservation limiting the court‟s power. Israel has disputed these claims. including genocide. o The court is unable to hear cases brought by individual people or private organisations. and the UNSC has yet to accept and enforce the ICJ‟s ruling. - - International Criminal Court (ICC) and ad hoc tribunals Established in 2002 to prosecute international crime Replaces „ad hoc‟ tribunals which had been established by the UN Security Council to deal with specific and serious breaches of international crime. against all countries bound by the European Convention on Human Rights (ECHR) o Similar to the UDHR. backlog of 120 000 cases across Europe waiting to be heard - The Australian Situation Australia is not currently a party to any regional human rights instrument or human rights court. organisations and state.
OTHER AUTHORITIES ESTABLISHED BY TREATIES The International Bill of Rights. or encouraging other states or the UN to place diplomatic pressure or take action on violating states. 4 April 1994. which will include recurring recommendations to address the issues until the Committee is satisfied that the state is compliant Toonen v Australia. refused to repeal the law. Judgements will also be raised by the Committee in its periodic reports to each member state. researches. Tasmania still refused to repeal its law In 1997. which legalised consenting sexual activity between adults under federal law. providing evidence to international courts. Tasmania became the first jurisdiction in Australia and one of the first in the world to legally recognise and register same-sex domestic partnerships. so now it is one of the most progressive states in Australia in combating discrimination based on sexuality. however. and the Committee ordered Australia to respond to the Committee‟s finding Tasmania. and that Toonen‟s right was interfered with by Tasmania‟s laws. a group of human rights experts will hear a complaint brought against a state and make rulings on compliance. o Violated Article 17 of the ICCPR. without any reasonable justification for that interference. making it a quasi-judicial body. Decisions are not enforceable. but they are highly influential. governments and the UN of human rights violations and progress o Investigates. citizen associations and civil society organisation Work together with government and intergovernmental organisations and specialised UN agencies in human rights and humanitarian work o Informing the global community. and that homosexual men were unequal before Tasmanian law. protected under Article 12 of the UDHR and Article 17 of the ICCPR o Also claimed discrimination on a basis of sexual activity and orientation. embarrassing for the government of a state accused of violation and might influence local legal interpretation. in violation of Articles 2 and 7 of the UDHR and Article 26 of the ICCPR Toonen also complained people in authority in Tasmania would regularly make derogatory remarks about homosexual people amounting to a campaign of official and unofficial hatred The UN committee found that adult consensual sexual activity in private was covered by the human right to privacy. including Australia Australian citizens can take complaints directly to the Committee Citizens must first attempt to resolve the matter with human rights bodies in their own country. or region if applicable o At the Committee. as well as some other key human rights treaties. has established particular authorities to hear matters of compliance by member states with the treaties Human Rights Committee o Assesses member state compliance with the ICCPR and can hear petitions raised by the states about each other‟s compliance o First Optional Protocol to the ICCPR gives the Committee jurisdiction to hear personal complaints brought by individuals of member states about human rights violations in their own countries 112 countries have ratified this optional protocol. as well as other human rights In 2003. Croome v Tasmania (1997) 191 CLR 119 Complaint by Toonant that existing Tasmanian laws that criminalised consensual sex between adult males were in violation of his human right to privacy. - . o The federal government was forced to enact the Human Rights (Sexual Conduct) Act 1994 (Cth). Tasmania rights campaigner Rodney Croome took the matter to the High Court where the law was deemed illegal as it was consistent with both the ICCPR and Australian law o Tasmania has no option to abolish its law and decriminalise homosexuality o Received negative national and international publicity. UN Human Rights Committee (HRC). - - - NON-GOVERNMENT ORGANISATIONS (NGOS) Organisations created by people that are independent and without representation of any government o Includes private voluntary organisations. CCPR/C/50/D/488/1992. documents and publicises cases of human rights violations to ensure greater government compliance if „named and shamed‟ Some NGOs will work directly with violators or victims.
although this work often overlaps with human rights abuses. states and territories protect human rights in Australian law. there is no one document where all human rights can be found – international treaties.e. including minsters and agencies The judiciary – the courts that interpret and apply the law Separation of powers prevent one person or a group from gaining total power Separation of powers is protected under Chapters I to III of the constitution which describes the functions of each branch respectively As Australia uses the Westminster system of responsible government. formally approving a treaty by the state before it becomes binding and enforceable. the parliament will need to pass legislation that echoes the words of the treaty or amends existing laws is necessary o For example. international law must be incorporated into domestic legislation. beatings even death Journalists get killed - HUMAN RIGHTS IN AUSTRALIAN LAW In Australia. when Australia ratified the Rome Statute of the International Criminal Court in 2002. treaties are enforceable in domestic law as soon as they have been signed In dualist systems. and statue law of the Commonwealth. imprisonment. INCORPORATION OF HUMAN RIGHTS INTO DOMESTIC LAW States can sign a treaty but it will not be binding.International Committee of the Red Cross (ICRC) Origins back to 1863. the Constitution of Australia. i. including the separation of powers and division of powers Source of some specific human rights: express and implied rights DIVISION OF POWERS AND SEPARATION OF POWERS Separation of powers Separates the branches of the state into: The legislative – elected law-makers in parliament The executive – government. they are concerned with international humanitarian law. like in Australia and the UK. In monist systems. the common law. They must ratify. there is no strict separation between the legislature and executive (Ministers can sit in parliament and the executive can make delegated legislation). the Commonwealth Parliament simultaneously passed the International Criminal Court Act 2002 (Cth) THE AUSTRALIAN CONST ITUTION Two important roles in protecting human rights Lays down the system of government through which human rights are recognised. „everyone has the right to… seek. receive and impart information and ideas through any media regardless of frontiers‟ Media freedom is restricted through censorship. to protect the life and dignity of the victims of international armed conflicts. Granted observer status at the UN General Assembly in 1990 THE MEDIA 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 Investigating and reporting on human rights issues to influence public opinion and government action Role of a free and impartial media and and people‟s right to information is recognised as a human right – article 19 of the UDHR. The strict separation of the judiciary from the other two „political‟ branches is a fundamental principle in the Constitution . that is.
11 attacks. Includes Racial Discrimination Act 1975 (Cth) Sex Discrimination Act 1984 (Cth) . Express and Implied Rights Australia does not have a bill of rights. The High Court has also found that certain rights which are not explicit in the Constitution also exist and are intended for the Constitution to function effectively: implied rights Express rights include: Freedom of religion (s 116) Right to vote in Commonwealth elections (s 41) Right to a trial by jury in federal indictable offences (section 80) Right to „just terms‟ where the Commonwealth compulsorily acquires property on just terms (section 51(xxxi) Implied rights include Freedom of political communication. a type of freedom of speech Common Law Some examples of fundamental rights protected by common law are The presumption of innocence and the burden of proof Right to a fair trial The common law does not offer absolute protection as they can be removed by any act of parliament. o States can refer that power to the Commonwealth - The area of most importance for the development of human rights in Australia has been the external affairs power in s 51(xxix). Commonwealth parliament can bind states to those rights and if necessary protect those rights across all Australian jurisdictions. anti-terrorism laws passed by the Commonwealth govt. marriage (s 51(xxi)) or copyright and patents (s 51(xviii)) Powers not listed in the Constitution are known as „residual powers‟ and deemed to remain the power of the states. However. which includes Australia‟s treaty obligations. are equally subject to the same law Prevents the risk of abuses of power that could come with a politicised judiciary Allows the judiciary to overrule any legislation that is deemed incompatible with the provisions of the Australian Constitution and the rights and limitations it contains Division of powers Divides the power between the Commonwealth and Australian states Commonwealth „heads of power‟ are the powers listed in ss 51 and 52 of the Constitution that describe the areas that the Commonwealth can legislate on o Currency (s 51(xii)). they can be removed by a later act of parliament and so are not fixed. The Constitution provides some rights.o o o Essential in upholding the rule of law. i.e. known as express rights. after the Sept. Treaties have been developed to cover many of the areas of the law that would have traditionally have been in the power of the Australian states. for example. all people. as judgements will only define those rights on a case-by-case basis Still establishes some rights Statute Law Majority of human rights are protected by statute law. It cannot be relied upon to develop new rights. This gives the Commonwealth the authority to legislate on external affairs. including government.
people with mental illness. Findings are not enforceable and the complainant will have no right to have the wrong rectified. i.- Australian Human Rights Commission Act 1986 (Cth) Disability Discrimination Act 1992 (Cth) Age Discrimination Act 2004 (Cth). o States and territories also have equal opportunity or anti-discrimination bodies to oversee compliance with state human rights laws o Responsibility has grown to: Receive and investigate complaints into discrimination and breaches of human rights Promote public awareness about human rights and provide legal advice Conduct public inquiries into human rights issues and issue recommendations Give advice and make submissions to parliament and governments on development of laws. „native title‟. with the potential to apply those standards in absence of conforming legislation passed by parliaments. policies and programs consistent with human rights o It has been influential on Australia‟s laws Conducted an inquiry into the Stolen Generation in 1997 „Bringing Them Home‟ which recommended an apology by the Australian government to the victims Other inquiries include into children in immigration detention. The High Court being influenced by international agreements is crucial. Complainant cannot take the matter to the Federal Court. If it cannot be resolved the complainant can take the matter to the Federal Court of Australia (which has the power to enforce orders on recommendation of the commission) Hear complaints on many other human rights breaches in Australian law and international human rights. Opens numerous international human rights documents to domestic consideration Critics argue that the court exceeds its powers under the doctrine of separation of powers. as well as interpreting and developing human rights law. Mabo v Queensland (No 2) (1992) 175 CLR 1 dealt for the first time of Australia‟s Indigenous peoples‟ right to title in their traditional land. common law right to privacy Roach v Electoral Commissioner  HCA 43 which upheld the Constitutional right of all people to vote. and expanding such rights is a matter for parliament only. which decriminalised homosexuality Lange v Australian Broadcasting Corporation. including prisoners o Can be influential and occasionally controversial. but the Commission can make a report to the A-G who is required to table the report in parliament. and Anti-Discrimination Act 1974 (NSW) Courts and Tribunals All courts and tribunals have some role in applying and enforcing human rights laws. especially when international law declares the existence of universal human rights‟ and that „a common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration‟. - . racial violence and same-sex entitlements and more recently recommendations on an Australian Charter of Human Rights o The Human Rights commission has power to Investigate many areas of discrimination and try to conciliate the complaint.e. High Court of Australia o Has the power to set binding precedents on other courts or to overturn state or Commonwealth legislation o Decisions include Croome v Tasmania. which interpreted a Constitutional right to freedom of political communication ABC v Lenah Game meats. Australian Human Rights Commission (Formerly the Human Rights and Equal Opportunity Commission (HREOC) o Established under the Human Rights Commission Act 1986 (Cth) as an independent national body to deal mainly with alleged violations of Australia‟s anti-discrimination legislation. The judge Justice Brennan said in making the decision international law was influential and that it was „a legitimate and important influence on the common law. for example.
Working in the field of human rights with victims of rights violations The media „Naming and shaming‟ Influence public opinion and government action A Charter of Rights for Australia Arguments for a Charter of Rights Extremely high common support for a Charter of Rights Redressing the inadequacy of existing human rights protections Reflecting basic Australian values Protecting the marginalised and disadvantaged Improving the quality and accountability of government Contributing to a culture of respect for human rights Improving Australia‟s international standing in relation to human rights Bringing Australia into line with other democracies Generating economic benefits Arguments against a Charter of Rights The adequacy of current human rights protections in Australia Undermining a tradition of parliamentary sovereignty. with or without pay. Today. Accurate statistics is hard to obtain as it is involves illicit activities. The UN International Labour Organisation (ILO) estimates at least 12. It culminated in the 20th century with the development of numerous anti-slavery treaties. leading eventually to the abolition of slavery world-wide. Minimum working conditions Laws on the migration and movement of individuals across international borders. The movement to abolish slavery began in the 18th century. Making submissions to state and Commonwealth parliaments or law reform bodies on human rights inquiries. slavery and the slave trade shall be prohibited in all their forms‟. Article 4 of the 1948 Universal Declaration of Human Rights stated „no one shall be held in slavery or servitude. under threat of violence. including transferring legislative power to unelected judges No better human rights protection is guaranteed Potentially negative outcomes for human rights Excessive and costly litigation Democratic processes and institutions offer better protection of rights A major economic cost Unnecessary legalised human rights National Human Rights Consultation CONTEMPORARY SLAVERY Contemporary slavery: a form of forced or bonded labour. Other researchers and NGO‟s estimate as many as 27 million people .3 million adults and children are in forced or bonded labour or commercial sexual servitude at any time. every country has enacted laws officially abolishing slavery and ensured the practice has ended within their own borders. Court‟s power to declare legislation invalid. uphold the rights of the Constitution and to continue to develop the common law Non-government organisations Numerous NGOs in Australia that work in the area of human rights Researching and reporting on human rights issues.
o Includes forced prostitution. In some cases. A person may. usually recruiting. or have unreasonable expenses deducted from any pay or further added to the debt. which refers to the illegal transportation of people across borders. children of the borrower may be forced to repay the debt across generations Sexual slavery: repeated violation or sexual abuse or forcing of a victim to provide sexual services. o Victims might include domestic workers or workers in factories or sweatshops. Debt bondage: often a form of forced labour. be lured by the promise of a legitimate job opportunity and instead forced to work without pay or enduring physical abuse. deceived or even sold by their own families or acquaintances into sexual slavery - - May also include Domestic workers kept in captivity The adoption of children who are effectively forced to work as slaves Child soldiers Forced marriage HUMAN TRAFFICKING AND SLAVERY Many victims of slavery are forced into slavery by way of human trafficking The commercial trade or trafficking in human beings for the purpose of some form of slavery. transit or destination country. the person is deceived into paying extremely high rates of interest making it impossible to repay the debt. coerced. sexual trafficking is the most documented type of trafficking. where people voluntarily pay a fee to the smuggler. . o The victims might be captured. forced marriage and domestic servitude may be less well documented International Labour Organisation estimates at least 56% of all forced labour victims are women and girls Siddharth Kara. UN’s 2009 Global Report on Trafficking in Persons. this refers to a situation where a person is forced to repay a loan with labour instead of money. Many victims come from developing countries where poverty.The main types of slavery include: Forced labour: work performed under the threat of a penalty or harm which the person has not voluntarily submitted to. from o Recruitment and harbouring of victims o Transport and sale o Obtaining or buying to o Exploiting that person in slavery or forced labour - EXTENT OF TRAFFICKING 2009 Australian Government report. - A global issue with almost every country in the world being a source. slavery associated with religious practices or another type of slavery such as forced labour where sexual abuse is also common. second to only drug trafficking. debt slavery. mining and agriculture or construction. transporting or obtaining a person by force. violence or even death to the person or to another person. has suggested international profits of human trafficking may be as high as $92bn. for example. fraudulent recruiters. researcher into human trafficking. exploitative employers and corrupt officers are widespread. whereas forced labour. Includes a whole line of criminal activity. detention. usually free to continue on their own after arrival in the hope of starting a new life in the destination country. tricked or trapped into working for very little to no money. where the proper value of the labour is not applied towards repayment or the type or duration of services are not properly limited. single-owner sexual slavery. it often takes the form of forced prostitution or forced labour where sexual abuse is also common. o In many cases. coercion or deceptive means. Trafficking in Persons estimates the number of people trafficked across international borders between 700 000 to four million o This does not include the millions of people trafficked within their own countries o Difficult to determine exact number because of the illicit nature of the activity. such as threat of hardship. Distinguished from people smuggling.
new measures under the Commonwealth Government Anti-Trafficking Strategy were introduced. detection and investigation. criminal prosecution. focus and cooperation is needed to address the issue Domestic responses Opportunities for trafficking into Australia may be fewer than for some other countries. 2004 Commonwealth Action Plan to Eradicate Trafficking in Persons.RESPONSES TO HUMAN TRAFFICKING AND SLAVERY Legal responses Began with the worldwide abolition of slavery o Slavery Convention of 1926 This treaty was expanded in 1956 by the Supplementary Convention on the Abolition of Slavery. Resources. including o Increased specialist training and funding for the Australian Federal Police to detect and investigate human trafficking operations o Additional funding and training for the prosecution of human trafficking for Commonwealth Director of Public Prosecutions o A National Policy Strategy to combat trafficking in women for sexual servitude o Victim support measures and special visa arrangements to support victims of trafficking o A targeted Communications Awareness Strategy providing information about trafficking and the help available o Cooperation with regional and international agencies in tackling the sources of human trafficking and prosecuting offenders - - - . greater conformity in national laws in tackling the various issues of human trafficking. forced marriage and child slavery. This division makes it an offence to traffick in persons or children. It also contains offences relating to debt bondage of persons. Suppress and Punish Trafficking in Persons. and better cross-border cooperation in investigating and prosecuting violations. which clarified and expanded the definition of slavery to include debt bondage. due to geographic isolation and strong migration controls. prosecution and victim support. from recruitment to reintegration. Suppress and Punish Trafficking in Persons. especially Women and Children (‘the Protocol’) Entered into force in 2003 First legally binding instrument with an agreed definition on human trafficking As of 2011. Nonetheless. whether internationally or domestically. victim support and rehabilitation In 2008. forced labour and the trade in human organs. contains offences including possession of a slave. Especially Women and Children on 27 May 2004 First introduced sexual slavery laws with the Criminal Code (Slavery and Sexual Servitude) Amendment Act 1999 (Cth) o Further refined and added more specific human trafficking offences to the federal Criminal Code in the Criminal Code Amendment (Trafficking in Persons Offences) Act 2005 (Cth) o Current provisions are found under Divisions 270 and 271 of the Criminal Code Act 1995 (Cth) Includes penalties of up to 25years imprisonment for some offences Similar offences also included under state and territory legislation include: o Division 270 – Slavery. the Slave Trade and Practices Similar to Slavery. Has created greater global awareness of the issue. and lends equal weight to the critical areas of prevention. There are still many countries that lack the necessary legal instruments or political will. Australia is still a destination country Australian government established a human trafficking strategy in 2003 and since has dedicated almost $60 million to tackling the problem o Address the full trafficking cycle. Ratified the Supplementary Protocol to Prevent. Did not address issues of illicit slavery and human trafficking o UN Protocol to Prevent. 146 state parties to the Protocol Designed for member states to enact into the most appropriate domestic laws. detection and investigation. etc. engaging in slave trading or entering into any commercial transaction involving a slave. sexual servitude and deceptive recruiting. It also contains prohibitions on the deceptive recruiting of a person for sexual servitude o Division 271 – Trafficking in persons and debt bondage. which included the aims of prevention.
the capacity to use the women in a substantially unrestricted manner for the duration of their contracts. and then purchased by Wei Tang from the Thai recruiter for $20 000 o Passports and their return airline tickets were withheld by Wei Tang Each woman was required to repay a debt of $45 000. with the aim of mobilising non-state actors to help rid the world of human trafficking.- The Australian government has made a number of prosecutions under the criminal provisions. NGO‟s play an important in combating human rights abuses. on such diverse aspects of forced labour as bonded. Melbourne. R v Tang (2008) 237 CLR 1. and voluntarily entered agreements with a broker. and ensures support for victims who have escaped o The ILO also plays a crucial role in implementing and reporting on worker‟s rights worldwide. and forced prison labour. and visas illegally obtained so they feared immigration authorities Convicted in 2006 of five counts of intentionally possessing a slave and five courts of intentionally exercising a power of ownership over a slave. Not under lock and key. in 2001. Anti-Slavery International is an international NGO founded in 1839 and based in the UK.GIFT). It aims to draw attention to the continuing problem or slavery worldwide and continuing . They had worked in the sex industry in Thailand. the International Labour Organisation (ILO) and various NGO‟s o The UN has established a Global Initiative to Fight Human Trafficking (UN. forced domestic work. human trafficking. the ILO established a Special Action Programme on Forced Labour (SAPFL) to attempt to raise global awareness of forced labour in its different forms.3(1)(a) of the Commonwealth Criminal Code. Each client serviced by the woman counted towards $50 off the payment (900 clients required to repay debt) and working six-day weeks over seven to eight months. incidents of or effects of abuse.g. contrary to section 270. R v Wei Tang (2009) 233 FLR 399 Serious problems in Australia‟s enforcement campaigns have been the issue of protection visas and threat of deportation of victims on discovery by authorities. by researching and informing the public and governments on incidents and patterns of abuse. Increase awareness about human trafficking Assist non-state actors (e. the power to restrict and control their movements. - - - Non-legal responses International responses Organisations such as the United Nations (UN). R v Wei Tang (2009) 233 FLR 399 Wei Tang accused of purchasing five women from Thailand to work in a licensed brother in Fitzroy. rural servitude. where the original conviction was upheld in 2008 by a 6-1 majority. passports were retained. NGOs) in their anti-trafficking campaigns in their anti-trafficking campaign campaigns by encouraging co-operation and joint action between NGOs and efficient prosecution of criminals Reduce the demand for the exploitation of people and the vulnerability of potential victims. they had little money and limited English. More recently. Was found to have exercised the power to make each woman an object of purchase. under illegal conditions of slavery and debt bondage Australia‟s first jury conviction under the slavery provisions of Division 270 of the Commonwealth Criminal Code Women arrived in Australia on fraudulently obtained visas. or by working to combat causes. and sentenced to 10 years „imprisonment Conviction overturned and order for retrial in the Victorian Court of Appeal in 2007 on the basis that the judge had misdirected the jury on the meaning of the term „slavery‟ and whether Wei Tang had to know or believe that the women were actually slaves Prosecution appealed to the High Court of Australia. and the power to use their services without adequate compensation. o Campaign ceaselessly against forced labour. Undertaken several worldwide and country-specific studies and surveys. This can mean potential witnesses cannot testify in the court and can have the effect of punishing the victims of the crimes. No evidence that the women were physically abused Two women paid off their debts in six months after which they were paid and could choose their working hours. although the owners applied for protection visas for them after they arrived so that they could work legally. R v Tang (2008) 237 CLR 1.
Crime was becoming increasingly recognised in the Asia-Pacific region. SBS aired „Trafficked‟. where other states may be unable to effectively tackle the problem. with Australia playing an important role Improved awareness and monitoring of vulnerabilities can help prevent and reduce trafficking in the region SECTION III . with a 30% increase in prosecutions in one year in Indonesia. - problem of slavery worldwide and campaign for recognition and action in the countries most affected today. intelligence. Effectiveness of Responses Main reasons of why human trafficking and modern slavery is difficult to eradicate o limited resources or effectiveness of developing states to combat forms of exploitation and transnational crime o socio-political and economic factors that underpin the movement of people from one place to another In a globalised economic system.OPTIONS CONSUMERS . American Anti-Slavery Group is an anti-slavery NGO that works on awareness. and documentaries July 2006. o Poverty. such as the Coalition Against Trafficking in Women (CATW) Australia and Caritas Australia The media plays an important role informing the public about the existence and nature of modern slavery in films. and diplomatic representatives together to coordinate activities to stop trafficking Detailed annual report published by the US Department of State. and vulnerable people are trafficked as victims to meet this demand. lack of education and rule of law in source countries can contribute to the vulnerability of victims State sovereignty means some states are unwilling to acknowledge and resolve the problem. established a centre to coordinate the activities of federal agencies. This demand is exploited by criminal organisations. which researches and analyses cases and statistics on human trafficking and slavery in Australia. The University of Queensland established a Human Trafficking Working Group in 2008. Regional reform in policy frameworks and technical assistance programs produced or managed by regional bodies. - - The UN. watched by over 500 000 viewers Australian universities in researching and reporting University of Technology Sydney‟s Anti-Slavery Project. It focuses primarily on slavery in Sudan and Mauritania. investigating. there is an increased demand for all types of labour: both legal and illegal. prosecuting and on protection of victims from abuse In 2004. established in 2004 is dedicated to the elimination of modern slavery in all its forms through collaboration with government agencies and community groups. ILO and NGOs play a crucial role in encouraging countries to continue their efforts Trafficking in Persons Report classes Australia as a Tier 1 best practice country. Trafficking in Persons Report o Australia has a number of NGO‟s. a documentary about sex slavery in Australia. advocacy and aid against contemporary slavery. and legislation now in place in over half of Pacific Island nations. police. books. the US passed the Trafficking Victims Protection Act of 2000 which established an office to monitor and combat trafficking and has initiated programs and provided millions in grants to organisations around the world Assists many countries on training. but improvements in areas can be made. Domestic responses o US plays an important role in combating human trafficking worldwide First began monitoring human trafficking in 1994 and has broadened its reporting over the years to cover all main forms of contemporary slavery In 2000.
Person making the offer is known as the offeror Person to whom the offer is made is known as the offeree Basic elements of a contract are: Legally binding intention o The intent to be bound by the agreement and expect the law to enforce that agreement. It could be explicit or implicit An offer by one party o A firm proposal made with a willingness to be bound by the terms Acceptance of that offer by the other party o Unconditional consent or agreement to all the terms of the offer Consideration of offer and acceptance o The acts or promise which back up the offer or acceptance - Counteroffer: an offer made to another offer which was seen as unacceptable.THE DEVELOPING NEED FOR CONSUMER PROTECTION In the 21st century. It can be written. „Caveat Emptor‟ – let the buyer beware became the way of the past. The primary objective of consumer law is to protect consumers Educate consumers to protect them from exploitation Articulating and mandating standards for the quality of goods and services Providing statutory and common law remedies for consumers Implementing weights and measure laws to provide benchmarks of quality Ensuring various occupations are licensed Protecting consumers from global advertising. and e-commerce with less personal interaction between buyer and seller Regulating contractual relationships between buyers and sellers Guarding against unsafe and defective products Helping vulnerable and disadvantaged consumers Contracts A contract is an agreement between two or more parties that is recognised by the courts as legally binding and enforceable. consumers need a highly specialised level of product knowledge when buying goods and services to protect themselves from unfair business practices. mass marketing. Usually through relationships - - . oral or both. Allows for negotiations between the buyer and seller Rescind means to end. from a subsistence economy and small markets to cities with mass production by companies. A contract is rescinded if any of the following are present: Misrepresentation o When one party is induced into a contract by a false statement from the other party. The industrial revolution brought the most change on consumers. weaker person into entering a contract. A consumer is a people who buys or uses goods or services for their own personal use or household consumption. Elements of misrepresentation are that there was: A false statement Of fact Which was intended to induce the innocent party into the contract Which did cause the innocent party to enter the contract Duress o Illegitimate threat used by one party to coerce the other party to enter into a contract Actual or threatened violence to the person or property Undue influence o Where a dominant person unfairly influences another.
such as a murder contract - Commercial Bank of Australia v Amadio (1983) Amadio‟s agreed to a guarantee to the bank for their son‟s business debt. The following cannot be: o Children/minors under the age of 18 o People with mental disorders o People under the influence of drugs or alcohol Certain contracts must be in written form as set out by legislation Neither party should have been misinterpreted or misled in any way No duress or any form of threats or violence used No undue influence where a dominant party unfairly influences the weaker party Unconscionable conduct where a stronger party attempts to use their power to obtain the consent of the weaker party who may have a certain disability. over a weaker party who is under a special disability when it is inconsistent with good conscience The Contracts Review Act 1980 (NSW) i. language barrier Cannot be of an illegal act. Fair Trading Amendment (Australian Consumer Law) Act 2010 (NSW) o Regulates businesses in NSW that are not incorporated Contracts Review Act 1980 (NSW) - - . not fully explained by son or bank. Competition and Consumer Act 2010 (Cth).e. Fair Trading Act 1987 (NSW). Amadio v Commercial Bank of Australia (1983) For a contract to be enforceable. Trade Practices Act 1974 (Cth) The seller has the right to sell the goods The buyer shall have and enjoy quiet possession of the goods Goods which have been sold by description correspond to that description Goods are fit for the purpose for which they were purchased Goods purchased are of a merchantable quality (of a minimum trade or retail standard) Bulk goods sold by sample correspond to the sample Suppliers will not be misleading or deceptive Statutory Protection Sale of Goods Act 1923 (NSW) Competition and Consumer Act 2010 (Cth).Sales of Goods Act 1923 (NSW). i. The parties must have the capacity to contract: they are able to enter the contract voluntarily.- Lawyer over client Doctor over patient Parent over child Unconscionability o Where a strong party attempts to enforce. and lack of assistance or explanation Common law protection: Implied terms A contract must be fairly negotiated without any undue influence A contract for professional services must be performed with reasonable care A contract must be entered in the absence of duress or coercion The product purchased must be of merchantable quality The product must be fit for the purpose for which it is required A product must match it‟s advertised description Manufacturers/suppliers cannot engage in deceptive or misleading marketing behaviour Statutory law protection: Implied terms . understanding of the contract terms. o Unconscionable conduct of the bank with the Amadio‟s disadvantage: limited English.e. or retain a benefit. formerly the Trade Practices Act 1974 (Cth) established the Australian Consumer Law (Schedule 2) o Applied only to corporations Fair Trading Act 1987 (NSW) (mirrors its federal counterpart).
although no contract had existed (her friend had purchased the drink. o The elements of the contract and are binding Representations o Statements made prior to agreement which are intended to influence the other party to engage into the contract. engage in conduct that is. It is required by statute and enforceable by the courts Terms and Conditions of Contracts Terms of contract o Statements that govern the rights and obligations of the parties concerned. breach of contract or breach of statutory duty STANDARDS TO BE EXPECTED IN CONTRACTS Express terms: terms that are clearly and specifically mentioned and agreed by both parties at the time the contract is made Implied terms: terms which have not been mentioned but are still included and are part of a contract.- o Allows court to grant relief for unjust contracts Australian Securities and Investment Commission Act 2001 (Cth) o Establishes power of the Australian Securities and Investment Commission (ASIC) o Consumer protection in relation to financial services. educational background and literacy of the parties o The intelligibility of the language used in the contract o Whether independent legal or expert advice was given o Whether undue influence. but not intended to be a part of the contract o Statements that are fraudulent or negligent. not her) o Trade Practices Act 1974 (Cth) manufacturers and importers must make certain guarantees. including enforcement and court-ordered remedies Contracts Review Act 1980 (Cth) Designed specifically to remedy situations where contracts are harsh. in connection with the supply or possible supply of goods or services to a person. may allow the party to repudiate or reject the contract and sue for damages Conditions o Terms that is fundamental to the contract. manufacturer‟s negligence and duty of care towards Donoghue. Any breach of a condition allows the innocent party to rescind or end the contract and sue for damages - - . Consumers can claim against them covered by this act even though they have no contract with them o Product liability laws Anyone who is injured as a result of defective goods can claim compensation from the manufacturer. in all the circumstances. unconscionable or oppressive Circumstances include o Whether there was any inequality in bargaining power between the parties o Whether provisions in the contract are unreasonably difficult to comply with o Whether a party was unable to reasonable protect their interests because of age. or it has been used to influence the innocent party into the contract. unconscionable Privity of contract Only those who are parties to the contract can suffer a liability or gain a contractual benefit. in trade or commerce. unfair pressure or unfair tactics were exerted against a party to the contract o The conduct of the parties in previous dealings Trade Practices Act 1974 (Cth) Section 51AB o A corporation shall not. Those outside cannot sue or be sued A common law doctrine which states that only parties who make a contract can enforce it Exceptions o The law of torts: allows third party to a contract to sue for damages Donoghue v Stevenson (1932). No need to prove negligence. or physical or mental incapacity o The relative economic circumstances. one of which is the merchantable quality of goods.
particularly telephone marketing o Delay in receiving goods o Little customer service in regards to complaints o No opportunity to inspect goods before purchase The Australian Direct Marketing Association (ADMA) developed the standards of practice to help ensure that these problems do not occur. parking lot Not responsible for any damage Will not take any liability Will not pay any damages or compensation for your loss o Other notable include insurance and marketing schemes REGULATION OF MARKETING AND ADVERTISING Statutory Protection Deceptive or misleading conduct o Section 18 of the ACL o Section 41/42 of Fair Trading Act contains similar provisions o Conduct refers to „doing or refusing to do any act‟ False or misleading representations o Section 29 of the ACL o Section 44 of the Fair Trading Act o Representations refer to statement or assertion Unconscionable Conduct o Section 20 of the ACL o Section 43 of Fair Trading Act Offering Gifts and Prizes o Section 32 of the ACL Bait Advertising o Section 35 of the ACL Referral Selling o Section 49 of the ACL Pyramid Selling o Section 44-46 of the ACL Unsolicited and unordered goods o Section 41 of the ACL Coercion o Section 50 of the ACL - - - Direct Marketing Refers to practices where goods are advertised and bought by a consumer from his or her home o Telephone o Mail o Specialised shopping programs o Has grown enormously in Australia over the last 15 years Advantages o Convenience o Access to a wide range of goods and services Disadvantages o Invasion of privacy. o Limits claims by the other party to a contract o For example.- - Warranties o Less important terms of a contract and as such oblige a non-breaching party to continue with the contract and allow the party to sue for damages Exclusion clauses o Terms that attempt to reduce the potential liability of a party to a contract. Practices include o Direct marketers must print a full street address of where they can be contacted - - - .
such as teaching) Current financial situation . V Robertson (1906) A fare of one penny must be paid on entering or leaving the wharf. o Company had not given reasonable notice of the clause to him before the contract had been made. but he had made similar journeys with the ferry company. whether the passenger has travelled by the ferry or not. No exceptions will be made to this rule. Can either be done by: State regulation Self-regulation Occupational licensing Protects consumers from non-licensed traders Ensures minimum standards of service Ensures ethical practices and maintain a high standard Ensures members have the skills to perform their job honestly Provides consumer confidence that the person they are dealing with is qualified and competent to do the work required Reduces a wide range of public risk factors such as Public health and safety Occupational health and safety Consumer protection Environmental protection Industry regulators Manage and monitor the application of these requirements Stipulate whether workers need to obtain a license in order to work in their chosen industry Requirements needed for applicants applying for occupational licensing Whether they can meet the minimum standards required by the industry Level of competency skills Suitability of character Level of experience Clean criminal record (for certain professions. and thus he should reasonably have known of the clause OCCUPATIONAL LICENSING Occupational licensing refers to the government or industry practice of issuing licensing in order to control the standards of work done.o o Firms may only call between 8AM-9PM The ADMA has a database of people who do not want to receive direct mail which they distribute to their members Cooling-off periods A period of time that gives buyers an opportunity to rethink their decision to enter into a contract of sale ACL provides 10 business days cooling-off periods for unsolicited consumer agreements o Telephone o Door knocking o Approaching in shopping centres o Leaving call on answering machgine Non Statutory controls on advertising Self-regulatory framework which complements its statutory regime Advertising Standards Bureau (ASB) and the Advertising Claims Board Balmain New Ferry Co Ltd.
the reputation of the whole industry might suffer Other forms of redress are available to consumers Can force self-examination of businesses Disadvantages Tends to favour members rather than consumers May have poor standards which may not monitor the work practices of its licensed members closely Can form monopolies Complaints may favour the practitioner rather than consumers May lack sufficient provisions to protect consumers State Regulation is where the government determines who may be granted a license and what behaviour entitles licensees to retain or lose that license Reasons for: Legislations in place that provides strict guidelines regarding fiduciary duty of solicitors. authorising them to practice Self-regulation occurs when a particular trade or occupation imposes its own licensing restrictions on those who practice in that occupation Adopting codes of practice which lists obligations of members of that particular occupation or industry Internet and direct marketing industries are self-regulated Advantages State regulation may be inefficient or time consuming for the occupations concerned State regulation may result in a lack of profitability for the providers of the good/service because the cost of compliance is too high If self-regulating bodies do not protect consumers adequately. Fiduciary Duty is the legal obligations that must be fulfilled without regard to self-interest or the opportunity to make unauthorised profit from the position. CONSUMER REDRESS AND REMEDIES AWARENESS AND SELF-HELP Consumer awareness and self-help avenues are useful as it empowers consumers to take their own action in redress and remedies. real estate agents and travel agents Code of ethics are in place to ensure safe and honest practices by its members in accordance with their legal duty to the consumer Removes industry involvement Government responds to complaints No self-interest. Governments should always be in favour of protecting the public.Regulation may include Registration: official listing to identify legal practitioners Certification: a means of recognising those who have obtained qualifications Licensing: a means of identifying those who have fulfilled the criteria related to education. It is resource-efficient and easily carried out. Ask questions about the product Request and keep receipts Keep all packaging. It also provides just outcomes without costly litigation. speak to the manager . and try to keep it undamaged Be aware of refund conditions Approach the seller asap if there are problems If not the salesperson. experience and compliance with professional codes of ethics.
consumers can seek redress in the form of repair. insurance and financial advice. superannuation. Statutory protections in place for consumers as well as fostering goodwill and customer loyalty Complaints to manufacturers Under the ACL. Disability and Home Care NSW Legal Aid Independent statutory body providing legal advice and assistance to socially and economically disadvantaged people. replacement.Consumer Redress Self-help is notifying the supplier or manufacturer of the problem First step in resolving a problem Helps when taking serious (legal) action if an attempt is made at resolving or mitigating their problems Complaints to suppliers Under the law. or refund. Federal Government Organisations Commonwealth Consumer Affairs Advisory Council (CCAAC) Provides independent advice to the Minister for Competition Policy and Consumer Affairs on consumer policy issues The Australian Securities and Investments Commission (ASIC) Independent statutory body that regulates Australia‟s corporate markets and financial services sectors and ensures that Australia‟s financial markets are fair and transparent. Importance of competition in providing consumer benefits compared to monopolies. Manufacturers must also meet the requirements for merchantable quality and fitness for purpose Government Organisations NSW Office of Fair Trading Role to protect consumer rights and advise business and traders on fair and ethical practice Legislation that governs the organisation sets the rules for fairness in the daily transactions between consumers and traders Investigates unfair practices and administers the licensing of operators in a wide range of industries Provides consumers with information on their rights and responsibilities for resolution of disputes Community Services Commission Statutory „watchdog‟ overseeing community services in NSW Deals with complaints relating to the NSW Department of Community Services and Department of Ageing. including court representation if successfully means tested. Licenses financial services businesses Conducts public education initiatives for consumers Provides information to businesses to help them fulfil their obligations Monitors compliance through surveillance Australian Competition and Consumer Commission (ACCC) Independent statutory body whose role is to promote competition and fair trade in the market place. Enforces consumer protection laws covering investments. Ensuring businesses comply with federal laws on fair trading and consumer protection Ministerial Council on Consumer Affairs (MCCA) . manufacturers are legally obliged to stand by their warranties or guarantees and ensure a reasonable supply of spare parts and repair facilities for goods that cost less than $40 000 and are for personal or household use.
departments or providers and investigates those complaints to find a resolution that is fair for both sides The Role of Courts and Tribunals Courts Last resort is litigation – civil proceedings whereby disputing parties seek a binding remedy by a court Apply the law Interpret the law Ensure laws comply with the Australian constitution Review decisions of the executive Expensive in time and money Consumer. Trader. specialises in issues related to financial services o Choice. but nonetheless provides information Alternative Dispute Resolution Mediation and conciliation Types of Remedies A remedy is something that fixes up a wrong action Refunds. and show that these industries are self-regulating Customer-focused corporate compliance programs Internal self-regulatory programs that aim to ensure that a business meets its legal obligations to consumers and to remedy any breach Often linked to strategic goals of companies Industry-based Ombudsman Takes complaints from consumers about agencies. traders and consumers in several areas Appeals against CTTT orders can be made to the District Court of NSW on any matter of law The Media Provides consumer information on products Various programs address consumer complaints and interests Bias. repairs and replacements o No refund does not apply to defective goods o Courts and tribunals can order this remedy Rescission and modification of contract - . along with the NZ ministers with those portfolios. landlords. enhance business reputation. researches and campaigns on behalf of consumers and publishes Choice magazine o Consumer‟s Federation of Australia – national peak body for Australian consumer groups. local organisations and public interest bodies Resolves disputes between tenants. consumer protection and credit laws. Members include legal centres. Industry Organisations Some specific industry groups have developed complaint handling and dispute resolution schemes designed to provide consumer remedies.- Consists of ministers responsible for fair trading. Tenancy Tribunal (CTTT) NGOS Represent the interests of consumers Advocacy groups o Consumer Credit Legal Centre (NSW) Inc.
including credit transactions .- - - o Can be ordered by a court and tribunals Damages o Restitution damages The plaintiff is given value for benefits he/she has provided to the defendant so far o Reliances damages The plaintiff is compensated so that he/she would be in the same position as before the contract was entered into o Expectation damages The plaintiff is compensated so that he/she is in the position he/she would have been in if the contract was fulfilled. $200 000 for corporations CREDIT o o o o o o o o o o o A credit transaction is one where a consumer acquires an item for use immediately but does not pay for it immediately A borrower is a person who acquires goods and services using credit A credit provider is any business that provides finance to purchase goods and services Extra money paid is known as interest Security is any asset over which a credit provider has a claim if the borrower fails to pay his/her debt A mortgage is an agreement where property is provided as a security for a loan A guarantor is a person who agrees to pay the debts of another person if that person fails to pay the debt Debt is the amount of money that is owed Credit is the amount of money that is borrowed Debtor is the person who owes money to the creditor Creditor is the person who lends money to the debtor. o Injured feelings Additional damages awarded to compensate for mental trauma suffered because of the breach of contract. banks Advantages of Credit Consumers can enjoy the use of an item before they are able to afford to pay for it It has allowed consumers to be able to buy high-ticket items whereas they would have needed to work for a long time to save the required money. of Fair Trading can initiate criminal prosecutions Trade Practices Act: fines up to $40 000 for persons. Disadvantages of Credit End up paying more with interest Many consumers lured into buying goods on credit that they are unable to pay for IMPORTANT LEGISLATION Consumer Credit Act 1995 (NSW) o All information about the credit contract needs to be disclosed to the consumers National Consumer Credit Protection Act 2009 (Cth) o Consumer credit is now regulated by the ACCC under commonwealth laws Insurance contracts act 1984 (cth) o Obliges insurance suppliers to disclose information about insurance to consumers. Contemporary issues concerning consumers Special order o Under the Competition and Consumers Act 2010 can do specific tasks Injunctions and specific performance o Injunction is an order for someone to do something or refrain from doing something that is in breach of a contract o Specific performance is a court order requiring a party to a contract to perform the obligations that he or she has agreed to do so in the contract Class action is where several people who have been affected take the case jointly to court Criminal prosecution o ACCC and Dept. eg.
This was achieved in the National Consumer Credit Protection Act 2009 (Cth) and the Trade Practices Amendment (Australian Consumer Law) Act 2009 (Cth) o Establishes a single. consumers cannot meet repayments Unfair contract terms Credit providers with inadequate procedures for handling complaints Time delays in the handling of complaints by credit providers Too many steps involved in the process of seeking legal redress and hence only the most sophisticated consumers will persevere. Consumer confidence up. Credit providers more freedom to organise fees and charges as long as they‟re explicitly disclosed Civil penalties up to $500 000 and/or criminal charges Business checklist in „plain english‟ Must be in written contract Pre-contractual statement disclosing mandatory details about fees and charges Non-legal NSW office of fair trading CJCs Financial Ombudsman Service Consumer Credit Legal Centre Redfern Legal Centre . a consensus was made where consumer credit regulation powers should be transferred to the Commonwealth. Debtors know they are backed by national legislation. obligations spelt out for consumers. Advantages Transparency. Robust licensing scheme that only includes honourable and competent credit providers Greater integrity as it is monitored by the government. Standardises across all Australian jurisdictions Presents credit information in a clear and easy-to-understand format Credit providers must o Inform consumers of their rights and obligations in any credit arrangement o Truthfully disclose all relevant information about the credit arrangement via written contract. including interest rates. commissions and other information. uniform national law for the regulation of consumer credit o Provides enhanced protection for consumers and the stability for the consumer credit sector The standardisation has provided many benefits. fees. helps consumer confidence Rigorous entry requirements must be met before the provision of an Australian credit licence Credit providers must meet responsible lending standards when providing credit or credit assistance The credit market benefits from an assurance that consumers are well protected The Uniform Consumer Credit Code (UCCC) Amendments to ASIC Act 2001 (Cth) strengthen the national Consumer Credit Code across Australia. Legal and non-legal responses In a meeting of the Council of Australian Governments in 2008.- Anti-discrimination Act 1977 (NSW) o Prevents discrimination in the provision of credit on certain grounds Privacy Act 1988 (Cth) o Controls the extent to which credit providers can exchange or access information about consumers Credit issues Risk of exploitation as lenders loan too readily.
Under Australian law. It is imperative that these products meet certain minimum safety and performance standards before they can be sold in Australia.Responsiveness of the legal system Appropriate measures. Products can be manufactured from all over the world. labelling and design requirements when there is a clear risk to consumers o Information standards: prescribed information must be given to consumers when they purchase specified goods Product Certification Certification of products indicates they have passed performance and quality assurance tests and builds consumer confidence. lobby parliament and act as consumer watchdogs Media Responsiveness ACCC/Fair trading both have power to remove unsafe goods from safe from ACL. The concern with product certification is with globalisation. by: Providing clear instructions for use Meeting industry and mandatory standards Developing product recall plans Incorporating safety into product design Raising the level of safety standards through product improvement Quality assurance program Responding quickly to safety concerns that arise Mandatory Product Standards A standard can be made mandatory by either a statutory regulation or a notice published in the Commonwealth Gazette. in countries that do not have the same level of quality assurance as Australia. . There is a legal requirement that suppliers must refer to both the gazette notice and its „Standards Australia‟ benchmark In Australia. Legal Response Product Safety The ACCC enforces mandatory product safety through provisions under the Australian Consumer Law. The notice will refer to a published Australian standard and may contain variations to that standard. Manufacturers have a duty of care towards customers and it is vital that all products/services meet certain minimum safety and performance standards before they can be put on the market. all Australian consumers are equal UCCC guarantees standardisation More information disclosed to consumers Do not know how effective it is on large MNCs PRODUCT CERTIFICATION Product certification refers to the process of providing documented assurance that goods or services have passed performance and quality tests before they are marketed. mandatory standards comes in o Safety standards: safety. product suppliers and manufacturers have an obligation to ensure that only safe products are marketed. the more demanding the certification process will be for the manufacturer/supplier CE „Five Ticks‟ StandardsMark Non-Legal Independent consumer groups advocate on behalf of consumers. The greater the risk of injury to consumers.
radio communications and telecommunications o Consumers can make complaints about deceptive marketing and advertising practice here Print and electronic media o Spreads awareness - - TECHNOLOGY Technology is ubiquitous in our society and the interaction between consumers and sellers. Thus. Arrest warrants can be made if an extradition treaty exists between the foreign country Governments have the power to remove fraudulent telemarketing sites Telecommunications Act 1997 (Cth) gives the ACCC the authority to administer the Rules of Conduct (contained in that Act) governing dealings with international telecommunications operators Non-Legal ACMA ADMA o Australian Direct Marketing Association for direct marketing companies.Production certification = very good MARKETING INNOVATIONS Marketing is a process by which business creates a „consumer interest‟ in its products. the internet. Non Legal Choice Magazine o Magazine may report on deceptive marketing practices SCAMwatch o Website run by the ACCC o Provides information to all consumers and small businesses regarding the recognition. Legal Responses Freezing assets if information about the location of the market‟s assets is known. Problem is the global marketplace because Australian law does not apply internationally so it is difficult to prosecute when they do not follow Australian law. o Formulated eMarketing Code of Practice to supplement the Spam Act 2003 (Cth) Internet Industry Organisation o IIIA Spam Code of Practice to supplement the Spam Act 2003 (Cth) - . Strongly committed to self-regulation. the ACCC and Fair Trading can intervene. Issues Fraudulent offers Scammers Pyramid selling schemes Overseas phone calls „Phishing attacks‟ Spam o Spam Act 2003 (Cth) Legal Response ACL has provisions relating to marketing. Absence of international treaties and foreign bank lays make it difficult to recover a consumer‟s money. avoidance and reporting of scams The Australian Communications and Media Authority (ACMA) o Government agency responsible for the regulation of broadcasting. Australian consumers may have dealings with foreign marketers. E-commerce and global marketing technologies has posed several legal issues in Australia.
The Australian Securities and Investments Commission in regards to financial services
Adequate protection through ACL and Telecommunications Act 1997, but international eCommerce presents problems. Multilateral/international solutions required
FAMILY LAW THE NATURE OF FAMILY LAW THE CONCEPT OF FAMILY LAW
Family law is a wide-ranging area of law governing behaviour in the context of the family. Protecting the rights of family members and ensuring that individuals meet their family obligations Families are the fundamental unit of society. The main function of the family is the care and protection of its members. The law governs family relationships as to ensure that people in family relationships are financially secure and that any children of that relationship are cared for. The more traditional family relationship is based on marriage, defined as „the union of a man and a woman to the exclusion of all others, voluntarily entered into for life‟. As society has changed over time, the structure of families has also changed. There are now many acceptable and recognised family arrangements, including Aboriginal and Torres Strait Islander (ATSI) Single-parent families, customary marriages, Blended families, and De facto relationships, Extended families Same-sex relationships, Commonwealth Government has exclusive power to make laws governing marriage and divorce under s 51(xxi) of the Constitution. The Marriage Act 1961 (Cth) established the legal requirements of a valid marriage, while the Family Law Act 1975 (Cth) sets out the legal duties and obligations that a marriage creates. Main aim of the act was to reform the law governing the dissolution of a marriage. -
State Governments originally governed law on de facto relationships before referring their powers to the Commonwealth with respect to both parenting disputes and property disputes (in the context of a marriage or de facto relationship) Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) made property division and de facto spousal maintenance determined under the Family Law Act 1975 (Cth). Marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life. Certain unions are not marriages. A union solemnised in a foreign country between: (a) a man and another man; or (b) a woman and another woman; must not be recognised as a marriage in Australia.
LEGAL REQUIREMENTS OF MARRIAGE
The legal definition of a marriage In the case of Hyde v Hyde and Woodmansee (1866) LR 1 P&D 130, the judge stated that marriage is the „voluntary union for life of one man and one woman, to the exclusion of all others‟, i.e. Marriage must be voluntarily entered into. If one party was coerced or deceived, the marriage is not legally binding. Marriage, by definition, is for life. However, a married couple do have the right to divorce. The parties to the marriage must be of different sexes „To the exclusion of all others‟ means it is the union of two people only. o Some cultures and societies allow polygamous relationships, i.e. allowing for more than one partner at the same time.
Requirements for a valid marriage
The requirements of a valid marriage are found in the Marriage Act 1961 (Cth) Gender o Marriage Amendment Act 2004 amended the Marriage Act with the addition of the definition of marriage, which it had not previously contained. o S 88EA states that a same-sex marriage solemnised in a foreign country will not be recognised Marriageable Age o 18 (s 11) o If either of the parties wanting to marry is 16-18, he/she must apply to a judge/magistrate for an order authorising the marriage (s 12) Will only be granted in circumstances that are sufficiently „exceptional and unusual‟ E.g., if the couple‟s parents‟ consent and/or the couple are shown to be mature and financially independent Pregnancy alone will not guarantee an order No person under 16 can marry Prohibited Relationships o Cannot marry anyone who is closely related by „blood‟ (consanguinity) or by marriage (affinity). Consanguinity Descendants, ancestor, brother or sister as well as half-siblings Marriage Adopted siblings, descendants and ancestors who are related to the person by marriage o Legal to marry her uncle or his aunt, his niece or her nephew, or a first cousin. Notice of Marriage o A couple intending to be married must give a completed Notice of Intended Marriage form to the authorised marriage celebrant (a person who is authorised to perform a civil or religious marriage ceremony) who will conduct the ceremony, between 18 months and 1 month and 1 day before it. o Notice must be in writing and be signed by both parties in the presence of a witness Approved witnesses include marriage celebrants, justices of the peace, police officers, solicitors and doctors o Parties who intend to marry must provide proof of age, usually their birth certificate. If either party had been married previously, he/she must provide evidence that the marriage has been dissolved, by death of the spouse or divorce.
Requirements for a valid marriage ceremony The marriage ceremony must satisfy the conditions in Parts IV and V of the Marriage Act 1961 to be valid An authorised marriage celebrant must perform the ceremony Two witnesses, both aged over 18
No formal requirements concerning the attire, the structure of the ceremony or the words of the ceremony Marriage certificate is issued after the ceremony is completed. This document is legal proof that the ceremony took place according to law. The celebrant usually provides three copies of the certificate. The celebrant, husband, wife and two witnesses must each sign all copies of the marriage certificate. One copy must be lodged at the state Registry of Births, Deaths and Marriages within fourteen days of the date of the marriage.
Void marriages A marriage can be declared void, or invalid, if it fails to meet the definition of marriage, or fails to meet the criteria for a valid marriage. If a marriage is found to be invalid, the court can nullify the marriage. The annulment means that the marriage is deemed to have never taken place because it was illegal. However, any children born during the marriage are considered to be the legitimate children of the marriage.
Di Mento v Visalli (1973) 1 ALR 352
Duress (by anyone) in forcing a party to a marriage to marry is invalid Di Mento was 14 and living in Sicily, Italy with her parents before being kidnapped by Visalli, a 20-year-old man. o Visalli repeatedly asked her to marry him, but she refused o Di Mento was eventually released; however her father threatened to shoot her if she did not marry Visalli The father argued that if she did not marry him the family‟s reputation would be ruined. Di Mento agreed and she married Visalli o Two years later, she gave birth to a child, and when the child was a month old Visalii left her, never to return Di Mento emigrated to Australia and sought to have the marriage annulled on the grounds that she did not voluntarily give her consent. Court held that the marriage was void because it was obtained by duress, and noted that the Act does not require that the duress exerted be that of the spouse; in this case, it was exerted by Di Mento‟s father.
LEGAL CONSEQUENCES AND RESPONSIBILITIES OF MARRIAGE
Mutual duties of husband and wife Generally, the expectation is that both parties will support each other financially and emotionally and remain faithful. o No laws exist to enforce these expectations, e.g. no laws against adultery nor is it now grounds for divorce o Nor is there an automatic right to sexual relations with one‟s spouse o Rape is a crime even if parties are married The law does not concern itself with how partners in a marriage carry out their duties and responsibilities, rather, it intervenes only in cases where the marriage has broken down, where one or both parties to the marriage have no fulfilled their responsibilities, or when spousal rights have been infringed.
Maintenance Financial payment made by one spouse to contribute to the care and welfare of the other spouse and/or children of the marriage Under s 72 of the Family Law Act 1975 (Cth), if someone is unable to support himself or herself, his or her spouse is obligated to provide maintenance. Examples of when this is required are: o The person has the care and control of a child of the marriage who is under 18 years old o The person is not able to be employed because of age or physical or mental incapacity Spousal maintenance is not automatic; the court considers the questions of „need‟ when deciding matters of maintenance. E.g. if the spouse seeking maintenance is financially independent: income, property or financial assets and whether the spouse from whom it is sought has the capacity to pay. o Factors set out in ss 75(2) and 79(4) with respect to both spouses o Usually sought only after the marriage has ended, and for a limited period, until the spouse gains the ability to be financially independent. o Both parties have a duty to maintain any child of their marriage
Property rights Marital home o When two people buy a house together, they can choose to own equal shares in the property (joint tenants), or in unequal shares (as tenants in common) o Joint tenancy is most common for married and de facto couples; if one partner dies, the surviving spouse will inherit the whole property o Tenancy in common may be preferred if the parties do not want their shares necessarily to go to each other Any property purchased by one spouse during the marriage remains the property of the spouse who paid for it Any property owned by a person prior to marriage still belongs to that person after marriage Marriage does not automatically change ownership of property. Courts recognise the length of marriage, financial and non-financial contributions, including any improvements made to the property, will alter „ownership‟
Contract and agency Any individual (18+) can enter into a contract. Not altered by marriage
including recognition of traditional marriages for limited purposes . and authorises the executor to administer the estate: monies and/or assets can be released Intestacy is the situation in which a person dies without a legally valid will o A person who dies without leaving a will is referred to as intestate. that apply to spouses married under general law Allow the couple to claim the same tax benefits as those that are currently available to de facto or married couples o Response in 1995 by the Commonwealth government suggested that most of the recommendations are more appropriate for implementation in state and territory law. In regards to marriages. or the spouse and any children of the marriage. it recommended that traditional marriages of Indigenous Australians should be recognised and given legal status in order to: Ensure the legitimacy of the children of those relationships Ensure that any child of those relationships would be given the same protection as children of married couples under adoption and welfare laws Protect the right of inheritance of the surviving spouse if his or her partner dies intestate Allowing a surviving spouse to claim any compensation payments owing to his or her partner. o The executor must obtain a grant of probate. Other family members can also inherit The parents and siblings of the deceased may all inherit if no valid will exists o State laws determine how the property of the deceased is divided. including workers‟ compensation Ensure that spouses in these relationships are covered by the same laws of evidence. or „partially intestate‟ if his or her will does not effectively dispose of all his or her property o Generally.- Wills - A person (the „principal‟) can appoint someone else (an „agent‟) to enter into a contract on his or her behalf. The act encourages disputing parties to enter into mediation rather than contesting the will s 12 states marriage automatically cancels any pre-existing will unless the person made the will in anticipation for marriage s 13 states divorcement or annulment cancels any provision in an existing will that favours the divorced spouse ALTERNATIVE FAMILY ARRANGEMENTS Aboriginal and Torres Strait Islander peoples’ customary law marriages Bound by traditions and enforced through customary law Typically do not need to fulfil requirements of a valid marriage under the Marriage Act 1961 (Cth) Not legally recorded or registered with the relevant authorities Under law. in court proceedings. a spouse is not automatically authorised as an agent in all contractual arrangements. a legal document that is issued by the court and certifies that the will is true and correct (proved). like the circumstances of Indigenous children which is specifically provided for in legislation such as the Family Law Act 1975 (Cth) State parliaments have addressed some of the recommendations since then. ATSI customary law marriages are not recognised and do not have any legal standing o Australian Law Reform Commission in 1986 reported on ATSI customary law and recognition by general Australian law. entire property will go to the surviving spouse (payment for probate deducted). under the Family law Act 1975 (Cth) s 79 Spouses have the right to sue each other in contract or tort (s 119) - A document that states how a person intends to have his or her property distributed after his or her death. as amended in 2008 by the Succession Amendment (Family Provision) Act 2008 (Cth) and in 2009 by the Succession Amendment (Intestacy) Act 2009 (NSW) s 58 allows certain family members (and anyone who was in a close personal relationship) can apply to the court for a family provision order. Spouses cannot be held liable for each other‟s debt It is only in the breakdown of a marriage that the court may make orders altering property interests. Some exception. under the Succession Act 2006 (NSW). and the contract is then legally binding on the principal.
the Family court will determine an appropriate parenting order. pursuing their rights in court and obtaining adequate legal protection.- If an ATSI customary marriage does break down. stepchildren may apply for a family provision order under s 58 of the Succession Act 2006 (NSW) - - - De facto relationships A de facto relationship is defined in s 4AA of the Family Law Act 1975 (Cth) as one in which: The partners are not legally married to each other . culture and traditions Single parent families Growth of single-parent families Increase in number of divorces Changes in social attitudes (acceptance) Improved welfare system Greater financial independence of women Census 2006-07. stepchildren must prove that they were financially dependent upon the step-parent. 1 in 5 children live in single-parent families and in 2006. o High costs of legal action may discourage single parents from actively pursuing the protection of their rights through the courts Child Support Scheme introduced in 1988 to enforce maintenance orders on parents who do not reside with their dependent children. 66M. o If a step parent does adopt his or her partner‟s children. or o Make the day-to-day decisions concerning the health and welfare of the child. o The order is made in the „best interest‟ of the child. including maintenance arrangements and deciding which parent will be given care and control of the child. 66N) A step parent may become financially responsible for his or her partner‟s children if the family has existed for a long time and the natural parent is dead or cannot be found Step-parents intending to adopt must first apply to the Family Court (Family Law Act s 60G) o Then apply to the state Supreme Court for an adoption order o In NSW. o In this situation. Ensures parents fulfil their responsibility towards their children by automatically deducting payments from the support parent‟s wage. stepfather and stepchildren Step-parents do not have the same legal responsibilities for the care and control of the child o Does not have the automatic right or duty to discipline his/her partner‟s child. the step-parent must have lived with the child and the child‟s natural or adoptive parent for no less than two years. and the child must be at least five years old (Adoption Act 2000 (NSW) s 30). 87% of single-parent families with children under 15 years were headed by women. these children will have the same legal rights as children born naturally into the parental relationship Stepchildren do not have an automatic claim to the estate of their step-parent if the step-parent dies intestate o In order to claim successfully against the estate of a step-parent. o Family includes stepmother. Social issues Difficulties accessing legal advice. 14% (808 000) single parent families in Australia. and the child‟s need to maintain a connection with the ATSI lifestyle. o Not responsible for the maintenance or support of a partner‟s child The court may make an order requiring a step-parent to pay financial support if satisfied the step-parent has a duty to maintain the child (Family Law Act 1975 (Cth) ss 66D. Child Support (Registration and Collection) Act 1988 (Cth) moved collection and enforcement from the courts to an administrative system Child Support (Assessment) Act 1989 (Cth) introduced a formula for the calculation of child support owed Blended families Created when a parent remarries: when a parent and his/her children from a former marriage or relationship live with another parent and children in similar circumstances.
as amended by the o Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) Federal legislation applies to couples whose relationship broke down on or after 1 March 2009 o Those whose relationship broke down before 1 March 2009 can choose to be bound by federal rather than state law in this matter Matters relating to the children of de facto relationships will be heard in the Family Court - Same-sex relationships State legislation The De Facto Relationships Act 1984 (NSW) was amended by the Property (Relationships) Legislation Amendment Act 1999 (NSW) and renamed the Property (Relationships) Act 1984 (NSW) Property (Relationships) Act 1984 (NSW) recognises same-sex relationships as having the same legal standing as heterosexual de facto relationships. and who are not married to one another or related by family‟ o Protection in property division. descendant or sibling of the other. child. and They have a relationship as a couple living together on a genuine domestic basis Property settlements and maintenance orders for separating de facto couples governed by Family Law Act 1975 (Cth). property settlements and other court proceedings under the Family Law Act. Section 4AA(5) of the Family Law Act 1975 (Cth) de facto relationships can exist with same-sex couples and the act governs property settlements between separating same-sex couples Federal legislation Under s 18 of the Evidence Act 1995 (Cth) and s 18 of the NSW and Victorian Evidence Acts. inheritance and decision-making in illness and after death Under the Succession Act 2008 (NSW) and the Succession Amendment (Intestacy) Act 2009 (NSW). the parties may seek orders for child and/or spousal maintenance. a polygamous marriage entered into overseas is deemed to be a marriage for the purpose of children‟s matters. and parenting plans. same-sex partners have the same entitlements under those laws as if they were married in regards to making an application for family provision and to entitlements of the de facto partners of individuals who died intestate. A party can also seek domestic violence orders LEGAL RIGHTS AND OBLIGATIONS OF PARENTS AND CHILDREN The rights of the child are paramount because they are the most vulnerable members of the family and require the greatest legal protection Legislation concerning children in NSW . Same-sex: Same entitlements led to the federal government amending 84 Commonwealth Acts in 2008 to remove discrimination of same-sex couples. and provides the same protection o Section 4 defines a de facto relationship as „a relationship between two adult persons who live together as a couple. o If the marriage does break down. a de facto partner cannot be compelled to give evidence against his/her partner in certain criminal proceedings.- Neither is the parent. division of property. Australian Human Rights Commission report. in areas including o Tax o Workers‟ compensation o Superannuation o Employment entitlements o Medicare o Family law o Aged care o Child support o Veteran‟s entitlements Same-sex marriage Marriage Equality Amendment Bill 2009 was introduced by the Greens but defeated in the Senate in February 2010 o Tasmania is the first state to recognise same-sex marriages performed in countries where it is legal - - - - - Polygamous marriages When an individual marries more than one person Not legal in Australia However under s 6 of the Family Law Act 1975 (Cth).
medical care or dare care must have regard to the Anti-Discrimination Act 1977 (NSW). o Convention declares that persons under 18 years of age must be protected from violence. or beliefs of the child‟s parents or family members. activities. court proceedings are seen as last resort Parental Care Rights Derived from International Law United Nations Convention on the Rights of the Child (CROC) was adopted by the UN in 1989 and ratified in Australia in 1990. Elements of CROC that are reflected in state legislation include Article 3 . Children and Young persons (Care and Protection) Act 1998 (NSW) ss 11-13. rather leaving the implementation of CROC obligations up to the discretion of state governments.the child‟s best interests should be a of paramount consideration in decisions concerning children Article 12 – A child has the right to express his/her opinions and be heard in proceedings affecting him/her. which states that those involved in the provision of children‟s services such as education. o As reflected in s 202 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). no federal legislation has been passed. greater police powers in respect of children Children and Young Persons (Care and Protection) Act 1998 (NSW) Responsibility 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 Children’s Court Act 1987 (NSW) Establishment of the Children‟s Court. - - Parental responsibility under the Family Law Act 1975 (Cth) Part VII – „best interests of the child‟ „Best interests‟ as listed in s 60B of the Act. cautions and warnings. expressed opinions. exploitation and neglect Under the Human Rights and Equal Opportunity Act 1986 (Cth). o This is in legislation providing for children‟s participation in decision-making Preamble – „Taking due account of the importance of the traditions and cultural values of each people for the protection and harmonious development of the child‟ o Taking an Indigenous child‟s culture into account in decision making procedures. and the child‟s views are to be given due weight in accordance with the child‟s age and maturity. discrimination. include: . also allows parentage to be established via DNA testing Young Offenders Act 1997 (NSW) Procedures for dealing with young offenders.- - - - Adoption Act 2000 (NSW) Adoption of children and access to information relating to adoption Children Protection (Offender’s Registration) Act 2000 (NSW) Requires persons convicted of certain offences against children to register and provide specified information about themselves to police once in the community 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. including youth justice conferences. the Australian Human Rights Commission can refer to it when hearing complaints of discrimination. as with the other human rights treaties to which Australia is a party. - International instruments may be used by courts in interpreting statutes or developing the common law. 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. However. Article 2 – enjoins state parties to ensure that the child is protected against discrimination or punishment on the basis of the status. in a manner consistent with the procedural rules of the jurisdiction. for legal purposes including the disposition of property.
and others significant to their welfare. It is a five-year plan to change the way children and families are supported and protected. they will be issued with a parenting order. In August the NSW Ombudsman published KEEP THEM SAFE? a special report to Parliament under section 31 of the OMBUDSMAN ACT 1974 (NSW). grandparents Parents share responsibilities for their child‟s care and welfare Parents should agree about parenting matters Children have the right to enjoy their culture. The Family Law Amendment (Shared Parental Responsibility) gave further emphasis to the child‟s right to meaningful family relationships and care. The State Government’s Keep them Safe initiative was a direct response to the recommendations that came out of the Wood special inquiry. The Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 is presently before the Federal Parliament. neglect or violence Adequate and proper parenting to help the children achieve their full potential. It seeks to amend the FAMILY LAW ACT 1975 with the aims of: prioritising the safety of children changing the meaning of „family violence‟ and „abuse‟ to better capture harmful behaviour strengthening the obligations of lawyers. care and development e. within general guidelines. and examines the new approach to child protection arising from the Wood Inquiry into Child Protection. but would include Providing adequate access to education Providing access to education Consenting to medical treatment Providing discipline Protecting the child from harm and ensuring that he or she is not exposed to illegal activities Ensuring that others are not harmed by their child Consequences of parental neglect under state law . Parental responsibilities are not specifically defined in this legislation. family consultants and family counsellors to prioritise the safety of children ensuring courts have better access to evidence of family violence and abuse making it easier for state and territory child protection authorities to participate in family law proceedings where appropriate. It was tabled in Parliament on 6 September 2011. The emphasis on responsibilities shared equally by both parents was introduced in large part by the Family Law Reform Act 1995 (Cth) which made significant amendments to the Family Law Act 1975 (Cth) with respect to children. the court-imposed decision The law allows parents to raise their children as they see fit.g. family dispute resolution practitioners. including the right to enjoy it with other people who share it. with the aim of improving the safety. rather than either parent‟s right to have the child live with him or her Family Law Reform Act 1995 (Cth) introduced parenting plans Written agreements voluntarily agreed and encouraged to be created by to by parents. o Plans can deal with any aspect of a child‟s care and welfare If the parents cannot agree. welfare and well-being of all children and young people in New South Wales. Section 60B also sets out the principles underlying these objects: Children have the right to know and be cared for by both parents Children have the right to spend time and communicate regularly with their parents.- The benefits of a meaningful involvement in their lives by both parents Protection from physical or psychological harm from abuse.
Offences regarding parents who fail in their duty to the child are provided in state and territory legislation. to foster care. e. adequate supervision. a court can authorise the treatment . maturity or other characteristics of the child. including food. support services. shelter. Neglect is a criminal offence under both the Children and Young Persons (Care and Protection) Act 1998 (NSW) and the Crimes Act 1900 (NSW) (s 43A) o Defined as the continued failure of a parent to fulfil a child‟s basic needs for property development.g. youth workers and child counsellors o Parents may be held liable in tort for any damage or injury that their child causes and can be forced to pay the injured party compensation Children and Young Persons (Care and Protection) Act 1998 (NSW) addresses family problems in terms of the child‟s needs and care Children (Protection and Parental Responsibility) Act 1997 (NSW) and the Children (Criminal Proceedings) Act 1987 (NSW) deal with the prevention of juvenile crime and the criminal process appropriate to persons under 18. having regard to the age. Community Services will send a caseworker to talk with the parents and other family members. Foster care is usually temporary and involves a couple taking on the parental responsibility of cariying and controlling the child An alternative to foster care is for children to live in „group homes‟ under adult supervision i. on religious grounds). and may follow up with practical help or counselling. o Provisions for parents to home school or by distance education according to curricula approved by the state Board of Studies Failure to provide access to an education is a criminal offence In NSW. hygiene.g.g. emotional security o Carries fines of up to $22 000 and imprisonment of up to 5 years. the consent of a parent (or guardian) is required. Community Services will apply to the Children‟s Court for an order. o In some cases. e. medical and dental care. training or employment until they reach the age of 17 - Discipline Right to discipline child by using physical force must be „reasonable. Parents cannot refuse their child an education. - - Education Right to education is prescribed in the Education Act 1900 (NSW) and found in the CROC. or transfer of parental responsibilities. either of the child‟s or parent‟s consent is required Medical or dental treatment of young persons aged 16-17 requires the consent of the young person These requirements are contained in the Minors (Property and Contracts Act 1970 (NSW) s 49 If the parents refuse medical or dental treatment (e. health. and parents have the right to authorise any such treatment considered in the child‟s best interest For those between 14 and 16. compulsory schooling from the age of 6 until the minimum school leaving age of 17 (amendments in 2009) or the completion of Tear 10 o Amendments also require every young person who has completed Year 10 to be in some form of education. the nature of the alleged misbehaviour or other circumstances‟ under the Crimes Act 1900 (NSW) s 61AA) Defence of „lawful correction‟ in criminal proceedings against a parent or other person for assault will not be available if the physical force was not reasonable o „reasonable‟ is subjective Medical Treatment Parents are responsible for ensuring that appropriate medical and dental care is available for their minor children Consent must be given before any doctor can perform any treatment o Understanding what is involved and agreement of the procedure and the risks For children under 14. for supervision of the family relationship through visits. respectively If suspected child abuse or neglect is reported.e. but they do have the right to choose where their child will be educated.
e. can give consent. The Family Provision Act 1982 (NSW) removed the concept of „illegitimacy‟ and the Succession Act 2006 (NSW) permits any child to apply for a family provision order. anyone who has completed Year 10 but is under 17 must enrol in a training education course or undertake an apprenticeship At any age if they understand the nature and consequences of the oath or affirmation No minimum age. All children have the right to be cared for by their parents The Act allows certain presumptions to be made about a child‟s parentage. but persons over 16 will not normally be forced to return to their parents‟ home. ADOPTION Adoption is the process of transferring parental rights and responsibilities from the biological parents to the adoptive parents. and existed automatically for a child if the child was: Born during marriage (a nuptial child) Ex-nuptial but the parents of the child later married Adopted Children (Equality of Status) Act 1976 (NSW). those under 16 who want to leave school and start work full-time work must seek permission from the DET. in some circumstances. Adoption re-creates the legal relationship between the child and his or her parents Legal requirements and process In NSW. Autonomy of children Law regarding children‟s autonomy and rights are progressive with the child‟s age (i. it must be explicitly stated. such as inheritance and maintenance. If a person making a will wants to exclude any of his or her children. adoption is governed by the Adoption Act 2000 (NSW) If the birth parents are married in a de facto relationship. Aim of adoption law is to ensure that the best and most appropriate parents are found for the child. such that he or she does not understand the problem and the treatment. probationary license at 17 No minimum age for starting work in NSW. maturity) The Children and Young Persons (Care and Protection) Act 1987 (NSW) defines a child as a person who is under 16 years. Otherwise. later replaced by the Status of Children Act 1996 (NSW) gave ex-nuptial children the same rights as those born to parents who are married. a parent may be held responsible A child can only enter into a contract if an adult acts as guarantor and must be for the benefit of the child See Crime Learners permit at 16. as long as they have a safe place to go and can support themselves financially See marriage 16 and consensual Evidence Leaving home Marriage Sexual intercourse Ex-nuptial children In the past ex-nuptial children had neither legal status nor rights. Parentage can be established through DNA or voluntary recognition of the child as his or hers. and a young person as one between 16 and 18 Area of responsibility Alcohol and cigarettes Arrest Civil law Contracts Criminal responsibility Driving Employment Explanation Illegal for a child under 18 to purchase. both parents must give consent to give up the child .If the child is over 16 and is intellectually disabled. possess and/or consume alcohol and cigarettes (in most circumstances) Police can only question a child in the presence of an adult Children can be sued for any damage or injury they caused. However. Legitimacy provided a child with certain rights. Subsequent Acts have reinforced the status of ex-nuptial children. then the Guardianship Act 1987 (NSW) specifies a „person responsible‟ such as a parent. and evidence to be provided to a court to disprove the presumption.
Privately arranged adoption is possible if the adoptive parents can prove they have been living in the overseas country for more than 12 months prior to their application. language and cultural and religious ties should. Access to information Reunion and Information Register is maintained by Community Services in NSW and holds information of both parties if it was provided. and be able to fulfil the responsibilities of a good and caring parent Where applicable. court will make an adoption order following official notification from the relevant agency or department. however. be a fit and proper parent. only she needs to give consent: the father must have been notified to the adoption and given 14 days to respond Children aged over 12 must consent to their own adoption The birth mother cannot consent to adoption within three days of the child‟s birth Once the birth parent or parents have given consent. If the child‟s parents cannot be found or are incapable of giving informed consent. and by bilateral agreements between Australia and countries that have not ratified the convention In NSW. does not help parties to search for each other. prospective parents must apply through Community Services where they will be allocated a child from the other country. be preserved Prospective parents are put on a waiting list and decision as to who will adopt is based on what is in the best interests of the child and whether the child‟s overall welfare will improve by being adopted by the applicant(s) Technicalities Once birth parents agree to the adoption. Deaths and Marriages will issue a new birth certificate in the child‟s adoptive name. the court can give consent Relinquishing parents. o Details of adoptive parents Birth parents no longer have any rights or obligations concerning the child Adoptive child‟s rights of inheritance to the estate of his/her biological parents are removed (unless the child is mentioned specifically in a will) and the adopted child will have the automatic right to inherit from the estate of his/her adoptive parents Overseas adoptions Inter-country adoptions are governed by the Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption. and if the authorities in the overseas country have approved the departure of the child to Australia. stable de facto heterosexual relationship of more than three years Individuals who are not in a relationship can apply as a single applicants (no distinction between heterosexual and homosexual applicants) Between the ages of 21 and 51 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 The applicant must be a person of good repute. as well as the principle that the child‟s given name. Community Services. Parents who give up their child for adoption can nominate the desired religious upbringing for the child. Guidelines to who can adopt Married couples and those in a long-term. the adoption will either be finalised overseas in their country or the overseas welfare agency will authorise the child to leave so that the adoption can take place in Australia. there is a 30-day cooling off period in which they can change their minds.e. the child‟s culture. the parents who nominate their child for adoption. identity. and if the parents accept the offer they may lodge and adoption visa application. but all adoption criteria must be met and the adoption can only proceed if the court permits it. The child is subject to standard migration medical checks and once health requirements are satisfied. The Australian Department of Immigration and Citizenship can refuse to grant an entry visa for the child and the child must meet migration standards. which is then forwarded to the appropriate overseas welfare agency. as far as possible.- In the case of a single mother. The child will then be granted permanent residence in Australia. can nominate a relative to adopt their child. The Registrar of Births. language and religion will be taken into account when determining an adoption order. . i.
The grounds of divorce under the act included adultery. The Family Law Act removed all other grounds for divorce and established the Family Court. Prior to 1974. If they do not succeed in reviving the marriage. the contact details of adopted children and relinquishing parents can be placed on the Advance Notice Register. the parties must have been living separately and apart for a period of 12 months. under s 50 („kiss and make up clause‟). or the child‟s marriage o Parents encouraged to voluntarily agree to their own arrangements in relation to the care and responsibility of their children. with the total time before and after the reconciliation period counting towards the 12 months If the couple has been married for less than two years. from when the party tells the other that they intend to leave the marriage. the only grounds for divorce is the „irretrievable breakdown of the marriage. The parties can be held to be living separately and apart even if they are still sharing the same house. To prove it has irretrievably broken down. This document then allows them to obtain further information from adoption records o Parents who have given up their child for adoption can also ask for a „supply authority‟ allowing them to obtain a copy of their child‟s amended birth certificate Parents and children who do not want to be contacted by the other can lodge a „contact veto‟ Alternatively.e. married couples intending to divorce had to apply under the Matrimonial Causes Act 1959 (Cth) on the ground of „fault‟. a Family Court order that is made to signal the intended termination of a marriage A decree nisi becomes a decree absolute about one month later. rather than asking the court to do so Part VII of the Family Law Act 1975 (Cth) states any disputes concerning children must be decided in the best interests of the child o Right to maintain a meaningful relationship with both parents. the court can order marriage counselling. one or both spouses admit to acting ina way that undermined their marriage. Under s 48 of the Family Law Act 1975 (Cth). where the marriage is legally dissolved o All matters relating to the care and support of the children must be made before the court will grant a divorce „Parental responsibility‟.- - The Adoption Act 2000 (NSW) gives relinquishing parents and adopted children the right to request personal identifying information from Community Services. cruelty (family violence). little chance that the parties to a marriage wish to remain in that relationship. A party who breaches a contact veto may be subject to a fine and or/imprisonment RESPONSES TO PROBLEMS IN FAMILY RELATIONSHIPS Divorce Divorce is the legal dissolution of a marriage. insanity and desertion. The presumption is that is in the best interests of the child for both parents to share the long-term care of their child equally o Parental responsibility ceases with a court order. such as - . that is.e. rather than „parental rights‟ is emphasised by the law. if the court feels there is a chance the parties may be reconciled. they must attend family counselling before they can divorce. i. which hears all matters related to marriage and divorce. The Act allows for a one month period of reconciliation up to three months during the period of separation. i. the adoption of the child. Legal consequences of separation Children If the couple have children. which notifies them if any application for information is made Even though the relinquishing parents or the adopted child may not want to be contacted. Once this has occurred. their information will be released once the party seeking information has signed an undertaking not to make contact. the separation period resumes. the court will order decree nisi. Also. the child‟s 18 th birthday. no application for dissolution will be approved until all of the issues involving children have been solved. which they can then use to contact one another and other family members Adoptive children over 18 may apply to Community Services for a „supply authority‟ which contains identifying information of the birth parents. and o Need to protect the child from harm o Additional considerations are set out in s 60CC Factors which affect the ability of parents to share the parenting of the child equally.
property and financial resources of both parties Whether each or either party has the care and control of a child of the marriage who is under 18 years of age Other contributions. the couple can choose to have the matter heard in the Family Court. separating couples have been able to claim super that each spouse has accumulated during the marriage as part of the matrimonial property Financial agreements Financial agreements protect a person‟s property rights. or establish who owns what property. the time to be spent with the other parent. how and by whom spousal maintenance is to be paid o Amendments to the Family Law Act in 2000 recognises agreements as legally binding . all property purchased or acquired during the marriage. the Family Court can make an order about the allocation of matrimonial property. and ensure that the child maintain their cultural link o If parents cannot agree. such as any inheritance and the acquisition. settle questions relating to how property is to be divided after the marriage has ended. the court will make a parenting order under Section 64B of the Family Law Act that may deal with any matters relating to the care and welfare of a child. during. If in dispute with property allocation. o When determining property allocation under ss 75 and 79 of the Family Law Act (ss 90SF3 and 90SM4 for de facto spouses). or in family violence (s 61DA) Amendments to Part VII of the Family Law Act 1975 occurred in 2006 via the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) introduced shared parental responsibility and other provisions. and maintenance Property Family Law Act 1975 (Cth) uses a broad definition for property. It can include guidelines for the division of property. the court will consider The financial and non-financial contribution to the property by both parties (including contributions made as home maker and carer for children) The effect of the subsequent property allocation order on the earning capacity of either party The age of both parties and the income. as children who have been victims of parental abuse may be further abused o Order of costs against anyone making false allegations. and Where the parent lives Presumption that equal shared parental responsibility is in the best interests of the child will not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child. or of any other child. superannuation and household goods If the separating couple reach an agreement as to the allocation of property and want to formalise it and make it binding.e. contact with other family members. Superannuation is included as a „financial resource‟ and the court takes into account the financial and non-financial contributions made by both parties to superannuation entitlements Since 2002. and the day-to-day care of the child. conservation and improvement of any assets (including maintenance of the family home or working for the family business) o The court can order a mediated conference to determine a fair and equitable allocation of property and an agreeable settlement If unsuccessful. or at the end of the marriage o They may prescribe what property is and is not to be included in the settlement. shares. o Such agreements tend to diminish the combative nature of separation by removing two of the main sources of hostility between the parties: money and property o „Pre-nuptial agreements‟ is now known as financial agreements made prior to marriage o Financial agreements can be made prior. companies and partnerships. debt and other financial concerns in the event that the relationship ends. i.- - - - - The views of the child The nature of the child‟s relationship with each parent. such as the parent with whom the child is to live. It includes homes. o Criticisms that it does not adequately deal with family violence. they can apply to the Family Court for consent orders o If the division of property is fair and equitable. suggest that allegations of violence are regarded with suspicion o Child‟s views are not given enough weight o No distinction between shared parental responsibility and share care – some parents believe shared parental responsibility means ‟50-50‟ split in the custody of the children Separating parents are required to attend compulsory family dispute resolution and enter into a parenting plan o Parenting plans must consider the practicality of children having equal time with both parents. o Can also include provisions as to whether. the court will then make a legally binding order. bank accounts.
but one that concerns the community as a whole (an offence punishable by the state) A domestic violence offence is defined in s 11 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). preventing his wife from attempting to claim property During the period in 2002-2006 the husband continued to pay the mortgage and his parents provided him financial support to build a home on the land The Court in the first instance found that both parties have contributed equally to one another‟s debt. but this can be a costly and time-consuming process De facto couples can also have binding financial agreements for property settlements in the event that they separate. effective in 2008 and replaced Part 15A of the Crimes Act 1900 (NSW) as a „personal violence offence committed by a person against another person with whom the person who commits the offence has or has had a domestic relationship‟. Domestic relationships can include a marriage. No adjustment had been made under s 75(2) of the Family Law Act 1975 (Cth)for the husband‟s higher income or greater earning capacity On appeal. it was held that the method of calculation of the parties‟ assets and liabilities effectively left the wife with only 3. including alcoholism and addiction to prescribed drugs or illegal substances Disputes over homework. including depression o Lack of positive male and female roles Social problems o o o o o Drug dependency. taking into account the short length of the marriage (and hence financial contribution) and the lack of any restrictions on the wife‟s earning capacity. They can be made before. The court ordered that the wife‟s share of the „asset‟ – land and house. the couple bought land on which they intended to build their home The land was purchased in the husband‟s name and he was responsible for paying the mortgage The couple had been using the wife‟s credit card and personal savings for day-to-day expenses and she was now in debt When the couple separated. the husband transferred the property to himself and his parents. de facto relationship or other close personal relationship (parent-child) There are many reasons why families experience interpersonal problems: Psychological problems o Lack of self-esteem and poor self-image o Inability to express anger or frustration appropriately o Strong desire to control and dominate others o Cycle of violence: an abused child may become an abusing adult o Mental illness. the court held that there would be no adjustment for the disparity of earning capacity - LEGAL RESPONSE TO DOMESTIC VIOLENCE Assault occurring in the home is not a private matter. The husband was ordered to pay half his wife‟s debt.o A party can apply to the Family Court to have the agreement set aside. but was awarded 92. during or after the breakdown of a relationship C and M  FamCA 212 Division of property where both parties have debts.5% of assets. earning capacity and one with significant asset but short period of marriage The parties (both 29) married in Oct 2002 after a lengthy engagement but separated after 2 months During the engagement. should reflect her financial contributions to the mortgage repayments (assessed at 20%) However. other domestic duties Disputes over child discipline issues Lack of quality time spent with family members Cultural or geographic isolation Financial problems .8% of the net assets.
those over 16 can apply on their own A court may grant an ADVO for protection of a child even if the application was not made by a police officer Applicant for an ADVO must inform the court if there is a parenting order in place that allows the offender access to the children. Professionals include teachers. who had been released on bail after he had been arrested for breaching and ADVO. Community Services is legally required to investigate the case. 2336 women in 2007 ABS – Australian Social Trends. legal guardians or any other person who has the care of the child o The Children and Young Persons (Care and Protection) Act 1998 (NSW) covers abuse as well as neglect Section s 227 prohibits intentional acts resulting or likely to result in physical injury or sexual abuse. o In NSW. certain professionals are required by law to report to Community Services if they suspect the child is at risk of harm.- Lack of money (due to unemployment. while in the care of parents. than an ADVO is made The police can charge the accused The family court can restrict contact by the offender with any children the court feels are at risk Community Services can apply for a variety of care and protection orders. emotional. school counsellors. doctors. while victims tend to be women and children o Nonetheless. or harm to health or physical development o Children can be included on an adult‟s ADVO application. social isolation. - - Violence involving children Violence against children o Article 19 of the UN Convention on the Rights of the Child (CROC) declares that no child should be subjected to violence and it is the responsibility of the state to protect them from all forms of physical or mental violence. emotional or psychological harm. nearly have will experience repeated attacks Victims can apply to the Local Court for an ADVO: Apprehended Domestic Violence Order or alternatively an injunction from the Family Court for personal protection (more complex and less easily enforced by local police) o The issue of an ADVO does not mean the person is charged with a criminal offence. neglect or negligent treatment. police will arrest and charge the person with a breach of the ADVO. Males tend to commit. Possible outcomes after notification include: If the notification concerns a threat of abuse or actual abuse. maltreatment or exploitation. low-paid work or part-time work). and anyone who works with children. psychological and/or sexual abuse. in addition to any other offence committed at that time Domestic violence offenders in breach of an ADVO may have their bail application denied under Section 9A of the Bail Act 1978 (NSW) which excludes domestic violence offenders Amended in 1993 in response to the murder of a woman by her estranged husband. Of all women assaulted. and woman can also commit ABS o Number of female victims has risen from 236 in 1995 to 6607 per 100 000 in 2007 o Number of male victims has risen from 46 in 1995 to 266 per 100 000 in 2007 o 800 women charged with domestic violence in 1999. men are also victims of domestic violence. 2007 o Women are at greater risk of violence at the hands of someone they know: 82% o Women are more likely to experience violence in the context of the home (64%) than by a stranger or in a public place. verbal. or a separate application can be made for children Police officers are the only people who can apply for an ADVO for children under 16 years of age. and one-third of physical assaults were committed by the victim‟s spouse or partner. and their safety as at risk. financial. including the removal of children from a violent environment . making it difficult to pay bills and mortgage or rent Disputes over how to spend a limited supply of money Expectation that the children will need to find employment to contribute to the family‟s finances Inadequate amount of money for child care Violence between spouses Can take the form of physical. only when the order is breached If there is sufficient evidence available to support a conviction for this offence and any associated offence. or actual or threatened violence or harassment. including sexual abuse.
Changes in the law reflect this changing attitude to domestic violence Domestic violence is recognised as a community problem. and Human Services departments. which have the power to assess and provide support to the children and families Violence by Children o UN Convention on the Rights of the Child – all decisions relating to children should be in the best interests of the child Age of criminal liability Children (Criminal Proceedings) Act 1987 (NSW) s 5 states children under the age of 10 cannot be guilty of an offence Children between 10 and 14 are presumed to be incapable of committing a crime.Less serious cases from reports will be referred to Child Wellbeing Units in NSW Health. and the understanding that domestic violence is no longer a „private‟ matter. argued that the orders do little to deter individuals who are persistent offenders only effective if they are policed Battered wife syndrome has extended to included battered partners in de facto relationships. prosecution must rebut the presumption by proving that the child did the act alleged and that he or she know that it was wrong Sentencing If a charge is laid the child or young person will usually face proceedings in the Children‟s Court or under the Young Offenders Act 1997 (NSW) which provides court alternatives including the use of warnings and cautions and youth conferencing. and most people now appreciate that reducing its incidence is in some respect a societal responsibility ADVOs have been important in reducing the incidence of domestic violence Quick. Education and Training . employing a welfare approach through counselling and education. no is it acceptable. a gun license or permit if the individual has been subject to an ADVO Some claims that ADVOs are too easy to obtain and that women have falsely claimed to be victims of domestic violence when contesting parenting orders EBONY CASE METHODS OF RESOLVING DISPUTES Family dispute resolution Defined by the Family Law Act 1975 s 10F as a non-judicial process in which an independent practitioner helps people affected by a separation or divorce or resolve some of their disputes which each either . Police. and to encourage young offenders to take responsibility for their actions. o Court is the last resort. rather than to punish them. including homosexual relationships Automatic presumption of bail removed after several women had been stalked and killed by their respective partners who had been released on bail Firearms Act 1996 (NSW) prohibits the issue of. or revoking. o Long term goal of preventing adult offending Effectiveness of the law in protecting victims of domestic violence Changing social attitude due to recent education programs have raised community awareness of domestic violence as an important social issue. not an individual or isolated occurrence. and the emphasis is on preventing the child from coming into contact with the justice system. inexpensive and accessible form of protection Criminal offence if breached However.
Its jurisdiction is also limited by this Act. Mediation – for separating couples who have made an application to the Family Court to help them identify issues. and to reduce the cost and time required to deal with some federal matters o Similar jurisdiction to the Family Court in it can hear matters relating to divorce. Types of dispute resolution services include: Reconciliation counselling – for separating couples who are attempting to reconcile Post-separation parenting programs – for couples whose issues adversely affect their carrying out of parenting responsibilities. financial penalties or other criminal sanctions being imposed - THE ROLE OF THE COURTS IN FAMILY LAW MATTERS The Family Court focuses more on reconciliation and encouraging compliance rather than on arbitration and the use of sanctions or coercion Family Court of Australia and Federal Magistrates’ Court A specialist court established under the Family Law Act 1975 (Cth) that hears matters relating to separation.- s 601 requires couples who have a dispute about matters than may be dealt with by a court order under Part VII of the Act (involving children) to make a genuine effort to resolve their dispute. before applying for an order o if there is a history of family violence then family dispute resolution may not be appropriate Different forms of dispute resolution are provided by Family Relationship Centres. formulate options. The Family Court and the Federal Magistrates‟ Court (the Family Law Courts) can refer disputing parties to an extensive range of counselling services. and less stressful for all parties involved Individual counselling is available to any child whose parents are separating to help ensure the needs and welfare of the child are identified and met by any parenting order issued by the Family court. consider alternatives and reach agreement Involvement = compliance Improves communication skills which may minimise future conflicts Less time and money cost than court proceedings. the division of property and children o It cannot hear any matters relating to adoption. Adjudication The determination of a matter by court judgement or ruling The Federal Magistrates Court and Family Court can make decisions regarding o Division of property o Maintenance. inheritance and wills must go to courts within the state court hierarchy Court has the power to make a particular parenting order. it will impose a legally binding order. divorce and other disputes related to marriage. government-funded community centres that assist couples and families at all stages of relationships but private providers also exist. Breaches may result in further court action. In late 1999 the Federal Magistrate‟s Court was established to relieve some of the cost load of the Federal Court and the Family Court. such as o The intention of a parent to move interstate or to emigrate o Serious allegations of family violence or child abuse (Magellan case) All other issues such as adoption. applications concerning nullity (of marriage) or validity of a marriage o Majority of divorce applications heard More complex issues involving multiple parents are heard in the Family Court. All matters relating to the children of the relationship must be finalised before the divorce is granted. other counselling and dispute resolution services must be attempted first Once the court has made its decision. o Any decision that may affect children of the relationship Courts are final option. where the child‟s best interests are the paramount consideration - - .
government funding and volunteers - THE ROLE OF THE MEDIA Medium to provide information about rights and obligations under family law. the Health Insurance Act 1973 (Cth) now allows a same-sex couple and their children to register as a family for Medicare and receive the same entitlements as a heterosexual couple and their children.- - Only in 1986 when all the states (except WA) referred their power to make law regarding certain matters relating to children to the Commonwealth were ex-nuptial children covered in federal provisions. or churches such as Anglicare o NGOs not affiliated with religious groups and provide similar services include Relationships Australia. Any matter relating to the care and maintenance of a child will heard in the Family Court Both courts have the power to determine matters relating to the division of property and maintenance for both married and de facto couples The Children’s Court See Young Offenders THE ROLE OF NON-GOVERNMENT ORGANISATIONS Number of NGO‟s provide support for families and individuals who may be struggling with personal relationships and other family issues Many of the notable organisations are operated by various religious groups such as the Salvation Army. „parent‟. counselling and relationship advice. various states and territories introduced a number of law reforms recognising same-sex relationships in specific areas. but the removal of institutionalised discrimination and the provision of adequate legal protections Legal and non-legal responses Main issue is to protect the rights and mutual obligations that are created when two individuals form a relationship. brochures and forms. „child‟. the Netherlands became the first country to recognise same-sex relationships. „couple‟ and „family‟ to include same-sex relationships E. as well as additional support services Contact information publicised through the internet. Legal Responses o Between 2000 and 2009. mediation and advice on creating parenting plans. Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Reform) Act removes areas of discrimination by amending and/or extending definitions such as „de facto partner‟. Limited by funds. telephone and email Restricting how the media publish court proceedings to protect privacy of individuals CONTEMPORARY ISSUES CONCERNING FAMILY LAW ISSUE 1: RECOGNITION OF SAME-SEX MARRIAGES In Australia. In 2001. the Australian government introduced reforms with the aim of removing discrimination and providing same-sex couples the same entitlements as those presently enjoyed by heterosexual de facto couples. . reaffirmed with the Marriage Amendment Act in 2004 as it added „the union of a man and woman‟ to s 5(1) of the Marriage Act. the Commonwealth does not recognise same-sex marriages. assistance with managing conflict and dealing with violence in the family. the Australian Human Rights Commission Report Same-Sex: Same Entitlements. followed by Belgium.g. and the Smith Family Services include mentoring. o In 2008. Spain and Canada Desire for legal recognition does not necessarily mean they want the right to be married. There are numerous benefits in protecting any mutually supportive relationship including economic benefits of a two-income family. dependent on donations. emotional support to children of separating parents. support for new parents.
family law. and both are listed as mothers on the child‟s birth certificate. race. the hosts‟ appeal was settled.- - - Other amended areas include tax. Opposition o Some sections of the media. o Major change in state laws concerns the recognition of a same-sex partner as the „parent‟ of their partner‟s child. Same-Sex: Same Entitlements recommended amending federal laws that discriminated against samesex couples and their children in the area of financial and work-related entitlements and benefits o Lobby groups for the legal rights and social equality of gay and lesbian couples Australian Marriage Equality Argues for that marriage should not exclude these couples. Exclusion suggests that their relationships are recognised are of a lesser standard or character and that the people are second-class citizens Same-sex couples are at most only allowed to form „civil unions‟ Gay and Lesbian Rights Lobby Advocacy. The Miscellaneous Acts Amendment (Same-Sex Relationships) Act 2008 (NSW) granted equal parenting rights for the female partners of mothers. This allows these organisations to withhold services to the individuals Responsiveness of the legal system o Courts have to be willing to act o A significant number of politicians must support legislative reform o Law reform bodies have the task of investigating and recommending changes . social security. Biological parents are regarded as having joint responsibility for the child. property and maintenance matters for separating homosexual couples are determined by the Family Court or the Federal Magistrates‟ Court. hosting consultations. lobbying government and the media to address discrimination. However. a partner of the same sex had no legal standing and could not make decisions about the day-to-day care of the child unless the Family Court had ordered so Children conceived through donor insemination or assisted reproduction had only the mothers listed on their birth certificates. Under the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth). superannuation. workers‟ compensation and child support. and to receive the same social security and family assistance payments as heterosexual couples. educating the gay and lesbian community on their rights and providing referals to legal and welfare services. They and their children will be able to claim superannuation benefits. The definition of „de facto‟ is extended to include two people who are not married or related by blood who live together „on a genuine basis‟. with a public apology on air and a written apology in The Sydney Morning Herald o Most lobby groups that oppose equal rights for homosexual couples have a religious affiliation. o The Act does not distinguish between a relationship between two people or of the same or opposite sex Non-legal responses Support o The Australian Human Rights Commission has made recommendations to the government regarding the removal of institutionalised discrimination and legislation which does not comply with UN human rights treaties. sexuality. such as the Australian Christian Lobby. disability and age. such as in 2003 two radio program hosts made comments „capable of inciting severe ridicule of homosexual men‟ and therefore were held to have breached the vilification provisions of the Anti-Discrimination Act 1977 (NSW) In 2008. Same-sex couples will be allowed to claim the same tax concession as those presently available to married or heterosexual de factos. religious groups continue to be able to discriminate on the basis of sex. Under the current discrimination laws. Children born into same-sex relationships have equal rights to inheritance from both „parents‟ and protects the rights of both mothers in matters involving the children if the relationship were to end.
Family law reform reforms in 2006 aimed to encourage parents to share both responsibility and care more equally. and those who make laws in Australia. o ISSUE 2: THE CHANGING NATURE OF PARENTAL RESPONSIBILITY Legal and non-legal responses The concept of parental responsibility has changed. For women it was concerns regarding their mental health. The main reason for a child to spend no time or less than 30% of his or her time with a male parent was concerned about abuse or family violence and entrenched conflict.‟ High Court Justice Michael Kirby. This responsibility is not altered if the parents separate. Conference on Legal Recognition of Same-Sex Partnerships.- The Anti-Discrimination Board of NSW is part of the NSW Department of Justice and Attorney General. Reforms to family law have tended to focus on maintaining positive and supportive family structures even when parents separate. but refused to amend the Marriage Act to permit same sex marriages. Handles complaints of discrimination Also informs the public of how individuals can prevent and deal with discrimination. will. seminars. education programs. parents sought „custody and control‟ over their children. Injustice and irrational prejudice cannot survive the scrutiny of just men and women. There are always instances where the child will spend a disproportionate amount of his or her time with one parent. community functions and publications Advises the government and makes recommendations It has made a number of submissions to both the state and federal governments concerning changes to current legislation that are necessary in order to provide same-sex couples the same legal rights and protections that are now enjoyed by married couples. However. marry or remarry. enforcing their parental rights. eradicate unfair discrimination on the basis of sexuality. less there is a court order otherwise. Parents have joint responsibility for the children (Family Law Act 1975 (Cth) ss61B and 61C). talks. In the past. This applies equally to a child born within marriage (nuptial) and to a child born outside of marriage (ex-nuptial). There is perception that the idea of shared parental responsibility is frequently not reflected in reality. Legal responses Reforms introduced by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) included two types of considerations to be taken into account by a court in respect to the „best interests of the child‟ (Family Law Act 1975 (Cth) s 60CC). 1999. Financial or geographical constraints Social issues such as a parent‟s alcohol abuse or poor health In more than 60% of parenting plans and orders. and issues surrounding transport or finances. some parents mistakenly believe they are entitled to 50-50 shared care of their children. The scales are dropping rapidly from our eyes. through consultations. o Primary considerations include The benefit of the child having a positive and meaningful relationship with both parents The need to protect the child from abuse and family violence o Additional considerations include The child‟s wishes The nature of the relationship between the child and the parent . Shared parental responsibility (or shared responsibility for major decision making) is not the same as shared care (equal time with both parents). But the law is also focused on ensuring that parents meet their responsibilities towards their children. in due course. children spend more than half of their time with their mother. „I fully accept the integrity of same-sex relationships… but in terms of the policy. I have confidence that the Australian legal system. It administers the anti-discrimination laws of NSW. „As a people committed to equal justice for all under the law. as well as abuse. Now the courts are less concerned with parental rights and more concerned with parental responsibility. Another is that the legislation‟s emphasis on a child‟s right to a relationship with both parents has been given more weight than is warranted. The court will now take into account „primary‟ and „additional‟ considerations. it‟s a matter to which we have been committed for some time. o Rudd introduced legislative changes to de facto entitlements in 2008.
and sometimes they reflect these social changes. ISSUE 3: SURROGACY AND BIRTH TECHNOLOGIES Birth technologies Surrogacy Assisted-Reproduction Technologies (ART) such as In-vitro fertilisation (IVF) and surrogacy has raised many legal issues. education and skills training not only helps parents to develop better parenting skills. In order to ensure that parents meet their responsibilities. where equal time is not considered to be in the best interests of the child (Family Law Act s65DAA). DadsLink is one example of a network that focuses on fathers and their relationships with their children. It is important to protect the child‟s right to maintain a quality relationship with both parents. 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.org. Counselling. including paternity. Some have argued that this provision has been sufficient to address parents‟ misconception that both are „entitled to‟ time with the child. Successful shared care was occurring before the 2006 amendments. Some of the trends have arisen since the 2006 reforms to the Family Law Act suggests that courts – and society – to distinguish between families in which shared care is desirable and those in which there are concerns that override this aim. the motivations for seeking shared care become less clear. views about men and women have expanded to accommodate a much wider range of roles for fathers as well as mothers. where the parent involved were willing to cooperate in the effort to achieve the best circumstances for their children. and may think that the court will order shared care anyway Non-legal responses Community and church-based institutions as well as nationwide organisations such as Relationships Australia. Responsiveness of the legal system Sometimes changes to the law have led to changes in what the community accepts as moral behaviour. and these interact with legislative enactments and amendments. whether the responsibility is equally shared is not an issue. and that they should both have „substantial and significant time‟ even when there are other factors to the contrary. the National Council of Women of Australia (www. Another change involved the notion of „substantial and significant time‟ to be shared by each parent. can help separating parents to negotiate their own parenting agreements and can also provide a range of information and referrals. Conclusion The emphasis on children‟s rights reflects the idea that children are vulnerable members of our society and need greater protection. In addition. All decisions must be in the best interest of the child and the interests of the parents or caregivers are secondary. .au) and parenting networks for mothers. and courts may have a harder time reconciling the aim of facilitating the child‟s relationship with both parents with the actual facts of the particular family situation A parent who has been pressured into allowing the other parent more time with the child may be discouraged from raising concerns about family violence. But the law also needs to ensure that parental responsibility entails more than the child merely spending half of his or her time with each parent. The most obvious legal response would be to change the law to distinguish between equal responsibility and equal time. When more time with children is coupled with reduced child support payments. or shared responsibility that is not in the child‟s best interests.ncwa. and is part of the YMCA‟s ParentLink program for single parents. Non-legal mechanisms such as women‟s resource centres. o Where there are factors such as the risk of violence. but may also assist in recognising gender issues that affect relationships with children in negative ways Resolving problematic issues about shared parenting and shared responsibility requires changes in societal attitudes.- - - The financial ability of the parent to care for the child and the ability of the parent to provide for the intellectual and emotional needs of the child. just as mothers are equally capable of fulfilling the other aims of a satisfying and productive human life. rights of inheritance and care and control over the children. fathers. the government has enacted a number of laws. When this is the case. or both may be of value in furthering this aim. The idea that responsibility and care for children is primarily the mother‟s role is no longer the dominant view: a significant number of Australians believe that fathers are equally capable of parenting. the court will not have to consider whether the child‟s time is equally shared by the parents.
However under the Assisted Reproductive Act 2008 (NSW). homosexual couples or single people to fulfil their dreams of having a family ART has also created several moral and ethical issues which have sparked legal debate: the destruction of redundant embryos.’ Under the Status of Children Act 1996 (NSW). or proven in court. that is. ‘rent-a-womb’ tourism in developing countries such as India and Thailand. lesbian couples or ‘career couples. The main factor is infertility. rumoured Sarah Jessica Parker and her partner choosing surrogacy because of her work commitments. even though his name appears on the birth certificate. The development of new birth technologies mean that it is no longer possible to presume the identity of the biological parents. The recent case of Re: The Estate of the Late Mark Edwards. The Q’s return to their home state. Paternal rights are given to the man who acknowledges and accepts the responsibility of the child..e. claiming the child was not his. Jocelyn Edwards. in the case of B v J (1996). written consent from Mr Edwards is necessary. For example. commercial surrogacy is illegal. two couples. regardless of whether the child is his biological progeny. (i.It allows infertile heterosexual couples. • Artificial Insemination. There are many reasons why people choose to use new birth technologies to assist them to conceive. in the case of Re: Evelyn. obtained consent from the SCNSW to extract sperm samples hours after he died in a workplace accident and stored. the partner of the child’s mother born within the relationship refused to pay maintenance. Mrs Q is infertile and Mrs S agreed to be a traditional surrogate using Mr Q’s sperm. The main types of ART include: • In-vitro Fertilisation. meaning Mrs Edwards would need to travel interstate or overseas for the procedure. The legal issue of property is also an issue. (Latin. be entitled to inheritance? . The judge found the custody of Evelyn in favour of Mrs S (biological mother) and her partner. Furthermore. Surrogacy is distinguished between gestational and traditional surrogacy Traditional surrogates are biologically related to the child: the male partner impregnates the surrogate mother by either natural or artificial insemination Gestational surrogates are not biologically related to the child: the embryo of the commissioning couple is implanted into the uterus of the surrogate mother In legal terms. where donated sperm are artificially introduced into the vagina or uterus • Surrogacy.’) With surrogacy. was given property rights to the samples. where the wife.) The advancement of ART has particularly challenged the long-established moral and legal conceptions of the ‘family’ and ‘parent. from Queensland and the S’s. male partner cannot produce sperm or natural conception may risk passing on genetic diseases) or social infertility where lifestyle factors prevent them from conceiving naturally (i.. but of the sperm donor. Would this child. The child is then adopted by the couple. with Mrs S was recorded as the mother in the State of South Australia and Mr Q as the father. The court rejected this argument as a sperm donor is automatically presumed not to have paternity of the child. from South Australia agree to an altruistic surrogacy procedure in South Australia. where fertilisation between the parent’s (or donor’s) sperm and ovum occurs in a test tube or sterile dish to form an embryo and is then implanted into a woman’s uterus for pregnancy. conceived post-humorously. The question of ART technologies for the social infertile (experienced by single or homosexual couples) also arises. there is a belief that perfectly fertile couples may prefer to use surrogacy in starting a family rather than naturally to minimise the disturbance on their lifestyle or career. surrogacy is separated into commercial (surrogate is compensated for her services) or altruistic (No financial gain). In Australia. the Q’s. Medical infertility refers to where a partner is infertile due to defects to their reproductive system (i.. ‘designer’ babies. whose name appeared on the child’s birth certificate. the surrogate mother to bear a child for the commissioning couple. In-glass fertilisation). maternal rights are given to the woman who gave birth to the child. (IVF). an agreement between a commissioning couple and a woman. single women. but Mrs S struggled with the repercussions of relinquishing the child and fought for custody. Society has long attempted to ensure the legal father is also the biological father.e.e. Evelyn was born. The baby.
of the child. The judge has totally ignored the rights of the child. such as the right of the child to know biological parents: sperm donors/traditional surrogate mothers and who is responsible for any damage to the child as a result of ART? The Commonwealth Government of Australia does not have the exclusive power to legislate for reproductive technology practices. each state and territory is responsible for implementing its own separate legislation. the donor. The doctor in charge of the procedure has been charged with negligence. She's not my daughter as far as the law's concerned. prohibits commercial surrogacy arrangements and provides for the status of children of surrogacy arrangements. Artificial Conception – In Vitro Fertilisation LRC 58 (1988) and the release of the NSW Department of Health. I can't even call her my daughter now. so it's just a very bad day for fathers. In New South Wales. A number of laws have been implemented to cover the development of new birth technologies. Other issues have also arisen. Nadya Suleman. of California had six remaining embryos after years of IVF treatment (and six previous childbirths)." Legal and non-legal responses Legal responses Non-legal responses .. Cloning of human embryos is prohibited Prohibition under the Human Cloning Act 2002 (Cth) Some provisions of the Family Law Act 1975 (Cth) regard the presumption of parentage in surrogacy procedures and the Adoption Act 2000 (NSW) indirectly cover the adoption of surrogate children. The Act was replaced by the Status of Children Act 1996 (NSW) The Status of Children Act 1996 (NSW) provides the presumption of parentage i. The Artificial Conception Act 1984 (NSW) to address artificial conception issues “any man who produced semen used for the artificial insemination.e.a ‘Octomum’. Many of these laws are a result of the New South Wales Law Reform Commission reports into ART. a.. not even my daughter. SPERM DONOR LOSES BIRTH CERTIFICATE FIGHT "I don't even know if I can call her my daughter. There remains a moral and ethical debate if the use of ART considers what is in the best interests of the child as paramount or the desire of adults.Legal debate also arises in cases of destroying donor sperm. The child does have a right to know their identity. The main concern is consistency between State legislation and the verdicts of cases to achieve fairness. Sperm donors had no legal rights over. be presumed not to have caused the pregnancy and not to be the father of any child born as a result of the pregnancy. from the many possible IVF outcomes. Therefore. The six embryos were implanted simultaneously and led to octuplets – she was now the single mother of 14 children. nor responsibility. and woman of the ART procedure The Surrogacy Act 2010 (NSW) recognises certain surrogacy arrangements. shall. The judge totally ignored that. Am I now her father? What am I? "As far as I can see I'm nothing. collection and use of donor semen). The Human Tissue Act 1983 (NSW) encompasses some aspects of reproductive technology (Regulates the supply. draft of the Assisted Reproductive Technology Bill 2003 (NSW).k. and to make related amendments to other Acts’. such as New South Wales Law Reform Commission. I'm just a donor who donated sperm to make a child. like father's day is in two weeks time. for all purposes. who is the legal mother or father. The Assisted Reproductive Technology Act 2007 (NSW) prevents commercialisation of human reproduction and protects the child born. "I have no legal rights whatsoever. there is no specific. comprehensive legislation regulating ART. equality and hence justice. There is also public complaint of Suleman being a burden to tax-payers being unemployed and unmarried.
During 2008 Community Services Helpline received approx. and to provide counselling and trauma support for victims. Child care centres . In 2006. the court may order that the child‟s contact with the offending parent is restricted or that the contact takes place within a controlled environment. When Community Services NSW receives a „risk of harm‟ report involving allegations of physical or sexual abuse.002. family dispute resolution may be inappropriate. the number of reports increased by 19% to 286. which had the aim of ensuring that children have a meaningful relationship with both their parents. According to the submission of the NSW Ombudsman to the Wood Inquiry (Special Commission of Inquiry into Child Protection Services in NSW) on mandatory reporting. The Family Law Act 1975 (Cth) was amended in 2006 by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). child abuse and child neglect. the suspect will be charged. The Family Court can order relevant state and territory agencies to provide information regarding allegations of family violence. doctor. requires the court to consider the child‟s best interests rather than parental interests. including protecting them from violence or abuse and provisions for the mandatory reporting of concerns to Community Services.Responsiveness of the legal system ISSUE 4: CARE AND PROTECTION OF CHILDREN Issues of family violence. police and representatives from NSW Department of Health. if the court is satisfied that the person knowingly provided false information. The response teams were established to improve interagency collaboration between NSW Health. the police and Community Services. and the child will receive medical attention if needed. including witnessing that action or threat. neglect or other criminal conduct regarding a child. a caseworker makes an assessment to determine the extent of the risk. the court can also order a person to pay some or all of the costs of another party to the proceedings. Almost two-thirds of all reports are referred to community services centre or Joint Investigation Response Team (JIRT) for further assessment and investigation. In the following year. Legal responses If there is evidence of family violence. If the police decide that there is evidence of a crime. But the amendments have been criticised on the basis that there is greater potential for a child to be exposed to family violence. o Shared parental responsibility does not apply. nurse or other professional believes there to be a risk of farm from family violence or abuse. such as with a social worker present. the response team will speak to the young victim and act to protect If the child is in immediate danger. The court will hear cases that raise family violence issues quickly so that it can take appropriate action to protect vulnerable family members. The Children and Young Persons (Care and Protection) Act 1998 (NSW) is safeguarding the health and well-being of children. - - Legal and non-legal responses The Family Law Act 1975 (Cth) defines „family violence‟ as any action or threat of violence by one family member against another. 241 003 reports were made about concerns for a child‟s or young person‟s safety. 300 000 calls. - - - - - Non-legal responses Churches and organisations such as the salvation army o Traditionally provided extensive support and educational services to children in need. including false allegations of family violence. Under s 117AB of the Family Law Act. that causes fear or apprehension about personal safety. The 2006 amendments to the Family Law Act 1975 (Cth) aims to ensure that children are protected from both direct harm and from harm resulting from exposure to family violence. the child will be assigned a caseworker. In cases where there is evidence that family violence has occurred. Once the report has been made. where a teacher. The presumption of equal shared parental responsibility does not apply if there is a risk of child abuse or family violence. Members of this time include Community Service representatives. This reduces the call load on Helpline and allows caseworkers to focus on assessment. Reporting reduces the amount of administrative work for a case worker. the number of „at risk of harm‟ reports made to Community Services has increased steadily and continues to grow.
com. it also indicates that support and counselling services provided to perpetrators have been less than successful in encouraging them to modify their abusive behaviours. Each has established counselling services for abuse victims and compensation funds to pay future claims made by victims.au) – offers programs supporting families to overcome stresses that lead to abuse and neglect. The legal system has been accused of acting too slowly to protect child victims of abuse and that existing mechanisms to protect children are inadequate. services include counselling. A review of the NSW child protection system began in 2006. A Picture of Australia’s Children 2009. social groups for parents. In 1996. This will necessitate the coordination of government and non-government organisations. Responsiveness of the legal system Criticisms of child protection in NSW have been made against Community Services. which represent an increase of 88% since 2000. These include: Child Abuse Prevention Service (CAPS) – aims to alleviate child abuse by educating the community about child abuse issues and providing counselling and on-going support for victims and perpetrators (www. and Emergency housing and youth support programs These groups have provided necessary help and support to children and families in crisis However. the Catholic Church established the Melbourne Response to investigate claims of clergy abusing young children. the courts and community groups. A new Children‟s Commissioner was established to monitor state programs to eradicate child abuse and strengthen existing child protection. in 2007 more than 150 children who had previously reported to Community Services as being at risk of harm died at the hands of their abusive parent or carer.bensoc. - - - Conclusion Children are considered to be vulnerable members of our society and therefore deserving of greater levels of protection.org. While some would argue that this indicates that people.o o o o o Counselling services (for example addiction and bereavement). and a focus on early intervention and prevention strategies to protect children from abuse and reduce the harmful effects abuse have on children. more than 25 000 children were placed on care and protection orders. home visits. Community Services has been unable to provide adequate protection and support for families and victims of child abuse. The review also proposed that a national protection should be established. Victims of abuse have been encouraged to contact the relevant church authorities to lodge a complaint. play groups. the creation of uniform child protection laws. The federal government has recognised child abuse and neglect as a major issue and is seeking to create a national framework for protecting children. will seek ADVOs to protect themselves and their children from actual harm. In 2002 the Anglican Church made a staff and reaffirmed the church‟s condemnation of such behaviours. and links to local services Parenting NSW – a state government initiative which aims to make parenting easier by helping parents become better parents. Many of the victims were aged less than 4 years old. Neglect and the abuse of .childabuseprevention.au) Child Protection and Family Crisis Service – provides 24-hour telephone counselling The Benevolent Society (www. the police. According to the report of the Australian Institute of Health and Welfare. some groups have been heavily criticised for their lack of action in dealing with accusations of child abuse made against their own members Clergy members of various churches have been accused and found guilty of serious misconduct and child abuse. An increasing number of persons under 18 have been placed on care and protection orders. The Anglican Church has established a Professional Standards Unit investigates complaints involving clergy and ancillary staff. Various local municipal councils also offer programs providing help and support for children and young persons. Hampered by dwindling financial resources and staff cuts. art therapy. Sadly. once they are aware of their rights. The legal system has responded by strengthening legislation surrounding the care and protection of children. Some church organisations have been heavily criticised for their lack of support for victims of abuse at the hands of the clergy and some churches have been accused of protecting known child sex offenders within their ranks. There are a number of initiatives to provide support for families and children in crisis. All major religious bodies which have been in contact with children and young people have established internal procedures for investigating abuse claims. access to child health professionals.
the court has a range of actions available to it. The declining influence of religion. The court will act to protect individual rights and enforce spousal or parental responsibilities An individual must apply to the court to enforce orders breached by another party. Enforcement of Family Court orders only comes into effect when there is a breach. ethical systems. If the breach was of orders pertaining to children. Court intervention is seen as a „last resort‟ because individuals are more likely to comply with a decision that they negotiated and reached voluntarily. which is complicated by the multicultural nature of our society. Another important change in social attitudes has been in the increasing acceptance of gay and lesbian relationships. in the effort to develop the best processes for a society as a whole. The concept of responsible parenthood with the respect to the care and financial support of a child is considered an important moral obligation that should be met by both parents. The emphasis on children‟s rights reflects the idea that children are vulnerable members of our society and need greater protection. it can impose various sanctions depending on the type. Family law is concerned with managing human relationships.children are now considered serious crimes and parents who are found guilty of such crimes can ultimately be charged with murder if their child dies in their care. reflected in the Family Law Act 1975 (Cth). there are concerns about their effectiveness. Approximately 10% of individuals do not comply with protection orders. All decisions regarding children must be in the children‟s best interests. social and family attitudes. and the idea that marriage does not always last „for life‟ were social factors that influenced this change. 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. and individual rights. When children born in Australia to migrant parents adopt the cultural beliefs and practices of their new country. community service orders and in extreme circumstances. The legal system‟s aim is to protect the child‟s right to maintain a quality relationship with both parents - - - - The role of law reform in achieving just outcomes for family members and society . an interest in removing the conflicts and difficulties resulting from blame. and the victim‟s willingness to report any breaches to the police. the active policing unit of the ADVO. family conflict can result The first major change in family law was the introduction of a no-fault divorce. compulsory attendance at parenting programs. and the interests of their parents or caregivers are secondary. magnitude and number of breaches. THEMES AND CHALLENGES The role of the law in encouraging cooperation and resolving conflict in regard to family An emphasis on mediation and counselling as primary dispute resolution processes has encouraged greater levels of cooperation between separating couples. in contrast to „residence‟ and „custody‟. ADVOs depend on the named individual‟s voluntary compliance with the order. Individuals are therefore more likely to obey the law if they believe the law is essentially enforcing and promoting „right‟ behaviours. The Australian government has enacted legislation to encourage and enforce parental responsibility through the legal system Many of the changes in the law have revolved around protecting children. - - - Changes in family law as a response to changing values in the community The law reflects community values. religious values. as well as the introduction of the sole ground for divorce: the irretrievable breakdown of the marriage. Once the court is satisfied that a breach has occurred. and the vast majority of family disputes are now resolved without arbitration This has been enhanced by court provision of information via websites and do-it-yourself kits Disputing couples are required to attend compulsory family dispute resolution and family counselling sessions The Family Court has reviewed its own internal processes and made substantial changes to make them less complex Issues of compliance and non-compliance The Family Law Council has recommended that an enforcement agency be established to oversee the enforcement of parenting orders and assist in bringing complaints before the court o Note: The Family Law Council is a statutory body established under s 115 of the Family Law Act 1975 (Cth)to advise the federal Attorney-General It is only when parties cannot reach an agreement that the dispute will be heard in the Family Court. This change can be seen in the emphasis on parenting plans and parental responsibility. Remedies available to the court include variation of parenting orders. The legal system must balance different cultures. imprisonment (Division 13A of Part VII of the Family Law Act 1975 (Cth)) Although ADVOs are designed to prove protection against harm.
it may become poor law: too broad or too narrow. Community Services NSW has been inundated with reports of alleged abuse. If the Commission determines that a breach of human rights has occurred. The effectiveness of legal and non-legal responses in achieving just outcomes for family members The legal system acts to protect the values that the whole community holds important. our community believes that it is important to protect the disadvantaged. Increasingly. Other agents of law reform include lobby or pressure groups attempting to influence members of parliament who will support the group‟s aims. - - CASE STUDIES LEGISLATION . society does not tolerate family violence. justice and equity constitute key values. particular when considering the deaths of children identified to being at risk. contradictory and hard to enforce. One of the main criticisms of legislative reform is the recurring problem of time delays between proposing legislative change. However. however. Mandatory reporting of children at risk is one way this goal is promoted. There is evidence that the laws relating to domestic violence and the protection of children are inadequate. or those who cannot act to preserve their own rights – particularly children. passing legislation without due consideration can lead to an unjust outcome. if the law changes too quickly. Any unnecessary delay may have enormous consequences. Non-legislative mechanisms include services provided by government and non-government organisations to assist families with conflict resolution. In addition. One perennial criticism of the law is that it moves too slowly and does not adjust to changed circumstances fast enough.- - - - Agencies of reform are not limited to parliaments and the courts. The law has changed to eradicate family violence and protect its victims. it can make recommendations for legislative change to Parliament. The Australian Human Rights Commission monitors and investigates any breaches of human rights recognised under Australian law. such as counselling and mediation There are still concerns about the effectiveness of child protection services. the Law Reform Commission. international treaty bodies and government departments. Law reform may be initiated by interest groups. The principles of fairness. drafting and enacting the change.