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2 media, 2 legislation, 2 international doctrine (essay writing)

[Company name]Class of 2016

Themes and
Challenge

Nature of Crime

Criminal Investigation

Criminal Trial

Sentencing and P

The Role of
Discretion

Strict liability
offences - a
question of liability

Police Powers

Provision of legal aid means and merit testing

Everything

Reasonable
suspicion, force,
searching

Reporting and
Investigating
Whether or not to
actually investigate
crime

Gathering
evidence

Search and
seizure

Use of
warrants warrants being
correct and used
effectively

Committal hearing magistrate - resource


efficient to actually allow
the case to go to court
Plea bargaining and
charge negotiation - ie
manslaughter v murder maybe a less
punishment but better
than nothing resource
efficient

Factors (mitigatin
aggravating) affec
sentencing

Use of VIS
mandatory

Purpose of punish

Influences
used for th
outcome f

Appeals - is there
incorrect point of
penalty too harsh

Type of Penalties

Imprisonm
resort

Communit
orders (alt

Purposes of punis

Alternative Sente

Abo stuff
sentencin
used with

Restorati
YO

Post Sent
considera
at the reas
punishme
outcomes

to achieve

Issues of
Compliance
and noncompliance

the
elements of
crime: actus
reus, mens
rea - intent
strict liability
offences intent
factors
affecting
criminal
behaviour reasons
why law
is/not
followed

police powers

arrest and
charge,
summons,
warrants

-court jurisdiction
-the adversary system

Act as a deterrent

detention and
interrogation,
rights of
suspects

Continued
e detentio
particularl
to terrorism
rights not
arbitrarily

Parole - a
discretion
parole boa
officer

Deportatio
the option
a dual pas
benefit to
just a hind

Many of the pen


place include regu
guidelines that off
must meet, and fa
comply with thes
requirements cou
harsher punishme
conclusively acts
deterrent to non
compliance.
-caution
-fine,

Set of procedures to
follow - must also
comply with law - the
right to silence
example

-Bond,

-suspended pena

-probation,

crime
prevention:
situational
and social acts as a
deterrant

-criminal infringem
-penalty units,

-community servic
-home detention,

-periodic detentio

- forfeiture of asse
-imprisonment

the purposes o
punishment: det
(specific and gene
retribution, rehabi
incapacitation

Post Sentencing
Considerations - i
security classifica
protective custody
preventative dete
continued detenti
offenders registra
deportation

The extent
to which the
law reflects
community
standards

Summary
and
indictable
offences community
perception
of the
severity of
different
crimes

- factors affecting
criminal behaviour perception of
individuals
- the meaning of

Police
PowersCommunity
view on how
far is too far, in
regards to
violence
against a
suspect.
Acceptable
risk to the
community, in
association
with gifting
bail or

Types of penaltie

community may b
different penalties
differing levels of
the crime commit
ensure fairness

Post - sentencing
consideration: Th
community might
offenders to be re
that police can mo
and ensure reduc
recidivism

VIS to show impa

crime - to represent
the community
- the elements of
crime

remand.

The rights of
the suspects/
individuals
within the
community.

Presumption
of innocence

Part 8 of
LEPRA
addresses
police powers
relating to
arrest and and
extends their
previous
powers, due to
the instability
of society

- Categories of
crime

The role of
law reform

Evolving
way that
people view
and commit
crime

Mens rea
(reckless
indifference,
negligence,
R v Dean)

Need to
keep up
with
technology

What leads
to law
reform?
Changes in
values,
community
views,
technology,
media,
NGOs and
globalisation
, failure of
existing
laws

causation/
the but for
test

The Evidence
Amendment
Act 2013
highlights that
the refusal to
comply and
cooperate with
an
investigation
may act as an
aggravating
factor in
serious
indictable
offenses (5
years of
more). E.g.
two men
seriously
injure each
other through
assault, and
there are no

victim and society

Legal rep (D v
Queen)

Complete
defences
(insanity, self
defence, consent,
necessity, duress,
automatism,Lawf
ul correction of a
minor, honest
mistake of fact,
and claim of
right).

Partial defences
mental illness and
post natal
depression in
infanticide,
provocation, and
substantial
impairment by
abnormality of
mind).

The Bail A
intends to
conditions
be attache
granting o
offender. I
great exte
on discre
such, is a
effort to be
offender, i
to be reso
efficient

The purpo
punishme
deterrence
and gener
retribution
rehabilitat
incapacita
reform hel
these area
effect (gre
specificity
this, the la
more effec
preventing

The extent
to which the
law
balances
the rights
of victims,
offenders
and society

Crimes act
(aggravated
sexual
assault in
company)

Elements of
crime: actus
reus, mens
rea and
causation
must be
proven to
gain
conviction,
this protects
offenders.

witnesses or
any evidence.
They both
exercise the
right to
silence, thus
refusing to
comply.
Meaning, the
role of law
reform here is
to rectify the
exploitation of
an individuals
right to
silence.

Rights of
accused and
offenders:
Police powers:
search and
seizure,
access to
information,
interrogation,
electronic
surveillance,
medical
examinations,
detention,
fingerprints
and
photographs,
role of
discretion,
protects
society,
through
eliminating
crime.
Societys lack
of crime
reporting

Adversarial
system, benefits
victim, due to
presumption of
innocence, and
benefits offender:
past records not
being brought
before court benefits to all to
allow sides of
story to be put
together

- benefits

Maximum

Mandatory

Deterrenc
society

Retribution

Rehabilita

Pleas and
charge
negotiation resource
efficiency,
allowing more
cases to be
heard, benefitting
society. Charge
negotiation saves
victim from ordeal
of giving evidence
and being cross-

Incapacita

Aggravat
- society

Mitigating
accused

Role of vi
(victim im
statemen

Appeals (p

benefits
offenders.

examined.

Warrants benefits
society and
accused,
through
maintaining
peace, and
restricting
police
presence.

Warrants to
only search for
certain things firearms v
drugs

Legal Aid:
benefits
offenders.

accused)

The
effectivenes
s of the
legal and
non-legal
responses

Legal:

Legal:

Effective.

Summary
and
Indictable
offences
protect the
offender
and are also
resource
efficient
because
they dont
have to
waste a lot
of
resources.

The
numerous
legislation,
primarily the
Crimes Act
1900 (NSW)
allow for the
protection of
rights of
society,
victims and
offenders.

Non Legal:

To some
extent.

Media and
news can
distort the
information
presented,
thus having
bias against

Legal:
The
introduction of
legislation like
LEPRA 2002
NSW to
effectively
assist in the
criminal
investigation.
Especially
pertaining to
stopping and
searching with
reasonable
suspicion
Bail or
remand
changes

Legal:

-Effective to some extent. -EFFECTIVE


-Article 11 of UDHR
allows for people's rights
to a fair trial protected
-Situating of

EFFECTIVE

Alternative
sentencing and
restorative justice
are effective
means that aims
to rehabilitate the
offender, and thus
achieving justice
for all 3 parties.

Use of
warrants.

-Plea Bargaining Resource efficient

Use of
Evidence

-Defences (Complete
and Partial) gives
opportunity to the
offender to explain the
reason for committing
the crime.

Non Legal:

The way in
which crimes
nowadays are
reported, for
example
crimestopper
s and
Neighbourhoo
d Watch

Non Legal:

-Factors affecting
ie aggravating an
are effective beca
can take into acco
perspective of o
thus achieving jus

-Aims to rehabilita
offender, and thus
justice for all 3 pa
resource

-Circle sentencing
because it reduce
from

-Appeals are effe


because they can
justice for both th
offender, thus bei
- fixes mistakes

-Different types o
applied

on the offender de
the type of crime
hence achieving e
the offender whils
justice to the soci

-Post sentencing
considerations a
protect the right
offender, but als
to achieve justic
victim, society, a
offender.

Non Legal:

either the
victim or
offender.

However
they can
raise
awareness
to cases
such as
domestic
violence.

The Nature of Crime


The Meaning of Crime
Crime is an act that harms society. This can be an omission or an act. Criminal
law is regulated under states jurisdiction, in NSW that is the Criminal Act NSW
1900. Offender, victim and society are all aspects of crime. Criminal act is seen
as an attack on the standards and expectations of society, therefore law cases
are brought by the state, acting on behalf of society rather than the victim.
The elements of Crime: actus reus, mens rea
In order to be found guilty of a crime it must be proven that:

The accused actually committed the crime


The accused had the intent to commit the crime

-Media appeals

Mens Rea - (guilty mind) means the persons intention to commit a crime. The
prosecution must prove that the accused was aware of their actions would be a
crime. However in strict liability offences mens rea is not needed.
Actus Reus (guilty act) means the actual physical performance of a criminal
act. In most cases it must be proven that the person actually did the crime and
not just think of it. (Power tripping for real rather than actually thinking of it!
Causation
Causation is what the prosection must show. (theres a link between the act
and the harm/result caused by it. E.g R v. Blaue (1975) 3 AII ER 446, blaue
stabbed women, she was transported to hospital, she was about to be given
blood transfusion however she refused because shes Jehova Witness. So she died
later. In the prosecution, Blaue was convicted of manslaughter due to diminished
responsibility. He appealed the decision saying a responsible person wouldve
taken the blood transfusion. Therefore he wasnt responsible for the death. (no
causation). But the appeal court ruled that his actions caused the injury and the
injury caused the injurys and not her refusing blood transfusion.
Strict Liability Offences
Strict Liability offences are those where the prosecution doesnt have to find
mens rea, but only find actus reus. This is different to most other offences as an
offender can be convicted just by doing the act and not even being aware that
they were breaking the law. Examples of strict liability offences are speeding,
overloaded truck, driving high or turnt up.
Summary and Indictable Offences
There are two types of Crimes, summary and indictable. See figure 1.1
Summary offences are those less important such as speeding, shoplifting.
They are heard by a magistrate in the local court. The charge is called a
summons with two years max in prison.
Indictable offences are those are charges that are deemed as serious such
as murder, assault. The more complex the offence is, the more processes
are undergone. A commital hearing occurs to ensure theres enough evidence
to warrant a trial. If there is a trial is undergone. These indicitable offences are
brought up as indictment. The punishment can be up as life in prison. Heard in
front of jury and judge

Categories of Crime
Type of Offence
Offences against persons

Examples
Homicide when a person has been
killed unlawfully. There are four
situations where homicide is being
committed.
1. Murder: hard for prosecution
to prove, one of the following
acts must be proved.

Aggrevation is more serious


versions of assault. Normally
including weapons, excessive force.

Offences against the sovereign

Deliberate act to kill Deliberate


act to cause serious harm, then
death occurs. Reckless
indifference to human life,
resulting in death (eg shooting
in a crowded space) a death
occurred during the commission
of a serious crime e.g shooting
bank teller in bank robbery
2. Manslaughter: unlawful killing
but isnt charged with murder
because they have a defence.
There are two types of
manslaughter: Voluntary
where the accused is
responsible but had mitigating
circumstances. Involuntary
where the accused didnt have
the mens rea to commit the
crime.
3. Infanticide: Involving a child
under 12 months old death
caused by a mother.
4. Death by Reckless Driving:
the fact that they had no mens
rea to kill someone is less
important than other
aggrevating factors such as
speed, or driving under
influences.
Assault Causing physical harm or
threatening to cause physical harm to
an individual. (battery used to be the
threatening to cause phyis however
modern law doesnt distinguish as
threats can cause mental damage!)
Sexual assault (rape) involving
sexual contact without their consent.
Including husband and wives,
someone over 16 and someone under
16 (even though they had consent
(statutory rape)) 14 years max, 20 if
aggrevated. Aggrevated is the use of
excessive violence, if the victim is
under 16 (with no consent), or victim
has an intellectual or physical
disability.
Offences in which the accused is
targeting the state (government)
These are very serious crimes. This

Economic offences

includes: -Treason: activities that


undermine the govenement by
passing on info to other governments.
E.g spying
- Seditism the inciting of public
uninterest with the aim of
bringing down the government
Economic offences is used to
categorise a wide range of offences
involving damage or loss of another
persons property.
1) Crimes against property
1. Property offences: -Larcency
(theft) is taking someones
property without consent. You
must prove mens rea.
2. Breaking and Entering: person
forces entry into a building, in
order to commit an offence.
3. Robbery: most serious of
economic crime. Its when
accused takes a persons
property from them or within
the vicinity of them. When
using a weapon it becomes
armed robbery.
2) White Collar Crime think
of professional/educated
peoples crime
1. Tax Evasion most common
white collar crime. It can range
from sneaky tax fraud or
elaborate and intricate planned
involving millions of dollars.
Income Tax Assessment Act
1997 (CWLTH)
2. Insider Trading - person knows
special knowledge of a
company uses that knowledge
to buy or sell shares. E.g Lester
in GTA v
3) Computer Crime stuff
with computers. Id theft,
scams etc. Lots of reform
due to improving
technology. Copyright Act
1968 (Cwlth)

Drug Offences

Drug offences are covered by


commonwealth AND state laws.

Driving offences

Public order offences

Preliminary Offences

Importation
Manufacture and Cultivation
Distribution, supply and
trafficking
- Possesion and use of drugs
(most common is possession) other
crimes are linked to drug offences!!
Such as robbery to get money to buy
drugs.
Driving offences are the most
common offence commited in society.
Crimes Act 1900 (NSW), Road
Transport (safety and Traffic
Management) Act 1999 (NSW), Road
Transport Act 199(nsw). Most driving
offences are strict liability offences.
Public order offences are those that
generally disrupt the activities of
society. E.g indecent behaviour,
offensive language, spitting littering,
graffiti, prostution. This is what
societys moral and ethical influences
the law
Crimes act 1900 (NSW), Graffiti
Control Act 2008 (nsw).
Two broad categories.
Attempt its an offence to ATTEMPT
to commit a criminal act. A person can
also be charged if their behaviour
mplies that they gonna commit a
crime. (black bag, knives, shovel)
Hard to prove
Conspirancy Found within common
law when two or more people agree to
commit a criminal act. Actual act was
planned never took place. Hard to
convict for, as evidence is normally
scarce AF. Agreement = actus reus
Planning =mens rea

Parties to a Crime including principal in the first degree, principal in the second
degree, accessory before the act, accessory after the fact.
Parties to a crime is the law recognising roles of members of a crime.. Which
determine the sentencing of the individuals.
Principal in the First Degree The actual offender, the perpetrator. For
example in the gas station analogy. The principal in the first degree would be the
bloke whos pointing the gun and demanding the money

Principal in the Second Degree the assist giver, often called the accessory.
Contiuning on the gas station analogy, Principal in the second degree would be
the guy looking out the door on guard. P2 would cop the same punishment as P1
Accessory Before the Fact Someone who helped plan or execute the plan
but wasnt at the scene of crime. The accessory before the fact would be the guy
supplying the gun, making the plan. Accessory before the fact is often charged
the same penalty as P1 and P2.
Accessory After the Fact Someone who helped the people but werent there
and didnt know of the crime. The court normally issues a lesser sentence.
NSW Joint Criminal Enterprise two or more people who commit a crime
with the same intent/purpose are all criminally liable for their actions
Facts:

Aiding and abetting means their actions assist and help a crime
Crimes Act 1900 NSW states accessories to an indictable offences are
liable to the punishment as the principals

Factors that affect Criminal behaviour


The definition and perspective of crime is always being altered due to changes in
society such as tech and values.
FACTORS THAT EFFECT CRIME
Self Interest and Greed materealistic society. This is just greediness.
Social Economic Status disadvantaged people who have no reason to follow
the law.
Genetic Factors not 100% right as it is just theory, this theory indicates
criminals arent made they born
Political Factors Groups who challenge governmental authority thus the laws
as well.

Crime Prevention: Situational and Social


Situational Crime Prevention is tangible ways of preventing crime by making
it harder and less rewarding to commit a crime. This includes security cameras,
random patrols by the police
Social Crime Prevention are programs that give society access to the law
through education in order to reduce the factors a person may have to commit a
crime. This includes encouraging kids. to do something else such as sports. Such
as Police Citizens Youth Clubs, drop in centres.

The Criminal Investigation


Process
The role of the police in the Criminal Investigation Process is to investigate
crimes, make arrests if necessary, interrogate suspect and gather evidence
against the accused.

Police Powers

Outline in LEPRA (Law Enforcement Powers and Responsibility) Act 2002 NSW
Including:
1. Detain and Question suspects
2. Search Property and Seize Evidence (commonly known as Search and
Seizure)
3. Use Reasonable force if necessary to carry out their duties
4. Use particular objectives to assist ina n investigation, such as phone taps,
suirvellance or DNA samples
5. Arrest and interrogate suspects
6. Recommend whether bail should or shouldnt be granted
Police officers may be granted special powers in specific areas in order to combat
particular threats or perceived threats to the community. This is controversial as
it directly combats the right of an ordinary citizen.
The NSW police force abide a specific code of behaviour called the Code of
Practice for CRIME (Custody, Rights, Investigation, Management and
Evidence)

Reporting Crime

Citizens and members of the public are relied on by the police to report crimes.
Community programs such as Crime Stoppers and Neighbourhood Watch are
designed to create a sense of teamwork between police and the community.
CRIMESTOPPERS = NATIONAL COMMUNITY-BASED PROGRAM
ENCOURAGING PEOPLE TO REPORT INFORMATION ON UNSOLVED CRIMES
OR UNKNOWN OFFENCES, SUSPICIOUS ACTIVITY.
2011 SURVEY INDICATED THAT CRIMESTOPPERS HAVE HELPED BRING
CASES TO JUSTICE

Investigating Crime: Gathering evidence, use of technology, search and


seizure, use of warrants

Once police receive information about a crime (Police investigate most alleged
crimes). They will use their discretion to determine whether or not the alleged
criminal activity warrants investigation. This decision is normally based on
severity, other priorities, and resources available.
Gathering Evidence: When a crime has been committed, its the polices role to
gather evidence. Where a crime has occurred it will be preserved as best as

possible, and will be recorded in situ (means OG position). Evidence that has
been contaminated or compromised will be inadmissible. The type of evidence
gathered is greatly varied as it could be statements, bullet holes etc. Their may
be a lot of personas when gathering evidence, such as specially trained police
officers or external experts such as ballistic experts, fingerprint evidences.
Use of Technology: Technology assists law enforces in investigation of crime
(gather crime, proving charges) New technogology has to be very very very
reliable, as if any doubt on its reliability will make the evidence inadmissible.
DNA EVIDENCE (hair blood saliva) is very significant, as it is helpful in
gaining some difficult convictions in both current and cold cases. It is dependable
and very persuasive. However, the presence of DNA at a crime scene only
establishes that an offender could have been responsible for a crime; it is still up
to the police to provide a brief of evidence in order to convict the accused
beyond a reasonable doubt. IN NSW police are allowed to take forensic
samples (blood or mouth swabs) to test against evidence. If they
refuse, police must go to a magistrate to get the sample with
reasonable force. DNA testing takes a long time up to 12 months, serious
cases take shorter like 3-4 months. DANGER OF RELIEING on DNA evidence
too much is that it can be wrong (unlikely) this was found in 2009
where a number of cases in NSW and Victoria resulted to wrongful
convictions via unreliable DNA evidence.
Search and Seizure: The police have the right to search an arrested person,
including their personal belonging. This power exists to ensure that the person
doesnt possess a weapon or illegal drugs. (NOT ALLOWED TO SEARCH BEFORE).
PART 4 OF LEPRA. Powers of search and seizure are often the most controversial
of police powers because they represent an intrusion into peoples privacy or
personal space. Search and seizure can also be confronting or embarrassing,
especially when conducted in a public place. Amendments has allowed police to
search if the police have reasonable grounds for believing that the person is
breaking the law.
Challenges to police searches will often revolve around whether the officer had
reasonable grounds to believe that they could conduct the search. Police may
search anything in a persons possession or control, including, for example, a
persons body, bag, clothes and possessions. Generally, police will ask for a
suspects cooperation and ask the suspect to turn their pockets out and remove
bulky clothing. Police may also pat down a suspects body to feel for any
concealed items. Police can also require a person to open their mouth or shake
out their hair if they have reasonable grounds to believe that the suspected
object is concealed there.
Use of Warrants: A warrant is a legal document issued by a magistrate or
judge which authorises a police officer to perform a particular act, for example
make an arrest, conduct a search, seize property or use a phone tap. In NSW,
certain searches or seizures cannot be performed without a valid warrant. For
example, in NSW police can use sniffer dogs without a warrant to search for
illegal drugs at pubs or clubs, on public transport or at certain public events, but
would require a warrant before using dogs for general searches in any other
public places. This judicial oversight helps ensure that those special police
powers are used only when appropriate, and provides an additional layer of

protection for ordinary citizens against misuse of that power. Part 5 of the Law
Enforcement (Powers and Responsibilities) Act 2002 (NSW) sets out the
circumstances in which a search warrant can be used.
When applying for a search warrant, the police must give substantial reasons or
evidence to the magistrate or judge to justify the granting of the warrant.
Emergency warrants can be obtained over the phone when time is of the
essence in an investigation or an officer is unable to see a magistrate or judge in
person, such as in the middle of the night. NSW police are usually required to
have a valid warrant before they can enter and search any premises, residential
or business, without the consent of the occupier or owner. The warrant will state
the reason for the premises being searched and identify what articles are being
searched for. When any premises are to be searched, the police must identify to
the occupier the reason for the search and give a copy of the warrant to the
occupier. Usually the occupier is present (or they can nominate a person to be
present). Police may videotape the search in order to use it later in court and to
guard against claims of improper procedures or the planting of evidence.

Arrest and Charge, Summons, Warrants

Arrest and Charge: The police arent allowed to detain people unless they
lawfully arrest them. The conditions where a police officer may lawfully arrest a
person are contained in LEPRA.
catching a suspect committing an offence
believing on reasonable grounds that a suspect has committed or is about to
commit an offence where that person has committed a serious indictable
offence for which they have not been tried possessing a warrant for that
persons arrest.
For an arrest to be legal, the police must state to the person, at the time of the
arrest, that they are being arrested and the reason for it. By law (NSW Police
Force Code of Conduct) states that minimal use of force should be used when
arresting someone. However police are able to use whatever reasonable force is
necessary. (e.g shooting someone, however gotta say the weapon is out and
they will use it) Excessive force will get the officer into shit.
Summons: In the case of summary offences, a summons or a court
attendance order may be issued rather than the person being arrested.
Summons is a legal document that requires a person to attend court. Gives
details of the charge, when and where the charge is to be heard and outlines the
consequences of failing to attend.
Warrants: A warrant is an order issued by the court authorising a law
enforcement agency to carry out procedures. For example

Arrest Warrants issued to police authorising them to arrest a person


Search warrant issued to police allowing them to enter premises for
purpose of looking for evidence.

Bail or Remand

Bail: Bail is the term for the conditional and temporary release of an accused
person waiting until their case is determine by the courts, sometimes on
particular conditions such as lodgement of a sum of money as a gurantee.
In more serious matters, the accused, once charged, may be further detained at
the police station and fingerprinted and photographed. The police are required to
bring them before a court or authorised officer as soon as practicable for a bail
hearing. At a bail hearing, the court or the authorised officer will determine
whether the accused should be released on bail or remain in custody until their
trial.
Bail may also be in the form of surety, which is where someone else agrees to
put up the money on behalf of the accused as an assurance that the accused will
turn up at court. If the accused fails to show up, the bail money is forfeited.
Other components of the bail system are the use of wrist and ankle monitoring
devices and diversionary services, such as rehabilitation programs. In addition,
the accused may need to show up at a police station on a regular basis to prove
that they have not moved out of the area they have been restricted to. The
accused may also have to surrender their passport if they have one.
It is difficult to obtain bail for certain offences, particularly violent offences or
where there is some risk to the community or risk that the accused may commit
another offence. Where there is any indication that the accused might attempt to
flee to another state or country, bail is unlikely to be granted.
Bail Act 2007
Remand: Remand is a special type of detention that allows for a person
accused of a serious crime to be held for the period between being charged and
facing trial. ( a period spent in custody awaiting trial)
People who are held on remand arent convicted criminals and it is therefore
important that the amount of time they remain on remand before being tried is
as short as possible.

Detention and Interrogation, Rights of Suspects

Detention and Interrogation: LEPRA sets out conditions which a suspect can
be detained for questioning and for the purpose of further investigation. POLICE
CAN ONLY DETAIN for 4 hours. They can apply to magistrate to extend this.
Theres rest periods though, and travelling to and from includes in the four hours.
Usually, as soon as the police have a suspect in custody, the suspect is
questioned. This is known as interrogation. The police must issue a caution to the
suspect as soon as practicable after the person has been detained, to inform
them of the maximum period of detention and that they do not have to say or
do anything but that anything the person does say or do may be used in
evidence. The caution must be given to the suspect orally and in writing. The

suspect has the right to silence, which means they do not have to answer any of
the polices questions, whether in the company of their legal representative or on
their own. This can make the investigation difficult for the police if they want the
suspect to fill in gaps in the information in their evidence. However, many
suspects voluntarily answer questions.
The interview is recorded on videotape and on two audiotapes: one for the police
records and one for the defendant. These recordings are made to ensure that all
policies and guidelines are adhered to by the police and as a record to be used in
court.

Criminal Trial Process

Court Jurisdiction

The Adversary System

The criminal justice system in Australia is based on the adversial system of law.
The adversary system of law is a two-sided structure of opposing sides
(adversaries), each presenting its own respective case, with an impartial judge or
jury hearing each side and determinging the truth of the case. It can apply to
civil and criminal cases.
In criminal law the adversary system pits the prosecution against the accused,
who will usually be represented by a lawyer. The judge, or jury in indictable
offences, acts as an impartial observer who determines the accuseds guilt or
innocence based on the evidence and arguments presented.
The adversary system is contrasted to the inquorisital system.. Where the
judge (or a group of judges) actively plays a role in investigating the case or
calling for evidence or testimony.
Supporters of adversary system often claim that its fairer, as both parties have
an equal opportunity to present their case. And is less prone to abuse or bias by
the official determining the case. Cases are carefully prepared before trial and
lawyers have an equal opportunity to present the truth, and the jury is an
impartial observer, uninfluenced by outside factors.
Opponents of adversary system often claim that many cases, competing sides
arent equal before the law, with potential imbalances in resources, skills or
knowledge. Even where additional evidence or testimony would assist the case,
the judge or jury is not in a position to request this. The jury system has also
been criticised because complex technical cases might be misunderstood due to
a lack of understanding of the evidence presented and because the reasons for
the jurys decision are not disclosed to either side.

Legal Personnel: Magistrate, judge, police prosecutor, Director of Public


Prosecution

Judges judicial officers who oversee intermediate and superior courts the
district and the supreme court. They oversee proceedings, maintain order in the
courtroom and ensure that the procedures of the court are followed. They will
make decisions about points of law and instruct the jury to make sure they
understand the processes and evidence presented to them. Once the jury has
reached a verdict, the judge will hand down sentences and rulings. In some
cases the judge will sit without a jury in such cases the judge will determine the
verdict.
Magistrate judicial officers who oversee hearings in the Local Court. In
criminal law, magistrates will hear summary proceedings in the Local Court, as
well as indictable offences triable summarily where the accused has consented

to the case being heard by a magistrate. Magistrates oversee proceedings and


make a determination on the basis of the evidence presented. Once a magistrate
has found an accused person guilty, he or she will also pass the sentence.
Magistrates will also conduct committal proceedings for indictable offences to be
tried, and will usually hear bail proceedings
Police Prosecutor a NSW Police Force Officer trained in prosecution, usually
used to prosecute summary offences.
For summary offences in the Local Court and Childrens Court, cases will usually
be prosecuted by police prosecutors. Police prosecutors are members of the NSW
Police Force with specialised training to conduct prosecutions. Police prosecutors
handle most summary cases in NSW. More serious offences are dealt with by
public prosecutors
Director of Public Prosecutions - For indictable offences and some summary
offences, cases will be prosecuted by the NSW Office of the Director of Public
Prosecutions (DPP). The DPP will also conduct some committal proceedings for
indictable offences. The DPP is an independent authority that prosecutes all
serious offences on behalf of the NSW Government. Prosecutors employed by the
DPP are barristers or solicitors. It is their job to prosecute the case using the
evidence gathered by the police. In court their role is to ask questions of the
witness on the stand and draw out the truth from the evidence and testimony
given by the witnesses. The DPP does not investigate crime that is the
responsibility of the NSW Police Force but it prosecutes cases once sufficient
evidence has been gathered. The DPP operates independently of the government
in deciding which matters to prosecute. It reviews cases proposed by the police
to determine if there is enough evidence to succeed. The DPP will prosecute a
case where it is in the public interest to do so. The independence of the DPP from
government is vital to ensure that cases selected for prosecution are chosen on
their merits and not because of political interference or public pressure.

Public Defenders

When an accused cannot afford to pay for a barrister or solicitor, they may be
granted access to a public defender. Whom are barristers (a person called to
the bar and entitled to practise as an advocate, particularly in the higher courts.)
who appear in serious criminal matters for an accused who has been granted
legal aid.

Pleas, Charge Negotiation

Legal Representation, including Legal Aid

Burden and Standard of Proof

Use of evidence, including Witnesses

Defences to Criminal Charges: Complete defences, Partial defences to


murder

The Role of Juries, including Verdicts

Sentencing and Punishment


Statutory and Judicial Guidelines
Judicial guidelines: Purpose reduce inconsistency in the judgements of trial
judges. Ensure that like cases are treated alike because inconsistency in
sentencing between the decisions of different judges is an injustice.
Case: R v. Jurisici 1998: This bloke culpable driving (dangerous causing death)
was sentenced to maximum penalty, he argued that only 81/361 cases for
culpable driving were given the max penalty, which he copped.
Statutory Guidelines: Purpose
The Purpose of Punishment: Detterrance (specific and general),
retribution, rehabilitation, incapacitation
Parliament has produced legislation that speciicall refers to the conflicting
principles of punishment.
Detterence : (discourage someone to do something, with a fear of
consequences)
Specific Detterence objective of preventing the convicted person from
commiting any more crimes by deterring them from reoffending. If there are
different punishment options, the least harsh one is used but with a staunch
factor.
General Detterence objective of influencing people to commit less crimes, if
they are aware of the penalties. Media constantly provides examples. When
passing a sentence, judge will try and make an example of the offender with a
harsh penalty, and will state both forms of deterrence were considered.
Retribution: (punishment inflicted on someone as vengeance for a
criminal act)
Prevents individuals from taking the law into their hands. Serious offences will
often have retribution as a factor when sentencing in the minds of public.
Rehabilitation: (restore something back to normal)
This is what the justice system tries to achieve. (normally doesnt happen tbh)
Incapacitation: (Protecting society from further crime)
The principle that convicted persons may be prevented from summiting further
offences through improsenment.
Factors affecting a sentencing decision and the role of the victim in sentencing
Aggravating Circumstances: This equals a heavier sentence. Crimes
(Sentencing Procedure) Act 1999 sets out aggrevating circumstances. Including:

Victim was public officer carrying out their duties (police, prison officer,
teacher) or voluntary work
Violence, use of weapon, or threat with both or one of them
Accused has previous convictions

Excessive violence
Lots of emotional harm, loss or damage resulted in the victim.
The Crime was a hate crime (race, ethniticity, sexual orientation, age,
disability)
Offender abused position of power
Victim was vulenerable: child, disabled, elderly

Mitigating Circumstances: This equals lenient penalty. Crimes (Sentencing


Procedure) Act 1999 sets out factors relevant to offence and offender.

Injury, emotional harm, loss or damage is minimal


Offence was not part of planned or organised criminal activity
Offender was provoked by victim
Offender acted under duress (had to do it)
Offender has no record of previous offence
Offender is a SK
Offender unlikely to reoffend
Offender likely to rehabilitate
Offender wasnt aware of consequences (age,disability)
Offender pleaded guilty
Offender helped police

The court cant take take into factors in sentencing if its contrary to any
act or rule of law.
Role of the Victim during sentencing
Victim wants a part in the sentencing process. Victim impact statement used
in the court to determine whether a mitigating or aggrevating factor and is used
as evidence.
Appeals
Defendants may appeal their sentence if they believe the sentence is too heavy
or an error of law occurred.
District Court for a Local Court Decision -> or -> Court of Criminal
Appeal for a district court or supreme court decision.
One of these courts will consider:

If the court had power to impose the particular sentence


Error of fact or law imposing the sentence. Regarding common law and
statutory sentencing principles
Whether the sentence is generally of the range appropriate for a particular
offence or particular offender.

Types of Penalties:
No conviction recorded and good behaviour bonded when the judge or
magistrate doesnt record a conviction or dismisses sentence but the defendant
enter a good behaviour bond for up to two years (can be up to 5)

Probation offender has a probation officer follow him all day for a time, Only
given when detention sentence is too heavy but theres a high chance of
reoffending. Breaking this can be lead to harsh result.
Caution formal warning used for less serious crimes, used for deterrence as
way to avoid the court system.
Criminal Infringement Notice This is aimed to remove the burden on the
criminal court system by allowing police to fine minor offences. (offensive
behaviour, larcency of goods up to $300)
Fines and Penalty Units fines normally imposed from outside the courts.
Maximum fine is based on penalty units is $110 defined in Crimes Sentencing
Procedure act 1999 (NSW)
Community Service Order penalty imposed by the court, instead of
detention or imprisonment. Up to 500 hrs and the court decides how long and
what has to be done.
Suspended Sentence - It is imposed in place of imprisonment on the condition
that the offender enters into a good behaviour bond for the same period of time.
The imprisonment is suspended providing the offender complies with the
conditions of the bond, and the offender is released to resume their normal life.
Up to two years. Prison sentence thats not put into effect right away.allowing
judge to decide that the offence is serious enough for a jail term.
Home detention
Periodic Detention
Imprisonment most severe sentence imposed in Australia. All purposes may
be all of the 4!.
Diversionary Programs a court program that divert offenders from traditional
criminal processes in order to rehabilitate them. Offender will most probably
attend therapitical justice. Drug court (est 1999) is quite effective.
Alternative methods of sentencing including circle sentencing, restorative
justice
New forms of sentencing for specific offenders. Such as diversionary programs.
THERE ARE TWO
Restorative Justice sentencing involving a voluntary conference between the
offender and the victim. Shows the impact between offender actions and result
on the victim.
Circle Sentencing sentencing for adult aboriginals, circle courts are
designed for repeat offenders and serious crimes. Based on indigenous
customary law, and traditional indigenous forms of resolution. Involving
community members and a magistrate in a circle discussing the most
appropriate sentence. It has full sentencing powers of a court. This
makes indigenous people believe in the legal system.
Post Sentencing Considerations

Offender in prison, (correction centre), in NSW the administration of


imprisonment is governed by the Crimes (Administration of Sentences) Act 1999
(NSW). Correctional services are manged by Correctional Services NSW.
Security Classifications offenders will go to the appropriate one (based on
the crime committed)
Maximum security centres where escape of an inmate is very dangerous to
society, least freedom.
Medium security centres - move more freely but with huge walls fences.
Minimal Security Centres fewer barriers, and inmates have quite a bit of
freedom.
Protective Custody offenders who are vulnerable to attack from other
inmates, duty of care present for officers in charge. They get a special wing,
attack from prisoners, may attack a police officer. Most normally have extra stuff
with it, eg therapy.
Parole conditional release of a prisoner. Under supervision of a parole officer.
Required to visit. Counselling normally present.
Preventative Dention and Continued Detention
Preventative detention = harshest/controversial punishment. Person is detained
in custody without actually having committed or being found guilty of an offence.
Incapacitation. Two types. Post-sentencing detention (after imprisonment)
Preventative Detention without charge which can happen at any time. For
example under Terrorism (Police Powers) Act 2002 (NSW) allows police to detain
someone if suspected terrorist (14 days).
Continued detention = attorney general applies to the court that the offender
needs continued detention if they believe reoffence is likely.
is Crimes (serious sex offenders) Act 2006 (nsw) a judge may sentence offender
to

Sexual Offenders Registration = state and federal databases of sexual


offenders. Australian National Child Offenders Register and NSW child protection
registry are web based systems that assist police with case management with
those offenders. Under the
Child Protection (offenders registration) Act
2000 nsw, people that commit a sexual offence against a child must register at a
police station. When they are paroled they gotta give up deets such as travel
plans. Adults 8 years. Children 4 years.
Deportation = Migration act 1958 (CTH) migrant in Aus, who aint a citizen,
may be deported if tried and convicted of a criminal offence. Extremely serious
and controversial, its not solving its just moving the problem elsewhere, kinda
dog as well move away from family and stuff, people who have been living in aus
for ages can fall in this category. Adding onto deportation if they are a threat to
Aus, they may not be allowed to ever come back.

GOOD
statutory and judicial
guidelines means that limits are
placed on a judges discretion
ensuring sentence consistency
aggravating and mitigating
factors ensure that penalties are
appropriate for each individual
victims impact statements
give the victim a role in the court
process, and may assist in the
rehabilitation of the offender
sentencing appeals allow
higher courts to supervise the
discretion of lower
magistrates/judges
circle sentencing helps to
reduce cultural barriers between
Aboriginal people and the courts
preventative detention
protect the community from
possible harm
Sexual offenders registration
monitors offenders to minimise
their risk of reoffending while still
allowing them to reassimilate into
society

BAD
mandatory sentencing doesnt
allow a judge to consider
circumstances when sentencing
rehabilitation programs for some
offenders may result in inconsistency
in sentencing
it may not always be in the best
interests of the victim to give a
victims impact statement
imprisonment may have a
negative impact on the prisoners
behaviour and therefore not
rehabilitate them
protective custody restricts
prisoners access to work and
education programs
preventative detention violates
ICCPR

Young Offenders
Age of Criminal Responsibility
Children treated differently. In NSW, children under 10 dont have the mens rea
to commit a crime, this is referred to as doli incapax. This is under the Children
(criminal proceedings) Act 1987 (NSW)
No age limit for giving evidence, however below 10 is quite weird. 10 -14 year
old kids may know but still fall under doli incapax, court will have to view the
mental aspect of the offender. Case where the kid thew the other into the lake,
who couldnt swim.

The rights of Children when questioned or arrested


Identification
Police have the power to ask what your name and address is, if they have
reasonable grounds that the person can help them investigate an indicatble
offence, situations relating to vehicles and traffic, an offence on trains.
Right to silence
They have the right to silence, as things they say may be used against them in
court. (think about it, may not be true but you blabber about it anyways, and its
now evidence) Advise to wait till legal advice.
Right to support of a responsible adult
When kids dont know their extent of rights. Section 13 of Children (criminal
proceedings) Act 1987 (NSW) any info from a child gives to polie will be
inadmissible unless, responsible adult present (guarding, lawyer, parent)
Searches
Powers with adults and children are the same, except for strip searches. Lepra
act 2002 (NSW) police cant peform strip search on a child under 10. 10-18
someone adult has to be present. Above 14 both parties must agree on the adult
present.
Arrest and Interrogation
Similar powers between adults and children.
Detention and ID
Children can be detained up to 4 hours.
Forensic Procedures, photos and searches
14 + photographs and fingerprints allowed. Under 14, police must apply to
childrens court. If person is acquitted or case dismissed, discontinued, police
must destroy fingerprints, DNA, photos.

Childrens Court procedures and operation


Childrens court is a special court remember (coroners court and environmental
court). They run under the Childrens (Criminal Proceedings) Act 1987
(NSW)
Special magistrate, trained to deal with youth. Childrens court only hears
summary offences. No jury. Indicatble offences heard by a higher court.
Section 6 of the Childrens Criminal Proceedings Act 1987 (NSW) requires the
court to show regard for the following main principles:
1. Children have rights equal to adults and have a right to be heard
and participate
2. Chlidrens are responsible for their actions but require guidance and
assistance
3. Education of a child should proceed without interruption
4. A child should be able to reside in their home
HOWEVER IN THE CHILDRENS COURT AND CHILDREN IN HIGHER COURTS WILL
HAVE SPECIAL PROCEEDINGS such as..

Childrens court will just be heard by one specialy trained magistrate, (NO
JURY)
Conducted in a closed court (members of the public are restricted)
Media cant publish name of any child involved in the case unless judge
says so or kid is deceased
Courts in childrens proceedings will have to follow under section 6 of the
Childrens (criminal proceedings) act 1987 (NSW)
The court must take measures to make sure the kid understands whats
going on
Sentencing and penalties is obviously different.
Detention very unlikely!

THE CHILDRENS COURT CLINIC is an arm of childrens court and is established


under Childrens court act 1987 (NSW). The main role is to make clinical
assessments of a child in a particular case, writes a report on the child to the
courts who then makes a decision best for the child. Child gets assessed by the
clinic after being found guilty of an offence but before they are sentenced. These
assessments are mental based, drug and alcohol tests, violence, sexual abuse.

Penalties for Children

PURPOSE IS REHABILITATION which is consistent to UNs convention on the


rights of the child.
Section of 6 of Children (criminal proceedings) act 1987 (NSW):
1. Penalty imposed on a child shorter than that of an adult for the same
offence

2. Children should be assisted with reintergration into the community to


sustain ties to their family and friends
3. Childrne accept responsibility for their actions and if possible make
reparation for them
4. Subject to other principles, consideration should be given to the victim
MITIGATING AND AGGREVATING FACTORS are relevant in sentencing. Victim
impact statement is there. Less severe punishments.

Childrens Sentencing options under section 33 of the CHildrens


(criminal proceedings) Act 1987 (NSW).
DISMISSAL

CONVICTION

ADJOURNMENT

BOND

YOUTH JUSTICE CONFERENCE

FINE

PROBATION

COMMUNITY SERVICE ORDER

The court can dismiss the charge


without punishment or conviction, but
may decide to issue a caution to
the offender.
For young offenders, the court can
decide whether to record a conviction,
but for children under 16 years old no
conviction can be recorded
The sentencing can be adjourned or
deferred for up to 12 months, to
assess the childs prospects of
rehabilitation, and reconsidered at
that later date.
Release the child on a good behaviour
bond for up to a maximum of two
years, with conditions that the court
sees fit to impose; it can also be
combined with a fine.
Release subject to the child complying
with a youth justice conference
outcome plan (these are discussed
later in this chapter).
A fine of up to 10 penalty units
($1100), but the court must take into
account the childs age and ability to
repay it.
A bond with a probation order of up to
two years, overseen by an officer of
NSW Juvenile Justice.
A community service order is a severe
penalty, and can be made for up to
100 hours if the child is under 16, and
up to 250 hours if they are 16 or over;
an assessment (as mentioned earlier)
is required to confirm if the child is
suitable for a community service
order.

SUSPENDED CONTROL ORDER

CONTROL ORDER

Similar to a suspended sentence, a


court can suspend a control order (see
below) for up to two years, subject to
good behaviour.
A control order is the most severe
penalty, and is similar to an adult
sentence of imprisonment except it
involves detention in a Juvenile Justice
Centre; the maximum time a child can
be sentenced to a control order is two
years.

Alternatives to Court
Anything that can reduce the likelihood of children becoming repeat offenders
has merit and any diversionary programs that can reduce societys dependence
on the criminal justice system should be examined for practicality and
effectiveness. THESE INCLUDE:
Warnings: official notice given to a young offender without any conditions
attached. Used to keep young offenders out of the court system.
Cautions: Formal record, recorded, this can be taken account into the childrens
court. Decided whether a caution is needed or youth justice conference.
Youth Justice conferences: Allow defendant to allow the offender to take some
responsibility for their actions, promote how their actions have impacted the life
of the victim and their family.

Effectiveness

YOUNG OFFENDERS ACT GOOD, diversionary programs to find solutions


to youth offending, encouraging rehabilitation as a huge prority.
HOWEVER YOUNG OFFENDERS ACT its not used for a wide enough range
of offences and therefore excluding some young offenders from the
benefits that the young offenders act offers. For example youth justice
conference can be used in more severe offences.
EFFECTIVENESS OF THE CRIMINAL JUSTICE SYSTEM REGARDING YOUTH
OFFENDERS

Stats from Australian Institute of Criminology show the rate of detention


for young offenders has decreased 50% since 1981

Custodial sentences have proven to not effect the likelihood of reoffence


(2009 study)
JUVY is 150000 per year.
Juvenjile Justice NSW spends 100-170 million dollars every year on
detention
Young offenders act good at diverting kids away from custodial sentences.

POSITIVE
Doli-incapax: 0-9 years
Provided free legal aid
Entitled to have someone present
when police interrogate them
No criminal record for indictable under
16
No strip search under 10
Under 18, no DNA sample without
court order
Childrens court is specialty and is a
closed court
Media is limited and cant release
personal material
No jury
Diversionary sentencing
Childrens court clinic- psychological
checks
Childrens (Criminal Proceedings) Act
1987 NSW reintegration and no
sentence greater than adults
Alternatives to court

NEGATIVE
Grave adult behaviour
Criminal record is up to judges
discretion
Children and adults are treated
differently therefore inequality in
society
Costs $150 000 to hold a young
offender in prison
NSW spends lots of money on
imprisoning, whereas some should
be spend on prevention like VIC
Circumstances for arrest are same
as adult and children, therefore bad
for child as they should be treated
differently as they are more at risk
of danger
Doli incapax is very vague,
therefore very unequal in childrens
treatment in court
Lack of rehabilitation in juvenile
justice centres
Lots of kids are in remand yet half
of them will not be given a custodial
sentence
Increase in recidivism rates

Themes and Challenges

The role of discretion in the criminal justice system

Discretion is a judgement on something.


Discretion is used by applying princples, values and facts. Discretion of police
and judges significantly important but in reality, discretion is used from the
planning of the crime by the offender, reporting the crime by victims and
witnesses, police investigation, the DPP role (DPP = Director of Public
Prosecutions) in taking the court to case, charge negotiaton and judicial
discretion.
Discretion in the criminal justice system also continues in post sentencing
decisions to the extent of detaining serious offenders in prison past there
sentence period.
Discretion acknowledges that the law can be a blunt instrument in delivering
justice. Allowing individual circumstances to be taken into account when applying
the law.
Balances the rights of the community with the rights of the individuals, the
accused and the victims.
Addresses the tension.
Police exercise discretion every day. They have discretionary powers of arrest in
certain matters and have discretion in exercising their power. Making informed
decisions whther to take the crime further.
The jury has discretion which determines the final say in the case and deems
whether the accused is guilty or nah.

issues of compliance and non-compliance in regard to criminal law


Compliance means when you obey something. So non compliance means not
following the law.
Things that affect non-compliance are:
1. Social economic status people who have been cheesed on by life and
feel no need to follow the law
2. Political reasons
3. Genetic born not made
4. Self interest and greed greed, white collar crime
Ways to increase compliance is
1. Crime prevention (situational and social)
2. More effective investigation of crime
3. Better emphasis of rehabilitation in youth sentencing (youth justice
conference)
4. Purpose of punishment

the extent to which law reflects moral and ethical standards


Statute and common law and international law reflect moral and ethical
judgements on what right and wrong #tru
Law becomes irrelevant over time due to the change in moral and ethical
standards of society. Laws are always for the best interest in society (they are
designed that way). For example much different perspective of domestic violence
back in the 50s than now. Same sex marriage (bills) are now much more in hot
debate. Birth technology.
the role of law reform in the criminal justice system...
Law reform is when the law changes.
Law reform commissions, Parliaments (bills), courts and non legal measures can
change the law to match societys moral and ethical standards ^^^^^ and how
things around them are changing ie technology.
the extent to which the law balances the rights of victims, offenders and
society
In many instances, protection of societys rights (As a whole) outweighs the right
of an individual. For example anti-terrorism legislation (14days in custody) or
restriction in bail laws where individual liberties have been eroded for societys
sake.
Police powers against the right of suspects (right to privacy and all that, right to
silence) or the criminal trial process (if legal aid isnt provided <negative on the
means? Test> no legal aid)
The (in)ability of the International Criminal Justice system to bring down people
responsible for mass catastrophes.
the effectiveness of legal and non-legal measures in achieving justice.
LEGAL MEASURES include every process and institutions (everything) within
the law to deal with the criminal justice system. PICK law responses for young
offenders!!
NON LEGAL MEASURES NGOs, how the media can affect law making,
communities.

HUMAN RIGHTS

Nature and Development of


Human Rights
Definition of Human Rights
Human Rights are rights that are possessed by every single human being on
Eart, despite culture, age, religion, appearance. They are layed forth in the
Universal Declaration of Human Rights (UDHR) which was made after world war 2
to avoid another catastrophe.

INTERNATION BILL OF HUMAN RIGHTS CONSISTS OF THE:

UNIVERSAL DECLARATION OF HUMAN RIGHTS (1948) (UDHR)


INTERNATIONAL COVENANT of CIVIL and POLITICAL RIGHTS (ICPR)
INTERNATIONAL COVENANT of ECONOMIC, SOCIAL AND CULTURAL
RIGHTS (ICESR)
*these ARE TREATIES*

Developing Recognition of Human Rights:


1. Abolition of Slavery slavery was the thing back then, its how things
got done, but its bad.
After world war 2 the UN stated that slaverys bad: ARTICLE 4 OF UDHR
The last state to abolish slavery was 1981.
Slavery still exists today in the form of sex slaves, human trafficking, child
labour, force slavery
Found in UDHR AND ICCPR.
International Labour Organization UN agency registers complaints
and conventions to promote better workplaces and work rights. DOESNT
enforce.
R v Dobie 2009 human trafficker with intent to make Thailand girls sex
slaves
2. Trade Unionism and labour rights protecting worker rights. Trade
unionism = allowing the right of workers to join together
ILO
FAIR WORK ACT 2009
WORCK CHOICES ACT 2009
3. Universal Suffrage suffrage means the right to vote in a democratic
election.
Article 21 of UDHR
Article 25 of ICCPR
4. Universal Education I
CESCR article 13 and 14
UNESCO has the 'Education for All 'program.

5. Self-determination means right of political independence, its a


collective right meaning it belongs to a group of people.
choose own government arrangements or political system, no
interference with by any other country
Self determination was recognized through the treaty of
Westphalia 1648
UN Charter 1945 article 1 other countries can't interfere with
other countries
Two ways for self determination
External become separate state/country
Internal to be given some level of autonomy (ability to make political
decisions), but stay within the country. 'Self government'
Groups have the right to secede (separate) and form their own country
e.g. Taiwan from China
6. Environmental Rights - UDHR and ICCPR no specific mention of
environmental rights
The Stockholm Declaration 1972, first major agreement, recognises
responsibility for protecting the environment.
The internal government panel on climate change (2007) = more than
90% likely that climate change is caused by human activity
No binding environmental rights, since 1972 almost 1500 treaties
signed, relate environmental quality and human rights.
7. Peace Rights
Article 1 of the UN Charter 1945 main purpose of the UN maintenance
of international peace and security
Article 2 of the UN charter all member states shall settle their
international disputes by peaceful means.
Declaration on the rights of peoples peace 1984
The maintenance of a peaceful life for peoples is the sacred duty of each state.
No legal right to peace, just programs to try and create and facilitate
alternative arrangements to war

Formal Statements of Human Rights


Universal Declaration of Human Rights (1948):

Not binding, the UDHR got split into two conventions in 1966 and became active
in 1976
o
o

ICCPR
ICESR

THEY ALL UNDER INTERNATION BILL OF RIGHTS


Human Rights Comitee hears complaints brought by other countries and
individuals against their own government
some countries pick and choose which parts of the Internation
Covenant of Civil and Political Rights
e.g Toonen vs Australia (gay intercourse in their home, privacy)
UN suggested 26 recommendations to improve human rights in
Australia (this shows no enforcement, and choice whether to ratify)

Promoting and Enforcing Human


Rights
In the International Community: State Sovereignty
State sovereignty is that individual states have the right to govern themselves
and to determine their own destiny. Other nations or organisations have no right
to interfere in the internal affairs of another nation. This means a state can
choose whether to ratify international treaties.
The role of:
United Nations: established with the signing of the UN Charter (treaty of the
IGO the UN) in 1945 after world war 2. Its the principle international organisation
with responsibility for almost aspect of international affairs, including human
rights. The UN consists of FIVE organs, as well as a large of agencies, and
comittees. Including
1. UN GENERAL ASSEMBLY (UNGA) all member states have equal
voting power, in the form of internation discussions, deliberations,
declarations and reccommendations, which may relate to human
rights.
2. UN SECURITY COUNCIL (UNSC) responsible for maintenance of
international peace and security, has power to authorise military action
and other measures. (THINK OF HALO) 5 permanent member who can
veto (cheese where one of them vetoes, it doesnt get passed) also 10
non permanent. Permanent is FRANCE, USA, CHINA, RUSSIA,
ENGLAND.
3. UN HUMAN RIGHTS COUNCIL (UNHRC) UN form of member states
responsible for overseeing and making recommendations on human
rights in all member states. (This is the one that suggested changes to
Aus in 2009)
4. ECONOMIC AND SOCIAL COUNCIL (ECOSOC) UN organ acting as
a forum for international economic and social cooperation and
development
5. OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS
(OHCHR) UN human rights office responsible for monitoring and
reporting on human rights worldwide
6. INTERNATIONAL COURT OF JUSTICE (ICJ) the principal judicial
organ of the UN, has jurisdiction to hear disputes submitted by member
states and issue advisory opinions.
Intergovernmental Organisations: IGOs are created by agreement between
states each having international treaties that acts as a charter outlining the
organisations purpose and operation.
NATO
Courts, Tribunals and Independent

European Court of Human Rights it hears applications alleging that a


contracting states has breached one or more of the human rights provisions
concerning civil and political rights.
IGO and Courts in general struggle with....
1. massive number of new cases
2. endemic nature of the abuses - governments are systematically abusing HR
3. challenging of authority

Statutory Authorities ICC ICJ


Non-Government Organisations (NGO)

NGOs don't have the power to enforce human rights, but promote.
NGOs take different actions to stop human rights abuse..
Direct Action- Letters, faxes, email, writing to those directly who can stop
the abuse.
Indirect Action- publishing reports about abuse. 'Naming and shaming'.
Amnesty International

Worlds largest NGO, with about 3 million members.

direct action = main operating

Able to report to the UN and participate in UN conferences.

The Media

report human right abuses to the public

Media promotes human rights, as society thinks it is important or


newsworthy.

Deters government from abusing or denying human rights, government


not wanting 'bad publicity'.

Influences society as a conscience trigger = donating or joining an NGO.

Problems with international media


Journalist may not be allowed to report
-e.g. (North Korea) 'The Big Lie' journalist are not allowed to report
on human right issues, or must be positive about government.

Some types of media, newspapers, TV, radios don't want to report


on HR issues.
- Interested in positive stories and celebrities.

Some people are not allowed access to media reports on HR.


-e.g. people can get arrested for listening to BBC Radio in Myanmar

The incorporation of Human Rights into domestic (Australian) Law


Under Australian Law, signing a treaty doesnt mean anything its not
enforceable. The treaty will need to be incorporated into Australian Law. When
the commonwealth ratifies a treaty, Parliament will pass legislation that echoes
the words of the treaty or changes laws to incorporate the treatys obligations.
STATUTE LAW

The roles of:

The Constitution including division of powers and separation of powers


the constitution has two important roles in protecting human rightst in Aus

It lays down the system of Australian government through which human


rights are recognised including the separation of powers and division of
powers
o Seperation of Powers o Division of Powers
Its the source of some specific human rights including express rights and
implied rights.

Statute Law In recent years the commonwealth, states and territories have
enacted a large body of Statute Law to protect human rights in Austalia.
Imporatn ones include:

1.
2.
3.
4.

Racial Discrimination Act 1975 (CTH)


Sex Discrimination Act 1984 (CTH)
Australian Human Rights Comission Act 1986 (CTH)
Anti Discrimination Act 1977 (NSW)

Common Law Some fundamental rights protected by common law include the
right to a fair trial, burden of proof, presumption of innocence. Rights in common
law arent absolute and can be removed by legislation (LAW REFORM). Not
reliable to develop new rights, as judgements can only define those rights on and
ac hoc, case by case basis.
Courts and Tribunals Non-Government Organizations The Media A Charter of Rights (arguments for and against)

Investigate a contemporary issue which illustrates the promotion and/or


enforcement of human rights.
REFUGEES
A refugee is defined as an individual who is forced to leave their homeland due
to fear of prosecution, results of natural disaster, war and changing
environments They take refuge in a foreign country in hope of gaining legal
protection.
The terms asylum seeker and refugee are often used interchangeably, but the
two groups have different legal status. An asylum seeker is a person who has
sought protection as a refugee, but whose claim for refugee status has not yet
been assessed. Some asylum seekers are refugees, others are not. If they are not
found to be a refugee, they may be sent back to their country of origin.
Another common misnomer is economic refugee. The correct term for a person
who leaves their country or place of residence because they want to seek a
better life is economic migrant.

Themes and Challenges: Assess the effectiveness of legal and non legal
measures in protecting human rights

Legal :
Developing recognition of Human rights
Formal statements of human rights
State sovereignty
The role of:
o United Nations
o IGO
o Courts tribunals and independat
o Statutory authorities
Incorporation of HR into domestic law
The roles of (IN AUS):
o Constitution including division of powers and separation of powers
o Statute law
o Common law
o Courts and tribunals
REFUGEES (policies)
Non Legal:
The roles of NGO and the media
The role of NGO in aus and media in aus

Non Legal:

FAMILY
Definitions:

Family - Nuclear family is a group which consists of one or two parents and their children.
The main restriction to family is people sharing the same blood which includes cousins and
grandparents and further spouse. However, the concept of family has evolved over time and
it now isnt restricted by blood relations. There are options for adoption which allows the
addition of people under a familys registry. Also, family could relate to the relationship with
friends and other adults which are seen as similar to that of an absent brother/ sister/ parent.
Family Law Family law is a category of the law that deals with domestic and
family relation matters. This could include marriage, adoption, divorce, child
abuse.
Marriage: A voluntary union between a man and woman to the exclusion of all
others, for life. This is stated in The Marriage Act (cth) 1961. There are
requirements and several proceedings to make it official.
Mutual Duties - Mutual duties can be defined as a husband and wife who are mutually
responsible for one another. The law does not intervene with how partners carry out their
duties. Only if they have broken their marriage duties and either one or both parties have not
fulfilled their responsibilities the law will intervene. There is no law for partners to support
each other or remain faithful but it is assumed they will. There is no law for automatic sexual
relations, if someone engages in sex with their partner who has not given consent they are
breaking the law.
Defacto Relationship - A de-facto relationship is when 2 non-married or non-related people
live together on a genuine domestic basis.
Polygamy - Polygamy is a marriage that involves a spouse having numerous partners.
(Marries more than one)
Blended Family - family that is created when a parent remarries; it includes the
stepmother or stepfather and stepchildren
Extended Family - a family that includes individuals related through marriage
or parentage and not limited to one couple and their children; in some cultures,
close family friends are regarded as members of the extended family
Celebrant - a person who is authorised to perform a civil or religious marriage
ceremony
Annulment - a declaration by a court that a supposed marriage is in fact void
Prohibited Relationship - Prohibited relationship is a marriage forbidden between people
by the law due to the close relationship between them such as direct descendants or siblings.
Marriageable Age - A person may marry at the age of 18 (s 11). If either of the parties wanting to
marry is between the ages of 16 and 18, he or she must apply to a judge or magistrate for an

order authorising the marriage (s 12). Such an order will only be granted in circumstances that
are sufficiently exceptional and unusual: for example, if the couples parents consent and/or if
the couple are shown to be mature and financially independent. Pregnancy alone will not
guarantee an order. No person under 16 can marry.
Notice of Marriage - notice of intended marriage form must be signed by both
parties, with a witness. One month and one day at least, 18 months maximum.

Void Marriage - A marriage can be declared void, or invalid, if it fails to meet


the definition of marriage; if, for example:
the parties were of the same sex
consent was not freely given by one of the parties
one or both parties at the time of the marriage were married to someone else.
A marriage may also become void if the marriage fails to meet the criteria for a
valid marriage; if, for instance:
one or both parties were too young
the parties are too closely related, by blood or marriage
the marriage did not meet the requirements set out in the Marriage Act 1961
(Cth). If a marriage is found to be invalid, the court can nullify the marriage. This
(annulment) means that the marriage, in the eyes of the law, is deemed to have
never taken place because it was illegal.

Maintenance Will

Maintenance:

In a divorce or separation, the money paid by one spouse to the other in order to
fulfill the financial obligation that comes with marriage. The support which one
person, who is bound by law to do so, gives to another for his living; for example, a
father is bound to find maintenance for his children; and a child is required by law to
maintain his father or mother when they cannot support themselves, and he has
ability to maintain them.

Child Support

Child support is an ongoing, periodic payment made by one or both parents for the
financial benefit of a child following the end of a marriage or other relationship. Child
support is typically paid until 18 and the amount varies according to parents income,
percentage of care each parent provides for the children and the childrens ages.

Spousal maintenance:

Financial support paid by an individual to their former partner in circumstances where


the applicant is unable to adequately support themselves.

Will
A legal instrument used to distribute one's estate. However this only becomes effective after
he or she deceased. Legal document which specifices how an individuals property and

assets are to be distributed following his or her death. It has to be done through a solicitor
and not just like a text message saying you can have my shit. If you have no family it goes
straight to the government.
Probate - a legal document issued by the court, certifying that a will is true and correct
(proved), and authorising the executor to administer the estate
Spousal Support
Child Support
Joint Tenant
Tenants in Common
Ex-nuptial In the past, ex-nuptial children (they used to be called illegitimate) had no legal
status and therefore had no legal rights. Legitimacy was important because it provided a
child with certain rights, such as inheritance and maintenance. Legitimacy automatically
existed for a child if the child was:
born during marriage that is, was a nuptial child
ex-nuptial, but the parents of the child later married
adopted.
The Children (Equality of Status) Act 1976 (NSW) 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. Later Acts have reinforced the status of ex-nuptial children. All children have the
right to be cared for by their parents. The Act allows a presumption that those who say they
are a childs parents are in fact the childs parents (this is called the presumption of
parentage); evidence has to be provided to a court to disprove that. Parentage can be
established through DNA analysis of a blood, or through the parents voluntary recognition of
the child as his or hers

Single Parent Family - A family with only one parental figure.

Succession Legislation - Families and personal relationships can be complex, so the


Court has flexibility to define to find out the beneficiaries of a will.
The Family Provision Act 1982 was gotten rid of when the Succession Amendment (Family
Provision) Bill 2008 was introduced in March 2009. Chapter 3 of the Succession Act 2006,
titled Family Provision, is designed to ensure that provision is made to certain defined
eligible people. Whether or not there was a Will and whether or not the eligible person was
mentioned in it. So basically, this Act looks after the Will and the complications and details
attached to it.

The Nature of Family Law

The Concept of Family Law

Definition of Family in the Family Law Act 1975: The Natural and fundamental
group of society, particularly while its responsible for the care and education of
dependant children.
The main function of the family are:
1)
2)
3)
4)
5)
6)
7)

Provision of housing, food and clothing


Care and protection of children, the elderly and the ill and less able
Emtional and psychological support of family members
Stability and Security
Economic Support
Socialisation of Children
Encouragement and Development of Family members to their full potential

Family Law has been developed to protect the family (unit of society) and all the
individual members within the family. For example both the mother and father
should have equal right regardless of the relationship.
As time goes on the definition and perspective of family changes, as society has
changing trend which change family arrangements. Because of this diversity of
the family in society today the definition cannot be too narrow and must consider
a greater range of aspects influencing family such as:
1) Size of family has gotten smaller
2) Marriage is still starting point of family, De Facto relationshops (mum &
Dad), and same sex relationships are becoming more legally recognized
and socially accepted
3) Single parent and blended families are being more common
4) Birth technologies and adoptions are more commonly used these days for
same sex technologies
Legal Requirements of Marriage
Legal Definition of Marriage A voluntary union between a man and
woman to the exclusion of all others, for life. This is stated in The Marriage
Act (cth) 1961
(NOTE: The For life element no longer applies under Australian Law with
the Family Law Act 1975 (cth) being introduced. This allowed divorce.)
Requirements:
1) Gender In 2004, the Commonwealth Government passed the marriage
amendment act to add the definition of marriage to the marriage act
(cth) 1961. Section 5(1) of the act defines marriage as union of MAN AND
WOMAN. Section 88AE says that foreign marriage of same sex will not be
reconginsed in Australia.
2) Marriable Age Section 11 states the youngest age to marry is 18.
However if someone 16-18 wants to marry, they must apply to a judge

and magistrate for approval. However this is unusual. For example misss
depressing example.
3) Prohibited Relationships A person cant marry anyone whos related to
blood, or someone whos married already. So for blood its: Aunt, Uncle,
Cousin, Brother, Sister, Mum, Dad, Grandma, Grandpa. Half siblings,
adopted ancestors.
4) Notice of Marriage notice of intended marriage form must be signed
by both parties, with a witness. One month and one day at least, 18
months maximum.
Valid Marriage Ceremony there must be two witnesses present over 18.
There are 3 types of ceremonies
1) Religious
2) Civil
3) International
Void Marriages - A marriage can be declared void, or invalid, if it fails to meet
the definition of marriage; if, for example:
the parties were of the same sex
consent was not freely given by one of the parties
one or both parties at the time of the marriage were married to someone else.
A marriage may also become void if the marriage fails to meet the criteria for a
valid marriage; if, for instance:
one or both parties were too young
the parties are too closely related, by blood or marriage
the marriage did not meet the requirements set out in the Marriage Act 1961
(Cth). If a marriage is found to be invalid, the court can nullify the marriage. This
(annulment) means that the marriage, in the eyes of the law, is deemed to have
never taken place because it was illegal.

Alternative Family Relationships

Alternative Family Relationships

De Facto Relationship
Polygamous Relationships
Customary Marriages
Same sex Relationships
Single Parent Families
Blended Families

ASTI Customary Law and Marriage

ATSI marriage cannot be officialy recognised under Australian Law because of


their customary nature reather than fitting into the legal definition in this
country. The clashes include:

Age Reguirements
May not be voluntary
Not written
May be polygamous
May occure between people of prohibited relationships

Why do you think these marriages are not recognised under Australian
law? Is this just? Why or Why not?
Thesse marriages are not recognised under Australian law as the traits that are
possible under ASTI Marriages directly contradict the Australian law. For example
ASTI marriages can be between prohibited relationships (such as family) as well
as Poligomy, all of which arent legal under Australian law. As well as the age
requiremetns not being present and the lack of written documentation. I believe
it is just because law aims to benefit/fufill the expectations of society and
therefore, some aspects of the ASTI marriages will be deemed unacceptable by
the rest of society.
Single Parent Families
Single parent families are defined as one parent raising one or more children,
alone. This may be due to marriage breakdown, child birth without being married
or death of one parent.
Blended Families
A blended family is defined as a couple and children living together, but the
children were not actually conceived by the couple but rather with other spouses
Same-Sex Relaationships
Same-sex relationships are families where the couple is of the same gender.
Sometimes this includes children. Same sex couples are now recognised as
having the same rights are heterosexual couples.
De Facto Relationships
In 1984 de facto relationships were first recognised as being equal to marriages.
At first this was only for heterosexual couples but has now being amended to
include homosexual couples as well. This court determines each case separately
to determine if it is a fact a de facto relationship. These are the factors that the
court uses to make its decision:

Care of Children
Duration of the relationship usually must be at least 18 months but more
commonly 2 years
A sexual relationship is present
Common ownership of property
Degree of mutual commitment
Common living space/residence
Sharing of household expenses/residence

If a de facto relationship ends then the couple can divide their property and
finances providing the relationship have existed for 2 years.
Child support must be paid to any children born out of a de facto relationship just
the same as from a marriage. This is because the Family Law Act states that a
parent must always provide financial support to any children conceived.
Spouses are also entitled to spousal maintenance just as divorced couples are.

Legal Rights and Obligations of Parents and Children

Parental rights:
Parental rights stem from a parents position as guardian and they have the auth
ority to make decisions on: Name Residence Education Religion
Citizenship Medical treatment o
Parental statutory authority comes under the Family Law Act 1975 (Cwlth).
Changes have occurred within the Family Law Reform Act 1995 (Cwlth) and t
he Family Law (Shared Parenting) Amendment Act 2006 (Cwlth).
These changes have moved the law away from any notion of children being owne
d by their parents. However, parental responsibility diminishes as their child gro
ws older.
Gillick v. West Norfolk and Wisbech Area Health Authority and Anor
[1985]: This case determined that a child may make their own personal
lifestyle choices from the age of 14.
Parental obligations: Parents are obliged to ensure their child receives an edu
cation and pick
it. They are responsible for disciplining their children, however it must be done
moderately and appropriately. A cupped hand against the buttocks is
appropriate for necessary correction of young children. Causing injury is
against the law.

Children:
Children need special care and protection, with governments showing greater co
ncern with recognizing and protecting the right of children.
However, the care and protection of children is no longer only left up to
the parents, as decided in re Marion [1991]:
Marion was 13 years old and had reached puberty, but due to her
intellectual disability, deafness and epilepsy her parents applied
for her to have a hysterectomy; relieving the stress of
menstruation. Justice Nicholson disagreed to the parents wants saying that it int
erfered with the right to bodily inviolability and the right to reproduce.

Convention on the Rights of the Child [1989]: o


This convention recognises the fact that children, because of their
vulnerability, need special care and protection, and it places special
emphasis on the primary caring and protective responsibility of the family.
The key components are:
The definition of a child a person less than 18, unless national

laws recognise age maturity earlier Nondiscrimination


Best interests of the child Survival and development

Adoption

Adpotion when biological parents legally surrender their parental rights and
responsibilities to another couple on a permanent basis. They obtain the same
legal rights as children born into a marriage, as stated under the Status of
Children Act 1996 (NSW)
Consenting to Adoption

For adoption to occur, there must be consent from the biological parents
If the mother and father are married at the time of adoption, then they
both have to consent. If theyre unmarried then only the mothers consent
is needed. However, in NSW the fathers consent is needed if the child is
from a de facto relationship.
The father of an ex-nupitial (bastard) child is only to be notified and has 14
days to apply for care for the child
Children over the age of 12 at the time of adoption consent to their own
adoption
Adopted children are placed on a contact register to allow their biological
parents to be placed in contact with them. The adoption act 2000
(amendment) (NSW) ADOPTION ACT 1982 (NSW) allows the adopted
children to obtain a copy of the amended birth certificate.
Overseas adoption increasing number of Australian couples are applying
to adopt children born overseas. Intercountry adoptions are governed by
the Hague Convention on the Protection of Children and
Cooperation Respect of Intercountry Adoption. And by bilateral
agreements between Australia and counties that havent ratified the
convention.
In NSW, prospective parents must apply through community service to
arragnge for an intercountry adoption. They will be allocated a child form
the other country, and if the parents accept the offer they may lodge an
adoption visa application, which is then forwarded to overseas weldare
agency.The child is subjecy to health checks.

Responses to Problems in Family


in Relationships
Divorce
Divorce is the legal dissolution of a marriage by a court or other competent body
The Family Law Act 1975 (Cwth) introduced a major change to divorce law.
Divorce was dealt with under the Matrimonial Causes Act 1959 (Cwlth),
which outlined 14 grounds for divorce, including infidelity, cruelty and desertion.
Through this, each spouse often saw the other as the enemy, and if they thought
the marriage was irretrievable breakdown. They had to wait 5 years to obtain a
divorce.
In 1975, major reform to family law, the Family Law Act, introduced no fault
divorce, which meant neither party was at fault for its breakdown. And focused
on the fact the irretrievable breakdown.
The introduction of Family Law act meant if one party of the marriage wanted a
divorce, they had to inform their spouse and separate for a period of twelve
months. They can lodge an application with the Family Law Court for a
cancellation of the marriage. At that point a discree nisi (court order that
doesnt have any force unless a particular condition is met. And one month after
that a decree absolute meaning the marriage is done.
This change is due to change in social values, society felt that people should be
trapped in unhappy marriages.
The law also allowed a couple to live separately and apart under one roof. This
made divorce easier for people who wanted to leave a marriage but who had
financial constrains that meant they were still living in the same home. A kiss
and make up clause allowed couples to reconcile without having to restart the
12 month separation. The law also required any couple within two years of their
marriage to undergo counselling. This aint successful doe, cos people wont go.
95% of divorces are settled out of court. Most couples, with help of a mediator,
can reach agreement over when children will spend time with each parent and
how the property of the marriage should be divided. The federal government in
2005 to assist couples in need of counselling and mediation by establishing
special Family Relationship Centres (FRCs). Established in 2006, and are
often called on to advices couples on how to make arrangements for the children
if a separation has occurred. The centres provide free joint dispute resolution
sessions for up to three hours. Family Relationship centres will screen for cases of
family violence and child abuse and refer people to support services.
Unfortunately, if matters relating to the divorced need to be settled in court,
there is often open animosity between the parties. Court procedures are still
adversial (judge judy) and parties often return to court to argue over issues that

emerge after the divorce. Court imposed resolutions rarely satisfy either party to
the divorce. Court processes are very expensive.

The two most important issues in relation to divorce are:


1) Who will the child or children of the marriage live with on a daily
basis and what contact will the non-resident parent have with any
children of the marriage?
2) How will the property of the marriage be divided?
Legal Consequences of Separation
Chlidren

Divorce proceedings involving children: PART 7 of the FAMILY LAW ACT


applies
o Section 60B states best interest of the child
Best interest of Child involves
o Ensuring the benefit of having both parents involved (meaningfully)
in their lives
o Protection from physical or psychological harm from being subjected
to or exposed to abuse, neglect or family violence
o Ensuring adequate and proper parenting to help them achieve their
full potential
o Ensuring parents fufill their duties and responsibilities, concerning
care welfare and development of their children
Several complications trying to aplly this
Shown in Harris v Harris (2009)
o Summary of the factors courts consider in deciding how to look after
the children.
The court said children would attend mothers requested
school cos she was at home more
The court wanted children to have quality relo with father and
that 2/3 weekends with their father.
Parenting Plan Plan is when the parents are mutual, and are able to
determine the living arrangements and other stuff for their children,
sometimes with the help of mediation. The agreement can be formalised
to make a parenting plan.
Parenting Order is when the parents remain in dispute about their
parental responsibilities and issues relating to their children, the Family
Court can impose Parenting Orders directing parents about:
o Living arrangements
o Time spent and communication
o Parental responsibility for the child
o Financial Support for the child
o Any other aspect
Child Abduction is a contuining trend. A parent wishing to avoid sharing
child, may decide to escape Australias jurisdiction.
The Hague Convention on the Civil Aspects of International Child
Abduction (1980) is an interntational treaty which does arrangements to
return the child whos been wrongfully removed

This is ineffective as a country who hasnt signed the treaty or if child is


difficult to find, there is little that can be done

Property

Division of property upon divorce is covered by s.79 and 75(2) of the


Family Law Act.
IF couple can reach an agreement on how maritial property is to be
divided before going to court, then they can apply for a Consent Order.
If they dont agree, they refer to a property settlement to the Family Court,
then there are clear guidelines for the court to follow.
o Consider financial and non financial contributions. De facto couples
can go to district court to gain a property settlement. In the past de
facto matters only involved contributions of each partner, as the law
didnt recognise long term commitment. But now they do.
The court looks at financial contribution by partners and also non financial
contributions.
o Domestic contribution made by a wife and mother is regarded as
equal of the mans if he goes out to work. Examplified in Marriage
of Kemp (1976)
o Courts assume 50/50 split to apply to property settlement then look
at other factors that affect their decision
o The longer the marriage, no children, more likely couple will cop
50/50.
o If children are going to live with one of the parents more, it will
usually entitle a bigger share to that parent.
o Courts may leave the selling of the maritial home until children are
older. An alcoholic parent can be banned from returning to the
marital home (Marriage of ODea) (1980). Other problems arise
when one spouse receives a large gift from their family after
marriage, but the relo breaks down afterwards soon.
o The Case of Moore and Moore (2008) outlines the court dealing
with a second propert 10 years after the first property. By that time
children had grown up. Court ordered 67 for mom and 33 for father,
whil children were still with mother
Father said its unfair contribution as wife spending, lack of
commitment to family and marriage. The court reviewed and
modern approach to property settlements and drew attention
to the partnership basis of marriage. The court ruled 50/50
split of the $2.25 million in assets of marriage.

Dealing with domestic violence


Domestic violence, verbal or physical, that is violent or abusive nature that
occurs within a domestic relationship.

65% separated mothers reported physical/emotional abuse


17% of fathers reported concern for safety of child
o Australian Insitute of Family Studies (AIFS)
CROC states no violence should be done against violence, neglect

Apprehended Violence Orders (AVO) imposed by local court through


Crimes Amendment (Domestic Violence) Act 2007 (NSW) restricts
behaviour and are common legal weapon against DV, can be obtained if
victim can prove on balance of probabilities that he or she on reasonable
grounds believes they are in fear.
o Takes affect after court hearing and approval and remains in force
for 12 monts, not charged with criminal offence unless breached
o Interim AVO obtained over telephone from magistrate up to 28
days and issued if police are satisfied that person seeking order is
at immediate risk of harm
o Provisional AVO remains in force until court hearing and is served
on defendant through means such as detaining the accused

The roles of:


Courts and dispute resolution
The Family Court of Australia was established in 1975, jurisdiction set by section
51 of Aus constitution. The court deals with matters relating to:

Parenting cases that may involve multiple parties


Parenting cases where the orders sought have the effect of preventing a
parent from communicating with or spending time with a child,
international child abduction and special medical procedures
Financial cases that involve multiple parties or issues such as complex
superannuation valuations.

Establishment of Family Relationship Centres in 2006 and operation of Federal


Magistrates Court has increased ability of mediation services. It also allows the
Family Court to concentrate on the most complex family law disputs. All divorce
matters where there are no allegations of abuse, are handled by the Federal
Magistrates court.

Not that effective tho because father waited 15 months for


prosecution, and wasnt allowed to see daughter in that time SMH
ARTICLE

Methods:
Counselling:

Under Family Law Reform Act 1995 tries to move disputes away
from court litigation
Counselling, mediation and arbitration are now the primary dispute
resolution methods used by courts.
Couples seeking divorce must attend a compulsory info session.
Mus attempy dispute resolution under Family Law Amendment
(Shared Parental Responsibility) Act 2006 (Cwlth)
Government supports coucelling
Compulsory coucelling not effective, because they wont be willing
to talk and or see eachoter, if there is violence before it could
actually be dangerous and not possible

Counselling is confidential and nothing said will be used as


evidence, unless child abuse and may report serious crimes or
threats of violence to the authorities.

Mediation:

Mediation used to reduce adversial nature of divorce which only intensifies


the beef
The FRC are designed to encourage mediation of family disputes and avoid
costly and time consuming court cases
A professional family and child mediator can help couples discuss issues
and works out how best to reach an agreement
The mediator doesnt impose a solution on the parties but helps them to
clarify the issues in dispute

LEGAL AID
Legal Aid Commission of NSW provides mediation services for family
disputes. Service provider for low income families. Luke BATTY
Non-Government Organisations
Role of NGOs is to support victims, they cant do anything legally.
Examples are:

Salvation Army
Dads in Distress
The Womens Legal Centre

The Media

The media can draw attention of the public to perceived injustices in the
system.
Has helped reduce Domestic violence.
Changes in social attitudes about many things family related.
Over the years men have felt disadvantaged under the Family Law Act.
The media attention influence heavily the changes in Family Law Act in
2006. The Family Law Amendment (Shared Parental Responsibility)
Act 2006 (Cwlth) has allowed more men to maintain contact or spend
time with their children following a divorce.

Shelter
Definition of Shelter
Right to Shelter
Obligation to provide shelter
Outline the roles of the state and federal governments in the provision
of housing in Australia
Legislation Title

Jurisdiction

Description

The Real Property


Act 1900 (NSW)

State

The Conveyancing
Act 1919 (NSW)

State

The Conveyancing
(Sale of Land)
Regulation 2005
(NSW)

State

Environmental
Planning and
Assessment Act
1979 (NSW) and
Amendment in
2008 (NSW)

State

Auctioneers and
Agents
(Amendment) Act
1992 (NSW)

State

Landlord and
Tenant
(Amendment) Act
1948 (NSW)

State

Landlord and
Tenant (Rental
Bonds) Act 1977
(NSW)

State

Defines titles to
land and, theh
rights of mortgage
holders and
administers
Protecting the
rights of all
involved in
contracts of sale
for property
Environmental
documentation
provisions as per
the legislation
below
Established the
EPA and ensures
that certain
environmental
documents are
attached to all
sales of property
Covers the
procedures that
must be followed
in an auction and
protects all parties
involved
Ensures fair rent
and empowers the
Rent Board to
monitor the
provision of fair
rent
Gives the functins
of the Rental Board
and outlines the
rules and

Buying/sellin
g or
Renting/tena
nts
BS

BS

BS

BS

BS

RT

RT

Residential
Tenancies Act
2010 (NSW)

State

Housing Act 2001


(NSW)

State

procedures they
must follow
The most
important piece of
legislation in
relation to renting
and being a
landlord.
Outlines the
rights and
responsibilities
of both parties
Established the
NSW Land and
Housing Board.
Their job is to
monitor the rules
and procedures in
relation to the
acquisition of
housing for
government
related projects.
They also conduct
studies to ensure
that the needs of
low income
earners are met in
the present and
future.

RT

RT
BS
Owners

Outline how the various political parties view of shelter is different


There are no significant differences between the housing policies of the major
political parties. The Liberal Coalition encouraged private ownership by
making laws to protect home buyers and make it easier for people to buy. The
Labor Party has also facilitated private ownership by building up the numbers
of homes available and assisting those who cannot afford to buy, particularly by
increasing the amount of money on offer under the first Home Owner Grant. Both
parties have provided some assistance to the poor and disadvantaged.
Basically:
Liberal = Earn in yourself but encourage private ownership
Labor = Want people to own their own houses, but are happy to give incentives
and assistance to help those purchase. IE First Home Owners Grant since July
2000 (Liberal gov) - $7000

Should the Australian Government provide grants so people who dont


have enough money can afford a house? Compile a list of arguments for
and against this notion.
No.
a) Support through taxes
b) Policies to assist those in acquiring shelter
c) Voting and consultation/commissions affordability
and the provision of public housing
d) Government funded personal to advise on rights and
regulations interpreters
e) Legislation to protect buyers and vendors AND
landlords and tenants
For: It allows people to have the right of shelter. Protects more people

Encourages Independence
Aims to keep people off the street
Allows for people to be (re)intergrated into society
Decreases inequality
Increases standard of living
Redistribution of wealth

Against: Shelter is an individual responsibility more than anything, the funds for
the grants would come from taxes which means people would have to pay more
tax.

Creates the incentive for people to do better and save for their own
home/discourages complacency
Responsibility, not a right
High Cost to government
Discourage investment property

Outline the three main ways that people acquire shelter. Give reasons
as to the choices that people make in regards to shelter.
The three main way that people acquire shelter such as:
1) Buying Shelter (private) They would make this decision as
jurisdiction allows them to have full control of their house,
allowing customisation and exercise what they want to do in the
house or on the house.
2) Leasing Shelter (Private) People would lease shelter when
3) Special accommodation (public) People would sought this if they
had trouble financially, and need a place to live. Someone who lives
in public housing, pay rent and dont own the property and are
called a public tenant as federal and state governments share the
cost of building and maintaining public units and houses.
1) Private housing: Buying
2) Private housing: Renting
3) Public Housing: Government Assistance
People may also

Borrow someone elses home, with permission


Short term accommodation provided by certain organisations
Housing NSW provided housing, with minimal rent
Use shelter to squat, illegally
Board or Lodge not covered by the RTA
Supported accommadtation retirement villages and aged or
specialised care
Hostel or apartment

Outline the key features of the following pieces of legislation:

The Landlord and Tenant Amendment Act 1948 (NSW) enforces


the concept of fair rent outlines rules about how a landlord must fix the
amount of rent and empowers the Fair Rents Board to determine what is a
fair rent
The Housing Act 2001 (NSW) Established the New South Wales Land
and Housing Corporation, which is managed by the Director-General and
has the task of acquiring land for present and future residential
development and for public purposes, with a view to enabling the
government to anticipate and meet the needs of low income earners and
the disadvantaged in seeking shelter
o Real Property Act 1900 (NSW) Defines titles o land and
includes rules about the process of transferring ownership of land,
the rights involved with mortgages, the lodgement of caveats and
the creation and extinguishement of covenants.
Type of Shelters
Legal Protection and Remedies assosciated with securing shelter
Purchasing including:
o Separate dwelling or shared space
o Private treaty or auction
o Systems of registration
o Sources of finance
o Protection for buyers
Leasing including:
o Rights and obligations of landlords and tenants
o Protection for tenants, landlords, boarders and lodgers
Securing other types of shelters such as: aged care, residential parks and
squats.
Dispute Resolution Mechanisms
The roles of:
o Courts and Tribunals
o Alternative dispute resolution
o Governmental Organisations
o Non-Government Organisations
o The Media

JUSTICE
Fairness
Equality
Protection of individual rights
Access
Equity