CAMBRIDGE

LEGAL STUDIES HSC

SECOND EDITION

Paul Milgate
Daryl Le Cornu
Ann Miller
Sarah Robinson
Tim Kelly
Kevin Steed

Contributions by:
Travis McGregor
L. Elaine Miller
CAMBRIDGE UNIVERSITY PRESS
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© Paul Milgate, Daryl Le Cornu, Ann Miller, Sarah Robinson, Tim Kelly, Kevin Steed 2010
Contributions by Travis McGregor and L. Elaine Miller
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Cambridge HSC legal studies / Paul Milgate … [et al.].
2nd ed.
9780521145909 (pbk.)
Cambridge legal studies
Includes index.
For secondary school age.
Law--Australia--Textbooks.
Law--Examinations--Study guides.
Higher School Certificate Examination (N.S.W.)--Study guides.
Le Cornu, Daryl.
Miller, Ann.
Robinson, Sarah.
Kelly, Tim.
Steed, Kevin,
349.94
ISBN 978-0-521-14590-9 Paperback
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Contents

About the authors vii

Acknowledgements viii
Introduction x
Using Cambridge Legal Studies – HSC xi
Glossary of key words xv

Part I: Crime xvi

C H APTER 1 – TH E N AT UR E OF C R IME 2
The nature of crime 4
Elements of crime 6
Causation 8
Strict liability offences 8
Categories of crime 8
Summary and indictable offences 20
Parties to a crime 20
Factors affecting criminal behaviour 21
Crime prevention: situational and social 23
Chapter review 26

C H APTER 2 – TH E C R IMIN AL IN VES T IGAT IO N PRO C ESS 28

Police powers 30
Reporting crime 31
Investigating crime 32
Arrest, detention and charge 38
Summons, bail or remand 40
Chapter review 42

C H APTER 3 – CR IMIN AL T R IAL PR OC ES S 44

Court jurisdiction: criminal courts 46
The adversary system 52
Legal personnel in a criminal trial 52
Pleas and charge negotiation 55
Legal representation and Legal Aid NSW 56
Burden and standard of proof 57
Use of evidence, including witnesses 57
Defences to criminal charges 58
The role of juries, including verdicts 61
Chapter review 64

iii
 C H APT ER 4 – S EN T EN C IN G A ND PU NI SH M E NT 66
Sentencing and punishment 68
Statutory and judicial guidelines 68
The purposes of punishment 70
Factors affecting a sentencing decision 73
The role of the victim in sentencing 76
Appeals 76
Types of penalties 78
Alternative methods of sentencing 84
Post-sentencing considerations 86
Chapter review 90

C H APT ER 5 – Y OUN G OF F ENDERS 92

Young offenders and the law 94
Age of criminal responsibility 95
The rights of children and young people when questioned or arrested 100
Children’s Court – procedures and operation 104
Penalties for children 107
Alternatives to court 110
The effectiveness of the criminal justice system when dealing with young offenders 112
Chapter review 114

C H APT ER 6 – IN T ER N AT IONA L C RI M E 116

Defining international crime 118
Categories of international crime 119
Dealing with international crime 126
The effctiveness of measures dealing with international crime 136
Chapter review 138
Themes and challenges for Part I – Crime 140

Part II: Human rights 142

C H APT ER 7 – T H E N AT UR E A ND DE V E L O P M E NT O F H U M A N RI G H TS 144
The definition of ‘human rights’ 146
Developing recognition of human rights 147
Formal statements of human rights 162
Chapter review 166

C H APT ER 8 – PR OMOT IN G A ND E NFO RC I NG H U M A N RI G H TS 168

Promoting and enforcing human rights 170
Human rights in Australian law 182
Chapter review 190

iv C am br i d g e L e g a l S t u d i e s – HS C
C H APTER 9 – CON T EMPOR ARY H UMAN R I G H TS I SSU ES 192
Introduction 194

Issue 1: Human trafficking and slavery 195

Contemporary slavery 195
Human trafficking and slavery 196
Extent of human trafficking 197
Responses to human trafficking and slavery 199

Issue 2: Child soldiers 205

205

C o ntents
Defining the issue of child soldiers
Extent of the issue 207
Responses to the issue of child soldiers 210
Chapter review
Issue 1: Human trafficking and slavery 216
Issue 2: Child soldiers 218
Themes and challenges for Part II – Human rights 220

Part III: Options 221

C H APTER 1 0 – O PT ION 1: C ON S UMER S 222

The nature of consumer law 224
Consumer redress and remedies 242
Contemporary issues concerning consumers 249
Issue 1: Credit 249
Issue 2: Product certification 252
Issue 3: Marketing innovations 256
Issue 4: Technology 259
Chapter review 262
Themes and challenges for Consumers 264

C H APTER 1 1 – O PT ION 2: GL OBAL EN VIR O NM ENTA L PRO TE C TI O N 266

The nature of global environmental protection 268
The development of global environmental law 271
The need for global environmental protection 274
The importance of ecologically sustainable development 277
Responses to global environmental protection 280
Contemporary issues concerning global environmental protection 296
Issue 1: The law’s role in relation to global environmental threats 296
Issue 2: The demand for resources and global environmental protection 299
Issue 3: Australia’s responses to international initiatives 302
Issue 4: Barriers to achieving an international response to global environmental protection 304
Chapter review 306
Themes and challenges for Global Environmental Protection 308

C ontents v
 C H APT ER 12 – OPT ION 3: FA M I LY 310
The nature of family law 312
Responses to problems in family relationships 329
Contemporary issues concerning family law 341
Issue 1: Recognition of same-sex relationships 341
Issue 2: The changing nature of parental responsibility 344
Issue 3: Surrogacy and birth technologies 346
Issue 4: Care and protection of children 350
Chapter review 354
Themes and challenges for Family 356

C H APT ER 13 – OPT ION 4: W O RK P L A C E 358

The nature of workplace law 360
Regulation of the workplace 374
Contemporary issues concerning the workplace 383
Issue 1: Discrimination 383
Issue 2: Safety 387
Issue 3: Termination of employment 392
Issue 4: Leave 396
Chapter review 400
Themes and challenges for Workplace 402

C H APT ER 14 – OPT ION 5: W O RL D O RDER 404

The nature of world order 406
Responses to world order 415
Contemporary issues concerning world order 433
Issue 1: The principle of ‘responsibility to protect’ 433
Issue 2: Regional and global situations that threaten peace and security:
The nuclear threat 435
Issue 3: The success of global cooperation in achieving world order:
East Timor and UN intervention 440
Issue 4: Rules regarding the conduct of hostilities:
International humanitarian law 447
Chapter review 452
Themes and challenges for World Order 454

Answers to multiple-choice questions 456

Glossary 457
Index 467

Student CD-ROM Contents

Additional material for the Student Book

C H APT ER 7 – T H E N AT UR E A ND DE V E L O P M E NT O F H U M A N RI G H TS

vi C am br i d g e L e g a l S t u d i e s – HS C
About the authors
Paul Milgate
Paul Milgate Dip Teach BEd
is Head Teacher of HSIE at
Xavier Catholic College on
the North Coast of NSW. He
has extensive experience in
Legal Studies, having taught
it since its inception. He was
a foundation member of the
North Coast Legal Studies
Teachers Association which
conducts student seminar
days and provides funding for
professional development in
collaboration with Southern
Cross University Faculty of
Law and Justice.
Ann Miller
Ann Miller BEd GradDipEd
Admin MEdAdmin is a
teacher at Sir Joseph Banks
High School. Her background
in over twenty-six years of
teaching includes Economics,
Commerce, Business
Management, Information
Technology, History and
Legal Studies. Ann is also
an experienced HSC marker
in both Legal Studies and
Economics.
Daryl Le Cornu
Dr Daryl Le Cornu BA (Hons)
DipEd PhD is currently HSIE
Head Teacher at Mount
Annan High School. He
has taught Legal Studies
for 16 years and is very
experienced in teaching
other senior humanities
courses. Daryl completed
a doctorate in 2005 on
the intellectual origins of
multilateral cooperation and
collective security in Britain
during World War I. He is an
experienced HSC marker for
Legal Studies and Modern
History. Daryl is also the
Education Program Officer
for the WCAA (World Citizens
Association of Australia)
and is a member of ACUNS
(Academic Council on the
United Nations System).
Sarah Robinson
Sarah Robinson BA DipEd
is Head Teacher of HSIE
at Sir Joseph Banks High
School, where she also
teaches Ancient and Junior
History. She comes from a
background of Modern and
Ancient History, Geography
and Commerce as well as
Legal Studies. Sarah has had
many years of experience in
both School Certificate and
HSC marking.
Tim Kelly
Tim Kelly BA DipEd DipLaw
obtained his BA DipEd from
the University of New South
Wales in 1984 and completed
his Diploma in Law from
the Legal Practitioners
Admissions Board in 1996.
He began teaching Legal
Studies in 1993 at St Mary’s
Maitland. Since 1998, Tim has
been the HSIE Coordinator
at St Mary’s in Casino. Tim is
also a tutor at Southern Cross
University in HSIE Curriculum
Specialisation and is a current
HSC marker for Legal Studies.
Kevin Steed
Kevin Steed BA LLB, BEd,
MEd(Hons), Dip Teach,
MACE, JP is Head Teacher
of Commercial Studies at St
Marys Senior High School
and holds degrees in Arts,
Law and Education. He is a
highly experienced teacher
of the social sciences, having
taught and programmed the
Legal Studies course since
its inception. Kevin has 20
years experience as both HSC
Marker and Senior Marker,
and has a detailed knowledge
of the associated marking,
judging and standards
referencing protocols. He
has authored articles for
professional journals in the
social sciences, particularly
in the curriculum area
of Society and Culture.
Throughout 2008, Kevin
worked in conjunction with
the NSW Institute of Teachers
as an assessor of Initial
Teacher Education programs
to facilitate the provisional
accreditation of newly
employed graduate teachers.
vii
 Acknowledgements
Thanks to my wife, Barbara, my daughter, Ebony,
and my son, Zach – a great team!
PAUL MILGATE
I would like to dedicate this book to the ‘Class of
2010’ HSC Legal Studies students at Mount Annan
High School.
DARYL LE CORNU
To all my family and friends, and especially Sandy,
thank you for your help and support. Sorry you
couldn’t see the second one, Mum.
ANN MILLER
To my husband and children for their support, and
to the victims and families of crime – may justice
prevail.
SARAH ROBINSON
To Amanda, Jack and Hannah – thanks, infinity
times, always.
TIM KELLY
For Alison – the alpha and omega of friends. Thank
you.
KEVIN STEED
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ix
 Introduction
To the student
Congratulations on choosing Cambridge Legal
Studies – HSC (Second Edition). This edition has
been completely updated to meet the requirements
of the 2009 Stage 6 Legal Studies Syllabus in New
South Wales.
Legal Studies was first introduced into the NSE
Curriculum in 1989. Since then, thousands of stu-
dents have finished their secondary schooling
better informed citizens, able to think more
critically about the processes and institutions that
shape their lives on a daily basis.
The rights people enjoy within democratic soci-
eties have at times been eroded by governments
when citizens become apathetic about their rights,
freedoms and liberties. Legal Studies will allow
you to explore the power vested in our democratic
institutions and wielded by our elected leaders. It
explores issues that will change the way you view
the world and how you understand the concept of
achieving justice through the law.
x Cam br i dg e L e g a l S t u d ie s – HS C
Cambridge Legal Studies – HSC (Second Edition)
is a comprehensive resource that builds on the
knowledge and skills introduced in the Preliminary
course as it thoroughly covers all key content areas
of the HSC syllabus.
You will discover a wealth of engaging material
that critically examines the core areas of crime and
human rights, as well as a wide range of options in
Part III. You will gain insight into how the law oper-
ates in practice in each of these contexts. A range
of interesting, up-to-date cases, media articles
and statistics are provided to bring the law to life.
Updated Review and Research questions will assist
you to revise and build on your knowledge, and a
variety of HSC-style examination questions (both in
the Student Book and Study Toolkit) will give you
the best opportunity to succeed in your exam.
We wish you the very best of luck and much
success in Legal Studies.
PAUL MILGATE
Using Cambridge
Legal Studies – HSC

The Cambridge Legal Studies – HSC resource understand case citations.

package consists of five components:
1 Student Book
The Student Book contains all topics in Part I,
Part II (including a wide range of contemporary
human rights issues), and five options in Part III.
4 Teacher CD-ROM
The Teacher CD-ROM contains a wide range
of material to support students and teachers,
with course, lesson, assessment and homework
preparation.

2 Student CD 5 Student and teacher website

The Student CD can be found at the back of the The Cambridge Legal Studies website is a free
Student Book. It contains: resource that contains a range of additional
s an electronic version of the Student Book activities, weblinks, teaching plans, and
s additional resources for Chapter 7
s all Review activities and Chapter Summary
tasks in electronic format
s additional resources for the Study Toolkit.

3 Study Toolkit
The Study Toolkit packaged with the Student
Book contains a wide range of material to help
you succeed in Legal Studies, including:
s exam preparation and study tips
s a range of additional multiple-choice, short-
answer and extended response questions for
each part of the course
s legal research tips and information to help you

curriculum documents to support students and teachers.

GUID
G UII D E TO IC ON S
U

This icon lets you know that there is some additional information or activities on the
Student CD at the back of the book.

This icon lets you know that you will need to access the internet in order to
complete an activity or research task.

xi
 Key features of the Student Book

1 The nature of crime

Section and chapter openers s meaning of crime

s elements of crime: actus reus, mens rea
s summary and indictable offences
s parties to a crime including principal in the
s strict liability offences first degree, principal in the second degree,

Each section and chapter PART I s causation

s categories of crime: offences against the
accessory before the fact, accessory after the
fact

of Cambridge Legal Studies Crime person, offences against the sovereign, eco-
nomic offences, drug offences, driving offences,
public order offences, preliminary crimes
s factors affecting criminal behaviour
s crime prevention: situational and social

– HSC begins with a double- Crime Principal focus

Through the use of a range of contemporary examples, students investigate
2 The criminal investigation process
s police powers s arrest and charge, summons, warrants

C rim e
criminal law, processes and institutions and the tension between community s reporting crime s bail or remand
30% of course time
page spread that contains: interests and individual rights and freedoms. s investigating crime: gathering evidence, use of s detention and interrogation, rights of suspects
technology, search and seizure, use of warrants

Themes and challenges

s principal focus and themes Themes and challenges to be incorporated throughout Part I include:
s the role of discretion in the criminal justice system
3 Criminal trial process
s court jurisdiction s burden and standard of proof
s issues of compliance and non-compliance in regard to criminal law s the adversary system s use of evidence, including witnesses

and challenges from the s the extent to which law reflects moral and ethical standards
s the role of law reform in the criminal justice system
s the extent to which the law balances the rights of victims, offenders and
s legal personnel: magistrate, judge, police
prosecutor, Director of Public Prosecution,
Public Defenders
s defences to criminal charges:
– complete defences
– partial defences to murder
society s pleas, charge negotiation s the role of juries, including verdicts
Stage 6 Syllabus s the effectiveness of legal and non-legal measures in achieving justice.
At the end of Part I, on page 141, you will find a summary of the themes and
s legal representation, including legal aid

challenges relating to crime. The summary draws on keys points from the text

s chapter objectives and links them to each of the themes and challenges. This summary is designed
to help you revise for the external examination.
4 Sentencing and punishment
s statutory and judicial guidelines
s the purposes of punishment: deterrence
s sentence, probation, criminal infringement
notice, penalty units, community service order,

s key terms/vocabulary
(specific and general), retribution, home detention, periodic detention, forfeiture
HSC external examination information rehabilitation, incapacitation of assets, imprisonment, diversionary programs
The HSC examination will be a written paper worth a total of 100 marks. The s factors affecting a sentencing decision: s alternative methods of sentencing including
paper will consist of three sections. aggravating and mitigating circumstances circle sentencing, restorative justice

s relevant law (including Questions relating to Part I of the syllabus – Crime – will appear in Sections 1
and 2 of the examination.
s the role of the victim in sentencing
s appeals
s post-sentencing considerations, including secur-
ity classification, protective custody, parole,
s types of penalties including: no conviction preventative detention, continued detention,
Section I: Core 20 marks total (15 of the possible 20 marks will be
important legislation and based on Crime)
Section I will consist of objective response (i.e. multiple-choice) questions.
recorded, caution, fine, bond, suspended sexual offenders registration, deportation

Questions to the value of 15 marks will be drawn from Crime. Some of these
5 Young offenders
significant cases) questions may be based on, or refer to, stimulus materials.

Section II: Core 30 marks total (15 of the possible 20 marks will be
s age of criminal responsibility
s the rights of children when questioned or
s penalties for children
s alternatives to court
based on Crime) arrested

s odd law Section II will be divided into two parts, Part A and Part B. Only Part B will
relate to Crime. There will be one extended response question to the value of
15 marks. The question may refer to stimulus material. The expected length
s Children’s Court – procedures and operation

s information relating to the

of the response is around 600 words (approximately four examination writing 6 International crime
booklet pages). s categories of international crime, including: s dealing with international crime:
– crimes against the international community – domestic and international measures
– transnational crimes. – limitations.

HSC external examination.

xvi C a m br i dge L ega l St udi es – H SC
1

Search and seizure

m e dia c lip

Media clip Criminal DNA tests being

checked in NSW
and samples were too often relied upon as
the only evidence in criminal prosecutions.
‘It’s very easy for the analysis to be flawed
Two of the special powers given to police to assist
in investigating crime are those of search and sei-
zure. Under Part 4 of the Law Enforcement (Powers
By Adam Bennett and Vincent Morello because it goes through several hands and

A range of current media Sydney Morning Herald, 2 October 2009
Forensic and civil liberty experts have
several stages,’ Prof Findlay told AAP.
‘People who look at that science - and
they are lay people, judges and juries - are
and Responsibilities) Act 2002 (NSW), police are
given powers to ‘search people and seize and
detain things’ in certain circumstances. One of the

articles are provided to help condemned NSW’s criminal DNA testing

process after a glitch led to a man’s wrongful
disproportionately impressed by it.’
NSW Council for Civil Liberties president
Cameron Murphy said police and courts
most important of these is the power to search and
seize without a court warrant.
conviction. Powers of search and seizure are often the

you understand how the A review by NSW Health of its ‘cold should rely on other evidence to corroborate
most controversial of police powers because they

links’ system earlier this year found the
department’s laboratory mistakenly linked a
man to a break and enter because of human
law operates in real-world
error.
The system matches DNA evidence
collected at a crime scene with people on the
a crime.
‘It’s far better for a guilty person to go
free than for an innocent person to be in jail
because the consequences are so horrific,’
Mr Murphy told AAP.
Dr Stewart said the man’s criminal record
Cr i me
represent an intrusion into people’s privacy or
personal space. Search and seizure can also be
Figure 2.5 Police are lawfully able to stop, search and detain
confronting or embarrassing, especially when con-
someone if they believe they have reasonable grounds to do so.
ducted in a public place.
Police in New South Wales have the broad

situations. state DNA database.

Convicted in early 2008, the man was given
a nine-month suspended sentence.
The discovery of the error prompted an
exhaustive review of the 17 000 cold links
dating back to 2001, when the DNA database
was established.
Acting NSW chief health officer Greg
had been amended and proceedings had
been launched to have his conviction
annulled.
powers to stop and search any person where they
‘believe on reasonable grounds’ that they are
a prohibited plant or drug, or a dangerous article
when they are in a public place. Police can then
The lab technician responsible for the error carrying anything stolen or used in commission of seize and detain any of these objects if discovered.
had since retired, he said. an indictable offence or another specified offence, Challenges to police searches will often revolve
Dr Stewart said he did not know whether
the man would launch legal action to seek
compensation over the wrongful conviction.
case s pace

Stewart said the review had so far revealed
no other errors, and he reassured people the
DNA testing system was sound.
Dr Stewart said the mistake was caused
by a human sampling error at NSW Health’s
Case space Division of Analytical Laboratories (DAL) but
he stressed the science behind DNA testing
was not in question.
‘A human error occurred where tests were
‘There are always openings for people who
are convicted to seek redress,’ he said. Darby v Director of Public Prosecutions [2004] NSWCA 431
‘His options have been discussed with him.
‘He’ll make his own decision.’ The case of Darby illustrates some cannabis and methyl ampheta- The case was appealed to
Dr Stewart said a similar error in the of the difficulties in the legal mine on Darby, who was charged the Supreme Court which ruled
future was ‘most unlikely’ because of testing
improvements, including the introduction of
robotics, and the practice of reviewing all case
definitions of a search and
reasonable grounds. In the case,
and tried in the Local Court.
The magistrate in the Local
that the magistrate had erred
in law and that the dog’s search
the police were using a sniffer Court ruled that the actions of was not a search and that the
work before results are released to police.

A number of relevant legal incorrectly located in a series of tests,’ he

said.
An independent external review would also
be conducted by Professor Hilton Kobus, a
dog, named Rocky, outside a
nightclub to detect for drugs. The
the dog in sniffing so closely
and making contact with Darby
police officers’ own search was
legal because it was formed on

‘There are thousands of tests done, and forensic science expert at Adelaide’s Flinders dog would sniff the air to indicate constituted an unlawful search. reasonable grounds on the basis

cases appear throughout the they are done in series of 96 at a time but one
of those was out of sequence.
‘The wrong crime sample was placed into
University, Dr Stewart said. to the police that drugs were
present. In Darby’s case, the dog
Only police officers are entitled
to search and only when they
of the information conveyed by
Rocky’s sniffing.
sniffed the air then sniffed make a judgment on reasonable Darby then appealed the

text. Each case allows you

a well, and that led to DNA from one crime
‘bunting and ferretting’ towards grounds – the dog was not judgment to the Court of
scene being ascribed to a person who was not
Darby, sniffed his genital area and entitled to or capable of making Appeal, in an attempt to
at that crime scene.’
Professor Mark Findlay, director of the trousers then touched his nose such a judgment. Consequently, reinstate the magistrate’s

to apply your knowledge Institute of Criminology at Sydney University,

said DNA testing was not an exact science
directly on Darby’s pocket and
stayed there until police came
over and searched Darby. The
the evidence of finding the
substances was not admissible
because it was gained following
original judgment. Two out
of three justices found that
Rocky’s actions did not, in fact,

of the legal system to real- police discovered amounts of an illegal search. constitute a search.

world situations. Many cases

34 C a m br i dge L ega l St udi es – H SC

are followed by a range of 35

C h a p t e r 2 : T h e cr im in a l in ve s t ig a t i o n p ro c e s s

questions to help you test

what you’ve learnt.

xii C am br id g e L e g a l S t u d ie s – HS C

RESEARCH 13.1
Use the internet to research
developments that have
taken place since the modern
award for airline ground staff
was made in March 2010,
especially with respect to the
following issues:
s the 17% pay gap between
men and women with
similar qualifications
s the relationship between
the legislature, Fair Work
Australia, and unions
s the progress or outcome of
any test case.
greenfields agreement
an agreement created
to cover prospective
employees of a new
enterprise
better off overall test
(BOOT)
a criterion for FWA’s
approval of an
enterprise agreement,
requiring that
employees are better
off overall than under
the relevant modern
award
workplace surveillance
an employer’s use of
technology such as
cameras, computers
and tracking devices to
monitor employees
372 Cam b r i d g e L e g al S t u d i e s – HS C
fascism
an authoritarian system
of government that is
opposed to democracy
and is marked by
the State having
total control over
the economic, social,
cultural and political life
of the people
Figure 7.8 A 1967 constitutional referendum finally gave Indigenous
Australians equal status as citizens, including the right to be counted in
the Australian census.
154 Cam b r i d g e L e g al S t u d i e s – HS C
ENTER PR ISE A GR E E M E N T S
UNDER THE FAI R W OR K AC T
2009 (C TH)
Enterprise agreements may include
a broader range of matters than
modern awards. Like awards, agree-
ments must provide entitlements at
least as favourable as the NES, for
example a minimum four weeks
paid leave per year.
Enterprise agreements between
an employer and its employees
must be approved by a majority of
employees before being submitted
to Fair Work Australia for approval.
Once the parties are satisfied with
the draft agreement, the employer
must ensure that the employees
have been informed of its terms and their conse-
quences, and of the time, place and procedure
for voting. A ballot is then held to approve the
agreement.
An enterprise agreement, made with or without
union involvement, may apply to workers in a
specific workplace (single-enterprise agreements)
or at an industry level (multi-enterprise agree-
ments). A single-enterprise agreement requires
a majority of employees to endorse it, and a
multi-enterprise agreement requires a majority of
employees of at least one of the employers to do
so. FWA can help certain low-paid employees and
their employers to negotiate a multi-enterprise
agreement, if it is in the public interest to do so.
These include people working in child care, aged
care, community services, cleaning, and security,
who have often lacked the bargaining power to
negotiate for better wages and conditions at the
single-enterprise level.
A third type of enterprise agreement is a
greenfields agreement, which covers future
employees of a new enterprise to be established
by one or more employers. The agreement is made
when it has been endorsed by each employer
and by the trade union or unions that cover the
prospective employees.
US passed the 19th Amendment allowing women
the right to vote in 1920.
Apart from status and gender, race was another
issue that conflicted with rights to vote. For
example, in the Americas, social stigma was
strongly attached to certain races, particularly
native Americans and the African-American popu-
lations. In 1870 in the US, following the American
Civil War, the right to vote was extended by the
15th Amendment to all adult males, regardless of
race, colour or previous servitude. In New Zealand,
Māori voters were not expressly excluded from
voting but a requirement of property ownership
effectively excluded them. In 1867, this requirement
was removed, extending the vote across the male
Once the agreement has been approved by
the parties, it is then submitted to FWA by the
employer or a bargaining representative for the
employees. It must meet certain conditions to be
approved by FWA. These include:
s the parties have come to a genuine agreement
s the agreement has a specified expiry date, not
more than four years after FWA approval
s the agreement contains a dispute settlement
procedure, a flexibility term, and a term
outlining the consultation procedure to be
undertaken by the employer upon deciding to
make a major change to the enterprise affecting
employees
s the agreement passes the ‘better off overall
test’ (BOOT).
To pass the ‘better off overall test’, the
agreement must result in each employee covered
being better off overall than they would be under
the relevant modern award. BOOT replaced the
‘no disadvantage’ test.
New South Wales arrangements
New South Wales enterprise agreements were
introduced under the Industrial Relations Act
1996 (NSW). As a result of the state’s referral
of its industrial powers to the Commonwealth
in 2009, that Act no longer applies to private
sector employers and employees in NSW: from
1 January 2010, all employees of sole traders and
partnerships, as well as employees of constitutional
corporations, were covered by the industrial
relations system governed by federal law. The
Industrial Relations (Commonwealth Powers) Act
2009 (NSW) effected the referral. Section 9B of
the Industrial Relations Act 1996 (NSW) states that
‘this Act is subject to the Fair Work Act 2009 of the
Commonwealth, including provisions of that Act
that have effect in this State because of the referral
of matters relating to workplace relations to the
Commonwealth Parliament’.
Other state laws dealing with workplace health
and safety, anti-discrimination provisions, and
workplace surveillance continue to operate as
before.
population. This legislation also established Māori
representation in the lower house of parliament.
In Australia, Indigenous peoples were permitted
the right to vote since the time of Federation in
1901, if their state of residence granted them that
right, and some South Australian Aboriginal men
and women voted for the first Commonwealth
Parliament. However, due to later interpretations
by the government and discriminatory measures
adopted by the states, Indigenous peoples were
effectively denied the right to vote until 1962. In
that year, the Commonwealth legislated to ensure
Indigenous peoples had the right to vote regardless
of their state voting rights, although unlike for other
Australians this was not compulsory. A 1967 consti-
tutional referendum finally gave Indigenous Austra-
lians equal status as citizens, including the right to
be counted in the Australian census. The consti-
tutional amendment became a symbol of public
recognition of the rights of Indigenous Australians.
The right to vote was recognised as a universal
human right in Article 21 of the Universal
Declaration of Human Rights. Despite gradual
advances of suffrage, there were still only a small
number of democratic countries in the world in
the first half of the 20th century. In 1900, there
were just 10 democracies in the world. This grew
to 20 by 1920 but then declined to 12 by 1939 due
to the advances of Nazism and fascism. By 1960,
there were 25 democracies in the world, growing
to 30 by 1980. This doubled to 60 by 1990 and
by 2000 there were 75 democratic nation-states.
By 2010, 89 countries, representing 46 per cent of
the world’s total population, are classified as freely
l eg al l in ks
Freedom House is an independent
organisation established in 1941
to encourage democratic freedom
around the world. The Freedom
House website has up-to-date
statistics on the state of freedom
in every country and can be found
at www.freedomhouse.org
Figure 13.6 Employees may be represented by their union in negotiating enterprise agreements.
Transitional instruments called Notional Agree-
ments Preserving State Awards (NAPSAs) pre-
served the terms and conditions of state awards
and of some state legislation that applied to employ-
ees of constitutional corporations prior to 2006.
These were largely replaced by modern awards in
2010. If parties to the award fail to apply to FWA to
convert a NAPSA into a modern award, the NAPSA
ceases to operate on 31 December 2013.
However, the referral of powers does not
include the powers of the State of New South Wales
regarding state and local government employers.
Section 9A of the Industrial Relations Act 1996
(NSW) declares those employers not to be national
system employers. The awards and collective
agreements in place continued to apply.
Different awards and agreements apply to the
various departments and agencies within state and
local government. The NSW Industrial Relations
Commission continues to have jurisdiction in
relation to the employment terms and conditions
for state and local government employees. For the
Commission to approve an enterprise agreement
for those employees, similar requirements to
those contained in the Fair Work Act 2009 (Cth)
operate. A majority of employees must vote for
the agreement, the agreement must comply with
le ga l in f o
Universal Declaration of Human Rights – universal suffrage
Article 21.
(1) Everyone has the right to take part in the
government of his country, directly or through
freely chosen representatives.
(2) Everyone has the right of equal access to public
service in his country.
democratic. 47 countries, or 34 per cent of the
world’s population, are still classified as ‘not free’.
REVIEW 7.4
1 Describe why suffrage is important.
2 Identify when universal suffrage was
achieved in two or three countries other
than Australia.
3 Evaluate how widespread suffrage and
democracy is in the world today.
Universal education
Universal education refers to the idea that all
human beings have a right to an education. This
concept has only reached wide acceptance in rela-
tively recent history. Although today some type
of education is compulsory for children in almost
all countries, in early civilisations education was
generally associated with wealth and power or with
certain trades, beliefs or religions. Most people
would have received informal education from their
families and community, with other skills learnt
directly through their daily work or vocation.
With the development and spread of writing
systems, it became possible for ideas and infor-
mation to be accurately passed on over time and
space and writing became associated with law,
commerce, religion and civil administration. But
until recent times, illiteracy was still the norm in
most of the world and formal schooling was only
available to a select few. The push for universal
education within individual countries did not really
Activities –
Review and Research
Throughout each chapter you
Stud ie s – HS C
will find a number of different
activities. Review activities are
designed to help you test your
knowledge of key concepts
and skills. Research activities
Option 4: Work pla c e
Us i n g C a m b r i d g e L eCgoaln tents
are designed to extend your
knowledge by researching
relevant state legislation (e.g. occupational health
and safety and anti-discrimination laws), and it
relevant cases or issues using
must pass the ‘no net detriment’ test.
The ‘no net detriment’ test is similar to
BOOT. The agreement must not put employees
source material.
at a disadvantage compared to state or federal
awards that would otherwise apply. This means
that employees cannot make an agreement
that removes or reduces award conditions. For
example, employees cannot make an agreement
that provides lower pay or fewer annual leave days
than are provided by the relevant award.
The Commission must also ensure that the
parties understand the effect of the agreement
and that no duress was involved in signing it.
Glossary terms
REVIEW 13.8 All of the key terms in each
1 Discuss the changes made to the industrial
statutory framework under the Fair Work
Act 2009 (Cth).
chapter (along with many
2 Discuss the legislative powers retained by
New South Wales after referral of industrial
powers to the Commonwealth.
more) are defined for you in
3 Explain the aim of BOOT and the ‘no net
detriment’ test. Why is it necessary to have
these two tests?
the margin and in the glossary
at the end of the book. These
definitions are designed to
C h a p t e r 1 3 : O p t io n 4 : Wo r kp la ce 373
help you learn and revise key
terms from the Syllabus.
(3) The will of the people shall be the basis of
the authority of government; this will shall be
expressed in periodic and genuine elections which
shall be by universal and equal suffrage and shall
be held by secret vote or by equivalent free voting
Huma n r i g ht s
procedures.
Legal info
begin until the 19th century onwards. There were
A number of relevant legal
some exceptions, for example one Aztec tribe in
the 14th to 16th century was one of the first
communities in the world to have compulsory
concepts are explored in
education for nearly all children, regardless of
order to give context to
gender or rank.
In Europe, the church was generally the first
to take on the role as educator for all, and only
themes being explored.
much later superseded by the state. For example,
in Scotland in 1561, the Church of Scotland put
forward the principle of a school teacher for every
parish and free education for the poor. In Norway
in the 16th century, cathedral schools were turned
into Latin schools and made mandatory for every
market town – later in 1736, training in reading
was made compulsory for all children. In England
in the 19th century, churches began giving free
education on Sundays, originally called ‘Sunday
Legal links
schools’. They were designed to teach students
reading, writing and arithmetic.
By the mid-1800s in Europe, the increasing
In addition to the activities,
demands of industrialisation, a growing competi-
tiveness between countries and widening suffrage
required a literate and educated population.
European governments began providing funding
for schools, and over time the government also there are a number of
administered these schools. In 1870, the British
Parliament passed the Education Act 1870 (UK),
and in 1880 education was made compulsory for suggested links to internet
all British children between five to 10 years of
age, which was later raised to 12 years in 1889.
In France, by 1880 all children under the age of resources and activities in
15 were required to attend school, with free and
secular public instruction.
each chapter. These will help
C h a p t e r 7 : T h e n a t u re a n d d e ve lo p m e n t o f h u m a n r ig h t s 155
you extend your knowledge
and stay up-to-date with
changes in the legal system.
xiii
 Chapter review
At the end of each chapter,
s An ordered world is needed if states are to
cope with globalisation and to counter global
you will find a summary of threats such as nuclear war, climate change
and economic meltdown.
s Our system of international law is based on
key points, multiple-choice the concept of state sovereignty.
s Multilateral approaches are far more effective
than unilateral action in dealing with the
common problems that face the international
questions and chapter tasks. community.
s Competition over access to resources such as
fossil fuels and water are likely to become an
In Part III you will also find a
C h a p te r su mma ry
even more serious source of conflict.
s The creation of the United Nations was a
massive multilateral commitment to a global
range of extended response environment characterised by the rule of law.
s A growing number of international courts
exist to enforce international treaties and
conventions. These include the International
questions to help you prepare Court of Justice, the International Criminal
Court, and ad hoc tribunals set up to hear
matters arising from armed conflicts.
and revise for the HSC
C h a pt e r sum m a ry ta sk s
1 Describe the main means of achieving world
examination. order that were put in place in the first five
years after the end of the Second World War.
2 Explain the concept of state sovereignty and
how states can use their sovereign powers
to create treaties and promote world order,
but can also use these powers as a barrier to
international law.
3 Explain how access to resources can become
a cause of conflict.
4 Assess the effectiveness of the various legal
responses to the threat of nuclear weapons.
5 Evaluate the effectiveness of the UN missions
in Timor-Leste since 1999.
452 C a m br i dge L ega l St udi es – H SC
T h e m e s a n d c h a lle n ge s
Themes and challenges The role of the law in encouraging
cooperation and resolving conflict in the
workplace
At the end of Parts I and s Legislation at both state and federal level
has created industrial relations processes
with the aim of minimising conflict within the
II, and at the end of each workplace as well as encouraging cooperation
between employers and employees.
s Enterprise agreements encourage employers
option in Part III, you will find
and employees to negotiate satisfactory work
arrangements on an individual workplace
level.
a summary of the relevant s Occupational health and safety (OHS)
legislation also emphasises employees’ duty
to take reasonable care for the health and
safety of others in their workplace, and their
themes and challenges. participation in maintaining a safe work
environment through representation on OHS
committees.
These summaries draw on s Employees and employers are encouraged
to resolve disputes about pay and conditions
through negotiation and conciliation. All
modern awards and enterprise agreements
keys points from the text contain dispute resolution procedures, which
must be followed before taking the matter
further. It is only when discussions break
and link them to each of the
down that the dispute will go to arbitration.
s The Fair Work Ombudsman is able to
investigate complaints within the workplace
themes and challenges in and make an order resolving the conflict.
s Fair Work Australia and the NSW Industrial
Relations Commission have a judicial role in
settling disputes. The Federal Court and the
order to help you revise and Federal Magistrates’ Court have industrial
divisions that hear workplace disputes and
appeals.
succeed in the HSC external Issues of compliance and non-compliance
s Effective industrial laws require that
examination.
governing bodies be given the resources and
authority to enforce compliance. Enforcement
also includes the availability of penalties that
will deter non-compliance. Criminal sanctions
are sometimes more effective than the
imposition of a fine.
402 C a m br i dge L ega l St udi es – H SC
xiv C am bri d g e L e g a l S t u d i es – HS C
s Australia has been an enthusiastic contributor
M u l ti p l e ch o i ce q u e sti o n s
to the United Nations in the areas of the
regulation of nuclear weapons, peacekeeping
and humanitarian assistance.
s Chapter VII of the UN Charter sanctions the
use of force if authorised by the UN Security
Council, and Article 51 of the Charter allows a
nation-state to go to war in self-defence.
s The Geneva Conventions of 1949 are the
most signed treaties and are universally
applicable.
s The UN intervention in East Timor from
1999 to the present has been a success, but
this success has only been possible with the
cooperation and support of the international
community.
Ex t e n de d re spo n se q u e sti o n s
s In order to remove ambiguity and ensure
enforceability, employee and employer rights
and duties have been clearly defined in
legislation, as well as the penalties that can
be imposed for any breaches of the law. For
example, under the Occupational Health and
Safety Act 2000 (NSW) s 13, an employer has
the duty to consult with employees to enable
them to contribute to the making of decisions
affecting their health, safety and welfare at
work. Failing to do so results in heavy fines.
s Mutual obligations and employees’ active
involvement in maintaining safety at work
have been shown to be a way to increase
compliance with OHS legislation.
Laws relating to the workplace as a reflection
of changing values and ethical standards
s All legislation is subject to review, including
the opportunity for members of the public
to comment on proposed amendments. This
enables legislation to reflect current social
values, attitudes and issues.
s A national review into model OHS laws is
concluding in 2010. The model laws will
create uniform OHS laws in all Australian
jurisdictions. The process of review and public
comment, including publication of discussion
papers and establishment of reference
groups, aimed to provide all interested
parties with the opportunity to have a voice
in the drafting, and to ensure that existing
OHS laws are not undermined. The ACTU has
expressed concerns in this respect.
s Various employer groups, including the
Business Council of Australia (BCA), have
been critical of elements of the government’s
Fair Work reforms, arguing that the new laws
unfairly favour unions. Some advocates of
workers’ rights have argued that the laws do
not go far enough.
1 The principle of the Responsibility to Protect
a is the same as humanitarian intervention
b allows the UNSC to send in peacekeepers
as soon as a country fails to meet basic
standards of human rights
c focuses more on prevention than reaction
d has yet to be agreed to by the UN General
Assembly
2 The Nuclear Non-Proliferation Treaty 4 International humanitarian law
a does not apply to the five permanent a applies to all people in peacetime
members of the UNSC b applies to all people affected by armed
Option 5: World order
b has not been signed by Israel, India and conflicts
Pakistan c was created by the Universal Declaration
c has failed to prevent most countries of the of Human Rights
world from acquiring nuclear weapons
d has not been signed by Iran, North Korea
d only applies to about half of the states in
the world
and Myanmar 5 The UN Security Council can override a
nation-state’s sovereignty when
3 The International Criminal Court
a was authorised by the UN Security Council a there are widespread human rights abuses
in 1998 or mass atrocity crimes that require
b was set up to deal with the mass atrocities intervention
committed by the Nazis in the Second b the nation-state does not trade with any
World War of the Permanent Five members
c was created by the Rome Statute, an c there is a greater than 50% chance of
agreement between a number of states
d can hear only cases against states, not
success
d the nation-state agrees to waive
individuals sovereignty
1 Critically evaluate the effectiveness of
multinational efforts to achieve world order
over the past century.
In Section III of the HSC Legal Studies
examination you will be expected to
2 Discuss the role of non-government complete an extended response question
organisations in limiting the harm resulting for two different Options you have studied.
from interstate and intrastate conflicts. There will be a choice of two questions
3 Choose one or more states and non-state for each Option. It is expected that your
actors (which can include international response will be around 1000 words in
organisations) and an example of a world length (approximately eight examination
order issue from recent history or current writing booklet pages). Marking criteria for
events that has not been discussed in this extended response questions can be found
chapter. Outline the interrelationships and at www.cambridge.edu.au/education. Refer
critically evaluate the parties’ conduct. to these criteria when planning and writing
4 Can pressure be brought to bear on a your response.
nation-state that refuses to participate in
international efforts to promote world order?
Outline potential strategies and identify
the parties that may be able to use such
strategies. Justify your answers.
C h a p t e r 1 4 : O p t io n 5 : Wo r l d o rd e r 453
The role of law reform in recognising rights
and enforcing responsibilities in the workplace
body for unions in Australia, the ACTU, has
argued for an increase in the minimum wage,
equal pay for women, and the eradication of
s The law needs to reflect prevailing community
standards and expectations. Laws that are in
conflict with current attitudes are less likely
discriminatory practices in the workplace.
s Other groups, such as Equal Opportunity
for Women in the Workplace Agency, act
to be effective. Individuals may engage in
civil disobedience, openly opposing the laws,
or may simply ignore the laws. To determine
to influence policy and industrial laws in the
promotion of the rights of particular groups.
However, women still earn substantially less
the best means of ensuring that laws reflect
O p t i on 4: Wor k p l a ce
than men. One of the reasons is that they
community standards and expectations,
comprise a large proportion of casual and
legislators may call for public submissions
part-time employees and as a consequence
before debating issues in parliament. They
do not have the same employment
are, in the end, accountable to the electorate
for the laws that are passed.
s Those responsible for law reform aim to
protections as full-time employees.
s Non-government organisations include social
welfare groups such as the Salvation Army.
balance the needs of all stakeholders while
ensuring that the law is consistent with
Australia’s international obligations.
They may help individuals find employment
and provide training, counselling and welfare
support to people seeking jobs.
s While the laws passed may reflect the views
s Non-government organisations play a varied
of the majority, this does not mean that the
rights of minority groups are secondary.
Numerous laws have been passed protecting
role within state and federal industrial
relations. Non-government organisations such
as the Australian Human Rights Commission
individual rights, which is seen as necessary
for the protection of the entire community.
For example, laws that make discrimination
can investigate discrimination complaints. If
the complaint cannot be resolved, the matter
may go to court. While the Commission does
illegal protect the rights of all employees.
not have the authority to enforce its rulings,
s The General Employee Entitlement and
for example by imposing a fine or order, its
Redundancy Scheme (GEERS) was established
findings can be used in a court or a tribunal in
to protect workers’ entitlements in the event
support of the complainant’s case.
that their employer became bankrupt.
s The protection of individual rights with
respect to occupational health and safety can
s The International Labour Organization aims
to encourage member nations to undertake
common action in the protection of workers’
be seen in laws prohibiting smoking in the
workplace.
s Well-drafted legislation clearly sets out
rights around the world.
s Numerous independent and non-government
organisations are involved in investigating and
the rights and duties of employees and
researching issues relating to discrimination,
employers, and provides for a process of
resolving disputes.
pay inequities and substandard conditions,
for example for outworkers. They may
make recommendations to government or
The effectiveness of legal and non-legal
provide policy advice to relevant government
responses in achieving justice in the workplace
departments. However, the power of these
s Employers’ associations, as well as groups groups is limited. How effective they are in
representing workers’ interests, lobby changing government policy is difficult to
governments to influence legislation. Non- determine.
legal responses to industrial relations issues
include the activities of unions. The peak
C h a p t e r 1 3 : O p t io n 4 : Wo r k p l a c e 403
Glossary
of key words

Syllabus outcomes, objectives, performance bands meaning in the Higher School Certificate
and examination questions have key words that documents. Using this glossary will help students
state what students are expected to be able to do. and teachers understand what is expected in
A glossary of key words has been developed to responses to examinations and assessment tasks.
help provide a common language and consistent

Account Critically (analyse/evaluate) Identify

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

xv
 PART I
Crime
Crime Principal focus
Through the use of a range of contemporary examples, students investigate
criminal law, processes and institutions and the tension between community
30% of course time interests and individual rights and freedoms.

Themes and challenges

Themes and challenges to be incorporated throughout Part I include:
s the role of discretion in the criminal justice system
s issues of compliance and non-compliance in regard to criminal law
s the extent to which law reflects moral and ethical standards
s the role of law reform in the criminal justice system
s the extent to which the law balances the rights of victims, offenders and
society
s the effectiveness of legal and non-legal measures in achieving justice.
At the end of Part I, on pages 140–141, you will find a summary of the themes
and challenges relating to crime. The summary draws on keys points from the
text and links them to each of the themes and challenges. This summary is
designed to help you revise for the external examination.

HSC external examination information

The HSC examination will be a written paper worth a total of 100 marks. The
paper will consist of three sections.
Questions relating to Part I of the syllabus – Crime – will appear in Sections I
and II of the examination.

Section I: Core 20 marks total (15 of the possible 20 marks will be

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

Section II: Core 30 marks total (15 of the possible 30 marks will be
based on Crime)
Section II will be divided into two parts, Part A and Part B. Only Part B will
relate to Crime. There will be one extended response question to the value of
15 marks. The question may refer to stimulus material. The expected length
of the response is around 600 words (approximately four examination writing
booklet pages).

xvi C am bri d g e L e g a l S t u d i es – HS C
1 The nature of crime
s meaning of crime
s elements of crime: actus reus, mens rea
s strict liability offences
s causation
s categories of crime: offences against the
person, offences against the sovereign, eco-
nomic offences, drug offences, driving offences,
public order offences, preliminary crimes
2 The criminal investigation process
s police powers
s reporting crime
s investigating crime: gathering evidence, use of
technology, search and seizure, use of warrants
3 Criminal trial process
s court jurisdiction
s the adversary system
s legal personnel: magistrate, judge, police
prosecutor, Director of Public Prosecution,
Public Defenders
s pleas, charge negotiation
s legal representation, including legal aid
4 Sentencing and punishment
s statutory and judicial guidelines
s the purposes of punishment: deterrence
(specific and general), retribution,
rehabilitation, incapacitation
s factors affecting a sentencing decision:
aggravating and mitigating circumstances
s the role of the victim in sentencing
s appeals
5 Young offenders
s age of criminal responsibility
s the rights of children when questioned or
arrested
s Children’s Court – procedures and operation
6 International crime
s categories of international crime, including:
– crimes against the international community
– transnational crimes
s summary and indictable offences
s parties to a crime including principal in the
first degree, principal in the second degree,
accessory before the fact, accessory after the
fact
s factors affecting criminal behaviour
s crime prevention: situational and social
s arrest and charge, summons, warrants
C rim e
s bail or remand
s detention and interrogation, rights of suspects
s burden and standard of proof
s use of evidence, including witnesses
s defences to criminal charges:
– complete defences
– partial defences to murder
s the role of juries, including verdicts
s types of penalties including: no conviction
recorded, caution, fine, bond, suspended
sentence, probation, criminal infringement
notice, penalty units, community service order,
home detention, periodic detention, forfeiture
of assets, imprisonment, diversionary programs
s alternative methods of sentencing including
circle sentencing, restorative justice
s post-sentencing considerations, including secur-
ity classification, protective custody, parole,
preventative detention, continued detention,
sexual offenders registration, deportation
s penalties for children
s alternatives to court
s dealing with international crime:
– domestic and international measures
– limitations
1
 CHAPTER 1
The nature of crime
c hap te r o b j e cti ve s

In this chapter, students will:
s identify the meaning and nature of crime
s describe and recognise the different categories of
crime
s define and discuss summary and indictable offences
s explore a range of factors that may lead to criminal
behaviour
k ey ter m s/vocab ul ary
s discuss a range of social and situational crime
prevention techniques
s discuss the effectiveness of the law in punishing
offenders
s communicate legal terminology within context.

accused indictable offence tax evasion

actus reus infanticide trafficking
affray insider trading treason
aggravated assault involuntary manslaughter voluntary manslaughter
aggravated sexual assault in larceny white-collar crime
company manslaughter
assault mens rea
attempt mitigating circumstances
beyond reasonable doubt murder
break and enter prosecute
common assault provocation
conspiracy recklessness
constructive manslaughter riot
crime robbery
criminal negligence sedition
criminology the Crown
embezzlement sexual assault
fraud the state
homicide strict liability offence
indecent assault summary offence

2 C am br i dg e L e g a l S t u d i e s – HS C
 rel ev ant l aw
I MPORTANT LEGIS L AT ION
Crimes Amendment (Computer Offences) Act
2001 (NSW)
Crimes Act 1900 (NSW)
Copyright Amendment Act 2006 (Cth)
Crimes Act 1914 (Cth)
Criminal Code 1995 (Cth)
Anti-Terrorism Act (No. 2) 2005 (Cth)
Drug Misuse and Trafficking Act 1985 (NSW)
Summary Offences Act 1988 (NSW)
Customs Act 1901 (Cth)
Road Transport (Safety and Traffic Management)
Act 1999 (NSW)
S I GNIFICANT CA S ES
R v Thomas Sam; R v Manju Sam (No. 18) [2009]
NSWSC 1003
R v Munter [2009] NSWSC 158
Boughey v The Queen (1986) 161 CLR 10
DPP v Newbury and Jones [1977] AC 500
R v AEM (Snr); R v KEM; R v MM [2002]
NSWCCA 58
R v Rivkin (2003) 198 ALR 400
R v Whybrow (1951) 35 CAR 141
od d l a w
C rim e
Crime is a constantly changing area of the law,
with new crimes being created and historical
crimes becoming obsolete. In 1995, s 580B was
added to the Crimes Act 1900 (NSW) to abolish
(remove) the outdated common law crimes of
eavesdropping and being a ‘common scold’.
Eavesdropping was a crime that involved a
person listening to private conversations through
walls or under windows (within the eaves’ drop)
for the purpose of spreading scandals.
A common scold was a troublesome woman
who, by brawling and arguing with her
neighbours, broke the public peace and became
a nuisance to the neighbourhood.
The explanatory notes to the legislation
reported that there had been no record of either
crime being used in NSW in the past century.
The crimes had become obsolete and so were
removed from use.
Cha pter 1: T he na ture of cri me 3

crime
an act or omission
committed against the
community at large
that is punishable by
the state
the state
a term used to refer
to the government
and the people that it
governs
Figure 1.1 Culture, history, legal traditions, social attitudes, religious beliefs and political systems are factors in every society
that combine to determine how crime is defined and punished.
4 C am br i dg e L e g a l S t u d i e s – HS C
T h e n a t u r e o f c ri m e
The meaning of crime
The word ‘crime’ is a broad term used to describe
many unlawful activities from the extreme, such as
murder, to more minor offences, such as speeding.
A crime includes any act or omission which results
in harm to society at large and is punishable by
the state, including the court system and state or
Commonwealth bodies.
A more detailed definition includes ‘any con-
duct which violates the rights of the community
at large, punishable by a recognised criminal
sanction upon proof of guilt in a criminal pro-
ceeding initiated and presented by officers of the
crown or its agencies’. (Marantelli, S., Tikotin, C.,
The Australian Legal Dictionary).
The problem with using such definitions, how-
ever, is that they can oversimplify a complex area
of law. They do not tell us what actually constitutes
criminal behaviour and activity. If a person wanted
to know if certain behaviour was a violation of the
law, these definitions would be of no help. This is
because a crime is any act that lawmakers in a
particular society have deemed to be criminal.
Many countries and societies have different
views about what kinds of acts society needs to be
protected from and which acts should be consid-
ered criminal. Culture, history, legal traditions,
social attitudes, religious beliefs and political
systems are factors in every society that combine
to determine how crime is defined and punished.
In other words, what one society deems a crime,
another may not. For example, the act of murder
is universally considered a crime throughout the
world, though with varying definitions and quali-
fications. However, other acts which are entirely
legal in Australia, such as sex outside of marriage,
homosexual acts or the consumption of alcohol,
are deemed crimes in some societies.
Therefore, most crimes are the result of moral
and ethical judgments by society about an indi-
vidual’s behaviour. When a person commits a
crime, it is deemed to be committed against all
of society (as represented by the state), as well as
any victim of the act. The criminal act is seen as
an attack on the standards expected by society, so
it is the responsibility of all to punish the accused.
For this reason, criminal cases are brought by the
state (acting on behalf of society), even though
they are also attempting to redress an injustice
committed against the victim.
Crime is a constantly changing area of the law.
For example, for centuries throughout the British
Empire, the practice of witchcraft was considered
a serious offence punishable by death. It was a
commonly prosecuted crime. This resulted in in-
famous criminal trials that were fraught with
issues of criminal evidence and due process,
false accusations and government intrusion on
individual liberties, such as the Salem witch trials
in 17th century Massachusetts, a colony in British
America that later became part of the United
States. As society’s attitudes evolved, the position
was eventually reversed in Great Britain with the
introduction of the Witchcraft Act 1735, 9 Geo II,
c 5, which removed the offence of witchcraft and
instead made it a crime to pretend to practice acts
of witchcraft. In modern times, such acts would
be governed in Australia by consumer protection
regulations that protect against fraudulent activity.
Similarly, new crimes are often created where

C rim e
none existed before. For example, the Crimes
Amendment (Computer Offences) Act 2001 (NSW)
Figure 1.2 Crimes often become outdated as societies
introduced a new part titled ‘Computer Offences’ evolve – as illustrated by the Salem witch trials of 1692.
to the Crimes Act 1900 (NSW) to include new crimes
relating to computer hacking and data modifi-
cation. The Commonwealth Copyright Amendment
Act 2006 (Cth) also introduced a number of new
offences aimed at dealing with the growing prob-
lem of internet piracy and copyright infringement.
The government, courts and other statutory
bodies are constantly reviewing legislation to
ensure that it meets the expectations of the com-
munity and is as relevant as possible to our rapidly
developing and changing society. Sometimes
groups within our community are unhappy with
these changes and developments while other Figure 1.3 New crimes are often created to
address changes in society.
groups might rejoice at their implementation.
Criminal law is a particularly controversial area
of the law because any changes will usually have
wide-ranging effects that impact on the rights and investigation, enforcement, prosecution, defence,
freedoms of all members of society. As a result criminal trial, sentencing and punishment. Criminal
there is often tension between various community law has a number of important characteristics that
groups, social commentators and lawmakers distinguish it from other areas of the law:
when attempts are made by legislators to change s Criminal law is concerned with the protection
or update aspects of the criminal law. of society. A crime is an offence against society
The main focus throughout this topic is under- as a whole, and one which is punishable by the
standing how the criminal law balances the state. This differs from civil law which relates
tension between the rights of the accused, the primarily to rights and responsibilities between accused
rights of victims (individual rights) and the rights individuals. the person or alleged
offender that the
and interests of the wider community. s Criminal actions can include crimes against a
criminal action is
person, the state and/or against property. being taken against
s The law provides for the state to take legal prosecute
Criminal law action against an accused, that is, to prosecute when the Crown or
state take action
Criminal law is the area of law that deals with the offender in a court of law to obtain some against the offender
crime and encompasses many aspects, including form of sanction or punishment. in a court of law

Cha pter 1: T he na ture of cri me 5


the Crown
the state party who
commences a criminal
action in a court of law
against the offender.
In NSW, the action is
usually commenced
by the Director of
Public Prosecutions.
If the alleged crime
is against a federal
criminal law then
the action is usually
commenced by the
Commonwealth
Director of Public
Prosecutions
beyond reasonable
doubt
the standard of proof
required in a criminal
case for a person to be
found guilty
actus reus
a Latin term meaning
‘guilty act’ that refers
to the physical act of
carrying out a crime
mens rea
a Latin term meaning
‘guilty mind’,
meaning that the
accused intended
to commit the crime
knowing their actions
were wrong
6 C am br i dg e L e g a l S t u d i e s – HS C
s The police and/or the Director of Public Prosecu-
tions decide to prosecute the offender in court.
They are known as the state or the Crown, and
the offender is known as the accused or the
defendant. This differs from civil law, where the
action is commenced by the individual affected
(the plaintiff) against the person responsible (the
defendant).
s The Crown must prove its case beyond
reasonable doubt. This means that if any other
reasonable conclusion besides proving the crimi-
nal charges can be made from the evidence,
there is reasonable doubt. If there is any doubt
as to the guilt of the defendant, a not guilty ver-
dict must be reached. This differs from civil law
where a much lower standard of proof is required
(the balance of probabilities).
s The aim of criminal law is to protect the commu-
nity and to provide a sanction or punishment to
the offender if he or she is found guilty by a court
of law. This differs from civil law where the aim
is to address the defendant’s wrong by way of a
remedy or court order in favour of the plaintiff.
E l e m e n t s o f c ri m e
Before a criminal act can be brought to trial, the
police and prosecutors need to prove that the ele-
ments of the particular offence are present. There
are two fundamental elements applicable to most
offences:
s that the accused person actually committed the
crime (actus reus)
s that the accused person sufficiently intended to
commit the crime (mens rea).
Actus reus
Actus reus is a Latin term meaning ‘guilty act’ and
refers to the physical act of carrying out the crime.
The prosecution must prove that the accused did
in fact carry out the relevant act required for the
crime. Physical evidence and witness testimony
can help the prosecution prove that it was the
Broadly speaking, the distinction between crimi-
nal and civil law depends on the legal proceedings
that may follow from the act. If the act is a crime,
then criminal proceedings can be taken. The
offender faces investigation by the police and
prosecution, and the case is heard in the criminal
courts, which may result in conviction and
punishment of the accused. If the act is a breach
of the civil law, the person bringing the action (the
plaintiff) will sue the wrongdoer (the defendant)
in a civil court in an attempt to gain a remedy
such as compensatory damages or a court order
prohibiting the conduct.
R EV I EW 1 . 1
1 Define the term ‘crime’.
2 Use one or more examples to describe a
new type of crime and an act that is no
longer a crime.
3 Describe the main ways in which criminal
law differs from civil law.
accused that carried out the act. This is often the
easiest element for the prosecution to prove.
The actus reus must be a voluntary act but
can also include an omission or failure to act,
particularly in cases of criminal negligence, mean-
ing that the accused failed to take a course of
action when they had a duty to do so.
Mens rea
Mens rea is a Latin term meaning ‘guilty mind’ and
refers to the mental state of the accused. In order
for the prosecution to succeed, it must be able to
prove that, to the necessary degree, the accused
intended to commit the crime.
There is no widely accepted definition for mens
rea. One common understanding, however, is that
it is the state of mind of a defendant and his or
her knowledge of the facts that make the conduct
criminal. In other words, the defendant understood
what was happening when the act was committed.
Another view is to regard mens rea as the conscious
and willing mind that was present in performing a
crime. Often, if the police or Crown cannot prove
that the defendant acted intentionally, fraudulently,
maliciously, negligently, recklessly or willfully, the
charge will not be proved. For example, when a
person intentionally shoots someone, that person
has likely intended to commit a criminal act and
s Intention – a clear, malicious or wilful intention
to commit the crime. This is the highest and
usually most difficult level of mens rea for the
prosecution to prove.
s Recklessness – an intermediate level of intent, recklessness
when the accused
this means that the accused was aware that their
was aware that their
action could lead to a crime being committed, action could lead
but chose to take that risk anyway. Perhaps the to a crime being
committed, but chose
accused wanted to show off to peers or was
to take that course of
unable to make a sensible decision. In the case action anyway
of recklessness the prosecution will attempt to criminal negligence

cause harm. Whether that person intended to kill
or only injure the victim is a question that will
need to be established. Another situation is when
a defendant knows what will happen if he or she
continues certain behaviour, but recklessly carried
on. For example, the shooter may have been reck-
less as to whether the victim might die or not from
the injuries inflicted. In all cases, except for strict
liability cases (see below), the prosecution must
prove that the accused was aware (at least to
some degree) that their actions would result in the
likelihood of a crime being committed.
The degree of intention required to prove a
crime can differ and will often be specified in the
legislation where the crime is defined. The three
main levels of mens rea include:
c as e sp ac e
C rim e
prove that the risk was obvious to a reasonable where the accused
fails to foresee the
person and although the accused knew the risk
risk where they
they were taking, they didn’t care about the should have and so
consequences. allows the avoidable
danger to manifest
s Criminal negligence – where the accused fails
to foresee the risk where they should have and
so allows the avoidable danger to manifest,
usually resulting in harm or death of another
person that the accused had a duty to protect.
This is the lowest level of intention for mens
rea, but a much higher standard than the civil
law is applied for negligence to be considered
criminal. An example of a case involving crim-
inal negligence is R v Thomas Sam, referred to in
the case space below.

R v Thomas Sam; R v Manju Sam (No. 18) [2009] NSWSC 1003

In this recent case, a father and
mother were charged with man-
slaughter by criminal negligence.
The case revolved around the
death of the couple’s nine-month-
old daughter who suffered
from eczema. The parents had
repeatedly rejected conventional
medical treatment, and instead
relied on ineffective homeopathic
treatments, despite the child con-
stantly crying in pain, with broken
skin oozing fluid. The court found
that the condition was medically
treatable yet because treatment
was denied the child had unneces-
sarily suffered and died from it.
The court found that both
parents were well educated and
should have known to seek appro-
priate medical treatment for their
daughter, which they failed to
do. The court also found that the
father had a higher duty of care
as he was a trained homeopath
with a higher degree of medical
knowledge. The judge in the
case, Justice Peter Johnson,
concluded that it was the ‘most
serious case of manslaughter by
criminal negligence’.
The parents were both found
guilty of manslaughter and
sentenced to imprisonment.
On appeal, both sentences
were increased, with the father
receiving eight years’ imprison-
ment and the mother receiving
five years and four months.

Cha pter 1: T he na ture of cri me 7


causation
the link between
the behaviour of the
accused and the result
(i.e. that the behaviour
of the accused actually
caused the criminal act
alleged)
strict liability offence
an offence where the
mens rea does not
need to be proved;
only the actus reus (the
guilty act) needs to be
proved
R E VIE W 1.2
1 Explain the difference
between actus reus and
mens rea.
2 Using a specific crime as an
example (e.g. drink-driving
offence, murder, robbery),
describe what you think the
actus reus and mens rea of
the crime might be.
3 Describe how strict liability
offences differ from usual
offences and give examples
of some strict liability
offences.
8 C am br i dg e L e g a l S t u d i e s – HS C
C a u s a t io n
A further consideration relevant when establishing
the elements of a crime is that of causation –
proving that there is sufficient causal link between
the actions of the accused and the result. This will
often be relevant in proving the actus reus and
requires the prosecution to prove a substantial link
between the act and the crime.
A recent NSW case highlights the application of
causation. In the case of R v Munter [2009] NSWSC
158, the accused, Todd Munter, was charged with
manslaughter after he punched 66-year-old Ken
St ric t l ia b i l i t y o f fe nces
Not all offences require the prosecution to prove
mens rea. For some limited offences, only the
element of actus reus will need to be
shown. These offences are known as
strict liability offences.
A strict liability offence is one
where the prosecution only needs to
prove that the accused carried out
the act, and is not required to show
that the accused intended in any way
to commit the crime. Because strict
liability offences dramatically lower
the level of proof required to achieve
a criminal conviction, and so lessen
an accused’s rights in the criminal
process, they are generally restricted
to minor offences, such as traffic
offences or breaches of regulations.
C a tegories of c ri me
There are many different crimes and they can be
categorised in numerous different ways. These
categories will often affect the way an offence is
investigated, prosecuted or punished and include:
Proctor over a dispute regarding water restrictions.
Mr Proctor fell to the ground after the punch and
Mr Munter kicked him in the midsection with
moderate force. Shortly afterwards, Mr Proctor
died from a heart attack as a result of the blows
inflicted upon him by Mr Munter. Although there
was no apparent intention to murder Mr Proctor, it
was deemed by the courts that Mr Proctor’s death
was caused by the unlawful assault of the accused.
Mr Munter was convicted of manslaughter and
jailed for three years and three months.
For example, for speeding offences, which are
strict liability offences, the police do not need to
show that a person intended to break the speed
limit (that is, had mens rea) only that the person
did so (committed the actus reus). That is, a person
only has to be caught speeding to incur a fine.
Another example of strict liability offences
include selling alcohol or cigarettes to people
under the age of 18 – it doesn’t matter whether or
not the seller knew the buyers were underage, just
that they were. Strict liability is applied to offences
due to its administrative advantages, for example
to assist the legal system in coping with the daily
volume of traffic violations, or to put a greater
onus on society to comply with the particular law.
In some cases, a defence to strict liability may be
available if the accused can prove the act was an
‘honest and reasonable mistake’.
s Type of offence, for example offences against
the person or drug offences
s Jurisdiction, including whether it is a NSW or a
Commonwealth crime
 C rim e
Figure 1.4 Crimes are categorised by the nature of the offence and the seriousness of the offence.

s Seriousness of the offence, or whether it is a
summary or indictable offence
s Parties to a crime, for example whether the
accused is the principal offender of the
crime or assisted in some way.
Types of offences
In NSW, the Crimes Act 1900 (NSW) is currently
divided into roughly 16 parts relating to the
main types of offences. These parts are then
further divided into hundreds of divisions,
sections and subsections. Offences are also
included in numerous other NSW acts and regu-
lations. Commonwealth offences follow a similar
regime.
R ESEAR CH 1 . 1
A complete version of the Crimes Act 1900
(NSW) is available at: www.legislation.nsw.
gov.au
Find the Act on the website and look at the
categories of offences listed under the Act.
1 How many of the categories and offences
listed in Table 1.1 can you find in the Act?

Table 1.1

Type of offence Examples

Offences against the person
Offences against the sovereign
Economic offences
Drug offences
Driving offences
Public order offences
Homicide, assault, sexual assault
Treason, sedition
Property offences, white-collar crime, computer offences
Trafficking, possession, use trafficking
dealing or trading
Speeding, drink driving, negligent driving in something illegal,
Offensive conduct, obstructing traffic, affray, bomb hoaxes particularly drugs

Preliminary offences Attempts, conspiracy

Regulatory offences Breach of water restrictions, fire restrictions or public transport
rules

Cha pter 1: T he na ture of cri me 9


homicide
the act of killing a
human being
murder
the deliberate killing of
a person
manslaughter
the killing of a person
in a manner that is
considered to be less
intentional than murder
voluntary
manslaughter
the killing of a person
where the accused did
intend or was reckless
about killing someone
but there are mitigating
circumstances
mitigating
circumstances
conditions that may be
considered by a court
when determining
guilt or innocence of a
defendant; mitigating
circumstances do not
justify or excuse an
offense but may reduce
the severity of a charge
provocation
a defence where the
accused claims that
the actions of another
person caused them
to temporarily lose
control; the act of
inducing rage, anger, or
resentment in another
person that may cause
that person to engage
in an illegal act
involuntary
manslaughter
the killing of a person
where the death
occurred because the
accused acted in a
reckless or negligent
way without intention
to kill
10 C am br i d g e L e g a l S t u d i es – HS C
This section will look at the following main
categories of offences:
Offences against the
person
Offences against the person involve some form of
harm or injury to an individual. Because there are
so many ways that someone can cause injury to
another person, these types of crime are divided
into three distinct areas, each including numerous
offences: homicide, assault and sexual offences.
Homicide
In the criminal justice system, homicide is
defined as the unlawful killing of another person.
This includes both deliberate and accidental acts
of killing, with varying degrees of mens rea appli-
cable. In a homicide case, causation must be
established between the actions of the accused
and the death of the victim.
There are four main categories of homicide in
NSW law: murder, manslaughter, infanticide and
death by reckless driving.
Murder
Murder is the most serious homicide offence
and is punishable by life imprisonment. In order
to prove in court that a killing was murder (i.e.
directly related to the actions of the accused), the
prosecution must show that at least one of the
following exists:
s the accused intended to deliberately kill the
victim
s the accused set out to inflict serious bodily
harm, which resulted in death
s the act was done with reckless indifference to
another human life; that is, the accused did not
care that the act might end a human being’s
life
s the act was done while committing or attempt-
ing to commit another serious crime punishable
by life or 25 years’ imprisonment.
The third of these elements is usually the hardest
to prove. In Boughey v The Queen (1986) 161 CLR
10, a doctor strangled his wife during a sex ‘game’.
The court held that there was a substantial or good
chance of harm, that Boughey had the knowledge
and capacity to know better, and that the act
constituted a ‘reckless indifference to human life’.
Boughey was convicted of the murder.
Murder is one of the most severe crimes possible
and attracts some of the harshest penalties. As a
result, murder cases often receive a great deal
of media attention. Television programs such as
‘Law and Order’, ‘CSI’ and ‘City Homicide’ have
also popularised the murder genre giving the
impression that murder is a common crime. In
reality, however, the opposite is true. The number of
recorded murder victims in NSW from September
2008 to September 2009 was 88, compared with
26 042 domestic violence-related assaults for the
same period. According to the Australian Institute
of Criminology (AIC), most murder victims are
killed by a family member or friend.
l eg al l i nks
A range of recorded criminal
incidents in NSW can be accessed
on the website of the NSW Bureau
of Crime Statistics and Research
at: www.bocsar.nsw.gov.au
Manslaughter
Manslaughter is the second type of homicide but
differs from murder in the intent of the accused.
Manslaughter involves a reduced level of intent and
is punishable by up to 25 years’ imprisonment. A
person may be charged with manslaughter where
it cannot be proved that they intended to kill the
victim to the degree required for murder. There
are three main types of manslaughter:
s Voluntary manslaughter occurs when a person
kills with intent, but there are mitigating
circumstances (such as the defence of provo-
cation) which reduce their culpability. For
the crime to be classed as voluntary man-
slaughter, not murder, there must be mitigating
circumstances.
 C rim e
Figure 1.5 Popular depictions of the murder genre, such as CSI: Crime Scene Investigation, give the
impression that murder is a common crime in society when in fact, the opposite is true.

s Involuntary manslaughter is the killing of a account the state of mind of the mother at the time constructive
manslaughter
person where the death occurred because the she committed the crime. Many women suffer
the killing of a person
accused acted in a reckless or negligent way, from a condition called post-natal depression while the accused was
but without intention to kill the person. In after the birth of a child. If the accused is found carrying out another
dangerous or unlawful
DPP v Newbury and Jones [1977] AC 500 the to have been suffering from this condition when
act
accused deliberately dropped a slab of concrete she killed her baby it can be seen as a mitigating
infanticide
from a bridge and the concrete hit and killed circumstance of the crime. the death of a baby
a train guard. This act was held to constitute under the age of 12
months at the hands
involuntary manslaughter even though there Dangerous driving causing of its mother
was no intention to kill or harm anyone. death
s Constructive manslaughter is the killing Dangerous driving occasioning death
of a person while the accused was carrying is a particular type of manslaughter R ESEAR C H 1 . 2
out another dangerous or unlawful act. The enacted to deal with deaths as a result Go online and search
manslaughter is ‘constructed’ from the other from motor vehicle accidents. It des- for five recently closed
unlawful act. For example, where a person cribes when a person drives in an homicide cases. Draw up
assaults another person without intention to unsafe and reckless way, such as under a table and identify the
kill or inflict serious bodily harm, but death the influence of alcohol or a drug, or following:
results, then the death may be construed as at excessive speed, and in so doing s the appropriately
manslaughter by the accused. causes the death of another human referenced case name
being. A conviction for this crime and court reference
Infanticide carries a maximum penalty of 10 years s the charges brought
Infanticide is a special category of manslaughter in prison. However, if the offence is against the defendant
that applies to the death of a baby under the age of aggravated by certain circumstances s some case details
12 months at the hands of its mother. The Crimes the penalty can be as much as 14 years’ such as the ruling and
Act 1900 (NSW) requires that the court take into imprisonment. punishment.

Cha pter 1: T he na ture of cri me 11


assault
causing physical harm
or threatening to
cause physical harm to
another person
common assault
threatening to cause
physical harm to
another person
aggravated assault
the assault of a person
with an object rather
than the assailant’s own
body
sexual assault
when someone is
forced into a sexual
intercourse against
their will and without
their consent
sexual intercourse
broadly defined in
the Crimes Act 1900
(NSW) to include oral
sex or penetration of
the vagina or anus by
any part of another
person’s body or by an
object manipulated by
another person
indecent assault
an assault and ‘act of
indecency’ on or in the
presence of another
person without their
consent
aggravated sexual
assault in company
sexual assault
performed with another
person or people
present together
with aggravating
circumstances
12 C am br i d g e L e g a l S t u d i es – HS C
Assault
Assault is the most common form of crime
against the person. Assault includes the offence of
causing both physical harm to another person and
of threatening to cause physical harm to another
person (known as common assault).
Physical assault is a direct act in which force is
applied to another person’s body unlawfully and
without their consent and is punishable by up to
five years’ imprisonment. A threat to cause physi-
cal harm can also be a form of assault where it
causes the victim to fear immediate and unlawful
violence – threatening phone calls, text messages
or emails might constitute such a form of assault.
Aggravated assault is a more serious charge
than assault and occurs when the assailant assaults
a person using an object (rather than just their own
body) or if the accused attacks a police officer when
the officer is carrying out their duties. In recent
years, there have been cases of thieves threatening
people during robberies with a hypodermic syringe
they claim is filled with blood containing an infec-
tious disease. Such threatening acts could fall
under the category of aggravated assault.
Sexual offences
Sexual assault is a type of assault where someone
is forced into sexual intercourse against their will
and without their consent. It was formerly known
in common law as ‘rape’. The definition of sexual
assault includes where consent is withdrawn
during the act of sexual intercourse. Sexual inter-
course is defined broadly in the Crimes Act 1900
(NSW) to include different types of sexual acts
including oral sex and penetration. Sexual assault
can occur equally to both men and women.
Although the vast majority of such assaults are
against women, it is suggested there are still more
male victims than shown by statistics. Victims’
fear of reporting the crime is a serious problem in
cases of sexual assaults.
Lack of consent is central to the crime of sexual
assault and is defined in detail in the Act. It states
that a person is not consenting where they are:
s substantially intoxicated by drugs and alcohol
and therefore lack the capacity to consent
s intimidated or coerced into the act, or
s if the accused is abusing their position of trust
or authority over the victim.
The crime of aggravated sexual assault will
be applicable where there are aggravating
circumstances, such as where violence is used,
the victim is under 16 years old or the victim has a
serious physical or intellectual disability.
Indecent assault is another type of sexual
offence, where the accused commits an assault
and ‘act of indecency’ on or in the presence of
another person without their consent. Indecent
acts are not expressly defined in the Crimes Act
but include an assault with a sexual element.
This offence covers many sexual acts that are not
included under the offence of sexual assault, such
as touching the genitals or other parts of the body
in a sexual manner without their consent.
The most serious sexual offence in NSW is
that of aggravated sexual assault in company.
Punishable by the highest criminal sanction, life
imprisonment, the offence is viewed by the law as
equivalent in seriousness to murder. The offence
includes the elements of sexual assault, but is
performed with another person or people present
together with either depriving the victim of their
liberty or the infliction or threatened infliction of
bodily harm. The offence of aggravated sexual
assault in company was introduced in NSW in
2001 following a series of so-called ‘gang rapes’
across Sydney’s inner-west that led to a public
outcry for reform of the law. The Case Space on
the next page illustrates the main case behind the
reforms.
Table 1.2 Number of reported cases of sexual
assault in NSW
Offence Year
2006 2007 2008
Sexual assault 4028 4182 4190
Indecent assault and 3507 3411 3404
act of indecency
Other sexual offences 1893 1792 1819
Source: NSW Bureau of Crime Statistics and Research, 2004–08
 ca s e s p a ce
R v AEM (Snr); R v KEM; R v MM [2002] NSWCCA 58
The catalyst for change in the
NSW law of sexual assault in
company was the case of R v
AEM. The case involved three
young men (two brothers and
their cousin who were 19, 16
and 16 years old respectively
at the time of the crime). They
lured two 16-year-old girls who
were waiting for a taxi to the
offenders’ home in Villawood.
The girls were then forcibly
detained and sexually assaulted
over a period of several hours.
The girls were threatened with
knives and verbal death threats.
Offences against the
sovereign
Offences against the sovereign are some of the
oldest crimes and include political offences against
the state or heads of state, such as treason and
sedition, with severe penalties if they are violated.
The laws are justified as protecting the structure,
authority and integrity of the state and the citizens
that it governs. Historically such laws were more
frequently used to prevent or punish attempts to
overthrow or even criticise heads of state. Australia
today is a stable parliamentary democracy, where
objections are aired through protest, public
comment, elections or law reform, and such laws
have arguably fallen out of use.
Treason was a common law crime in England
long before it was first codified by King Edward
III in the Statute of Treasons in 1351. The offence
was defined as acts directed against the sovereign.
At that time, the sovereign was the monarch; this
was later widened to include heads of state such
as the prime minister and governor-general. The
crime of treason was imported to Australian law
At the time the only applicable and tougher penalties, creating
crime was aggravated sexual a new offence of ‘aggravated
assault, which carried the sexual assault in company’ in
highest penalty of 20 years’ s 61JA of the Crimes Act 1900
imprisonment. The men were (NSW). The new offence carries
originally sentenced to five to a maximum penalty of life
six years’ imprisonment each. imprisonment, equivalent to
The abhorrent nature of that for murder.
C rim e
these crimes led to a public Notably, on appeal by the
outcry over the existing laws of Crown in 2002, the appeal
rape, which were thought by a judges decided to significantly
large segment of the public to increase the offenders’ original
be too lenient given the nature sentences, substituting
of the crime. Following the case, them with 13 to 14 years’
the NSW Parliament moved imprisonment each.
quickly to introduce new laws
from the UK and later enacted in NSW under
Part 2 of the Crimes Act 1900 (NSW), and in the
Commonwealth under the Crimes Act 1914 (Cth)
and later under s 80.1 of the Criminal Code 1995
(Cth). Under the NSW Crimes Act, the 1351 Act is
expressly continued in force. Treason involves any treason
an attempt or
attempt or manifest intention to levy war against
manifest intention
the state, assist the enemy, or cause harm to or to levy war against
death of the Governor-General, prime minister or the state, assist the
enemy, or cause
the Queen of Australia. Treason was formerly a
harm to or death of a
crime punishable by death. Today, it is punishable head of state
by up to 25 years’ imprisonment (NSW) or life sedition
imprisonment (Commonwealth). promoting
discontent, hatred
Sedition is another type of crime against
or contempt against
the state that involves promoting discontent or a government or
overthrow of the government or sovereign. Dating leader of the State
through slanderous
back to at least 1606, a seditious act historically use of language; in
involved any oral or written intention to bring the Australia, sedition
includes offences
sovereign into hatred or contempt, and included
of urging force or
inciting disaffection against the government or violence against the
parliament. The laws were criticised as being open government
for abuse in silencing government opposition,
public comment and endangering freedom of
speech.
Cha pter 1: T he na ture of cri me 13

R E S E A RC H 1.3
The Australian Law Reform
Commission’s report Fighting
Words: A Review of Sedition
Laws in Australia contains a
history of sedition laws and
various recommendations
about reforming Australia’s
laws. It is available online at:
www.austlii.edu.au/au/other/
alrc/publications/reports/104.
Look at the report and
answer the following questions:
1 In what circumstances have
Australia’s sedition laws been
used in the past?
2 What were some of the
dangers of sedition laws
identified by the ALRC?
3 What are some of the
recommendations of the
ALRC report?
4 Search the internet for
current news articles and
identify whether Australia’s
sedition laws have yet been
amended by the government.
larceny
when one or more
persons intentionally
takes another person’s
property without
consent and without
intention of returning it
robbery
when property is taken
directly from a victim,
usually forcefully
14 C am br i d g e L e g a l S t u d i es – HS C
In Australia, sedition laws had fallen into
disuse until 2005 when the then Commonwealth
government, under Prime Minister John Howard,
introduced a range of controversial antiterrorism
laws in the Anti-Terrorism Act (No. 2) 2005 (Cth),
which included a revived sedition law. The
Australian laws, under s 80.2 of the
Criminal Code 1995 (Cth), make it a
crime to urge another person to use
force or violence to a particular end,
such as overthrowing the government
or Constitution or interference in
parliamentary elections. The offences
are punishable by up to seven years’
imprisonment.
The sedition laws received wide-
spread public criticism as being un-
necessary, against the times, and a
danger to freedom of expression, par-
ticularly in relation to commentary
and critique by the media and the arts.
When the subsequent Labor gov-
ernment was elected to power in
November 2007, it immediately com-
missioned a review of the laws by the
Australian Law Reform Commission
(ALRC) with a view to amending them.
Among the ALRC’s recommendations
were to remove any reference to the
term ‘sedition’ from the laws and
to amend various elements of the
offences and available defences. At
the time of printing the laws remain
in force and have yet to be amended.
Economic offences
Economic offence is a broad term including a wide
range of crimes that can result in a person or per-
sons losing property or sums of money. It is the
largest area of criminal law because it encom-
passes some of the most common types of crime.
Economic offences fall into three main categories:
s crimes against property
s white-collar crime
s computer offences.
Crimes against property
In NSW, there are three main types of offence
against property: larceny, robbery and break and
enter.
Larceny is the most common property offence
and is more commonly known as ‘theft’ or ‘steal-
ing’. It is also one of the most likely economic
offences that people will fall victim to at some
time in their lives. Larceny occurs when one or
more persons intentionally take another person’s
property without their consent and without the
intention of returning it. One of the most common
forms of larceny is shoplifting. The offence of
larceny is punishable by up to five years’ imprison-
ment, but this may differ depending on the type
of larceny involved.
Robbery is a more serious offence than larceny.
Robbery occurs when the use of force is present
in the act of stealing goods or when property is
taken directly from a victim. If the robbery is
accompanied with the use or threatened use of a
weapon then the crime is called ‘armed robbery’
and will carry an even higher sentence.
Break and enter is another very common
economic crime more commonly known as
‘burglary’. The term refers to a series of offences in
the Crimes Act related that generally occur when
a person or persons enters a room or building,
such as a private residence, with the intention of
committing an offence. Usually the offender will
be doing so with the intention to commit another
property offence like larceny.
White-collar crime
White-collar crime is a general term given to
various non-violent crimes associated with busi-
nesspeople or professionals. White-collar crime
is often difficult to detect and can be time-
consuming and expensive to investigate. Three
of the most common white-collar crimes include
embezzlement, tax evasion and insider
trading.
Embezzlement describes when a person, usually
an employee, misappropriates another person’s
property or money that they have been entrusted
with. Embezzlement usually occurs when an
Table 1.3 Number of reported cases of break and enter in NSW break and enter
commonly known as
Offence Year burglary, break and
2006 2007 2008 enter offences usually
occur when a person
Break and enter dwelling 48 036 47 610 44 782 enters a home with
Break and enter non-dwelling 27 153 24 411 22 889 intent to commit an
offence
Steal from dwelling 24 313 23 000 21 747
white-collar crime
Steal from retail store 18 110 18 399 19 843 a general term for
various non-violent
Source: NSW Bureau of Crime Statistics and Research, 2004–08
crimes associated
with professionals or
businesspeople, such
employee steals money from their employer, for that their income is lower than it actually is, or
as embezzlement,

C rim e
example by transferring sums of money to the organising a business or property in a way as to tax evasion or insider
employee’s own account or stealing money from hide income or assets, thereby reducing the total trading

the cash register or petty cash tin. It might involve amount of tax they are required to pay. Tax evasion embezzlement
when a person
a large-scale corporate embezzlement, sometimes can incur high penalties when discovered.
steals money from a
with more than one offender, or small amount Insider trading is an offence related to the business over a period
stolen from a local business. Money will often be buying and selling of company shares. It occurs of time while they
are employed at that
embezzled in small amounts at a time, sometimes when a person (usually a stockbroker or company
workplace
with accounts or records modified in an attempt director) obtains confidential inside information
tax evasion
to hide the conduct. Embezzled money can be about a company that will affect the share price. an attempt to avoid
difficult to recover, even when pursued through The information will usually relate to the share paying the full
amount of taxes due
the courts as it may be untraceable or the offender price significantly increasing or dropping, which by concealing or
may be financially disadvantaged and unable to the offender will then take advantage of, for underestimating a
person or business’s
repay the money they have stolen. example by buying or selling his or her own shares
income or assets
Tax evasion is a common white-collar crime and to reap the benefits or avoid the losses. A highly
insider trading
occurs when a person or company tries to avoid publicised case of insider trading in Australia is when a person
paying taxes to the government. Often it involves that of Rene Rivkin, described in the Case Space illegally trades on
the share market to
people fraudulently filling out tax returns stating below.
their own advantage
using confidential
information
c a se sp ac e

R v Rivkin (2003) 198 ALR 400

The accused, Rene Rivkin,
was a well-known Australian
entrepreneur, investor and
stockbroker. He was found
guilty of insider trading after a
long-running investigation for
having purchased some 50 000
shares in Qantas in April 2001.
It was found that Mr Rivkin
had been told confidential
information by a company
executive just hours before
he bought the shares of an
impending merger between
Qantas and the company,
Impulse. It was likely that the
price of the shares would
rise once the information
was publicly available. The
purchase resulted in small
profit of $2662.94.
Mr Rivkin was convicted and
sentenced to nine months of
periodic weekend detention,
and his stockbroker licence
had been separately banned.
R ESEAR CH 1 . 4
Search newspapers or
online and find five articles
about white-collar crime.
Make sure they are current
and different cases. Write
a summary on each of
the cases and attempt to
identify the reasons for
the accused committing
the offence, the defence
presented by the accused,
and any other interesting or
relevant facts of the case.

Cha pter 1: T he na ture of cri me 15

 Computer offences
Computer offences include various crimes related
to hacking and unauthorised access or modifi-
cation of data. The Crimes Act 1900 (NSW) lists a
number of computer offences such as unauthor-
ised access to, modification or impairment of
restricted data, or more serious crimes like
impairment of electronic communication or un-
authorised access or modification of restricted
data with intent to commit a serious offence. The
more serious computer crimes can incur a penalty
of up to 10 years’ imprisonment.
Computer crimes might occur, for example,
where the offender breaks through the security
firewalls of a company’s computer and alters or
steals the company’s data. Such crime might result
in private financial data (such as those related to
people’s personal bank accounts or credit cards)
being made available to people who could use it
unlawfully. Computer crimes will sometimes be
committed by an employee of the target company
or by an outsider with sufficient computer literacy
to commit the offence.
Fraud is a further type of economic offence that
fraud can include white-collar crime, property offences
deceitful or dishonest or computer crime. Fraud refers to deceitful
conduct carried out for
personal gain or dishonest conduct carried out for personal
gain. It is often an element of other offences,
such as fraudulent misappropriation, fraudulent
personation or obtaining credit by fraud.
Fraudulent crimes are becoming increasingly
relevant with advances in technology, especially
relating to internet use and electronic facilities such
as automatic teller machines (ATMs). Common
types of fraud include identity theft, internet
phishing (fraudulently posing as a legitimate
website), or requesting funds or account details by
email under fraudulent pretences. Nigerian e-mail
scams or ATM skimming devices are some of the
most well-known scams. Identity fraud might
involve a person using another person’s personal
details to apply for credit cards or loans, or open
bank accounts to deposit fraudulently gained
funds into them. Identity fraud is also one of the
fastest growing areas of crime in Australia, with
16 C am br i d g e L e g a l S t u d i es – HS C
the Australian Federal Police estimating the cost to
the Australian public at over $4 billion a year.
legal links
The Australian Government
has established a website with
information about current
fraudulent scams. It can be viewed
at: www.scamwatch.gov.au.
Drug offences
Drug offences relate to acts involving prohibited or
restricted drugs. There are many crimes that may
be associated with drug abuse or addiction, such as
larceny, robbery, break and enter or prostitution.
Drug offences focus on the movement of the drugs
themselves, including for example the growing,
selling and use of the drug.
People have access to many different types
of drugs in society, both legal and illegal. Legal
or unrestricted drugs might include paracetamol
or caffeine. Illegal drugs are drugs that have
been prohibited by law because lawmakers have
deemed them unsafe for general use, and include
for example cannabis or heroin. Restricted drugs
or controlled substances may be drugs that are
available via prescription only, for example cold
and flu tablets or anti-depressant medication,
or might be restricted for particular scientific or
medical uses.
In NSW, the Drug Misuse and Trafficking Act
1985 (NSW) outlines numerous offences related to
prohibited or restricted drugs, with some additional
offences included in the Summary Offences Act
1988 (NSW). The main federal legislation relating
to drugs is the Customs Act 1901 (Cth) and will most
often apply where there is an international element
to the offence, like cross-border drug trafficking.
The most common drug offences relate to pro-
hibited drugs and focus on cultivation, production,
supply and trade (trafficking), possession or use
of the drug.
 Some of the main offences are outlined below:
s possession of a prohibited drug: the drug must
be in the accused’s custody or control, and the
accused must know about it; including shared
ownership or simply minding it for another
person
s use of a prohibited drug: the intentional con-
sumption of the drug by any means, although
this will not apply if the use occurs in a
medically-supervised injecting centre
s cultivation: applies to the growth or cultivation
of a prohibited plant, such as cannabis
s supply of a prohibited drug: this is a broad
offence including offering or agreeing to supply,
whether or not the actual drug or money really
changed hands; it can also include having drugs
in your possession for the purpose of supply or
single or multiple instances of supply.
Drug offences will often carry severe penalties.
Users may often face penalties such as attending a
drug rehabilitation program and complying with a
good behaviour bond, and cases may be heard in
dedicated youth or adult drug courts. Suppliers or
those who make drugs are dealt with much more
severely, as their actions are deemed to have a
greater impact on the community as a whole.
Figure 1.6 On 2 December 2005, Australian
Van Nguyen was executed at Changi Prison in
Singapore for drug trafficking.
Drug traffickers face lengthy jail sentences in
Australia, particularly for international trafficking.
In some countries (including Indonesia, Singapore
and Malaysia), traffickers may face the death
penalty. For example, there was much controversy
when a 25-year-old Australian citizen, Van Nguyen,
was hanged for drug trafficking in Singapore. Van
Nguyen had been arrested at Changi airport in
2002 after being caught importing 396.2g of heroin
into Singapore. He was convicted and sentenced
to death. Despite calls for clemency from the tens
C rim e
of thousands of Australians, the Prime Ministers
of Australia and New Zealand and even the Pope,
Van Nguyen was hanged at Changi Prison in
December 2005.
Driving offences
Driving or traffic offences are some of the most
commonly committed offences in NSW. Driving
offences are included under both the Road
Transport (Safety and Traffic Management) Act 1999
(NSW) and the Crimes Act 1900 (NSW).
The police enforce and process many driving
offences through the imposition of on-the-spot
fines. Such fines will generally relate to strict lia-
bility traffic offences like speeding. These offences
are easier to process as they only require the police
to show that the act was committed by the off-
ender, without needing to consider the individual’s
intention or state of mind. Traffic offences are
regulated by the NSW Roads and Traffic Authority
(RTA), which controls the demerit system where
offenders will lose points from their driver’s licence
if caught committing certain traffic offences.
The most common traffic offences include:
s exceeding the speed limit
s driving without a licence or while disqualified
s ignoring road signs
s driving above the legal blood alcohol limit of
0.05.
Driving offences include serious offences pun-
ishable by significantly higher penalties. Such
offences will be dealt with through the courts
and may result in the imposition of large fines,
Cha pter 1: T he na ture of cri me 17

Figure 1.7 Driving under the influence of proscribed drugs or with
excessive blood-alcohol level are considered serious driving offences
with high penalties.
affray
using or threatening to
use violence towards
another that would
cause a reasonable
person present at the
scene to fear for their
safety
riot
similar to affray, but
with 12 or more people
using or threatening to
use unlawful violence
for a common purpose
attempt
an offence where a
principal crime was
attempted but failed
or was prevented for
some reason despite
the intention to
complete it
conspiracy
when two or more
people plot to commit
a crime together
18 C am br i d g e L e g a l S t u d i es – HS C
suspended or cancelled licences or imprisonment.
Serious offences include furious or reckless
driving, negligent driving causing death or serious
bodily harm, or failing to stop and give assistance
in an accident involving death or injury. They also
include driving under the influence of proscribed
drugs or with an excessive blood-alcohol level.
Public order offences
Public order offences relate to acts that are
deemed to disturb the public order in some way,
such as a disturbance in or in sight of a public
area. There are a number of public order offences
listed in the Summary Offences Act 1988 (NSW) and
under Part 6A of the Crimes Act 1900 (NSW). Public
order offences are often acts that society deems
as inappropriate or offensive when conducted in
public, although they may be perfectly legal or
acceptable within the confines of one’s own home.
Some of the most common public order offences
include:
s obscene, indecent or threatening language or
behaviour in public
s possessing a knife in a public place without
reasonable excuse
s obstructing traffic or ignoring a reasonable
police direction to ‘move on’
s damaging public fountains or protected places.
These offences will usually incur a fine or other
lesser penalty. However, some public order off-
ences are more serious crimes that will usually
be heard in court and can result in significantly
higher penalties. More serious public order
offences are listed in the Crimes Act. For example
the offence of affray involves using or threatening
to use unlawful violence on another that would
cause a person of reasonable firmness to fear for
their safety. It is a charge often laid as a result of
a public fight or brawl where people nearby could
have feared for their safety and is punishable by
up to 10 years’ imprisonment. Riot is a similar
public order offence but involves 12 or more people
using or threatening to use unlawful violence
for a common purpose. Other serious public
order offences include explosives and firearms
offences, bomb hoaxes or participation in criminal
organisations.
Preliminary crimes
Preliminary offences refer to offences that precede
the commission of a crime or where the crime has
not been completed for some reason, for example
it may have been interrupted or unsuccessful.
Preliminary crimes fall into two main categories:
attempts and conspiracy.
An attempt to commit a crime will still be
considered an offence and will usually be punish-
able by the same penalty as if the crime had taken
place. Section 344 of the Crimes Act 1900 (NSW)
states that ‘any person who attempts to commit
an offence for which a penalty is provided… shall
be liable to that penalty’. However, penalties for
certain attempts, such as attempted murder are
dealt with specifically in the Act and may carry a
lower penalty.
Because the penalty for an attempt is so high,
the prosecution will need to show that the offence
was all but completed or failed for some reason
despite the intention to complete it. The accused
may have a lawful reason for the conduct in
question or have had no real intention of com-
pleting the apparent crime. For example, in R v
Whybrow (1951) 35 CAR 141 a husband connected
electricity to the soap dish in the family bath in
order to electrocute his wife. His plan did not
work and when his wife came into contact with
the soap dish she received only a shock. The court
found him guilty of attempted murder because his
intention for the act to succeed and result in death
was clear, despite the fact that it had failed.
Conspiracy occurs when two or more people
jointly conspire to commit a crime. The conspiracy
is complete where an agreement (the act) is
reached between the parties, with the intention
also shown by each person’s explicit agreement
to commit the offence. It may be difficult for a
prosecutor to prove conspiracy without the aid of
a confession or record, such as a signed document
or phone tap, because the crime allegedly agreed
to will not have taken place.
Regulatory offences
Regulatory offences are usually set out in dele-
gated legislation, such as regulations or local laws,
that address a range of day to day situations and
standards. They differ from more serious offences
set out in statute or common law that can only
be modified by parliament or in some cases the
courts. Regulatory offences are considered more
minor offences with lesser penalties. They are
usually set by the government department or
agency responsible for that area of law and policy
and require faster or more frequent change than
traditional legislative processes allow. Examples of
regulatory offences include:
s watering the garden despite water restrictions
being in place
s breach of occupational health and safety
regulations
s travelling on public transport without a valid
ticket
s lighting a fire or barbeque on a day of total fire
ban.
Regulatory offences are usually strict liability
offences that do not require any intention to be
proved. They will usually be enforced by govern
ment officers or local law enforcement officers. A
breach of a regulatory offence will usually incur a
C rim e
Figure 1.8 Many regulatory offences, such as
breaching water restrictions, have strict liability.
fine or loss of a particular licence, or in extreme
cases may result in more serious criminal charges
being laid.
R EV I EW 1 . 3
1 Using offences as examples, describe
some of the differences between offences
against the person and economic offences.
What types of crime do they include? What
are the main effects of the crimes? Why do
you think these acts are deemed ‘criminal’?
2 A number of driving offences and
regulatory offences are strict liability
offences. Using examples, describe why
you think these crimes are strict liability
only. What are the advantages and
disadvantages for society of such offences
being strict liability?
3 Attempts and conspiracies often carry
penalties as high as if the crime was
actually committed. Evaluate why this
- might be and describe some of the possible
difficulties in prosecuting an attempt or
conspiracy.
Cha pter 1: T he na ture of cri me 19

summary offences
less severe offences
that are heard and
sentenced by a
magistrate in the Local
Court
indictable offences
more severe offences
that are heard and
sentenced by a judge
in a District Court or
tried before a judge
and jury
20 C am br i d g e L e g a l S t u d i es – HS C
Su m m a r y a n d i n dic table of fences
All criminal offences are separated into two
important categories depending on the severity of
the offence: summary offences and indictable
offences. Whether the offence is summary or
indictable will be crucial to the way the case is
prosecuted and heard in court.
Summary offences are considered less serious
offences and will usually incur lesser penalties
than indictable offences, although they may still
have serious consequences. Summary offences
will be heard and sentenced in a Local Court
before a magistrate and not tried in front of a jury.
Penalties for summary offences may range from a
bond or fine to a jail sentence of up to two years,
or five if convicted of more than one offence. Many
summary offences are found in the Summary
Offences Act 1988 (NSW) and will also include
regulatory offences.
Indictable offences are more serious offences
such as assault or property damage and are
generally heard in the District Court. An initial
Table 1.4 A comparison of summary and indictable offences
Summary offence
s a less serious offence that is tried by a
magistrate in the Local Court
s the judgment and punishment are determined
by a magistrate
s the charge is usually laid by a police officer or
government officer
s the punishment is usually less severe, such as a
fine, good behaviour bond or community service
Pa r t ies to a c ri me
Crime is not always a solitary pursuit. Other people
are sometimes involved in the act, either before or
after the crime has been carried out. Any person
who has been involved in any way in committing
committal hearing will be held in the Local Court
where a magistrate will determine whether
the prosecution’s evidence is sufficient to go to
trial. Indictable offences will then be heard and
sentenced by a judge or where a not guilty plea is
entered will be tried before a judge and jury.
Many indictable offences will also be ‘triable
summarily’. This means that the accused will be
able to elect to have the case heard by a magistrate
in the Local Court or judge and jury in the District
Court. Cases heard in the Local Court can have sig-
nificant administrative advantages like an earlier
hearing date, faster hearing, less formality and
cost and the possibility of a lesser sentence due to
Local Court restrictions on maximum sentences.
However, where a not guilty plea is entered, the
District Court offers the advantage of a jury trial,
which might be more inclined to acquit, although
this would not be guaranteed.
The main differences between summary and
indictable offences are outlined in Table 1.4.
Indictable offence
s a more serious offence (such as murder or
rape) tried by a judge and jury
s the judgment is determined by a jury and
the punishment is determined by the judge
s the charge is brought by a public
prosecutor working for the state
s the punishment will usually result in
imprisonment or a hefty fine
a crime may become a ‘party’ to the crime. The
level of punishment that a court metes out to a
party is usually determined by that person’s level
of involvement in the crime. The parties to a crime
are divided into four main categories:
s Principal in the first degree – this is the principal second degree may be given a R EVI EW 1 . 4
offender, or the person who actually commits lesser sentence depending on 1 Describe the key
the criminal act. For example in an armed the circumstances. characteristics of a
robbery this would be the person who actually s Accessory before the fact – an summary offence and an
pointed the gun and took the money. The ‘accessory’ will be someone indictable offence.
principal offender will be directly responsible who has helped the principal 2 Identify some of
for the crime being carried out and so is likely to plan or carry out the crime. the advantages and
to receive the highest sentence. An accessory before the fact disadvantages for an
s Principal in the second degree – this is a person is a person who has helped in offender of having their
who was present at the crime and assisted or planning or preparation before case heard as a summary
encouraged the principal offender to perform the actual act is carried out. instead of an indictable

C rim e
the offence. For example in the scenario above, s Accessory after the fact – this offence.
this may be the person who kept a lookout by is someone who has assisted 3 Describe the four possible
the door. The presence need not be immediate the principal after the actual parties to a crime.
physical presence but assisting the principal act is committed, for example 4 Use a real or fictional
may be sufficient, for example by providing driving a getaway car or example of a crime to
instructions over the phone. The principal in the disposing of evidence. illustrate different parties
to an offence.

Fa c to r s a f fec t i n g c ri m i n a l
b e h av i o u r
People commit crimes for all types of reasons.
Any one person may commit the same crime for
an entirely different reason to another. People
have studied crime and the reasons or patterns
behind it for centuries. Numerous theories have
been developed to attempt to explain criminal
behaviour, some often less convincing than
others. The scientific study of crime and criminal
behaviour is known as criminology.
Although never easily defined or categorised,
some of the main reasons behind a person
committing an offence might include psychological
or pathological factors, social factors, economic
factors or political factors. Or one of the more
extreme theories of criminal behaviour relates to
genetic theory. On the other hand, some crimes
may even be committed due purely to self-interest.
Although even this may involve diagnosed or
undiagnosed pathological elements. In some
instances, crimes may be committed simply
because the particular area of law may be out of
date and in need of legal reform.
R ESEAR CH 1 . 5
The AIC is a research and knowledge centre
on crime in Australia that publishes various
crime-related statistics. Visit the following
website and find the latest edition of
Australian Crime: Facts and Figures: www.
aic.gov.au/en/publications/current%20series/
facts.aspx.
View the ‘Selected Offender Profiles’ criminology
the scientific study
section of the report and answer the of crime and criminal
following questions: behaviour
1 What are the main age and sex profiles of
offenders in Australia?
2 What are the main areas of income,
non-criminal and criminal, recorded by
offenders?
3 What percentage of offenders has been
arrested in the past 12 months?
4 What are the main types of crimes
committed by the offenders?

Cha pter 1: T he na ture of cri me 21

 Psychological factors
Psychological or pathological factors will often be
relevant to the commission of an offence, with
many forms of mental illness affecting a person’s
behaviour. These factors will often be important
during the criminal process, as early as the time of
arrest or charge, or relevant to the accused’s state
of mind and raised by either prosecution or defence
during a criminal trial. Psychological factors
contributing to the offence will also be relevant
during sentencing and particular sentencing
programs, such as drug rehabilitation programs,
will often focus on the accused’s psychological
rehabilitation.
Social factors
Social factors influencing a person’s attitude
towards crime may include their family situation
or personal relationships. The social groups
that people associate with will often influence
a person’s attitudes and views of acceptable
behaviour. This may be particularly relevant, for
example, in the area of drug offences or public
order offences. In other areas of crime it may be
the environment that a person has been raised in
that could influence their behaviour as an adult.
For example, a person brought up in an abusive
home may have experienced certain traumas that
may be replayed in their adult life without effective
treatment (such as assault or sexual assault, or
instances of drug abuse).
Economic factors
Economic factors present one of the most
substantial reasons for the committing of crimes
in NSW. People from disadvantaged backgrounds
are more likely to commit crimes and front
our courts than any other group. For example,
statistics released by the AIC show that one-third
of males and one-half of female offenders receive
a welfare or government payment as their main
source of income. Poor education and lack of
22 C am br i d g e L e g a l S t u d i es – HS C
skills will often be closely related to economic
factors, with such criminals often habitually
unemployed and unskilled. Even if gainfully
employed, menial or poorly paid jobs may affect
the likelihood of committing an offence. In some
instances, offenders may view criminal acts with
a financial benefit, such as larceny or robbery, as
a necessary option.
Genetic theories
Genetic theories surrounding criminal behaviour
have long been a topic of interest for scientists
and criminologists. For example, in the early
19th century the science of ‘phrenology’ was
born. Using this approach, criminals had their
head measured to determine whether there were
any physical characteristics that could allow
scientists to pick potential criminals because of
their appearance. Fortunately recent studies have
been more advanced. They have investigated and
compared the DNA of prisoners to see if there is
any one common genetic marker that can predict
criminal behaviour.
None of these genetic studies has been con-
clusive in showing that individuals with certain
genes are more likely to commit crimes. This
suggests that external factors like social, economic
or psychological factors play the greatest role in
criminal activity.
Political factors
Although not the most influential factors in crim-
inal offences, political factors have played a role
in influencing criminal behaviour for centuries.
Offences against the sovereign or offences
against the state are likely to have some political
factors influencing their commission. However,
some public order offences such as riots may
have politically motivating factors, especially in
situations where public protests become politically
intense. Examples include the annual protests at
the G8 Summit or protests at the 2009 Copenhagen
Climate Change Conference. Terrorism-related

Figure 1.9 Over a thousand protesters were arrested during violent protests at the Copenhagen
Climate Change Conference in 2009.
offences are some of the most extreme political
offences, where the use of violence or intimidation
will usually have explicit political aims.
Self-interest
Self-interest will usually play some role as a
motivating factor in committing a crime, from
committing drug offences for profit or for use,
C r i m e p r eve n t io n :
s i t u a t i o n a l a n d s oc i a l
Understanding the factors and motivations behind
crime is also important in crime prevention. This
chapter has examined a variety of reasons why
crimes are committed, the types of people who
commit them and the reasons why they do so. But
one thing is certain – crime has existed as long
as laws have been in place and will continue to
do so.
Society is always looking for ways to prevent
crime. For example, uniformed police officers
C rim e
property offences for profit, offences against the
person for self-interested revenge, and particularly
white-collar crimes such as embezzlement or
insider trading. White-collar crimes are a good
example of criminal activity being driven by
greed and self-interest rather than underlying
socio-economic or political factors, where the
motivations of money or power will often play a
significant role in committing the offence.
patrolling trains, shopping centres and the streets
may contribute to the prevention of certain crimes,
as do community based organisations, such
as Neighbourhood Watch. However, as society
and crime evolves and criminals become more
sophisticated other methods of crime prevention
need to be employed. Two main areas of crime
prevention are situational crime prevention and
social crime prevention. These are discussed
below.
Cha pter 1: T he na ture of cri me 23
 Situational crime
prevention
Situational crime prevention usually involves one
of two approaches – these are:
s Planning and architectural design focuses upon
the influence of physical environments upon
crime.
s Focused (situational) approaches rests on rational
choice theory, which views offenders as actors
who weigh up potential gains, risks and costs.
Situational crime prevention aims to make it more
difficult for criminals to carry out a crime and
therefore stop a crime before it is committed.
Planning and architectural design, for example,
may revolve around security such as installing
bars or an alarm system at home to ward off
would-be thieves, or use computer passwords or
internet firewalls to deter the theft of data.
Strategies like avoiding crime ‘hotspots’ such
as poorly-lit alleyways and carparks can assist
in preventing crime. More unusual tactics have
included shopping centres playing classical music
to deter groups of young people congregating and
Figure 1.10 A variety of situational crime prevention measures
24 C am br i d g e L e g a l S t u d i es – HS C
causing trouble. Closed-circuit television (CCTV)
cameras are another important method of crime
prevention and have been installed for example
in many retail stores and in known trouble spots
throughout major cities. Although they will not
always prevent crimes from being committed,
people may be deterred from committing a crime
when they know they are at risk of being impeded
or caught. It will also provide valuable evidence in
the event that an offence is actually committed.
Decreasing the rewards of crime is another
form of situational crime prevention. An example
of this approach is the use of colour tags attached
to clothing in shops. The tag sets off a detector at
the door of the shop if someone tries to walk out
with the item without purchasing it. If the tag is
removed by force, it releases blue dye all over the
stolen item, rendering it useless. Other methods
include magnetic strips embedded in items that
will set off a detector at the door.
Other crime prevention initiatives by local
councils have aimed at removing opportunities
for crime, such as designated no-alcohol zones
in an attempt to curb alcohol-related incidents,
 C rim e
Figure 1.11 Poor school attendance is one of the underlying social factors that may lead to criminal
behaviour.

improving lighting in areas such as car parks and
walkways, or installing blue fluorescent lights in
public toilets to prevent drug injecting in public
areas.
Social crime prevention
Some of the social and economic factors that might
contribute to a person committing an offence were
discussed in the previous section. Social crime
prevention attempts to address the underlying
social factors that may lead to criminal behaviour.
These factors may include:
s poor home environment and parenting
s social and economic disadvantage
s poor school attendance
s early contact with the police and other
authorities.
The government spends millions of dollars in
different areas to try to combat these social
problems. For example, funding is put into educa-
tional programs in schools to raise the education
levels of students deemed to be ‘at risk’. Schools,
TAFEs and private organisations have also formed
partnerships to provide better opportunities for
students who find the school setting inappropriate
for their individual needs. Parenting workshops
are run for mothers and fathers who come from
disadvantaged backgrounds and lack the skills
to empower themselves and
their children to make better life R EV I EW 1 . 5
choices. 1 Describe three different
Youth programs are also run to factors that might
teach dispute resolution skills and influence a person to
social skills that will encourage commit an offence.
potential offenders to make better 2 Define ‘situational crime
choices about their actions and prevention’ and provide
their futures. If such early crime examples of how this is
prevention programs can change achieved.
the course that a potential offender 3 Define ‘social crime
is on, it might prevent them from prevention’ and give
ever being in a situation where some examples of how
they feel encouraged to commit an this is achieved.
offence.

Cha pter 1: T he na ture of cri me 25


s A crime is an act or omission committed
against the community at large that is
C ha p te r s u m m a ry
punishable by the state.
s The criminal law is constantly changing.
s Criminal offences include an actus reus (guilty
act) and mens rea (guilty mind), except for
strict liability offences.
s Offences against the person include murder
and manslaughter, assault and sexual assault.
s Offences against the state are old laws
but have recently returned to parliament’s
attention.
M ul ti p l e- c hoi ce q ues ti ons
1 Selling alcohol to a minor is best described as
which of the following?
a a public order offence
b a strict liability offence
c an offence against the person
d an offence against the sovereign
2 Involuntary manslaughter is best described as
which of the following?
a a person causing the death of another
human being because they acted in a
negligent way
b a person taking their own life
c a murder reduced to manslaughter due to
mitigating circumstances
d a person causing the death of another and
they intended to do so
3 What is larceny?
a a white-collar crime that is on the increase
b using force when stealing goods
c the act of breaking into a private residence
to steal something
d the intentional taking of another person’s
property without their consent
26 C am br i d g e L e g a l S t u d i es – HS C
s Economic offences are wide and range
from theft to computer hacking and insider
trading.
s Crimes can be punishable even if they do
not succeed, for example, attempt and
conspiracy.
s Indictable offences are more serious offences
than summary offences.
s There can be more than one party to a crime
who may be punishable.
s Offenders commit crimes for different
reasons, influenced by many different factors.
s Crime prevention ranges from situational
approaches to broader social approaches.
4 Writing a book calling for the violent
overthrow of the government might be
prosecuted as what type of offence?
a a crime against humanity
b a crime against a person
c a crime against property
d a crime against the sovereign
5 A person who helps a criminal hide out at
their house might be charged as:
a an accessory before the fact
b an accessory after the fact
c principal in the first degree
d principal in the second degree
C ha p te r s u m m a ry ta s k s
1 Define what a crime is and describe the
characteristics of criminal law.
2 Using examples, explain the difference
between murder and manslaughter.
3 Explain the difference between summary
offences and indictable offences and list some
C rim e
examples of each.
4 Describe what regulatory offences are and
how they differ from other crimes.
5 Explain some of the factors contributing to
crime and provide examples of some crime
prevention techniques that might be used to
combat them.
Cha pter 1: T he na ture of cri me 27
 CHAPTER 2
The criminal investigation
process
chap te r o b j e cti ve s

In this chapter, students will: s describe the different types of evidence collected
s identify the rights of suspects during the during an investigation
interrogation process s communicate the relevant legislation in the
s describe the purpose, use and types of police investigation process.
powers
s discuss the role of technology in investigating crime
s explain the process of a criminal investigation
k ey ter ms/vocab ul ary

arrest
bail
charge
DNA evidence
evidence
in situ
inadmissible evidence
interrogate
interrogation
investigate
reasonable force
remand
search and seizure
summons
surety
warrant

28 C am br i d g e L e g a l S t u d i es – HS C
 rel ev ant l aw od d l a w

C rim e
I MPORTANT LEGIS L AT ION In the US state of Hawaii, it is legal to commit a
Bail Act 1978 (NSW) crime provided you only violate the law a little
Crimes Act 1900 (NSW) bit. Hawaii Revised Statutes 702-236 define what
Evidence Act 1995 (NSW) are known as de minimis infractions. Subsection
Law Enforcement (Powers and Responsibilities) B states that a crime is not a crime if it does
Act 2002 (NSW) not cause harm or ‘does so only to an extent
too trivial to warrant the condemnation of
S I GNIFICANT CA S ES conviction’.
Darby v Director of Public Prosecutions [2004]
NSWCA 431

Cha pter 2: T he crimina l investiga tio n proces s 29


investigate
for the police, this
means carrying out
research to discover
evidence and examine
the facts surrounding
an alleged criminal
incident
arrest
to seize a person by
legal authority and take
them into custody
interrogate
to formally question a
suspect in relation to
an alleged crime
evidence
information used to
support facts in a
legal investigation or
admissible as testimony
in court
search and seizure
the power to search
a person or their
possessions and seize
and detain items that
are discovered
R E SEA RC H 2. 1
The NSW Police Force’s Code
of Practice for CRIME can be
found at: www.police.nsw.
gov.au/about_us/acts_and_
legislations/legislation_list/
code_of_practice_for_crime.
Look at the website and
answer the following questions:
1 Describe the aims of the
Code of Practice.
2 Outline the processes the
Code covers.
3 Identify the values of the
NSW Police Force that the
Code is based on.
30 C am br i d g e L e g a l S t u d i es – HS C
Po l ice powe r s
The law defines what a crime is and whether a
particular act constitutes an offence. But laws
alone would be ineffective without any means
to enforce them. The responsibility for enforcing
criminal laws and ensuring they are adhered to
lies with the police.
Police form part of the executive arm of govern-
ment and so are separate from the legislature,
who makes the laws, and the courts, who make
enforceable legal decisions and judgments. Police
are responsible for the prevention and detection
of crime and for the maintenance of public order.
Importantly, it is the police that are responsible for
ensuring the criminal laws are observed.
The role of the police in the criminal investi-
gation process is to investigate crimes, make
arrests if necessary, interrogate suspects and
gather evidence against the accused. Police will
then present the evidence for judgment to a court
on behalf of the state, either directly or through a
prosecutor. The challenge for all communities is
to balance the extent of powers required by police
against the rights of ordinary citizens.
In New South Wales, crimes will
be investigated by the NSW Police
Force or the Australian Federal
Police, depending on whether the
offence is a state or a Common-
wealth offence. In some circum-
stances, offences may be enforced
by other government officials or
local law enforcement officers, par-
ticu larly in the case of regulatory
offences.
The NSW Police Force is awarded
special legal powers under statute
to enable them to carry out their
duties effectively. The majority of
these powers are contained in the
Law Enforcement (Powers and Res-
ponsibilities) Act 2002 (NSW), but
can also be found in other specific
legislation. Police may occasionally
be given greater powers in specific areas in order
to combat particular threats or perceived threats
to the community. Some of the main police powers
include the power to:
s detain and question suspects
s search property and seize evidence (commonly
known as search and seizure)
s use reasonable force if necessary to carry out
their duties
s use particular technologies to assist an
investigation, such as phone taps, surveillance
or DNA samples
s arrest and interrogate suspects
s recommend whether bail should be granted.
The special powers awarded to police can be
controversial because they will often directly
conflict with the ordinary rights of citizens. For
example if one citizen were to use force to detain
another in public, they may be criminally liable
for offences such as assault, false imprisonment
and affray. However, society and lawmakers deem
such police powers lawful and necessary to ensure
criminal laws can be effectively enforced and
public order maintained. Police will sometimes
need to seek a warrant from a court to be able
to use a particular power – such as making an
arrest or using a phone tap – this is one type of
check that is put in place in order to ensure special
powers are used appropriately and not abused.
The NSW Police Force also follows a specific
code of behavior called the Code of Practice for
CRIME (Custody, Rights, Investigation, Manage-
ment and Evidence), which sets out the rights of
suspects and the manner in which investigations
should be carried out. Police are expected to
treat all members of the community in a fair and
ethical manner regardless of age, sex, religious or
ethnic background, or the severity of the crime
they have committed. Where a suspect believes
his or her rights have been abused, there are
extensive complaints procedures available. The
NSW Police Force is also overseen by the NSW
Ombudsman and Police Integrity Commission.
 reasonable force
such force as is
reasonably necessary for
the officer to perform
the function; the officer
must honestly believe
that it was justified and
not excessive
warrant
a legal document
issued by magistrate
authorising an officer to
perform a particular act,
for example make an
arrest, conduct a search,

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seize property or use a
phone tap
Figure 2.1 The role of the police in the criminal investigation process is to investigate crimes,
gather evidence against the accused and present the evidence for judgment.

Repo r t i n g c ri me
Citizens have an important role to play in the
criminal justice system by reporting crime.
Community programs have been established to
encourage the public to report information about
criminal activity. These programs can assist police
work and help promote a sense of community par-
ticipation in solving crimes. For example, Crime
Stoppers is a national community-based program
that encourages people to report information on
unsolved crimes or unknown offences, or sus-
picious or unusual activity. It is particularly valu-
able where people may want to remain anony-
mous or not become directly involved in a police
investigation. In 2009, NSW Crime Stoppers
alone reported receiving 47 247 contacts from
the public, resulting in 298 people arrested and
1376 charges laid. (Source: http://www.nsw.crime
stoppers.com.au.) Crimes will usually be reported
by a person who has knowledge of the crime or
someone who has witnessed the crime. People
may be reluctant to report a crime for a number of
reasons, such as:
s reluctance to become involved or have to
appear as a witness
s fear of the consequences if the crime is
reported
s inability to report the crime
s the dispute has already been settled
with the offender, such as a brawl or
theft by a person known to the victim
s perceived time or administrative bur-
den of reporting a crime.
Some crimes are more widely reported Figure 2.2 Initiatives
such as Crime Stoppers
than others, such as property offences like
encourage community
car theft. Such crimes may be reported
participation in helping
in an attempt to recover the property or to solve crimes.
because the victims cannot claim on their
insurance unless a police report is filed.
Other crimes, such as domestic violence or R EV I EW 2 . 1
sexual assault, more frequently go unrepor- 1 Describe the role of
ted. It is estimated that up to 85 per cent of police in society.
sexual assaults in Australia are not reported 2 Outline some of the
(source: www.lawlink.nsw.gov.au/lawlink/ special powers police
bocsar/ll_bocsar.nsf/vwFiles/cjb125.pdf/$ are given to perform
file/cjb125.pdf). This is often due to the their duties.
shame and embarrassment victims feel and 3 Describe what a
their unwillingness to go through the ordeal person can do if they
of reliving the experience while being ques- believe the police
tioned in front of a judge and jury with the have not treated
offender present, even though they are not them properly.
required to go to court or testify in any way 4 Explain how a crime
if they don’t want to. is reported.

Cha pter 2: T he crimina l investiga tio n proces s 31


charge
formal accusation of a
person of committing a
criminal offence
in situ
a Latin term meaning
‘in the place’; used
to describe the place
in which a piece of
evidence is found or
situated
inadmissible evidence
evidence that cannot be
considered by a judge
or jury in court, for
example, evidence that
has been compromised
or was obtained by
unlawful means
32 C am br i d g e L e g a l S t u d i es – HS C
I nves t i ga t i n g c ri m e
Once police receive information about a crime, Evidence Act 1995 (NSW). If it is not, it may be
they will make a decision about whether to pursue considered inadmissible at trial and jeopardise the
an investigation or take no further action. These chance of conviction.
decisions could be based on the severity of the The law imposes certain limits on the way
offence, the likelihood of success, and the available police can gather evidence and the types of
resources or priorities. Not all reported crimes are evidence that can be used, to help ensure the
fully investigated and prosecuted, as resources collection of evidence is legitimate and does not
are often directed to more serious or high priority interfere with the rights of ordinary citizens. In
crimes. The investigation process can often be certain circumstances strict procedures will need
long, as it often includes establishing that a crime to be followed by police and in some situations a
has been committed, finding the offender of the court warrant may be required before police can
crime and gathering enough evidence to be able to search for or seize evidence. Some of these limits
prove a case against the offender in court. and procedures are discussed below.
The types of evidence that may be gathered by
police are varied and include oral testimony of the
Gathering evidence accused, police and witnesses as well as physical
The process of gathering evidence will involve a evidence such as objects or weapons. Witness
range of approaches. When a crime has been com- accounts will usually be recorded as statements
mitted, it is the role of the police to gather evidence for future reference. Documents, fingerprints,
to further the investigation and to support a charge
in court at a later date. It may involve taking
witness statements at the scene of the crime or
crime scene detectives looking at any evidence left
behind. This part of the investigation will usually
need to happen quickly before witnesses forget
what they saw or heard or before evidence is
compromised or interfered with.
Crime scenes and evidence will be preserved
where possible until specialists and detectives
arrive to begin the search for evidence. Evidence
is then documented in situ with video and photo-
graphy and meticulously recorded and handled to
maintain the integrity of the evidence. Evidence
that has been contaminated or compromised
is known as inadmissible evidence. Organic
samples such as hair and blood are particularly
vulnerable to being contaminated.
It is important that the evidence gathered is
sufficiently relevant to the case, and is the best
Figure 2.3 Great care is taken to ensure that the
possible evidence available to secure a conviction items of evidence gathered at a crime scene are
in the courts. All evidence must be obtained in handled with extreme care and not interfered
a proper and lawful manner as required by the with in any way.
DNA sampling, tape recordings, video surveillance
and electronic information stored on hard drives
can also be tendered as evidence in a case. The
evidence may be handled by several people during
the investigation – including the police who gather
the evidence initially and experts who may exam-
ine the article. Great care is taken to ensure that
the items of evidence are handled with extreme
care and not interfered with in any way.
Gathering appropriate evidence is a complex
task. Police officers may be specially trained or

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independent experts may be contracted to assist
in gathering or examining evidence. For example,
the police force has specialised fingerprint and
ballistic experts, as well as special teams of crime
scene investigators who are trained to search for
evidence at the place where a crime took place. The
evidence gathered is often sent on to specialists
to analyse who may give evidence in court at a
Figure 2.4 Scientific and technological advances
later date.
have made the processing and cross checking of
criminal databases easier and more effective for
Use of technology day-to-day policing.

Technology is frequently used by the police in order

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

Cha pter 2: T he crimina l investiga tio n proces s 33

 m e d i a cl i p
Criminal DNA tests being
checked in NSW
By Adam Bennett and Vincent Morello
Sydney Morning Herald, 2 October 2009
© 2010, AAP
Forensic and civil liberty experts have
condemned NSW’s criminal DNA testing
process after a glitch led to a man’s wrongful
conviction.
A review by NSW Health of its ‘cold
links’ system earlier this year found the
department’s laboratory mistakenly linked a
man to a break and enter because of human
error.
The system matches DNA evidence
collected at a crime scene with people on the
state DNA database.
Convicted in early 2008, the man was given
a nine-month suspended sentence.
The discovery of the error prompted an
exhaustive review of the 17 000 cold links
dating back to 2001, when the DNA database
was established.
Acting NSW chief health officer Greg
Stewart said the review had so far revealed
no other errors, and he reassured people the
DNA testing system was sound.
Dr Stewart said the mistake was caused
by a human sampling error at NSW Health’s
Division of Analytical Laboratories (DAL) but
he stressed the science behind DNA testing
was not in question.
‘A human error occurred where tests were
incorrectly located in a series of tests,’ he
said.
‘There are thousands of tests done, and
they are done in series of 96 at a time but one
of those was out of sequence.
‘The wrong crime sample was placed into
a well, and that led to DNA from one crime
scene being ascribed to a person who was not
at that crime scene.’
Professor Mark Findlay, director of the
Institute of Criminology at Sydney University,
34 C am br i d g e L e g a l S t u d i es – HS C
said DNA testing was not an exact science
and samples were too often relied upon as
the only evidence in criminal prosecutions.
‘It’s very easy for the analysis to be flawed
because it goes through several hands and
several stages,’ Prof Findlay told AAP.
‘People who look at that science - and
they are lay people, judges and juries - are
disproportionately impressed by it.’
NSW Council for Civil Liberties president
Cameron Murphy said police and courts
should rely on other evidence to corroborate
a crime.
‘It’s far better for a guilty person to go
free than for an innocent person to be in jail
because the consequences are so horrific,’
Mr Murphy told AAP.
Dr Stewart said the man’s criminal record
had been amended and proceedings had
been launched to have his conviction
annulled.
The lab technician responsible for the error
had since retired, he said.
Dr Stewart said he did not know whether
the man would launch legal action to seek
compensation over the wrongful conviction.
‘There are always openings for people who
are convicted to seek redress,’ he said.
‘His options have been discussed with him.
‘He’ll make his own decision.’
Dr Stewart said a similar error in the
future was ‘most unlikely’ because of testing
improvements, including the introduction of
robotics, and the practice of reviewing all case
work before results are released to police.
An independent external review would also
be conducted by Professor Hilton Kobus, a
forensic science expert at Adelaide’s Flinders
University, Dr Stewart said.
Search and seizure
Two of the special powers given to police to assist
in investigating crime are those of search and sei-
zure. Under Part 4 of the Law Enforcement (Powers
and Responsibilities) Act 2002 (NSW), police are
given powers to ‘search people and seize and
detain things’ in certain circumstances. One of the
most important of these is the power to search and
seize without a court warrant.
Powers of search and seizure are often the
most controversial of police powers because they

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represent an intrusion into people’s privacy or
personal space. Search and seizure can also be
Figure 2.5 Police are lawfully able to stop, search and detain
confronting or embarrassing, especially when con-
someone if they believe they have reasonable grounds to do so.
ducted in a public place.
Police in New South Wales have the broad
powers to stop and search any person where they a prohibited plant or drug, or a dangerous article
‘believe on reasonable grounds’ that they are when they are in a public place. Police can then
carrying anything stolen or used in commission of seize and detain any of these objects if discovered.
an indictable offence or another specified offence, Challenges to police searches will often revolve
cas e s p ac e

Darby v Director of Public Prosecutions [2004] NSWCA 431

The case of Darby illustrates some
of the difficulties in the legal
definitions of a search and
reasonable grounds. In the case,
the police were using a sniffer
dog, named Rocky, outside a
nightclub to detect for drugs. The
dog would sniff the air to indicate
to the police that drugs were
present. In Darby’s case, the dog
sniffed the air then sniffed
‘bunting and ferretting’ towards
Darby, sniffed his genital area and
trousers then touched his nose
directly on Darby’s pocket and
stayed there until police came
over and searched Darby. The
police discovered amounts of
cannabis and methyl ampheta-
mine on Darby, who was charged
and tried in the Local Court.
The magistrate in the Local
Court ruled that the actions of
the dog in sniffing so closely
and making contact with Darby
constituted an unlawful search.
Only police officers are entitled
to search and only when they
make a judgment on reasonable
grounds – the dog was not
entitled to or capable of making
such a judgment. Consequently,
the evidence of finding the
substances was not admissible
because it was gained following
an illegal search.
The case was appealed to
the Supreme Court which ruled
that the magistrate had erred
in law and that the dog’s search
was not a search and that the
police officers’ own search was
legal because it was formed on
reasonable grounds on the basis
of the information conveyed by
Rocky’s sniffing.
Darby then appealed the
judgment to the Court of
Appeal, in an attempt to
reinstate the magistrate’s
original judgment. Two out
of three justices found that
Rocky’s actions did not, in fact,
constitute a search.

Cha pter 2: T he crimina l investiga tio n proces s 35

 around whether the officer had sufficiently
‘reasonable grounds’ to believe they could conduct
the search.
Police may search anything in a person’s
‘possession or control’, including for example a
person’s body, bag, clothes or possessions. Gener-
ally, police will ask for a suspect’s cooperation
and ask the suspect to turn their pockets out and
remove bulky clothing. Police may also ‘pat down’
a suspect’s 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 reason-
able grounds to believe the suspected object is
concealed there.
Powers of search and seizure and the rules
around them will differ where they involve, for
example, search of premises, search on school
grounds, search of a person already under arrest or
in custody, or where a strip search is required. The
Law Enforcement (Powers and Responsibilities) Act
2002 (NSW) also contains a number of procedures
for police to follow when conducting a
personal search or strip search. These
R E VIEW 2.2 relate to the preservation of a person’s
1 Create a list of 20 privacy and dignity during a search,
different types of informing of the reason why the search
evidence that could be is necessary and asking for the person’s
collected on a criminal cooperation.
case. You may like to Limits and process requirements
categorise them. help safeguard the rights of ordinary
2 Describe some of the citizens when police are gathering
different types of evidence, but in NSW police powers of
technology available search and seizure are still broad. In
to police when most circumstances reasonable sus-
investigating crime. picion will not be a difficult standard for
3 Discuss the police to prove. In some situations,
circumstances in which a however, the law will require police to
police officer may search obtain a court warrant before exercising
a person. Do you think their powers. This is outlined below.
the search powers are
necessary or too broad?
4 Describe the use of a
Use of warrants
search warrant and how A warrant is a legal document issued by
one is obtained. a magistrate or judge which authorises
36 C am br i d g e L e g a l S t u d i es – HS C
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 police would require
a court warrant before using dogs for general
searches in any other public places. This judicial
oversight helps ensure 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 to justify the use of the warrant.
Emergency warrants can be obtained over the
phone when time is of the essence in an investi-
gation or an officer is unable to see a magistrate in
person, for example 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 con-
sent of the occupier or owner. The warrant will
state the reason why the premises is being
searched and thereby 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 a copy of the war-
rant is given 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 later in court and to guard against claims of
improper procedures or the planting of evidence.
Police will usually remove any items relevant
to the investigation and they will be withheld until
after the case is prosecuted. Some items may be
returned to rightful owners, other items such as
weapons and drugs will be destroyed after they
have been used as evidence in a trial.
l e g a l i n fo
The following is an example of a search warrant:
(Clause 6 (1) (a))
(Law Enforcement (Powers and Responsibilities) Act
2002)
This search warrant expires at [Time] on [Date] and must
not be used after that time.
On [Date], an eligible issuing officer empowered to
grant search warrants under Division 2 of Part 5 of the
Law Enforcement (Powers and Responsibilities) Act
2002, granted this search warrant authorising [Name
and rank] of [Place of work] (the applicant), a police
officer, and all other police officers, as follows:
1 To enter the premises known as [Address] being a
[Description of premises (eg dwelling house)].
2* To search those premises for any of the following
things: [List and describe the things to be searched
for with particularity. If space is insufficient, continue
overleaf or attach a separate sheet.]
The applicant has reasonable grounds for believing
that those things are connected with the following
searchable offences: [Specify relevant offences.]
3* To search those premises in connection with the
following child prostitution offence(s): [Specify the
offences under the Crimes Act 1900 in relation to which
the search is to be made.]
This search warrant may be executed:
(a)* only by day (i.e. between 6 am and 9 pm)
(b)* by day (i.e. between 6 am and 9 pm) or night (i.e.
between 9 pm and 6 am).
[* Delete if inapplicable.]
In executing this search warrant a police officer may
exercise the powers provided by the Law Enforcement
(Powers and Responsibilities) Act 2002. These include
the following powers:
(a) to enter the named premises,
(b) to search for the things (if any) mentioned in this
warrant,
(c) to use any persons necessary to assist in the
execution of the warrant,
(d) to use such force as is reasonably necessary to
enter the premises,
(e) to break open any receptacle in or on the premises
for the purposes of the search of the premises if it is
reasonably necessary to do so,
(f) to search any persons found in or on the premises
who are reasonably suspected of having a thing
mentioned in this warrant,
(g) to arrest any persons found in or on the premises
whom a police officer suspects on reasonable
grounds of having committed an offence,
(h) to seize, detain, remove from the premises or
guard anything mentioned in this warrant and any
other thing found by a police officer in the course
of executing this warrant that the police officer
believes on reasonable grounds is connected with
any offence,
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(i) if the warrant is issued in relation to a child
prostitution offence—to make in the premises
inquiries relating to any such offence,
(j) to disable any alarm, camera or surveillance device
at the premises,
(k) to pacify any guard dog at the premises,
(l) to render safe any dangerous article found in or on
the premises,
(m) to operate electronic and other equipment
brought to the premises or at the premises to
examine a thing found at the premises,
(n) to move a thing found at the premises to another
place for examination in order to determine whether
it is or contains a thing that may be seized,
(o) to operate equipment at the premises to access
data (including data held at premises other than the
subject premises),
(p) to do anything that it is reasonably necessary
to do for the purpose of preventing the loss or
destruction of, or damage to, any thing connected
with an offence that the police believe on reasonable
grounds to be at those premises, including by
blocking any drains at or used in connection with the
premises.
Signed [Insert signature.]
Date
[The eligible issuing officer should sign and date the
warrant and initial any corrections. In the case of a
telephone search warrant, in circumstances where the
warrant is issued but not furnished to the applicant (for
example, because facsimile facilities are not available),
the applicant is to complete this Form of warrant in the
terms dictated by the eligible issuing officer and write
on it the date and time when the warrant was signed.]
Cha pter 2: T he crimina l investiga tio n proces s 37
 A rres t , de tent ion a n d c h a rge
Police may require a person to attend a police
station if they have been placed under arrest. The
arrest and charge of an offender is one of the most
important steps in the criminal process. If the
proper procedures are not followed, the validity of
the entire case may be jeopardised.
Arrest
The police are not allowed to detain a person unless
they have good reason to do so. The conditions
under which the police may lawfully arrest a per-
son are contained in the Law Enforcement (Powers
and Responsibilities) Act 2002 (NSW) and include:
s catching a suspect committing an offence
s believing on reasonable grounds that a suspect
has committed or is about to commit an
offence
s where that person has committed a serious
indictable offence for which they have not been
tried
s possessing a warrant for that person’s arrest.
During the course of an investigation the police
may decide they wish to arrest someone for the
crime they are investigating. Normally, the courts
will issue the police with a warrant stating that the
Figure 2.6 The arrest of an offender is one of the most important steps in the criminal process.
38 C am br i d g e L e g a l S t u d i es – HS C
person is being arrested for a particular offence.
The document authorises police or law enforce-
ment officials to apprehend an offender and bring
that person before the courts. Arrest warrants
require police to justify their suspicions based on
reasonable evidence – they act as court declarations
that the suspect has a case to answer in relation to
the alleged crime and authorise police to use their
special powers to bring that person before the
courts. Warrants provide a judicial safeguard for
ordinary citizens against misuse of police powers
of arrest. However, arrest should be used only as a
last resort, and there is some criticism that arrests
can be applied too early in the investigative process
merely as a means of furthering an investigation.
In order for the procedure to be legal, the police
must state to the person that they are under arrest
and the reason why they are under arrest. By law,
police are able to use whatever reasonable force is
necessary to arrest a person. This may even include
shooting the suspect if, for example, the suspect
threatens the police with a weapon. However, the
police are required to inform the suspect that they
have their weapon out and are willing to use it. If a
police officer does use excessive force, that officer
can face charges.
 Once a suspect has been arrested they may
only be held for a specified period of detention
before they must be either charged with commit-
ting an offence or released. This is discussed
further below.
Detention and
interrogation
The Law Enforcement (Powers and Responsibilities)
Act 2002 (NSW) sets out the lawful conditions under
which a suspect can be detained for questioning
and for the purpose of further investigation. Law-
fully police can only detain a suspect for a period of
four hours, by which time that person must be
either charged or unconditionally released. They
may apply to a magistrate for a warrant to extend
the investigation period up to a further eight hours.
During this time, the offender would be held either
in a police cell or an interview room.
There are, however, many rest periods within
the four hours, which might not be included in the
total time. Examples of periods of time that might
not be included are:
s transport from the point of arrest to a police
station
s waiting for the relevant law enforcement officers
to arrive to conduct the interview
s waiting for a legal practitioner, family member,
guardian of a dependent person or an interpreter
to arrive at the police station
s time required by the suspect to talk to a friend,
relative or lawyer and the time it takes that
person to arrive at the police station
s medical treatment for the person in custody
s refreshment periods such as eating, showering
or toileting
s recovering from the effect of drugs or alcohol
s taking part in an identity parade
s charging procedures.
As soon as the police have a suspect in custody,
they are usually questioned. This is known as
interrogation. The police must issue a caution
to the suspect as soon as practical 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 police’s questions, whether Figure 2.7 As soon as the police
have a suspect in custody, they are
in the company of their legal
usually questioned. This is known as
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representation or on their own.
interrogation.
This can make the investigation
difficult for the police if they
need the suspect to fill in gaps in the information interrogation
the act or process of
in their evidence. However, many suspects will
questioning a suspect
still voluntarily answer questions. by the investigating
Any suspect under 18 years of age has the right officers
to have a responsible adult present with them at caution
a statement issued by
the interrogation. Usually this adult will be the
police to a suspect
suspect’s parent or guardian. If the suspect lies to when they are
the police about their age and says they are over detained to inform
them of their rights
18 and the interrogation begins, the evidence they
provide is admissible in court.
The interview is recorded on videotape as well
as on two audiotapes: one for the police records
and one for the defendant. These recordings are
made to ensure that all policies and guidelines are
adhered to by the police and as a
record to be used in court.
R EVI EW 2 . 3
1 Describe the circum-
Release or charge stances under which
At the end of the maximum police can make an arrest.
detention period, the police must 2 How long can a person be
either charge the suspect with a detained without charge?
specific offence or release them What do you think are
unconditionally. If charged, the some of the advantages
police must either release the and disadvantages of
accused or bring them before a a longer or shorter
magistrate or authorised officer as detention period?
soon as practicable after the end of 3 What must a police officer
the maximum detention periods. do before commencing an
The accused will be brought before interview?
the court for a bail hearing, which 4 What happens when a
is discussed further below. person is charged?
Cha pter 2: T he crimina l investiga tio n proces s 39

summons
a legal document that
states when and where
a person must appear
in court and, if they are
the accused, the charge
to which they must
answer
bail
the temporary
release of an accused
person awaiting trial,
sometimes on particular
conditions such as
lodgment of a sum of
money as a guarantee
surety
in bail, where another
person agrees to
provide a financial
guarantee that the
accused will return
to the court for trial
in exchange for the
accused’s temporary
release
R E SE A RC H 2.2
Bail hearings in high-profile
cases are often widely
publicised in the media.
Search the internet for three
recent news articles relating
to separate bail hearings in
NSW and answer the following
questions:
1 Was bail granted in the case?
2 Were any conditions set on
granting bail?
3 Was there an amount of
money required for bail and
if so how much?
4 Do you think the decision
on bail was fair in the
circumstances?
40 C am br i d g e L e g a l S t u d i es – HS C
Su m m o n s , b a i l o r r e m a n d
Once a person is charged, they will be issued with
a summons to appear in court or, if it is a serious
matter, they will be further detained and a bail
hearing will be set.
Summons
A summons is a legal document that states when
and where a person must appear in court and, if
they are an accused person, the charge to which
they must answer.
A summons is a legal document that is delivered
personally to the accused by a court-appointed
person. It states when and where the accused is
to appear in court and the charge to which the
accused will have to answer.
Witnesses will also receive a summons docu-
ment which requires them to appear in court on
a specified date to give evidence. Failure to attend
the appointed court session could
result in the summonsed person
being arrested and charged.
Bail
In more serious matters, once
charged the accused may
detained at the police station
where they are fingerprinted and
photographed. The police will be
required to bring them before a
court or authorised officer as soon
as practicable for a bail hearing.
At a bail hearing, the authorised
officer will determine whether the
accused should be released on bail
or remain in custody until their
trial. Bail describes the temporary
release of an accused person await-
ing trial, sometimes on particular conditions such
as lodgment of a specified sum of money as a
guarantee. Bail can take many forms, such as an
upfront monetary payment or recognisance, which
is where the accused promises to turn up, know-
ing that failure to do so will result in them being
fined and arrested. 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 for court.
If the accused fails to show up, the bail money is
forfeited.
Other components of the bail system are the
use of wrist and ankle monitoring devices and
diversionary services, such as rehabilitation pro-
grams. In addition, the accused needs to show up
to a police station on a regular basis to prove that
they have not moved out of the area to which they
have been restricted. The accused may also have
to surrender their passport if they have one.
Bail will be difficult to obtain for certain
offences, particularly violent offences or where
there is some risk to the community or risk that
the accused may commit another offence. Where
there is any indication that the accused might
attempt to flee to another state or country, bail is
unlikely to be granted.
be Restrictions have also been added to the Bail
Act 1978 (NSW) against granting bail for certain
offences, such as drug trafficking or serious
domestic violence. Known as the ‘presumption
against bail’, it will be up to the accused to prove
to the court why bail should not be refused if
one of these offences has been committed. Such
presumptions are controversial, as the effect of
denying bail can be severe on an accused person,
and may result in an extensive period of custody
before a final trial verdict is reached, with the
risk that the accused may in fact be innocent and
eventually found not guilty.

Figure 2.8 The Metropolitan Remand and Reception Centre (MRRC) in Silverwater, NSW.
Remand
If bail is denied and the magistrate or authorised
officer determines that the accused should remain
in custody until trial, the accused will be held on
remand in police custody or at a remand centre.
Remand is usually sought against people who have
committed particularly violent crimes, dangerous
criminals, repeat offenders or those thought to be
a flight risk.
The level of security where they are to be
detained is also determined by the above factors.
The accused will remain in detention until the
trial date is set, throughout the trial and until
they are sentenced. If the accused is found guilty
C rim e
and convicted, the time the offender had spent in
remand is usually taken off the total time of their
sentence and referred to as time already served.
remand
R EVI EW 2 . 4 a period spent in
custody awaiting trial
1 Explain what a summons is and describe at a later date
what happens if someone ignores a
summons.
2 Describe the purpose of bail.
3 Explain what happens to bail money if the
accused fails to show up in court.
4 Explain how remand is different to
imprisonment.
Cha pter 2: T he crimina l investiga tio n proces s 41
 s The community is responsible for reporting
crimes.
s Police are responsible for investigating
crimes, making arrests and gathering
C ha p te r s u m m a ry
evidence against.
s Police are given special legal powers to carry
out their duties.
s Evidence may include many types of
information.
s Processes must be followed by police in
collecting evidence and investigating crimes.
s All suspects are to be treated fairly.
s Police have powers to search and seize on
reasonable grounds.
M ul ti p l e- c hoi ce q ues ti ons
1 A summons is best described as:
a a legal document which compels you to
attend court to give evidence or answer
charges
b a legal document permitting the search of
your business
c a legal document between two parties
issued after a divorce is finalised
d a legal document signed by you agreeing
to adhere to bail conditions
2 Which of the following is not likely to be
considered evidence?
a drugs
b a gun
c witness testimony
d none of the above
3 Which of the following must police usually
have a search warrant for?
a your home
b your car
c your bag
d you
42 C am br i d g e L e g a l S t u d i es – HS C
s Police can arrest a person with a warrant or
for specified reasons.
s A person can only be detained for four hours
without charge, unless extended with court
approval.
s Police must caution a detained suspect
before conducting an interview.
s Everyone has the right to a legal
representative during a police interview.
s Interviews are video- and audio-tape
recorded.
s A person charged with an offence is either let
go on bail or held on remand until the trial.
4 Which of the following is a factor why
someone might not be held on remand?
a they are a flight risk
b they committed a violent crime such as
murder
c they committed a non-violent crime such as
larceny
d they are a repeat offender who may go and
commit another offence straight away
5 How long may police hold a suspect without
charge for if they do not have an extension
from a judge/magistrate?
a four hours
b eight hours
c 12 hours
d indefinitely
C ha p te r s u m m a ry ta s k s

1 Outline some of the powers police have to

conduct an investigation.

C rim e
2 Describe when police are allowed to search a
person, a person’s bag and a person’s home.
3 Explain how police go about obtaining a
warrant.
4 Describe the different forms bail can take.
5 Discuss the reasons why a person may be held
on remand rather than given bail.

Cha pter 2: T he crimina l investiga tio n proces s 43

 CHAPTER 3
Criminal trial process
c hap te r o b j e cti ve s

In this chapter, students will: s describe the use of evidence in a criminal trial
s identify the different levels of courts in the NSW s communicate the purpose and role of a jury in the
judicial system adversarial system.
s describe the different types of legal representatives
s discuss the importance of legal aid
s explain the different types of pleas available to a
defendant
k ey ter m s/vocab ul ary

acquittal inquisitorial system

adversary system legal aid
appeal magistrate
appellate jurisdiction original jurisdiction
beyond reasonable doubt peremptory challenge
burden of proof plea
challenge for cause plea bargaining
committal proceedings police prosecutor
coroner provocation
coronial inquest public defender
court hierarchy public prosecutor
diminished responsibility standard of proof

44 C am br i d g e L e g a l S t u d i es – HS C
 rel ev ant l aw
I MPORTANT LEGIS L AT ION
Judiciary Act 1903 (Cth)
Local Court Act 2007 (NSW)
Coroner’s Act 2009 (NSW)
Children’s Court Act 1987 (NSW)
District Court Act 1973 (NSW)
Supreme Court Act 1970 (NSW)
Legal Aid Commission Act 1979 (NSW)
Evidence Act 1995 (NSW)
Jury Act 1977 (NSW)
Jury Amendment (Verdicts) Act 2006 (NSW)
Criminal Case Conferencing Trial Act 2008 (NSW)
S I GNIFICANT CA S ES
R v Zecevic (1987) 162 CLR 645
R v Williamson (1972) 2 NSWLR 281
R v Camplin (1978) AC 705
Dietrich v The Queen (1992) 177 CLR 292
od d l a w
C rim e
In Medieval England, those accused of theft,
murder or witchcraft were often put through a
trial by ordeal. A trial by ordeal was a judicial
practice by which the guilt or innocence of the
accused was determined by subjecting them to
a painful or dangerous experience.
Ordeals could take a number of forms, but
some of the most common were trials by water.
In the Assize of Clarendon (an act passed
by King Henry II in 1166) the law of the land
required that: ‘anyone, who shall be found, on
the oath of the aforesaid [a jury], to be accused
or notoriously suspect of having been a robber
or murderer or thief, or a receiver of them...be
taken and put to the ordeal of water.’
The ordeal of hot water was particularly
brutal, requiring the accused to dip their hand
into a kettle of boiling water to retrieve a stone.
The depth of the water varied, depending on
the number of accusations against a person
– up to the wrist for one accusation, up to
the elbow for three. Afterwards, the hand
was bound and examined after three days to
see whether it was healing or festering. If the
wound was healing after this time the accused
was found innocent, if it was festering they were
found guilty.
Cha pter 3: Crimina l tri al proces s 45

appeal
an application to have
a higher court review
a decision of a lower
court
court hierarchy
the system of courts
within a jurisdiction,
from lower courts
to intermediate and
higher courts
original jurisdiction
the authority for a
court to hear a matter
for the first time
appellate jurisdiction
the authority for a
court to review matters
on appeal from another
court
46 C am br i d g e L e g a l S t u d i es – HS C
Cour t jurisdic tion : criminal cour ts
Once a formal charge has been laid against a
person, a hearing or trial of the accused will need
to take place in an appropriate court. There are
many different courts that have jurisdiction to
hear criminal offences. The right court for the
matter to be heard will depend on a number of
issues, including:
s the seriousness of the matter, in particular
whether it involves a summary offence or an
indictable offence, as discussed in Chapter 1
s whether the matter is being heard for the first
time or whether it involves an appeal
s the nature of the offence – some courts or
divisions within courts will have authority to
hear particular types of offences
s the age of the accused, particularly whether
the accused is a child or young person under
18 years old
s the type of hearing, for example whether it is a
bail hearing, committal hearing or trial
s whether the alleged crime is an offence under
state law or federal law.
The case will then be heard at the appropriate
place in the court hierarchy. The court hierarchy
refers to the system of courts from lower courts,
which deal with less serious offences like sum-
mary offences, to intermediate and superior
courts, which deal with more serious offences as
well as appeals from lower courts.
In Australia, there are different streams of
courts depending on the state or territory the
offence relates to – for example an offence under
New South Wales law will be heard in the NSW
court hierarchy.
If the offence relates to a federal offence under
Commonwealth law, the offence will usually be
prosecuted by the Commonwealth Director of
Public Prosecutions in the courts of the state where
the offence occurred. The Judiciary Act 1903 (Cth)
gives state and territory courts the power to hear
federal criminal offences, and federal summary
or indictable offences will be treated in a manner
similar to state laws. Some federal offences may
also be heard in federal courts – the Federal Court
of Australia has summary jurisdiction in some
criminal matters.
Figure 3.1 summarises the court hierarchy for
New South Wales, ACT and federal courts.
The authority for a court to hear a matter for
the first time is known as the court’s original
jurisdiction. A court’s original jurisdiction will
usually be defined in the relevant court act, for
example the Local Court Act 2007 (NSW). The
authority to review matters on appeal from
another court is known as the court’s appellate
juridisdiction.
In the Australian court hierarchy, a higher court
can usually review a decision of a lower court, but
a lower court cannot review a decision of a higher
court. The arrows in Figure 3.1 show the specific
courts that can hear appeals from each of the
lower courts.
Each court is responsible for various duties
within the legal system. The role of the different
courts in criminal matters is considered in more
detail below.
R EVI EW 3 . 1
1 Describe some of the considerations that
will determine which court a case will be
heard in.
2 Define the term ‘court hierarchy’.
3 Define the terms ‘original jurisdiction’
and ‘appellate jurisdiction’. Outline the
differences between them.
State and territory courts
The criminal court system in NSW operates under
the following hierarchy:
Lower courts – including the Local Court of NSW,
the Coroner’s Court, the Children’s Court and the
Land and Environment Court
 HIGH COURT OF AUSTRALIA

Federal superior courts State and Territory superior courts

Federal Court of Australia Supreme Court of the ACT Supreme Court of NSW

Federal specialist courts State intermediate courts

Family Court of Australia District Court of NSW

C rim e
Non-family Family law
law matters matters

Federal lower courts Territory lower courts State lower courts

Federal Magistrates’ Magistrates’ Court of the ACT Local Court of NSW

Court of Australia
Coroner’s Court of the ACT Coroner’s Court of NSW

Children’s Court of the ACT Children’s Court of NSW

Land and Environment

Court of NSW

Figure 3.1 State/territory and federal court hierarchy

Intermediate courts – the District Court of NSW
Superior courts – the Supreme Court of NSW and
the High Court of Australia.
Each court has its own jurisdiction, or area
over which it has authority to hear matters. Minor
matters such as summary offences are dealt with
lower in the court hierarchy, whereas the higher
courts are reserved for more serious matters,
indictable offences, and appeals from the lower
courts. The Australian Capital Territory does not
have an intermediate court but it is otherwise
similar.
Lower courts
Local Court of NSW
The Local Court is the first point of call for most
criminal matters in NSW. It also has jurisdiction to
hear civil law matters up to the value of $60 000.
The Local Court Act 2007 (NSW) sets out the juris-
diction and operation of the Local Court of NSW.
The Local Court sits at many different locations
across NSW and deals with the majority of criminal
prosecutions in NSW. It used to be known as the
Court of Petty Sessions because it dealt with what
used to be known as ‘petty’ or minor crimes. The
Local Court has jurisdiction to deal with summary
committal
offences and conducts committal proceedings
proceedings
to determine whether or not indictable offences where a magistrate
are to be committed to the higher District and determines if there is
enough evidence for
Supreme Courts. As mentioned in Chapter 1, it can
a case to proceed to
also hear indictable offences triable summarily if trial in a higher court
the accused consents. magistrate
There is no jury present in the Local Court. a judicial officer in the
Local Court; in NSW
Local Court matters are tried solely in front of a they are appointed by
magistrate. In NSW, a magistrate is a qualified the Governor

Cha pter 3: Crimina l tri al proces s 47

 Australian lawyer or judicial officer who has been
appointed as a magistrate by the Governor of NSW.
The magistrate is referred to as ‘Your Honour’ by
parties in court and by court staff.
In criminal matters, the Local Court is also
where bail hearings will usually be held and where
committal proceedings for serious offences will be
held. Committal proceedings are held for serious
matters to be heard by higher courts in front of
a judge and jury. In a committal proceeding, a
magistrate will hear the prosecution’s evidence
and determine whether it is sufficient to support
conviction by a jury. If satisfied there is a case
to answer then the accused will be ordered to
stand trial in a higher court; if not, the accused is
coroner discharged.
a judicial officer The Local Court offers several advantages over
appointed to
investigate deaths in the higher courts. Criminal matters in the Local
unusual circumstances Court will usually be heard and determined much
coronial inquest faster than in superior courts as less formalities
a court hearing
are required. The cost of a hearing will also be
conducted by a
coroner to help significantly less for the accused and for the state.
determine the manner However, the Local Court does not have jurisdiction
and cause of death
to conduct jury trials or to hear appeals. The Local
Figure 3.2 Coronial inquests sometimes attract intense media attention
– particularly in high profile accidents, deaths or disappearances.
48 C am br i d g e L e g a l S t u d i es – HS C
Court also has limits on the sentences that it can
pass. For these reasons, more serious matters will
be tried in higher courts to ensure justice for all
parties is achieved.
In the ACT, the equivalent of the Local Court
is the Magistrates’ Court, which has similar juris-
diction and characteristics.
Coroner’s Court
The Coroner’s Court is a specialised local court that
deals specifically with the cause and manner of
a person’s death, as well as fires and explosions
where property has been damaged or a person has
been injured. The powers of the Coroner’s Court of
NSW are outlined in the Coroner’s Act 2009 (NSW).
The role of a coroner is to determine the
identity of the deceased as well as the date, place,
manner and medical cause of death. Information
from medical practitioners and police personnel
is usually relied on. The Coroner’s Court may
investigate disappearances, deaths where a medi-
cal certificate has not been issued, or deaths that
occur in unusual or suspicious circumstances,
such as deaths occurring:
s in a violent or unnatural way, or suddenly with
unknown cause
s after an accident (up to one year and one day)
that may have contributed to the death
s in police custody or in a prison or detention
centre
s while receiving care or medical treatment,
or within 24 hours of administration of an
anaesthetic.
The Coroner’s Court will conduct a coronial
inquest into a death, which is a court hearing
where a coroner considers information to help
determine the manner and cause of death. The
coroner can call witnesses to give evidence in the
inquest if required. Coroners may also conduct a
post-mortem examination of a body (autopsies)
to help determine the time or cause of death and
uncover evidence, such as drug and toxicology
reports, recovery of bullets or DNA samples.
The findings of the coroner will often be used as
evidence in a later criminal trial.
 RES E A RC H 3.1
Coronial inquests sometimes attract a lot of
media attention – particularly in high profile
accidents, deaths or disappearances. Search
the internet for a recent coronial inquest that
received publicity and answer the following
questions:
1 What death or incident did the inquest
relate to?
2 What were the findings of the coroner?
3 Can you identify any consequences of
the inquest, for example any criminal
prosecutions or changes in the law?
Children’s Court
The Children’s Court of NSW was established in
1987 under the Children’s Court Act 1987 (NSW).
The Children’s Court is a specialised court that
deals with matters relating to the care and
protection of children and young people as well as
criminal matters concerning children and young
people who are under 18 years old, or who were
under 18 at the time of an alleged offence.
One of the most important characteristics of the
Children’s Court is that it is a closed court, meaning
the general public is prohibited from viewing
proceedings, in order to protect the identity of
children and young people. The Children’s Court is
presided over by a magistrate with no jury.
In the Children’s Court, magistrates will have
specialised training in dealing with youth matters
and proceedings, formalities and available
sentences will be different from those applicable
in other courts. The Children’s Court and issues
relating to young offenders are considered in more
detail in Chapter 5.
Land and Environment Court
The Land and Environment Court is a specialist
court responsible for interpreting and enforcing
environmental law in the state of NSW. Although it
mainly deals with civil and administrative disputes
related to environmental planning (e.g. zoning of
parklands), it also has criminal jurisdiction to hear
some environmental offences, R EVI EW 3 . 2
such as illegal polluting or dump- 1 Outline the types of cases
ing. The court’s jurisdiction is that can be heard by the
summary only, which means it Local Court.
can only hear cases without a 2 Identify the circumstances
jury. Prosecutions are usually under which the Coroner’s
brought by the NSW Environment Court may inquire into a
Protection Authority (EPA). person’s death.
3 Describe some of the
characteristics of the
Intermediate Children’s Court.
C rim e
courts
District Court of
New South Wales
The District Court of NSW is the intermediate
court in the state’s court hierarchy. It is established
under the District Court Act 1973 (NSW).
The District Court is a trial court where matters
can be heard before a judge and a jury. This is in
contrast to the Local Court where matters are heard
by a magistrate alone. The District Court also has
an appellate jurisdiction, where it can hear appeals
of decisions made by the lower courts like the Local
Court and the Children’s Court. The District Court
sits at most large population centres in NSW and
has jurisdiction to hear serious criminal matters,
as well as civil matters up to $750 000.
In its criminal jurisdiction, the District Court
may hear all indictable offences except for murder
and treason, which can only be heard by the
Supreme Court. District Court trials will often
involve a jury of 12 people who are chosen by the
court. The jury will decide on the accused’s guilt or
innocence based on the evidence presented in the
court trial. The judge will control proceedings and
decide on questions of law. If the accused is found
guilty by the jury, the judge will also determine the
accused’s sentence.
The types of matters dealt with by the District
Court include:
s offences against the person such as man-
slaughter (but not murder), sexual or indecent
assault, assault occasioning actual bodily harm
or assault of police officers
Cha pter 3: Crimina l tri al proces s 49
 Figure 3.3 Offences against the person, property offences, drug offences and driving offences are all
heard in the District Court.
s property offences such as larceny, robbery,
embezzlement, or break enter and steal
s drug offences such as supply, manufacture or
production of a prohibited drug
s driving offences such as dangerous or negligent
driving causing death or serious bodily harm.
The District Court involves significantly more
formalities than the Local Court, and matters will
usually take longer to be heard and result in greater
cost to both the accused and the prosecution.
For this reason, the District Court is reserved for
more serious indictable offences where higher
consequences are involved, while summary
offences are restricted to the Local Court.
Superior courts
Supreme Court of NSW
The Supreme Court of NSW hears the most serious
criminal cases, as well as civil matters beyond the
jurisdiction of the Local and District Courts. The
Supreme Court is constituted under the Supreme
Court Act 1970 (NSW) and sits in Sydney, with
matters also heard in regional centres if the need
arises.
Matters that are heard by the Supreme Court in
its original criminal jurisdiction include:
s murder, manslaughter and attempted murder
s major conspiracy and drug related charges
50 C am br i d g e L e g a l S t u d i es – HS C
s Commonwealth prosecutions for serious
breaches of the Corporations Law.
Criminal matters in the Supreme Court are heard
by a judge, who is referred to as ‘Your Honour’, and
jury of 12 people selected by the court. Matters in
the Supreme Court are heard with the highest level
of formality and cost among the NSW courts and
can carry the highest consequences.
The Supreme Court also has appellate
jurisdiction to hear criminal appeals from lower
NSW courts. Criminal appeals are heard in the
Court of Criminal Appeal, discussed below.
Court of Criminal Appeal
The Court of Criminal Appeal is the appellate
branch of the Supreme Court of NSW. It is the
state’s highest court for criminal matters. The
Court of Criminal Appeal can hear appeals from a
person convicted or sentenced by a District Court
or Supreme Court judge. Criminal appeals can
also be brought from the Land and Environment
Court.
Appeals in the Court of Criminal Appeal are
usually heard by three Supreme Court judges with
the majority view prevailing. Where significant
legal issues are being considered this may be
increased to five judges. Grounds for appeal to the
Court of Criminal Appeal might include a question
of law, a question of fact, or a challenge to the
severity or adequacy of a sentence.
 The Court of Criminal Appeal is the highest court
of appeal in New South Wales. The High Court of
Australia has jurisdiction to hear appeals from state
and territory supreme courts, but only where the
High Court grants special permission to appeal.
Federal courts
As mentioned earlier, Commonwealth offences
will usually be heard in state or territory courts,
which can exercise federal criminal jurisdiction
under the Judiciary Act 1903 (Cth). A limited
number of criminal proceedings can be heard in
the Federal Court of Australia.
Commonwealth offences will be prosecuted by
the Commonwealth Director of Public Prose-
cutions. The most common prosecutions for
Commonwealth offences include drug impor-
tation, money laundering, offences under the
corporate law, tax or social security fraud.
Commonwealth criminal offences are classified
as either summary or indictable offences and will
be heard and sentenced in the corresponding state
or territory court for those offences. The procedure
of the relevant state or territory will apply.
High Court of Australia
The High Court of Australia is the highest court in
the Australian court hierarchy.
The High Court is mandated by section 71 of
the Constitution of Australia and is constituted
under the Judiciary Act 1903 (Cth).
l e ga l l i nk s
The Lawlink website is maintained by
the NSW Attorney-General’s Office
and contains information and links on
aspects of NSW law. It contains links
to the official websites of all NSW
courts listed above:
www.lawlink.nsw.gov.au.
C rim e
Figure 3.4 The High Court of Australia is located in Canberra.
The High Court has original jurisdiction in limi-
ted Commonwealth matters but has appellate
jurisdiction to hear appeals from all state and
territory supreme courts. In NSW criminal mat-
ters, this will relate to appeals from the Court of
Criminal Appeal of the Supreme Court of NSW.
The High Court also deals with cases
concerning the interpretation of the R EVI EW 3 . 3
Constitution of Australia and the 1 Describe the types of
constitutional validity of laws, which cases that can be heard in
may include criminal laws. the District Court.
The High Court will only hear 2 Explain the types of cases
matters on appeal where it grants that can be heard by the
special leave. This is granted for Supreme Court and the
questions of law of public impor- Court of Criminal Appeal.
tance, conflict between courts or in 3 Explain the role of the
the interests of the administration of High Court of Australia in
justice. the court hierarchy.
The ACT government provides
information on that territory’s courts and
tribunals: www.courts.act.gov.au.
The Australian Government Attorney-
General’s website has information about
the federal legal system and courts:
www.ag.gov.au/www/agd/agd.nsf/
Page/Legalsystemandjustice_
TheCourts.
Cha pter 3: Crimina l tri al proces s 51

adversary system
a system of law where
two opponent sides
present their case to
an impartial judge or
jury
inquisitorial system
a system of law where
two sides present
their cases to a judge
who directs the cases
and calls for particular
evidence
52 C am br i d g e L e g a l S t u d i es – HS C
T h e a dve r s a r y s ys te m
The criminal justice system in Australia is based
on an adversarial system of law. The adversary
system relies on a two-sided structure of opponent
sides (‘adversaries’) each presenting their own
position, with an impartial judge or jury hearing
each side and determining the truth in the case. The
adversary system applies to both civil and criminal
matters, but it is in relation to criminal law that
the adversarial system is often most controversial.
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 accused’s guilt or innocence
based on the evidence and arguments presented.
Australia, like many other countries around the
world, inherited the adversarial system of law with
the English common law system. An alternative to
the adversarial system is the inquisitorial system,
in which a judge or group of judges plays a role
in investigating the case or calling for evidence of
testimony that has not been requested by either
side. Versions of the inquisitorial system are used
Lega l per son nel in a c rimina l t ria l
Criminal trials often involve a large number of
participants, both behind the scenes and in the
courtroom itself. They are involved in various
aspects of the case from the beginning of the
investigation through to the end of the trial.
Some of the non-legal participants in a criminal
trial include the accused, any witnesses called to
testify and the police responsible for investigating
the case. Most criminal trials will also involve a
number of legal personnel participating in the
case and some of the most important are outlined
below.
in many other countries, as well as some areas of
Australian law, for example in coronial inquests or
royal commissions.
Supporters of the adversarial system often
claim that it is a fairer system because it allows
each party 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 equal opportunity
to present the truth, and the jury as an impartial
observer without any influence of outside factors.
Opponents of the system argue that in many
cases the competing sides are not equal before
the law, with potential imbalances in resources,
skills or knowledge. Where additional evidence
or testimony would assist the case, the impartial
judge or jury is not in a position to request this,
even though it may assist in achieving justice. The
system has also been criticised for use of the jury
system, where complex technical cases might be
misunderstood due to a lack of understanding of
the evidence presented and where the reasons for
the jury’s decision are not disclosed to either side.
1 Judges and magistrates
Judges and magistrates are judicial officers who
preside over court cases and make determinations
in court based on the evidence presented by either
side. Judges and magistrates are legally qualified
professionals who have considerable experience
in the law. They act as the umpires of court cases,
making sure that the rules are followed and that a
fair trial is carried out. Whether a case is heard by
a judge or a magistrate will depend on the court in
which the case is heard.
 1

5 4

6 9

3 2

C rim e
7 10

Figure 3.5 Court cases 1 Judge or magistrate 3 Barrister or solicitor 8 Witness

involve a number of key 2 Prosecutor (e.g. 4 Judge’s associate 9 Jury
participants, including: Police prosecutor 5 Court reporter 10 Public gallery
or Director of Public 6 Accused
Prosecutions) 7 Media

Magistrates of law and give instructions to the jury to make sure

Magistrates are the judicial officers that preside
over hearings in the Local Court. Specialised
magistrates also hear cases in the Children’s
Court. In criminal law, magistrates will hear sum-
mary 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 determined the
guilt of the accused, the magistrate will also pass
an appropriate sentence. Magistrates will also con-
duct committal proceedings for indictable offences
to be tried, and will usually hear bail proceedings.
Judges
Judges are the judicial officers that preside over
the intermediate and superior courts – the
District Court and Supreme Court. Judges oversee
proceedings, maintain order in the courtroom
and ensure that the procedures of the court are
followed. Judges will make decisions about points
they understand the proceedings and the evidence
presented. 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 also be responsible for
making the final determination in the case.
2 Prosecutors
In criminal trials, the state or ‘Crown’ is repre-
sented by a prosecutor who brings the action
against the accused. It is the prosecutor’s role to
prosecute the offender in a court of law and obtain
an appropriate form of sanction or punishment for
the offence. There are two types of prosecutors
in criminal trials: police prosecutors and public
prosecutors.
police prosecutor
Police prosecutors a NSW police
officer trained in
Each criminal investigation begins with the police
prosecution, usually
and they are an essential part of any criminal case. used to prosecute
It is imperative that the police undertake an summary offences

Cha pter 3: Crimina l tri al proces s 53


public prosecutor
a legal practitioner
employed by the
Director of Public
Prosecutions, usually
used to prosecute
indictable offences
public defender
public barristers who
can appear for an
accused in serious
criminal matters where
legal aid has been
granted
legal aid
a subsidised legal
service provided by
the state for low-
income earners
plea
a formal statement
of guilt or innocence
entered into by the
accused
plea bargaining
agreement between
the prosecution and
the accused on the
acceptance of a
guilty plea, usually
in exchange for
something else
Figure 3.6 Barristers play an
important role in criminal court cases.
54 C am br i d g e L e g a l S t u d i es – HS C
intensive and exhaustive investigation of the mat-
ter and gather all the evidence and information
that will be used at trial to form the case against
the accused. The police will often also be required
to give testimony at the trial to aid the prosecu-
tion’s case.
For summary offences in the Local Court and
Children’s Court, cases will usually be prosecuted
by police prosecutors. Police prosecutors are
members of the NSW Police with specialised train-
ing to conduct prosecutions. Police prosecutors
handle most summary cases in NSW. More serious
offences are dealt with by public prosecutors,
described below.
Director of Public Prosecutions
For indictable offences and some summary off-
ences, cases will be prosecuted by the NSW Office
of the Director of Public Prosecutions (DPP). The
DPP will also conduct some committal proceed-
ings 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
and gain a conviction verdict 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 various witnesses.
The DPP does not investigate crime – that is the
responsibility of the NSW Police – but it prosecutes
cases once sufficient evidence has been estab-
lished. 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.
Independence of the DPP is vital
to ensure that cases are
prosecuted on their merits and
are not influenced by political
interference or public pressure.
This decision to prosecute will depend on many
different factors, including:
s whether the evidence is sufficient to establish
the elements of the offence
s whether the evidence is sufficient to gain a
conviction by a reasonable jury
s certain discretionary factors to determine the
public interest, including seriousness of the
offence, special circumstances of the offence,
accused or victim, the need to maintain public
confidence, length and expense of trial, and the
likely outcome and consequences if the trial
succeeds.
3 Barristers and solicitors
A person charged with an offence will usually
contact a solicitor first, who will be able to give the
accused advice on a range of matters, including
the charge and alleged offence, procedures
surrounding a trial and assist in interactions with
police investigating the case. The solicitor may also
advise on any available defences, the likelihood of
conviction and possible sentences. Many solicitors
will specialise in criminal law or particular areas
of criminal law.
A solicitor may also represent the accused
in court, or engage a barrister to represent the
accused. It is common to see solicitors appearing
in the Local Court, while barristers will usually
appear in the higher courts. Barristers have two
main roles in court proceedings: to provide legal
advice for the accused on the likely outcome of a
court case and to present that case in court.
Public defenders
Where an accused is unable to afford legal repre-
sentation in their case by a private barrister or
solicitor, they may be granted access to a public
defender. Public defenders are barristers who
appear in serious criminal matters for an accused
who has been granted legal aid.
If an accused has been charged with a serious
indictable offence and is eligible to receive legal
aid, they may be granted a public defender to
defend their case and represent them in court.
Public defenders are paid public barristers who
are independent of the government and perform
similar duties to a privately retained barrister.
They will be able to appear or advise in relation to
criminal trials, sentence matters and appeals in the
District or Supreme Court and may be briefed by a
private solicitor, through the Legal Aid Commission
or through a community based legal group.
R EVI EW 3 . 4
1 Explain the difference between the
adversary and inquisitorial systems of law.
2 Describe the types of cases heard by a
magistrate and by a judge.
3 Explain the role of the prosecution in a
criminal trial.

C rim e
Plea s a n d c h a r ge ne go t ia t io n
After an accused is charged with an offence and expensive case for the prosecution, R ESEAR CH 3 . 2
the trial process proceeds, the law requires the the accused and the court. Plea Recent trials on plea
accused to enter a plea of either guilty or not bargaining cannot guarantee a bargaining or ‘case
guilty. At a plea hearing the accused will state in particular sentence for the offence conferencing’ were conducted
front of a judge their plea. If they enter a ‘No plea’, – this can only be determined by in NSW under the Criminal
it is written on the record as a not guilty plea. the judge based on the nature of the Case Conferencing Trial Act
The plea entered by the accused will have a offence and sentencing guidelines, 2008 (NSW), which allowed
major impact on how the charges are dealt with. A although the plea bargain may be for specified discounts in
guilty plea will be dealt with quickly and does not taken into account. sentences. Research the
require witnesses to give testimony. The accused Some of the arguments for and case conferencing trial on
will be sentenced straight away, or if the guilty plea against plea bargaining include: the internet and answer the
is made at a committal hearing, the magistrate s that plea bargaining decreases questions below. The following
will commit the accused for sentencing in a higher costs and time delays, which is websites will be of use to you:
court. beneficial to all parties s www.lawlink.nsw.
If the accused pleads not guilty, then the case s that it increases the rate of gov.au/lawlink/pdo/
will be defended in court. Further dates will be set criminal convictions ll_pdo.nsf/pages/PDO_
to go to trial, which may be a long time away, and s that conviction on a lesser caseconferencing
the accused will be awarded bail or remanded in charge is better than no convic- s www.legalaid.nsw.gov.au/
custody until that date. If an accused pleads not tion at all data/portal/00000005/
guilty but is later found guilty, this may also have s that crimes may go unpunished public/07820001157522
an impact on sentencing. or that the admitted crime is 434812.doc
An often controversial tactic that is used in insufficiently punished 1 What were the discounts
criminal proceedings is that of plea bargaining. s it may result in an accused available under the trial?
This is where the accused agrees with the pleading guilty to a crime for 2 Where was the trial held and
prosecution to plead guilty to a particular charge which they are innocent for what types of offences?
or charges. This usually involves pleading guilty s it may lead to bullying or mani- 3 What was the outcome of
to a lesser charge in exchange for other higher pulation of the accused to forfeit the trial?
charges being withdrawn, or pleading guilty in their right to a trial 4 Have there been any recom-
exchange for a lesser sentence. Plea bargaining s prosecutors may threaten more mendations or changes
is sometimes known as ‘case conferencing’ and serious charges to intimidate in the law since the trial
can be conducted at many stages of the criminal the accused to plead guilty to ended?
process. It will usually result in a faster and less the lesser charge.

Cha pter 3: Crimina l tri al proces s 55

 Lega l representat ion a n d Lega l
Aid NSW
In the Australian legal system, a defendant has the
right to a fair trial, and Australian courts have ruled
that a trial will rarely be fair for an accused without
adequate legal representation. In the event that a
case goes to trial, it is unlikely that the defendant
will have a fair trial if they represent themselves or
arrange for an unqualified person to defend them.
The High Court recognised this in a 1992 decision
Dietrich v The Queen, which for the first time estab-
lished a limited right to legal representation in Aus-
tralia. Access to justice is crucial to ensure the legal
system functions fairly and equally for all parties
who come before it, and this is particularly so in
criminal matters where the consequences of inade-
quate representation for an accused can be high.
Many defendants are able to afford adequate
legal representation and will pay for the services of a
barrister or solicitor to advise
them and represent their case
in court. The quality of legal
services will vary, and not all
lawyers will have adequate
Figure 3.7 Legal Aid NSW provides
experience representing people
legal assistance and representation
to people who are socially and before a court. Some defen-
economically disadvantaged. dants may be able to ensure
that they receive the best pos-
sible defence to the charges
R E SE A RC H 3.3 against them, for example by
Visit the Legal Aid NSW website hiring the most expensive
(www.legalaid.nsw.gov.au) and click specialised and experienced
on the ‘About Us’ tab on the navigation barristers to represent their
bar. Read the information available case. In most cases this advice
and answer the following questions: and representation will cost a
1 How many clients were represented significant amount of money.
by Legal Aid NSW in the last In rare circumstances an
financial year? accused may even elect to
2 What percentage of Legal Aid NSW represent themselves in court,
expenditure was spent on criminal but due to the complexities of
law? How does this compare with court and the consequences of
other areas of law? inadequate representation in
3 How many calls were made to the criminal matters, this is not
Legal Aid Youth Hotline? advised unless the offence
56 C am br i d g e L e g a l S t u d i es – HS C
relates to a very minor matter. The courts prefer
people to be represented so that they will receive a
fair trial.
Not everyone has the finances or skill to seek
proper legal representation. This can result in
injustices in the courtroom and denial of access to a
fair trial. In 1979, the NSW Government created the
Legal Aid Commission, under the Legal Aid
Commission Act 1979 (NSW). The Commission pro-
vides legal assistance and representation to people
who are socially and economically disadvantaged to
ensure that they have equitable access before the
law. In doing so it aims to safeguard people’s rights
in the legal system and improve access to justice.
Legal Aid NSW is usually accessed by marginal-
ised and disadvantaged groups in society such as
disabled persons, women, people of Aboriginal
and Torres Strait Islander backgrounds and people
who are financially disadvantaged through un-
employment or are low-income earners.
The Legal Aid Commission provides free brief
legal advice sessions to anyone. However, to access
subsidised legal representation, the defendant must
be means tested. A means test assesses the defen-
dant’s income and assets to determine whether or
not they have the means to pay for legal repre-
sentation. For criminal matters, the Commission
does not assess the merits or likelihood of the case
succeeding. Not all matters can be covered by Legal
Aid NSW, as the type of case must fall within the
jurisdiction of specific areas of law in order to be
eligible. Legal Aid NSW will either provide a legal
representative or contribute towards the cost of a
private lawyer.
Unfortunately a grant of legal aid is not free,
and in most cases a contribution must be made
by the user. Legal Aid NSW is largely funded by
the Commonwealth and NSW government and the
NSW Law Society, but funding is limited and is often
considered inadequate to meet the level of demand.
There will still be many instances where people who
are in need of assistance are unable to receive it.
Burden and standard of proof
Central to the criminal justice system is the
principal that a person is innocent until proved
guilty in a court of law. In practice, this means that
it is the responsibility of the prosecution to prove
in court that the accused committed the offence
that they have been charged with. This is known
as the burden of proof: that the burden (or onus)
is on the prosecution to prove the case.
The prosecution must also meet the standard
of proof for criminal matters: the prosecution
must prove the case beyond reasonable doubt.
This means that to succeed the prosecution must
show that there is no reasonable doubt that the
accused in fact committed the offence. The burden
and standard of proof are essential to criminal
proceedings and essential in achieving justice in
Use o f ev i de n ce, i nc l u d i n g
w i t nesses
As discussed in Chapter 2, the police will gather a
wide range of evidence during a criminal investi-
gation that will be used in court to support the
charge and prosecute the accused. The use of
evidence in a court case is bound by the Evidence
Act 1995 (NSW) and includes various complex
rules. For evidence to be admissible in court it
needs to be relevant to the case and legally
obtained by the investigating police. Evidence that
the police have obtained illegally is generally in-
admissible unless a special exception is made by
the judge – any later evidence obtained in the
investigation relying on that illegal act may also be
inadmissible as the ‘fruit of the poisoned tree’.
Evidence will also be inadmissible if it is deemed
irrelevant and generally if it is not direct evidence
(just hearsay) or simply relates to a person’s
opinion unless it relates to an expert or profes-
sional opinion being sought.
criminal law. Due to the severe consequences if burden of proof
in criminal matters,
an innocent person were to be found guilty, the
the responsibility
criminal law standard is set much higher than of the prosecution
for civil law, which only requires a balance of to prove the case
against the accused
probabilities standard, that is that one explanation
standard of proof
is more likely than another.
the level of proof
Generally, the Department of Public Prosecutions required for a party to
will not bring a case before the courts unless they succeed in court
C rim e
feel that a jury will be convinced by the evidence beyond reasonable
doubt
and convict the accused. Criminal trials cost time,
the standard of proof
money and resources and so it is important that the required in criminal
case is winnable. The evidence and arguments must law, which requires
the prosecution to
be sufficient to convince all 12 jurors of the case show there is no
beyond any reasonable doubt. If any juror is not reasonable doubt
that the accused
convinced, then the standard of proof has not been
committed the
met and the case may not succeed. offence
For a case to go to court, the
prosecution will need to ensure that
its body of evidence is the best avail-
able and likely to secure a conviction.
Evidence used in court can take the
form of real evidence, documentary
evidence and witness testimony. Real
evidence is physical evidence, which
Figure 3.8 Real evidence is
can be presented to the jurors in a
physical evidence that may
trial. This may take the form of tape
take the form of photographs,
recordings, charts to help explain fingerprints, DNA testing, and
evidence, photographs, fingerprints, exhibits such as weapons and
DNA testing, and exhibits such as clothing.
weapons and clothing.
Documentary evidence may involve original
documents recovered during the investigation.
One of the most important types of evidence is
witnesses. Witnesses can be called to give evi-
dence in court by either the prosecution or the
Cha pter 3: Crimina l tri al proces s 57

Figure 3.9 One of the most important types of evidence is witnesses.
R E VIEW 3.5
1 Evaluate the importance
of the burden of proof in
criminal law.
2 Describe some of the types
of evidence that may be
presented in court.
acquittal
a judgment that a
person is not guilty of
the crime with which
the person has been
charged
mental illness or
insanity
mental incapacitation
at the time of the act,
meaning the accused
cannot have formed the
mens rea, but rarely
proved
58 C am br i d g e L e g a l S t u d i es – HS C
defence and may be examined by either in court.
A witness might be someone who saw some
aspect of the crime take place, or simply has some
relevant knowledge about an aspect of
the case that supports the prosecu-
tion’s or defendant’s argument.
Anyone who witnessed a crime or was
inter viewed by police may be
subpoenaed to appear later in court. A
subpoena is a formal letter requesting
a person’s attendance at court at a
certain time and place, and cannot be
Defences to c ri m i n a l c h a rges
A defendant may have a legal defence available in
order to defend a charge in court. A defence will
usually involve some denial, justification or excuse
for the accused’s act. Most defences revolve around
the mens rea of the offence, that the accused could
not have had the level of intention required for
the offence. Legal defences help achieve justice
by allowing the court to consider circumstances
that might justify the accused’s act or reduce
their culpability. They limit the risk of an unjust
conviction by permitting reduced liability in certain
situations, for example serious mental illness or
involuntary behaviour by the accused. Defences
can sometimes be controversial, especially in cases
where a victim is involved. Whether a defence
ultimately succeeds will usually be a question of
fact for consideration by the judge or jury, based
ignored – otherwise it may result in serious
charges of contempt of court.
A witness giving evidence will be asked to take
an oath to tell the truth and will be asked a series
of questions usually by both the prosecution and
the defence. There are rules around the order and
type of questions that a witness can be asked. The
information they seek is based on factual firsthand
knowledge or eye-witness testimony and will often
be supported by an earlier statement made by the
witness and recorded. Witnesses must answer
questions truthfully or may be guilty of perjury,
which is telling an untruth to a court.
Another type of witness evidence is that of an
expert witness. This is a person who has studied
some element of the evidence as an independent
expert during the investigation, for example some-
one who examined DNA, blood spatter or hand-
writing or assessed the defendant such as a psych-
iatrist. Their job is to give testimony based on their
expert or specialised knowledge and give an opin-
ion or interpretation of the evidence. The evidence
of an expert witness can often be valuable.
on the evidence that the accused presents.
Defences may be complete defences, which
result in the complete acquittal of the accused, or
partial defences, which may result in the charge or
sentence being reduced.
Complete defences
Complete or absolute defences are used to justify
the defendant’s actions and, if successfully proven,
will result in charges being dropped or, if it is
determined following a trial process, an acquittal.
Mental illness or insanity is a defence that is
only available where the accused can prove that
they were in fact mentally incapacitated when
they committed the offence. The defence relates
to the mens rea of the accused – that they were
not criminally responsible for their actions and so what they may deem as reasonable force and what involuntary
behaviour or
could not have formed the necessary mens rea. the jury believes is reasonable force may be very
automatism
The defence of insanity is very difficult to prove different from one another. In R v Zecevic (1987) an act that could not
but enables the accused to claim that they were 162 CLR 645 it was held that the defendant must be controlled or was
not voluntary, such
not aware of, or able to comprehend, the nature have reasonable grounds to believe their life was
as an epileptic fit
or consequences of their act at the time the crime threatened and they must use ‘proportional and
mistake
was carried out. Where the defence of mental reasonable force’ to defend themselves. Zecevic’s the defendant acted
illness succeeds, the accused may be found not Case stemmed from a dispute over a parking under an honest and
reasonable mistake
guilty on the grounds of insanity. space. When a defendant uses this defence, the
and could not have
Involuntary behaviour or automatism is jury is compelled to either acquit the defendant formed the mens
another defence relating to the mens rea of accused or find them guilty of the crime. Particular rules rea

C rim e
– that the accused’s action was not voluntary or apply to self-defence in relation to some offences self-defence or
necessity
could not be controlled, for example due to some such as murder. the defendant
involuntary action like an epileptic fit. As the act Under the defence of duress, the accused must acted in defence
of self, another
was involuntary the mens rea of the offence cannot be able to prove that they committed a crime
or property; only
be established. against their own free will. Duress describes un- accepted in limited
Mistake is not generally a defence under the lawful pressure that is applied by one person to circumstances and
only for reasonable
law and will be difficult to prove. However, if it induce another person to do something against
force
can be shown that the accused’s action was an their own free will. Although they knowingly car-
duress
honest and reasonable mistake and that the act ried out the crime, they did so because their life or a defendant may
was not intended, the relevant mens rea may not someone else’s may have been under threat. In R be acquitted if
they can show they
be present and the offence may not be able to be v Williamson [1972] 2 NSWLR 281 the defendant
acted against their
established. disposed of a body while under a death threat and will under unlawful
Self-defence or necessity is a self-explanatory this threat was held to constitute duress. pressure

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

The McNaghten test

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

Cha pter 3: Crimina l tri al proces s 59

 m e d i a cl i p
I’m glad it’s over:
robber’s killer freed
By Natasha Wallace
Sydney Morning Herald, 5 August 2006
The accused thanked the jury,
the gallery applauded and
even the prosecutor was not
disappointed when Karen Brown
was found not guilty of murder,
writes Natasha Wallace.
THE facts of the case were
simple: moments after the security
guard Karen Brown shot dead a
robber who had beaten her with
knuckledusters, she staggered
dazed and confused into a hotel,
her head ‘bubbling’ with blood and
the gun dangling from her hand. ‘I
have been robbed,’ she said. ‘Call
the police. I think I killed him.’
But the issues in the case were
complex. While Ms Brown admits
she pulled the trigger, she insists
she does not remember shooting
William Aquilina, 25, as he tried to
rob her of about $40 000 outside
the Moorebank Hotel on July 26,
2004.
Two witnesses told the NSW
Supreme Court during Ms Brown’s
trial that she had given up the
fight and walked away before
turning towards him and shooting
him through a car window as he
sat in the front seat.
Yesterday the jury found her
not guilty of both murder and
manslaughter after about four
hours of deliberation.
This capped off a two-week
trial in which the central issue was
whether Ms Brown intentionally
shot at Aquilina as he fled the
scene.
When the jury handed down
its verdict, Ms Brown dropped
her head in her hands and cried.
The public gallery applauded. Ms
60 C am br i d g e L e g a l S t u d i es – HS C
Brown turned to the jury, nodded
her head and mouthed the words
‘thank you’.
Outside the court, the Crown
prosecutor, Paul Conlon, SC, said
he was not disappointed by the
verdict. ‘Not at all,’ he said.
‘I think what the jury has seen
with the presentation of all the
evidence over the last two weeks,
they no doubt appreciated the
type of difficult issues involved
… it’s obviously taken its toll on
her, the whole experience, and I
genuinely wish her well.’
Ms Brown’s mother, Bev,
thanked the public for its support.
‘We’re all very glad and relieved
it’s all over and we consider the
right decision has been made,
because we all know Karen for
the kind, lovely person she is and
we know that she is incapable of
doing what she is accused of,’ she
said.
‘I think the jury gave very
careful consideration to all
aspects of the case and we thank
them for that.’
Arm in arm with her mother,
crying and shaken, Ms Brown said:
‘I’m glad it’s over. I’d like to thank
the jury very much.’ She was
looking forward to getting on with
her life.
To secure a guilty verdict, the
prosecution had to prove that Ms
Brown, 42, shot Aquilina out of
revenge or anger, and that the act
was not done under provocation
and she was not acting in self-
defence at the time she fired the
gun. He died of a bullet wound to
the head.
But her defence argued that
at the time she fired the gun
she experienced a brief period
of automatism - that she was
acting involuntarily and was not in
control of her actions.
A defence psychiatrist, Olav
Nielssen, said that despite
entering the hotel shortly after
the shooting and alerting patrons
and staff to what had happened,
Ms Brown had suffered from
‘post-traumatic automatism’ at
the crucial moment. He said this
was either because of the direct
effect from the brain injury she
sustained in the assault or the
emotional trauma arising from
believing her life was in danger.
During deliberations yesterday,
the jury asked the judge to clarify
the Crown and the defence’s
positions on what constituted a
voluntary act.
Through the trial, Ms Brown had
appeared to be traumatised still.
Her head sometimes shook, her
eyes constantly darted about the
courtroom and she often wept as
witnesses recounted events.
She took deep breaths and
tried to steady herself as the
jury listened to how she fought
Aquilina for the bag of cash before
turning and shooting him dead.
She did not give evidence.
She says she does not remember
anything from the time Aquilina
bashed her and dragged her
along the ground by the backpack
until she was in hospital later.
Dr Nielssen diagnosed her with
concussion, which he said lasted
up to two months afterwards.
Dr Elizabeth Swinburn, who had
treated Ms Brown at Liverpool
Hospital that night, thought Ms
Brown was ‘lucid’ and alert and
said she had denied any loss of
consciousness.
She was discharged from
hospital but an X-ray and CT scan
two days later showed she had
a fractured nose, eye socket and
wrist.

doctor or family member who assisted a terminally
ill person in dying cannot use the defence of con-
sent even if the patient wanted to die.
Partial defences to murder
There are a number of partial defences that relate
specifically to murder. When a murder has been
committed, the accused may claim that there were
mitigating circumstances that caused them to
carry out the act. While it is not enough to absolve
the defendant of blame, it may help to reduce the
sentence or even result in an acquittal.
Provocation is the defence whereby the defen-
dant claims that their actions were a direct result
of the other person’s actions, and caused them
to lose control of their actions. Provocation is a
controversial defence because it implies some
level of responsibility on the victim, that they
somehow provoked the accused to an extreme
reaction resulting in murder. Provocation as a
defence has been abolished in Victoria, Western
Australia and Tasmania, but still exists in NSW. For
provocation to succeed, the accused must be able
to prove that the victim caused the accused to act
in such a way that, given the same circumstances,
any ordinary person would have been provoked
into carrying out the crime. In NSW, the defence
of provocation can only be used when attempting
The role of juries, including
verdic ts
Juries are a central part of the adversarial system
of criminal law and play an important role in
reaching an impartial judgment by a group of
peers, based on the presentation by the parties
of evidence at a trial. In NSW, juries are used to
hear most indictable offences where a plea of ‘not
guilty’ is entered, and may be used in either the
District Court or the Supreme Court. The Local
Court does not have jurisdiction to conduct trials
with a jury. Many of the rules pertaining to juries
are found in the Jury Act 1977 (NSW).
provocation
to have a murder charge reduced to manslaughter.
the defence whereby
In R v Camplin [1978] AC 705, a 15-year-old boy the defendant claims
successfully argued provocation after he hit that their actions
were a direct result
his uncle with a frying pan and killed him. The
of another person’s
uncle had just sexually assaulted the boy and was
mocking him about the incident. The court held
actions, and caused
them to lose control of
their actions
that an ‘ordinary person’ in the position of the
diminished
accused would have formed the intent to kill or
responsibility
inflict grievous bodily harm on the person who also known as
had assaulted them. substantial impairment
of responsibility,
Substantial impairment of responsibility is this defence is used
C rim e
another partial defence to murder, which reduces when the accused
is suffering from a
murder to manslaughter. This defence is also refer-
mental impairment
red to as diminished responsibility. The defen- that caused them to
dant must be able to prove that they suffer from commit the crime
a mental abnormality that caused
them to act in a certain manner
and carry out a crime. Such abnor- R EVI EW 3 . 6
malities include a low IQ or mental Read the media article ‘I’m
retardation. This defence is more glad it’s over: robber’s killer
widely used than the insanity plea freed’ and answer the following
because it is easier to prove, and questions:
the person may be completely 1 Describe the charge the case
normal in every other aspect of related to.
their mental capacity and health. 2 Outline the facts of the case
Substantial impairment cannot and describe the defences
be used as an excuse when the that were relied on.
accused was drunk or under the 3 Describe the outcome of the
influence of mind-altering drugs. case and why it was reached.
A jury is a panel of citizens, selected at random
from a jury list compiled from the electoral roll,
whose job it is to determine the guilt or innocence
of the defendant based on the evidence presented
to them at trial. It is a task that brings with it enor-
mous responsibility. Their job can be described as
‘fact-finding’, and their decision is called a verdict.
In most cases, a criminal trial involves a jury of 12
people. Discussion of the adversary system earlier
in this chapter included some discussion on the
merits of a jury system.
Cha pter 3: Crimina l tri al proces s 61

Figure 3.10 A jury is a panel of citizens, selected at random from a jury
list compiled from the electoral roll, whose job it is to determine the
guilt or innocence of the defendant based on the evidence presented
to them at trial.
peremptory
challenge
when the legal team
strikes a juror without
needing a specific
reason
challenge for cause
when the legal team
strikes a juror because
it is believed that for
some reason the juror
will be prejudicial
62 C am br i d g e L e g a l S t u d i es – HS C
Challenging jurors
In a criminal trial, both the prosecution and the
defence have the right to challenge either the selec-
tion of the entire panel of jurors, or individual
jurors. Both sides can also exercise a certain num-
ber of ‘peremptory challenges’ of prospective
jurors, which will disqualify individual jurors with-
out having to give a reason. However, challenging
the selection of a juror can be difficult: neither side
knows anything about them in advance apart from
their names, and peremptory challenges are usually
based on nothing more than name or appearance
(e.g. age, gender, race, clothing, physique).
‘Challenges for cause’ are another type of
challenge based on the person not being qualified
to serve on a jury, being ineligible or disqualified,
or being suspected of bias. It may be the case that
one of the jurors is acquainted with the defendant
or that one of the jurors has been a victim of a
similar crime and therefore may be biased.
Eligibility for jury duty
Australian citizens aged 18 years or over become
eligible to sit on a jury once enrolled on the elec-
toral roll. It is very difficult to gain an exemption
from jury duty and some people view jury duty as
an inconvenience and a burden, especially when
they are selected to sit on a long trial. However, it
is an important part of our justice system for an
accused person to be tried by a group of their peers.
Exemptions can be sought by certain persons,
including those who are aged over 65 years, are
pregnant or care for children full time. There are
also some groups of people in society who are
ineligible to sit on a jury. They include people who
do not speak English, emergency services staff
members (police, fire and ambulance), disabled
people, convicted criminals and members of the
legal profession.
Jury role
Before a court case begins, jurors are sworn in.
During the trial, the role of a juror is to listen to the
evidence presented to the court, apply the law as
directed by the judge and come to a verdict as to
the accused’s guilt or innocence.
Jurors are permitted to make notes in order to
refresh their memory when deliberating over a
verdict. They are not permitted to talk to anyone
about the case except for their fellow jurors when
they are all together. They may also ask for clari-
fication on matters from the judge. Throughout the
case, they are to remain alert and focused on what
is being presented to them in the courtroom. Their
role is to be unbiased and impartial and make a
judgment based solely on the evidence they are
presented with. Each jury elects a foreperson who
speaks on their behalf.
The jury must remain fair and open-minded
when reaching their decision, they should not be
influenced by the media or their own personal
beliefs when reaching a decision, it is their job
to apply the law and base their decision on the
evidence and testimony presented throughout the
trial. When deliberating over a verdict, the jury does
not have any set time limits. They are encouraged to
take their time and discuss the court proceedings.
Verdict
A jury is required to reach a verdict of guilty or not
guilty and present that verdict to the court. The
accused will then be acquitted if found not guilty,
or if guilty the judge will then pass a sentence.
Sometimes, it easy for the jury to arrive at a
decision, other times they can deliberate for days
and still not reach a verdict. A jury that is unable
to reach a verdict is called a ‘hung jury’. In these
situations the case is dismissed and a retrial will be
ordered for the procedure to begin all over again. A
hung jury results in significant strain on all parties
to a case – the time and cost consequences for the
accused and the prosecution are very high. If the
accused is in remand during the trial, it may result
in an extended period of custody for an offence
he or she may ultimately be acquitted of. The
anguish caused to victims and witnesses during a
Commonwealth offences, as unanimous verdicts
for those offences are protected under s 80 of the
Constitution of Australia.
New South Wales had previously had a long-
standing system of unanimous verdicts in criminal
trial, historically inherited from British law.
Unanimous verdicts mean every single one of the
jurors must agree. This was changed in the UK in
1967 and later in many other Australian states.
Some of the arguments for the change to majority
verdicts include removing rogue or unreasonable

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

Jurors’ understanding in criminal trials

A lot of research has been conducted internationally
to determine whether jurors in a trial understand
the instructions given to them by judges. A generally
consistent finding is that jurors do not understand
instructions given to them by judges, with particular
difficulty in concepts like ‘reasonable doubt’, ‘intent’
or ‘presumption of innocence’.
In 2008, the NSW Bureau of Crime Statistics
and Research conducted a study entitled Juror
understanding of judicial instructions in criminal
trials. The study surveyed over 1200 jurors on their
understanding of the criminal trial process.
In particular, the study focused on jurors
understanding of the phrase ‘beyond reasonable
doubt’. Over half the jurors (55.4%) believed the
phrase means ‘sure that the person in guilty’. About
one-fifth of jurors (22.9%) believed the phrase
meant ‘almost sure’ the person is guilty, while 11.6%
believed it means ‘very likely’ and 10.1% thought
‘pretty likely’.
Almost all jurors believed they could understand
all or most of the judge’s instructions to them on
the law (94.9%). Almost half (47.2%) stated that
they ‘understood completely’. However, some
groups were less likely than others to understand
judicial instructions. Younger jurors, between 18-35
years, were 1.3 times more likely to say the judge’s
summing-up of the case to the jury did not help the
jury at all or only a little bit in reaching a verdict. If
a juror’s first language was not English, they were
almost twice as likely to say they understood only
‘a little’ or nothing of the judge’s instructions on
the law.
The director of the Bureau, Dr Weatherburn,
suggested that the results provided reassuring
evidence of the effectiveness of the jury system: ‘It is
occasionally suggested that jurors do not understand
what is going on in criminal trials. This study
indicates that the overwhelming majority of jurors
have little or no problem understanding judicial
instructions on the law or the judge’s summing-up of
evidence at the end of the trial.’
In 2008, the rate of offenders found guilty at jury
trials in NSW was 84.7%.

Cha pter 3: Crimina l tri al proces s 63

 s Different offences will be heard in different
courts in the court hierarchy.
s The Local Court deals with summary offences
and less serious offences.
s The Coroner’s Court decides whether a
C h a p te r s u m m a ry
person’s death is suspicious and a case can be
built to prosecute a suspect.
s The Children’s Court deals with crimes
committed by juveniles under the age of 18.
s The District Court hears serious criminal
matters and appeals from lower courts.
s The Supreme Court hears the most serious
cases such as murder and gang rape.
s The High Court is the highest court in
Australia.
M ul ti p l e- c hoi ce q ues ti ons
1 The Coroner’s Court is which of the following?
a a court that deals with the cause and
manner of a person’s death
b a court where most criminal cases are
heard
c a court where the general public are
prohibited from viewing proceedings
d the highest court in Australia
2 Which of the following best describes the
defence of duress?
a the accused claims that the victim
consented to the crime carried out against
them
b the accused tries to prove that they
committed a crime against their own free
will
c the crime was done in the act of self-
defence
d the victim’s actions caused the accused to
lose control
64 C am br i d g e L e g a l S t u d i es – HS C
s The DPP prosecutes cases on behalf of the
NSW government.
s Public defenders represent the accused.
s Legal aid is available to people who are
unable to pay for legal representation.
s Evidence can take the form of real,
documentary and witness testimony.
s An accused may raise a defence to a charge
which may be a partial or a complete offence.
s Juries must in most circumstances reach a
unanimous verdict, but this may be reduced
in certain circumstances.
3 A public prosecutor is a:
a judge
b magistrate
c lawyer
d police officer
4 When a defendant pleads guilty to a lesser
charge in exchange for another charge being
withdrawn it is referred to as:
a plea bargaining
b charge bargaining
c double jeopardy
d committal hearing
5 The standard of proof in a criminal case is
best described as:
a beyond reasonable doubt
b balance of all probabilities
c diminished responsibility
d innocent until proven guilty
C h a p te r s u m m a ry ta s k s

1 Describe the difference between lower courts,

intermediate courts and superior courts.
2 Explain the different roles of a magistrate and

C rim e
a judge.
3 Compare the roles of the public prosecutors
and the public defenders.
4 Describe why self-representation in court is
not recommended.
5 Assess the importance of the jury in the
adversarial system.

Cha pter 3: Crimina l tri al proces s 65

 CHAPTER 4
Sentencing and punishment
chap te r o b j e cti ve s

In this chapter, students will:
s identify the purpose of sentencing
s describe the many different types of sentences
available
s discuss the role of the victim in the sentencing
process
key ter ms/vocab ul ary
s explain the subjective and objective elements in
applying a sentence
s describe the alternatives to traditional forms of
sentencing
s communicate the effectiveness of a sentence as a
means of deterrence.

aggravating factors general deterrence probation

appeal against conviction gratuitous violence proceeds of crime
appellant guideline judgments recidivism
bond home detention rehabilitation
caution incapacitation remorse
circle sentencing judicial discretion restorative justice
community service order mandatory sentencing retribution
correctional centre maximum penalty sentence appeal
criminal infringement notice mitigating factors sentencing hearing
deterrent non-parole period specific deterrence
diversionary program parole suspended sentence
fine penalty units victim impact statement
forfeit periodic detention

66 C am br i d g e L e g a l S t u d i es – HS C
 rel ev ant l aw
I MPORTANT LEGIS L AT ION
Child Protection (Offenders Registration) Act
2000 (NSW)
Crimes (Administration of Sentences) Act 1999
(NSW)
Crimes (Appeal and Review) Act 2001 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes (Serious Sex Offenders) Act 2006 (NSW)
Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Criminal Assets Recovery Act 1990 (NSW)
Migration Act 1958 (Cth)
Terrorism (Police Powers) Act 2002 (NSW)
Victims Rights Act 1996 (NSW)
Young Offenders Act 1997 (NSW)
S I GNIFICANT CA S ES
R v AEM (Snr); R v KEM; R v MM [2002]
NSWCCA 58
McCartney v R [2009] NSWCCA 244
Kable v DPP (1996) 189 CLR 51
od d l a w
C rim e
Sentences have evolved in many ways over
the past four centuries. In Elizabethan England
(1558–1603), common sentences often included
corporal punishment and public humiliation as a
method of deterring crime.
For example, women convicted of being
a ‘common scold’ (i.e. a troublesome
woman who, by brawling and arguing with
her neighbours, broke the public peace
and became a public nuisance to the
neighbourhood) were forced to wear the brank.
The brank (also known as the gossip’s bridle)
was a metal mask or cage that was placed over
a woman’s head. Attached to this mask was a
sharpened mouthpiece, sometimes covered
with spikes, that was placed in the mouth. If the
woman attempted to speak, the spikes would
inflict painful injuries to the tongue and mouth.
Women who gossiped with their neighbours
with no purpose other than to offend, ridicule
or lie about someone else, were subject to this
torture.
Cha pter 4: Sentencing a nd p uni s hment 67

sentencing hearing
a hearing following a
finding of guilt in which
a magistrate or judge
will determine the
sentence to be handed
down to the accused
maximum penalty
set by parliament,
this is the maximum
sentence available to a
court to impose for an
offence; the maximum
penalty will rarely be
handed down
judicial discretion
the power of a judge
or magistrate to make
a decision within a
range of possibilities
based on the particular
circumstances of a case
guideline judgments
judgments issued by
the court on application
of the Attorney-
General that will set out
sentencing guidelines
for a particular offence
mandatory sentencing
removal of judicial
discretion by
legislation, by setting a
minimum or mandatory
sentence for a
particular offence or
type of offender
68 C am br i d g e L e g a l S t u d i es – HS C
Se n t e n c i n g a n d p u n i s h m e n t
Once a crime has been committed, it is investi-
gated and charged by the police and prosecuted
by the relevant authority. If the person accused of
the crime pleads not guilty, the case will be tried in
court by a magistrate, judge or jury and a verdict
reached. If tried and found not guilty, the accused
will be acquitted and set free.
Where an accused pleads guilty, or if the court
reaches a guilty verdict after trial, the accused will
be sentenced for having committed the offence.
It is the responsibility of a judicial officer – the
magistrate or judge – to determine and pass the
most appropriate sentence. The jury is not in-
volved in sentencing an offender.
Sentencing occurs in a sentencing hearing.
This may take place at the same time a verdict
is reached or a guilty plea is given, but it often
will take place on a separate day to the trial or
St a t u to r y a n d j u d i c i a l g u i de l i ne s
When imposing a sentence, magistrates and judges
do not simply pluck a punishment from the air.
Sentencing is an established area of criminal law
– there are numerous laws, rules, guidelines and
cases on how sentences are to be determined.
The Crimes (Sentencing Procedure) Act 1999
(NSW) is the primary source of sentencing law in
NSW. It sets out the purposes for which a sentence
may be imposed, the types of penalties that can
be imposed and when they can be used, as well as
a number of factors and guidelines for sentencing
generally. In addition to the Crimes (Sentencing
Procedure) Act, limits and guidelines on senten-
cing are found in many different statutes.
The maximum penalty that an offender can
receive for an offence are also decided by parlia-
ment and listed in legislation. No judicial officer
can pass a sentence higher than the maximum
summary hearing. The sentencing hearing is
where the magistrate or judge hears and considers
arguments and evidence about the relevant law
and what the most appropriate sentence ought to
be in the circumstances. The magistrate or judge
will then determine and announce the sentence.
Sentencing involves the sanction given by the
state against the offender’s criminal conduct and
is one of the most crucial steps in the criminal
process. It often involves a judgment as to the
severity of the offence, the mind of the accused
and the need for the crime to be punished. In high
profile cases, sentencing can attract significant
publicity or become heavily politicised. However,
all sentences require careful balancing of the
competing interests of all parties concerned. This
includes the victims, the community, the state and
the accused.
penalty. It will generally be listed in the same
section as the offence it relates to, and will differ
according to the seriousness of the offence. For
example, 19A of the Crimes Act 1900 (NSW) des-
cribes the maximum penalty for murder as life
imprisonment, and s 61I sets the maximum penalty
for sexual assault at 14 years’ imprisonment.
Except in the most extreme cases, maximum
penalties will almost never be imposed for an off-
ence, and a variety of lesser penalties are available
for a judicial officer to use. The Crimes (Sentencing
Procedure) Act states clearly that a court may not
impose a prison sentence unless it is satisfied
that no other penalty is appropriate. Ultimately,
it is up to the magistrate or judge to determine
the most appropriate sentence to impose – this
is known as judicial discretion. Judicial officers
will use this discretion to determine the best
sentence on a case by case basis, and will take
into account numerous factors of the offence and
of the accused’s circumstances. These factors will
be discussed in more detail below.
Judicial officers can be guided by former
judgments where similar facts have arisen. Case
law will often be cited by the prosecution or defen-
dant in a sentencing hearing – other judgments
will often be persuasive, and sentencing principles
may need to be followed if handed down by a
higher court. The Crimes (Sentencing Procedure)

C rim e
Act also allows for the NSW Attorney-General to
apply to the court for guideline judgments on
sentencing for particular offences – such judg-
ments will be issued by a judge after hearing
arguments from both the Director of Public
Prosecutions and the Senior Public Defender. They
will be used in determining future sentences.
In some instances, controversial changes have
been made by parliaments to remove judicial
discretion for certain offences. This is known as
mandatory sentencing. Mandatory sentencing
describes an automatic sentence set by parliament
that must be imposed by the judicial officer for
particular offences or repeat offences. Mandatory
sentencing laws were introduced in the Northern
Territory and Western Australia in the 1990s, in-
tended as a harsh deterrent for repeat of fenders
or to remove serial offenders from the streets. The Figure 4.1 Section 19A of the Crimes Act 1900
‘three strikes and out’ policy involved offenders (NSW) describes the maximum penalty for
being mandatorily imprisoned if convicted three murder as life imprisonment. deterrent
something that
times for certain offences. discourages
Opponents claim that such laws are unduly or is intended
R EVI EW 4 . 1 to discourage
harsh as they remove the ability of a magistrate or
someone from doing
judge to consider the individual circumstances of 1 Explain at what point in the criminal process something
the accused and the offence they have committed. an accused person receives a sentence.
Particular ethnic and socioeconomic groups may Who determines it and what is the process?
be targeted by mandatory sentencing laws and 2 Identify the main sources of law and
there is little evidence that they work as a deterrent. guidelines for sentencing.
The Northern Territory later abolished its man- 3 Describe what mandatory sentencing is
datory sentencing laws after they were found to and how it differs from normal sentencing.
cause a huge and unmanageable rise in imprison- Discuss whether you think mandatory
ments, with little deterrent effect and with indi- sentencing would be appropriate in any
genous offenders overly represented. circumstances.

Cha pter 4: Sentencing a nd p uni s hment 69


specific deterrence
punishment against
an individual offender
aiming to deter them
from committing crime
in the future
general deterrence
punishment attempting
to make an example of
an offender in order to
send a message to the
rest of the community
70 C am br i d g e L e g a l S t u d i es – HS C
T h e p u rpo s e s o f p u n i s h m e n t
Sentencing is traditionally the means through
which the state and the community punish an
offender for the crime they have committed.
However, the notion of ‘punishment’ is misleading
and needs to be separated from sentencing –
punishment is just one of many purposes behind
imposing a sentence on an offender. A judicial off-
icer will have to consider the purpose behind the
sentence that is being considered – why is this par-
ticular sentence required in the circumstances?
The Crimes (Sentencing Procedure) Act 1999
(NSW) lays down the allowable purposes of sen-
tencing in s 3A of the Act. It states:
‘the purposes for which a court may impose a
sentence on an offender are as follows:
(a) to ensure that the offender is adequately pun-
ished for the offence,
(b) to prevent crime by deterring the offender and
other persons from committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her
actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the
crime and the community.’
All of these purposes are important when con-
sidering a sentence. Some will be more important
than others depending on the circumstances of
the offence. These purposes are considered in
more detail below.
Deterrence
A deterrent is something that discourages or is
intended to discourage someone from doing some-
thing. In the context of sentencing, deterrence
relates to passing a higher sentence in the hope that
fear of punishment might help to prevent future
offences. There are two types of deterrence:
s specific deterrence – punishment against an
individual offender aiming to deter them from
committing crime in the future by showing that
‘crime does not pay’
s general deterrence – punishment attempting
to make an example of an offender in order to
send a message to the rest of the community –
that the law is serious about punishing people
for this offence.
Section 3A(b) of the Crimes (Sentencing Pro-
cedure) Act mentions both types of deterrence
– ‘deterring the offender and other persons’ – as
possible purposes of sentencing. While deterrence
is a relatively simple concept that people can easily
relate to, there is very little evidence to suggest
that it is effective in individual criminal senten-
cing. Studies are either inconclusive or suggest
that it is not effective.
In New Zealand from the years 1924 to 1962,
the general deterrence of the death penalty for
murder was in a state of flux. During this time it
was in force, abolished, reinstated and abolished
again, with much publicity and discussion. Yet
during this period, the changing penalties had no
significant impact on the murder rate.
Similarly with specific deterrence, there is little
evidence that the higher penalty will reduce the
chance of reoffending. Studies have shown that
a sentence of imprisonment does not reduce the
chance of reoffending. It has also been shown
that there is apparently no positive variation in
the reconviction rate between imposing the lesser
sentence of a fine versus a more serious term of
imprisonment.
This is a significant issue for achieving justice in
criminal law – punishing one person more severely
than others may be an injustice if its only purpose
is ineffective. If there is no verifiable benefit in pas-

Figure 4.2 Throughout history, devices such as the stocks and the guillotine were used for both
specific and general deterrence.
sing the higher sentence for deterrence, then that
sentence would be simply excessive. Of course, if
other purposes are relevant, such as incapacita-
tion, then imprisonment may be appropriate.
In 1988, the Australian Law Reform Commis-
sion recommended that deterrence not be used
as a sentencing objective, as sentences should
be measured to the seriousness of the offence
committed. As a consequence, deterrence was
not included as a purpose in the federal Crimes Act
1914 (Cth), but remains in NSW.
Retribution
Retribution is an important factor in sentencing.
It is a general term referring to punishment consid-
ered to be morally right or deserved, based on
the nature of the crime. It encompasses a range
of purposes but assumes that some good comes
from inflicting hardship on the offender for their
crime. Retribution is related to the concept of
revenge or ‘getting even’, but differs in that it is
society seeking retribution on behalf of victims in
an impartial manner through the courts. It aims
to ensure that the punishment is proportionate to
the crime but not violent or physically harmful to
the offender.
Retribution is the main justification for inflict-
ing punishment on an offender and is related to a
C rim e
number of points under the s 3A purposes above,
including:
s ensuring the offender is adequately punished
for the offence, and according to the severity
of the offence
s making the offender accountable for his or her
actions and denouncing their conduct
s recognising the harm to the victim and the
community.
Centuries ago, punishment served as a form of
revenge and was often carried out by the victim
of a crime or by the wider community, with
terrible consequences. Victims today are no
longer permitted by law to take personal revenge
– instead, they are required to seek retribution retribution
through the legal system. punishment
considered to be
When someone is being sentenced for their morally right or
crime, a judge will take into account the effect the deserved based on the
nature of the crime
crime had on the victim and their family and make
an assessment about whether the punishment fits
the crime. If the offence was particularly appalling
or with serious consequences, this will be taken
into account. An example of this was discussed in
Chapter 1 in the case of R v AEM (Snr); R v KEM; R
v MM [2002] NSWCCA 58, where three teenagers
were sentenced to particularly long terms of
imprisonment due to the horrific nature of the
offence (sexual assault in company) and the long-
lasting effect it would have on the victims.
Cha pter 4: Sentencing a nd p uni s hment 71
 Again, retribution will be among the many
factors to be considered and it is not immediately
assumed that higher punishment is the most
appropriate sentence for the circumstances.
Rehabilitation
rehabilitation Rehabilitation is one of the most important pur-
an objective of
poses of punishment and will be considered in
sentencing designed
to reform the offender most cases. Like deterrence, rehabilitation aims to
to prevent them discourage future offences by the offender, but
committing offences in
does so by attempting to alter the views of the
the future
offender and eliminating the factors that contri-
recidivism
habitual or repeated buted to the conduct, encouraging renunciation of
lapses into crime the crime by the offender. This purpose is focused
personally on the accused. The main aim is to
prevent recidivism (reoffending) by preventing
criminals from returning to the same patterns or
lifestyle that led them to offend in the first place.
The purposes in s 3A of making the offender
accountable, denouncing their conduct and of
Figure 4.3 Rehabilitation may include a number
of different sentencing options and programs,
such as drug counselling and drug rehabilitation
programs, alcohol programs or anger
management courses.
72 C am br i d g e L e g a l S t u d i es – HS C
course ‘promoting rehabilitation’ are all relevant to
this concept. Rehabilitation may include a number
of different sentencing options and programs,
such as drug counselling and drug rehabilitation
programs, alcohol programs or anger manage-
ment courses. Others may aim to give the offender
the skills needed to function in society through
educational or skills courses. Such sentences may
be specifically imposed or incorporated into other
sentencing options.
Rehabilitation will rarely be the prime consider-
ation for very serious offences, where other factors
will usually outweigh the consideration of reform.
However, there is some evidence that rehabilita-
tive programs have some level of success with
offenders, particularly for less serious offences or
offences involving drug or alcohol abuse. It can
be said that rehabilitation and reform through
criminal sentencing will work at some level for
some offenders. There is no firm evidence that it
cannot also work for the majority.
Figure 4.4 Different penalties can be applied
to achieve incapacitation – for example
home detention, community work or
licence cancellation – but the harshest form,
imprisonment, is also the most effective.
Incapacitation
Incapacitation relates primarily to the third
purpose under the Crimes (Sentencing Procedure)
Act: ‘to protect the community from the offender’.
It involves making the offender incapable of
committing further offences. Different penalties
can be applied to achieve incapacitation – for
example home detention, community work or
licence cancellation – but the harshest form,
imprisonment, is also the most effective. While
none of these can totally prevent further offences,
the likelihood of the individual person reoffending incapacitation
to make an
should be considered in each case to ensure the
offender incapable
sentence is not unnecessarily excessive. There will of committing
of course be certain offenders for who incapaci- further offences
by restricting their
tation is more clearly justified in the interests of
freedom
protecting the community, for example serial killers
requiring imprisonment, or serial drink-drivers
requiring licence cancellation.
R EVI EW 4 . 2
1 Identify the main purposes of sentencing in

their purpose is to restrict freedom as much as
necessary to prevent the likelihood of the offender
committing another offence.
One of the dangers of incapacitation is the
uncertainty about which offenders are likely to
reoffend and which are not. Incapacitation is a
severe penalty, so in the absence of other reasons,
C rim e
NSW.
2 Explain the role of retribution in the legal
system.
3 Discuss the purpose of rehabilitation and its
role in the criminal justice system.
4 Describe in what circumstances incapaci-
tation might justify a higher sentence.

Fa c to r s a f fec t i n g a
se n t e n c i n g dec i s i o n
In addition to statute, relevant case law and the circumstances and personal state of mind of
purpose considerations discussed above, a magi- the offender)
strate or judge using their judicial discretion must s whether the accused pleaded guilty
take into account individual factors – the facts of s whether the offender assisted law enforcement
the offence, the circumstances and seriousness of authorities aggravating factors
circumstances that
the offence and certain subjective factors about s a victim impact statement from victims of the make the offence
the offender themselves. Part 3 of the Crimes offence (discussed later in this section). more serious and can
lead to an increased
(Sentencing Procedure) Act 1999 (NSW) sets out s Section 21A of the Crimes (Sentencing Pro-
sentence
numerous factors for judicial officers to consider. cedure) Act lists the aggravating and mitigating
mitigating factors
These include: factors that are to be taken into account. These circumstances that
s aggravating factors, which are circumstances are extremely important in determining a make the offence
less severe and can
that make the offence more serious and can sentence.
lead to a reduced
lead to an increased sentence Aggravating and mitigating factors require a sentence
s mitigating factors, which are circumstances careful balance and will usually involve arguments victim impact
that make the offence less severe and can lead from both the prosecution and defence. Not all statement
a written statement
to a reduced sentence aggravating and mitigating factors automatically by the victim or
s any other objective or subjective factor that mean an increased or reduced sentence – their victim’s family about
affects the relative seriousness of the offence relevant importance will depend on the circum- the impact the crime
has had on them,
(objective factors refer to the circumstances of stances of each case. For younger offenders heard at the time of
the crime, while subjective factors refer to the for example, personal circumstances might be sentencing

Cha pter 4: Sentencing a nd p uni s hment 73


gratuitous violence
excessive amount of
violence carried out
without reason, cause
or excuse
remorse
deep regret or sorrow
for one’s wrongdoing
74 C am br i d g e L e g a l S t u d i es – HS C
important to the possibility of rehabilitation, but
if the offence is particularly severe or extreme it
might outweigh those considerations.
Aggravating factors
Aggravating factors are factors that somehow
make the offence more serious or severe. They
are likely to result in an increased sentence being
imposed. Aggravating factors can relate to the way
the offence was committed, the characteristics of
the victim(s) or factors relating to the offender.
They usually make the crime less excusable or
more appalling in some way. For example, if there
was violence involved, particularly gratuitous
violence (violence excessive or without any
reason) this is likely to increase the sentence.
Some aggravating factors include:
s Offence: if the offence involved any violence,
cruelty or weapons, or any threat of them; if it
caused any injury, harm or damage; if it was
motivated by any hatred or prejudice; if it was
committed in company or involved some type
of organised crime.
s Victim: if the victim was vulnerable (e.g. old,
young or disabled) or targeted for their occupa-
tion (e.g. police officer, judicial officer, teacher,
health worker); if there were multiple victims.
s Offender: if the offender abused a position of
trust or authority when committing the offence,
for example a doctor to a patient or a teacher to
a student; if the offender is a re-offender or has
any prior convictions.
Mitigating factors
Mitigating factors are the opposite of aggravating
factors, and involve circumstances that may work
in the defendant’s favour by explaining the cause
of their conduct. For example, showing that they
honestly regret their actions or that they usually
have a good character and this was just a one-off
occurrence. Mitigating factors are usually subjec-
tive factors about the mind of the accused or their
behaviour and can include evidence that:
Figure 4.5 When determining the sentence,
the judge will take into account not only the
circumstances of the actual crime itself, but also
the circumstances of the offender.
s the offender is of good character (e.g. character
references from teachers or employers) or does
not have any prior convictions
s the offender is youthful or inexperienced and
was easily led
s the offender pleaded guilty or assisted police
s the offender has shown honest remorse (e.g.
by making some compensation or indication)
or has good prospects of rehabilitation and is
unlikely to reoffend
s the offender was somehow provoked or was
acting under duress.
R ESEAR CH 4 . 1
Visit the NSW legislation website at: www.
legislation.nsw.gov.au.
Browse the current acts in force and find
the Crimes (Sentencing Procedure) Act 1999
(NSW). Look at section 21A of the Act and
answer these questions:
1 Find three aggravating factors that relate to
the victim of the offence.
2 List three aggravating factors that relate to
the circumstances of the offence (for example
way or place where it was carried out).
3 List three mitigating factors that relate to
the circumstances of, or reasons behind, the
offence.
4 Find three mitigating factors relating to the
offender’s conduct after the offence was
committed.
ca s e s p a ce
McCartney v R [2009] NSWCCA 244

McCartney is a recent case in Aggravating factors included The offender presented

the Court of Criminal Appeal
that looked at the appropriate
balance of aggravating and
mitigating factors in sentencing.
The case involved sexual
assault. The offender, a 22-year-
old male, had met the victim at
the nature and seriousness of
the offence and particularly the
impact on the victim. The judge
considered a victim impact
statement and put weight on
the fact that ‘her life and studies
have been totally disrupted by
evidence that he had consulted
an alcohol counsellor after
the offence and the judge
expressed in sentencing that
this was relevant and that
the offender should be given
further help with alcohol to

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

Cha pter 4: Sentencing a nd p uni s hment 75

 The role of the victim in sentencing
Many crimes involve a victim who suffers some
kind of harm as a result of the offender’s action.
This can include a person who is directly harmed,
for example a case of assault, or indirectly
affected, such as the family of a person who has
been killed.
Victims can be involved in the criminal trial
process in a number of ways, from reporting a
crime and assisting police through to testifying at
trial as a witness and submitting a victim impact
statement. The victim’s role can sometimes be very
difficult, for example in cases of sexual assault,
where confronting or distressing questioning will
often be required.
In NSW, victims of crime are recognised and
guaranteed certain rights under the Victims Rights
Act 1996 (NSW). The Act contains a Charter of
Victim’s Rights which requires, among a number of
things respect for a victim’s dignity, victims’ com-
pensation, protection from the accused, protection
of identity and certain rights to information and
assistance during the criminal process. The charter
also introduces victim impact statements to the
sentencing process. These are further outlined in
the Crimes (Sentencing Procedure) Act 1999 (NSW).
A victim impact statement is a voluntary state-
ment written by the victim about the impact that
the crime has had on them. It allows the victim an
opportunity to participate in the process by letting
the court know how the crime has affected them.
The statements are only permitted for serious
offences involving violence (actual or threatened)
or the death of or any physical harm to a person,
Appea l s
A person convicted of an offence and sentenced
appellant will have the right to appeal their case – that is,
in an appeal case, the
party who is making
apply to a higher court for review of one or more
the appeal decisions made in the lower court. The Crown also
76 C am br i d g e L e g a l S t u d i es – HS C
and only if the court considers it appropriate. They
are presented after the offender is found guilty
but before sentence is passed. The statements can
influence the final sentence.
Victim impact statements relate to the personal
harm to the victim and might include physical or
psychological harm. The statement can also
include reports, such as a medical report, or dia-
grams or pictures, for example in the case of child
victims. If the statement is given by the family, it
will relate to the impact the death has had on
them.
Victim impact statements can be controversial
because they can be very subjective yet have a
significant effect on sentencing. Supporters argue
that they provide an important opportunity for
victims to express themselves in the criminal pro-
cess. If the offender is able to submit personal cir-
cumstances in mitigation of their sentence, then
the victim’s personal circumstances should also be
able to be considered.
Statements by family members in cases of
death are particularly controversial, with some
commentators suggesting they are irrelevant to
sentencing as they could lead to a court handing
down a different punishment based on whether
the victim was more or less loved by their family.
They might remove objective impartiality from the
judge’s process. However, victim impact statements
can allow for family members to publicly express
their grief and anger. Importantly, they can be a
confronting experience for the offender and so
form a valuable part of the sentencing process.
has the right to appeal a case where, for example,
the sentence is too lenient. The party appealing is
known as the appellant or applicant. There are
two types of appeals in criminal cases:
s appeal against conviction MM [2002] NSWCCA 58). In that case, the Crown appeal against
conviction
s sentence appeal. appealed to the Criminal Court of Appeal against
appeal where the
In appeals against conviction, the appellant argues the leniency of a sentence given to a very serious appellant (the
that they did not commit the offence for which case for aggravated sexual assault in company. defendant) argues that
they did not commit
they were found guilty. It is difficult for this type On appeal, the court decided to more than double the offence for which
of appeal to succeed and it will usually involve the original sentences that had been given to the they were found guilty
an argument that there was some legal error at offenders, from five and six years’ imprisonment sentence appeal
law in the handling and prosecution of their case, to 13 and 14 years’ imprisonment. an appeal against the
severity or leniency of
for example in the evidence admitted or in the The final court of appeal in the NSW criminal a sentence
instructions of the judge to the jury. If successful, justice system is the High Court of Australia. An
the appellant may be acquitted or the case may be appellant will need to seek permission of the High

C rim e
ordered for retrial. Court to appeal. However, this leave will only be
Sentence appeals, on the other hand, are granted in rare circumstances.
appeals by the offender against the severity of
their sentence, or by the prosecutor against the
leniency of the sentence. Sentence appeals might R ESEAR CH 4 . 2
be made alone or in conjunction with an appeal
A recent high profile criminal appeal in NSW
against conviction, and the judge may set aside a
was the case of Bilal Skaf. The original offence
sentence, vary a sentence or dismiss the appeal. A
was committed in 2000 and various appeals
sentence might be increased or reduced – this is
were heard up until 2008. Leave to appeal was
a risk that the appellant must consider carefully in
even sought from the High Court. Search the
making the appeal.
internet for details of the case and answer the
The type of appeal allowed will depend on
questions below. Sources might include media
the court the offender was tried in and there are
articles and transcripts of the most recent
various time limits and process requirements on
cases, which can be found at: www.austlii.
when a person can appeal. Any person convicted
edu.au.
or sentenced in a Local Court will have a right
1 What offence was Bilal Skaf charged with?
of appeal to the District Court under the Crimes
2 Identify which court the case was originally
(Appeal and Review) Act 2001 (NSW). A person may
heard in and what sentence was received.
also appeal directly to the Supreme Court if it is on
3 Which courts was the case appealed to and
a question of law, but otherwise only by seeking
when?
permission of the Supreme Court. The District
4 Briefly outline at least one of the appeal
Court will usually conduct a rehearing of all the
cases – did it involve an appeal against
evidence, usually by reading the documents from
conviction or a sentence appeal, or both?
the initial hearing.
What was the outcome of the appeal?
A person sentenced in the District or Supreme
Court can seek permission to appeal to the Court
of Criminal Appeal. The Crown might also appeal
against the leniency of a sentence. An appeal R EV I EW 4 . 3
against conviction or sentence appeal to the Court 1 Discuss the different roles a victim can play
of Criminal Appeal will only succeed if the person in the criminal trial process.
can show that there was a legal error. This can 2 Identify the types of legislation in NSW that
include imposing a sentence that was too severe relate to victims.
or too lenient. For example, refer to the case on 3 Describe the types of appeals a convicted
page 13 of Chapter 1 (R v AEM (Snr); R v KEM; R v person or the prosecution can seek.

Cha pter 4: Sentencing a nd p uni s hment 77


caution
a formal warning
without charge issued
by police for less
serious offences
criminal infringement
notice
a notice issued by the
police outside of court
alleging a criminal
infringement and
requiring payment of
a fine
Types of pena l t ies
There are many different penalties that a court
can apply in sentencing. The Crimes (Sentencing
Procedure) Act 1999 (NSW) lists the various penal-
ties that can be imposed, from no conviction
recorded, cautions and fines, through to imprison-
ment and even deportation. The type of penalty
imposed will depend on how the magistrate or
judge ultimately weighs all of the factors discussed
above, and cannot exceed the maximum penalty
specified for the offence.
Caution
Before a charge is laid and a person goes to court,
police have the power to issue a person with a
caution. A caution is a formal warning issued by
police and is used for certain less serious offences
as a way to avoid the court system, in the hope
that the offender has learnt a lesson and will not
reoffend.
For example, under the Young Offenders Act
1997 (NSW), police can use their discretion to issue
a formal caution to young offenders between the
age of 10 and 18 for a variety of minor offences
such as damaging property, stealing or a minor
assault. It usually involves a formal conference
situation where the offender, police, family and
support persons meet and discuss the crime. It
includes discussion of the offence, its implications
and the reasons why it occurred. The caution is
kept on police record and the offender will be
explained of the implications if the person
reoffends.
Another example in NSW is the Cannabis
Caution Scheme, where police may issue a caution
for minor offences involving cannabis if a person
has no prior conviction. It does not apply to per-
sons caught supplying cannabis. It involves a
warning about the health and legal consequences
of cannabis use as well as certain counselling and
support services.

Criminal infringement
notice
A criminal infringement notice is another type of
sentence that can be issued by police outside of
court. Introduced in NSW in 2007, they allow police
to issue on-the-spot fines for certain offences,
including larceny of goods less than $300, offensive
behaviour or language and obstructing traffic.
The aim of criminal infringement notices is to
remove some of the burden on the criminal court
system by allowing police to issue fines for these
minor offences. Although they do represent an
increase in police powers, the notices are not final
and offenders have the option of electing to have
the matter heard in court. The benefit to offenders
is that no conviction is recorded by accepting the

Figure 4.6 Before a charge is laid and a person notice, but if the matter goes to court and the
goes to court, police have the power to issue a offender is found guilty, the sentence is likely to be
person with a caution. more severe.

78 C am br i d g e L e g a l S t u d i es – HS C
Conviction or no
conviction recorded
When a person is charged with an offence and
declared guilty by a judge or jury, that person is
considered convicted of that offence. In senten-
cing, the judicial officer has the option to record the
conviction against the offender, or pass sentence
with no conviction recorded.
A criminal conviction is a serious matter and
can have an important impact on a person’s life.

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

imprisonment or both, depending on the circum-

Fines stances. For example, under the Crimes Act 1900
Fines are the most common sentencing option (NSW), a person convicted of unlawful gambling fine
monetary penalty
used in Australia. A fine is a monetary penalty may be sentenced to up to 1000 penalty units
imposed for
imposed on an offender and usually applies for ($110 000), imprisonment for up to seven years, infringement of a law
less serious offences such as driving offences or or both. penalty units
breaches of local laws, or for particular types of The effectiveness of a fine will depend on the a specified unit
of money used
offences such as some violations of environment type of offence and the personal circumstances
in legislation to
law or corporate law. For minor offences, a fine of the offender – for example a small fine for a describe the fine
will usually be issued outside of court by the police wealthy person might have little deterrent effect, payable

or by local law enforcement officers. Such fines
will, however, have the option of being challenged
in court.
The maximum fine for an offence will be set out
in legislation and will be based on penalty units.
The value of a penalty unit is defined in s 17 of the
Crimes (Sentencing Procedure) Act 1999 (NSW) – at
the time of publishing the value is $110.
Although the most common fines are applied
for minor offences, they can also apply for more
serious offences. For some serious offences, judi-
cial officers have the option of applying a fine or
but a large impact on a person who is unemployed.
A court may look at evidence of a person’s financial
circumstances when considering imposing a fine.
Forfeiture of assets
Where an offender has obtained money or prop-
erty through their criminal activities, a court may
order that the money or property be recovered.
This might include assets obtained through theft,
fraud or money laundering through to drug traf-
ficking or tax evasion. The court might order that

Cha pter 4: Sentencing a nd p uni s hment 79


proceeds of crime
assets (money or
property) obtained by
an offender through
their criminal activities
forfeit
(also known as
forfeiture) loss of
rights to property or
assets as a penalty for
wrongdoing
bond
a compulsory condition
imposed on the
offender for a period
of time, which the
offender undertakes to
comply with
probation
a type of good
behaviour bond where
the offender is released
on condition of good
behaviour but placed
under some form of
supervision, such as
daily reporting to a
probation officer
suspended sentence
a sentence of
imprisonment imposed
but suspended on
condition of good
behaviour
community service
order
where the offender
is sentenced to serve
specified hours of work
in the community
80 C am br i d g e L e g a l S t u d i es – HS C
the assets are recovered in addition to any other
form of punishment.
This power is given to the court via a number of
acts known collectively as the proceeds of crime
legislation – the main act in New South Wales is the
Criminal Assets Recovery Act 1990 (NSW). The laws
are wide-ranging and can allow examination of
an offender’s financial affairs and allow the assets
to be restrained, seized and forfeited. The court
might also require the offender to pay an amount
assessed as the value of the proceeds.
The laws are especially important in relation
to organised crime, where simply sentencing the
offender will not be enough to deter the benefits
of the crime, especially where the offender is still
able to enjoy those benefits. Forfeiture of assets
is difficult to relate to the traditional purposes
of sentencing, but involves making the offender
accountable and acting as a deterrent. Particularly,
it gives the law an avenue to target the primary
incentive of most criminal organisations – money.
Bond
A court may decide to issue an offender with a
bond, either alone or in conjunction with another
penalty. A bond is a compulsory condition im-
posed on the offender for a period of time. The
offender undertakes to comply with the bond in
exchange for a more lenient sentence. A good
behaviour bond involves the offender undertaking
to be of good behaviour for the bond period (up to
five years). If the offender breaches the bond, they
will be required to come before court again and
may be sentenced to more serious penalties, like
imprisonment. Other conditions imposed could
include:
s attending family counselling
s attending anger management courses
s avoiding visiting a particular place or associa-
ting with certain people
s attending drug or alcohol rehabilitation
s refraining from particular activities, such as
gambling.
A bond can be a significant restriction on an off-
ender’s life and freedom. Bonds are usually used
in cases where lesser penalties are not considered
sufficient or effective, but imprisonment is con-
sidered too severe. Offenders are given a second
chance to prove that they will not reoffend during
the period imposed. If they do, they will be
returned to court to face much higher penalties.
Probation
In more serious matters, a court may decide to
order a bond with probation attached. Where
probation is attached, the offender will be placed
under the supervision of a probation officer for
a period of time. Under the terms of a probation
order, the offender will have to adhere strictly
to the conditions of the bond as above, but in
addition will be required to maintain regular con-
tact with the probation officer appointed by the
courts. The court will impose this where there is a
higher danger of reoffending, but where an order
for detention is deemed too severe. Breach of
probation is a serious matter and as with a bond,
the offender will be returned before the court and
risk facing a higher sentence.
Suspended sentences
A suspended sentence is a serious penalty for an
offender. 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.
A court can impose a suspended sentence where
they are sentencing an offender to imprisonment of
up to two years. Breach of the bond is very serious
and the court can revoke the bond and reinstate the
original prison sentence, together with an additional
sentence for breaching the bond.
Community service orders
A community service order is a penalty that can
be imposed by the court instead of a period of
detention or imprisonment, if deemed appropriate
 C rim e
Figure 4.8 A sentence of imprisonment deprives a person of their liberty and removes them from the community.

for the offender. The orders involve compulsory community. It will require careful consideration correctional centre
commonly known as
supervised work in the community for up to 500 by a judicial officer of the purposes of sentencing
a prison – institution
hours. The court will assess what work is most as well as all the relevant factors of the case. All where offenders are
suitable. purposes may be relevant: deterrence, retribution, held in custody for
the period of their
Community service orders are available as a rehabilitation and incapacitation. The magistrate
imprisonment
means of punishing and shaming the offender, while or judge will consider the various forms of
periodic detention
allowing for rehabilitation by requiring a period of imprisonment that can be imposed in NSW. Each imprisonment
time spent making amends in the community for form involves varying levels of severity, including sentence where the
offender spends a
their wrongdoing. They have the benefit of being full-time imprisonment served at a correctional period of each week
cost-effective and beneficial to the community as centre, periodic detention or home detention. or month in prison
a whole while still penalising the offender for the If the court deems imprisonment appropriate to and the rest of the
time at home
offence. They also allow the offender a chance to impose, the judicial officer will need to announce
home detention
rehabilitate outside the prison system while still the total sentence as well as a non-parole period. imprisonment
enjoying their freedom, and avoiding the harsher The non-parole period is the minimum amount of sentence where the
offender is confined
penalties of imprisonment that would otherwise time the offender is kept imprisoned before being
to their home under
be imposed. eligible for release on parole. Unless there are certain conditions of
special circumstances, the non-parole period will monitoring

be at least three-quarters of the total sentence. non-parole period

Imprisonment A sentence will be imposed for each offence
a period of
imprisonment for
Imprisonment is the most severe sentence that that the offender is convicted of, but will usually which parole cannot
can be imposed in Australia and is considered a be served at the same time. For example, if an be granted

sentence of last resort. Section 5 of the Crimes offender is sentenced to three years for one parole
release of a prisoner
(Sentencing Procedure) Act 1999 (NSW) makes this offence and five years for another, the total before the expiry
clear, stating that: ‘a court must not sentence an sentence of five years will usually be ordered. If of an imprisonment
offender to imprisonment unless it is satisfied, the offender is in remand, the sentence will also term, temporarily
or permanently, on
having considered all possible alternatives, that no take into account the amount of time the offender the promise of good
penalty other than imprisonment is appropriate’. has already served. behaviour
A sentence of imprisonment deprives a person The following media article discusses some of
of their liberty and removes them from the the implications of imprisonment.

Cha pter 4: Sentencing a nd p uni s hment 81

 m e d i a cl i p
The recidivism of offenders
given suspended sentences:
A comparison with full-time
imprisonment
Source: NSW Bureau of Crime Statistics and
Research - Media Release
Release Date: 11 November 2009
Being sent to prison is no more effective
in reducing the risk of future re-offending
than being threatened with prison, the NSW
Bureau of Crime Statistics and Research has
found. In fact, if anything, being sent to prison
actually increases the risk of further offending.
The Bureau compared a group of offenders
given a suspended sentence of imprisonment
with a group of offenders given a sentence of
full-time imprisonment.
The prison and suspended sentence cases
were carefully matched on a large range of
factors including gender, Indigenous status,
age, socioeconomic disadvantage, jurisdiction
(Local or District), plea, offence type, offence
seriousness, number of concurrent offences,
number of prior offences, whether the
defendant had had a previous suspended
sentence, whether the defendant had a prior
juvenile offence and whether the offender had
a prior violent offence.
Separate analyses were carried out for
1661 matched pairs of offenders with a prior
prison sentence and 2650 matched pairs of
offenders who had no prior prison sentence.
Re-offending was measured via the
proportion of offenders convicted of a
further offence in each group. Offenders
were followed up from the date of sentence
(between 2002 and 2004) until their first
reconviction or the end of 2008 (whichever
came first).
In cases where the offender had no
previous experience of imprisonment, the
Bureau found no significant difference in the
likelihood of re-conviction between those who
received a full-time sentence of imprisonment
and those who were given a suspended
sentence of imprisonment.
82 C am br i d g e L e g a l S t u d i es – HS C
In cases where the offender had been
previously sent to prison, the Bureau found
offenders sent to prison were significantly
more likely to re-offend than matched
offenders given a suspended sentence of
imprisonment.
Commenting on the findings, the Director
of the Bureau, Dr Don Weatherburn, said
they were consistent with a growing body of
evidence that the experience of imprisonment
does not reduce the risk of further offending.
‘This does not mean we should abandon
prison as a sanction for offending,’ he
said. ‘Prison might still be justified on the
grounds of general deterrence, punishment
or incapacitation. Our study suggests,
however, that it would be wrong to impose a
prison sentence on an offender in the belief
that it will deter the offender from further
offending.’
R EVI EW 4 . 4
Read the media release from the
NSW Bureau of Crime Statistics and
Research above and answer the
following questions:
1 Outline the main finding of the
Bureau’s report.
2 Identify the two sentences that the
Bureau compared. How do these
sentences differ and why do you
think these sentences were chosen
for the study?
3 Critically evaluate the effectiveness
of traditional forms of sentencing in
light of the report’s findings. Refer
to the purposes of sentencing in
your response.
Home detention
For certain non-violent offences where a person
is sentenced to 18 months’ imprisonment or less,
the offender might apply to serve the sentence in
home detention. Home detention is a less severe
option than full-time imprisonment in a correc-
tional facility, and allows the offender to serve
their sentence while confined to their own home.
The offender will need to be assessed for suit-
ability before a court can grant home detention
and compliance with the order is supervised by
electronic monitoring of the offender. A probation
and parole officer will also be assigned to monitor
the order and conduct random visits.
Certain conditions may be added, for example
allowing the offender to go to work or get medical
treatment outside the home. Particular controls
and restrictions might also be put in place (such as
the use of an electronic monitoring system). Home
detention orders offer many benefits – they are
more cost-effective than full-term imprisonment,
they provide an opportunity for rehabilitation,
they keep the offenders out of the prison system
and allow normal family activity to take place.
Home detention is likely to be more contro-
versial for more serious offences, especially where
a victim is involved or there is a risk of reoffending.
For this reason, home detention orders cannot
be used for violent or sexual offences, including
murder and manslaughter, sexual assault or fire-
arms offences. They are also restricted if the
offender has a history of any violent offences or
if they live at the same address as the victim of
their offence.
Periodic detention
Periodic detention is a form of imprisonment
sentence that allows the offender to serve a period
of time each week or month in prison, rather than
the whole time. It can only be ordered where the
sentence of imprisonment is less than three years.
If an offender breaches the conditions of their
periodic detention, the court may order them to
serve the sentence full-time.
Figure 4.9 Home detention is a less severe
option than full-time imprisonment, but may be
subject to certain controls such as the use of
electronic monitoring equipment.
C rim e
Periodic detention is less severe than full-time
detention and allows the offender to continue
to live in the community, for example to go to
work, continue education or spend time with
their family, for part of the time, but to return to
prison on the allocated days. A common form of
periodic detention is weekend detention, where
for example the offender will be able to go to work
for the week but return to the correctional facility
for weekends.
Periodic detention can help to serve the purpose
of rehabilitation for offenders by allowing them to
maintain certain responsibilities but ensuring they
still serve out their period of punishment. It would
obviously be inappropriate where, for example,
incapacitation is the purpose of the sentence. For
certain offences, including some sexual offences,
judicial officers are unable to order periodic
detention.
Diversionary programs
A diversionary program is a court program set diversionary program
an alternative to
up to divert certain offenders away from more
the traditional court
traditional criminal processes in the hope that system, diversionary
they can be rehabilitated and encouraged not programs focus on
therapeutic justice
to reoffend. The programs are only available for
and rehabilitation of
particular offences or types of offenders. They offenders
have been established in an attempt to target the
causes of offending and improve offenders’ future
prospects by assisting individual needs.
Diversionary programs usually involve a magi-
strate of the Local Court adjourning a case while
the offender attends some form of rehabilitation
or special hearing. Sometimes called ‘therapeutic
Cha pter 4: Sentencing a nd p uni s hment 83

circle sentencing
a form of sentencing for
some adult Aboriginal
offenders where
sentencing is conducted
in a circle of local
community members
and a magistrate
restorative justice
a form of sentencing
involving a voluntary
conference between the
offender and the victim
of the crime
84 C am br i d g e L e g a l S t u d i es – HS C
justice’, the programs may include education,
medical or psychiatric treatment, rehabilitation or
social welfare assistance. Many diversionary pro-
grams are devised to support offenders who have
committed crimes due to drug and alcohol abuse.
The Drug Court is a specialised court and is
one of the most important diversionary programs.
Established in 1999, it was the first of its kind in
Australia and aimed to rehabilitate non-violent
drug addicted offenders. Over 150 offenders a year
complete its program. It emerged after growing
disenchantment with the traditional criminal
justice system and its effectiveness in providing
long-term solutions to cycles of crime and drug
abuse. It has since proved a great success and
attracted international renown.
The NSW Bureau of Crime Statistics and
Research released a report in 2008 which
assessed the effectiveness of the Drug Court. It
found clearly that those who had completed the
program were less likely to be reconvicted than
offenders sentenced with traditional penalties.
Among the report’s most important findings, it
was found that the Drug Court is more cost-
effective than prison in reducing drug-related
recidivism. Participants were also significantly
Alternative methods of sentencing
Recent developments in the law have introduced
new forms of sentencing targetting particular
types of offenders. Like diversionary programs,
they attempt to combat some of the issues
associated with recidivism and more traditional
forms of sentencing. They include
sentencing and restorative justice.
Circle sentencing
Circle sentencing is an alternative court for sen-
tencing adult indigenous Australians. The Circle
Courts are designed for repeat offenders and
offenders of more serious crimes.
less likely to be reconvicted than offenders given
traditional sanctions. Participants who completed
the program were:
s 37% less likely to be reconvicted for any
offence
s 65% less likely to be reconvicted for an offence
against the person
s 57% less likely to be reconvicted for a drug
offence.
R ESEAR CH 4 . 3
The website of the NSW Crime Prevention
Division outlines some of the major
diversionary programs currently in use in
NSW: www.lawlink.nsw.gov.au/lawlink/cpd/
ll_cpd.nsf/pages/CPD_projects.
Visit the website and report on two
diversionary programs:
1 Outline the types of offences and offenders
targeted by the diversionary program.
2 Describe the methods used by the program
to assist offenders.
3 Referring to some of the traditional penalties
available, evaluate whether you think the
program is effective in achieving justice.
Circle sentencing is based on Aboriginal cus-
tomary law and more traditional indigenous forms
of dispute resolution. It is a form of diversionary
program away from more usual criminal senten-
cing procedures. It involves a circle of community
circle members and a magistrate sitting in a circle to
discuss the offender’s crime and tailor the most
appropriate sentence for the offender. It has the
full sentencing powers of a court.
Circle sentencing directly involves local
Aboriginal people in the sentencing process in
order to make it more meaningful to the offender
and improving Aboriginal confidence in the
criminal justice system. It also aims to improve

Figure 4.10 Circle sentencing is based on Aboriginal customary law and more traditional indigenous
forms of dispute resolution.
understanding between Aboriginal communities
and the courts and reduce recidivism among
offenders.
Recent evaluation of circle sentencing has
shown that the program’s objectives are being
met. However, improvements are still being made
in some areas, including improving participation
and support services.
Restorative justice
Restorative justice is another alternative to tradi-
tional sentencing methods that involves bringing
together the offender and the victim of the offence.
It offers the chance for the offender to take res-
ponsibility for their actions and the impact they
have had on others, while giving victims a voice
and an opportunity to confront the offender and
work out a way to repair the damage done. Victims
are able to ask questions about the offence in an
attempt to move forward and the offender is given
the opportunity to apologise or make amends for
their act.
Restorative justice sessions can be confronting
and difficult for both parties involved. They are
voluntary and will usually accompany another
form of traditional sentencing. One of the first
C rim e
Australian restorative justice models was started
in Wagga Wagga in 1991, but it has since become
a valuable part of the rehabilitation process. It is
now an important program run by the Restorative
Justice Unit of the NSW Department of Corrective
Services and involves safe and private conferen-
cing and mediation services run by a facilitator.
There are many stories of victims that have
found the restorative justice program significantly
helpful for recovery from a crime. The effective-
ness of programs for offenders is unclear, but
Australian studies based on youth conferencing
initiatives have shown a 15–20% reduction in re-
offending is possible. However, it has been sug-
gested that restorative justice programs will mainly
relate to minor infringements or youth justice and
are unlikely to expand greatly beyond this role.
R EVI EW 4 . 5
1 Describe how circle sentencing differs from
traditional sentencing procedures.
2 Evaluate the role alternative methods
of sentencing can play in the criminal
justice system. What advantages and
disadvantages do they offer over traditional
forms of sentencing?
Cha pter 4: Sentencing a nd p uni s hment 85
 Pos t - se n t e n c i n g co n s i de ra t i o n s
Once an offender is sentenced to a community-
based order or non-custodial sentence, they will
need to serve out the terms and conditions of that
sentence or be returned to face court for a review
of their sentence.
When an offender is sentenced to a period of
imprisonment, however, they will be sent to an
assessment centre where they will be given a
security classification. They will then be sent to
an appropriate correctional centre, more com-
monly known as prison, where they will serve
out their sentence. In NSW, the administration
of imprisonment and other sentences once they
have been imposed is governed by the Crimes
(Administration of Sentences) Act 1999 (NSW).
Correctional centres are managed by Corrective
Services NSW, which is the responsible govern-
ment agency.
Security classification
Correctional centres are divided into three classi-
fications: maximum, medium and minimum
security. Some centres will be able to accommo-
l e g al i nfo
NSW Community Offender Services Statistics 2008–2009
Corrective Services NSW oversees 31 correctional
centres (8 maximum, 13 medium and 10 minimum
security) and 8 periodic detention centres.
Full-time imprisonment:
s On a daily basis, NSW correctional centres hold
between 9000 and 10 000 full-time inmates.
s Of these, only 7% are female.
s The majority of inmates (36%) are between
25–34 years old.
s Over 20% of inmates in NSW are Indigenous
Australians.
s The average daily cost of full-time custody per
inmate is $225.
86 C am br i d g e L e g a l S t u d i es – HS C
date more than one type of classification. Offenders
will be classified according to different factors like
the seriousness of their crime, their prospects for
rehabilitation or whether they have displayed good
behaviour during previous sentences.
Maximum security centres, such as the Goul-
burn Correctional Centre for men or the Silver water
Women’s Correctional Centre, hold offenders who
committed the most serious crimes and whose
escape would be highly dangerous to the public.
In medium security prisons like the Tamworth
Correctional Centre, inmates can move around
more freely, but within high walls or security
fences. In minimum security centres, such as the
Silverwater Correctional Centre, there are fewer
barriers to escape and inmates will be allowed
more open conditions.
Protective custody
Protective custody is provided in NSW correctional
centres to offenders who are vulnerable to attack
from other prisoners. Correctional authorities have
a duty of care for the safety of offenders in their
s This equates to a cost of over $80 000 per
inmate per year.
Community-based orders:
s The daily cost for a community-based offender
is $12.
s There are 18 000 people supervised under
community based orders on any day.
Periodic detention:
s There are under 1000 offenders under periodic
detention.
s The daily cost for periodic detention is $187.

Figure 4.11 Correctional centres are divided into three classifications: maximum, medium and minimum
security. Parramatta Correctional Centre is an example of a medium security facility.
custody. This includes protecting offenders from
the risk of physical violence from other offenders.
The purpose of sentencing an offender to im-
prisonment is to isolate them from the community,
whether for the purpose of incapacitation, deter-
rence or otherwise. But this does not include
subjecting offenders to high risk of physical harm
or to cruel or inhumane conditions. Offenders who
have been placed into custody for certain offences
that other inmates deem offensive, such as
offences against children, might be under threat of
harm from fellow inmates and may require periods
of protective custody. Certain offenders, such as
police officers or politicians might also be vul-
nerable to attack due to their history and may be
isolated in a particular wing of a prison.
Parole
Parole refers to the conditional release of a prisoner
from custody after the completion of the minimum
term of the sentence; that is, the non-parole period
set by a judicial officer at sentencing.
The fundamental purpose of parole is to provide
the offender with an incentive for rehabilitation
through the prospect of early release. It is believed
that this will increase the likelihood of the overall
reform of offenders and encourage better prisoner
discipline within the prison setting.
When released on parole an offender is put
under the direct supervision of a parole officer.
C rim e
The parolee (released offender) is required to
report to an officer as directed, and the officer will
visit the parolee’s residence and make inquiries in
the community to ensure the parolee is meeting
the conditions of their early release. These condi-
tions include good behaviour bond, not reoffending
during the parole period, gaining employment or
possibly avoiding certain company or a specified
public area.
Additional conditions may apply, such as re-
ceiving specified counselling or other treatment.
All these programs are intended to assist
offenders in their process of gradual reintegration
into the community after released from imprison-
ment. They also aim to ensure an offender will not
reoffend.
R EVI EW 4 . 6
1 Look at the statistics for NSW prisons
provided in the Legal Info section on
page 86, as well as the summary report from
the NSW Bureau of Crime Statistics in the
Media Clip on page 82. Using the available
statistics, critically evaluate the effectiveness
of imprisonment as a form of sentence.
2 Identify the duty of the state to offenders
in custody. How can an offender under
threat of violence be protected?
3 Describe how an offender can achieve
parole. What is the importance of parole in
the criminal justice system?
Cha pter 4: Sentencing a nd p uni s hment 87

preventative
detention
detention of a person
in custody without
having committed any
offence, in case of
some future harm that
they may commit
continued detention
on-going detention
of a person after they
have already served
the full sentence for
their offence
88 C am br i d g e L e g a l S t u d i es – HS C
Preventative and
continued detention
Preventative detention is possibly the harshest
form of sentence. It is also the most controversial.
Preventative detention involves imprisonment of a
person for some type of future harm that they
‘may’ commit. The person is detained in custody
without actually having committed or being found
guilty of any offence. The purpose may be incapa-
citation of a person considered to constitute a
significant threat to community safety, or rehabi-
litation of the offender.
There are two types of preventative detention:
post-sentence preventative detention, which
occurs when a person has already been sentenced
and has served that sentence, and preventative
detention without charge, which can occur at any
time. All types of preventative detention orders are
highly contentious as they act to remove a person’s
basic legal rights without due criminal process.
The most severe type of preventative detention
is legislation that is targetted at individual offen-
ders. This type of law was held to be unconstitu-
tional in the High Court case of Kable v DPP (1996)
189 CLR 51. However, most Australian jurisdictions
have legislation enabling general powers of pre-
ventative detention in restricted circumstances.
For example, in NSW, the controversial Terrorism
(Police Powers) Act 2002 (NSW) allows police to
make an application to detain a person in custody
for a maximum period of 14 days if they reasonably
believe the suspect will engage in a terrorist act.
Post-sentence preventative detention, on the
other hand, involves detaining offenders after
they have already served their full sentence for the
offence they committed. New South Wales has a
scheme of post-sentence preventative detention
under the Crimes (Serious Sex Offenders) Act 2006
(NSW) that allows for the continued detention of
offenders serving a sentence for a serious sexual
offence. The Attorney-General can apply to a court
for continued detention of the offender if satisfied
‘to a high degree of probability’ that the offender
is likely to commit another offence. The allowable
purposes of the continued detention are:
s to ensure the safety and protection of the
community
s to facilitate the rehabilitation of serious sex
offenders.
Sexual offenders
registration
There are both state and federal databases of
sexual offenders who have been convicted of
certain sexual offences. The Australian National
Child Offenders Register (ANCOR) and the NSW
Child Protection Registry are web-based systems
designed to assist police with the registering and
case management of child sexual offenders.
Established under the Child Protection (Offenders
Registration) Act 2000 (NSW), persons convicted
of a nominated violent or sexual offence against
a child are required to register at the local police
station within 28 days of sentencing or release
from custody, or after being found guilty of a
registrable offence in another jurisdiction. When
a sex offender is paroled they are served with a
notice to inform them that they need to register.
Adult offenders must register for a minimum
period of eight years, and juvenile offenders four
years. Offenders will be required to provide a range
of personal information as well as travel plans and
to keep this information regularly up to date. At
the end of 2009, there were over 10 500 offenders
registered nationally.
Sexual offender registries are justified on the
basis of the protection of the community. However,
the registries are sometimes contentious as they
target certain offenders long beyond the period of
the sentence they have been required to serve, and
deny the chance for the offender to move on in the
rehabilitation process. The severity of the original
crime as well as the on-going risk of reoffending in
the community are argued to out weigh the
imposition on the offender.
Deportation
Under the Migration Act 1958 (Cth), a migrant living
in Australia who is not a citizen may be deported
if they are tried and convicted of a criminal
offence. Under ss 200 and 201 of the Act, if a non-
citizen commits an offence for which they receive
a custodial sentence for 12 months or more in
their first 10 years of residence, the responsible
minister for migration may decide that they should
be deported from Australia.
Deportation is an extremely serious effect of a
sentence of imprisonment. Cases of deportation
under this section will often become highly publi-
cised because the circumstances of such cases will
that can be resolved by moving it elsewhere, but
without any follow-up or support once outside the
jurisdiction. For example, a person may have been
living in Australia for decades yet still fall under
the requirements of the section. The person may
be removed from family and friend to a country
they know nothing about or a language they do not
speak, with no support networks in place to assist
in their rehabilitation.
If such a person is also found to constitute a
threat to Australian security or has been convicted

C rim e
usually be severe. They are controversial because of a serious offence, they may be deported as well
they appear to harshly treat a person as a problem as prohibited from ever returning to Australia.
c as e s tud y

Robert Jovicic: The stateless man

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

Cha pter 4: Sentencing a nd p uni s hment 89


s Sentencing requires careful balancing of many
different factors.
s The main purposes of sentencing are
deterrence, retribution, rehabilitation and
C h a p te r s u m m a ry
incapacitation.
s The main factors considered in sentencing are
aggravating factors and mitigating factors.
s A victim may be involved in sentencing
through a victim impact statement.
s Courts have a large variety of penalties that
can be imposed.
s A judicial officer may only impose a sentence
of imprisonment where no other penalty is
appropriate.
M ul ti p l e- c hoi ce q ues ti ons
1 Which of the following is true of restorative
justice?
a it brings together the offender and the
victim so that the offender can see the
impact they have had on the victim
b it is the most severe form of punishment
c it gives the offender the opportunity to
confess to the crime
d it aims to send a message to the rest of
society that the law is serious about crime
2 The victim’s role in sentencing by providing a
victim impact statement is:
a to tell the offender exactly what they think
of them
b to influence the judge into giving the
maximum penalty
c to make sure justice is achieved
d to express the effect the crime has had
upon their life
90 C am br i d g e L e g a l S t u d i es – HS C
s Imprisonment may increase the risk of an
offender reoffending.
s There are alternatives to full-time
imprisonment, including periodic and home
detention and diversionary programs.
s Alternative methods of sentencing include
circle sentencing and restorative justice.
s Post-sentencing considerations are an
important part of sentencing considerations.
s Certain prisoners may be detained beyond
the end of their sentence.
s Sexual offenders may be required to register
their details for a minimum of eight years.
s Deportation is a serious risk after
imprisonment if a person is a non-citizen.
3 Which of the following is not likely to be a
mitigating factor?
a the offender assisted the victim after the
offence
b the offender had experienced similar
treatment in their life
c the offender was under the influence of
alcohol or drugs
d the offender shows contrition or remorse
4 What is the main purpose of the Home
Detention Act 1996 (NSW)?
a to keep certain offenders out of jail while
still severely restricting their lifestyle
b to shame offenders
c to inflict pain and suffering on offenders
d to prevent others from being harmed by
offenders
5 Imprisonment has been shown to:
a reduce recidivism
b reduce reoffending
c increase reoffending
d increase rehabilitation
C h a p te r s u m m a ry ta s k s

1 Explain the difference between aggravating

and mitigating factors, including examples.
How do these factors fit into the criminal
process?
2 Choose three types of penalties. Describe

C rim e
each penalty and evaluate how it corresponds
with the purposes of sentencing.
3 Critically evaluate the role of imprisonment in
the criminal justice system.
4 Analyse one alternative to traditional means
of sentencing and describe its effectiveness in
the criminal process.

Cha pter 4: Sentencing a nd p uni s hment 91

 CHAPTER 5
Young offenders
chap te r o b j e cti ve s

In this chapter, students will:

s discuss a range of issues surrounding the age of
criminal responsibility
s explain why the criminal justice system treats young
offenders differently
s assess the effectiveness of the criminal justice system
when dealing with young offenders.
key ter ms/vocab ul ary

caution
conclusive presumption
control order
doli incapax
grave adult behaviour
interview friend
juvenile justice
juvenile justice centre
rebuttable presumption
right to silence
warning
youth justice conference

92 C am br i d g e L e g a l S t u d i es – HS C
 rel ev ant l aw
I MPORTANT LEGIS L AT ION
Bail Act 1978 (NSW)
Children (Criminal Proceedings) Act 1987 (NSW)
Children (Protection and Parental Responsibility)
Act 1997 (NSW)
Children’s Court Act 1987 (NSW)
UN Convention on the Rights of the Child
Crimes (Sentencing Procedure) Act 1999 (NSW)
Law Enforcement (Powers and Responsibilities)
Act 2002 (NSW)
Young Offenders Act 1997 (NSW)
S I GNIFICANT CA S ES
R v LMW [1999] NSWSC 1343
R v Cortez, CE, ME, IKEA & LT, (unreported,
NSWSC, Dowd J, 3 October 2002)
R v GDP (1991) 53 A Crim R 112
R v Pham & Ly (1991) 55 A Crim R 128
od d l a w
C rim e
Historically, children and young people
convicted of offences were treated in the same
way as adult offenders. For example, the Piracy
Act 1714 of Great Britain enacted the penalty
of transportation for certain crimes. Originally
intended for transport of local offenders to
America, it was later the legal means used to
sentence convicted offenders, or ‘convicts’, to
new penal colonies in Australia.
One convict, Mary Haydock, was a child
of 13 years old when sentenced. After the
death of her parents, she was forced to work
as a house servant by her grandmother and
ran away. She was arrested and charged for
possessing a horse that was not her own. At
the time of her arrest she was dressed as a boy
and using an alias. The judge in Mary’s case
sentenced her to seven years’ transportation to
the Colony of New South Wales. She arrived in
Sydney in 1792 and was assigned to work as a
nursemaid.
Two years later, Mary married a free man,
Thomas Reiby, who acquired farmland and
started up businesses in and around Sydney.
The businesses were very successful and after
her husband’s death, Mary Reiby took over and
expanded the businesses and investments, and
became a founding member of the Bank of New
South Wales (now known as ‘Westpac’). She
was also an educator and charity worker. Mary
Reiby, former young offender and child convict,
is now featured on the Australian $20 note as
one of Australia’s founding entrepreneurs.
Cha pter 5: Young offenders 93
 You n g o f f e n de r s a n d t he l a w
Any person can commit a criminal act, providing may be a different level of protection or assistance
they have the physical capability to do so. required. The area of law and policy concerned
However, the law treats offenders differently when with young people and the criminal justice system
juvenile justice they are less than 18 years of age. In most cases, is often referred to as juvenile justice.
the area of law and
the community and the law recognise that for The reasons behind any young person becom-
policy concerned with
young people and the children and young people who have not reached ing involved in crime are varied and complex. For
criminal justice system full adulthood, there may be a different level of example, NSW Juvenile Justice suggests various
responsibility involved in their actions, or there possible factors such as:
s poor parental supervision
s drug and alcohol abuse
s neglect and abuse
5000
s homelessness
4000 s negative peer associations
s poor personal and social skills or
3000
s difficulties in school and employment.
2000 In NSW, people under 18 years old who are in-
volved in crime represent only a small proportion
1000 of the population. New South Wales Juvenile
Justice’s annual report for 2008–09 states that, for
0
96–97 97–98 98–99 99–00 00–01 01–02 02–03 03–04 04–05 05–06 06–07 every 1000 people in NSW aged 10–17:
s 13.5 had a criminal matter finalised in the
Juveniles Adults
Children’s Court
s 11 were convicted and/or sentenced in these
Figure 5.1 Juvenile and adult offenders from 1996–97 to 2006–07, finalised matters
by age group (per 100 000 of that age group per year). Source:
s 3.3 were given sentences requiring the depart-
Australian Institute of Criminology.
ment to supervise them in their community,
and
8000 s 1 was sentenced to detention.
There are two recognised approaches that can be
6000 taken by the law with regard to young offenders
and juvenile justice. These are:
4000 s the welfare model and
s the justice model.
2000 The welfare model assumes that the causes of
crime can relate to different factors, such as social
0 and psychological factors, or the state of the eco-
96–97 97–98 98–99 99–00 00–01 01–02 02–03 03–04 04–05 05–06 06–07
nomy. Under this model, there is a need to protect
Male Female children and young people from the causes of
crime and to assist in their rehabilitation if an

Figure 5.2 Juvenile offenders from 1996–97 to 2006–07, by sex (per offence is committed. By comparison, the justice
100 000 juveniles of that sex per year). Source: Australian Institute of model takes a ‘tough on crime’ stance. A more
Criminology traditional model, the justice model generally pro-

94 C am br i d g e L e g a l S t u d i es – HS C
motes a ‘zero tolerance’ approach towards
offenders of any age, and emphasises
punishment and deterrence over
rehabilitation.
To some extent, the juvenile justice
system uses a combination of both of
these approaches when dealing with
offenders. This is evident in the different
approaches to legislation that deal with
young offenders in NSW, which will be
explored throughout this chapter. There
are promising aspects to the juvenile
justice system that maximises an
offender’s chance at rehabilitation, but
elements of the ‘get tough’ approach
have also influenced current laws.
Age o f c ri m i n a l respo n s ib i l i t y
The law treats children and young people differ-
ently from adults. There are a number of reasons
for this, including:
s preventing children and young people from
being exploited
s protecting them from the consequences of
making uninformed decisions
s protecting others from being disadvantaged by
dealing with a person who is a minor.
The criminal justice system recognises that
children and young people can be less responsible
than adults for their offences, due to their relative
youth or inexperience. This is most evident in
the way the law approaches the age of criminal
responsibility, known as ‘doli incapax’.
Historical background
Historically, children and young people who com-
mitted offences were treated in more or less the
same way as adult offenders. Children as young
as seven or eight years old were often convicted
of serious criminal offences. Children could be
Both have had significant effects on R EVI EW 5 . 2
younger people and the law, and this is 1 Compare the juvenile offender
especially important in light of the high rates of males to females in the
rates of young offenders when compared graph above and describe the
to adult offenders. See Figures 5.1 and differences.
5.2, then complete the review activities. 2 Visit the website of the
Australian Institute of
Criminology: www.aic.gov.au/
publications/current%20series/
R EVI EW 5 . 1
facts.aspx. Find the latest
1 Compare the juvenile offender rate report of Australian Crime:
C rim e
shown in figure 5.2 to that of adults. Facts and Figures and identify
2 Describe the trend of juvenile any changes in the trend from
offender rates to that of adults. Figure 5.1 or 5.2. Describe and
3 Explore some possible reasons for evaluate any differences.
the defense in the rate.
imprisoned, flogged, transported to colonies, like
Australia, or even executed. In the year 1814, up
to five children under the age of 14 were convicted
and hanged at the Old Bailey in London. The
youngest was only eight years old.
For infants and very young children, however,
the law sometimes recognised that they might not
yet be capable of crime, physically or mentally.
Legal opinions and laws dating as far back as
694CE, in the Laws of King Ine of Wessex, had
suggested that infants might be incapable of
committing wrong, or that they might not have
sufficient knowledge of good and bad. This usually
applied to infants and children under seven years
old. Mental capacity is particularly important in doli incapax
a Latin term meaning
establishing the intent, or mens rea of the crime
‘incapable of wrong’;
and it was difficult to show that a child had the
necessary intent.
the presumption
that children under
a certain age cannot
Under the common law, the term describing a
be held legally
child as not legally responsible is the Latin term responsible for their
‘doli incapax’, meaning ‘incapable of wrong’. actions and cannot be
guilty of an offence
Doli incapax is a presumption that children are
incapable of having criminal intent.
Cha pter 5: Young offenders 95
 By the end of the 19th century, there was a
growing awareness that treating children in the
same way as adults did not take into account a
child’s lack of life experience, uninformed and at
times poor decision making, and socio-economic
circumstances – all of which differentiates them
from adults. Because of this the age of criminal
responsibility was reconsidered.
By the late 20th century, most countries had
adopted a minimum age of criminal responsibility,
though this varied. In 1989, the United Nations
established a treaty on children’s rights known as
the Convention on the Rights of the Child. It included
many aims and requirements for the treatment of
children, including certain rights for children under
the criminal law. Particularly, article 41(3)(a) of the
treaty encouraged establishment in all countries’
laws of ‘a minimum age below which children shall
be presumed not to have the capacity to infringe
the penal law’. The treaty is in force in every
country worldwide, except Somalia and the United
States.
Although Australian jurisdictions have not
passed any single law that adopts the convention
in its entirety, the High Court has ruled that
Australian laws should, as far as possible, be
interpreted in a way that is consistent with the
convention.

Children
(under 10 years old)
Figure 5.3 In Victorian England, children could be imprisoned, flogged, In NSW today, the Children (Criminal Proceedings)
transported to colonies, like Australia, or even executed. John Greening, Act 1987 (NSW) lays out the minimum age of
pictured here, was 11 years old when he was sentenced to one month’s
criminal responsibility. Section 5 of the Act states
hard labour and five years reformatory for stealing gooseberries.
that: ‘[i]t shall be conclusively presumed that no
child who is under the age of 10 years can be guilty
rebuttable Under the common law, this was a rebuttable of an offence’.
presumption presumption, which means the presumption This means that, for children under 10 years
a legal presumption in
favour of one party – it was that the child could not have committed old, doli incapax is a conclusive presumption. No
can be rebutted by an offence, unless the prosecution could prove child under the age of ten can be found by law to
the other party if they
beyond reasonable doubt to the judge, or jury, commit an offence, and this cannot be rebutted.
can show sufficient
evidence to disprove it that the child was capable of understanding their Previously in some states the age of criminal
actions – that is, that the child knew what they responsibility varied as low as the age of seven.
were doing was ‘seriously wrong’ at the time they Proving that an offender under the age of ten
did it, and not just ‘naughty’. understood the act to be wrong and hence the

96 C am br i d g e L e g a l S t u d i es – HS C
existence of mens rea beyond reasonable doubt
would be extremely problematic. Children under
the age of 10 draw on very limited ‘life experience’
when making decisions about right and wrong.
Punishing children by law less than 10 years of age
may also be considered cruel treatment. Children
are considered more likely to be rehabilitated from
offending behaviour, and the imposition of any
criminal penalty at such a young age may prevent
this from occurring. For these reasons, children
under the age of 10 are deemed by law never to be
criminally liable.
Children under the age of 10 have in some
instances been capable of committing horrific
acts, even if the law does not recognise their
mental capacity for intention. There are occasion-
ally calls from some sections of the community to
lower the age of criminal responsibility, or even
abolish it altogether. However, any reduction in
the minimum age below 10 is extremely unlikely.
Children
(10 to 13 years)
At what age, then, does a child become respon-
sible for their actions? The Children (Criminal
Proceedings) Act 1987 (NSW) is silent on the res-
ponsibility of children 10 years or older. In NSW,
the answer is still found in the common law – the
rebuttable presumption of doli incapax. This
applies to children 10 to 13 years old.
Once a child turns 10 years old, they are still
presumed incapable of committing a criminal
offence, but this presumption is allowed to be
rebutted. That is, the prosecution may be able
to show that the child, at the time of the alleged
offence, actually knew that their act was seriously
wrong, and not just ‘naughty’.
The rebuttable presumption recognises that
children of this age might have the mental capacity
to understand the seriousness of their act, but only
if the prosecution can prove it beyond reasonable
doubt. Evidence that the prosecution might rely
on could include psychiatric evidence, evidence of
parents and teachers, or behaviour and statements
by the child.
C rim e
Figure 5.4 In Australia, the age of criminal
responsibility is 10 years.
As in the case of R v LMW [1999] NSWSC 1343
(see page 98), the application of doli incapax has
occasionally come under scrutiny, usually through
high-profile cases portraying heinous crimes by
children. Some of the issues surrounding this
debate are highlighted by Thomas Crofts, Associate
Professor at Murdoch University School of Law, in
his paper ‘Doli incapax: Why Children Deserve
its Protection’ ((2003) 10(3) Murdoch University
Electronic Journal of Law). Croft states that:
s opponents argue that doli incapax should be
lessened or removed because children today
are better educated and the criminal law is not
as harsh as it once was
s the rule can be unfair, especially to the victims
of the crime
s it makes the prosecution’s role in a criminal
trial more difficult, as there is not always
enough evidence to rebut the presumption of
doli incapax.
However, Crofts goes on to defend the presum-
ption of doli incapax. First, he states that it is
consistent with the principals of international law
of which Australia is a signatory. He also highlights conclusive
presumption
that children develop their understanding of right
a legal presumption
and wrong at different stages of their life and that in favour of one
doli incapax helps to protect against the different party that is final
(conclusive) and
levels of maturity by forcing the prosecution to
cannot be rebutted
prove understanding on a case-by-case basis. by the other party
Further, although it may slow down the prosecu-
tion, ultimately it does not stop them if there truly
is proof of a guilty mind.
Cha pter 5: Young offenders 97
 ca s e s p a ce
R v LMW [1999] NSWSC 1343

In this case, a 10-year-old child,
LMW, was accused of
manslaughter after he dropped
another six-year-old boy, Corey
Davis, into the Georges River,
knowing that he could not swim.
The boy drowned, and the NSW
Director of Public Prosecutions
brought a charge of manslaughter
against LMW for his death.
Initially, the Senior Children’s
Magistrate at the Children’s
Court dismissed the case against
LMW at the committal hearing,
saying that a jury would not
convict a child so young. How-
ever, the DPP persisted and took
the case to the Supreme Court of
NSW, to be heard in front of a
jury. LMW was the youngest per-
son to face the Supreme Court
and the youngest in Australia to
be charged with manslaughter.
After an 18-month effort by
the DPP, with intense media and
l e ga l i nfo
political interest in the case, the
Supreme Court jury acquitted
LMW. Central to the case was the
issue of doli incapax. Studdert J,
who heard the case, affirmed that
the presumption of doli incapax
applied in NSW, and that it was
for the jury here to decide on the
evidence whether the
prosecution had rebutted the
presumption.
The prosecution argued that
LMW had and was capable of
forming criminal intent, and that
he understood the consequences
of pushing Corey Davis into the
river. The DPP painted LMW as a
bully who showed malice and
deception. The defence argued
that it was a childish prank that
had gone wrong and that LMW
did not understand the
consequences of his actions.
Some of the evidence raised
included a child psychiatrist who
determined that LMW probably
could understand the difference
between right and wrong,
evidence from three teachers that
LMW was behind intellectually at
school, but that he was capable
of following school rules. Corey
was also much younger and
smaller than LMW and there was
evidence of what LMW said as he
picked him up and dropped him
into the river, and afterwards.
This was only based, however,
on the evidence of two other six-
year-old witnesses.
On various appeals about the
available evidence from the
defence and the DPP, Studdert J
determined that there was
sufficient evidence for the jury to
make a decision on doli incapax,
but that this decision was for the
jury here to decide. The jury
acquitted LMW after three hours
of deliberation.

The age of criminal responsibility in NSW

Age (inclusive) Criminal responsibility

0 – 9 years old Cannot be charged with a criminal offence. Children under 10 are not seen as
mature enough to commit criminal offences.
10 – 13 years old Rebuttable presumption of doli incapax. Presumed not capable of committing an
offence, but prosecution may show the child knew what they did was ‘seriously
wrong’ and not just ‘naughty’.
14 – 15 years old Criminally responsible for any offence committed, but no conviction can be
recorded unless it is a serious offence.
16 – 17 years old Criminally responsible for any offence committed and a conviction may be
recorded, but the case will still be heard in the Children’s Court.
18 years or older Full adult criminal responsibility, with case to be heard in adult courts. If the
offence was committed before the accused’s 18th birthday, it can still be heard in
the Children’s Court until the accused turns 21.

98 C am br i d g e L e g a l S t u d i es – HS C
 C rim e
Figure 5.5 Once a person turns 14 years old, the presumption of doli incapax no longer applies and
the offender can be found criminally responsible for their actions.

Young people ‘LMW above’), a requirement that any convictions

will be cleared after three years (if no more have
(14 to 17 years) been committed), and most importantly, the
Once a person turns 14 years old, the presumption matter will be heard in the Children’s Court. The
of doli incapax no longer applies and the offender procedures and operation of the Children’s Court
can be found criminally responsible for their are discussed later in this chapter.
actions.
Children 14 and over are deemed mature R EVI EW 5 . 3
enough to know when their actions are wrong
1 Describe the meaning of the term ‘doli
and know not to commit an offence. However,
incapax’.
the law still continues to protect young people in
2 Explain the distinction for the prosecution if
a number of ways – full criminal responsibility,
a child is aged less than 10 years old, 10 to
publicly triable in adult courts, does not occur until
13 years old, or 14 and older.
a person reaches 18 years of age.
3. Outline the facts of R v LWM. Evaluate the
For example, young people under 16 years of
outcome of the case and discuss whether
age cannot have a criminal conviction recorded
you think the law was appropriate in the
against them, unless the offence was an indictable
circumstances.
offence. This means that the offence cannot be
4 Discuss some arguments for and against the
considered by a court if the offender appears again
retention of doli incapax in its present form.
later in their life. However, if it is an indictable
5 Read the full article by Thomas Crofts,
offence, the magistrate or judge may decide to
which is available on the internet at: www.
record a conviction. This does not apply to children
murdoch.edu.au/elaw/issues/v10n3/
aged 16 or 17.
crofts103_text.html; and elaborate further
People under the age of 18 are subject to the
on the contemporary issues surrounding
Children’s (Criminal Proceedings) Act 1987 (NSW).
doli incapax.
This includes a number of protections, such as
prohibiting reporting of the child’s name (e.g.

Cha pter 5: Young offenders 99

 The rights of children and
you n g people w hen ques t ioned
or a rres ted
The rights of children and young people when
dealing with law enforcement authorities varies
between Australian jurisdictions. However, the
law generally recognises that children and young
people require some special protections when
dealing with the police that are not afforded in
ordinary circumstances.
In 1997, the Australian Law Reform Commission
(ALRC) conducted an important inquiry into young
people and the law, jointly with the Human Rights
and Equal Opportunity Commission. The report
was titled Seen and Heard: Young People and the
Legal Process, and examined the relationship of
young people and the legal process, including the
criminal process. The report’s recommendations
included:
s standardising the minimum age of criminal
responsibility, which was achieved in all juris-
dictions in 2000
s standardising national standards through legi-
slation or policy for juvenile justice
s covering investigation and arrest, bail con-
ditions, sentencing and detention.
Particularly, changes were recommended to
ensure Australian jurisdictions comply with Austra-
lia’s obligations under the UN’s Convention on the
Rights of the Child. However, national standards
have not yet been implemented.
The inquiry also surveyed 843 children and
young people on dealings with the police. Seventy-
eight per cent of those surveyed stated that the
police rarely treated young people with a sufficient
degree of respect. There could be many reasons for
this, and it does not necessarily mean inadequate
policing. However, relationships between young
people and police are a significant opportunity
for improvement. Since the survey, a number
of legislative changes have been introduced to
100 C am b r id g e L e g a l S t u d ie s – HS C
try to add certain protections for children and
young people.
As explored in chapter 2, the main legislation
outlining police powers in NSW is the Law Enforce-
ment (Powers and Responsibilities) Act 2002 (NSW).
The Act contains a number of requirements for
police in their dealings with young offenders.
Questioning of young
people
Police in NSW have the power to approach young
people and ask them questions at any time, as
they do for adults. Most police powers that apply
to adults apply equally to children and young
offenders, for example powers to ask a person to
‘move on’ and most compulsory powers of search
and seizure.
Identification, name and address
The police have a right to ask a person to identify
themselves with their name and address. Likewise,
a person can ask a police officer for their name
and their police station. There are several situ-
ations, under various legislation, where a person is
legally required to respond and may commit an
offence if they do not. For example:
s where the police officer suspects on reasonable
grounds that the person can assist them in
investigating an indictable offence that was
committed nearby
s in a number of situations relating to vehicles
and traffic
s where a person is suspected of committing an
offence on a train.
However, some laws do apply to young people
in particular. For example, under the Summary
Offences Act 1988 (NSW), a person can be stopped
and required to provide their details if suspected
of being under the age of 18 and carrying or
consuming alcohol in a public place without adult
supervision or reasonable excuse. If the young
person cannot produce adequate identification,
refuses to comply with the request or gives false
details, police can impose a fine of up to $20.
Questions and right to silence
With regards to ordinary police questioning, the
police may stop a person and ask them questions
at any time. However, in most circumstances
a person is not required to respond and may
exercise their right to silence. A person can
refuse to answer questions, even if they have
been taken to a police station for questioning or
arrested. This is because it may not be in their
best interests to answer certain questions as their
answers may later be used as evidence against
them. For this reason, a person suspected of com-
mitting any offence should usually not answer
police questions or sign any statements until they
have received independent legal advice.
Right to support of a
responsible adult
The law provides an additional level of protection
for young people under the age of 18 when they
are questioned by police. This is because the law
assumes that young people may not be aware
of their rights, may not fully understand the law
or may be more vulnerable than adults in these
circumstances. Under s 13 of the Children (Criminal
Proceedings) Act 1987 (NSW), any information
l e ga l l i nk s
Legal Aid hotline for under-18s
People under the age of 18 are entitled to
free legal advice from NSW Legal Aid. The
Legal Aid Hotline for under 18s is a service
staffed by qualified lawyers experienced
in juvenile matters. It is accessible to
or statement a child or young person gives to
police will be inadmissible as evidence in court
proceedings against that person, unless:
s there is a responsible adult other than the
police member present, such as a parent, youth
worker, guardian or lawyer
s the judge or magistrate otherwise decides that
it should be admitted.
This is an important protection given to young
offenders as it means that police must ensure there
is a responsible adult present any time a person right to silence
C rim e
the right of a
under 18 years old is questioned. If not, the police
person to refuse to
will be unable to use any information received as answer any question
evidence. Generally, the adult should take notes put to them on
the grounds they
and ensure the young person gets legal advice or may incriminate
knows they do not need to answer questions. themselves
Searches
Police search powers for children and
young people are largely the same as
for adults, apart from strip searches. R EVI EW 5 . 4
Under the Law Enforcement (Powers and 1 Explain if or when a
Responsibilities) Act 2002 (NSW), police young person has to
can never perform a strip search on a give their name and
child under 10. For a person between 10 address to police.
and 18, a responsible adult other than 2 Define the right to
a police officer must also be present, silence and discuss its
and if the person is 14 or older they impact on police powers
must agree who the adult should be. to question.
Police may only conduct strip searches 3 Assess why a young
in serious and urgent circumstances. person might need
When conducting a strip search, police a responsible adult
have to respect a person’s privacy and present when asked
must not touch the person. questions by the police.
young people seven days a week on
1800 10 18 10. Further information about
the Legal Aid Hotline for under 18s is
available on the Legal Aid website at:
www.legalaid.nsw.gov.au/asp/index.
asp?pgid=613.
Cha pter 5: Young offenders 101

interview friend
a parent, guardian,
friend or legal
representative present
at the police interview
of a minor; the presence
of an interview friend
is to offer support and
witness that statements
are made voluntarily
caution
a statement issued by
police to a suspect
when they are detained
to inform them of their
rights
102 C am b r id g e L e g a l S t u d ie s – HS C
Figure 5.6 The conditions under which a young
person can be lawfully arrested are the same as
those for adults.
Arrest and interrogation
The conditions under which a young person can be
lawfully arrested are the same as those for adults.
These conditions are listed in the Law Enforcement
(Powers and Responsibilities) Act 2002 (NSW). The
Act requires that:
s police know or believe on reasonable grounds
that the person has committed or is about to
commit an offence
s police must have a warrant for the person’s
arrest
s certain other conditions, relating to people who
are on bail conditions, be adhered to.
Police must tell a person that they are under
arrest and why, and inform the person of the
police officer’s name and station. Police may use
reasonable force in arresting a person or young
person, but the force may not be excessive, and the
police officer may not assault or intimidate them.
Likewise, a person can also not assault a police
officer, resist arrest or use offensive language, or
they may be guilty of further offences.
Support person and legal advice
The ALRC’s Seen and Heard report, discussed
earlier, recommended that upon arrest a child
or young person’s guardians or carers should be
notified as soon as possible. This should not occur
if the person’s carer or guardian may be a threat
to the child or young person’s safety, which might
be relevant in some circumstances.
Under the Law Enforcement (Powers and Res-
ponsibilities) Regulation 2005 (NSW), people under
the age of 18 are defined as ‘vulnerable people’ and
are given special protection when arrested and
detained for questioning. The Regulations require
the police to find out as soon as possible who the
child’s parent or guardian is and to contact them.
Young people must have a support person, or
interview friend, present such as a parent,
guardian or solicitor. Police may not conduct any
inter view of a child or young person unless a
support person is present. For people 14 years and
over, police must get their agreement on who they
want as the support person. The support person
will assist the child or young person and observe
that the interview is conducted properly.
The police custody manager has a positive
requirement to assist the child or young person.
At present there is no requirement to have legal
representation during a police interview. The
Seen and Heard report suggests this should be a
requirement for children and young people, and
in 2002 the Supreme Court of NSW ruled in the
case of R v Cortez (unreported, NSWSC, Dowd J,
3 October 2002) that the custody manager’s duty
requires them to inform a young person that the
Legal Aid Hotline is available and give them an
opportunity to ring it.
Caution of rights
As with questioning in general, people have a right
to silence when dealing with the police. Like adults
who are arrested and interrogated, children and
young people may incriminate themselves without
realising they are doing so and must be warned
against this. Under the Law Enforcement (Powers
and Responsibilities) Act 2002 (NSW), any person
arrested has the right to receive a caution – that
is, the police must warn a person as soon as prac-
tical after they are detained that they do ‘not have
to say or do anything but that anything the person
does say or do may be used as evidence’. They
must also inform them of the maximum allowable
period for detention without charge.
The accused is to sign an acknowledgement that
this caution has been given – this usually would
be completed by an interview friend, guardian or
carer on the child’s behalf. Some criticisms of this
has been that children and young people may not
always understand the technical language used in
the caution and that it should be age specific. It
has been argued that admissions and confessions
from children and young people should only be Figure 5.7 For young people 14 years or over, police may take

admissible in court if they have been electronically
recorded.
Detention and identification
As with adults, people under 18 years of age in
NSW can be detained for a maximum of four
hours, or up to a further eight hours if a warrant
for the extension is granted.
The Seen and Heard report recommended that
children and young people not be detained for a
period longer than two hours in all states. This is
the practice at a federal level. Children may be
particularly more vulnerable during long periods
of detention and as such excessive periods are dis-
couraged. As mentioned above, the presence of an
interview friend is one mechanism that may help
prevent evidence being obtained under duress or
coercion during lengthy periods of interrogation.
le g al in f o
C rim e
fingerprints or photographs if it is for the purpose of identifying them.
Forensic procedures, photos
and searches
Police will often require identification of suspects
when arrested, including photographing or taking
fingerprints or DNA samples.
For young people 14 years or over, police may
take fingerprints or photographs if it is for the
purpose of identifying them. However, for children
under 14 years, the police can only take photos or
fingerprints if they apply to the Children’s Court
to do so. The child may not be held in custody
while the application is being obtained, and the
Court will consider the seriousness of the offence,
cultural and ethnicity considerations, the ‘best
interests’ of the child and the wishes of the child
and their parent and or a guardian.

Children and young people – special rights and procedures with police

s Right to a have a responsible adult present when
police ask questions
s If less than 18 years old, then strip search can
only be conducted if an independent responsible
adult is present; no strip searches permitted for
children under 10 years old
s If arrested, police must find out details of the
person’s parent or guardian as soon as possible
and contact them
s Children and young people must have a support
person present during a police interview
s Police must give caution of rights in presence of
the support person
s Police must inform of right to contact Legal Aid
and give opportunity to do so
s Same period of detention as for adults, but a
shorter period is strongly recommended
s If under 14 years old, fingerprints and photos
can only be taken with a Children’s Court order
s If under 18 years old, no DNA sample can be
taken without a Children’s Court order.

Cha pter 5: Young offenders 103

 Similarly, police cannot take a DNA sample of
any suspect under 18 years old unless they have a
court order allowing them to do so. Children and
young people cannot give this consent on their
own. If the criminal matter is not proved in court,
for example acquitted, not guilty or discontinued,
then the police must destroy any fingerprints,
photos or DNA samples on request of the parent
or guardian.
Additional comments
In most cases, it is hoped that good policing has
preceded the arrest of a child or young person,
and that police have gathered sufficient evidence
to bring them into the police station. This is not
always the case.
In some jurisdictions, there is criticism that
police may rely too heavily on powers of arrest
to gather evidence or to further the interrogation
of suspects, especially in the case of
indigenous youth. The UN Convention
on the Rights of the Child obliges
R E VIEW 5.5 countries to use arrest only as a ‘last
1 Outline the main allowable resort’, as it can often be a negative
circumstances for police to and traumatising experience for
arrest a young person in children and young people. The
NSW. Seen and Heard report also recom-
2 Explain what is meant by mended that for children considered
the term ‘interview friend’. ‘at risk’, welfare and health services
3 Describe when a young will usually be more appropriate to
person’s fingerprints can be deal with the situation, rather than
taken by police. the police.
Children’s Cou r t – procedu res
a n d ope ra t i o n
The Children’s Court of NSW was discussed in
Chapter 2 under the topic of the court hierarchy.
The Children’s Court is a specialised court estab-
lished in 1987 under the Children’s Court Act 1987
(NSW). It has a dual role:
104 C am b r id g e L e g a l S t u d ie s – HS C
Section 99 of the Law Enforcement (Powers and
Responsibilities) Act 2002 (NSW) lays down the
principle in NSW, with detailed provisions about
when and for what purpose an arrest can be made.
Section 8 of the Children (Criminal Proceedings)
Act 1987 (NSW) also creates a presumption that
children should not be arrested or detained,
unless for example the offence was a serious or
violent one, or there is a danger of further offences
or violent behaviour.
The Shopfront Youth Legal Centre, a Sydney-
based free legal service for disadvantaged young
and homeless people, states in a 2007 dis-
cussion on the Law Enforcement (Powers and
Responsibilities) Act that:
disappointingly, [section 99], which gives legis-
lative backing to the principle of arrest as a last
resort, does not seem to have made police think
more carefully before arresting suspects. In the
author’s experience, it also appears that magis-
trates are generally reluctant to find that an arrest
was unlawful and are perhaps rather conservative
in their interpretation of this legislative provision.
Source: www.theshopfront.org/documents/Police_Powers.pdf
As a result, it could be suggested that some
children and young people enter the criminal jus-
tice system unnecessarily, which could negatively
impact on their perceptions and experiences.
However, alternatives to this approach are avail-
able to police under the Young Offenders Act 1997
(NSW), which is discussed in more detail towards
the end of this chapter.
s dealing with criminal matters of children and
young people under 18 years of age
s dealing with matters of care and protection of
children and young people referred to it by the
Department of Community Services.
 Matters in the Children’s Court are presided
over by a magistrate but there is no jury. Magi-
strates undergo specialist training by the NSW
Judicial Commission in dealing with youth matters
and proceedings. Across NSW, there are 13
children’s magistrates sitting in seven specialist
Children’s Courts. Five of these are in metropolitan
areas. There are also five children’s registrars
appointed to assist in the administration of matters
before the court.
In its criminal jurisdiction, the Children’s Court Figure 5.8 The Children’s Court of NSW

can hear the following matters involving children:
s any offence other than a serious indictable
offence committed by a child (serious indictable
offences will be heard in a higher court, such as
murder and manslaughter, armed robbery or
sexual assault)
s committal proceedings of any indictable
offence, including serious ones, committed by
a child.
The Children’s Court follows procedures laid out
under the Children’s (Criminal Proceedings) Act 1987
(NSW). Section 6 of the Act requires the court to
show regard for the following main principles:
s children have rights equal to adults and have a
right to be heard and participate in proceedings
that affect them
l e ga l i nfo
C rim e
s children are responsible for their actions but
require guidance and assistance
s where possible the education of a child should
proceed without interruption
s where possible a child should be able to reside
in his or her home
Additional principles under s 6 relate more speci-
fically to the sentencing process.
In the Children’s Court, as well as children’s
matters heard in higher courts, trial formalities
will be different to ordinary courts and will be
aimed at protecting the interests of the child.
Some of the main differences are outlined in the
following table.

Differences in children’s criminal proceedings

s In the Children’s Court, the matter will be
heard summarily (with no jury), before a single
magistrate
s Children’s proceedings are conducted in a closed
court in order to protect the identity of the child
– only parties to the proceedings are present, and
reporters or family victims if the court allows
s Prohibition on the media publishing any child’s
name who is involved in the process, unless
authorised by the court or the child is deceased
s Courts in children’s proceedings will need to
consider the main trial and sentencing principles
under s 6 of the Children’s (Criminal Proceedings)
Act 1987 (NSW)
s Court will give the child the fullest opportunity
to be heard and to participate
s Court must take measures to ensure that the
child understands the proceeding, and answer
any questions that the child asks about the
process or decision
s Available penalties and sentencing procedures
differ from ordinary courts

Cha pter 5: Young offenders 105


Children’s Court statistics
The NSW Commission for Children and Young
People is an independent organisation that reports
to the NSW Parliament and monitors trends in
young offender rates, among its many tasks. The
Commission’s rationale for doing this is that it
believes children and young people who become
involved in crime are usually involved in minor
crimes, but that for a small group of these offen-
ders regular contact with the criminal justice
system becomes a way of life which has drastic
prospects for their future.
The Commission looks at matters heard before
the Children’s Court, but statistics do not include
diversionary methods such as warnings, cautions
or conferencing. Some of its main findings
include:
s The number of young people with at least
one finalised criminal matter before the NSW
Children’s Court has increased from 2003 to
2007 following a downward trend since 1996.
Overall, the numbers in 2007 are almost 40%
lower than those in 1996.
s Since 2003, the 10–14 year old age group has
shown the greatest increase in the number of
young people with at least one finalised criminal
matter.
s From 1996 to 2007 the majority of finalised
matters before the NSW Children’s Court
involved males. The involvement of males in
these matters is over four times that of females.
The Children’s Court
Clinic
The Children’s Court Clinic is an arm of the
Children’s Court and is established under the
Children’s Court Act 1987 (NSW). The clinic’s main
function is to make clinical assessments of chil-

6000

5500

5000
Number of finalised appearances

4500

4000

3500

3000

2500

2000

1500

1000

500

0
1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007

Years

10–14 years 15 years 16 years 17 years 18 years and over

Figure 5.9 Finalised appearances in the NSW Children’s Court, 1996–2007 by age at time of earliest
offence (number).

106 C am b r id g e L e g a l S t u d ie s – HS C
dren and submit reports to the court. A magistrate
or judge in a children’s case can make an assess-
ment order for expert assessments of a child in a
particular case – a clinician then assesses the child
and writes an independent assessment report to
the court to help it make a decision in the best
interests of the child.
In its criminal jurisdiction, the Children’s Court
may in certain cases decide a child or young
person requires assessment by the clinic after
they have been found guilty of an offence awaiting
sentence. An assessment will be performed gener-
ally by NSW Juvenile Justice, but more recently
through the clinic. The clinic will be asked to
complete an assessment where there are ‘specific
psychological, psycho-social or mental health
issues present in the child’s situation that the
court needs to consider prior to passing sentence’.
The assessment report might include a variety of
Pe n a l t i e s f o r c h i l d r e n
The purposes of sentencing were looked at in
Chapter 4. However, in children’s criminal pro-
ceedings, the purpose of rehabilitation is given
primary weight. This is consistent with the Con-
vention on the Rights of the Child, which acknow-
ledges that children and young people have the
best chance of any other offenders of being rehab-
ilitated and reintegrated back into society. As men-
tioned above, factors under s 6 of the Children’s
(Criminal Proceedings) Act 1987 (NSW) are to be
considered in children’s proceedings. Additional s
6 principles that relate more specifically to the
sentencing process include that:
s the penalty imposed on a child shall be no greater
than that of an adult for the same offence
s children should be assisted with reintegration
into the community to sustain ties to their
family and community
s children accept responsibility for their actions
and if possible make reparation for them
issues, such as the child’s mental health, intellec-
tual disability, drug and alcohol use, violence,
sexual abuse/assault, or psychological issues. The
assessment report may take time and the child’s
sentencing will likely be postponed until the report
is available.
R EVI EW 5 . 6
1 Describe the types of offences that can be
heard in the Children’s Court.
C rim e
2 Outline the differences between children’s
criminal proceedings and ordinary court
proceedings.
3 Identify the recent trends in cases heard by
the Children’s Court and describe what the
most common profile of offenders is.
4 Describe the role of the Children’s Court
Clinic.
s subject to other principles, consideration should
be given to the effect on the victim.
Many of the mitigating or aggravating factors of
the offence, both objective and subjective, that are
relevant to ordinary proceedings, might also be
relevant to sentencing in children’s proceedings.
Victim impact statements have also recently been
permitted in the Children’s Court.
For most children’s offences, penalties will be
significantly less severe than ordinary law and
will be considered with the child’s rehabilitation
in mind. For specific serious indictable offences
heard by higher courts (such as homicide), ordin-
ary sentences will be applied. For other serious
offences, the higher court may decide whether the
ordinary law or children’s penalties should apply.
Section 33 of the Children’s (Criminal Proceed-
ings) Act 1987 (NSW) lists the penalties that can
be applied to children. These are outlined in
Table 5.1.
Cha pter 5: Young offenders 107
 Table 5.1

Children’s sentencing options under s 33 of the Children’s (Criminal Proceedings) Act 1987
(NSW)
dismissal the court can dismiss the charge without punishment or conviction, but
may decide to issue a caution to the offender
conviction for young offenders, the court can decide whether to record a conviction,
but for children under 16 years old no conviction can be recorded
adjournment the sentencing can be adjourned or deferred for up to 12 months to assess
the child’s prospects of rehabilitation and reconsider at a later date
bond release the child on a good behaviour bond for up to a maximum of two
years, with conditions that the court sees fit to impose; it can also be
combined with a fine
youth justice youth justice release subject to the child complying with a youth justice conference
conference conference outcome plan (these will be discussed later in this chapter)
a measure under the
Young Offenders Act fine a fine of up to 10 penalty units ($1,100), but the court must take into the
1997 (NSW) to divert child’s age and ability to repay it
young offenders from
probation a bond with a probation order of up to two years, overseen by an officer of
the court system
NSW Juvenile Justice
through a conference
that addresses the community service a community service order is a severe penalty, and can be made for up 100
offender’s behaviour in order hours if the child is under 16 years old, or up to 250 hours if they are 16
a more holistic manner
or over; an assessment (as mentioned earlier) is required to confirm if the
control order child is suitable for a community service order
similar to an
adult sentence of suspended control similar to a suspended sentence, a court can suspend a control order
imprisonment, except order (below) for up to two years, subject to good behaviour
served in a juvenile
control order a control order is the most severe penalty, and is similar to an adult
justice centre
sentence of imprisonment except it involves detention in a juvenile justice
juvenile justice centre
centre; the maximum time a child can be sentenced to a control order is
a detention centre
housing young two years
offenders subject to a
control order
Juvenile justice centres They aim to provide a safe, humane and secure
A control order is the most severe penalty avail- environment for young offenders.
able in children’s criminal proceedings. It is similar Juvenile justice centres also provide educational
to the adult penalty of imprisonment, except that and recreational facilities, as well as counselling
the maximum time servable is two years and the and personal development programs to encourage
young offender is not held at an adult correctional rehabilitation and reintegration of young offenders
centre but at a juvenile justice centre. back into the community.
Juvenile justice centres, also called youth deten- As for adult imprisonment, control orders are
tion centres, are managed by NSW Juvenile Justice, only to be used as a last resort. If used, the court
which is a part of the Department of Human must give clear reasons why it cannot impose
Services. They are overseen by the Children any other penalty. Courts must also announce
(Detention Centres) Act 1987 (NSW). The centres a non-parole period for any control order longer
house young offenders sentenced to control orders than six months, although young offenders may
as well as some young accused people held on still be released before the end of their non-parole
remand awaiting finalisation of their court trial. period.

108 C am b r id g e L e g a l S t u d ie s – HS C
Sentencing
considerations for young
offenders
Although the Children’s (Criminal Proceedings) Act
1987 (NSW) now clearly outlines the principles of
children’s criminal proceedings, and the primary
importance of rehabilitation, the Seen and Heard
report had noted that in sentencing, more atten-
tion was needed by courts to social factors such as
homelessness, family circumstances, educational
needs or the special health and other require-
ments of children and young people.
For example, the court needs to carefully
consider fines in light of the offender’s ability
cas e s p ac e
R v GDP (1991) 53 A Crim R 112
Although now a relatively old
case, R v GDP still outlines an
important principle in child
sentencing. The offender was 14
years old when he committed
serious criminal damage to
property with two of his friends.
The damage included breaking
through a window, drilling a safe,
defacing cars, smashing furniture
and lighting dangerous fires that
in total added up to $550 000 in
damage. GDP was very young,
had had no prior incidents and
was well regarded by his
teachers. The judge in GDP’s
There may, however, be exceptions to this rule
where a young offender is involved in repeated
offences, or where he or she engages in ‘grave
adult behaviour’, which is where the offender has
acted like an adult as indicated by the seriousness of
to repay it and the effect it might have on their
chance of rehabilitation. Community service
orders would be more beneficial if closer to home
and as long as the conditions to fulfil them were
not so difficult that they attracted breaches. The
very serious effects of any control order would of grave adult
course need to be thoroughly considered and all behaviour
where a young
other penalties dismissed before such a penalty
offender has acted
could be imposed. like an adult in
The seriousness of the offence will often be a committing the
offence, indicated
significant consideration in determining the sen-
by the seriousness
C rim e
tence. However, unlike for adult offenders where in of the offence
such cases purposes of retribution and deterrence and other factors
surrounding the
would likely increase a sentence, the court must behaviour such as
keep the rehabilitative focus foremost in mind. premeditation
case sentenced him to a been positively damaging to
12-month custodial sentence. GDP’s rehabilitation, who was by
GDP appeal to the court of now commencing year 12 and
Criminal Appeal, where a panel facing his HSC certificate. The
of three judges held that the court reversed the original
sentence was manifestly excess- sentence and substituted it with
ive. In explanation, the court a 12-month probation order.
stated that sentencing principals
for children are different to
adults – general deterrence and
retribution were not as
important as they could be in the
case of an adult. Rehabilitation is
the primary aim for offenders as
young as this. In this case a
custodial sentence would have
the offence or the level of premeditation involved.
The court may see them as having acted like an
adult, and so other sentencing objectives might
come into play. For example, see the following
case of R v Pham & Ly.
Cha pter 5: Young offenders 109
 R E VIE W 5.7

ca s e s p a ce
R v Pham & Ly (1991) 55 A Crim R 128
1 Identify three
penalties available for
In contrast to the case of R v GDP, At the time, one of the offenders
children and assess
Pham & Ly involve two main was on bail and the other was on pro-
how they differ from
offenders – one just under the age bation. The original judge sentenced
adult penalties.
of 18 at the time of the offence. both offenders to 12 months on
2 Describe the primary
The young offenders committed a remand. The case was appealed in
factors to consider
robbery together – breaking into a The Court of Criminal Appeal and the
when sentencing a
house and injuring the occupants. sentence was overturned as ‘wholly
young offender.
They invaded the home early in inappropriate’ and inadequate. It
3 Explain when a young
the morning knowing the occupants was ruled that despite the offenders’
offender may be
were home. They bound and ages, there must be reasonable
liable to receive an
gagged their victims with sticky proportion between the sentence
adult sentence.
tape and put a blanket over their and the seriousness of the crime
heads. They then proceeded to rob committed with the need to protect
the property, taking jewellery and a the community. The case was
number of other items. referred for resentencing.

warning
a notice given to
a young offender
(usually for a first
minor offence) that
is recorded by police
but with no conditions
attached; the offender
must be told of the
nature, purpose and
effect of the warning
caution
a formal, recorded
alternative to
prosecution where the
young offender admits
to the offence and
consents to receiving a
formal police caution;
it can later be taken
into account at the
Children’s Court, but
not an adult court
youth justice
conference
a measure to divert
young offenders from
the court system
through a conference
that addresses the
offender’s behaviour in
a more holistic manner
A l t e r n a t i ve s t o cou r t
As for adult offenders, there are programs in place
for children and young offenders that offer an
alternative to the formal criminal justice process
that is played out through the courts.
In NSW the primary diversionary program for
young offenders is provided for by the Young
Offenders Act 1997 (NSW). The Young Offenders Act
became operational in NSW in 1998 and was
introduced to provide various diversionary meas-
ures for young offenders and police as an alter-
native to traditional criminal processes and court
penalties. The aim is to encourage rehabilitation,
reduce rates of recidivism and reduce the burden
on the court system of more minor youth offences.
The program only applies to summary offences
and to indictable offences triable summarily.
The program does not apply to serious offences,
including robbery, sexual offence or any offence
resulting in a person’s death. The principles of the
Act are that:
s the least restrictive sanction should be applied
where possible
s children should be informed of their right to
seek legal advice
s criminal proceedings are not to be started if
there is an appropriate alternative for dealing
with matter.
Under the Act, children and young offenders who
have committed an offence covered in the Act
may proceed through a three-tiered system of
diversionary processes – warnings, cautions and
youth justice conferences.
Warnings
A warning is an official notice given to a young
offender by an investigating officer, without any
conditions attached. The warning is relatively
informal – it can be given in any place but the
officer must tell the offender the nature, purpose
and effect of the warning. A warning cannot be
given for an act of violence, a repeat offence or
at the discretion of the investigating officer. The
officer will keep a record of the warning.

110 C am b r id g e L e g a l S t u d ie s – HS C
Cautions official, a member of the child’s family or extended
family, the offender’s legal representative, another
Police may issue a caution to a young offender
adult chosen by the offender and a specialist youth
to discourage further offending. The caution is
officer. The victim can also attend, as well as any
a formal, recorded alternative to prosecution
support people the victim may want present. The
where the young offender admits to the offence
range of people present aims to give a picture of
and consents to receiving a formal police caution.
what is going on in the child’s life and to provide
In deciding whether to give a caution or not, the
enough expertise and experience to offer a more
investigating official will consider the seriousness
holistic approach to finding solutions for the off-
of the offence, the degree of violence involved,
ender’s behaviour. A conference administrator
the harm caused and number of offences by the
ensures records of the conference are kept.
offender.

Although not a conviction, the caution may later
be taken into account in the Children’s Court and
so can have important consequences. Steps are
to be taken so that the offender understands the
nature and effect of the caution, and the offender
must then sign a ‘caution notice’. A specialist court
officer or a court must make a record given by
the officer or the court. Before an official caution
is issued, the investigating officer may refer the
matter to a specialist court officer to decide if
the matter instead should be referred to a youth
justice conference.
Youth justice conferences
The Young Offenders Act also allows for youth
justice conferences, which can be used when
a young offender admits to an offence and con-
sents to having it dealt with by a conference of
different parties. The purpose of a youth justice
conference is to allow the offender to take some
responsibility for their actions, to promote better
family understanding of the issues and to provide
the offender with appropriate support services to
assist them to overcome their difficulties.
Youth justice conferences also enhance the
rights of victims in the criminal justice process
and ultimately make decisions that should reflect
the offender’s rights and take into account their
needs. Conferences hold the offender accountable,
but empower families and victims in decisions
about a child’s offence and, where suitable, make
reparations to the victim.
Those able to participate in a conference are
the child, a conference convenor, an investigating
C rim e
Effectiveness
The Young Offender’s Act has been well received
by commentators. It embraces the welfare model
of juvenile justice and encourages offender
rehabilitation over traditional means of dealing
with crime. It uses diversionary measures to find
solutions to juvenile offending. Repeat offenders
can also be dealt with by the Act, for example
through a second and or third appearance at a
youth justice conference.
One of its criticisms, however, is that it is not
being used for a wide enough range of offences
and therefore is excluding some young offenders
from the benefits that conferencing offers. For
example, the Shopfront Youth Legal Centre in
response to a 2003 review of the NSW Law Reform
Commission on sentencing of young offenders
argued that youth justice conferencing could be
suitable for even very serious offences (see www.
theshopfront.org / documents / ReviewOf YOA.
pdf for the full response). It is not a ‘soft option’
but possibly works best in more serious offences
because the young offender is obliged to consider
the consequences of his or her actions, in parti-
cular the harm caused to the victim.
Figure 5.10 The Shopfront Youth Legal Centre is a NSW-based
service that can advise young people on a range of legal matters.

Cha pter 5: Young offenders 111

 R ESEARCH 5.1
The NSW Juvenile Justice website provides
more information on youth justice
conferencing, including a sample video of a
conference. Visit the website and answer the
questions below: www.djj.nsw.gov.au/
conferencing.htm.
The ef fec t iveness of t he c ri m i n a l
j u s t ice s ys te m w he n dea l i n g
w i t h you n g o f f e n de r s
‘Children today love luxury too much. They have
execrable manners, flaunt authority, have no res-
pect for their elders. They no longer rise when their
parents or teachers enter the room. What kind of
awful creatures will they be when they grow up’?
Socrates, 469–399 BCE
Even in Socrates’ day, adults tended to think the
worst of children and young people at times. On
its face, the rate of young offenders compared to
adult offenders would seem to justify that view. But
it could also suggest that on the whole the criminal
justice system is failing younger people.
From a young age, children can do little to con-
trol the circumstances they find themselves in –
children who have been neglected or mistreated,
or received poor and dysfunctional parenting
education, might find it challenging to make good
decisions as they grow older. The age of criminal
liability recognises a scaling level of responsibility
as a person ages, up until adulthood. And as
expressed in the purposes of the Children’s (Criminal
Proceedings) Act 1987 (NSW), and attempted
through programs available in the Young Offenders
Act 1997 (NSW), rehabilitation for such young
people is intended to be the primary concern for
the criminal justice system and young offenders.
Statistics from the Australian Institute of Crimi-
nology show that the rate of detention for young
112 C am b r id g e L e g a l S t u d ie s – HS C
1 Explain the difference between the
following terms: warning, caution and youth
justice conference.
2 Describe the process and the parties
involved in a youth justice conference.
3 Assess the effectiveness of youth justice
conferences compared to traditional
methods of dealing with young offenders.
offenders has decreased since 1981 by over 50%.
In 2007, 10.3% of a total 6488 young offenders who
appeared before the NSW Children’s Court were
given a control order, and in Australia, between
900–1000 young people are held in custody on an
average day.
Yet in the Australian Institute of Criminology’s
2009 study, The Specific Deterrent Effect of
Custodial Penalties on Juvenile Offenders, it found
no difference in the rate of reoffending: young
offenders given a custodial sentence were no less
likely to reoffend than those given another form
of sentence. The report states that the ‘adverse
effects of imprisonment on employment outcomes
and the absence of strong evidence that custodial
penalties act as a specific deterrent for juvenile
offending suggest that custodial penalties ought to
be used very sparingly with juvenile offenders’.
The Young Offenders Act has been particularly
successful in diverting young people away from
custodial sentences. The Children’s Court has the
power to refer young people who appear before
it to youth justice conferencing, and some 50%
of conferences have been referred by the Court.
While this could suggest that matters might be
unnecessarily referred to the Children’s Court when
they could be better dealt with elsewhere, it still
provides an impor tant alternative to incarceration
throughout the criminal justice process.
 Yet other aspects of the criminal justice system
continue to enforce the justice model over the wel-
fare model, without due consideration to the impact
on young offenders. For example, see the following
Media Clip on the effect of recent changes to bail
laws and their unforeseen effect on young offen-
m e d i a cl i p
ders. As with all areas of the law, the law concerning
young offenders requires a careful balance. Yet as
studies have continuously shown, and as Australia’s
international obligations and the children’s sen-
tencing legislation impose, rehabilitation of young
offenders must remain the primary focus.

Bail law means jail for more juveniles Under the amended Bail Act, in most cases adults
and children can make only one application for bail.
By Adele Horin

Sydney Morning Herald, 2 July 2009
Most young people jailed for breaching bail
conditions have not committed another crime but
have broken curfews or failed to stay with parents,
a controversial report by the NSW Bureau of Crime
Statistics and Research shows.
The report, previously classified ‘cabinet-in-
confidence’ until its release yesterday, provides
strong statistical backing for those arguing for
reform of NSW bail laws as they apply to children.
It shows amendments designed to toughen the
Bail Act enacted in December 2007, combined with
increased police activity, contributed to a 32 per
cent rise in the number of juveniles on remand
between 2007 and 2008. The time young people
spent in jail before they faced a court hearing also
lengthened dramatically.
‘The increase in juvenile remand is a matter for
concern,’ the report says, ‘not only for reasons of
cost, but also because of the potential impact of
being held in custody on a young person’s family
relationships, education and work.’
Only 34 per cent of young people jailed for
breaching bail committed a further offence, but
66 per cent had been locked up for breaching other
bail conditions, most commonly not complying with
a curfew.
The report said the cost of keeping juveniles on
remand rose over the 12 months by 29 per cent to
$47.2 million but there was no evidence the increase
in juveniles on remand had contributed to the fall in
property crime in NSW.
In a long discussion in cabinet on Tuesday about
the number on remand, concern was raised about
NSW having the highest juvenile incarceration rate
and ministers recognised the serious impact of the
Bail Act, the Herald has learnt.
C rim e
Magistrates frequently impose tougher bail
conditions on children than on adults, including
restricted movements and curfews.
Children breaking the conditions are put into
custody, pending a court hearing for the original
offence.
The report found juveniles averaged 35 days on
remand after the Act was amended, compared to
about 10 days previously.
The president of the Law Society of NSW, Joe
Catanzariti, called for the Government to heed the
report’s independent findings, and repeal the
amendments as they apply to children. ‘Increasing
their incarceration from 10 days to five weeks does
not help them,’ he said. ‘Nothing is being achieved
except an increase in the remand population which
is a bad thing.’
The report, Recent Trends In Legal Proceedings
For Breach Of Bail, Juvenile Remand And Crime,
written by Sumitra Vignaendra, Steve Moffatt, Don
Weatherburn and Eric Heller, was the bureau’s first
report in 20 years to have been classified as ‘cabinet-
in-confidence’ rather than promptly released.
R EVI EW 5 . 8
Read the Media Clip above and answer
the following questions:
1 Identify what changes were made to
the Bail Act 1978 (NSW).
2 Describe the effect the changes have
had on young offenders in NSW.
3 Evaluate the implications of these
changes for young offenders in the
criminal justice system.

Cha pter 5: Young offenders 113

 s There are two main approaches to young
offenders in the criminal justice system: the
welfare model and the justice model.
s The law recognises differing levels of criminal
responsibility for young offenders on a scale
of age.
C ha p te r s u m m a ry
s Children and young people have additional
rights and protections in the face of police
powers as the law recognises their higher
level of vulnerability.
s The Children’s Court has jurisdiction to hear
any offence other than serious indictable
offences involving children and young people.
s Children may receive a range of penalties
that differ from adult penalties, from fines to
control orders in a detention centre.
M ul ti p l e- c hoi ce q ues ti ons
1 Doli incapax refers to which of the following?
a the Children’s Court jurisdiction to hear
matters pertaining to young offenders
b the incapacity to cause criminal harm
c mitigating factors when sentencing
d the incapacity of young offenders to
make decisions about their future in court
proceedings
2 Of the following statements, which is correct
with respect to young offenders under arrest?
a they cannot have their fingerprints taken
b they are not able to be interviewed
c they must have an interview friend present
d they will have a criminal record
3 A “warning” under the Young Offenders Act
1997 (NSW) is:
a an informal verbal reprimand without
consequences
b a formal recorded admission by consent
with potential consequences
c an official recorded notice without
conditions
d an informal written reprimand without
conditions
114 C am b r id g e L e g a l S t u d ie s – HS C
s When handing down penalties for children
and young people, the court must take into
account the offender’s age and chances of
rehabilitation.
s Judges may consider other objectives of
punishment if the offence is particularly
serious.
s Diversionary programs for young offenders
exist in the use of warnings, cautions and
youth justice conferences.
s The Children’s Court and diversionary
programs have been reasonably successful in
relation to young offenders, but there is still
significant room in the criminal justice system
for improvement.
4 Which of the following statements is correct
with respect to the jurisdiction of the
Children’s Court?
a it can hear committal proceedings and
minor matters against children and young
people
b it can hear committal proceedings and
all but serious indictable matters against
children and young people
c it can hear serious indictable matters and
committal proceedings against children
and young people
d it can hear all matters and committal
proceedings against children and young
people
5 Which of the statements below is correct
with respect to the types of penalties young
offenders can receive?
a dismissal, fine, community service order,
adjournment, control order, youth justice
conference, life imprisonment
b dismissal, fine, community service order,
adjournment, home detention, control
order, youth justice conference
c dismissal, community service order, fine,
control order, youth justice conference
d dismissal, fine, community service order,
suspended sentence, adjournment, control
order, youth justice conferences
 1 Describe the law in NSW relating to the age
of criminal responsibility. Explain why the laws
differ between children and younger people.
C ha p te r s u m m a ry ta s k s

2 Identify the rights of young offenders when

questioned and arrested and discuss how they
differ from the rights of adults.
3 Discuss why young people are treated
differently in the criminal justice system.
Provide examples in your answer.

C rim e
4 Analyse the main purposes of youth
sentencing and explain how they differ from
adult sentencing.
5 Evaluate the effectiveness of the criminal
justice system in dealing with young offenders
with respect to two issues studied in this
chapter.

Cha pter 5: Young offenders 115

 CHAPTER 6
International crime
chap te r o b j e cti ve s

In this chapter, students will:

s define international crime
s describe a range of legal measures used to deal with
international crime
s evaluate the effectiveness of the domestic
and international legal systems in dealing with
international crime
k ey ter ms/vocab ul ary

Australian Federal Police (AFP)

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

116 C am b r id g e L e g a l S t u d ie s – HS C
 rel ev ant l aw
I MPORTANT LEGIS L AT ION
Crimes Act 1914 (Cth)
War Crimes Act 1945 (Cth)
Geneva Conventions Act 1957 (Cth)
International Criminal Court Act 2002 (Cth)
International Criminal Court (Consequential
Amendments) Act 2002 (Cth)
Australian Federal Police Act 1979 (Cth)
Criminal Code Act 1995 (Cth)
Australian Crime Commission Act 2002 (Cth)
Extradition Act 1988 (Cth)
S I GNIFICANT TREAT IES , PR OT OC OL S
A N D CONVENT ION S
Rome Statute of the International Criminal Court
Convention on the Prevention and Punishment
of the Crime of Genocide
Geneva Conventions
United Nations Convention against Transnational
Organised Crime
od d l a w
C rim e
Maritime law is an area of international law
that deals with the legal relationship of ships
in international waters. Under maritime law,
a ship’s flag will determine the source of the
law. For example, a ship legitimately flying
the Spanish flag in the Persian Gulf would be
subject to Spanish maritime law, whereas a ship
flying a Norwegian flag in Australian waters will
be subject to Norwegian maritime law.
This also applies to criminal law governing
the ship’s crew – for example, an assault
committed among the Norwegian ship’s crew
while in Australia’s waters would still be subject
to Norwegian maritime law. A ship must show,
however, that it was flying the flag legitimately
and with more than insubstantial contact
between the ship and the flag.
Cha pter 6: Interna tion al cri me 117

state sovereignty
the authority of an
independent state to
govern itself (e.g. to
make and apply laws;
impose and collect
taxes; make war and
peace; or form treaties
with foreign states)
crime against
the international
community
a most serious
crime of concern
to the international
community as a
whole, and recognised
as punishable by
the international
community
transnational crime
crimes that occur
across international
borders, either in origin
or effect
international crime
a broad term covering
any crime punishable
by a state with
international origin
or consequences, or
a crime recognised
as punishable by
the international
community
Figure 6.1 International crime can take many forms.
118 C am b r id g e L e g a l S t u d ie s – HS C
D e f i n i n g i nt e r n a t i o n a l c ri m e
Historically, crime has been an issue that states
have dealt with inside their own borders. Societies
within individual nation states have determined
which acts are punishable as crimes, and how
those crimes are dealt with and punished in their
local criminal jurisdiction. As a result, criminal
laws have traditionally reflected the dominant
social and cultural values of each country, varying
from state to state. This concept was discussed in
Chapter 1 in the context of defining crime.
Keeping criminal laws defined and contained
within national boundaries is for most states a
crucial issue of state sovereignty. Many countries
view the criminal law as a critical area for indivi-
dual states alone to decide, without any inter-
ference from outside influence. The legal systems
and constitutions of many countries often prohibit
any encroachment into state jurisdiction and laws.
But over time societies have evolved, with
increased co-operation between states and
changes in the way that states see their role in the
international community. Together with such co-
operation has been a growing recognition that
certain actions committed within sovereign state
jurisdictions may be so extreme, and so univer-
sally condemned, as to constitute a crime that
ought to be universally enforced – a crime against
the international community.
In more recent years, accompanying the
advent of globalisation together with increased
international travel and advances in technology,
opportunities for crimes traditionally committed
locally have increased and will often cross national
borders. Such transnational crimes have become
increasingly problematic within domestic borders,
where the crimes might originate or where their
effects might be felt.
‘International crime’ is a broad term that
could cover any such crime with international
origin or consequences. There are many types
of international crimes, and many international
crimes have existed since before states themselves
were even formed. But until only recently most
such crimes have not been considered outside the
context of domestic law.
International crime poses considerable chal-
lenges legally, financially and socially. Increased
co-operation between nation states is funda men-
tal if aspects of international crimes are to be
addressed and justice to be achieved. This chapter
will explore some of the issues related to inter-
national crime, describe a range of measures that
the international community has implemented to
combat international crime, and evaluate the
effectiveness of these measures.
C a tegories of i nternat iona l c ri me
International crimes need to be distinguished from
crimes that are mere a violation of domestic juris-
diction with some international element. For
example, an Australian citizen travelling in a for-
eign country who steals a car or assaults another
person will be criminally liable in accordance with
that country’s own laws – and liable to any appli-
cable sentence that country imposes. Likewise, a
foreign citizen in Australia will be subject to
Australia’s criminal laws. This is simply a case of
domestic rather than international crime.
Similarly, there are instances where Australian
legislators have deemed it necessary to criminalise
acts committed by Australians travelling abroad -
one example of such a law is under Part IIIA of
the Crimes Act 1914 (Cth) on Child Sex Tourism,
which makes it an offence for an Australian citizen
or permanent resident to engage in sexual activity
with a child under 16 years old while overseas.
Even though the criminal act occurs in another
jurisdiction, the offender is still liable under
Australian domestic law, or under foreign criminal
law if the act is also a crime in that jurisdiction.
International crimes, however, differ in that
they involve some crossing of international
borders in the commission or planning of the
crime, or in some way involve a breach of the
criminal standards imposed by the international
community. International crime can be broadly
divided into two main categories:
s crimes against the international community
s transnational crimes.
Crimes against the
international community
Crimes against the international community are
an entirely different class of crimes to domestic
crimes. Unlike domestic or transnational crimes,
crimes against the international community are a
collection of offences that are recognised by the
international community as being of universal
concern. They include some of the most extreme
crimes possible – crimes that are deemed so
serious that they are condemned by the whole
international community and may be punishable
internationally.
There is no fully agreed list of such crimes. Many
countries will disagree about the specific aspects of
the offence, or about the inclusion of certain
C rim e
crimes, but they almost always include certain
crimes such as genocide, war crimes, piracy (at genocide
acts which have
sea), hijacking of aircraft and slave trading.
the intention of
The prosecution of crimes against the inter- destroying all or part
national community can be controversial. Such of a national, ethnic,
racial or religious
crimes may be committed in the context of a
group
brutal war. They may be highly politically moti-
universal
vated, or they may (in some contexts) have even jurisdiction
been ordered or committed by the state itself. where a state
claims a rare right
States can sometimes be unwilling or unable to
to prosecute a
prosecute individuals for these crimes, as in some person for actions
instances those responsible may still be in posi- committed in
another state, based
tions of power. In other instances, the offenders on the common
may have fled to a different jurisdiction to attempt international opinion
that the alleged
to escape prosecution.
crime is so serious
The importance of all states condemning that normal laws of
crimes against the international community is that criminal jurisdiction
do not apply
the criminals may be unable to escape prosecution
simply because they are still in power or have fled
outside the jurisdiction. Other states condemning
the action may claim a right to prosecute the
offender under a claim of universal jurisdiction,
where another state claims a right to prosecute a
person based on the common international belief
that the alleged crime is so serious that normal
laws of criminal jurisdiction do not apply. Some
states, such as Belgium, Spain and the United
Kingdom may be more likely to assert a claim of
universal jurisdiction over such serious criminals
– these cases are generally very high-profile and
politically controversial.
Jurisdiction over universally condemned crimes
represents a fundamental change to the tradi-
tional view of state sovereignty – where criminal
Cha pter 6: Interna tion al cri me 119
 International Criminal
Court (ICC)
an independent
international court
established by the
Rome Statute in July
2002 to prosecute and
try international crimes
of the most serious
nature
Rome Statute
the Rome Statute
of the International
Criminal Court, an
international treaty
that establishes the
International Criminal
Court
crimes against
humanity
acts of a sanctioned
widespread or
systematic attack
against any civilian
population
war crimes
actions carried out
during a time of war
that violate accepted
international rules of
war
Figure 6.2 The International Criminal Court in The Hague, Netherlands
120 C am b r id g e L e g a l S t u d ie s – HS C
jurisdiction over certain crimes and individuals is
forfeited on the basis that the acts are so extreme
and universally condemned that they can no
longer be permitted under the laws of any state.
International Criminal Court
(ICC)
Perhaps the most important development in the
law of crimes against the international community
was the establishment of the International
Criminal Court (ICC) in 2002 in The Hague,
Netherlands. The court’s establishment followed
years of international negotiations and deliber-
ations, with the eventual signing of a treaty at a
1968 UN conference in Rome. The treaty became
known as the Rome Statute of the International
Criminal Court, or ‘Rome Statute’. The treaty
came into force in July 2002, when the requisite
number of states (60) had formally ratified it. As of
2010, there were over 110 state parties to the ICC.
The ICC was established by the international
community as a permanent court and a separate
international entity. It is independent from the
United Nations or from any nation state. It consists
of 18 judges who each come from different signa-
tory countries, who operate in pre-trial, trial and
appeals divisions. The Rome Statute gives the
ICC the jurisdiction over three broad categories
of international crime: genocide, crimes against
humanity and war crimes. These are discussed
in more detail in the following pages. The ICC also
has jurisdiction to prosecute crimes of aggression,
but member states have not yet agreed on its defi-
nition (this agreement may have occurred since
the time of publication).
The ICC is a court of last resort. It is intended to
complement rather than exclude existing national
criminal justice systems – it can only prosecute a
case when state courts cannot or are unwilling to
do so. This means that the main responsibility for
such crimes, for investigation and prosecuting, is
still retained by the member states. The ICC can
only exercise jurisdiction where:
s the accused is a national of a member state of
the treaty
s the alleged crime occurred in the territory of a
member state, or
s the situation is referred to the ICC by the UN
Security Council.
Where the ICC convicts an individual, the court
can impose a sentence of imprisonment up to life
imprisonment (but not the death penalty), which
will be served in a state prison designated by the
court. In addition to imprisonment the court can
order a fine or forfeiture of assets.
R EVI EW 6 . 1
Read the Preamble to the Rome Statute of the
International Criminal Court in the Legal Info
box and answer the following questions.
1 Identify some of the historical incidents
the Preamble refers to in its opening
paragraphs.
2 Describe the nature of crimes that the
Rome Statute aims to include.
3 Describe the main duty that the Rome
Statute imposes on member states.
4 Identify the Rome Statute’s position on
international war.
5 Explain how the Rome Statute interacts
with state jurisdictions.
 l e g a l i n fo
Preamble to the Rome Statute of the International Criminal Court

The States Parties to this Statute, Reaffirming the Purposes and Principles of the

Conscious that all peoples are united by common Charter of the United Nations, and in particular that

bonds, their cultures pieced together in a shared all States shall refrain from the threat or use of force

heritage, and concerned that this delicate mosaic against the territorial integrity or political indepen-

may be shattered at any time, dence of any State, or in any other manner incon-
sistent with the Purposes of the United Nations,
Mindful that during this century millions of children,
women and men have been victims of unimaginable Emphasizing in this connection that nothing in this

atrocities that deeply shock the conscience of Statute shall be taken as authorizing any State Party

C rim e
humanity, to intervene in an armed conflict or in the internal
affairs of any State,
Recognizing that such grave crimes threaten the
peace, security and well-being of the world, Determined to these ends and for the sake of
present and future generations, to establish an inde-
Affirming that the most serious crimes of concern
pendent permanent International Criminal Court in
to the international community as a whole must not
relationship with the United Nations system, with
go unpunished and that their effective prosecution
jurisdiction over the most serious crimes of concern
must be ensured by taking measures at the national
to the international community as a whole,
level and by enhancing international cooperation,
Emphasizing that the International Criminal
Determined to put an end to impunity for the
Court established under this Statute shall be
perpetrators of these crimes and thus to contribute
complementary to national criminal jurisdictions,
to the prevention of such crimes,
Resolved to guarantee lasting respect for and the
Recalling that it is the duty of every State to exercise
enforcement of international justice,
its criminal jurisdiction over those responsible for
international crimes, Have agreed as follows…

Genocide Genocide has long been condemned by the inter-

Article 6 of the Rome Statute gives the ICC crimi-
nal jurisdiction over acts of genocide that occurred
since July 2002. Genocide includes various brutal
acts intended to destroy all or part of a national,
ethnic, racial or religious group. The Rome Statute
defines the crime of genocide as including:
s killing members of the group
s causing serious bodily or mental harm to mem-
bers of the group
s deliberately inflicting conditions of life cal-
culated to bring about the group’s physical
destruction
s imposing measures to prevent births within the
group, or
s forcibly transferring children of the group to
another group.
national community as a crime so despicable and
unjustifiable that the international community
has a responsibility to punish it. Acts of genocide
were criminalised in one of the first ever treaties
established by the United Nations – the Convention
on the Prevention and Punishment of the Crime of
Genocide, first signed in 1948.
Genocide is extremely difficult to prove and
cases will involve enormous amounts of documen-
tary evidence, forensic evidence, review of killings
and military orders, testimonies, expert opinions
and others. It can involve accusations of killings of
countless people, from hundreds to millions. The
court will need to prove beyond a reasonable
doubt an intention to destroy all or part of the
particular group.

Cha pter 6: Interna tion al cri me 121

 Figure 6.3 In 1994, about 500 000 of Rwanda’s Tutsis
and Hutu political moderates were massacred by the
Hutu-dominated government over the space of 100 days.
The church of Nyamata, pictured above, ceased to be a
church when 10 000 people were murdered there.
Figure 6.4 During World War II the Nazi party committed acts
of genocide on members of the Jewish community and other
groups.

Nuremburg trials
a series of military
tribunals that took
place from 1945 to
1946; they were held
by the victorious allied
powers in Nuremburg,
Germany after the
Second World War;
the trials are famous
for their prosecution of
prominent leaders of
defeated Nazi Germany
for crimes against
humanity and war
crimes
There are numerous tragic examples of geno-
cide throughout history. However, claims of geno-
cide are often extremely controversial and in some
cases vehemently opposed by the groups accused
of perpetrating the crime. The most universally
recognised genocide is the killing of six million
European Jews in the Second World War, under a
program of deliberate extermination that was
planned and executed by the National Socialist
German Workers Party (also known as NSDAP or
the Nazi Party), and led by Adolf Hitler. Scholars
suggest that under the widest definition of geno-
cide, including deliberate extermination of Slavs,
Romani, homosexuals, the mentally ill, political
opponents and Jehovah’s Witnesses, the death toll
was as high as 17 million.
Prior to the establishment of the ICC in 2002,
genocide, as well as war crimes and crimes against
humanity, were often dealt with by the interna-
tional community in specific ad hoc tribunals set
up to prosecute particular incidents, for example
the International Criminal Tribunal for the Former
Yugoslavia (ICTY) and International Criminal
Tribunal for Rwanda (ICTR). Since its creation,
the ICC has not yet succeeded in convicting any
person of genocide.
Crimes against humanity
Crimes against humanity are a broad range of
crimes referring to acts committed as part of a
‘widespread or systematic attack’ against any civi-
lian population. Included under Article 7 of the
Rome Statute, the scope of crimes against human-
ity is significantly broader than genocide – see the
definition in the Legal Info box on the right.
Unlike genocide, which requires proof of ‘inten-
tion to destroy’ all or part of a group (national,
ethnic, racial or religious), crimes against human-
ity can occur against any civilian population, so
long as the acts are widespread or systematic. The
Rome Statute requires multiple commission of any
of the listed acts, which needs to be under a state
or organisational policy to commit such acts.
In effect, genocide and crimes against humanity
can involve the same or similar devastating acts.
Under the current definition, crimes against

122 C am b r id g e L e g a l S t u d ie s – HS C
humanity may be easier to prosecute
by the ICC because of the broader defi-
nition and issues of proof. The fact that
the term ‘genocide’ holds such enor-
mous political weight also means that
political agreement between states to
prosecute it may be difficult to obtain.
While there might be important
symbolic differences between calling
something ‘genocide’ versus a ‘crime
against humanity’, it does not lessen the
humanity that were charged included
reference to genocide, genocide was
only later separated and individually
defined by the 1948 Convention on the
Prevention and Punishment of the Crime
of Genocide.
Formerly, crimes against humanity
were considered to have been com-
mitted within the context of war,
although the Genocide Conventions
contain no such restrictions. This was
R EVI EW 6 . 2
Consider the Rome Statute’s definition
of crimes against humanity below and
answer the following questions:
1 Identify some of the differences
between the crime of genocide
and crimes against humanity.
Which additional acts are explicitly
included?
2 Explain some of the reasons why
crimes against humanity might be

severity of the crime. Initially, genocide
was considered a type of crime against
humanity. In the founding Nuremburg
trials following the Second World War,
the allied powers prosecuted promi-
nent leaders of Nazi Germany for
crimes against the international com-
munity. The founding documents of
the tribunals charged the leaders for
crimes against humanity, as well as war
crimes. Although the crimes against
l eg al i nfo
because the crimes were generally
considered in addition to war crimes
arising from the same historical inci-
dents. However, the Appeals Chamber
of the International Criminal Tribunal
for the Former Yugoslavia (ICTY) has
since clarified that crimes against
humanity do not have to be committed
within the context of an armed conflict.
The current ICC definition contains no
restriction to a war context.
C rim e
easier to prosecute than the crime
of genocide.
3 Article 7(2) of the Rome Statute
contains extended definitions
of the acts outlined above. You
can find the Rome Statute on the
International Criminal Court’s
website: www.icc-cpi.int. Looking
at Article 7(2), describe what is
meant by the terms ‘extermination’,
‘torture’ and ‘forced pregnancy’.

Crimes against humanity – Article 7 of the Rome Statute

For the purpose of this Statute, ‘crime against
humanity’ means any of the following acts when
committed as part of a widespread or systematic
attack directed against any civilian population, with
knowledge of the attack:
(a) Murder;
(g) Rape, sexual slavery, enforced prostitution,
forced pregnancy, enforced sterilization, or any
other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or
collectivity on political, racial, national, ethnic,
cultural, religious, gender as defined in paragraph 3,

(b) Extermination; or other grounds that are universally recognized as

(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of
physical liberty in violation of fundamental rules of
international law;
(f) Torture;
impermissible under international law, in connection
with any act referred to in this paragraph or any
crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character
intentionally causing great suffering, or serious
injury to body or to mental or physical health.

Cha pter 6: Interna tion al cri me 123


Geneva Conventions
four treaties and three
additional protocols
that set the standards
in international law for
the humane treatment
of the victims of war
c as e s p ac e
War crimes
In its broadest definition, a war crime is an action
carried out during the conduct of a war that violates
accepted international rules of war. There are a
number of international agreements that outline
actions in war constituting criminal violation
– the most well known of which is the Geneva
Conventions. The Geneva Conventions date back
as far as 1864 and constitute a series of treaties
and protocols to the treaties that set standards
for humanitarian treatment of the victims of war,
such as civilians, the sick and wounded, prisoners
of war and medical or religious personnel.
Article 8 of the Rome Statute also provides an
extensive list of activities that can constitute war
crimes. The actions must have taken place during
an armed conflict, either international or domestic,
and in particular the ICC has jurisdiction where the
acts are part of a plan or policy, or as part of a
large-scale commission of war crimes.
The Rome Statute includes as war crimes any
‘grave breaches’ of the Geneva Conventions, as
well as a long list of serious violations of the laws
of international armed conflict. It is universally
understood that during the hostilities of armed
conflict there is a need to protect innocent civi-
lians and their communities from any violence
not justified by military or civilian necessity.
For example, war crimes listed under the Rome
Statute include:
s torture or inhuman treatment, including bio-
logical experiments
s willful killing or willfully causing great suffering
or serious injury
s extensive and militarily unjustified destruction
or appropriation of property
s intentionally directing attacks at civilian popu-
lations or objects
s intentionally directing attacks at humanitarian
personnel or equipment.

Prosecution of Sudanese President Omar al-Bashir

On 14 July 2008, prosecutors at the International forcible transfer, torture, and rape. The charge of
Criminal Court (ICC), filed a number of charges genocide had not been pursued. This was the first
against Sudan’s President Omar al-Bashir over arrest warrant issued by the ICC against a sitting
a series of on-going atrocities in Sudan. The head of state.
situation had received large-scale international
attention and intensive campaigning by political
leaders, human rights groups and high profile
celebrities.
The charges included 10 charges of war crimes,
three of genocide, five of crimes against humanity
and two of murder. Prosecutors claimed that al-
Bashir ‘masterminded and implemented a plan to
destroy in substantial part’ three tribal groups in
Darfur because of their ethnicity.
On 4 March 2009, the ICC issued a warrant
for President al-Bashir’s arrest for war crimes,
intentionally directing attacks against a civilian
population and pillaging, and for crimes against
humanity, including murder, extermination, Figure 6.5 Sudanese President Omar al-Bashir

124 C am b r id g e L e g a l S t u d ie s – HS C
 RES E A RCH 6.1
Visit the site of the International Criminal
Court at www.icc-cpi.int.
1 Research Article 8 of the Rome Statute and
identify a list of activities considered to be
war crimes.
2 Research the circumstances that led to
the issuing of the arrest warrant for the
Sudanese President Omar al-Bashir and
identify any recent developments in the case.

C rim e
Transnational crimes
Transnational crimes are crimes that take place
across international borders. Unlike crimes
against the international community, which are
a class of extremely serious crimes punishable
internationally, transnational crimes are similar
to domestic crimes, such as fraud, hacking or
drug trafficking, but involve movement across
international borders as an element of the criminal
act. Transnational crimes may originate in one
country but be completed in another, or may be
committed in one country but the result or injury
may occur in another.
Some transnational crimes have been around
for centuries, whereas others have been made pos-
Figure 6.6 Acts of physical and mental abuse
sible by the development of modern technologies. committed by US military personnel in 2004
Due especially to the rise of rapid international at Abu Ghraib prison, Iraq, were claimed
telecommunications and international travel, local to constitute war crimes and crimes against
authorities and policy makers increasingly have humanity. Acts included torture, rape and
to confront offences and offenders whose origins homicide.

are outside their jurisdiction. The move to a global

economy as well as increased volume and diversity
of migration has also led to more transnational
opportunities for crime.
Some of the main types of transnational crimes
include:
s human trafficking and people smuggling
across borders
s international fraud and white collar crime – for
example, tax evasion or money laundering
s transnational internet crimes – including data
theft, internet fraud, copyright infringements or
spam networks
s international terrorism – including cyber-
terrorism such as disruption of infrastructure
including electrical systems or computer
networks
s creation and trafficking of child pornography, human trafficking
the illegal movement
or transnational trade in illegal substances,
of people across
including international air, shipping and postal borders by force,
networks. coercion or deceptive
means
It is impossible to itemise all forms of trans-
national crime as there may be a number of dif-
ferent crimes and parties involved and various

Cha pter 6: Interna tion al cri me 125

 methods employed to commit the crime. Some
crimes may cross many borders – for example,
terrorism may be planned in one country, training
can occur in another, funds or materials sourced
in another country, while the act itself is carried
out in the target country. Organised crime rings
can have operations across many countries and
various elements of the crimes may take place at
many different locations.
Some of the causes of transnational crimes
might include:
s differences in socioeconomic conditions
between countries, for example human traf-
ficking or even internet fraud originating in less
advantaged countries
s the desire for prohibited goods or
services, where suppliers are based
in one country and consumers in
R E VIE W 6.3 another
1 Explain how transnational s differences in political or ideologi-
crimes differ from ordinary cal viewpoints, for example, inter-
domestic crimes. national terrorism or international
2 Identify some of the types hacking for political or ideological
of transnational crime. reasons
3 Assess some of the causes s hope that the transnational element
of transnational crimes and will prevent detection, for example,
the difficulties in combating international money laundering or
them. tax evasion
Dea l i n g w i t h i nternat iona l c ri me
Dealing effectively with international crime
requires a combined approach between domestic
and international measures. The methods used to
deal with crimes against the international com-
munity and transnational crimes are considered
separately below.
Domestic measures
Domestic responses to international crime are
limited by jurisdiction. Australian law enforcement
126 C am b r id g e L e g a l S t u d ie s – HS C
s opportunistic desire for power or financial
gain.
Transnational crimes will usually be prosecuted
under the law of one or another country’s domestic
jurisdiction. For many crimes, the elements of the
crime will not be complete until the border has
been crossed, and so the target country will often
be the enforcer, through local legislation and law
enforcement in the target country.
The nature of transnational crime can make
prosecution very difficult. For example, a person
in Nigeria who sends bulk spam or fraudulent
emails to Australian addresses will be very difficult
for Australian law enforcement authorities to track
down or prosecute. Similarly, the creation and
dissemination of child pornography throughout the
world is a major concern – authorities in Australia
and around the world find it difficult to break
through the anonymity of child pornography rings
that operate throughout many different countries.
Due to the difficulties in trans-border detection
and enforcement of criminal laws, many such
crimes are now underpinned by international co-
operation agreements between affected countries.
These will usually involve a pair or group of
countries affected in some way by the trans-border
crime. Some of the methods used to enforce these
laws will be discussed below.
cannot operate in a foreign country, Australian
courts do not have jurisdiction over crimes
committed under foreign laws and Australian
parliaments cannot legislate on the laws of other
countries. As a result, the effectiveness of the
Australian legal system to respond is inhibited
without co-operation from foreign countries.
There are specific circumstances where excep-
tions may be possible, for example where express
permission has been granted for the presence of
Australian law enforcement by the host country
(e.g. assisting in crisis relief efforts), where
parliament legislates on actions involving Austra-
lian residents abroad (e.g. child sex tourism laws),
or where a court claims rare jurisdiction under a
rule of international law (e.g. universal jurisdic-
tion). However, many other important actions
have been taken in Australia to combat interna-
tional crime and these are considered below.
Crimes against the
international community
The most significant recent development in
Australia for dealing with crimes against the
international community was the signing and
ratification of the Rome Statute. Australia was one
of the first signatories of the Rome Statute, signing
on 9 December 1998. Australia ratified the statute
on 1 July 2002, which was the date the statute
came into force internationally.
Prior to the introduction of the Rome Statute,
Australia had legislated to criminalise a number of
recognised crimes against the international com-
munity. For example, the War Crimes Act 1945
(Cth) and in particular the Geneva Conventions Act
1957 (Cth), which outlawed the recognised war
crimes listed in the Geneva Conventions. Coinciding
with Australia’s ratification of the Rome Statue,
the federal government passed the International
Criminal Court Act 2002 (Cth) and the International
Criminal Court (Consequential Amendments) Act
2002 (Cth), to ensure that Australia’s domestic
laws would comply with the statute. In addition
to procedural amendments, the legislation intro-
duced a new section to Commonwealth Criminal
Code, Chapter 8 – Offences against Humanity and
Related Offences. The new section created domestic
offences in Australia for all the crimes listed in the
Rome Statute. It also incorporated some of the
existing offences, such as many of the previous
war crimes listed under the Geneva Conventions
Act 1957 (Cth).
As a consequence, any crime against the inter-
national community outlawed by the Rome Statute
is also criminalised within Australia. The ICC’s role
as a court of last resort was discussed earlier in
this chapter. The ICC is intended to complement
rather than exclude existing national criminal
justice systems and it can only prosecute a case
when state courts cannot or are unwilling to do
so. Australia has primary jurisdiction to investigate
and prosecute such crimes in Australian territory
or involving Australian citizens.
Australia also has a role to play as a state party
to the ICC and actively participates in discussions
among the state parties and in administration of
the court. At the time of publication, there have
C rim e
not yet been any Australian judges appointed to
the court. Under the Australian legislation, the
Commonwealth Attorney-General must report
annually on the operations of the ICC, and on any
impact to the Australian legal system. According to
the report of the Attorney-General’s Department
for 2008–09, there have so far been no Australian
prosecutions for crimes under the Act, and the
ICC has had ‘no discernable impact’ on Australia’s
legal system.
Transnational crime
The Australian Government, like many govern-
ments around the world, has moved in recent
years to combat the rise of transnational crimes.
The following are some of the measures in place
to monitor and respond to issues of transnational
crime.
A U STRA L I A N FEDE RA L PO L I C E (A FP )
The Australian Federal Police (AFP) was estab- Australian Federal
Police (AFP)
lished under the Australian Federal Police Act 1979
Australia’s
(Cth) to enforce Commonwealth criminal law Commonwealth
and to protect Australia’s interests from crime in police force
established to enforce
Australia and overseas. It works closely with a
Commonwealth
range of law enforcement bodies at state, territory, criminal law and to
Commonwealth and international levels. protect Australia’s
interests from crime in
The role of the AFP has grown considerably
Australia and overseas
in recent years with the growth in transnational
crime. In addition to its many domestic duties, the
AFP is engaged in various international activities
in the region and worldwide. This includes posts
in more than 25 countries, deployment of Austra-
lian police for international capacity-building,
Cha pter 6: Interna tion al cri me 127
 Figure 6.7 The AFP played an important role in investigating and arresting suspects of the 2002 Bali
bombings in Indonesia.
monitoring and peacekeeping, as well as specialist
training for international law enforcement agencies
to help prevent transnational crimes at their source
and encourage greater international co-operation.
Some of the AFP’s international operations
include child protection, terrorism operations,
stopping human trafficking and drug operations.
For example, the Jakarta Regional Co-operation
Team has assisted Indonesian police to investigate
and arrest suspects of the 2002 Bali bombings
in Indonesia, as well as the bombings of the
Australian Embassy and the Marriot Hotel in
Jakarta in 2004 and 2005 respectively. The AFP
has also established the Jakarta Centre for Law
Enforcement Co-operation, which aims to enhance
128 C am b r id g e L e g a l S t u d ie s – HS C
regional law enforcement skills to deal with
transnational crime. Over 5000 participants have
now completed the Jakarta Centre’s programs,
which include skills like criminal intelligence,
forensics and financial investigations.
The AFP is also continuing to develop relations
with other regional bodies such as the South
East Asian Regional Center for Counter-Terrorism
in Kuala Lumpur and the International Law
Enforcement Academy in Bangkok.
C O M M O NWEA LTH ATTO RNEY-G E NE R A L’ S
DE PA RTM ENT
The Commonwealth Attorney-General’s Depart-
ment plays varied roles in relation to transnational
 l e g a l i n fo
Stopping human trafficking

Human trafficking is a very serious issue in
transnational crime. It involves the movement
of people by force, coercion or deceptive means,
often trafficking women and children into the sex
industry. The global trade in people is a complex and
difficult crime to eradicate and estimates suggest
there are between 500 000 to 4 000 000 victims
annually. In the last decade, over 250 matters of
trafficking in Australia were referred to the AFP.
attempting to tackle the issue from initial recruit-
ment to eventual reintegration of victims, including:
s AFP funding to strengthen its ability to detect,
investigate and provide specialist training for
tackling the crime
s National Policy Strategy to combat trafficking of
women for sexual servitude
s Victim support measures and special visa
arrangements to support victims of trafficking

The Australian Government has introduced a
number of measures since 2003 to combat human
trafficking. Various offences related to human
trafficking are found in the Criminal Code Act 1995
(Cth), including slavery or any commercial
transaction involving a slave, sexual servitude or
deceptive recruiting, or trafficking in persons and
forced labour. Similar legislation has been passed in
Australian states and territories. The government
has also dedicated a significant amount of money
(about $60 million from 2003) to tackling the prob-
lem involving numerous government bodies and
C rim e
s Co-operation with regional and international
agencies in tackling the sources and prosecuting
the offenders
s Support and training for the Commonwealth
Director of Public Prosecutions to help prosecute
people trafficking.
The issue of human trafficking is explored in more
detail in Chapter 9.

crimes. It reports and provides valuable advice

on Australia’s compliance with its international
obligations, oversees the operation of legislation
relating to transnational crimes and provides
advice on their implementation and provides
general information to the public and to parliament
on the status of Australia’s efforts against trans-
national crime.

A USTRALIAN CRIME C OMMIS S ION ( AC C )

The Australian Crime Commission (ACC) is a
national statutory body established under the
Australian Crime Commission Act 2002 (Cth) to
combat serious and organised crime. It investigates Figure 6.8 Campaigns to raise public awareness of human trafficking,
matters of national concern and in coordination such as this one from the United States, are becoming more
with other international law enforcement agencies prominent around the world.

Cha pter 6: Interna tion al cri me 129

 it delivers specialist law enforcement capabilities
to assist in investigating and analysing intelligence
concerning national and transnational crimes.
According to the ACC’s 2009 report Organised
Crime in Australia, most significant organised crime
groups operating in Australia have an international
dimension to their interests. Some areas the ACC
specifically investigates include South East Asian
organised crime, the primary point of heroin into
Australia, as well as money laundering and tax
fraud, identity crime, and human trafficking for
sexual exploitation.
AUS T R AL IAN C US T OMS AND B O RDER
PR OT EC T ION S ER VIC E
The Australian Customs and Border Protection
Service is a national agency responsible for the
security and integrity of Australian borders. The
agency works closely with other government and
Figure 6.9 The Australian Customs and Border Protection Service is a national agency responsible for
the security and integrity of Australian borders.
130 C am b r id g e L e g a l S t u d ie s – HS C
international agencies to detect and deter the
unlawful movement of goods or people across
Australia’s borders.
A U STRA L I A N H I G H TEC H C RI M E C EN T R E
(A H TC C )
The Australian High Tech Crime Centre (AHTCC)
was created in 2002 to coordinate all Australian
law enforcement authorities in fighting serious
types of crime that involve the use of technology.
It now forms part of the AFP’s High Tech Crime
Operations. Its main functions include:
s coordinating a national approach to serious,
complex and multi-jurisdictional crimes
s assist all Australian jurisdictions in their ability
to deal with high-tech crime.
The AHTCC has representatives from every
Australian jurisdiction and is funded by all states
and territories.
S TATE B OD IES
There are numerous state and territory bodies that
investigate transnational crimes due to their cross-
jurisdictional nature. In NSW, some of these include
the Independent Commission Against Corruption
(ICAC), the NSW Crime Commission, the Police
Integrity Commission and divisions within the
NSW Police Service. Intelligence sharing and co-
operation and co-ordination between national,
state and territory bodies is essential in combating
transnational crimes.
RE VIE W 6.4
1 Describe the domestic regime in Australia
applying to crimes against the international
community.
2 Outline some of the domestic measures
available to Australia to combat
transnational crime.
3 Evaluate the effectiveness of using
domestic measures alone in dealing with
international crime.
International measures
There have been many different international
measures aimed at tackling international crime.
These measures can be generally divided into the
following categories:
le g al li nk s
TRIAL (Track Impunity Always) is an
independent Swiss association that works
for justice against the perpetrators,
accomplices and instigators of genocide,
war crimes and crimes against humanity.
It occasionally appears before courts
on behalf of victims, including the
s co-operation between governments through
international treaties and international organi-
sations targeted at specific types of international
crime
s international courts and tribunals to deal with
enforcement of international crimes
s co-operation and intelligence sharing between
national and sub-national agencies to tackle
problems of trans-border crime.
Crimes against the
C rim e
international community
Most of the international efforts aimed at preven-
ting or prosecuting crimes against the international
community have already been discussed above.
Governments have showed continuing commit-
ment and close co-operation in their development
of international treaties such as the Geneva
Conventions and the Rome Statute of the International
Criminal Court. It is in the nature of such crimes
that the international community recognises and
universally agrees to condemn them.
C O U RTS A ND TRI B U NA L S
Prior to the establishment of the ICC, these crimes
were usually dealt with on a domestic level by
courts or military tribunals on a case-by-case basis.
However, throughout the 20th century, various ad
hoc international tribunals were also established in
order to prosecute atrocities relating to particular
International Criminal Court. Its website
tracks the progress of cases involving
crimes against the international
community, and is available at:
www.trial-ch.org/en
Cha pter 6: Interna tion al cri me 131
 l e g a l i n fo
Matters before the ICC
By 2010, the following situations have been referred s the situation in the Central African Republic
to the ICC for consideration: s the situation in the Republic of Kenya.
s the situation in Uganda
s the situation in the Democratic Republic of the
Congo
s the situation in Darfur, Sudan
events. For example, the Nuremburg trials or
Tokyo trials prosecuted crimes against humanity
extradition and war crimes relating to the Second World War.
the legal surrender More recently, the International Criminal Tribunal
of a suspect or
convicted criminal for the former Yugoslavia (ICTY) was established
by one jurisdiction in 1993 by the UN Security Council to investigate
to another to face
and prosecute individuals for war crimes, crimes
criminal charges or
sentence against humanity and genocide committed during
bilateral agreement the Yugoslav conflict between 1999 and 2001.
an agreement Since 2002, the International Criminal Court
between two
has launched investigations and prosecutions into
countries
a number of more recent events. To date, a number
of state parties have requested investigations into
internal matters and one matter has been referred
to the court by the UN Security Council.
R ESEARCH 6.2
On the website of the International Criminal
Court (www.icc-cpi.int) and the internet
generally, research two of the situations listed
in Legal Info above, and answer the following
questions.
1 Explain what events the situation relates to.
2 Identify when the situation was referred to
the ICC and who referred it (e.g. state or UN
Security Council).
3 Identify some of the accused persons and
describe what stage their matter is currently
at, e.g. pre-trial, trial or appeal.
4 Describe any new situations that have been
referred to the ICC.
132 C am b r id g e L e g a l S t u d ie s – HS C
EX TRA DI TI O N TREATI ES
One of the most important tools in fighting inter-
national crime is the use of extradition treaties.
Extradition is the process whereby one country
surrenders a suspect or convicted criminal to
another country to face criminal charges or
sentencing. For example, if a person commits
murder in another country and flees to Australia
before they are caught, they might be extradited
back to the original country. It is relevant to all
types of crimes, including international crimes.
International extradition is generally governed
by a series of bilateral agreements between
Australia and other countries. Australia currently
has extradition agreements with about 130 coun-
tries – a full list is provided on the website of the
Commonwealth Attorney-General’s Department
(see: www.ema.gov.au/www/agd/agd.nsf/Page/Ex
traditiona ndmut ua lassist a nce _ Relationship
withothercountries_ Alphabeticalcountrylist).
However, a few international agreements also have
their own specific extradition arrangements, inclu-
ding the Rome Statute of the International Criminal
Court and the Genocide Conventions. For example,
Australia has received three extradition requests
from the ICTY against people residing in Australia
accused of committing war crimes.
In Australia, extradition is governed by the
Extradition Act 1988 (Cth). The Act sets out the
criteria required before extradition will be granted.
It must be determined that the accused has a case
to answer on the evidence and that the accused
m e d i a cl i p Croatia to appeal to High
Court over Dragan Vasiljkovic
extradition
By Angus Hohenboken
The Australian, 12 February 2010
The High Court has granted the Croatian
Government special leave to appeal a
full federal court decision preventing
the extradition of Serbian paramilitary
leader ‘Captain Dragan’ to Croatia to face
questioning over his alleged involvement in
war crimes.
The Croatian Government…argues the
decision has wide implications for Australia’s
ability to pursue the alleged perpetrators of
international crimes.
In its application the Croatian Government
said that the Federal Court was wrong to
conclude that Mr Vasiljkovic, an Australian
citizen, could not receive a fair trial in Croatia
because of his political beliefs.
Under section 7c of Australia’s Extradition
Act, an accused person can be exempted
from extradition if on surrender to the
extradition country ‘the person may be
prejudiced at his or her trial, or punished,
detained or restricted in his or her personal
liberty, by reason of race, religion, nationality
or political opinions’.
The full Federal Court found in its
September judgment that Croatia’s courts
had allowed its own soldiers to rely upon
their service in the Croatian armed forces
during the Balkans’ ‘homeland war’ to
mitigate sentences in criminal matters, but
Serbian soldiers had not received the same
considerations.
The Federal Court concluded that,
if convicted, Mr Vasiljkovic might be
incarcerated for a longer period than
a Croatian counterpart, largely as a
consequence of his political beliefs.
The Croatian Government will argue that
the Federal Court wrongly concluded that
Mr Vasiljkovic might receive a longer
sentence if convicted because of his political
beliefs, and that the mitigating factor applied
to Croatian soldiers was irrelevant to Mr
Vasiljkovic.
Mr Vasiljkovic was the commander of a
paramilitary unit known as the Red Berets
during the ethnic conflict in the Balkans
between 1991 and 1993.
The Republic of Croatia wishes to question
Mr Vasiljkovic in relation to allegations against
him including that he directed his troops
C rim e
to commit the war crime of torture and
committing the war crime of torture during his
time in Srpska Krajina, a Serbian-dominated
part of Croatia, until 1993.
He has vigorously denied the claims…
Last February, a Federal Court judge
dismissed a challenge by Vasiljkovic, against
a magistrate’s finding that he was eligible for
surrender to the Republic of Croatia.
But in September, a full bench of the court
allowed Mr Vasiljkovic’s appeal, and he was
released from Sydney’s Parklea prison after
almost four years in custody.
R EVI EW 6 . 5
Read the Media Clip and complete the
following tasks:
1 Identify the types of crimes Mr
Vasiljkovic is accused of and the
international situation that they
allegedly occurred in.
2 Explain the nature of the extradition
request involved and identify the main
issue that Australian courts have raised.
3 Outline the court process that Mr
Vasiljkovic’s case has progressed
through.
4 Evaluate whether you think justice can
be properly served in this case.
Cha pter 6: Interna tion al cri me 133

International Criminal
Police Organization
(INTERPOL)
the world’s largest
international
police organisation
established in 1923 to
facilitate collaboration
among intelligence
agencies around the
world
will receive a fair trial in the state to which they
are being returned. It must also be shown that
the offence is a crime in both Australia and the
target country.
Extradition is an extremely important method
for combating international crime as it ensures
that an offender cannot simply flee the jurisdiction
where the offence was committed in order to
escape prosecution for their crime. The case of
Dragan Vasiljkovic (discussed in the media clip)
illustrates some of the issues that may arise under
an extradition request for international crimes.
Transnational crimes
There is a long list of international organisations
and international treaties that aim to combat
transnational crimes, either in general or targeting
specific crimes. Some specific examples of these
are provided below.
IN T ER N AT ION AL C R IMIN AL PO L I C E
OR GAN IZAT ION ( IN T ER POL )
The International Criminal Police Organization
(INTERPOL) is the world’s largest international
police organisation and to date it has 188 member
countries, including Australia. INTERPOL was
created in 1923 as a means to improve trans-
national cooperation between police around the
world. Its mission is to prevent or combat inter-
national crime. Its headquarters are now situated
in Lyon, France.
INTERPOL currently lists its six priority crime
areas as:
s drugs and criminal organisations
s public safety and terrorism
s financial and high-tech crime
s trafficking in human beings
s fugitives
s corruption.
At any given time, the organisation is engaged
in numerous world-wide operations investigating
and providing advice to national law enforcement
agencies on transnational crimes. For example,
some of its current operations include targeting
organised crime in Asia and Eurasia, international
counterfeiting and money laundering, trafficking
in arms and drugs, or international terrorism.
There has recently been some movement
towards developing a ‘global police force’, advo-
cated by INTER POL in cooperation with the United
Nations, to improve the skills of police peacekeepers
and sharing of communications net works and
criminal data. One effect might be to increase the
ability to track the movement of criminals around
the world by sharing resources and common
standards.

R ESEAR CH 6 . 3
INTERPOL’s website at www.interpol.int
contains detailed information on transnational
crime. Select one of INTERPOL’s priority crime
areas and research it on INTERPOL’s website,
then answer the following questions:
1 Identify the types of transnational crimes
that are included in that priority area.
2 Describe the background to one of the
crimes as explained by INTERPOL.
3 Assess some of the measures that INTERPOL
Figure 6.10 INTERPOL headquarters building in Lyon, France. is taking to deal with the crime.

134 C am b r id g e L e g a l S t u d ie s – HS C
C O NVENTION AGAIN S T
T R ANSNATIONAL OR GAN IZED C R IME
The United Nations Convention against Trans-
national Organized Crime is regarded as the main
international instrument in the fight against trans-
national organised crime. It began operation
in 2000 and has three protocols that countries
become a party to once they sign the convention.
These include:
l eg a l l i n k s
For more information on the
United Nations Convention
against Transnational Organised
Crime and its Protocols, visit the
Signature states commit themselves to ensur-
ing their own domestic criminal offences regulate
participation of organised crimes, money launder-
ing and other aspects of corruption. States must
also adopt broad changes to extradition pro-
cedures, commit to providing ‘mutual’ legal
assistance and co-operation between law enforce-
ment agencies, and undertake to upgrade the
capacity of national authorities to deal with
organised transnational crime networks.
PA CIFIC TRANSN AT ION AL C R IME
N E TW ORK (PCTN )
The Pacific Transnational Crime Network (PTCN)
was formed in July 2002 as a response to increases
in regional transnational crime. It was an initiative
of the AFP, who realised that strong relationships
were needed between Australia and its Pacific
neighbours if they were to combat the problem of
transnational crime. The network’s headquarters
are currently located at the Pacific Transnational
Crime Co-ordination Centre in Apia, Samoa.
The PCTN with the AFP has created a regional
network of transnational crime units in Pacific
s Protocol to Prevent, Suppress and Punish
Traffick ing in Persons, Especially Women and
Children
s Protocol against the Smuggling of Migrants by
Land, Air and Sea
s Protocol against the Illicit Manufacturing of
and Trafficking in Firearms, Their Parts and
Components and Ammunition.
C rim e
website of the United Nations
Office on Drugs and Crime at:
www.unodc.org/unodc/en/
treaties/CTOC/index.html.
states with a focus on combating cross-border
criminal activity such as drugs and arms smug-
gling or money laundering. It manages, coordinates
and enhances law enforcement intelligence across
the region. Pacific countries have been identified
as particularly vulnerable to the threats of trans-
national crime, especially from organised crime
groups. Pacific nations may have less resources to
tackle law enforcement or to detect and prosecute
such crimes and the PCTN provides technical
assistance, training, resource sharing and helps to
strengthen the rule of law in Pacific countries.
The PCTN has been successful in the region.
For example, in 2004 the then largest metham-
phetamine laboratory in the southern hemisphere
was discovered and dismantled in Suva, Fiji. The
laboratory posed serious environmental and physi-
cal danger to local communities, and the drugs
were potentially destined for markets in Australia
and New Zealand, Europe and the United States.
Recently, some high-profile arrests have been made
of Pacific regional figures engaged in various immi-
gration, financial fraud and money laundering
activities.
Cha pter 6: Interna tion al cri me 135
 The ef fec t iveness of mea s u res
dea l i n g w i t h i nternat iona l c ri m e
Some of the most significant measures used in
combating international crime were described
above. However, due to the complex and difficult
nature of transnational crimes, the effectiveness
of those measures is mixed.
Transnational crime
For transnational crimes, there are often complex
organised criminal groups at work with often
sophisticated measures taken to avoid detection.
Authorities around the world have to combat
a number of crimes, including identity fraud,
internet crime, paedophilia rings and the traffick-
ing and smuggling of people and contraband.
Some states may lack the skills, training and
resources to combat such crimes or may be
unable due to political unrest or high levels of state
corruption. Such states may become a target or a
breeding ground for transnational crime affecting
other states and making it very difficult to combat
the problem. The main areas for efforts against
transnational crime to address include:
s the extent of international cooperation between
states – provision of adequate resources
s the effectiveness of coordination among inter-
national agencies – exchange of information
s the level of compliance among weaker or poorer
states – states where rule of law may be weak
become targets by organised crime groups.
To be successful, states will require significant co-
operation and sharing of skills, resources, funding
and intelligence on an unprecedented scale. To
date, some important measures, both domestic
and international, have been put in place to cope
with transnational crime and there has been some
success in response. However, as with domestic
crime, transnational crimes are unlikely to dis-
appear any time soon and as the world changes
an increased effort will be needed to tackle the
issues it presents.
136 C am b r id g e L e g a l S t u d ie s – HS C
Crimes against the
international community
Clearly the most significant development in
combating crimes against the international com-
munity has been the establishment of an ICC,
which followed numerous specific tribunals set
up to cope with crimes committed during specific
situations like Rwanda and Yugoslavia.
A permanent court such as the ICC is symbolically
very powerful, and sends a message that leaders
or other criminals can no longer hide behind the
immunity of their own sovereignty in committing
such appalling acts. The threat of later prosecution
may act as a deterrent against rogue leaders using
any such tactics. It also offers enormous support to
victims of the crimes by attempting to bring to justice
those responsible for these human atrocities.
However, the tribunals and the ICC have not
been without criticism. In particular, the courts are
established to deal with these atrocities after they
have been committed, and there is valid criticism
that international law and the international
community have been too slow to stop these
atrocities before they occur, or even while they
are occurring. Unlike domestic courts, short of
rare intervention by the UN Security Council,
there is also no international force or police that
can capture such offenders, especially where they
remain inside their own state jurisdiction.
This is particularly evident, for example, in the
conflict in Darfur, Sudan, where charges by the
ICC were not laid against President al-Bashir until
2008, five years after the atrocities began. This
was some 15 years after the world had witnessed
the gruesome genocide in Rwanda, where 500 000
people were killed within just 100 days, which the
international community had condemned and
vowed never to let happen again. In Sudan, at the
time of publishing President al-Bashir is still in
office and has not been apprehended.

member state
treaty signed but not yet ratified
non-member state
Figure 6.11 Member states of the International Criminal Court (as at October 2009).
The enormous cost of such investigations and
prosecutions also needs to be borne by member
states. As such it is never likely to be possible for
the international community to prosecute all of the
offenders who commit these crimes. Having said
this, a permanent court, with established investi-
gative and court mechanisms as well as perma-
nent staff, is a step towards greater efficiency.
The effectiveness of any international institution
will usually come down to the sum of its parts.
While the ICC now has over 110 member states, it
crucially lacks some of the world’s most important
and influential countries. These include some
of the world’s major powers (such as the United
States, China and India), as well as some very
influential countries (such as Pakistan, Vietnam
and Indonesia).
Most objecting states claim that joining the
ICC would violate their state sovereignty. As dis-
cussed above, one of the biggest advantages of
the Court is that it can act independently of state
jurisdictions where they are unwilling or able to do
so. However, critics claim that in many cases states
C rim e
fear subjecting themselves to investigation over
their own affairs, for example India over Kashmir,
or China over Tibet or Xinjiang. Nevertheless, the
ICC only has jurisdiction for crimes committed
after its establishment, and it still has jurisdiction
over any individuals from non-member states
who commit crimes against or in the territory of
a member state. Supporters of the court argue
that the danger of crimes against the international
community occurring again without independent
oversight or responsibility ought to outweigh the
national interests of state parties.
The continued development of the international
criminal justice system is a promising tool in
combating crimes against the international com-
munity. With adequate resources and political
determination by states around the world, the ICC
has the potential to make a significant difference
in preventing further atrocities or bringing to
justice those responsible where they do occur. At
this stage it is too early to genuinely comment on
its success – its true effectiveness will be judged as
history unfolds throughout the 21st century.
Cha pter 6: Interna tion al cri me 137
 s International crime includes transnational
crimes and crimes against the international
community.
s Crimes against the international community
Ch a p te r s u m m a ry
include genocide, crimes against humanity
and war crimes. These crimes are punishable
internationally.
s Transnational crimes are crimes that occur
across international borders, in origin or
effect.
s The main development in dealing with crimes
against the international community is the
establishment of the International Criminal
Court (ICC) in The Hague, Netherlands.
M ul ti p l e- c hoi ce q ues ti ons
1 Which of the following contains an example of
both a transnational crime and a crime against
the international community?
a genocide and war crime
b drug trafficking and human trafficking
c murder and money laundering
d genocide and human trafficking
2 Genocide is most accurately defined by which
of the following statements?
a acts which have the intention of destroying
‘all or part of a political, ethnic, racial or
religious group’
b acts which have the effect of destroying
‘all or part of a national, social, ethnic or
religious group’
c acts which have the intention of destroying
‘all or part of a national, ethnic, racial or
religious group’
d all of the above
3 Which of these statements is the most correct
explanation of complimentary jurisdiction of
the ICC?
a it allows member states’ courts to
investigate crimes against the international
community
b it allows member states’ courts to
investigate and prosecute crimes against
the international community
c it allows regional courts to investigate and
prosecute crimes against the international
community
d none of the above
138 C am b r id g e L e g a l S t u d ie s – HS C
s Extradition is an agreement between states
that allows transfer of suspects and prisoners
between states for trial or sentencing.
s There has been a growth in the federal and
state agencies responding to the threat of
transnational crime.
s Greater coordination of international agencies
and a sharing of resources are considered
essential in combating transnational crimes
regionally and internationally.
s Greater state agreement and support, as well
as improved methods of enforcement, are
required to effectively prevent crimes against
the international community.
4 The Extradition Act 1988 (Cth) ratifies a
number of international treaty agreements
entered into by the federal government.
Which of the following statements best
reflects the criteria followed by the federal
government when deciding to return an
offender to another nation state?
a that the offence is criminal in both states
and that the accused will receive a fair trial
b the accused has a case to answer on the
evidence, that the accused will receive a
fair trial in the country to which they are
being sent, and that the offence is criminal
in at least one of the states
c the accused has a case to answer on the
evidence, that the accused will receive a
fair trial in the country to which they are
being sent, and that the offence is criminal
in both states
d the accused has a case to answer on
the evidence, the accused will meet bail
conditions, and that the offence is criminal
in at least one of the states
5 The growth in transnational crimes has mainly
been attributed to which of the following?
a better communication
b growth of technology
c ease of movement between jurisdictions
d all of the above
Ch a p te r s u m m a ry ta s k s

1 Define international crime and describe how

it differs from ordinary domestic crime.
2 Explain the difference between genocide and
crimes against humanity.
3 Identify two domestic responses to
international crime and assess their
effectiveness in dealing with the problem.
4 Evaluate the effectiveness of the International
Criminal Court (ICC) in dealing with crimes

C rim e
against the international community.
5 Evaluate the effectiveness of international
measures dealing with transnational crime.

Cha pter 6: Interna tion al cri me 139

 T h e m e s a n d ch a l l e n g e s

The role of discretion in the criminal justice
system
s Discretion acknowledges that the law can
be a blunt instrument in delivering justice.
It allows individual circumstances to be
taken into account when applying the law.
It is considered important if the criminal
justice system is to balance the rights of the
community with the rights of individuals – the
accused and victims – if it is to address the
tension between these competing interests.
Discretion can also be used in a biased or
corrupt way undermining justice.
s Discretion is a part of most steps in the
criminal justice system. There are many
people in authority who have discretionary
power in the exercising of their roles. Police
have discretionary powers of arrest in certain
matters and they also have discretion in the
exercising of their powers when carrying out
their duties. References to course material
can be used here and critiqued.
s The Director of Public Prosecutions (DPP)
has discretion with respect to what matters
they will prosecute. They examine if there
is enough evidence and if it is in the public
interest to prosecute.
s Magistrates and judges have discretion in
matters pertaining to bail, rules of evidence
and procedure as well as in sentencing
matters. They also have discretion in matters
on appeal. Reference to these areas and
more, and an evaluation of the course content
is essential.
Issues of compliance and non-compliance in
regard to criminal law
s The majority of individuals within a society
obey the law most of the time. Individuals
also enjoy the freedoms and protection a
well-organised and, at times, well-regulated
society gives. It is partly for this reason
that the majority complies with the law.
The law can also enforce compliance and
sanction violations on behalf of society where
individuals do not comply.
s Some of the reasons why people do not
comply with the law include greed, self-
interest, thrill, peer pressure, addiction,
mental illness, political need or necessity.
There is no set pattern and the specific
reason for an individual’s non-compliance may
vary.
s Issues that could also be critiqued could
include ways in which the criminal justice
system tries to ensure greater compliance
through:
– crime prevention (situational and social)
– more effective investigation of crime
– the purposes of punishment to reduce
criminal behaviour (the lack of success with
high rates of recidivism)
– emphasis on rehabilitative initiative with
young offenders (such as youth justice
conferencing)
– measures to combat transnational crime.
The extent to which the law reflects moral and
ethical standards
s Crimes are actions that individual societies
have decided should be illegal. For this
reason, jurisdictions will differ in what actions
will constitute a crime, and crimes will change
over time.
s Most crimes are the result of moral and
ethical judgments by society (public morality),
about behaviour that may be deemed harmful
and therefore warrant sanctions by the
state. In other words, what currently exists in
international law, statute and common law is
a reflection of our public morality. The ways
the law may change to respond to shifts in
public morality, and the areas today that are
in a state of flux, reflect the moral and ethical
standards of our community. Some examples
may include:
– specific domestic legislation and
international treaties concerning
international crime that reflect a degree of
public morality
– areas where there have been law reforms
or changes to the law as a result of shifting
public morality – sentencing laws, sexual

140 C am b r id g e L e g a l S t u d ie s – HS C
 assault laws, decriminalisation of certain
behaviours, legislation concerning young
offenders, the growth of the international
criminal justice system.
The role of law reform in the criminal justice
system
s Any example where the law changes is
law reform. There are many examples
already contained in the previous chapters.
Agencies of law reform such as Law Reform
Commissions, Parliament, Courts and other
non-legal measures can be examined here
with examples of how they have reformed
the law. Some examples of law reform in the
criminal justice system could include:
– laws of sexual assault
– majority verdicts in juries
– guidelines in plea bargaining, alternative
methods of sentencing such as circle
sentencing, restorative justice
– youth justice conferencing or other
alternatives for young offenders
– alternatives to full-time imprisonment such
as periodic detention, home detention or
community service orders
– international crime – the ICC, INTERPOL or
initiates of the AFP
– failure of the existing law to deal effectively
with sexual assault matters (low reporting
and conviction rates)
– rehabilitation, rates of recidivism – refer to
the prison system
– gathering of evidence – DNA, surveillance,
remote witness facilities, transcript
evidence; balancing police powers with
the rights of the individual; reliability and
process of such evidence contributing to
delays of court system.
The extent to which the law balances the
rights of victims, offenders and society
s This picks up on part of the principal focus of
the topic, the ‘tension between community
interests and individual rights and freedoms’.
In many instances society’s needs may be
outweighing the rights of individuals in light
of, for example, anti-terrorism legislation
or restriction in bail laws, where individual
civil liberties have been eroded in the name
of protection of the community. The law
and order debate that has been ongoing in
some areas has gained the upper hand in the
balancing act which is the tension mentioned
above.
s Areas that could be critiqued include police
powers against the rights of suspects, or
C rim e
the criminal trial procedures that aim to
balance the rights of victims, offenders and
society. The right to a fair trial, supported
by strict rules of evidence and procedure, is
fundamental to the criminal justice system
and this balancing act. The criteria used by
judges when sentencing is also a feature
of this balance and ongoing tension. This
balance is further reflected in the decision
to grant bail, plea bargains negotiated by
the DPP and the ability of the international
criminal justice system to bring offenders of
mass atrocities to justice. These are just some
of the areas to be addressed in respect to this
theme.
The effectiveness of legal and non-legal
measures in achieving justice
s This is a very broad theme that can be
applied across all aspects of the crime topic.
The legal measures include all institutions
and processes enabled by law to deal with
aspects of the criminal justice system. Non-
legal measures must also be critiqued as a
change agent that can help improve, develop
awareness of, or pressure law-makers to
regulate or deal with an area of concern
within the criminal justice system.
s Broad areas of criminal law may be
chosen that outline the statute/common
law responses such as young offenders,
international crime, or the sentencing
process. Non-government organisations, the
media and so on can also be highlighted here
and their role outlined and evaluated.
© 2010 Copyright Board of Studies NSW for and on behalf of the Crown
in right of the State of New South Wales. HSC Legal Studies Syllabus 2009.
Cha pter 6: Interna tion al cri me 141
 PART II
Human rights
Human rights Principal focus
Through the use of a range of contemporary examples, students investigate the
notion of human rights and assess the extent to which legal systems embody
20% of course time such human rights and promote them in practice.

Themes and challenges

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

HSC external examination information

The HSC examination will be a written paper worth a total of 100 marks. The
paper will consist of 3 sections.
Questions relating to Part II of the syllabus – Human rights – will appear in
Sections 1 and 2 of the examination.

Section I: Core 20 marks total (5 of the possible 20 marks will be

based on Human Rights)
Section I will consist of objective response (i.e. multiple-choice) questions.
Questions to the value of 5 marks will be drawn from Human rights. Some of
these questions may be based on, or refer to, stimulus materials.

Section II: Core 30 marks total (15 of the possible 30 marks will be
based on Human Rights)
Section II will be divided into two parts, Part A and Part B. Only Part A will
relate to Human rights. There will be three or four short-answer questions to the
value of 15 marks. These questions may be in parts. These questions may refer
to stimulus materials.

142 C am b r id g e L e g a l S t u d ie s – HS C
7 The nature and development of human rights
s the definition of human rights
s developing recognition of human rights
– the abolition of slavery
– trade unionism and labour rights
– universal suffrage
– universal education
– self-determination
– environmental rights
– peace rights
8 Promoting and enforcing human rights
In the international community:
s state sovereignty in the international
community
s the role of the United Nations
s the role of intergovernmental organisations
s the role of the courts, tribunals and
independent statutory authorities
s the role of non-government organisations
s the role of the media.
9 Contemporary issues illustrating the promotion and/or enforcement of human rights
s Issue 1: Human trafficking and slavery
s Issue 2: Child soldiers
s formal statements of human rights
– Universal Declaration of Human Rights
– International Covenant on Civil and Political
Rights
– International Covenant on Economic, Social
and Cultural Rights
s factors affecting criminal behaviour
s crime prevention: situational and social
e rig hts
C riman
Hum
In Australia:
s the incorporation of human rights into
domestic law
s the role of the Constitution, including division
of powers and separation of powers
s the role of statute law
s the role of common law
s the role of courts and tribunals
s the role of non-government organisations
s the role of the media
s the role of a Charter of Rights (arguments for
and against).
143
 CHAPTER 7
The nature
and development of
human rights
c hap te r o b j e cti ve s

In this chapter, students will:
s define the concept of human rights
s explain the origins of the modern concept of human
rights
s describe the achievements of the various
movements for human rights
s identify the various types of human rights that have
developed over the last two centuries
s locate the details of key human rights treaties
k ey t er ms/vocab ul ary
s discuss the significance of the Universal Declaration
of Human Rights (UDHR) for the post-war
development of international human rights law
s communicate the main features of the Universal
Declaration of Human Rights (UDHR), the
International Covenant on Civil and Political
Rights (ICCPR) and the International Covenant on
Economic, Social and Cultural Rights (ICESCR)
s evaluate the effectiveness of the International Bill
of Rights.

abolitionism natural law

collective right non-government organisations
debt slavery (NGOs)
fascism positivism
Four Freedoms ratify (ratification)
hard law right to peace
human rights self-determination
human trafficking slavery
inalienable right soft law
Industrial Revolution suffrage
International Bill of Rights suffragette
International Covenant on Civil and trade union
Political Rights (ICCPR) transatlantic slave trade
International Covenant on Universal Declaration of Human
Economic, Social and Cultural Rights (UDHR)
Rights (ICESCR) universal education
international customary law universal suffrage
International Labour Organization
(ILO)
labour rights

144 C am b r id g e L e g a l S t u d ie s – HS C

rel ev ant l aw
I M PORTANT LEGIS L AT ION
Universal Declaration of Human Rights (1948)
International Covenant on Civil and Political
Rights (1966)
International Covenant on Economic, Social and
Cultural Rights (1966)
Slave Trade Act 1807 (Great Britain)
Slavery Abolition Act 1833 (Great Britain)
Charter of the United Nations (1945)
The Constitution of the United States of America
1787 (US)
The United States Bill of Rights 1789 (US)
General Act of Brussels (1890)
Trade Unions Act 1871 (Great Britain)
Representation of the People Act 1918 (Great
Britain)
Education Act 1870 (Great Britain)
Public Instruction Act 1880 (NSW)
United Nations Declaration of the Rights of
Indigenous Peoples (2007)
African Charter on Human and Peoples’ Rights
(1981)
American Convention on Human Rights (1988)
Stockholm Declaration (1972)
Rio Declaration (1992)
Kyoto Protocol (1997)
Treaty of Versailles (1919)
Declaration on the Right of Peoples to Peace
(1984)
S I GNIFICANT CAS ES
R v Knowles; ex parte Somersett (1772) 20 State
Tr 1
United States v Libellants and Claimants of the
Schooner Amistad 40 U.S. (15 Pet.) 518 (1841)
e rig hts
od d l a w
m an
C rim
Hum
The Fugitive Slave Law (also known as the
Hu
Fugitive Slave Act) was passed by the United
States Congress on 18 September 1850 as
part of the group of laws referred to as The
Compromise of 1850.
The Compromise declared that all runaway
slaves be brought back to their masters. Law-
enforcement officials were duty-bound to arrest
anyone suspected of being a runaway slave
on no more evidence than the owner’s sworn
testimony. Those officials who did not arrest
an alleged runaway slave were liable to pay a
fine of $1000 (approximately $25 000 in today’s
currency).
Once apprehended, the suspected slave was
not entitled to a jury trial or to testify on his or
her own behalf.
Under the Fugitive Slave Law, officials who
captured a runaway slave were entitled to a
bonus or promotion for their work. Slave owners
only needed to supply an affidavit to a Federal
marshal to capture an escaped slave. Since no
suspected slave was eligible for a trial, this led to
many free blacks being conscripted into slavery
as they had no rights in court and could not
defend themselves against accusations.
Furthermore, any person aiding a runaway
slave by providing food or shelter was subject to
six months’ imprisonment and a $1000 fine.
Cha pter 7: T he na ture a nd development of huma n ri ghts 145
 T h e de f i n i t io n o f ‘h u m a n r i g h t s’
Universal Declaration The Preamble to the Universal Declaration of just and free society. They aim to protect individuals
of Human Rights Human Rights (UDHR), adopted by the General from injustice, allow people to achieve their full
(UDHR)
a declaration of rights Assembly of the United Nations in 1948, sets out potential in society, and prevent discrimination
adopted by the United the fundamental purpose for recognising human against groups of people because of their physical
Nations in 1948,
rights. It states that: ‘recognition of the inherent characteristics or beliefs. Countries around the
representing the first
universal acceptance dignity and of the equal and inalienable rights of world are seen to have a moral and legal obligation
of the idea of human all members of the human family is the foundation to respect and uphold these rights.
rights and becoming
of freedom, justice and peace in the world’. The generic term ‘human rights’ is relatively
the reference point of
all subsequent human The precise nature of human rights, however, new and has only come into use since the late 19th
rights treaties is not fixed and is often the subject of debate. In a century. But the background of human rights is
human rights general sense, human rights refer to basic rights rooted in history, and the rights they protect have
in a general sense,
basic rights and
and freedoms that are believed to belong to all developed only gradually over many centuries.
freedoms believed to human beings. As stated in the Universal Today, the term is used in many different contexts
belong justifiably to all Declaration of Human Rights (UDHR), these rights and human rights have evolved into an essential
human beings
differ from ordinary rights under domestic law in ingredient of justice, occupying an important place
inalienable right
a right that cannot be that they are considered to be universal, inalien- in law, society and international relations.
taken away able (cannot be taken away) and inherent in all Human rights today continue to be violated in
natural law people. The UDHR is an international declaration many countries around the world. This can make
the theory that
of these rights which has formed the basis for human rights a perplexing concept. It may seem
certain laws come
from an unchanging laws, constitutions, international treaties and on- odd to read about the various treaties and laws
‘natural’ body of moral going international debate on human rights. that protect human rights, while knowing that
principles as the basis
Human rights are a collection of fundamental these same rights are often ignored or suppressed.
for all human conduct,
and so have validity standards for the treatment of individuals in a fair, Despite this, the concept of human rights is central
everywhere
positivism
the theory that laws are
valid simply because
they are enacted by
authority or from
existing decisions, and
that moral and ideal
considerations do not
apply

Figure 7.1 Although the basic human rights first mentioned in the Universal Declaration of Human
Rights (UDHR) have now been enshrined in numerous international treaties, human rights violations
remain commonplace in many countries around the world.

146 C am b r id g e L e g a l S t u d ie s – HS C
to the operation of law in modern democratic R EV I EW 7 . 1
societies and is an integral part of the international 1 Define what human rights are and what
legal system. they aim to protect.
The development of some of these human 2 Identify a list of rights that might be
rights is considered throughout this chapter. considered human rights.
Chapters 8 and 9 will then consider the promotion 3 Explain why human rights are important to
and enforcement of human rights in Australia all individuals in society.
slavery

Hum an rig hts

and internationally today, and examine some
a type of forced
contemporary issues in human rights. labour where a
person is considered
to be the legal
property of another
universal suffrage
Deve l op i n g r ecog n i t i o n the right for all
citizens to vote in

of human rights political elections,

regardless of status,
gender, race or creed

As mentioned above, the term ‘human rights’ is The development of the following rights are trade union
an organised
a relatively recent historical development. The considered in this chapter: association of workers
acceptance that certain rights might apply to s the abolition of slavery formed to protect
and further their
everyone, regardless of what country they are in s the campaign for universal suffrage
rights and interests
or what law code they follow, took all of history s the trade union movement and labour rights
labour rights
to achieve. But theories of universal laws relate to s the campaign for universal education rights at work,
theories of the law itself and can be traced back to s the right of a group to self-determination including rights
to safe working
various historical sources including: s emerging environmental rights
conditions, minimum
s the laws of ancient civilisations in Mesopo- s the attempt to establish a right to peace. wages, paid leave
tamia, Ancient Rome or India or the right to join a
trade union
s scholars of some of the world’s major religions
The abolition of universal education
s philosophers from Ancient China or Ancient
Greece to the modern day
slavery the right to free and
compulsory education
s historical events such as the US Declaration of Slavery is a type of forced labour where a person for all children

Independence is considered to be the legal property of another. self-determination

the right of people
s major conflicts, particularly the First and For most of human history, slavery was taken for of a territory or
Second World Wars. granted and was considered integral to society and national grouping
to determine their
Theories of universal laws historically drew the economy. Slavery predates recorded history –
own political status
upon a range of different reasoning, such as ‘divine it was common in antiquity and continued world- and how they will be
will’ as a basis for rights, natural law based on a wide in various forms throughout the Middle Ages. governed

higher order or shared ideas of individual worth or Slavery was practised legally in many parts of the right to peace
the right of citizens
morality, or simply positivism which states that world up until the 20th century.
to expect their
the laws are what they are because they have been In the ancient Mediterranean, the most com- government will do
enacted by the appropriate authority. mon forms of slavery included debt slavery all in its power to
maintain peace and
Whatever the basis for such laws, campaigns (being forced to pay off a loan with labour rather
work towards the
for recognition of human rights began long before than money), slavery as a punishment for crime, elimination of war
there was any worldwide acceptance or formal or prisoners of war committed to slavery. Children debt slavery
recognition. Particular rights have each developed could be born into slavery and spend their entire slavery in order to
pay off a loan with
in their own way through independent historical lives as slaves, possibly paying off debts that were forced labour rather
movements that led to their eventual recognition. incurred generations earlier. than money

Cha pter 7: T he na ture a nd development of huma n ri ghts 147


transatlantic slave
trade
the trading of African
people by Europeans,
transporting them as
slaves from Africa to
the colonies of the
New World
abolitionism
a worldwide political
movement that sought
to abolish slavery
148 C am b r id g e L e g a l S t u d ie s – HS C
Figure 7.2 Slavery was common in Ancient
Rome and was integral to society and the
economy.
Types of slavery differed around the world but
it was usually used as a way to fill certain roles in
society for little to no cost, without needing to pay
wages. Slaves were forced to carry out menial or
labour-intensive jobs, but gained food and accom-
modation where the structure of the modern
welfare state did not exist. Some slaves were well-
educated and highly valued in their households,
and occasionally could be awarded freedom (as
freedmen). But in many instances slaves were
mistreated and brutalised, with no real legal rights
and no means of escape. Laws generally treated
slaves as objects, rather than subjects of the law.
Moves to abolish slavery and slave trading
in European cities and states began as early as
the 12th century. Iceland, for example, officially
abolished slavery in 1117. Although slavery of
European citizens gradually became uncommon,
it was still widely practised on the fringes of
Europe and elsewhere in the world. As Europeans
began to conquer the New World and their
empires expanded, they required more and more
resources to grow and support their new colonies.
Slave labour was sought from new populations
or races. European empires supported the use of
slaves from new territories, but particularly from
trade posts in Africa. Although the Roman Catholic
Church prohibited the export of Christian slaves,
it legitimised the use of non-Christian slaves in
overseas territories.
Known as the transatlantic slave trade, this
operated in the 17th to early 19th centuries –
European ships would trade products for slaves
in West Africa, where slavery was still widely
practised, and carry the slaves to the New World
colonies to grow and manufacture cash crops,
such as sugar. The profits would be returned to
the European powers, and the trade cycle would
continue. An estimated 12 million Africans were
shipped from Africa to the Americas during this
period, into often appalling conditions of slavery.
However, as the horrors of the slave trade
became known in Europe, a political movement
began to abolish it. Known as abolitionism, the
movement began in the 18th century and gradually
grew. Rationalist thinkers began to criticise slavery
as violating the rights of man, and evangelical
religions began to criticise it as ‘unchristian’. In
Britain, slavery was ruled illegal in the common
law of England in a 1772 judgment by the Court of
King’s Bench in the case of Somersett (R v Knowles;
ex parte Somersett (1772) 20 State Tr 1), which
followed a recent trend of African, Indian and
East Asian slaves being brought back to England to
work as servants. The judge, Lord Mansfield, held
that slavery was no longer legal in England – but
this did not affect slavery elsewhere in the British
Empire.
Anti-slavery campaigns continued in Britain, led
in particular by British politician and campaigner
William Wilberforce, and exerted pressure on the
British Government to end the trade in slaves in its
overseas territories. Although fiercely opposed by
those with interests in the trade, importation of
slaves to the colonies was officially ended in the
British Empire with the passing of the Slave Trade
Act 1807 (UK). The United States followed in 1808.
However, it was not until the Slavery Abolition
Act 1833 (UK) that slavery itself was abolished,
and all remaining slaves in the British Empire were
freed the following year. Most European countries
ceased exporting slaves in the following decades.

Figure 7.3 During the transatlantic slave trade (17th–19th centuries), an
estimated 12 million Africans were shipped by Europeans to work as slaves in
the Americas.
Many countries in Latin America abolished it
during the wars of independence from Spain in
1810–1822.
Following the 1776 US Declaration of Indepen-
dence, the northern states began to abolish slavery.
Although the Declaration stated that ‘all men are
created equal’, slavery continued in the southern
states where it was still a powerful social and
economic institution, particularly in the agricul-
tural industry. The US abolitionist movement cam-
paigned vigorously against slavery and it became
one of the main causes for the outbreak of the
American Civil War (1861–1865), by which time the
slave population had grown to over four million.
The then newly-elected US president, Abraham
Lincoln, was an abolitionist who the southern
states believed threatened their way of life. All
US slaves were freed by the end of the war in
1865, and slavery abolished by the addition of the
Thirteenth Amendment to the US Constitution.
The abolitionist movement continued in the
rest of the world, but by this stage there was a con-
sensus among many countries that slavery was
no longer acceptable. In 1890, European coun-
tries met in Brussels, Belgium to sign the General
Act of Brussels. This was the first ever major
collaboration of international states to abolish
Hum an rig hts
Figure 7.4 British politician William
Wilberforce (1759–1833) was the
leading campaigner behind the
abolition of slavery in the British Empire.
slavery and was aimed mainly at the slave trade in
European protectorates in Africa. The next signi-
ficant attempt was the League of Nations Slavery
Convention, a comprehensive international con-
vention on abolishing slavery worldwide, passed
in 1926 after the end of the First World War by
the League of Nations, the precursor body to the
United Nations.
After the end of the Second World War, the
states of the United Nations made a clear state-
ment that slavery was prohibited, under Article 4
of the Universal Declaration of Human Rights.
Although in some parts of Africa, Asia and the
Islamic world, slavery persisted as a legal institu-
tion well into the 20th century, later treaties
addressed issues of combating on-going slavery in
more detail.
The last state to officially abolish slavery was
Mauritania in West Africa in 1981. However, despite
centuries of anti-slavery efforts, illegal slavery still
occurs today, with an estimated 27 million people
enslaved worldwide. Human trafficking, child
labour, sexual slavery and forced labour are still
human trafficking
serious issues around the world and new measures the illegal movement
have begun to try to combat these. The issue of of people across
borders by force,
human trafficking is discussed in more detail in coercion or deceptive
Chapter 9. means
Cha pter 7: T he na ture a nd development of huma n ri ghts 149
 Figure 7.5 The major cause of the American Civil War (1861–1865) was the increasing importance of
human rights issues between the slave-holding southern states and the non-slave-holding northern states.
R EVIEW 7.2
1 Describe the traditional forms of slavery
and why it was eventually condemned.
2 Explain how slavery spread through
colonial times.
3 Outline the origins of the abolitionist
movement and how it came to succeed.
le g al in fo
Universal Declaration of
Human Rights – abolition
of slavery
Article 4.
No one shall be held in
slavery or servitude; slavery
and the slave trade shall be
prohibited in all their forms.
150 C am b r id g e L e g a l S t u d ie s – HS C
R ESEAR CH 7 . 1
The Amistad Case 1841: United States v
Libellants and Claimants of the Schooner
Amistad 40 U.S. (15 Pet.) 518 (1841)
This case was fought in the northern US state of
New Haven. The central issue was the fate of a
group of slaves who mutinied on the ship Amistad
against slave-traders who had kidnapped them
from Africa in order to sell them in the southern
United States. The US Supreme Court was given
the task of deciding whether the Africans should
be freed or sent back into slavery. John Quincy
Adams, former President of the US, acted as
the slaves’ defence lawyer and argued for their
freedom. The 1997 film by Steven Spielberg,
Amistad, details the legal case.
View the film or use the weblinks below in
order to complete the following tasks:
s www.archives.gov/education/lessons/amistad/
s www.law.umkc.edu/faculty/projects/ftrials/
amistad/AMI_ACT.HTM
1 Discuss how the US Constitution was used in
defence of the Africans on the Amistad.
2 Explain how this case fit into the broader
debate over slavery in the US at this time.
Trade unionism and
labour rights
As discussed above, slavery was an institution of
forced labour, where slaves were considered legal
property of the owner (master), without legal rights
of their own. As the world progressed and forced
labour was made illegal, conventional labour was
the only legal means of securing large groups of
workers.
Employment law as we know it today is a rela-
tively recent development. Rights to a minimum
wage, safe working conditions or paid holidays
were not recognised in older legal systems.
Although much of the work carried out in ancient
times was conducted by slaves, non-slave labour
groups also existed. For example, recent archeo-
logical evidence suggests that the Egyptian pyra-
mids were not, as previously thought, constructed
by slaves, but by craftsmen and farmhands who
were given food and accommodation for three-
month periods and possibly a small wage. In
Rome, the purchase of slaves was probably consid-
ered the cheapest means of securing labour, but
hired labour was frequently used.
In early Europe, regulation of the workplace
was more generally based on status. Some groups
of labourers and craftsmen formed associations
based on their trades, known as craft guilds. Serfs,
who were agricultural labourers tied to the land,
were the lowest but most common social class
and in many ways resembled slaves. As serfdom
diminished in England, there was some form of
legislative regulation of labour and wages, but
these laws were generally designed to compel
labourers into work more than to protect them.
In Europe, labor law as a protection for workers,
with demands for better conditions and the right to
organise, arose with the Industrial Revolution and
the introduction of mechanised manufacture. The
Industrial Revolution, which occurred during the
18th to 19th centuries, began in the UK and spread
to Europe, America, Australia and the rest of the
world. Major changes in the fields of manufacture,
agriculture and transport redefined society and
acted as the catalyst for changes to labour laws.
Hum an rig hts
Figure 7.6 Trade unions first emerged during the Industrial
Revolution in response to the appalling conditions, lack of
safety, low wages and long working hours in the factories of
the new industrial cities.
Trade unions first emerged during the Industrial
Revolution in response to the appalling conditions,
lack of safety, low wages and long working hours
in the factories of the new industrial cities. Large
numbers of employees within industries, parti-
cularly manufacturing, began to demand better
working conditions and wages, while employers
would tend to deny improvements and keep wages
low to decrease costs. It was only through action
by all the workers in a factory that employers could
be forced to improve conditions for workers. If all
the workers went on strike, the employer could
be forced to listen to their demands as they could
not sack their entire workforce. For this reason,
employers would seek to deny employees any
Industrial
right to organised labour.
Revolution
The earliest trade unionists faced difficult con- the rapid
ditions. Laws were created to criminalise workers’ development of
industry in the 18th
involvement in trade unions and heavy penalties
and 19th centuries,
were applied. For example, in 1834 a group of farm characterised
labourers in Tolpuddle, England, formed a society by changes in
manufacturing,
to campaign for higher wages. Six of the leaders agriculture and
were arrested and sentenced to transportation to transport
Cha pter 7: T he na ture a nd development of huma n ri ghts 151
 Australia for seven years. They became known as
the Tolpuddle Martyrs. After many similar strug-
gles, the first Trades Union Congress was set up in
1868. By the time of the second congress in 1869,
the 40 representatives who attended represented
over one-quarter of a million workers in the UK.
Finally, the British Parliament was pressured
to pass the Trade Unions Act 1871 (UK), which
secured the legal status of trade unions. Since
then, trade unions have played an integral role in
securing rights for workers in the UK. Similarly, in
Australia, the union movement developed from
International Labour the 19th century. Due to harsh tactics employed by
Organization (ILO)
governments and employers to break large-scale
an international agency
of the United Nations, strikes in the 1890s, the unions in Australia joined
created with the aim of together to form their own political party, known
improving conditions
as the Australian Labor Party (ALP).
for workers around the
world Trade unions worked to ensure that fair wages
and conditions were maintained and many work-
ing conditions taken for granted today in indus-
trialised countries came about due to union
action. For example, union achievements include
the establishment of minimum wages and work-
ing conditions, equal pay, long service leave, paid
public holidays, maternity leave, annual leave,
occupational health and safety laws, and workers
compensation. A series of legislation was passed
l eg a l i nfo
in the late 19th century aimed at improving safety
and working conditions in many of the prime
industries, such as mining and textiles.
Late in the 19th century, associations of workers
began to link up with similar organisations in other
countries to protect workers’ rights internation-
ally. The First International (1864–1876) and the
Second International (1889–1916) were periodic
gatherings of representatives from unions and
political parties from around the world to urge
improved conditions for workers.
In 1919, following the end of the First World
War, a group of pioneering scholars, social policy
experts, and politicians succeeded in creating
an International Labour Organization (ILO) to
discuss social reforms and put them into practice.
It was formed by governments as an agency of
the League of Nations, with its office in Geneva,
Switzerland. The organisation was created with the
aim of improving conditions for workers around
the world and over time has been responsible for
many conventions on working conditions and
rights. In addition to slavery, it was one of the few
areas in which the League of Nations promoted
modern human rights. After the League of Nations
was disbanded, the ILO became an agency of the
United Nations and continues its work today.

Universal Declaration of Human Rights – labour and trade union rights

Article 23. and supplemented, if necessary, by other means of

(1) Everyone has the right to work, to free choice of social protection.

employment, to just and favourable conditions of (4) Everyone has the right to form and to join trade
work and to protection against unemployment. unions for the protection of his interests.

(2) Everyone, without any discrimination, has the Article 24.

right to equal pay for equal work. Everyone has the right to rest and leisure, including
(3) Everyone who works has the right to just and reasonable limitation of working hours and periodic
favourable remuneration ensuring for himself and holidays with pay.
his family an existence worthy of human dignity,

152 C am b r id g e L e g a l S t u d ie s – HS C
 Labour rights were finally enshrined in the
Universal Declaration of Human Rights under articles
23 and 24 (on page 152). Later treaties, such as the
International Covenant on Economic, Social
and Cultural Rights (ICESCR) 1966, as well as
the on-going work of the ILO, have further defined
those rights and sought to implement them around
the world.
REVIEW 7.3
1 Describe what is meant by a trade union
and why they were historically important.
2 Identify five different labour rights.
3 Explain when the ILO was formed and what
its role is today.
Universal suffrage
The theory of democracy, that the authority of
government should be based on the will of the
people as expressed through genuine periodic
elections, is not a new concept and can be traced
back to ancient times. However, where demo-
cracies have existed throughout history, the right
to vote, known as suffrage, was usually restricted
to certain classes – for example by status, gender,
race, age, beliefs or nationality. The concept of
universal suffrage is only a recent development in
the world, but where it has been achieved, it is now
considered an essential human right.
Democracy as a form of government is not
something that can be easily taken for granted.
Where it exists today it has often been achieved
as a result of prolonged or bloody civil wars,
international intervention or assistance, or inde-
pendence granted through a country that has gone
through one of these processes. Where it does
exist it requires constant checks and balances to
ensure it remains genuinely free and healthy.
The first modern countries to achieve demo-
cracy allowed only a limited number of men to
vote, and usually only those men with higher status
who owned large amounts of property or came
Hum an rig hts
Figure 7.7 American suffragettes
from certain backgrounds. This was usually due to International
a mistrust or suspicion of the general population, Covenant on
Economic, Social
or an assumption that they could not understand and Cultural Rights
the affairs of government. (ICESCR)
binding international
Demands for suffrage for all males began in
world democracies in the nineteenth century. For
treaty creating
obligations on states
example, in the UK, rights for male voters were to respect economic,
social and cultural
only gradually extended – and to males who rented
rights of individuals
land of a certain value (1832), to all male house-
suffrage
holders (1867), and to males in the countryside the legal right to
(1884). However, this still represented only about vote in a democratic
election
60 per cent of the adult male population. It was not
suffragette
until the Representation of the People Act 1918 (UK)
a supporter of
that the vote was extended to the whole adult male women’s right to
population. vote (or women’s
suffrage); the term
Among democratic countries, pressure grew was first used in
to extend voting rights to women. Women who Britain at the end of
the 19th century
campaigned for the right to vote were known as
suffragettes. They waged a long and difficult
campaign for the right to vote in democracies
dominated by male interests. The right to vote
regardless of gender was an important symbol
of women’s struggle for equality in general. In
1893, New Zealand became the first country in
the world to permit women an equal right to vote.
The Australian state of South Australia followed in
1894, with the Australian Commonwealth allowing
women’s suffrage in 1902. It was not until 1918,
after the end of the First World War, that the UK
allowed women a limited right to vote, which was
not made equal with men’s rights until 1928. The
Cha pter 7: T he na ture a nd development of huma n ri ghts 153

fascism
an authoritarian system
of government that is
opposed to democracy
and is marked by
the State having
total control over
the economic, social,
cultural and political life
of the people
Figure 7.8 A 1967 constitutional referendum finally gave Indigenous
Australians equal status as citizens, including the right to be counted in
the Australian census.
154 C am b r id g e L e g a l S t u d ie s – HS C
US passed the 19th Amendment allowing women
the right to vote in 1920.
Apart from status and gender, race was another
issue that conflicted with rights to vote. For
example, in the Americas, social stigma was
strongly attached to certain races, particularly
native Americans and the African-American popu-
lations. In 1870 in the US, following the American
Civil War, the right to vote was extended by the
15th Amendment to all adult males, regardless of
race, colour or previous servitude. In New Zealand,
Māori voters were not expressly excluded from
voting but a requirement of property ownership
effectively excluded them. In 1867, this requirement
was removed, extending the vote across the male
population. This legislation also established Māori
representation in the lower house of parliament.
In Australia, Indigenous peoples were permitted
the right to vote since the time of Federation in
1901, if their state of residence granted them that
right, and some South Australian Aboriginal men
and women voted for the first Commonwealth
Parliament. However, due to later interpretations
by the government and discriminatory measures
adopted by the states, Indigenous peoples were
effectively denied the right to vote until 1962. In
that year, the Commonwealth legislated to ensure
Indigenous peoples had the right to vote regardless
of their state voting rights, although unlike for other
Australians this was not compulsory. A 1967 consti-
tutional referendum finally gave Indigenous Austra-
lians equal status as citizens, including the right to
be counted in the Australian census. The consti-
tutional amendment became a symbol of public
recognition of the rights of Indigenous Australians.
The right to vote was recognised as a universal
human right in Article 21 of the Universal
Declaration of Human Rights. Despite gradual
advances of suffrage, there were still only a small
number of democratic countries in the world in
the first half of the 20th century. In 1900, there
were just 10 democracies in the world. This grew
to 20 by 1920 but then declined to 12 by 1939 due
to the advances of Nazism and fascism. By 1960,
there were 25 democracies in the world, growing
to 30 by 1980. This doubled to 60 by 1990 and
by 2000 there were 75 democratic nation-states.
By 2010, 89 countries, representing 46 per cent of
the world’s total population, are classified as freely
le g al li nk s
Freedom House is an independent
organisation established in 1941
to encourage democratic freedom
around the world. The Freedom
House website has up-to-date
statistics on the state of freedom
in every country and can be found
at www.freedomhouse.org
 l e g a l i n fo
Universal Declaration of Human Rights – universal suffrage
Article 21.
(1) Everyone has the right to take part in the
government of his country, directly or through
freely chosen representatives.
(2) Everyone has the right of equal access to public
service in his country.
democratic. 47 countries, or 34 per cent of the
world’s population, are still classified as ‘not free’.
REVIEW 7.4
1 Describe why suffrage is important.
2 Identify when universal suffrage was
achieved in three countries other than
Australia.
3 Evaluate how widespread suffrage and
democracy is in the world today.
Universal education
Universal education refers to the idea that all
human beings have a right to an education. This
concept has only reached wide acceptance in rela-
tively recent history. Although today some type
of education is compulsory for children in almost
all countries, in early civilisations education was
generally associated with wealth and power or with
certain trades, beliefs or religions. Most people
would have received informal education from their
families and community, with other skills learnt
directly through their daily work or vocation.
With the development and spread of writing
systems, it became possible for ideas and infor-
mation to be accurately passed on over time and
space and writing became associated with law,
commerce, religion and civil administration. But
until recent times, illiteracy was still the norm in
most of the world and formal schooling was only
available to a select few. The push for universal
education within individual countries did not really
(3) The will of the people shall be the basis of
the authority of government; this will shall be
expressed in periodic and genuine elections which
shall be by universal and equal suffrage and shall
be held by secret vote or by equivalent free voting
Hum an rig hts
procedures.
begin until the 19th century onwards. There were
some exceptions, for example one Aztec tribe in
the 14th to 16th century was one of the first
communities in the world to have compulsory
education for nearly all children, regardless of
gender or rank.
In Europe, the church was generally the first
to take on the role as educator for all, and only
much later superseded by the state. For example,
in Scotland in 1561, the Church of Scotland put
forward the principle of a school teacher for every
parish and free education for the poor. In Norway
in the 16th century, cathedral schools were turned
into Latin schools and made mandatory for every
market town – later in 1736, training in reading
was made compulsory for all children. In England
in the 19th century, churches began giving free
education on Sundays, originally called ‘Sunday
schools’. They were designed to teach students
reading, writing and arithmetic.
By the mid-1800s in Europe, the increasing
demands of industrialisation, a growing competi-
tiveness between countries and widening suffrage
required a literate and educated population.
European governments began providing funding
for schools, and over time the government also
administered these schools. In 1870, the British
Parliament passed the Education Act 1870 (UK),
and in 1880 education was made compulsory for
all British children between five to 10 years of
age, which was later raised to 12 years in 1889.
In France, by 1880 all children under the age of
15 were required to attend school, with free and
secular public instruction.
Cha pter 7: T he na ture a nd development of huma n ri ghts 155
 Similarly, laws were passed in the Australian
states to make education free and compulsory
at primary level. In New South Wales, the Public
Instruction Act 1880 (NSW) led to government
taking control of all the Church-run schools, except
those run by the Catholic Church, and making
education free, secular and compulsory. The first
government school for Indigenous Australians was
also created, but less than 200 out of 1500 eligible
children were under instruction. These schools
were later merged into the general public system.
Today, it is compulsory for all Australians to attend
school from at least the ages of 6 to 15, depending
on the state. From 2010, the school leaving age
in NSW was raised to 17 years. The Australian
population now has a 99 per cent literacy rate.
By the 20th century and the end of the Second
World War, free and compulsory education had
spread throughout developed nations and was
regarded as not only a desirable goal for all govern-
ments to pursue but was also seen as a basic human
right. The United Nations made education a major
priority of its economic and social development
programs and the right to free education for all
human beings was included under Article 26 of
the UDHR, which goes on to state that children’s
collective right elementary education should be compulsory and
a right belonging to be made widely available after that.
a group or a people,
as opposed to an Although free and compulsory education is
individual right now available in almost all countries in the world,
l eg a l i nf o
there are still many children who for numerous
reasons cannot access the education. In 2001, all
member states of the United Nations agreed to
a series of Millennium Development Goals which
aimed to improve social and economic conditions
in the world’s poorest countries. The second goal
states that all children in the world will have a
minimum education up to the end of primary
level by 2015. It remains to be seen whether the
developed countries of the world will be able to
meet this commitment in helping poorer countries
to achieve this goal.
R EVI EW 7 . 5
1 Identify when the promotion of universal
education began.
2 Describe what elements universal education
is considered to involve.
3 Explain the goal of the UN with regards to
universal education.
Self-determination
The rights discussed so far have been rights of the
individual, such as the right of an individual to join
a trade union or the right to universal education.
However, the right of self-determination differs
from individual rights – it is a collective right, a
right of a group or a people. The collective right to

Universal Declaration of Human Rights – universal education

Article 26. (2) Education shall be directed to the full

(1) Everyone has the right to education. Education development of the human personality and to

shall be free, at least in the elementary and the strengthening of respect for human rights

fundamental stages. Elementary education shall be and fundamental freedoms. It shall promote

compulsory. Technical and professional education understanding, tolerance and friendship among

shall be made generally available and higher all nations, racial or religious groups, and shall

education shall be equally accessible to all on the further the activities of the United Nations for the

basis of merit. maintenance of peace.

(3) Parents have a prior right to choose the kind of

education that shall be given to their children.

156 C am b r id g e L e g a l S t u d ie s – HS C

Figure 7.9 The UDHR states that education in the primary years should be compulsory for all children.
self-determination means that people of a territory
or national grouping have the right to determine
their own political status – the group has the right
to choose how it will be governed without undue
influence from another country.
Political self-determination is something that
has been fought for throughout history by collec-
tive peoples against various powers and regimes.
It is closely related to democratic rights in that it
involves the consent of the people as the basis
for a sovereign state. Self-determination as a
right became particularly important after world
colonisation by the European powers, where
people around the world were placed under direct
control of imperial powers, rarely if ever with the
interests of those people in mind. Over the cen-
turies, bloody conflicts arose worldwide in Africa,
the Americas, Asia, the Middle East and Oceania
against colonial rule. Europe itself experienced
constant conflict between groups wishing to
exercise self-determination against ever-changing
imperial powers.
The rise of self-determination as a right began
perhaps most clearly with the 1776 US Declaration
of Independence against British colonial rule. The
right of self-determination was also fought for in
Europe during the French Revolution of 1789–
1799, and in Latin America in the various wars
of Independence from the 18th century onwards
Hum an rig hts
against European colonial rule. However, it was
the First and Second World Wars that truly began
the push for international recognition of the right
as a path to peace.
The 1919 establishment of the League of Nations
was a consolidation of many of the new states that
arose following the First World War, but it lacked
membership of the US. It was the establishment
of the UN Charter in 1945, following the atrocities
and world-changing effects of the Second World
War, that established the first universal recog-
nition of the right to self-determination under
Article 1(2) of the Charter (see Legal info box on
the next page). Article 1(2) calls for respect of
the principle of self-determination, and is further
strengthened by Article 15 of the UDHR which
states that everyone has a right to a nationality and
no-one should be arbitrarily deprived of this or of
the right to change nationality. The International
Covenant on Social, Economic and Cultural Rights,
adopted by the UN in 1966 and in force in 1976,
includes self-determination as its primary right,
under Article 1(1).
Self-determination of peoples was one of the
conditions the US imposed on the Allied forces
before entering the Second World War. Chapter 13
of the UN Charter later provided for a Trusteeship
Council of the United Nations to provide inter-
national supervision for the transition on ‘trust’
Cha pter 7: T he na ture a nd development of huma n ri ghts 157
 territories to self-government after the end of the
Second World War. The last trust territory was
Palau, which achieved independence in 1994.
Colonial powers were encouraged to oversee
the independence of their territories in the best
interests of those people. Between 1960 and 1993,
53 territories became self-governing independent
states. The most recent country to be granted
independence is Montenegro, which achieved UN
membership in 2006. There are still many groups
in the world claiming a desire to self-govern, and it
is likely that more independent territories will be
recognised in future years.
A more recent issue of self-determination is that
of indigenous peoples. There are over 5000
different indigenous peoples recognised in the
world, made up of over 300 million people in more
than 70 countries. In many countries, indigenous
people have been regularly excluded from the
democratic process, forcefully assimilated, eco-
nomically exploited or generally oppressed. In
2007, the United Nations adopted the Declaration
of the Rights of Indigenous Peoples. The Declaration
took over 20 years to complete and, as with the
UDHR, is only a non-binding declaration on
member states. Only four states rejected the
declaration, of which Australia was one, although
a number of others abstained from voting. The
Howard Coalition Government at the time stated
its reason for rejection as ‘there should only be one
law for all Australians‘. However, in April 2009, the
former Rudd Labor Government formally endorsed
the Declaration on behalf of Australia.
l e ga l i n f o
There is every indication that the Declaration
will be a significant stepping stone to greater
awareness and protection of the world’s indige-
nous peoples. After all, the UDHR itself was only a
declaration, but as we have learnt, it became the
foundation for all international human rights law.
R EVI EW 7 . 6
1 Define ‘self-determination’ and explain how
it differs from other human rights.
2 Identify where the right to self-
determination is contained.
3 Explain how self-determination might apply
to indigenous peoples.
Environmental rights
More recent discussions of human rights have
been focused around the possibility of universally
recognised environmental rights. Environmental
rights are unlike individual rights, or even collec-
tive rights, but are argued to relate to many
existing agreed rights. For example, the rights to
life, health or property are already contained in
human rights declarations treaties and many other
international agreements. Supporters of environ-
mental rights argue that these rights cannot be
fully realised without the right to a healthy, safe
and adequate environment. This right is said to
relate not only to current generations, but also to
future generations.

United Nations Charter – self-determination

Article 1. The purposes of the United Nations are … International Covenant on Economic Social and

(2) To develop friendly relations among nations Cultural Rights

based on respect for the principle of equal rights All peoples have the right of self-determination.
and self-determination of peoples, and to take By virtue of that right they freely determine their
other appropriate measures to strengthen universal political status and freely pursue their economic,
peace. social and cultural development.

158 C am b r id g e L e g a l S t u d ie s – HS C
 Hum an rig hts
Figure 7.10 Environmental rights are said to be crucial to achieve other human rights, such as rights
to life, health or property.

Environmental rights have been recognised in
some international agreements. For example, the
African Charter on Human and Peoples’ Rights, which
came into force in 1981 and has been adopted
by 53 African states, includes the right to a satis-
factory environment under Article 23. Similarly,
the American Convention on Human Rights under
the Organisation of American States includes in
its second Protocol, which opened for signature in
1988, the explicit right to a healthy environment and
the obligation on all state parties to protect, preserve
and improve the environment.
Although there has been no universal recog-
nition of environmental rights, there have been
numerous treaties that attempt to deal univer-
sally with specific environmental threats. For
example, the Stockholm Declaration (1972), the Rio
Declaration (1992) and the Kyoto Protocol (1997)
l e ga l i n f o
represent attempts by the international commu-
nity to deal with environmental problems, such as
global warming, the spread of epidemics, marine
pollution, the depletion of the ozone layer and
atmospheric pollution.
Again, one of the main problems in achieving
progress in this area is the failure of all states to
commit to measures for the benefit of the global
community when they may seem to the short-term
disadvantage of their national interest. Yet failure
to achieve global consensus on environmental
issues could see dramatic deterioration in the
rights and living standards of millions of people
globally. The UN Climate Change Conference held
in Copenhagen in December 2009 demonstrated
how difficult it is to secure global agreement in
this area. Chapter 11 contains further discussion
of environmental law.

African Charter on Human and People’s Rights – environmental rights (example)

Article 23. Article 11. Right to a Healthy Environment

All peoples shall have the right to a general (1) Everyone shall have the right to live in a healthy
satisfactory environment favourable to their environment and to have access to basic public
development. services.

Second Protocol to the American Convention on (2) The States Parties shall promote the protection,
Human Rights preservation, and improvement of the environment.

Cha pter 7: T he na ture a nd development of huma n ri ghts 159

 Figure 7.11 The 2009 UN Climate Change Conference demonstrated how difficult it is to secure
global agreement on issues relating to climate change.
R EVIEW 7.7
1 Explain how environmental rights relate to
human rights.
2 Identify where environmental rights have
already been declared.
3 Describe the other international measures
used to protect environmental rights.
Peace rights
In 1919, the countries that emerged victorious
from the First World War held a peace conference
at Versailles, France. This became known as the
Paris Peace Conference. The parties to the Con-
ference achieved the treaties that officially ended
the First World War, including the Treaty of
Versailles, but also established for the first time
in history a world body with the primary aim of
160 C am b r id g e L e g a l S t u d ie s – HS C
preventing war: the League of Nations. The main
purpose of the League of Nations was expressed
in the first line of the Covenant of the League of
Nations: ’to promote international co-operation
and to achieve international peace and security‘.
Ultimately the League of Nations failed and
the Second World War broke out, due largely to
the failure of the Treaty of Versailles. Crucially, the
League also failed to achieve the membership
of the US. In the aftermath of the Second World
War, and the atrocities of both wars during which
a combined total of almost 100 million people
were killed, the United Nations was formed, with
the US leading the other Allied Forces. The United
Nations Charter, signed 26 June 1945, explicitly
made peace the primary purpose of the United
Nations. The first line of the Charter stated as its
purpose ’to save succeeding generations from the
scourge of war, which twice in our lifetime has
brought untold sorrow to mankind’. Article 1(1) of
the Charter makes the maintenance of peace its
primary purpose and, most importantly, gives it
the power to take measures to prevent and remove
threats to peace.
These statements, in possibly the most sig-
means to enforce it could have been one of the
most significant advances of modern humankind.
Yet despite these advances, war has still not
been eliminated and conflicts around the world
continue. Most have been civil wars but many have
involved international conflict or international
forces. Some of the major wars since the signing

nificant treaties in history, effectively outlawed
war, except in specific circumstances. They can
be taken to declare the right of every state, and
individuals within those states, to live in peace. Up
to the 20th century, no such concept of a right to
peace existed in international law. In fact, for all
of human history until recently, war was generally
seen as a legal and legitimate means of solving
disputes and determining political and economic
control over territories and populations.
In 1984, the UN General Assembly adopted a
Declaration on the Right of Peoples to Peace.
Although as a declaration it is non-binding, it pro-
claimed that all ‘peoples of our planet have a
sacred right to peace’. It also declared that pro-
moting and implementing the right to peace is a
fundamental obligation of states, and that govern-
ment policies should be directed towards:
s elimination of the threat of war, particularly
nuclear war
s renunciation of the use of force in international
relations
s the settlement of international disputes by
peaceful means on the basis of the UN Charter.
The establishment of the right of peace, an inter-
national body to oversee it and international
l eg a l i nf o
Hu m an rig hts
of the UN Charter have included the Korean War
(1950+), Vietnam War (1959–1975), Iran–Iraq War
(1980–1988), Persian Gulf War (1990–1991) or the
Yugoslav Wars (1991–1995). There are a number
of wars still on-going at the time of publication,
including the Somali Civil War (since 1986), the
War in Afghanistan (since 2001) or the Iraq War
(since 2003).
In international law, the right of peace is
balanced against the right of self-defence. Article
51 of the UN Charter declares that states have
an inherent right of individual or collective self-
defence if an armed attack occurs against them,
and under Article 39 the UN Security Council can
authorise actions to maintain or restore peace if
necessary. Many wars have been considered legal
on this basis. For example, the 2003 invasion of
Iraq by the US, the UK and allies was claimed by
the parties to be legal under a resolution made by
the Security Council under Article 39 (Resolution
1441). Yet the intention of that resolution and the
legality of the invasion are still under dispute.
The right of peace, especially the Declaration on
the Right of Peoples to Peace, makes it clear that
peace for all people should be the paramount
consideration. Legal or illegal, a war can have

United Nations Charter – peace and security

Article 1. aggression or other breaches of the peace, and to

The purposes of the United Nations are: bring about by peaceful means, and in conformity
with the principles of justice and international law,
(1) To maintain international peace and security,
adjustment or settlement of international disputes
and to that end: to take effective collective
or situations which might lead to a breach of the
measures for the prevention and removal of threats
peace;
to the peace, and for the suppression of acts of

Cha pter 7: T he na ture a nd development of huma n ri ghts 161

 tragic and catastrophic effects on individuals
and communities. Where a state commences an
illegal war, it is considered a breach of the peace
or a ‘war of aggression’. Where any war, legal or
illegal, is conducted, all parties must comply with
the various laws of war which aim to minimise
the effect on peace and the community. The
International Criminal Court (ICC) established
in 2002 has now been given jurisdiction to try
individual people for wars of aggression, as well
as war crimes and other crimes against the inter-
national community. Although states are still in
Fo r m a l s t a t e m e n t s o f
human rights
This chapter has considered how various rights
developed historically into modern and inter-
nationally recognised human rights. These rights
have only recently been given formal recognition
by the international community. The catalyst for
Figure 7.12 Eleanor Roosevelt holding the Universal Declaration of
Human Rights in November 1949.
162 C am b r id g e L e g a l S t u d ie s – HS C
discussion on the definition of war of aggression,
many prosecutions have been made against indi-
viduals relating to various war crimes. For more on
the ICC, refer to Chapter 6.
R EVI EW 7 . 8
1 Explain how the right to peace came to be
recognised.
2 Identify the documents where the right to
peace is contained and what it means.
3 Assess the balance between the right to
peace and the continuing need for war.
recognition of many of these rights was the horrors
of the First and the Second World Wars, and the
sense of purpose shared by the international
community at the end of these wars. This shared
purpose led to the establishment in 1945 of a body
to oversee the international community and act as
a crucial forum for discussion and agreement for
all states – the United Nations.
The General Assembly of the United Nations
gave the international community a voice for their
concerns and a place to agree on measures that
needed to be put in place throughout the world.
It quickly became a forum for developing and
expanding international laws through important
international treaties and declarations of shared
intent. Almost immediately, formal recognition
of human rights was placed on the international
agenda.
Universal Declaration of
Human Rights
Pressure for an international bill of rights had
been growing for some time, but it was the Second
World War that finally stirred the world into action.
In 1941, US President Franklin Roosevelt called for
the protection of Four Freedoms for all people:
the freedom of speech and conscience, and the
freedom from fear and want. With the formation
of the United Nations in 1945, human rights were
brought to centre stage – the second purpose
listed in the UN Charter, after the purpose of
The UDHR was adopted as a declaration, rather
than a fully binding treaty, for the purpose of
defining ‘fundamental freedoms’ and ‘human
rights’ in the UN Charter, which is binding on all Four Freedoms
the freedoms for all
member states. As a declaration, the UDHR is
people called for by
‘soft law’, meaning officially non-binding but still US President Franklin
influential, rather than containing enforceable Roosevelt in his 1941
State of the Union

Hum an rig hts

peace, was ‘to reaffirm faith in fundamental ‘hard law’ obligations. In hindsight, this was prob-
address, including
human rights, in the dignity and worth of the ably the correct decision because it meant that the freedom of speech
human person’. It also created an obligation under maximum number of countries were willing to and conscience, and
freedom from fear
Article 2(2) for the promotion of ‘universal respect sign it. When the UDHR was first adopted, Eleanor
and want
for, and observance of, human rights and funda- Roosevelt was quoted as saying that it would create
soft law
mental freedoms for all’. a ‘curious grapevine [that] may seep in even when international
The UN Charter did not define what those governments are not anxious for it’. One particular statements, such as
declarations, that do
human rights and fundamental freedoms were. grapevine that she may have had in mind are non- not necessarily create
A formal statement of those universal rights was government organisations (NGOs), which are legal obligations upon
nation-states but do
needed and work began on developing one. The non-profit groups who often play an important role
create pressure to act
Universal Declaration of Human Rights (UDHR), the in advocating, analysing and reporting on human in accordance with
first declaration written by the United Nations, rights worldwide, and ‘shaming’ governments into them

became the high point in the quest for the recog- action. The number of NGOs worldwide has grown hard law
conventions and
nition of human rights. The UN Commission exponentially over the last century.
treaties that under
on Human Rights entrusted with drafting the The UDHR has become an enduring statement international law
document was chaired by former US First Lady that has inspired more than 200 international create legally binding
obligations on their
and delegate to the General Assembly, Eleanor treaties, conventions, declarations and bills of
members
Roosevelt. The Commission referred to historic rights in the last 50 years. It is possibly the most
non-government
documents containing rights as well as worldwide important of all human rights documents and has organisations
political, philosophical and religious movements. stood the test of time. Despite on-going abuses (NGOs)
independent
Its members included broad representation of by some countries, the UDHR has gained wide non-profit groups
the global community including Australia, Chile, acceptance by the international community. Even who often play an
important role in
Egypt, France, India, Iran, the Soviet Union and though it is not a formal treaty, it has arguably
advocating, analysing
Uruguay, as well as the US and the UK. become part of international customary law, and and reporting
The Declaration was adopted on 10 December has become the foundation for eight core human on human rights
worldwide
1948 and was originally signed by 48 of the 58 rights treaties, two of which are discussed below,
international
states that existed in the world at that time. The as well as various treaty bodies that continue
customary law
UDHR includes 30 different articles covering rights to monitor and report the state of human rights actions and concepts
such as the right to life, liberty, security, thought, around the world. that have developed
over time to the
religion, education, work, equality of movement
extent that they
and asylum. The right to join a trade union, have are accepted by
l e g a l l in k s

an adequate standard of living and be able to par- the international

The full text of the Universal
community and have
ticipate fully in cultural life are also included, as Declaration of Human Rights become law
is the right to freedom from slavery and torture. available on the UN website at:
Each of these rights play an extremely important www.un.org/en/documents/
role and have potentially enormous implications udhr
on society and the individual.

Cha pter 7: T he na ture a nd development of huma n ri ghts 163

 R ESEARCH 7.2 cal rights covered, while the communist countries
International Access the full text of the UDHR at wanted only economic and social rights dealt with.
Covenant on Civil To resolve this problem the covenant was split
www.un.org/en/documents/udhr and
and Political Rights
(ICCPR) complete the following tasks: in two: the International Covenant on Civil and
binding international 1 Examine the Preamble to the UDHR and Political Rights (ICCPR) and the International
treaty creating
briefly describe the reasons behind the Covenant on Economic, Social and Cultural
obligations on states
to respect civil and creation of the UDHR. Rights (ICESCR). Together, the UDHR and these
political rights of two covenants are collectively known as the
2 Critically assess how Articles 1 and 2 of the
individuals
UDHR relate to its overall purpose. International Bill of Rights.
International
Covenant on 3 Identify five rights in the UDHR not
Economic, Social discussed in this chapter and describe which International Covenant on Civil
and Cultural Rights
articles they are contained in. and Political Rights (ICCPR)
(ICESCR)
The ICCPR and ICESCR were both drafted and
binding international
treaty creating approved in 1966, but neither came into force
obligations on states until 1976 when they were finally ratified by the
to respect economic,
social and cultural Refer to Chapter 7 on the Student requisite number of countries: 35. Unfortunately,
rights of individuals CD for information relating to the neither of the covenants received much support
International Bill of early development of domestic and from the superpowers at the time: the US and the
Rights
international documents and treaties, USSR.
informal term
collectively describing including the Magna Carta 1215, The ICCPR creates an obligation on state parties
the UDHR, ICCPR and English Bill of Rights 1688, the US to respect civil and political rights of individuals,
ICESCR combined
Constitution 1787 and Bill of Rights including equality between men and women
ratify (ratification)
1789, and the French Declaration of (Articles 2 and 3), the right to life (Article 6), the
the process of a
country formally the Rights of Man 1789. right to freedom of movement, the right to a fair
approving a treaty, trial and the right to be presumed innocent until
making it legally
proven guilty (Articles 9 and 14). It also guarantees
binding
freedom of thought, conscience, speech, religion
and assembly (Articles 18–19, 27, 22). In addition,
International Bill of Rights it states that people have the right to marry who-
When the UDHR was originally drafted, it was ever they wish and have a family and it provides for
intended to include three components: the dec- all children to be given special protection under the
laration itself, an international treaty relating to it, law (23–24). Torture and slavery are outlawed and
and measures of implementation. However, once prisoners must be treated with respect (Articles 7
the UDHR was approved by the General Assembly, and 8). Finally, the covenant guarantees the right
it was many years before any binding covenants to vote and receive equal protection under the law
relating to the rights were finally established. and ensures that ethnic minorities have the right to
The formation of a binding treaty of rights would enjoy their own cultures (Article 26).
oblige nation-states to guarantee human rights in The ICCPR contains monitoring and periodic
their domestic legislation. The UN Commission on reporting arrangements for member states. It
Human Rights was given the task of drafting this is monitored by the Human Rights Committee
document. However, Cold War tensions in the (a separate body to the Human Rights Council)
1960s led to a dispute over what rights should be which reports on compliance by member states
covered in the treaty. The Western European and and investigates violations. At the beginning of
American nation-states wanted only civil and politi- 2010, the ICCPR had been widely ratified, with 165

164 C am b r id g e L e g a l S t u d ie s – HS C

Figure 7.13 The ICESCR ensures that children such as 7-year-old Nang Paysaung from Dakcheung,
Lao, have the right to a free education.
state parties. Notable exceptions include China,
Pakistan and Cuba who although signing, have
not ratified the treaty. The US ratified the ICCPR
in 1992 but added many reservations that signi-
ficantly reduced its domestic effect. A number
of countries, including Burma, Malaysia, Saudi
Arabia and Singapore have to this day neither
signed nor ratified the ICCPR.
International Covenant on
Economic, Social and Cultural
Rights (ICESCR)
Like the ICCPR, the ICESCR was approved in 1966
and came into force in 1976. It created an obliga-
tion on state parties to work towards granting eco-
nomic, social and cultural rights to individuals.
The ICESCR includes labour rights, such as the
right to just conditions and fair wages at work, as
well as the right to join trade unions. It also created
rights to an adequate standard of living, including
the right to adequate food, clothing, housing and
health care. Finally, the right to education is guar-
anteed – stating primary education should be
compulsory and free for all.
Hum an rig hts
The ICESCR is monitored by the UN Committee
on Economic, Social and Cultural Rights. At the
beginning of 2010, the ICESCR had also been
widely ratified, with 160 state parties. Notably,
the US signed the ICESCR in 1979 but has never
ratified it. South Africa has also signed but never
ratified the covenant. Notable countries that have
neither signed nor ratified the ICESCR include
Burma, Malaysia and Saudi Arabia.
R EVI EW 7 . 9
1 Describe why a formal statement of human
rights was needed.
2 Identify the link between the UN Charter
and the UDHR.
3 Examine the claim that the UDHR
represented a critical turning point in
human rights.
4 Explain the reasons why the ICCPR and
ICESCR were needed on top of the UDHR.
5 Assess the differences between the ICCPR
and ICESCR.
Cha pter 7: T he na ture a nd development of huma n ri ghts 165
 s The term ‘human rights’ came into existence
in a formal way in the 20th century and refers
to fundamental and inalienable rights and
freedoms for every person.
s Human rights are now an integral part of
international law.
s Slavery was for most of human history, a
legitimate institution and has only recently
been outlawed in international law.
s Trade unions in many countries fought long
and hard campaigns for labour rights in many
C hap ter s u m m a ry
countries but the right to join one was not
always guaranteed.
s Universal suffrage has only become a feature
of many nations’ governments in the last 120
years or so.
s Universal education came to be valued by
European governments little more than a
hundred years ago but hundreds of millions
of people in developing countries are not yet
guaranteed a full primary school education.
M u l t ip l e- c hoi ce q ues ti ons
1 The effect of the Slavery Abolition Act of
1833 was to end slavery as a legal institution
in:
a Medieval Europe
b the British Empire
c the world
d Australia
2 The International Labour Organization:
a was formed in 1945
b was based in The Hague in the Netherlands
c was one of the few areas in which
individual human rights were promoted in
international law in the 1920s
d derived its legal authority from the UN
Charter
3 The country that first adopted equal female
suffrage was:
a Australia
b New Zealand
c Great Britain
d the United States
166 C am b r id g e L e g a l S t u d ie s – HS C
s The collective right of self-determination was
long fought for and followed centuries of
colonisation, yet some indigenous peoples
around the world are still struggling to have
their rights respected.
s Environmental rights are a type of collective
right that advocates say should be protected
as a human right.
s Peace rights are recognised as fundamental
to the United Nations, yet war still continues.
s The Universal Declaration of Human Rights
was created in 1948 and is the formal
international statement of human rights.
s The UDHR, ICCPR and ICESCR together
comprise what is called the International
Bill of Rights, which together impose
obligations on states to respect and promote
human rights.
4 Which of the following was not included in
the Declaration of the Rights of Peoples to
Peace of 1984?
a The settlement of international disputes
by peaceful means on the basis of the UN
Charter
b The renunciation of the use of force in
international affairs
c The elimination of the threat of nuclear
weapons
d A requirement that this resolution be
binding on all nations
5 The UDHR:
a was adopted in 1945
b is soft law
c only deals with crimes committed in
wartime
d no longer has any legal standing in
international law because it has been
superseded by the ICCPR and the ICESCR
 Hu m an rig hts
C hap ter s u m m a ry ta s k s

Hum
3 Assess the effectiveness of the right to peace.
4 Describe the process that led to the creation
of the UDHR.
1 Define the meaning of the term ‘human 5 Critically evaluate the effectiveness of the
rights’. UDHR in promoting human rights. Discuss its
2 Explain the history behind the abolition of effect when combined as the International Bill
slavery. of Rights with the ICCPR and ICESCR.

Cha pter 7: T he na ture a nd development of huma n ri ghts 167

 CHAPTER 8
Promoting and
enforcing human rights
c hap te r o b j e cti ve s

In this chapter, students will:
s evaluate the effect of state sovereignty on the
protection of human rights
s describe the role of the various United Nations
agencies and programs in advancing the cause of
human rights
s describe the role of various non-government
organisations and the media in promoting human
rights
k ey t er ms/vocab ul ary
s identify the international and domestic courts and
tribunals that investigate and enforce human rights
s explain how international human rights treaties
become integrated into Australian domestic law
s outline the sections of the Australian Constitution
that give some protection of human rights
s explain how the High Court can protect human
rights
s discuss the arguments for and against having a
Charter of Rights.

division of powers Security Council (UNSC)

dualist system separation of powers
Economic and Social Council state
(ECOSOC) state sovereignty
express rights Trusteeship Council
General Assembly (UNGA)
heads of power
Human Rights Council (UNHRC)
implied rights
incorporation
International Court of Justice (ICJ)
international humanitarian law
monist system
nation
Office of the High Commissioner
for Human Rights
ratify (ratification)
residual powers
resolutions
Secretariat

168 C am b r id g e L e g a l S t u d ie s – HS C
 e rig hts
rel ev ant l aw od d l a w

m an
C rim
Hum
I M PORTANT LEGIS L AT ION AN D T R EAT IES In 2009, a Sudanese court sentenced a group

Universal Declaration of Human Rights (1948)
International Covenant on Civil and Political
Rights (1966)
International Covenant on Economic, Social and
Cultural Rights (1966)
Charter of the United Nations (1945)
Human Rights (Sexual Conduct) Act 1994 (Cth)
International Criminal Court Act 2002 (Cth)
International Criminal Court (Consequential
Amendments) Act 2002 (Cth)
Racial Discrimination Act 1975 (Cth)
Sex Discrimination Act 1984 (Cth)
Australian Human Rights Commission Act 1986
(Cth)
Disability Discrimination Act 1992 (Cth)
Age Discrimination Act 2004 (Cth)
Anti-Discrimination Act 1977 (NSW)
Human Rights Commission Act 1986 (Cth)
Hu
of 12 women to 20 lashes for wearing ‘indecent
trousers’.
The women were arrested at a popular
restaurant in the capital, Khartoum, for breaking
Article 152 of the Sudanese penal code (1991)
that stipulates:
(1) Whoever does in a public place an indecent
act or an act contrary to public morals or wears
an obscene outfit or contrary to public morals or
causing an annoyance to public feelings shall be
punished with flogging which may not exceed
forty lashes or with fine or with both.
If the fine of 250 Sudanese pounds (A$107) is
not paid, the penalty can also include one month
in prison.

S I GNIFICANT CAS ES
Toonen v Australia, CCPR/C/50/D/488/1992, UN
Human Rights Committee (HRC), 4 April 1994
Croome v Tasmania (1997) 191 CLR 119
Lange v Australian Broadcasting Corporation
(1997) 189 CLR 520
ABC v Lenah Games Meats Pty Ltd [2001]
HCA 63
Giller v Procopets [2008] VSCA 236
Roach v Electoral Commissioner [2007] HCA 43
Mabo v Queensland (No 2) (1992) 175 CLR 1
Legal Consequences of the Construction of
a Wall in the Occupied Palestinian Territory
(Advisory Opinion), International Court of
Justice, 9 July 2004

Cha pter 8: Promoting a nd enforcing human ri ghts 169


state sovereignty
the ultimate law-making
power of a state
over its territory and
population, including
independence and
freedom from external
interference
Pro m o t i n g a n d e n f o r c i n g
human rights
Without protection, historically human rights
have developed throughout various campaigns to
achieve partial and scattered recognition, resul-
ting finally in a formal declaration and binding
international treaties. The development of human
rights was discussed in Chapter 7. Like any type
of right, however, the effectiveness of their recog-
nition depends on the will of the community to
implement them, and the mechanisms in place
to ensure they are respected, promoted and
enforced.
Human rights are advanced on two broad
levels: internationally and domestically. On each
level, there are governing bodies responsible for
complying with and promoting them, courts
responsible for enforcing them, and various
organisations and pressure groups that report on
them and expose violations that occur. This chap-
ter will first consider the international measures
in place, and then look at the measures available
in Australia for the promotion and enforcement of
human rights.
Human rights in the
international community
Since the 1945 establishment of the United
Nations and recognition of human rights through
the Universal Declaration of Human Rights, the
idea of universal rights has gained importance in
the international community. Yet, despite formal
recognition and the development of binding
treaties, progress has been gradual in securing
governments’ respect for human rights and
universal conformance with the treaties. While
some states are more advanced, with functioning
and independent institutions, a politically free and
active population and available funds to tackle the
problems, other states may lack the resources,
structures or political will to enforce those rights.
Today, the promotion and enforcement of
human rights commands a great deal of attention
from both governments and citizens, but also from
the international community, including:
s numerous branches of the United Nations
s international courts, tribunals and other
authorities
s inter-governmental organisations (IGOs)
s non-government organisations (NGOs)
s media groups.
Each of these will be considered in turn below.
First, however, one of the most important issues
of human rights in international law, and perhaps
one of the largest hurdles to its success, will be
considered – the issue of state sovereignty.

Figure 8.1 Since the establishment of the UN in 1945 and recognition of
human rights through the Universal Declaration of Human Rights, the idea
of universal rights has gained importance in the international community.
State sovereignty
The concept of state sovereignty is central to inter-
national law and to the capacity of the world to
enforce other states’ compliance with recognised
human rights.

170 C am b r id g e L e g a l S t u d ie s – HS C
Statehood
To understand state sovereignty, the concept
of a ‘state’ needs to be clarified. A state is the
basic unit of the international system. Generally
known as countries, states are the only entities in
international law capable of exercising full political
capacity.
s the capacity to enter into international relations.
A state must also be recognised by a sufficient
number of other states so that it can exercise its state
an independent
full international political and legal capacity. This
country; in law,
recognition is sometimes controversial (refer to an internationally-
the Legal Info below). In most cases, membership recognised entity
possessing the
of the UN will be the clearest mark of statehood.
characteristics

Hum an rig hts

Statehood should not be confused with political
entities within a federal system, such as the dom-
estic states of Australia or the United States. Strictly
speaking, a state should also be distinguished from
a nation, which is a people that share a common
heritage, language, culture or race – nations do not
always correspond with state borders. Nations or
peoples seeking independent statehood will often
claim a right to self-determination, an issue that
was discussed in Chapter 7.
In international law, recognition as a state
requires a number of factors. Outlined in article 1
of the Montevideo Convention on the Rights and
Duties of States 1933, these essential characteris-
tics include:
s a defined territory
s permanent population
s effective government
l e g al i nfo
The issue of statehood can have implications required for
for human rights. An unrecognised state or people statehood; not to
be confused with
may be unable to claim protections under the
political divisions
international human rights regime if they live in a within a federal
territory of an unrecognised state, or if they form system, like the
states of Australia,
part of another state with which relations have Germany or the
broken down. For example, in 2009 the Taiwanese United States.
parliament ratified both the International Covenant nation
a people that share
on Civil and Political Rights (ICCPR) and the
common heritage,
International Covenant on Economic, Social and language or culture
Cultural Rights (ICESCR) into domestic law. As and sometimes a
common race
an unrecognised state without UN membership,
Taiwan does not have access to the international
human rights framework, which includes the right
to complain to the UN Human Rights Committee.
For Taiwan’s 23 million citizens, this also means
no other state can submit any complaint to the
Committee about Taiwan.

How many states are there?

The exact number of states in the world is disputed.
In 2010, the status of states and disputed states is
as follows:
s There are 192 fully recognised state members of
the United Nations.
s Vatican City (the Holy See) is a recognised state,
but only has observer status at the UN.
s The last state to become a UN member was
Montenegro in 2006.
s Taiwan (Republic of China) has the
characteristics of a state, but its international
status is disputed. Originally representing all of
China in the UN, it was replaced in 1971 with
China (People’s Republic of China). Currently,
Taiwan has no UN representation but continues
to function as a state with informal diplomatic
relations.
s There are many disputed territories claiming
statehood, including Kosovo, Somaliland,
Abkhazia or Palestine, some with growing
international recognition (e.g. Kosovo is
recognised by 65 other states, including
Australia). Their claim to statehood may be
strongly disputed by other states.

Cha pter 8: Promoting a nd enforcing human ri ghts 171

 Sovereignty
The sovereignty of states is one of the most
essential components of the international system.
State sovereignty refers to the ultimate law-
making power of a state – its independence and
freedom from external interference in its own
affairs. Sovereignty is the source of a state’s legal
and political power to make laws over its own
population and enforce those laws.
It is also a major issue in human rights, as in
its strictest sense it means that no foreign state
or law can interfere in another state’s domestic
jurisdiction, except with consent. Under the UN
Charter, all states are fundamentally equal –
article 2(1) of the Charter states: ‘the [UN] is based
on the principle of the sovereign equality of all its
Members’ – and so all states have equal power
over their own affairs.
Critically, however, in the modern international
system a state’s sovereignty is not absolute. It is
limited under international law by certain duties
owed to the international community. Without any
such limitations, a system of international anarchy
would result – allowing governments to attack each
other without cause, abuse their own citizens or
commit genocide on their own populations, with
no fear of consequences nor any means for their
citizens to seek help. Such a system is reminiscent
of the atrocities committed by Nazi Germany or the
Empire of Japan during the Second World War. For
this reason, the international community imposes
limitations which, along with the consequences of
their violation, were discussed under Chapter 6 in
the context of crimes against humanity.
State sovereignty and human
rights
In regard to human rights, one of the major prob-
lems of state sovereignty is that not all govern-
ments equally accept the idea that their own
people have certain rights. While robust demo-
cracies may have developed institutional respect
for their citizen’s rights, with internal mechanisms
to keep this in check, some countries without
democratic processes may rely on sovereignty as a
172 C am b r id g e L e g a l S t u d ie s – HS C
rationale to justify mistreatment of their own
citizens. In extreme cases, such countries may
commit human rights abuses with impunity, with
little or no avenue for their citizens to respond. In
such cases, state sovereignty may be used as a
shield by states against outside interference in
their own affairs.
However, countries today do not exist in a
vacuum. They form part of a community where
they are interdependent and interrelated – poli-
tically, financially, environmentally and legally.
In particular, states have signed numerous inter-
national agreements (treaties) between themselves
that create concrete legal obligations, including
the UN Charter. These agreements are by nature
consensual so do not infringe on sovereignty, but
do put responsibility squarely on the sovereign
state to uphold their commitments or face the
agreed consequences, which may be severe.
For example, at the beginning of 2010, 165
states had ratified the ICCPR and another 160
states had ratified the ICESCR – and all UN states
are subject to the UDHR. Known collectively as the
International Bill of Rights, these treaties create
concrete legal obligations on states to comply
with their human rights provisions, obliging them
to submit periodic reports to the Human Rights
Committee, allow other states to submit com-
plaints about them, and for most members allow
their own citizens to complain to the Committee
about their treatment in the state.
These and other mechanisms, including the
capacity of the UN to intervene, are discussed in
the relevant sections that follow.
R EVI EW 8 . 1
1 Describe the role of statehood in the
international community and assess how
this might impact on human rights.
2 Define the modern concept of state
sovereignty.
3 Evaluate the impact of state sovereignty on
the promotion and enforcement of human
rights.
The role of the UN
The background and development of the UN
s Security Council (UNSC) – this is the UN
was briefly described in Chapter 7, including
the role of the UN in the development and
recognition of international human rights stan-
dards through an International Bill of Rights.
Today, the UN is a vast organisation with
substantial power, consisting of 192 member
states, including almost every sovereign state
in the world. It is the principal international
organisation, with responsibility for almost
every aspect of international affairs. The UN
has five principal organs under the UN Charter
(not including the former Trusteeship Council)
s Economic and Social Council (ECOSOC) –
– all of these have some role to play in the
promotion or protection of human rights. They
are outlined as follows.
Organs of the UN – human
rights responsibilities
s General Assembly (UNGA) – consisting of
representatives from all member states with
equal voting power, this is the main forum
for international discussions, deliberations,
declarations and recommendations,
many relating to issues of human rights.
s Secretariat – the main administrative body
Numerous committees, programmes and
funds are attached to the General Assembly,
such as the UN Development Program. The
UN’s principal human rights body, the UN
s International Court of Justice (ICJ) – the
Figure 8.2 The UN emblem
Human Rights Council (UNHRC), reports Trusteeship Council
inactive since 1994 but
directly to the General Assembly.
originally responsible for
overseeing transition of
organ charged with maintenance of inter- UN trust territories after
decolonisation
national peace and security. It exercises its
General Assembly (UNGA)
power through legally binding resolutions,
the UN organ representing
and can authorise military actions, sanc- all UN members states;
acts as a forum for global
Hum an rig hts
tions or peacekeeping operations. The UNSC
discussion and runs numerous
has five permanent members with power to
committees and programs
veto decisions (US, UK, China, Russia and
Human Rights Council
France), and ten non-permanent members (UNHRC)
UN forum of member states
with two-year terms. The Council is argued
responsible for overseeing
to have power to inter vene in the most and making recommendations
serious of human rights abuses by states. on human rights in all
member states
Security Council (UNSC)
this organ has 54 rotating members meeting
the UN organ responsible for
annually to assist in promoting international maintenance of international
economic and social cooperation and dev- peace and security; power to
authorise military action or
elopment. It includes various committees
other measures
and acts as the central forum for discussion
resolutions
of economic, social, environmental and decisions passed by the
humanitarian issues. It used to house the General Assembly or Security
Council; when passed by the
Commission on Human Right, but in 2006
Security Council they can be
this body was transferred to the General legally binding on all member
Assembly to become the UN Human Rights states
Council. Economic and Social
Council (ECOSOC)
the UN organ acting as
of the UN with over 40 000 staff working a forum for international
economic and social
worldwide, it provides the various infor-
cooperation and development
mation, studies, tasks and facilities needed
Secretariat
by the UN. It includes the departments the UN administrative body
and offices of the UN, including the Office headed by the UN Secretary-
General; contains the
of the High Commissioner for Human
departments and offices of
Rights (OHCHR). The Secretariat is headed the UN
by the UN Secretary-General, Ban Ki-moon, Office of the High
the most visible and influential figure of Commissioner for Human
Rights (OHCHR)
the UN.
UN human rights office
responsible for monitoring
principal judicial organ of the UN, the ICJ and reporting on human
rights worldwide
has jurisdiction under the UN Charter to
International Court of
settle international disputes submitted to
Justice (ICJ)
it by member states, and produce advisory the principal judicial organ
opinions when requested on matters of of the UN; has jurisdiction
to hear disputes submitted
international law. Its cases will only rarely by member states and issue
relate to issues of human rights. advisory opinions
Cha pter 8: Promoting a nd enforcing human ri ghts 173
 Office of the High
Commissioner for Human
Rights (OHCHR)
The Office of the UN High Commissioner for
Human Rights (OHCHR) is an administrative
agency under the UN Secretariat that works to
promote and protect the human rights contained
in the UDHR and international law. Established in
1993 after a World Conference on Human Rights
held by the UN, the OHCHR’s purposes include:
s advancing universal ratification and implemen-
tation of the UDHR and human rights standards
and treaties
s promoting universal enjoyment of human
rights and international cooperation, including
education, information and technical assis-
tance, taking preventative action and respond-
ing to serious human rights violations
s providing support and information for other
UN human rights bodies and treaty monitoring
bodies, including the Human Rights Council
and Human Rights Committee.
The office is headed by the High Commissioner
for Human Rights who responds directly to the
Secretary-General. In 2008, Navanethem Pillay, a
former judge of both the High Court of South Africa
and the International Criminal Court, was appoint-
ed as the High Commissioner for Human Rights.
Human Rights Council
The Human Rights Council is a relatively new
inter-governmental body under the UN General
Assembly that contains representatives of mem-
ber states – its 47 member seats are rotated on
three-year terms. It aims to address human rights
violations worldwide and make recommendations,
and works closely with the OHCHR to perform its
duties.
The Human Rights Council was established in
2006 following a General Assembly resolution – it
was set up to replace the previous Commission on
174 C am b r id g e L e g a l S t u d ie s – HS C
Human Rights, which had been a part of ECOSOC
since 1946, but had been heavily criticised for
failing its purpose. The previous body had allowed
courtiers with some of the poorest records on
human rights to be members, effectively prevent-
ing criticism of those states’ actions and allowing
the abuses to continue.
The Human Rights Council has recently
adopted a series of specific measures that aim
to increase its power to address human rights
abuses, including:
s a complaints procedure allowing individual
people to bring issues to the Council’s attention
where they have been a victim of human rights
abuse in a state
s compulsory periodic reviews of the human
rights situation in all 192 member states (not
just those who are members of the ICCPR and
other treaties)
s an Advisory Committee to provide expertise
and advice and recommend issues for the
Council to consider.
The Human Rights Council is relatively new and
its success is too early to judge. The United States,
under former President George Bush, originally re-
fused to participate in the Human Rights Council,
but in 2009 US President Barack Obama reversed
the US’s position and joined the Council, thereby
strengthening its international influence.
However, the Council has already received
some criticism, from both current and former
Secretary-Generals Ban Ki-moon and Kofi Anan,
as well as the former High Commissioner for
Human Rights. It has been criticised for not acting
in the interests of human rights, but according
political considerations – particularly influential
states, including China and Russia, have also
been accused of backing and controlling certain
candidates to block criticism of themselves. It
remains to be seen if or how effective the Council
can become.
l e g a l i n fo
UN intervention and the Responsibility to Protect (R2P)
One of the most contentious arguments on the
role of the UN relates to the ability of the UN
Security Council to act in cases of the most
serious human rights abuses within a state’s
own borders. Limitations of state sovereignty
traditionally restrain the international community
from interfering in another state’s territory. When
situations of serious human rights abuses are
exposed, usually involving crimes against humanity
or genocide, the international community will
often call for the UN to intervene to put a stop to
atrocities that are about to occur or are occurring.
Recent examples include serious human rights
abuses in Zimbabwe and crimes against humanity
in Sudan.
However, the UN’s powers to intervene within
any state are restricted by the UN Charter. Under
the UN Charter, the principle of sovereignty is
stated in article 2(7): ‘nothing contained in the
present Charter shall authorise the United Nations
to intervene in matters which are essentially within
the domestic jurisdiction of any state…’
Under Chapter VI of the Charter, the Security
Council can recommend measures for the peaceful
settlement of disputes or situations that may
lead to international friction. Although this has
occasionally been used to send UN peace-keeping
troops into troubled regions, this requires the
consent of the state or states involved and will fail
if the state refuses intervention. Since 2002, the
Security Council can also refer criminal matters to
the International Criminal Court (ICC), as it did with
Darfur, Sudan in 2005, but this may do little to stop
a situation that is still occurring.
Article 2(7) of the Charter does limit sovereignty
in one instance: ‘this principle shall not prejudice
the application of enforcement measures under
Chapter Vll’. Chapter VII of the UN Charter
empowers the members of the Security Council
to take military or non-military action to ‘restore
international peace and security’. This ultimately
makes the Security Council the most powerful
organ of the UN, and indeed the world, as it
provides the power to intervene without a state’s
Hum an rig hts
consent.
The Security Council has been heavily criticised
for reluctance to use its intervention powers to
prevent mass atrocities or intervene where serious
abuses are occurring. At the World Summit
2005 on reform of the UN, the world community
decided to embrace a new doctrine of international
approach to human rights abuses, called the
‘Responsibility to Protect’, or R2P. The doctrine
aims to make protection of human rights an
integral part of the responsibility that goes with
being a sovereign state – if a state fails to protect its
own citizens, then the international community has
the responsibility to step in under the Chapter VI or
Chapter VII powers.
In 2006, the Security Council (by Resolution
1647) reaffirmed the World Summit Outcome
Document ‘regarding the responsibility to protect
populations from genocide, war crimes, ethnic
cleansing and crimes against humanity’. In 2009,
the UN Secretary-General, later supported by a
resolution of the General Assembly, expressed
commitment to the doctrine under three ‘Pillars’
of responsibility:
s states have a responsibility to protect their
populations from these crimes
s the international community is responsible for
assisting states to build capacity to protect their
populations before such crises or conflicts break
out
s importantly, when a state has manifestly failed
to protect its citizens and where peaceful means
are inadequate, the international community
must take action to prevent harm.
Cha pter 8: Promoting a nd enforcing human ri ghts 175
 legal links
The following UN websites offer a
wealth of information on human rights
internationally, including current status,
progress, goals and various complaints
mechanisms:
sOffice of the High Commissioner for
Human Rights: www.ohchr.org
sUN Council on Human Rights: www2.
ohchr.org/english/bodies/hrcouncil
sMillennium Development Goals:
www.undp.org/mdg

R E VIE W 8.2 Millennium Development as a charter outlining the organisation’s purpose

1 Identify the five organs Goals and operation. They are usually permanent, meet

of the UN and briefly In 2002, all member states of the UN at regularly and have international legal personality

describe what role the time agreed to a declaration at the and so can enter into enforceable agreements and

they play in promoting end of a conference on world poverty. are subject to international law.

or protecting human This became known as the Millennium Some of the first worldwide IGOs included the

rights. Declaration. The declaration outlined International Telegraphic Union in 1865 and the

2 Describe the role of eight ambitious Millennium Development Universal Postal Union in 1874. In 1909, there

the UN Human Rights Goals that all member states pledged to were 37 IGOs in the world and by 1960, this figure

Council and evaluate try to reach by 2015. The goals include had risen to 154. Today, the number stands at

its effectiveness in eradicating extreme poverty and hunger, around 1000. The UN, created by the 1945 treaty

responding to cases of achieve universal primary education, the United Nations Charter, is the most important

human rights violations. promote gender equality and empower of all IGOs. Other powerful IGOs include the World

3 Define the doctrine of women, and combat HIV/AIDS, malaria Trade Organization, the International Monetary

R2P and how it differs and other diseases, among others. Fund (IMF), the North Atlantic Treaty Organization

from the traditional role As 2015 approaches, many countries (NATO) and INTERPOL.

of the UN. have improved their performances in Apart from the UN, a number of IGOs have the

4 One concern about the these areas, but others show little or no promotion of human rights as part of their stated

R2P is that Security real improvement. There has been some goals and can exert significant influence on the

Council politics might criticism of using such a goal-based human rights of their member states, although

influence its use, either approach to difficult areas of development the influence of every organisation will differ. For

in favour of or in bias and human rights. However, the goals example:

against certain states. have provided significant funding, re- s Commonwealth of Nations – made up of 54

Critically evaluate the sources and an important focus for states, members, including the UK, Australia and

effectiveness of the UN agencies and various organisations almost all former colonies of the British Empire.

doctrine in light of this to eradicate some of the most serious The Commonwealth’s stated aims include

or any other issues you problems of our times with effects that the promotion of democracy, the rule of law,

can identify. will last well beyond 2015.
Intergovernmental
organisations
An intergovernmental organisation (IGO) is an
international institution comprised of various
member states. IGOs are created by agreement
between states, by an international treaty that acts
human rights, individual liberty and good
governance. Several members have been sus-
pended due to serious or persistent violations
and human rights abuses, including Zimbabwe
in 2002 and Fiji on various occasions due to
military coups.
s African Union – includes almost all African
states, the African Union among its many
aims includes achieving peace and security in

176 C am b r id g e L e g a l S t u d ie s – HS C

Figure 8.3 In 2004, the ICJ issued an important, though controversial, advisory opinion declaring the
Israeli West Bank barrier contrary to international law.
Africa and promoting democratic institutions,
good governance and human rights. The Union
includes the African Commission on Human
and People’s Rights, with responsibility for
monitoring and promoting compliance with
the African Charter of the same name, and the
African Court on Human and Peoples’ Rights,
currently being merged with the overarching
African Court of Justice.
s Organization of American States – includes
almost all the states of North, Central and South
America. Two of the organisation’s bodies, the
Inter-American Commission on Human Rights
and the Inter-American Court of Human Rights
are responsible for overseeing the regional
human rights instrument – the American Con-
vention on Human Rights.
Courts, tribunals and
independent authorities
There are numerous international courts, tribunals
and other independent authorities with power to
hear matters involving human rights abuse. These
are considered below.
International Court of Justice
(ICJ)
The International Court of Justice (ICJ) is an organ
of the UN. It started operation in 1946 at the Peace
Palace in the Hague, Netherlands. The ICJ has two
roles: to hear and judge disputes between states,
Hu m an rig hts
and to issue advisory opinions on matters of
international law.
The ICJ has heard relatively few cases since its
establishment, but has issued some important
judgments and opinions. For instance, in Legal
Consequences of the Construction of a Wall in the
Occupied Palestinian Territory (Advisory Opinion),
International Court of Justice, 9 July 2004, the ICJ
issued an important, though controversial, advi-
sory opinion declaring the Israeli West Bank barrier
– a 700 kilometre wall partitioning the Palestinian-
occupied West Bank from Israeli territory –
contrary to international law and encroaching on
disputed territory. International NGOs such as the
ICRC and Amnesty International have claimed that
the barrier causes serious humanitarian problems
or violates Israel’s obligations under international
humanitarian law. Israel has disputed these
claims, and the Security Council has yet to accept
and enforce the ICJ’s ruling.
The strongest criticism of the ICJ is that it requires
the consent of state parties to hear matters and so
has very little jurisdiction. States can consent to
‘compulsory’ jurisdiction of the court, but in 2010
only 66 states have done so, most with some form
of reservation limiting the court’s power, including
Australia. The court is unable to hear cases brought
by individual people or private organisations,
is restricted to states themselves, and has very
little power of enforcement, with Security Council
members being able to veto any enforcement
action. Despite these limitations, the court has
Cha pter 8: Promoting a nd enforcing human ri ghts 177
 issued important judgments that carry the weight
of international law and act as significant guides to
future actions.
Other forums are arguably much more effective
for hearing matters of serious human rights vio-
lations, including the Security Council discussed
above, the International Criminal Court, regional
courts such as the European Court on Human
Rights, or the Committee on Human Rights.
International Criminal Court
(ICC) and ad hoc tribunals
The International Criminal Court (ICC) was estab-
lished in 2002 to prosecute international crime.
The ICC was preceded by various tribunals that had
been established by the UN Security Council to
deal with specific historical events involving seri-
ous international crime (known as ‘ad hoc’ tribu-
nals), such as the International Criminal Tribunal
for the Former Yugoslavia (ICTY), or similar tribu-
nals for Rwanda, Sierra Leone and Cambodia.
The ICC is not a court for human rights viola-
tions, but prosecutes and hears matters of the most
serious international crimes, including genocide,
crimes against humanity and war crimes, although
these acts would also constitute serious human
rights abuse. It also has jurisdiction to hear crimes
of aggression (illegal war) but the international
community is still in the process of agreeing
on a definition for this. Importantly, the ICC has
jurisdiction to prosecute individual people rather
than states, which makes it a powerful institution
for combating individuals who seek to use state
sovereignty as a defence for their abuses. The work
of the ICC is discussed in more detail in Chapter 6.
European Court of Human
Rights (ECHR)
The European Court of Human Rights (ECHR) was
set up in 1959 in Strasbourg, France, to apply and
protect human rights of the citizens of Europe. It
considers cases brought by individuals, as well as
organisations and state, against all countries bound
by the European Convention on Human Rights
(ECHR). This convention, similar to the UDHR, was
178 C am b r id g e L e g a l S t u d ie s – HS C
a landmark human rights treaty drawn up follow-
ing the Second World War. Its members include
47 countries on the continent of Europe, including
Russia and Turkey, but excluding Belarus.
The ECHR is an extremely influential human
rights body, and compliance has crucially been
incorporated into the treaties of the European
Union (EU). This means that the laws of all 27
member states of the EU must comply with the
rulings of the ECHR. This has had an enormous
effect on member state laws – for example,
numerous laws of the UK have had to be revised
following ECHR rulings. The ECHR has proved
successful, but almost too successful – in 2010 the
ECHR announced various procedural reforms in
order to deal with a backlog of some 120 000 cases
across Europe waiting to be heard.
The Australian situation
Unlike Europe, or Africa or the American states,
Australia is not currently party to any regional
human rights instrument or human rights court.
Other authorities
established by treaties
The International Bill of Rights, as well as some
other key human rights treaties, has established
particular authorities to hear matters of com-
pliance by member states with the treaties.
One of the most important of these is the
Human Rights Committee, which assesses mem-
ber state compliance with the ICCPR and can hear
petitions raised by the states about each other’s
compliance. Significantly, the First Optional Pro-
tocol to the ICCPR also gives the Committee
jurisdiction to hear personal complaints brought
by individuals of member states about human
rights violations in their own country. In 2010,
112 countries have ratified this optional protocol,
including Australia. Citizens can take complaints
directly to the Committee, providing they have
first attempted to resolve the matter with human
rights bodies in their own country, or region if
applicable, such as the ECHR.
 At the Committee, a group of human rights
experts will hear a complaint brought against a
state and make rulings on compliance, making it
a quasi-judicial body. Although decisions are not
enforceable, they are highly influential, embar-
rassing for the government of a state accused of
violation and might influence local legal inter-
by the Committee in its periodic reports to each
member state, which will include re-occurring
recommendations to address the issues until the
Committee is satisfied that the state is compliant.
A number of cases have been raised against
Australia, and the strong persuasive power of the
Committee’s rulings can be seen in the case of

Hu m an rig hts
pretation. These judgments will also be raised Toonen v Australia.
ca s e s p a ce

Toonen v Australia, CCPR/C/50/D/488/1992, UN Human Rights Committee (HRC), 4 April 1994;

Croome v Tasmania (1997) 191 CLR 119

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

Cha pter 8: Promoting a nd enforcing human ri ghts 179

 l e g a l i n fo
Human rights treaty bodies

A number of treaty bodies similar in function to the
Human Rights Committee have been established
by various human rights treaties. Some of these are
listed below:
s Committee on Economic, Social and Cultural
Rights
s Committee on the Elimination of Racial
Discrimination
s Committee on the Elimination of Discrimination
Against Women
s Committee against Torture
s Committee on the Rights of the Child.

R ESEARCH 8.1 government and intergovernmental organisations

international
humanitarian law
a body of international
law developed from
the Geneva and Hague
conventions that deals
with conduct of states
and individuals during
armed conflict; also
known as the law of
armed conflict
Figure 8.4 The International
Committee of the Red Cross is one
of the most important international
NGOs and is permitted observer
status at the UN General Assembly.
1 Visit the website of UN High Commissioner
for Human Rights (OHCHR) at: www2.ohchr.
org/english/bodies.
2 Research two of the committees listed in the
Legal Info box and identify the international
treaty the committee is responsible for,
and the power the committee has to hear
matters against its member states.
Non-government
organisations (NGOs)
Non-government organisations (NGOs) are organi-
sations created by people that are independent
and without representation of any government.
They include private voluntary
organisations, citizen associations
and civil society organisation.
NGOs have grown exponentially
in recent times. In 1914 there were
an estimated 176, in 1970 there
were an estimated 2000, and by
the beginning of the 21st century,
there were over 40 000 NGOs. At
the establishment of the UN in
1945, NGOs were already playing
an important role in contributing
to international discussion. Today,
many NGOs collaborate on a
daily basis on human rights and
humanitarian work with various
and specialised UN agencies.
NGOs engaged in human rights play an indis-
pensable role in informing the global community,
governments and the UN of human rights viola-
tions and progress. They help ensure greater
government compliance by investigating, research-
ing, documenting and publicising cases of human
rights violations. This process of ‘naming and
shaming’ can have a profound effect on gov-
ernment behaviour. Some NGOs will also work
directly with violators or victims, providing
evidence to international courts, or encouraging
other states or the UN to place diplomatic pressure
or take action on violating states.
One of the oldest and most important inter-
national NGOs is the International Committee of
the Red Cross (ICRC). With origins tracing back to
1863, the ICRC’s missions are strictly concerned
with international humanitarian law, to protect
the life and dignity of the victims of international
and internal armed conflicts, although this work
often overlaps with human rights abuses. The
importance of the ICRC is recognised internation-
ally and since 1990 it has been allowed observer
status at the UN General Assembly. The ICRC also
works closely with the International Federation
of Red Cross and Red Crescent Societies (IFRC),
which includes 186 National Red Cross and Red
Crescent Societies that lead and organise relief
assistance missions in response to large-scale
emergencies.

180 C am b r id g e L e g a l S t u d ie s – HS C
 legal links
Some of the most important international s Human Rights Watch: www.hrw.org
NGOs working for human rights include: s Carter Center: www.cartercenter.org
s Amnesty International: s International Committee of the Red
www.amnesty.org Cross: www.icrc.org
s Freedom House: s Reprieve: www.reprieve.org.au
www.freedomhouse.org

Hum an rig hts

RES E A RCH 8.2 NGO, the Committee to Protect Journalists, 71
Visit two of the NGO websites provided above journalists were killed in 2009, including 29 who
and answer the following: were killed in one brutal massacre in an unstable
1 Identify when the NGO was first established region of the Southern Philippines. Almost 140
and who established it. were jailed worldwide, with most in either China,
2 Describe the work that the NGO does in Iran or Cuba. Over half those imprisoned were
promoting human rights. arrested in relation to internet reports.
3 Consider the types of human rights that the The international NGO, Reporters Sans Fron-
NGO is attempting to protect. tières (RSF) (Reporters Without Borders) releases
4 Evaluate how the NGO might affect the an annual index of media freedom of all states. In
human rights performance of governments. 2009, Australia ranked near the top with an index
of 3.13. At the other end of the index were China
(index of 84.50), Iran (index of 104.14) and North
The media Korea (index of 112.50).
Like NGOs, the media plays a crucial role in the
‘naming and shaming’ of governments and human
rights violators by exposing instances of human
rights abuse and helping to bring about change.
By investigating and reporting on human rights
issues the media can have a significant influence
on public opinion and government action.
The role of a free and impartial media and
people’s right to information is recognised as
a human right – article 19 of the UDHR states
‘everyone has the right to…seek, receive and
impart information and ideas through any media
regardless of frontiers’.
Yet the influence of the media is also recognised
by violators of human rights. Media freedom is
severely restricted in many countries where it is
Figure 8.5 By investigating and reporting
often unsafe for reporters to undertake their work,
on human rights issues the media can have
which could result in censorship, imprisonment, a significant influence on public opinion and
beatings or even death. According to one important government action.

Cha pter 8: Promoting a nd enforcing human ri ghts 181

 R E VIE W 8.3

legal links
Reporters Sans Frontières (RSF) In recognition of the
1 Explain the difference between
(Reporters Without Borders) organisation’s importance,
IGOs and NGOs and assess
RSF is a vital international RWB holds consultant status at
how either organisation can
NGO with correspondents and the UN. Detailed information on
help to promote human rights.
offices worldwide. RSF aims to press freedom in every country
2 Compare the role of different
promote press freedom in all around the world is available on
courts, tribunals and other
countries by fighting censorship the RSF’s website at:
authorities in hearing matters
and laws undermining the press, www.rsf.org.
of human rights. Identify what
defending journalists imprisoned
types of human rights matters
or persecuted in their job, and
can be heard by which body.
working for safety of journalists,
3 Identify the dangers faced by
especially in war zones.
journalists in countries where
there is little press freedom.

ratify (ratification)
Hu ma n right s i n Au s t ra lia n law
the process of a
country formally
In Australia, there is no one document where all On the other hand, Australia, like the UK, is a
approving a treaty,
making it legally human rights can be found – rights that correspond dualist system. This means that simply signing a
binding with internationally recognised human rights treaty does not make it enforceable in Australian
monist system are drawn from different sources. These sources law. The rights and obligations of the treaty will
a legal system that
include international treaties, the Constitution of need to be incorporated into Australian law in
deems treaties
enforceable in Australia, the common law, and statute law of the some way. Parliament will usually pass legislation
domestic law as soon Commonwealth, states and territories. that echoes the words of the treaty or amends
as they have been
existing laws. For example, when Australia ratified
signed
dualist system Incorporation of human the Rome Statute of the International Criminal Court
a legal system that in 2002, the Commonwealth Parliament simul-
does not deem
rights into domestic law taneously passed the International Criminal Court
treaties enforceable
domestically but When an international treaty is negotiated and Act 2002 (Cth) and the International Criminal Court
requires incorporation formed, states indicate their agreement to the (Consequential Amendments) Act 2002 (Cth) to enact
into domestic law,
principles of the treaty by signing it. Signing a the provisions of the treaty into Australian law.
usually by passing
similar legislation treaty means the country will have to act in the
incorporation spirit of the treaty, but it is not directly binding. In
The Australian
the process by which most cases a treaty will need to be ratified by the
a country implements
state before it becomes binding and enforceable.
Constitution
a treaty into domestic
law Some countries around the world are monist The Australian Constitution plays two important
separation of powers systems, meaning that when the country’s roles in protecting human rights for Australians:
the prevention of government ratifies a treaty, the words of the s it lays down the system of Australian govern-
one person or group
treaty automatically become law in the country ment through which human rights are recog-
from gaining total
power by dividing as if it was an act of parliament. Such countries nised, including the separation of powers and
power between can sign and ratify a treaty at the same time. division of powers, and
the executive, the
legislature and the Countries such as France or the Netherlands are s it is the source of some specific human rights,
judiciary monist systems. including express rights and implied rights.

182 C am b r id g e L e g a l S t u d ie s – HS C
 THE CONSTITUTION

Legislative Executive Judicial

Power Power Power

Governor-General High Court

Hum an rig hts

Parliament The Ministry Other Federal Courts

House of
Senate
Representatives

Government Departments

Figure 8.6 Separation of powers under the Australian Constitution – judicial power is strictly separated from political
powers. Under the Westminster system of responsible government, legislative and executive branches are not as strictly
separated – Ministers perform an executive role as heads of departments while also sitting in Parliament.

Division of powers and
separation of powers
The doctrine of separation of powers, as previously
studied, is important in protecting human rights. It
involves the separation of the branches of state:
s the legislature – elected law-makers in
parliament
s the executive – government, including mini-
sters and agencies,
s the judiciary – the courts that interpret and
apply the law.
In Australia, separation of powers is protected
under Chapters I to III of the Australian Con-
stitution which describe the functions of each
branch respectively. As a Westminster system of
responsible government, Australia has no strict
separation between the legislature and executive
– the Constitution provides for Ministers to sit in
parliament and the executive can make delegated
legislation.
However, the High Court has constantly ruled
that strict separation of the judiciary from the other
two ‘political’ branches is a fundamental principle
in the Constitution. The independence of the judi-
ciary can be seen as an essential mechanism in
upholding the rule of law, ensuring that all people,
including government, are equally subject to the division of powers
the arrangement
same law. It also helps ensure that rights and liber-
for the how the
ties are protected from the risk of abuses of power powers between
that could come with a politicised judiciary. Finally, the federal and
state government
the separation of power enables the judiciary to
and divided.
strike down any legislation that is deemed incom-
heads of power
patible with the provisions of the Australian Consti- powers listed in
tution and the rights and limitations it contains. ss 51 and 52 of
the Constitution
The Constitution also defines the division of
that describe the
powers between the Commonwealth and Austra- areas that the
lian states. This is the basis of the Australian Commonwealth
can legislate on
federation – how legislative power is divided
residual powers
between Commonwealth and state parliaments. powers not listed in
Most specific areas that the Commonwealth can the Constitution for
the Commonwealth
make laws on are listed under s 51 of the Consti-
to legislate on that
tution – these areas are known as Commonwealth are deemed to
‘heads of power’ and include, for example, remain the power
of states
currency (s 51(xii)), marriage (s 51(xxi)) or copy-
right and patents (s 51(xviii)). Powers that are not
listed in the Constitution are deemed residual
powers for the states. States can decide to refer
that power to the Commonwealth, as states did,
for example, with air navigation and terrorism
regulation.
While division of power can act as a check
on government by ensuring power is not too

Cha pter 8: Promoting a nd enforcing human ri ghts 183


express rights
rights that are
expressly included in a
document
implied rights
rights that can be
implied through the
text, structure or
purpose of a document
R E VIE W 8.4
1 Explain how international
treaties are incorporated
into Australian law.
2 Define the doctrine of
separation of powers and
identify which power in
Australia is kept strictly
separate.
3 Describe how the
external affairs power has
transformed Australia’s law.
4 Explain the difference
between an express and
implied right.
184 C am b r id g e L e g a l S t u d ie s – HS C
centralised in one place, the Commonwealth’s
power has grown significantly since federation
in 1901, especially for example in use of the
corporations power (s 51(xx)).
One particular area that has been crucial for the
development of human rights in Australia has been
the external affairs power in s 51(xxix). This power
gives the Commonwealth authority to legislate on
external affairs, which includes Australia’s treaty
obligations. Since federation, the growth of treaties
internationally has been enormous, and treaties
have developed to cover many of the areas of the
law that would traditionally have been solely with-
in the power of the Australian states. Human rights
treaties have transformed the country by enabling
Commonwealth parliament to bind states to those
rights and if necessary legislate to protect rights
universally across Australian jurisdictions.
Express and implied rights
Unlike the US, Australia does not have a bill of
rights to bind state and Commonwealth action
relating to human rights. However, the writers of
the Constitution did include some minimal rights,
known as express rights. Additionally, over
the last century the High Court has interpreted
the Constitution as necessarily holding certain
other rights. Even though they are not expressly
written in it the High Court has found
that certain rights must have been
intended in order for the Constitution
to function effectively – these are
known as implied rights.
Express rights in the Constitution
include: freedom of religion (s 116),
the right to vote in Commonwealth
elections (s 41), the right to a trial by
jury in federal indictable cases (sec-
tion 80), or the right to ‘just terms’
where the Commonwealth compul-
sorily acquires property on just terms
(section 51(xxxi)). However, these
rights are very limited and over time
the High Court has judged that certain
other rights can be implied in the text
and structure of the Constitution. For example, the
High Court has on a number of occasions (most
clearly in Lange v Australian Broadcasting
Corporation (1997) 189 CLR 520) held that the
Constitution contains an implied right to freedom
of political communication, a type of freedom of
speech, in order for Australia’s political system as
established in the Constitution to function
effectively.
Despite this, the finding of implied rights by
the judiciary has often been controversial and
the ability of the Constitution to act as a protector
of human rights is very limited. Most Australian
human rights are found in other sources of law.
Common law
In Australia, the common law, the body of law
passed down by judgments of the courts, has
evolved over centuries independently of govern-
ment and carries the power to protect many
human rights. Many Australian statutes, particu-
larly criminal law, are silent on many aspects of the
law and it is the common law that holds and defines
these rights and obligations. Some examples of
fundamental rights protected by the common law
are the presumption of innocence and the burden
of proof, and the right to a fair trial.
However, the common law does not offer
absolute protection of human rights as common
law rights are not fixed – that is, rights in the
common law, no matter how crucial they may be
seen to be, can be removed by any act of parlia-
ment. For example, strict anti-terrorism laws
passed by the Commonwealth government in the
aftermath of the September 11 attacks and the Bali
bombings were widely criticised as removing long-
standing criminal law rights for certain people.
The common law cannot be relied upon to
develop new rights, as judgments will only define
those rights on a case-by-case basis, if and when a
relevant matter is brought before a court. However,
it has still been instrumental in establishing some
rights in recent times. For example, in 2001 in the
case of ABC v Lenah Games Meats Pty Ltd [2001]
HCA 63, the High Court suggested the possibility of
a tort for invasion of privacy. In 2008, the Supreme
Court of Victoria recognised a person’s right to
privacy in Giller v Procopets [2008] VSCA 236. In
that case, privacy was breached by the defendant,
who was the plaintiff’s partner, after he unlawfully
shared a private sexual videotape of her to her
friends, family and employer. As of 2010, the High
Court has yet to confirm whether this right of
privacy applies in the common law Australia-wide.
Statute law
Over the last half-century, a large body of
Australian statute law, both Commonwealth and
state law, has been adopted by successive parlia-
ments to protect human rights. While many of
the laws have been adopted in response to the
establishment and ratification of international
treaties protecting rights, some have also been
established independently by state or federal
parliaments. Statute is a powerful tool in human
rights protection and many laws have been
wide-reaching, but like common law discussed
above, rights laid out in statute are not fixed, but
can be removed by a later act of parliament if a
government chooses to do so.
Some of the most important human rights
legislation in recent times includes:
s Racial Discrimination Act 1975 (Cth)
s Sex Discrimination Act 1984 (Cth)
s Australian Human Rights Commission Act 1986
(Cth)
s Disability Discrimination Act 1992 (Cth)
s Age Discrimination Act 2004 (Cth), and
s Anti-Discrimination Act 1977 (NSW).
Courts and tribunals
In Australia, all courts and tribunals will have
some role in applying and enforcing human rights
laws. Occasionally, courts will also play a role in
interpreting and developing human rights law. The
most important Australian human rights bodies
are discussed below.
Figure 8.7 The most significant human rights body in
Australia is the Australian Human Rights Commission.
Hu m an rig hts
Australian Human Rights
Commission
The most significant human rights body in Australia
is the Australian Human Rights Commission. It was
previously known as the Human Rights and Equal
Opportunity Commission (HREOC). An indepen-
dent national body, it was established under the
Human Rights Commission Act 1986 (Cth) to deal
mainly with alleged violations of Australia’s anti-
discrimination legislation, which at the time
covered racial and sexual discrimination. States
and territories also have equal opportunity or anti-
discrimination bodies to oversee compliance with
state human rights laws.
As Australia’s human rights legislation has
matured, the functions of the Australian Human
Rights Commission have grown. It now has res-
ponsibility to:
s receive and investigate complaints into discri-
mination and breaches of human rights
s promote public awareness about human rights
and provide legal advice
s conduct public inquiries into human rights
issues and issue recommendations
s give advice and make submissions to parlia-
ment and governments on development of
laws, policies and programs consistent with
human rights.
The Commission has had an important influence
on Australia’s laws. For example, in 1997, it con-
ducted an inquiry into the separation of indige-
nous children from their families (known as the
Stolen Generation). The Commission’s report,
Bringing Them Home, recommended an apology
by the Australian government to the victims.
This recommendation was ignored for over a
Cha pter 8: Promoting a nd enforcing human ri ghts 185

Figure 8.8 The High Court has the power to
set binding precedents on other courts or to
overturn state or Commonwealth legislation
related to human rights.
decade by the then Coalition government. How-
ever, in February 2008, a landmark apology to
the stolen generation was made by the then newly
elected Labor Prime Minister Kevin Rudd. Other
important inquiries have included children in
immigration detention, people with mental illness,
racial violence and same-sex entitlements. More
recently, the Commission has played a key role
in recommendations on an Australian Charter of
Human Rights.
The Human Rights Commission has two com-
plaints functions. Firstly, it has the power to inves-
tigate many areas of discrimination, including
race or ethnic origin, age (young or old), disability
or sex and can also investigate workplace discri-
mination relating to sexual preference, trade union
activity or political opinion. The Commission will
investigate and try to conciliate the complaint,
but if it cannot be resolved the complainant can
l eg a l i nf o
The Australian Human Rights Commission
The website of the Australian Human Rights
Commission (www.hreoc.gov.au) provides detailed
information and educational resources on human
rights in Australia. It describes the various complaints
procedures available, as well as advice and guidelines
on complying with human rights law. It also contains
the results of its inquiries into human rights and
reports on all findings of human rights breaches.
186 C am b r id g e L e g a l S t u d ie s – HS C
take the matter to the Federal Court of Australia,
which has the power to make enforceable orders
on recommendation of the Commission.
Secondly, the Commission can hear complaints
on many other human rights breaches in Austra-
lian law and international human rights law. In
these cases, the complainant is unable to take the
matter to the Federal Court, but the Commission
can make a report to the Attorney-General who is
required to table the report in parliament. As of
2010, over 40 such reports had been made. While
this is an important function, these findings are
not enforceable and the complainant will have no
right to have the wrong rectified. There are calls
for many of these matters to be made directly
applicable in the courts as is the case with discri-
mination cases.
High Court of Australia
While matters involving human rights might
appear before the state or federal courts and tribu-
nals, it is in the High Court where human rights
issues often become most important. This is
because the High Court has the power to set
binding precedents on other courts or to overturn
state or Commonwealth legislation.
High Court cases involving human rights
include the decriminalisation of homosexuality
(Croome v Tasmania), a Constitutional right to free-
dom of political communication (Lange v Australian
Broadcasting Corporation), or a possible common
law right to privacy (ABC v Lenah Game Meats). In
another recent case, the High Court upheld the
Constitutional right of all people to vote, including
prisoners (Roach v Electoral Commissioner [2007]
HCA 43).
The High Court’s methods of interpretation
involving human rights have been particularly
influential, and occasionally controversial. For
example, the case of Mabo v Queensland (No 2)
(1992) 175 CLR 1 is one of the most important
cases in Australian law and involved recognition
for the first time of Australia’s Indigenous peoples’
right to title in their traditional land. This principle
became known as ‘native title’.
 In the decision in that case, international law R EVI EW 8 . 5 R ESEAR CH 8 . 3
was influential for the judges in reaching their 1 Explain why common law Visit the website of the NSW
conclusion. Justice Brennan stated that inter- rights might be less secure Council of Civil Liberties
national law was ‘a legitimate and important than statute law. (www.nswccl.org.au) and
influence on the common law, especially when 2 Identify three important answer the following
international law declares the existence of human rights statutes and questions.
universal human rights’ and that ‘a common law describe some of the rights 1 Identify when the

Hu m an rig hts
doctrine founded on unjust discrimination in the they protect. organisation was founded.
enjoyment of civil and political rights demands 3 Explain some of the 2 Describe some of
reconsideration’. This represents an important functions of the Australian the functions of the
step in human rights recognition, opening up the Human Rights Commission. organisation.
numerous international human rights documents 4 Critically evaluate the 3 Find and discuss some of
to domestic consideration. Some, however, have role of the High Court in the cases the organisation
criticised the court for exceeding its powers, protecting human rights in has conducted defending
under the doctrine of separation of powers, and Australia. human rights.
argue that expanding such rights is a matter for
parliament only.
The power of the judiciary, particularly the High
l eg al l i nks

Court, to protect human rights is critical, especially Some of the most important NGOs in
where judges can be influenced by agreed inter- Australia in the field of human rights include:
national standards, with the potential to apply s NSW Council for Civil Liberties (NSWCCL):
those standards in the absence of conforming www.nswccl.org.au
legislation passed by parliaments. Combined with sCivil Liberties Australia: www.cla.asn.au
the court’s power to declare legislation inconsistent sRights Australia:
or invalid, to uphold the rights of the Constitution www.rightsaustralia.org.au
and to continue to develop the common law, sAustralian Council of Social Services
the High Court is arguably the most important (ACOSS): www.acoss.org.au.
protector of human rights in Australia.

Non-government
organisations
As in the international arena, there are numerous
NGOs in Australia that work in the area of human
rights. Similar to international NGOs, these
organisations will play a vital role in researching
and reporting on human rights issues, making
submissions to state and Commonwealth parlia-
ments or law reform bodies on human rights
inquiries, or working in the field of human rights
with victims of rights violations. Australian NGOs
are important in protecting individuals’ rights,
shaping public and political opinion and exposing
violations of human rights by governments and
individuals.
The media
The media play an indispensable role in the
‘naming and shaming’ of governments and human
rights violators by exposing instances of human
rights abuse and helping to bring about change. It
has a significant influence on public opinion and
government action.
The rights of Australian reporters to dissemi-
nate information and the right of the public to
receive information are not enshrined in law. The
freedom of political communication is protected
by the Constitution, but in Australia there is not yet
any general right to freedom of speech. Neverthe-
less, Australia is ranked one of the top countries in

Cha pter 8: Promoting a nd enforcing human ri ghts 187

 the world for media freedom and Australian
reporters, particularly the ABC and SBS, also play
an important role in investigating and reporting on
human rights on both a regional and worldwide
basis.
A Charter of Rights for
Australia
This chapter has shown how human rights are
protected internationally by various documents,
treaties and organisations. Similarly, Australia pro-
tects certain human rights by statute, common
law, courts and local organisations. However,
the protection of rights in Australia is scattered
and in many cases fragile – most rights could be
overturned by the simple passing of a statute of
parliament. While Australia currently lives under a
peaceful and vibrant democracy, where rights for
most people are respected and protected, history
shows that this may not always be the case.
Many states around the world have opted to
protect their citizens’ rights through adoption of a
Figure 8.9 Many states around the world have opted to protect
their citizens’ rights through adoption of a bill or charter of
rights, for example, in 1791, the US introduced a series of
constitutional amendments known as the US Bill of Rights.
188 C am b r id g e L e g a l S t u d ie s – HS C
bill or charter of rights, which aims to restrict the
power of future parliaments to reduce or infringe
certain rights. For example, in 1791, the US
introduced a series of constitutional amendments
known as the US Bill of Rights. This followed some
precedents, notably the English Bill of Rights of
1689. The US Bill of Rights included numerous
rights, such as trial by jury, prohibition on cruel or
unusual punishment, due process and protection
against self-incrimination, or protection from un-
reasonable search and seizure. The important
thing about the US Bill is that the rights were
given constitutional force as provisions of the US
Constitution, ensuring their fundamental status in
American law and their future survival.
Other countries have enacted similar bills of
rights by statute, which are highly influential though
lack the full force of constitutional provisions. This
form has been preferred by some jurisdictions as it
allows potential for some future flexibility, while still
declaring protection of the wide range of rights and
giving the judiciary the power to declare any incon-
sistent legislation as incompatible. For example,
Canada introduced the Canadian Bill of Rights in
1960, New Zealand introduced a Bill of Rights in
1993, and the UK enacted the Human Rights Act
1998 (UK). In Australia, both the Australian Capital
Territory (in 2004) and Victoria (in 2006) have
enacted human rights charters in line with many
of the rights protected under the UDHR, ICCPR and
ICESCR to protect human rights in relation to state
and territory legislation and decisions.
In Commonwealth law, various attempts have
been made to introduce greater human rights pro-
tection but have failed. The most notable attempts
were in 1944 when the Labor Government tried to
introduce constitutional amendments to guarantee
freedom of expression and freedom from want
and fear, and the 1983 Australian Human Rights
Bill. In 1997, the issue of a human rights bill was
again raised yet failed during the Constitutional
Convention on making Australia a republic.
In 2008, on the 60th anniversary of the Universal
Declaration of Human Rights, the Federal Attorney-
General Robert McClelland announced an inquiry,
called the National Human Rights Consultation, into
whether Australia should adopt some form of a
Charter of Rights. The inquiry sparked a nation-
wide debate about the status of rights protection,
the merits of adopting a charter and the future of
rights in Australia. The consultation was widely
successful. After receiving over 35 000 submis-
sions, conducting 66 community roundtables and
were opposed. In April 2010, the Australian govern-
ment rejected the key recommendation of the
National Human Rights Consultation Committee
report to implement a legislative Charter of Human
Rights. Instead, the government announced that it
would adopt a human rights framework including
various measures, such as education initiatives

three days of public hearing, and conducting exten-
sive research into the issue, the Consultation
released its report at the end of 2009.
While the form a charter would take is not clear,
of all the submissions entered to the Consultation,
95 per cent discussed enacting a Charter of Rights
or Human Rights Act, similar to that of the UK or
New Zealand. Of all those, 87.4 per cent were in
favour of such a charter and only 12.6 per cent
Hu m an rig hts
and enhanced parliamentary processes, but with-
out the protection of a binding legislative charter.
It remains to be seen whether a future government
will decide to act on the recommendation and
implement a comprehensive Charter of Human
Rights.
Table 8.1 contains a basic summary of all the
main arguments put forward by supporters and
opponents of a Charter of Rights.

Table 8.1

Arguments for a Arguments against a R ESEAR CH 8 . 4

Charter of Rights
s Extremely high community support
for a Charter of Rights
s Redressing the inadequacy of
existing human rights protections
s Reflecting basic Australian values
s Protecting the marginalised and
disadvantaged
s Improving the quality and
accountability of government
s Contributing to a culture of respect
for human rights
s Improving Australia’s international
standing in relation to human
rights
s Bringing Australia into line with
other democracies
s Generating economic benefits
l eg a l l in k s
Charter of Rights
s The adequacy of current human
rights protections in Australia
s Undermining a tradition of
parliamentary sovereignty,
including transferring legislative
power to unelected judges
s No better human rights protection
is guaranteed
s Potentially negative outcomes for
human rights
s Excessive and costly litigation
s Democratic processes and
institutions offer better protection
of rights
s A major economic cost
s Unnecessarily legalised human
rights
Read all of the arguments for
and against adopting a Charter
of Rights, then review the more
detailed arguments contained in
Chapters 12 and 13 of the National
Human Rights Consultation Report
(www.humanrightsconsultation.
gov.au) and answer the following
questions.
1 Research at least three
arguments for and three
arguments against introducing a
charter in the report.
2 Explain in detail what the
argument consists of and any
arguments against it.
3 Based on your analysis, critically
evaluate whether a Charter of

Rights should be introduced in

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

Cha pter 8: Promoting a nd enforcing human ri ghts 189

 s Protection of human rights differs
internationally and domestically.
s State sovereignty can be used to promote or
to hinder human rights.
s The various bodies of the UN and
international courts have differing roles to
play in protection of human rights.
s The responsibility to protect is a new
UN doctrine that attempts to make the
prevention of human rights abuses the
C ha p te r s u m m a ry
collective responsibility of the international
community.
s Many IGOs and NGOs play an important role
in promoting human rights internationally.
s The UN Human Rights Committee can hear
complaints submitted directly by citizens of
states.
s The ICC was the first permanent international
court to deal with violations of human rights
and crimes against humanity.
M ul ti p l e- c hoi ce q ues ti ons
1 Which of the following is NOT an organ of the
UN?
a Security Council
b International Criminal Court
c Secretariat
d Economic and Social Council
2 Which of the following best describes the
responsibility to protect?
a states have the sole responsibility to
protect their populations from human
rights abuses
b the international community has the
responsibility to intervene whenever there
are human rights abuses
c the responsibility to protect people’s
human rights is shared between the state
and the collective international community
d the responsibility to protect people’s
human rights is shared between the
UN Security Council and the collective
international community
3 Which of the following is NOT protected by
the Australian Constitution?
a The right to vote
b The right to religious freedom
c The right to privacy
d The right to federal trial by jury
190 C am b r id g e L e g a l S t u d ie s – HS C
s Australia incorporates international treaties
into domestic law by legislation.
s The Australian Constitution enshrines some
minimal human rights.
s Most Australian human rights are found in
statute or in common law.
s The High Court has a crucial role in upholding
human rights in the Constitution and common
law.
s Freedom of speech and freedom of
information are essential for a healthy
democracy and the maintenance of the rule
of law.
s A Charter of Rights has been proposed for
introduction into Australian law. There are
many arguments for and against a charter, but
the majority of Australians are in favour of it.
4 The separation of powers in Australia is best
described by which of the following?
a The separation of parliament, the army and
the judiciary
b The separation of legislative power
between the Commonwealth and the
states
c The separation of parliament, the executive
and the judiciary
d The separation of parliament, the judiciary
and the senate
5 Which of the following contains only
arguments FOR a Charter of Rights?
a reflecting basic Australian values; high
community support; excessive and costly
litigation
b high community support; adequacy
of current human rights protections;
generating economic benefits
c improving Australia’s international
standing; reflecting basic Australian values;
transferring legislative power to unelected
judges
d high community support; improving the
quality and accountability of government;
redressing the inadequacy of existing
protections
C ha p te r s u m m a ry ta s k s
1 Assess how state sovereignty can be used to
shield human rights violations.
2 Describe the role of the UN in protecting
human rights.
Hum an rig hts
3 Describe the role of the various international
courts in enforcing human rights.
4 Assess the power of the High Court to protect
and advance human rights.
5 Critically evaluate the view that only a Charter
of Rights can fully protect citizens’ human
rights.
Cha pter 8: Promoting a nd enforcing human ri ghts 191
 I s s u e 1: H u m a n t r a f f i c k i n g a n d s l a v e r y

CHAPTER 9
Contemporary
human rights issues
c hap te r o b j e cti ve s

In this chapter, students will: s evaluate the effectiveness of legal measures to

s identify and apply legal terminology to
contemporary human rights issues
s describe how international and domestic law are
used in the promotion of human rights
s discuss ways in which the law is used to deal with
human rights issues
s explain the role of the law in educating the public
about human rights and encouraging cooperation as
a means of progress on human rights issues
k ey t er ms/vocab ul ary
promote human rights
s communicate legal information about contemporary
human rights issues using logical and well-
structured arguments
s analyse the operation of international law and
domestic legal systems in promoting human rights.

child soldier
contemporary slavery
debt bondage
forced labour
forced marriage
human shield
human trafficking
people smuggling
press-ganging
sexual slavery
war crime

192 C am b r id g e L e g a l S t u d ie s – HS C
Issue 1 Human trafficking and slavery
Issue 2 Child soldiers
rel ev ant l aw
I M PORTANT LEGIS L AT ION AN D T R EAT IES
Universal Declaration of Human Rights (1948)
Slavery Convention (1926)
Supplementary Convention on the Abolition of
Slavery, the Slave Trade and Practices Similar
to Slavery (1956)
Protocol to Prevent, Suppress and Punish
Trafficking in Persons, especially Women and
Children (2000)
Supplementary Protocol to Prevent, Suppress
and Punish Trafficking in Persons, Especially
Women and Children (2004)
Criminal Code (Slavery and Sexual Servitude)
Amendment Act 1999 (Cth)
Criminal Code Amendment (Trafficking in
Persons Offences) Act 2005 (Cth)
Criminal Code Act 1995 (Cth)
Trafficking Victims Protection Act of 2000 (US)
United Nations Declaration of the Rights of the
Child (1959)
Convention on the Rights of the Child (1989)
Charter of the United Nations (1945)
Rome Statute of the International Criminal Court
(1998)
Worst Forms of Child Labor Convention (1999)
Optional Protocol to the Rights of the Child on
the Involvement of Children in Armed Conflict
(2000)
Defence Act 1903 (Cth)
S I GNIFICANT CAS ES
R v Tang (2008) 237 CLR 1; R v Wei Tang (2009)
233 FLR 399
Prosecutor v Thomas Lubanga Dyilo ICC-01/04-
01/06
e rig hts
od d l a w
C riman
Hum
While human rights abuses continue to present a
challenge to governments and non-government
organisations (NGOs) around the world,
animal rights groups in Switzerland have taken
the challenge one step further, presenting a
proposal to introduce a nationwide system of
state-funded lawyers to represent animals in
court.
Switzerland already has some of the strictest
animal welfare legislation in the world. Animals
such as pigs and goldfish cannot be kept alone;
horses and cows must have regular exercise
outside in summer and winter; and dog owners
have to take training courses to learn how to
care for their pets.
In 2010, the proposal was rejected in a
referendum by approximately 70 per cent of
voters. Opponents argued that Switzerland did
not need more legislation and that the cost of
such a scheme would be unsustainable.
Cha pter 9: Contempora ry huma n rights i s s ues 193
 Int roduc t ion
Although the world has come far in recognising
human rights and implementing numerous
reforms internationally, there is still no shortage of
human rights issues that remain to be addressed.
Despite the best efforts of the United Nations,
governments and thousands of national and inter-
national human rights organisations, human rights
violations are still relatively commonplace, and
even on the rise, in some areas around the world.
This chapter analyses two contemporary
human rights issues and evaluates the effective-
ness of both legal and non-legal responses to
these issues. These issues include:
1 human trafficking and slavery
2 child soldiers.
Note that to meet the requirements of the
New South Wales Legal Studies syllabus, only
one of these two issues must be studied.

Figure 9.1 Despite the efforts of the UN, governments and thousands of national and international
human rights organisations, human rights violations such as human trafficking and slavery and the use
of children in armed conflict are still issues of major concern.

194 C am b r id g e L e g a l S t u d ie s – HS C
 I s s u e 1: H u m a n t r a f f ic k i n g a n d s l ave r y

Co ntempora r y s l aver y
The history of slavery and the advancement of the As contemporary slavery involves illicit acti- contemporary
slavery

Hu m an rig hts
abolitionist movement were discussed in Chapter vity, accurate statistics describing the extent of the
a form of forced
7. As discussed in that chapter, the worldwide problem are difficult to obtain. The UN Interna- or bonded labour,
movement to abolish slavery began in the 18th tional Labour Organization (ILO) estimates at least with or without
pay, under threat of
century. It culminated in the development of 12.3 million adults and children are in forced or
violence
numerous anti-slavery treaties in the 20th century, bonded labor or commercial sexual servitude at
forced labour
leading eventually to the abolition of slavery world- any given time. According to some researchers work performed
wide. Article 4 was included in the 1948 Universal and NGOs, as many as 27 million people or more under the threat of
a penalty or harm
Declaration of Human Rights, stating: ‘no one shall may currently be enslaved around the world; see
which the person
be held in slavery or servitude; slavery and the for example, the websites of Anti-Slavery Inter- has not voluntarily
slave trade shall be prohibited in all their forms’. national (www.antislavery.org) or iAbolish (www. submitted to

Today, every country has enacted laws
officially abolishing slavery, and by doing so has
undertaken to end the practice within their own
borders. Minimum working conditions have been
established, as have complex laws on the migration
and movement of individuals across international
borders. Yet despite this, slavery is still far from
being an issue of the past. Illegal slavery and the
trade and trafficking of human beings continues
to this day, including in developed countries such
as Australia.
iabolish.org). This includes more people than at
any other time in history.
Contemporary slavery can take a number of
forms. The main categories of slavery include:
s Forced labour – this refers to work performed
under the threat of a penalty or harm which the
person has not voluntarily submitted to, such as
threat of hardship, detention, violence or even
death to the person or to another person. Victims
might include domestic workers or workers in
factories or sweatshops, mining and agriculture

Figure 9.2 Forced labour refers to work performed under the threat of a penalty or harm which
the person has not voluntarily submitted to. Victims might include domestic workers or workers in
factories or sweatshops, mining and agriculture or construction.

Cha pter 9: Contempora ry huma n rights i s s ues 195

 I s s u e 1: H u m a n t r a f f i c k i n g a n d s l a v e r y

debt bondage or construction. A person may, for example, be s Sexual slavery – this involves repeated vio-
a situation where a
lured by the promise of a legitimate job opportu- lation or sexual abuse or forcing the victim
person is forced to
repay a loan with labour nity and instead forced to work without pay or to provide sexual services. It can take many
instead of money, enduring physical abuse. It can often be difficult forms, including forced prostitution, single-
where the proper
for authorities to find such individuals or groups. owner sexual slavery, slavery associated with
value of the labour is
not applied towards s Debt bondage – often a form of forced labour, religious practices or another type of slavery
repayment or the type this refers to a situation where a person is forced such as forced labour where sexual abuse is
or duration of services
to repay a loan with labour instead of money. also common. Sexual slaves are usually women
are not properly limited
Debt bondage occurs where the proper value of and children. The victims might be captured,
sexual slavery
repeated violation or the labour is not applied towards repayment of coerced, deceived or even sold by their own
sexual abuse or forcing the debt, or the type or duration of services are families or acquaintances into sexual slavery.
of a victim to provide
sexual services; it often not properly limited. In many cases, the person There are other more specific situations that may
takes the form of forced may be deceived into paying extremely high result in conditions of slavery. Though they might
prostitution or forced
rates of interest making it impossible to repay arguably fall into one or more of the categories
labour where sexual
abuse is also common the debt. They might be tricked or trapped into above, they include for example, domestic workers
child soldier working for no or very little money, or have kept in captivity, the adoption of children who are
a person under the age unreasonable expenses deducted from any pay effectively forced to work as slaves, child soldiers
of 18 who participates,
or further added to the debt. In some cases, or forced marriage.
directly or indirectly, in
armed conflict as part children of the borrower may be forced to repay
of an armed force or the debt across generations.
group, including both
armed and support
roles
forced marriage
marriage in which H u m a n t ra f f ic k i n g a n d s l ave r y
one or both parties
is married against his
or her will, often on Today, many victims of slavery are forced into Human trafficking can involve a whole line of
promise of payment of slavery by way of human trafficking, which refers criminal activity, from recruitment and harbour-
money or goods to the
family or other person to the commercial trade or trafficking in human ing of victims, to transport and sale, to obtaining
involved beings for the purpose of some form of slavery. or buying and finally exploiting that person in
human trafficking It includes, for example, recruiting or transporting slavery or forced labour. Victims of human traffick-
the commercial
a person for forced labour or debt bondage, or ing might be recruited in a number of ways, for
trade or trafficking
in human beings for providing or obtaining a person for forced labour example, they may be lured by a false job offer or
the purpose of some or debt bondage by use of force, fraud or coercion, offer of migration or a marriage proposal. In other
form of slavery, usually
or trafficking people for sexual slavery. cases, victims may be sold by family members,
recruiting, transporting
or obtaining a person Human trafficking is a complex crime involving recruited by former slaves, deceived, intimidated
by force, coercion or some of the most serious violations of human or even physically abducted.
deceptive means
rights. It should be distinguished from people The victims might be falsely imprisoned or
people smuggling
smuggling, which refers to a situation where threatened, bonded with debt or it might be prac-
illegal transportation
of people across people voluntarily pay a fee for the smuggler’s tically impossible for the victim to survive outside.
borders, where people service, not necessarily involving any deception. Victims might be exploited in a commercial
voluntarily pay a fee to
the smuggler, usually With people smuggling, the person is usually free industry, for example the commercial sex industry
free to continue on their to continue on their own after arrival, often in the or agriculture and mining, or may be exploited in a
own after arrival in the
hope of starting a new life in the new country. With private residence, for example in forced marriage
hope of starting a new
life in the destination human trafficking, however, the victim will usually or exploitation of domestic workers.
country be exploited or forced into performing some sort
of labour or service on arrival.

196 C am b r id g e L e g a l S t u d ie s – HS C
E x t e n t o f h u m a n t ra f f ic k i n g
Estimates of the number of people trafficked
across international borders vary dramatically. A
2009 Australian Government report, Trafficking in
Persons, places the number at anywhere from
700 000 to four million. However, this does not
It is a global problem involving people of diverse
nationalities trafficked in many countries, including
Australia, the United States and European Union
states. While many victims come from developing
countries, poverty is not the sole source of the

include the millions of people trafficked within
their own countries, which may be especially
difficult to detect. According to the UN’s 2009
Global Report on Trafficking in Persons, sexual
exploitation is the most documented type of traf-
fick ing because it is more frequently reported by
countries, whereas instances of forced labour and
debt slavery, as well as forced marriage and
domestic servitude, may be less well documented.
The ILO estimates that at least 56 per cent of all
forced labor victims are women and girls.
Hu m an rig hts
problem, which is driven by fraudulent recruiters,
exploitative employers or corrupt officials, all seek-
ing to reap profits from the victims’ exploitation. At
least one researcher into human trafficking,
Siddharth Kara, has suggested that illicit profits
from human trafficking worldwide may be as high
as $92 billion, second only to drug trafficking.
Regardless of the numbers, human trafficking
is an important issue and affects almost every
country in the world – whether as a source, transit
or destination country. The following section
explores some of the measures adopted world-
wide to combat the problem.

main reported destinations

main reported origins
both origin–destination

Figure 9.3 Human trafficking – countries of origin and destination. Source UNODC

Cha pter 9: Contempora ry huma n rights i s s ues 197

 I s s u e 1: H u m a n t r a f f i c k i n g a n d s l a v e r y
ca s e s tu d y
Human trafficking – victims’ stories
The following stories are extracted from the US
Department of State’s Trafficking in Persons Report
for 2009. They illustrate some of the suffering of
victims of human trafficking and the different places
and circumstances in which it can occur.
s From Uzbekistan, Nila and Miram (aged 20 and
22), after hearing a friend’s stories of lavish
parties and unending wealth, decided to travel
to India to work for a fashion design company.
On arrival, however, their passports were taken
and they were told they would not be designing
clothing, but were instead forced to service
clients at luxury hotels as part of a sex trafficking
ring. Eventually, they were discovered by Indian
authorities and returned home where they
received care and rehabilitative assistance from a
shelter.
s From Indonesia, Keni binti Carda (28), decided
to go and work as a domestic worker in a Gulf
state. When she arrived her employer locked
her inside the house and forced her to work
extremely long hours each day. She allegedly
burned Keni repeatedly with an iron, forced her to
ingest faeces and abused her psychologically. She
threatened to kill Keni if she tried to escape, and
among other forms of abuse applied household
cleaners to Keni’s open wounds and pried her
teeth loose and forced them down her throat.
Keni was eventually sent home before she could
seek help from local authorities, but suffers long-
term disability caused by her abuse.
R EVIEW 9.1
1 Identify the form or forms of slavery
applicable to each story featured above.
2 Explain how each of these individuals was
trafficked – describe the methods used and
the purpose for which they were trafficked.
3 Describe the person or persons likely to
benefit from the victim’s exploitation in
each of these instances. Identify where any
profit was likely to be involved.
198 C am b r id g e L e g a l S t u d ie s – HS C
s In Cambodia, Phirun worked in the rice and
vegetable fields, until convinced by a recruiter
that he would receive higher wages working in
a Thai factory. He and fellow workers paid the
recruiter to smuggle them across the border to
Thailand. On their arrival, the recruiter seized
their passports and locked them up. They were
then sold to work on a fishing boat, where they
were given little food or water, and worked day
and night. Phirun witnessed the crew beat and
shoot other workers, dumping their bodies in the
water. He himself was beaten unconscious. After
two years of forced labour, he persuaded his
traffickers to release him.
s In China, Xiao Ping (20) was from a small village
in Sichuan Province. Her new boyfriend offered
to take her on a weekend trip to his hometown.
Instead, he took her to a desert village in Inner
Mongolia and sold her to a farmer to be his wife,
where she was imprisoned, beaten and raped
over 32 months. Her family borrowed a large sum
of money to pay for her rescue, but the farmer
forced her to leave behind a newborn son she had
given birth to during her imprisonment. After she
returned she was forced to marry the man who
had provided the loan. The marriage did not last,
however, as he regarded her as ‘stained goods’.
Source: US Department of State’s Trafficking in Persons
Report (2009) available at: http://www.state.gov/g/tip/rls/
tiprpt/2009/123145.htm. The information used can be found on
pages 22, 30, 34 and 38 of the full report.
R ESEAR CH 9 . 1
Looking at the latest edition of the US
Trafficking in Persons Report, make a brief
list of some of the highest (Tier 1) and lowest
(Tier 3) ranked countries.
1 Identify any patterns you can find in the
highest and lowest country rankings.
2 Choose one country featured in the Report.
Find more detailed information on that
country and summarise its progress.
 legal links
The US Department of State releases
an important annual report on human
trafficking titled Trafficking in Persons
Report. The report contains detailed
information on measures against human
trafficking worldwide, including the status
of current national legislation, and on
prosecution and prevention of human
trafficking and protection of victims.
Res p o n s es t o h u m a n
t ra f f ic k i n g a n d s l ave r y
The international community has responded
to human trafficking in numerous ways, both
internationally and domestically. Some of these
measures are considered below.
Legal responses
Legal responses to human trafficking began with
the worldwide abolition of slavery, largely in the
early 20th century through the Slavery Convention
of 1926. This treaty was expanded in 1956 by the
Supplementary Convention on the Abolition of
Slavery, the Slave Trade and Practices Similar to
Slavery, which clarified and expanded the defi-
nition of slavery, including for example debt
bondage, forced marriage and child slavery.
Although these treaties provided for the offi-
cial abolishment of slavery worldwide, they did
not address issues of illicit slavery and human
trafficking. Greater awareness of human traffick-
ing and international pressure to deal with it
grew particularly at the end of the 20th century,
culminating in 2000 with the UN General Assem-
bly’s adoption of the Protocol to Prevent, Suppress
and Punish Trafficking in Persons, especially Women
and Children (‘the Protocol’), as part of a larger
treaty tackling transnational crimes.
The Report also lists each country
according to their development or success
in combating human trafficking according
to different levels or ‘tiers’. The most
recent report is available on the State
Department’s website at: www.state.
gov/g/tip/rls/tiprpt/index.htm
Hu m an rig hts
The Protocol entered into force in 2003 and
was the first legally binding instrument with an
agreed definition on human trafficking. It aimed
to provide an umbrella of overall protection,
outlining an appropriate regime of protection,
prosecution and prevention in order to effectively
and more uniformly combat human trafficking.
It was designed for member states to enact into
the most appropriate domestic laws. The Protocol
has created greater global awareness of the issue,
greater conformity in national laws in tackling the
various issues of human trafficking, and better
cross-border cooperation in investigating and
prosecuting violations.
As of 2010, there are 137 state parties to the
Protocol. The UN’s Global Report on Trafficking in
Persons in 2009 shows that in the past few years
the number of states seriously implementing the
Protocol has more than doubled. However, there
are still many countries that lack the necessary
legal instruments or political will. Although the
Protocol has been reasonably successful, there is
still a lot of progress to be made that will require
sufficient resources, focus and cooperation to
ensure the problem can be adequately tackled.
Cha pter 9: Contempora ry huma n rights i s s ues 199
 I s s u e 1: H u m a n t r a f f i c k i n g a n d s l a v e r y

R ES E A RC H 9.2 Domestic responses s Division 271 – Trafficking in persons and debt

bondage. This division makes it an offence to
The full text of the Protocol
Although opportunities for trafficking traffic in persons or children, whether inter-
to Prevent, Suppress and
into Australia may be fewer than for nationally or domestically. It also contains
Punish Trafficking in Persons,
some other countries, due to geographic offences relating to debt bondage of persons,
especially Women and
isolation and strong migration controls, forced labour and the trade in human organs.
Children is available on the
Australia is still a destination country Additional measures have been introduced by the
UN High Commissioner for
for victims of trafficking. Australian government since 2003, in particular
Human Rights’ website at
The Australian government estab- under the 2004 Commonwealth Action Plan to
the following address:
lished a human trafficking strategy Eradicate Trafficking in Persons, which included the
www2.ohchr.org/english/
in 2003 and since then has dedicated aims of prevention, detection and investigation,
law/protocoltraffic.htm
almost $60 million to tackling the criminal prosecution, victim support and rehabi-
Look at the text of the
problem. Overall, Australia’s anti- litation. In 2008, the federal government also
Protocol and complete the
traffick ing strategy addresses the full introduced new measures under the Common-
following tasks.
trafficking cycle, from recruitment to wealth Government Anti-Trafficking Strategy. Some
1 Looking at both the
reintegration, and lends equal weight to of the measures introduced include:
Preamble and Article 2 of
the critical areas of prevention, detec- s increased specialist training and funding for
the Protocol, summarise
tion and investigation, prosecution the Australian Federal Police to detect and
the main reasons why the
and victim support. Australia ratified investigate human trafficking operations
treaty was created.
the Supplementary Protocol to Prevent, s additional funding and training for the prose-
2 Identify the article
Suppress and Punish Trafficking in cution of human trafficking for Commonwealth
containing the definition
Persons, Especially Women and Children Director of Public Prosecutions
of human trafficking and
on 27 May 2004. s a National Policy Strategy to combat trafficking
explain how this might
Australia first introduced sexual in women for sexual servitude
apply to the various types
slavery laws with the Criminal Code s victim support measures and special visa
of and participants in
(Slavery and Sexual Servitude) Amend- arrangements to support victims of trafficking
human trafficking.
ment Act 1999 (Cth). It further refined s a targeted Communication Awareness Strategy
3 Describe the purpose
these and added more specific human providing information about trafficking and the
of Parts II and III to the
trafficking offences to the federal help available
Protocol and evaluate how
Criminal Code in the Criminal Code s cooperation with regional and international
these might improve the
Amendment (Trafficking in Persons agencies in tackling the sources of human traf-
effectiveness of the treaty.
Offences) Act 2005 (Cth). The current fick ing and prosecuting offenders.
provisions are found under Divisions The Australian government has made a number
270 and 271 of the Criminal Code Act 1995 (Cth), of prosecutions under the criminal provisions, in
and includes severe penalties of up to 25 years’ particular the case of Wei Tang, as described in
imprisonment for some offences. Similar offences detail in the following Case Space. One of the
also included under state and territory legislation serious problems in Australia’s enforcement cam-
include: paign has been the issue of protection visas and
s Division 270 – Slavery, sexual servitude and de- threat of deportation of victims on discovery by
ceptive recruiting, contains offences including authorities. This can effectively deprive the system
possession of a slave, engaging in slave trading of necessary witnesses and can have the effect of
or entering into any commercial transaction punishing the victims of the crimes. A number of
involving a slave. It also contains prohibitions on government proposals in recent years have attemp-
the deceptive recruiting of a person for sexual ted to address these deficiencies and their effective-
servitude. ness remains to be seen in future prosecutions.

200 C am b r id g e L e g a l S t u d ie s – HS C
ca s e s p a ce
R v Tang (2008) 237 CLR 1; R v Wei Tang (2009) 233 FLR 399.

This case involved Australia’s first jury conviction
under the slavery provisions of Division 270 of
the Commonwealth Criminal Code. It involved
a brothel owner, Wei Tang, who was accused of
purchasing five women from Thailand to work in
over a slave, contrary to section 270.3(1)(a) of the
Commonwealth Criminal Code, and sentenced to
10 years’ imprisonment. However, the conviction
was overturned and ordered for retrial in the
Victorian Court of Appeal in 2007 on the basis

Hu m an rig hts
a licensed brothel in Fitzroy, Melbourne, under that the judge had misdirected the jury on the
illegal conditions of slavery and debt bondage. meaning of the term ‘slavery’ and whether Wei
The women arrived in Australia on fraudulently Tang had to know or believe that the women were
obtained tourist visas, although the owners actually slaves.
applied for protection visas for them after they The prosecution then appealed to the High
arrived so that they could work legally. The women Court of Australia, where the original conviction
had worked in the sex industry in Thailand, and was upheld in 2008 by a 6-1 majority. Wei Tang
voluntarily entered agreements with a broker, was found to have exercised the power to make
Wei Tang then purchased from the Thai recruiter each woman an object of purchase, the capacity
for $20 000. to use the women in a substantially unrestricted
Each woman was required to repay a debt manner for the duration of their contracts, the
of $45 000, and the repayments for this formed power to control and restrict their movements,
the basis of the slave trading charges. When the and the power to use their services without
women arrived, Wei Tang withheld the women’s adequate compensation.
passports as well as their return aeroplane tickets,
and the women were told the debt was to be
repaid by working six-day weeks over seven to
eight months. Each client serviced by the women
counted towards $50 off the payment, amounting
to a total 900 clients required to repay the debt.
If the women worked on the seventh day as well,
they were permitted to keep $50 per client for
themselves.
There was no evidence that Wei Tang had
physically abused the accused and two women
paid off their debts in six months after which they
were paid and could choose their working hours.
Although the women were not usually under lock
and key, they had little money and limited English,
their passports were retained, their visas were
illegally obtained so they feared immigration
authorities, and they were required to work
extremely long hours.
Wei Tang was convicted in 2006 of five counts
of intentionally possessing a slave and five counts
of intentionally exercising a power of ownership Figure 9.4 Wei Tang

Cha pter 9: Contempora ry huma n rights i s s ues 201

 I s s u e 1: H u m a n t r a f f i c k i n g a n d s l a v e r y
R EVIEW 9.2
1 Identify the section and division of the
Commonwealth Criminal Code under which
Wei Tang was prosecuted.
2 Describe where the women came from and
how they came to be working in Australia.
3 Outline the conditions of the ‘contract’ that
Wei Tang had made with the women.
4 Describe some of the conditions that
amounted to a finding of the women being
kept as slaves, and outline the powers that
Wei Tang was found to have exercised.
Non-legal responses
There are many programs and organisations, both
international and domestic, that aim to combat the
causes, organisation and execution, and effects of
human trafficking worldwide.
International responses
At the international level the UN, the International
Labour Organization (ILO) and various NGOs
are involved in combating slavery and human
trafficking. The UN has established a Global
Initiative to Fight Human Trafficking (UN.GIFT), with
the aim of mobilising non-state actors to help rid
the world of human trafficking. UN.GIFT aims to:
s increase awareness about human trafficking
s assist non-state actors (e.g. NGOs) in their
anti-trafficking campaigns by encouraging co-
operation and joint action between NGOs and
efficient prosecution of criminals
s reduce the demand for the exploitation of people
and the vulnerability of potential victims, and
ensure support for victims who have escaped.
The ILO also plays a crucial role in implementing
and reporting on workers’ rights worldwide. The
ILO has campaigned ceaselessly against forced
labour. More recently, in 2001, the ILO established
a Special Action Programme on Forced Labour (SAP-
FL) to attempt to raise global awareness of forced
labour in its different forms. It has undertaken
several worldwide and country-specific studies
202 C am b r id g e L e g a l S t u d ie s – HS C
and surveys, on such diverse aspects of forced
labour as bonded labour, human trafficking,
forced domestic work, rural servitude, and forced
prison labour.
As discussed in Chapter 8, NGOs play an
extremely important role in combating human
rights abuses, for example by reporting on and
exposing abuses, by researching and informing
the public and governments on incidents and
patterns of abuse, or by working to combat causes,
incidents of or effects of abuse. Some particular
NGOs involved in combating human trafficking
and slavery include:
s Anti-Slavery International (www.antislavery.
org) is an international NGO founded in 1839
and based in the UK. It aims to draw attention
to the continuing problem of slavery worldwide
and campaign for recognition and action in the
countries most affected today.
s American Anti-Slavery Group (www.iabolish.
org) is an anti-slavery NGO that works on aware-
ness, advocacy and aid against contemporary
slavery. It focuses primarily on slavery in Sudan
and Mauritania.
l eg al l i nks
UN.GIFT – For more information
on the UN.GIFT initiative, visit the
program’s website at:
www.ungift.org
ILO – Information on the ILO’s
forced labour program ‘SAP-FL’ is
available at:
www.ilo.org/sapfl
Domestic responses
Actions by states are also crucial in combating
slavery. As mentioned earlier, the US plays an
important role in combating human trafficking
worldwide. The US first began monitoring
human trafficking in 1994 and has broadened
its reporting over the years to cover all main
forms of contemporary slavery. In 2000, the US

Figure 9.5 American Anti-Slavery Group (www.iabolish.org) is an anti-slavery NGO that works on advocacy, aid and
awareness of contemporary slavery. It focuses primarily on slavery in Mauritania and Sudan, pictured above.
passed the Trafficking Victims Protection Act of
2000 which established an office to monitor and
combat trafficking, and has initiated programs
and provided millions in grants to organisations
around the world. It has assisted many countries
on training, investigating, prosecuting and on
protection of victims from abuse. In 2004, the US
established a centre to coordinate the activities of
federal agencies, police, intelligence, and diplomatic
representatives together to coordinate activities to
stop trafficking. One of the US’s most important
efforts has been the US Department of State’s
detailed annual Trafficking in Persons Report.
In Australia, there are also a number of NGOs
that make an indispensable contribution to
fighting all forms of modern slavery. The media
also plays a role informing the public about the
existence and nature of modern slavery in this
country. Films, books and documentaries have
also played an important role. For example, in
Hum an rig hts
July 2006, SBS aired ‘Trafficked’, a documentary
about sex slavery in Australia which was watched
by over 500 000 viewers. ‘Trafficked’ shocked the
country and acted as a catalyst for some victims
of trafficking to lodge compensation claims. As
the director, Luigi Acquisto said, ‘the film made
legal history and set precedents for future victims’
(Source: www.documentaryaustralia.com.au/da/
issues/details.php?recordID=13).
Australian universities are also crucial in
researching and reporting on trends in human
trafficking in Australia. For example, University
of Technology Sydney’s Anti-Slavery Project began
in 2004 and is dedicated to the elimination of
modern slavery in all its forms through collab-
oration with government agencies and community
groups. The University of Queensland also estab-
lished a Human Trafficking Working Group in 2008,
which researches and analyses cases and statistics
on human trafficking and slavery in Australia.
Cha pter 9: Contempora ry huma n rights i s s ues 203
 I s s u e 1: H u m a n t r a f f i c k i n g a n d s l a v e r y
legal links
‘Trafficked’ – further information on the
SBS documentary ‘Trafficked’ is available
at: www.documentaryaustralia.com.au/
da/issues/details.php?recordID=13
Anti-Slavery Project – information on the
activities of the Anti-Slavery Project is
available at www.antislavery.org.au
Effectiveness of
responses
At the international level, the problem of modern
slavery as yet is showing no sign of going away.
The main factors contributing to the risk of
people trafficking and slavery and the difficulty in
preventing it have been identified as:
s limited resources or effectiveness of developing
states to combat forms of exploitation and
transnational crime
s socio-political and economic factors that under-
pin the movement of people from one place to
another.
In a globalised economic system there is an
increased demand for all types of labour, legal
and illegal. This demand is exploited by criminal
organisations, and vulnerable people are trafficked
as victims to meet this demand. Poverty in source
countries, combined with a lack of education and
rule of law, can contribute to the vulnerability of
victims and the success of recruiters’ coercive or
deceitful techniques.
The implementation and enforcement of inter-
national treaties, especially the 2000 Protocol
is left up to national governments. While some
states vigorously pursue offenders, others may
be unwilling or unable to effectively tackle the
problem. The UN, ILO and NGOs play a crucial role
in encouraging such countries to continue their
efforts, and reporting mechanisms such as the
US Trafficking in Persons Report help to expose the
continuing deficiencies of these countries’ efforts.
204 C am b r id g e L e g a l S t u d ie s – HS C
Human Trafficking Working Group –
research, case reports and statistics on
human trafficking in Australia are available
on the University of Queensland’s Human
Trafficking Working Group website at:
www.law.uq.edu.au/humantrafficking
The Trafficking in Persons Report lists Australia
as a Tier 1 best practice country, but identifies
a number of areas where improvements can be
made. The report noted that crime was becoming
increasingly recognised in the Asia-Pacific region,
with a 30 percent increase in prosecutions in one
year in Indonesia, and legislation now in place in
over half of Pacific Island nations. Regional reform
has been key, with many policy frameworks and
technical assistance programs produced or man-
aged by regional bodies, with Australia playing a
particularly important role.
There is unlikely to be much change to the
economic drivers of people movement and migra-
tion in the short-term, but improved awareness
and monitoring of vulnerabilities, including loca-
tions, sectors and businesses where it occurs will
help to prevent and reduce trafficking in persons
within Australia and the wider region.
R EVI EW 9 . 3
1 Describe some of the efforts of the UN and
the ILO in tackling human trafficking.
2 Explain the role of the media, NGOs and
other non-legal responses in combating
human trafficking. Evaluate how these
groups can complement the legal measures
in place.
3 Critically evaluate the effectiveness of
legal and non-legal responses to human
trafficking based on consideration of the
causes and drivers behind the problem.
 Issue 2: Child soldiers

Defining the issue of child soldiers

Children, like adults, are entitled to the protection Hitler Youth in Nazi Germany during the Second child soldier

Hum an rig hts

of human rights. The Universal Declaration of World War. a person under
the age of 18 who
Human Rights is intended to be universally applied, In the 20th century, many international cam- participates, directly
and the rights it declares apply to children and paigns were undertaken to stop the participation or indirectly, in armed
conflict as part of an
young people just as they do to adults. However, of children in armed conflict and to bring about
armed force or group,
children may have less power in society and they greater awareness of their exploitation. However, in either armed and
may be more susceptible to victimisation and use of children is still widespread in some areas supporting roles

human rights violations than the average citizen.

The special vulnerability of children is recog-
nised in Article 25 of the UDHR which provides
that children are ‘entitled to special care and
assistance’. In 1959, the UN expanded on this with
the adoption of the Declaration of the Rights of the
Child. The declaration restates several provisions
of the UDHR as applicable to children, adding
that children need ‘special safeguards and care,
including appropriate legal protection, before as
well as after birth’.
Although significant progress has been made in
children’s rights in the last century, many children
across the world today are still denied basic human
rights or have those rights violated. For example,
denying the right to education or right to a fair
trial, suffering forms of violence, or punishment by
cruel and inhumane methods, including in some
countries the death penalty. In some countries,
children are also recruited into armed forces as
so-called ‘child soldiers’.
Children have been involved in military cam-
paigns in many cultures throughout history, even
where their use was widely condemned by society.
For example, child soldiers were documented to
have participated as aides, scouts, support per son-
nel or in historical events such as the Children’s
Crusade of medieval Europe in 1212, as drummer- Figure 9.6 Although significant progress has been made in children’s
boys under Napoleon in the Battle of Waterloo, rights in the last century, many children across the world today are
as young militia in the Spanish Civil War, or the still denied basic human rights or have those rights violated.

Cha pter 9: Contempora ry huma n rights i s s ues 205

 Issue 2: Child soldiers
contemporary slavery
a form of forced or
bonded labour, with
or without pay, under
threat of violence
human trafficking
the commercial
trade or trafficking
in human beings for
the purpose of some
form of slavery, usually
recruiting, transporting
or obtaining a person
by force, coercion or
deceptive means
press-ganging
the act of forced
conscription used in
England during the
1800s; groups of men
known as press gangs
were employed by the
government to recruit
people forcibly into
lifetime service with the
armed forces
206 C am b r id g e L e g a l S t u d ie s – HS C
Figure 9.7 Children have been exploited throughout history for use in military campaigns, for
example, the famous drummer-boy, John Clem, in the American Civil War (pictured left) and Chinese
child soldiers serving in Burma during World War II.
of the world, particular in areas where instability
is rife. The use of children in armed conflict will
usually be highly exploitative and is often consid-
ered a form of contemporary slavery or human
trafficking. It involves the unlawful recruitment of
children, often through force, fraud or coercion,
for labour or even sexual exploitation in conflict
areas.
Children in armed conflict may be exposed
to high levels of danger or abuse and significant
psychological trauma. They may be frequently
injured or killed or suffer serious harm. Although
some children are claimed to join an armed group
‘voluntarily’ this often involves some form of co-
ercion, force or deception, or the child may see no
other option for survival but to join the recruiters.
The reasons groups may target children for use
in armed conflict is that they may be seen as free
and expendable labour, or as easier to abduct or
manipulate. Children may also be more willing
than adults to take risks, while the other side may
also be less inclined to suspect children or hesitate
to attack where children are present. Children are
particularly vulnerable to military recruitment –
they may be more easily manipulated and drawn
into conflicts that they are too young to resist or
fully understand.
The parties recruiting children can be govern-
ment forces, paramilitary organisations or rebel
groups. Children might be recruited for example at
home, on the street or even at school, or they
might be physically abducted by recruiters. They
might even be forcibly conscripted by govern-
ments. Many children may join armed groups
supposedly ‘voluntarily’ because of economic or
social pressures or because they believe the group
will offer food or security, while others might be
abducted or ‘press-ganged’ by the armed groups.
Children will usually be unable to leave or sub-
jected to severe punishment for attempting to
escape. Sometimes children may be forced or
indoctrinated into committing atrocities against
neighbours or even their own families and may
become stigmatised in their communities making
it impossible for them to return home.
The use of child soldiers can take three main
forms:
E x t e n t o f t he i s s u e
It is impossible to calculate how many children
around the world are involved in armed conflict
as child soldiers. Child soldiers may serve in gov-
ernment armies, but also in government-linked
militias or opposition or rebel forces, where
reliable data is unavailable. Some countries may
have inadequate procedures to verify the ages
of new recruits. In other countries, low levels
of birth registration mean that children may be
inadvertently or even deliberately recruited, for
example in Paraguay where this assisted forced
conscription of children as young as twelve.
Reports by the UN and by international NGO
Human Rights Watch in 2007 estimated the
number of children serving in armed conflicts at
between 200 000 and 300 000. In that year, the
UN reported 57 armed groups worldwide using
child soldiers. The Coalition to Stop the Use of
Child Soldiers, an NGO dedicated to stopping the
use of child soldiers, estimates the number today
to be many tens of thousands, in conflicts as wide
apart as Africa, Asia, the Middle East and South
America.
For example, recent conflicts in Sri Lanka,
Uganda, Colombia, Myanmar, Iraq, Israel and the
Occupied Palestinian Territories or Sudan have
involved some use of child soldiers. In one of the
worst cases in Uganda, more than 30 000 children
have been kidnapped to serve as soldiers and
slaves by the rebel group Lord’s Resistance Army
(LRA). According to a 2009 US Trafficking in Per-
1 Direct involvement in armed conflict, where
the child may be expected to take part in the
fighting and armed with a weapon.
2 Indirect involvement through support roles,
such as messengers, scouts, cooks, porters,
servants, to lay or clear land mines or even as
sexual slaves.
Hu m an rig hts
3 Use for particular political advantage, such as
propaganda or as human shields. human shields
the placement of
civilians in or around
military targets to
deter the other party
from attacking that
target
war crime
an action carried out
sons Report, boys in the rebel group are forced to
during a war that
loot and burn villages and torture and kill neigh- violates accepted
bours. Girls abducted are routinely raped or international rules
of war
become sex slaves.
In some countries such as Uganda, Sri Lanka
or Nepal, a third or more of the children recruited
were reported to be girls. Girls in particular may be
at additional risk of rape or sexual harassment, or
may be given to military commanders as ‘wives’,
possibly under an arrangement of forced marriage.
The majority are between the ages of 15 and 18
and in some cases their use may still be considered
legal under national laws. However, in some coun-
tries children under 15 years old, and in some
cases as young as 7 years old, may be recruited,
especially by rebel or guerrilla movements. The
recruitment of children under the age of 15 years is
considered a war crime under international law.
While the use of child soldiers is universally
condemned, according to the Coalition to Stop
the Use of Child Soldiers, hundreds of thousands
of children have fought and died in conflicts
around the world over the last decade. They are
frequently forced to conduct hazardous tasks such
as laying land mines or explosives, or even suicide
missions, and are usually forced to live in harsh
conditions often with no healthcare or without
enough food. Almost always they will be subject to
cruel and brutal treatment, including beatings and
humiliation, or severe punishment for mistakes or
attempts to escape.
Cha pter 9: Contempora ry huma n rights i s s ues 207
 Issue 2: Child soldiers
Technological advances in weaponry have also
contributed to an increase in the use of child
soldiers – small arms and lightweight automatic
weapons are simpler and lighter to operate for
children. Recently some armed groups have given
children drugs to make them more dangerous or
less fearful during conflict. For example, during
conflict in Sierra Leone children were reportedly
given a mixture of gunpowder and cocaine before
battle. Sexually transmitted diseases and other
health problems have also become more preva lent
among children recruited, and there are high rates
of unwanted pregnancies in girls. Where children
do manage to escape, the physical and psycho-
logical scarring, as well as stigmatisation in their
former communities, makes reintegration into
normal life very difficult.
As a final point to note, many countries around
the world also continue to officially recruit under-
18s into government armed forces. Over 60
countries, including developed countries such as
Australia or the US still allow voluntary recruit-
ment of 17-year-olds into the army, and calls to
raise the minimum age to 18 have been resisted
by arguments of manpower requirements. For
example, the US Army has acknowledged that
nearly 60 17-year-old US soldiers were deployed
to Iraq and Afghanistan in 2003 to 2004 and in
recent years there has been a dramatic increase in
the number of under-18s joining the military due
to increased recruitment bonuses and lowered
requirements for educational standards.
l eg a l l in k s
The Coalition to Stop the Use of Child
Soldiers is the main international non-
government organisation involved in
advocacy, public education, research
and monitoring of child soldiers. It
provides crucial reports on situations
and conflicts involving the use of child
208 C am b r id g e L e g a l S t u d ie s – HS C
R ESEAR CH 9 . 3
Looking at the Coalition’s website
provided below, answer the following
questions.
1 Identify and make a list of the countries
around the world where the use of
child soldiers is currently an issue (there
should be about 20 countries). Describe
the regions where the use of child
soldiers is particularly widespread.
2 Choose one country and download the
most recent ‘Global Report’ on that
country from the site. Analysing the
report, summarise the context including
a description of the conflict and armed
groups involved. Describe the extent of
the use of child soldiers, the recruitment
practice and roles they are forced into.
Briefly discuss any recent developments
in the country.
R EV I EW 9 . 4
1 Identify the place, age and gender
of the children involved in the stories
above.
2 Explain whether the children in these
stories were recruited by official or by
non-government forces and describe
the way in which they were recruited.
3 Describe the tasks the children were
forced to do and the way in which they
were treated, including any abuse or
hazards they were exposed to.
soldiers in countries worldwide, as well
as assessment of compliance to legal
standards.
The Coalition’s website provides up
to date status reports by region and
country at the following web address:
www.child-soldiers.org/regions
ca s e s tu d y
Child soldiers – victims’ stories
The following stories illustrate some of the
suffering endured by children forced to serve
in armed conflicts, as well as the different
circumstances and places around the world where
the practice occurs.
s In Democratic Republic of the Congo, a militia
group abducted 11-year-old Lucien and eleven
of his classmates from their school. Lucien
submitted to military training after he was
tied up and stabbed in the stomach. Sixty
other children submitted to the severe training
and those who resisted were beaten. Lucien
witnessed people die from starvation and
illness, with the children given only one plate
of a maize per day to share with twelve others.
Lucien managed to escape after several years in
captivity and now lives with a host family.
sIn Burma, 11-year-old Aung was travelling home
when army recruiters picked him up. Aung tried
to refuse, but the soldiers told him that if he did
not join them, he would be imprisoned for six
years. Believing he had no choice, Aung agreed
to join. During training, Aung was repeatedly
beaten. At only 12 he was sent into combat
and at 13, he witnessed members of his unit
murder fifteen women and children. At 14,
Aung managed to escape across the border
into Thailand. He found an illegal job and hoped
that he wouldn’t be discovered and returned
to Burmese authorities, where he would be
arrested and also risk his family’s safety.
sIn Uganda, rebel soldiers from the Lord’s
Resistance Army (LRA) abducted 14-year-
old Charlotte and 139 other girls from their
dormitories at a Catholic boarding school. They
were marched to a military camp in Sudan.
Charlotte received 35 days of military training
before being sent to fight the government army.
She was also given to an older male soldier as
a ‘wife’ and gave birth to two children while in
the bush, nearly losing her own life during the
delivery of her first child. Charlotte and her
children escaped after eight years in captivity,
and have been reunited with Charlotte’s family.
Charlotte has also returned to school.
Hu m an rig hts
sIn Colombia, 16-year-old Estelle ‘voluntarily’
joined the guerilla movement, FARC, when
she was 11, in order to escape the physical and
sexual abuse she suffered at home. Estelle
believed that FARC would offer her protection
and a support network. Once she joined
however, she was told that if she attempted to
escape she would be sentenced to death. Before
managing to escape, Estelle was forced to kill
and lived in constant fear of being killed.
Source: (BURMA AND UGANDA) Excerpts taken from pages 8
and 9 of the Red Hand Campaign Resource pack, available at:
http://www.pcusa.org/children/peace/redhand.pdf. (CONGO) The
information above can be found on the US Department of State’s
Trafficking in Persons Report (2009) available at: http://www.state.
gov/g/tip/rls/tiprpt/2009/123145.htm. For the full report, please
see: http://www.state.gov/documents/organization/123357.pdf.
(COLUMBIA) Excerpt taken from http://www.warchild.nl/
download.php?fileId=1357, pages 26-28.
Figure 9.8 Bloody conflict in northern Uganda
where many children have been abducted and
forced to serve in the LRA.
Cha pter 9: Contempora ry huma n rights i s s ues 209
 Issue 2: Child soldiers
Responses to t he issue
o f c h i l d so l die r s
The international community has responded to
the issue of child soldiers in numerous ways, both
internationally and domestically. Some of these
measures are considered below.
Legal responses
Although the use of child soldiers has throughout
history been condemned by groups as morally or
ethically wrong, it is only relatively recently that
a proper international framework has been put in
place to try to bring the practice to an end.
International responses
The recognition of children’s special vulnerability
and need for a higher level of human rights pro-
tection was mentioned in the introduction to this
section. However, it was not until 1977 that the
specific issue of child soldiers was first addressed.
The Geneva Conventions, known as the ‘laws of
war’, were a series of four treaties adopted between
1864 to 1949 to regulate the conduct of armed
conflict and attempt to limit its effects. In 1977, a
number of Additional Protocols to the Geneva Con-
ventions were adopted, in which the problem of
child soldiers was recognised. The minimum age
for recruitment or use in armed conflict was set at
15 years old for both government and non-
government parties. This standard is now con-
sidered customary international law and so cannot
be violated anywhere in the world.
Later treaties also aimed to address the issue in
different ways:
s The Convention on the Rights of the Child (1989),
one of the most important international human
rights treaties now all but universally adopted,
included Article 38 relating to children in armed
conflict. Article 38 restates the minimum age
of recruitment at 15, and also discourages
recruitment of children under 18 years old. It
also creates obligations to minimise harm to all
children during armed conflicts.
210 C am b r id g e L e g a l S t u d ie s – HS C
s The Rome Statute of the International Criminal
Court (1998), as discussed in Chapter 6, estab-
lished a permanent court to try persons charged
with committing war crimes, crimes against
humanity, and genocide. Recruiting children
under 15 years old into armed forces or using
them to participate in hostilities was specifically
added as a war crime that can be tried and
punished by the International Criminal Court.
The Rome Statute entered into force on 1 July
2002.
s The Worst Forms of Child Labor Convention (1999)
prohibits the forced or compulsory recruitment
of children under the age of 18 for direct use in
armed conflict and defines it as one of the worst
forms of child labor, as well as other forms of
slavery and sexual exploitation. The treaty has
now been ratified by over 170 countries.
The UN, NGOs and countries around the world
became particularly focused on eradicating the use
of child soldiers towards the end of the century. In
the year 2000, the UN adopted the most important
and comprehensive treaty on child soldiers – the
Optional Protocol to the Rights of the Child on the
Involvement of Children in Armed Conflict (2000).
The Optional Protocol, which entered into force
in 2002, sets the minimum age for direct partici-
pation in hostilities or compulsory recruitment at
18 years old, and it raises the absolute minimum
voluntary recruitment age to 16. It requires certain
safeguards for recruitment and calls on govern-
ments to cooperate to put an end to child soldiers
and to provide for support and rehabilitation of
former child soldiers. The Optional Protocol has
received wide support and has now been ratified
by over 130 countries.
Many countries, however, including Australia
and the US among others, have signed up with
reservations lowering the recruitment age to 17
years. For example, the Australian Defence Force
(ADF) currently permits voluntary recruitment at
17 years, with a birth certificate and written
ca s e s p a ce
Prosecutor v. Thomas Lubanga Dyilo ICC-01/04-01/06
In 2006, Thomas Lubanga Dyilo of the Democratic
Republic of Congo (DRC) became the first person
ever arrested under a warrant issued by the
International Criminal Court (ICC). In 2009, his trial
became the first ever by the ICC. A rebel militia
leader, he is accused of conscripting child soldiers
to fight in armed conflicts in the DRC during 2002
and 2003.
Context
Conflict between groups has been occurring in
the north-eastern region of DRC for many years.
It related mainly to competition for land, and later
became entangled in larger conflicts over mineral
and diamond deposits involving ethnic groups
from neighbouring Rwanda and Uganda. There
were many fighting groups and factions forming
complicated rivalries. As part of the ongoing
conflict, many children were recruited into armed
groups on all sides. Without any accountability,
many atrocities were committed against civilians,
including widespread killing and horrific levels
of sexual violence. By 2004, around four million
people had died as a result of the conflict, through
disease, starvation, and directly through killings.
Lubanga was alleged to have served from 2002
as commander-in-chief of one armed group, the
Patriotic Forces for the Liberation of Congo. In
March 2004, the DRC government authorised the
ICC to investigate and prosecute international
crimes in the DRC relating to the conflict.
Arrest
Lubanga was strongly suspected of committing
war crimes during the conflict. Rebels under his
command were accused of massive human rights
violations, including ethnic massacres, murder,
torture, rape, mutilation, and forcibly conscripting
child soldiers. He was arrested in March 2005 and
transferred from the DRC to the ICC in The Hague,
Netherlands, in March 2006, where he was held in
an ICC prison cell. He was accused of the following
war crimes:
sEnlisting and conscripting of children under the
age of 15 years and using them to participate
Hu m an rig hts
actively in hostilities in the context of an
international armed conflict from September
2002 to June 2003 (Article 8(2)(b)(xxvi) of the
Rome Statute)
sEnlisting and conscripting children under the
age of 15 years and using them to participate
actively in hostilities in the context of an armed
conflict not of an international character from
June to August 2003 (Article 8(2)(e)(vii)).
Human rights organisations claimed that at one
point Lubanga maintained around 3000 child
soldiers between the ages of 8 and 15 – he
had also reportedly ordered every family in the
territory under his control to assist the war effort
by donating something: money, a cow, or a child
to join his militia.
Trial
The ICC held multiple hearings in preparation for
the Lubanga trial to determine evidence, victim
and witness testimony and the process and form
of the trial. In total, eight legal representatives of
victims, representing a total of 93 victims, would
take part. After many delays, the trial commenced
on 26 January 2009.
By the beginning of 2010, the prosecution and
defence cases had been made and a number of
witness testimonies heard, with the trial expected
to continue for a long time before any determi-
nation is reached. The trial has received extensive
international attention and controversy, and the
whole world is watching to see how it is played out,
and how effective the powers of the ICC will prove
to be in achieving justice for the victims.
Cha pter 9: Contempora ry huma n rights i s s ues 211
 Issue 2: Child soldiers
legal links
Updates on the ICC trial of Thomas
Lubanga Dyilo are available on the
ICC’s website (www.icc-cpi.int)
and at a website devoted to the
Lubanga Trial (www.lubangatrial.
org), which is an initiative of the
Open Society Justice Initiative.
Visit the websites and report back
on the current status of the case
and any recent developments.
informed consent of a parent or guardian, and
ADF must fully inform the child of the nature of
the duties and be satisfied that the child is signing
up on a ‘genuinely voluntary basis’.
The various treaties have been some of the
most rapidly and widely ratified treaties worldwide
and have created a much stronger international
framework for ending the recruitment and use of
child soldiers. However, violations do continue by
both government and non-government parties.
The UN Security Council has adopted a number of
recent resolutions, par ticularly in 2004 and 2005,
condemning the use of child soldiers
R E VIE W 9.5 and calling for a rigorous monitoring
1 Identify the articles of the and reporting system of abuses.
Rome Statute under which Research, monitoring and reporting
Lubanga was charged and on compliance by all countries around
describe the crimes he was the world now occurs and abuses are
charged with. more regularly exposed.
2 Briefly summarise the The framework is relatively new
context of the charges and and will take time to take full effect.
the allegations against However, in one of the most significant
Lubanga . developments, the International Crimi-
3 Describe the process by nal Court under the Rome Statute has
which Lubanga was arrested begun to charge a number of indi-
and finally brought to trial. viduals with war crimes relating to
4 Critically evaluate the child soldiers in armed conflicts, par-
effectiveness of the ICC in ticularly in recent conflicts in Uganda,
achieving justice for the Sudan and the Democratic Republic of
victims. Consider issues of the Congo. This is particularly impor-
national resources, delay, tant as the international prosecution
exposure and deterrence. of individuals where countries them-
212 C am b r id g e L e g a l S t u d ie s – HS C
Figure 9.9 Thomas Lubanga Dyilo
selves are unable or unwilling to prosecute is a
critical way of putting an end to local practices,
seeking justice for victims involved and acting as a
deterrent for future would-be offenders. The case
of Thomas Lubanga Dyilo is discussed in the Case
Space on page 211.
Domestic responses
Although numerous treaties have now been estab-
lished to try to combat the various issues around
child soldiers, these treaties rely on the will of the
states to effectively implement them and pursue
their objectives.
There are few known cases of domestic prose-
cutions for the recruitment or use of children
in armed conflicts, with the exception of some
cases in the DRC and recent truth commissions
established following serious conflicts in Sierra
Leone, Timor-Leste and Liberia that are known to
have addressed child soldier issues.
As mentioned above, the international treaties
have been well accepted and widely ratified and
domestic legal systems have had to be brought into
line with their requirements. For example, in 2008,
the US enacted the Child Soldiers Accountability Act
which allowed the US to prosecute individuals
domestically who have knowingly recruited
or served as soldiers in or outside the US or to
deny such people entry into the country. Similar
laws have been enacted in other countries that
not only send an important message to military
commanders but also prevent travel or fleeing by
offenders to international safe havens.
In Australia, the minimum compulsory con-
scription age under s 59 of the Defence Act 1903
(Cth) is 18 years, but voluntary recruitment is
different. After ratification of the Rome Statute
in 2002 and the child soldiers Optional Protocol
International
responses
At the international level, the UN
plays an impor tant role in moni-
toring the use of child soldiers
around the world. The ILO and the
UN Children’s Fund (UNICEF) in
R ESEAR CH 9 . 4
The full text of the Optional
Protocol to the Convention
on the Rights of the Child on
the involvement of children in
armed conflict is available on
the UN High Commissioner

in 2006, the Criminal Code Act 1995 (Cth) was
amended to meet Australia’s ICC and treaty obli-
gations. Sections 268.68 and 268.88 were added
to the Criminal Code to criminalise the use,
conscription or enlistment of children as part of
an international or national armed conflict. These
sections make it a crime to use, conscript or enlist
children under 18 years for armed groups or forces
other than national armed forces. However, for
national armed forces it is only a crime if the child
is under 15 years old.
In 2007, in Australia there were almost 500
young people under 18 years old, boys and girls,
ser ving in ADF, but the ADF had no record of under-
18s being deployed into operation areas. As men-
tioned earlier, the minimum voluntary recruitment
age is 17 years according to the ADF’s Defence
Instructions, and the ADF has put procedures
in place to ensure child recruitments are on a
‘genuinely voluntary basis’. Young applicants can
first apply to join at 16 years and 6 months old, and
children as young as 10 can register their interest
online with Defence Force Recruiting.
In 2005, the ADF Ombudsman released a report
on the management and administration of under-
age personnel. It included a recommendation for
review of the costs and benefits of accepting chil-
dren for enlistment with a view to raising the age
to 18 years. The Defence Department disagreed
with the recommendation, claiming that to raise
the minimum age would ‘severely restrict the
quality and quantity of recruits’.
Non-legal responses
There are many programs and organisations, both
international and domestic, that aim to combat
the causes and effects of the recruitment and use
of child soldiers worldwide.
Hu m an rig hts
particular play a role in research for Human Rights’ website at
and studies into the status of the the following address: www2.
problem, providing recommen- ohchr.org/english/law/crc-
dations to the UN and to member conflict.htm
states where necessary and pro- Looking at the text of the
moting the spirit and obligations of Protocol answer the following
the treaties on children in armed questions.
conflict. 1 Looking at the Preamble to
There are also a host of inter- the Protocol, summarise the
national NGOs that conduct impor- main reasons why the treaty
tant work in monitoring and was created.
reporting on the issue, educating 2 Identify the article(s)
the public and lobbying government containing the prohibition
and international organisations to on recruiting and using child
take action. The most significant of soldiers and explain the
these is the Coalition to Stop the Use obligations they impose.
of Child Soldiers. The Coalition is 3 Critically evaluate how
different to other NGOs in that it is Australia’s reservation to
an organisation that comprises the Protocol and current
many different member organisa- recruitment practice
tions with a common purpose of: corresponds with the
s preventing the recruitment and purpose and obligations of
use of children as soldiers the treaty.
s securing the demobilisation of
child soldiers, and
s ensuring the rehabilitation of child soldiers and
their reintegration into society.
With headquarters in London, the Coalition was
formed in May 1998 by leading international
humanitarian and human rights organisations and
includes Amnesty International and Human Rights
Watch. It also has active links with UNICEF and the
ILO, as well as the International Committee of the
Red Cross and works to achieve its aims through
public education of the issue, research and moni-
toring, including period ‘Global Reports’ on all
countries, and lobbying of individual governments
for change as well as international organisations,
in particular the UN.

Cha pter 9: Contempora ry huma n rights i s s ues 213

 Issue 2: Child soldiers

legal links
Further information from particular
intergovernmental organisations (IGOs)
and NGOs on the issue of child soldiers is
available via the links below:
s Coalition to Stop the Use of Child
Soldiers – www.child-soldiers.org
s Amnesty International – www.amnesty.
org/en/children
s Office of the UN High Commissioner
for Human Rights – recent
publications on child soldiers
– www.unhcr.org/refworld/
topic/4565c2254a/4565c25f575.html
s International Labour Organization –
www.ilo.org/ipec/areas/Armedconflict/
lang--en/

Domestic responses
As on the international level, there are many
domestic NGOs that work in the area of children’s
rights. These may include focusing on issues relating
to child soldiers, particularly in countries where
recruitment of child soldiers is a significant prob-
lem. Recently one strong movement has developed
internationally that enables local interest groups,
individuals, schools and other institutions to take
part in a global effort to raise awareness on children
in armed conflict. ‘Red Hand Day’, as it is known,
is a campaign that takes place on 12 February
every year to commemorate and draw attention
to the issue of child soldiers. It has proved hugely
successful and participants all over the world take
part every year, particularly in local schools, in
raising funds, showing support, educating others
and lobbying governments to action.
Other forms of domestic responses include
groups or individuals, who assist in the rehabi-
litation of former child soldiers, by helping to
relocate their families, get back into school,
provide vocational training and re-enter life. The
media also plays a role informing the public about
the existence and problems of child soldiers. Films,
books and documentaries have also played an
important role. For example the 2006 movie Blood
Diamond focused on some of the horrific aspects of

Figure 9.10 ‘Red Hand Day’ is an initiative of the Coalition to Stop the Use of Child Soldiers that takes
place on 12 February every year to commemorate and draw attention to the issue of child soldiers.

214 C am b r id g e L e g a l S t u d ie s – HS C
the diamond trade in parts of Africa, including the
recruitment and use of child soldiers in diamond-
related conflict areas. Films like this with wide
audience appeal are an effective non-legal means
of focusing global attention on the issue.

Effectiveness of

Hu m an rig hts
responses
According to the Coalition to Stop the Use of Child
Soldiers, progress has been made on child soldiers
but there is still a long way to go and any further
advances will require commitment and political
will. As stated in their 2008 Global Report:

Ultimately, if the international community is to

make good its promise to protect children from
military exploitation, the level of political will, the
amount of human and financial resources, the
adherence to established best practice and the
quantity as well as the quality of collaborative
effort and imaginative endeavour must all be
multiplied.

Despite the significant efforts of the international

community, particularly in the last decade with
the adoption and ratification of ground-breaking
human rights treaties, the pace of progress has
been slow and the tens of thousands of children
currently involved in armed forces have yet to feel
its impact. More must be done to make it less
attractive to recruit children for use in armed
forces by strengthening the enforcement
mechanisms.
While the establishment of the ICC – and the
first trial of charges relating to child soldiers – is
encouraging, this is only the tip of the iceberg.
Political will is needed at all levels to strengthen
the enforcement mechanisms but it will be an
uphill battle if the root causes of conflicts that draw
children into the battlefield are not addressed. This
involves the wider issues of tackling poverty,
ending conflicts and establishing the rule of law
and respect for human rights in all countries.
Figure 9.11 The 2006 film Blood Diamond helped bring the plight
of child soldiers to the public’s attention.
R EV I EW 9 . 6
1 Describe some of the efforts of the NGOs
and governments in tackling the issues of
child soldiers.
2 Explain the role of the media, NGOs and
other non-legal responses in combating the
issue of child soldiers. Evaluate how these
groups can complement the legal measures
in place.
3 Critically evaluate the effectiveness of legal
and non-legal responses to child soldiers
based on consideration of the causes and
drivers behind the problem.

Cha pter 9: Contempora ry huma n rights i s s ues 215

 I s s u e 1: H u m a n t r a f f i c k i n g a n d s l a v e r y
Ch a p te r s u m m a ry
s Although slavery has officially been abolished
internationally, it continues as a form of
criminal activity today.
s Slavery can take the form of forced labour,
debt bondage or sexual slavery.
s Human trafficking is an illicit activity involving
the trade in illegal slaves.
s International treaties have provided a
framework to help countries implement
measures to deal with human trafficking.
M ul ti p l e- c hoi ce q ues ti ons
1 Human trafficking differs from people
smuggling in that:
a human trafficking is a criminal activity while
people smuggling is not
b human trafficking involves deception of the
person involved
c people smugglers allow a person free after
transport is complete
d all of the above
2 The Protocol to Prevent, Suppress and Punish
Trafficking in Persons, especially Women and
Children achieves which of the following?
a it makes trafficking an international crime
punishable by the ICC
b it makes all UN states enact domestic laws
on human trafficking
c it lays out agreed definitions and a
framework of approach
d it gives signatories the resources to tackle
the underlying problems
216 C am b r id g e L e g a l S t u d ie s – HS C
s There are many IGOs and NGOs doing
important work all over the world to end
contemporary slavery.
s The Australian government has recently
improved its approach to combating human
trafficking and a number of prosecutions have
been made.
3 Australia’s approach to combating human
trafficking has included which of the
following?
a amendment of the Criminal Code, funding
of around $60 million, specialist training for
the AFP
b funding of around $60 million, training
for Commonwealth prosecutors, more
detention centres
c developing a new treaty, cooperation
with regional and international agencies,
specialist training for the AFP
d training for Commonwealth prosecutors,
mandatory detention, improved victim
protection scheme
4 The annual Trafficking in Persons Report has
been invaluable in monitoring the progress of
anti-trafficking efforts worldwide. It represents
which type of response below?
a a domestic response of the Australian
government
b a domestic response of the US government
c an international response of the UN
d an international response of a coalition of
NGOs
5 Which of the following is one of the main
contributors to the risk of people trafficking?
a a lack of political will
b a lack of international consensus
c inadequate interception and detention
facilities
d socio-political and economic factors
Ch a p te r s u m m a ry ta s k s
1 Explain when slavery was officially abolished
and why it still remains a problem today.
2 Identify the forms of contemporary slavery
and the ways in which slaves are recruited and
trafficked.
3 Outline the international responses to human
Hu m an rig hts
trafficking, including reference to the purpose
of the main treaties.
4 Describe some of the non-legal responses to
the issue of human trafficking.
5 Critically evaluate the effectiveness of legal
and non-legal responses to the issue of
human trafficking and contemporary slavery.
Cha pter 9: Contempora ry huma n rights i s s ues 217
 Issue 2: Child soldiers
Issue 2: Child soldiers
Ch a p te r s u m m a ry
s The use and recruitment of child soldiers in
armed conflict can involve serious abuses of
human rights and can amount to a war crime.
s The extent of the problem is hard to gauge,
but child soldiers are still used in conflict all
over the world.
s International responses to child soldiers are
relatively recent but have accelerated in the
last decade, and the first international trial
has now been brought before the ICC.
M ul ti p l e- c hoi ce q ues ti ons
1 Which of the following statements about the
issue of child soldiers is NOT true?
a the UN has estimated there could be as
many as 300 000 child soldiers worldwide
b the use of children under 18 in armed
conflict is generally confined to developing
countries
c the advent of modern weaponry has
worsened the problem of child soldiers
d the recruitment of children under 15 years
into armed conflict is an international war
crime
2 Which of the following treaties was used to
prosecute Thomas Lubanga Dyilo?
a Kyoto Protocol
b Optional Protocol to the Rights of the
Child on the Involvement of Children in
Armed Conflict
c Rome Statute
d Additional Protocol to the Geneva
Convention
3 Which of the following best describes
the Australian position on recruiting child
soldiers?
a it is a crime to recruit children under
18 years into national armed forces for
participation in armed conflict and under
15 years for other armed forces or groups
218 C am b r id g e L e g a l S t u d ie s – HS C
s IGOs and NGOs play an important role in
monitoring and reporting on the issue of child
soldiers.
s More needs to be done to combat the issue
of child soldiers, and poverty, conflict, the
lack of the rule of law and respect for human
rights remain as root causes of the problem.
b it is a crime to recruit children under 18
years into armed forces or groups other
than national armed forces, but national
forces recruit at 17 years
c it is a crime to recruit children under 18
years for direct involvement in armed
conflict in either national or other armed
forces, but recruitment for indirect
involvement is possible at 17 years
d it is a crime to recruit children under 18
years into armed forces other than national
armed forces, but national armed forces
recruit at 15 years
4 The Coalition to Stop the Use of Child
Soldiers is:
a a collection of NGOs with a shared
purpose on child soldiers
b an IGO that researches and releases annual
reports on child soldiers
c a humanitarian NGO that works with
former child soldiers
d a body of the UN that campaigns against
child soldiers
5 Which of the following is most needed to
address the issue of child soldiers?
a tackling poverty and ending conflicts
b encouraging respect for human rights and
the rule of law
c prosecutions by governments and the ICC
d all of the above
Ch a p te r s u m m a ry ta s k s
1 Describe how child soldiers are recruited
and some of the conditions they may have to
endure.
2 Explain the different roles that child soldiers
might be expected to perform in a conflict.
3 Outline the international responses to child
Hum an rig hts
soldiers, including reference to the purpose of
the main treaties.
4 Describe some of the non-legal responses to
the issue of child soldiers.
5 Critically evaluate the effectiveness of legal
and non-legal responses to the issue of child
soldiers and contemporary slavery.
Cha pter 9: Contempora ry huma n rights i s s ues 219
 T h e m e s a n d ch a l l e n g e s
The changing understanding of the relationship
between state sovereignty and human rights
This area of the syllabus requires examination of
the reasons why state sovereignty can be used
both to promote human rights and undermine
human rights.
s sovereignty – sovereignty assumes that the
government of a nation has the sovereign right
to make any laws they like within their borders
and that no other nations have the right to
intervene.
s human rights law – has gradually undermined
the idea that sovereignty is a barrier to
external intervention. The international
community is able to exert pressure in a
number of ways on states that blatantly allow
violations of human rights.
s Responsibility to Protect – this new UN
doctrine makes it every government’s
responsibility to protect the human rights of
their citizens. If a government is unable to do
this then it is the international community’s
responsibility to assist them.
Issues of compliance and non-compliance in
relation to human rights
In this area of the syllabus it is necessary to
examine why nation states comply with the law
as opposed to reasons why they put themselves
outside the law.
s monitoring and enforcement mechanisms –
there are now monitoring and enforcement
mechanisms, such as international courts and
tribunals, that aim to hold people accountable
for violations of human rights, such as the
Human Rights Committee or the ICC.
s mutual benefit – nations realise that they have
much to gain from following the vast majority
of international law regarding human rights.
The development of human rights as a
reflection of changing values and ethical
standards
s moral values and ethical standards – the
bitter experience of two world wars and
genocide on a massive scale in the first half of
the 20th century had led to a change in values
and a determination to do everything to build
a new world order where human rights are
respected and upheld.
220 C am b r id g e L e g a l S t u d ie s – HS C
s UN Charter, Genocide Convention, UDHR
and Geneva Conventions – these great historic
events, which occurred within a few years of
the end of the Second World War, promoted a
dramatic shift in the international community
by placing human rights centre stage in
international law as they never had before.
s human rights law – now a major branch of
international law, connecting in some way with
all other areas of international law.
The role of law reform in protecting human
rights
s human rights treaties – never before in
history have human rights been given so much
protec tion. However, enforcement of human
rights is not guaranteed in many countries of
the world.
s rule of law – countries that are governed
by the rule of law have the best chance of
protecting human rights.
s Responsibility to Protect – promotes reform
in which the international community has the
responsibility to help struggling nations build
their capacity in their economic development,
their government administration and
institutions.
The effectiveness of legal and non-legal
responses in protecting human rights
s political will – the effectiveness often
depends on the political will of the leaders
of major world powers to take action to
strengthen the enforcement mechanisms to
protect human rights.
s public opinion – a public that is informed
and made aware of human rights issues
can pressure their leaders to promote
human rights. NGOs, IGOs and the media
play a critical role in the areas of research,
documentation, education and lobbying. In
many cases, little would be achieved without
these groups playing these roles.
© 2010 Copyright Board of Studies NSW for and on behalf
of the Crown in right of the State of New South Wales.
HSC Legal Studies Syllabus 2009.
 PART III
Options
Options Option 1: Consumers

C rim e
50% of course time
Option 2: Global environmental protection
Students must study two
of the following options
Option 3: Family
(each option amounts to
25% of course time)

Options
Option 4: Workplace

Option 5: World order

221
 CHAPTER 10
Option 1: Consumers
O pt i o n 1 : Principal focus
Through the use of contemporary examples, students investigate the legal rights
Co n su m e r s of consumers and the effectiveness of the law in achieving justice for consumers.

25% of course time

Themes and challenges
Themes and challenges to be incorporated throughout this option include:
s the role of the law in encouraging cooperation and resolving conflict in regard
to consumers
s issues of compliance and non-compliance
s laws relating to consumers as a reflection of changing values and ethical
standards
s the role of law reform in recognising the rights of consumers
s the effectiveness of legal and non-legal responses in achieving justice for
consumers.
At the end of Chapter 10, on pages 264–265, you will find a summary of the
themes and challenges relating to consumers. The summary draws on key points
from the text and links them to each of the themes and challenges. This summary
is designed to help you revise for the external examination.

HSC external examination information

The HSC examination will be a written paper worth a total of 100 marks. The
paper will consist of three sections.
Questions relating to Part III of the syllabus – Options – will appear in Section
III of the examination. There will be seven extended response questions, one for
each Option offered in the syllabus. Students will be required to answer two of
these questions, each relating to a different option they have studied.

Section III: Options 50 marks total (25 of the possible 50 marks per Option)
The question relating to each Option will have two alternatives. The expected
length of response is around 1000 words (approximately eight examination writing
booklet pages).

222 C am b r id g e L e g a l S t u d ie s – HS C
 ch a p te r o b j e cti ve s
In this chapter, students will:
s outline the developing need for consumer protection
s outline the objectives of consumer law
s examine the nature, function and regulation of contracts
s evaluate the effectiveness of the regulation of
marketing, advertising and product certification in
achieving consumer protection
s examine the role of occupational licensing in
achieving consumer protection
k e y te r m s
s recognise the importance of awareness and self-help
s examine the range of different remedies available to
consumers
s evaluate the effectiveness of non-legal and legal
measures in achieving justice for consumers
s identify and investigate contemporary issues involving
the protection of consumers and evaluate the
effectiveness of legal and non-legal responses to
these issues.

acceptance express terms monopoly

O p t i o n 1: C o n s u m e rs
bait advertising fiduciary duty offer
caveat emptor fit for purpose offeror
condition implied terms offeree
consideration injunction pyramid selling
contract invitation to treat rescission (of a contract)
cooling-off period laissez-faire economy remedies
damages licensee unconscionable conduct
duress merchantable quality warranty
rel evant l aw

IM PORTAN T L EGIS L AT ION Sale of Goods Act 1923 (NSW)

Australian Securities and Investment Commission Act Travel Agents Act 1986 (NSW)
2001 (Cth)
Corporations Act 2001 (Cth) SI G NI FI C A NT C A SE S
Spam Act 2003 (Cth) Carlill v Carbolic Smoke Ball Co (1893) 1QB 256
Telecommunications Act 1997 (Cth) Blomley v Ryan (1956) 99 CLR 362
Trade Practices Act 1974 (Cth) Commercial Bank of Australia Ltd v Amadio (1983) 151
Trade Practices Amendment (Australian Consumer CLR 447
Law) Act 2009 (Cth) Handley v Snoid (1981) 4 TPR 361
Competition and Consumer Act 2010 (Cth) Johnson v Buttress (1936) 56 CLR 113
Consumer, Trader and Tenancy Tribunal Act 2001 Astley v Austrust (1999) 161 ALR 155
(NSW) G. H. Myers v Brent Cross Service Co. (1934) 1 KB 46
Contracts Review Act 1980 (NSW) Australian Knitting Mills Ltd v Grant (1936) 50 CLR 387
Credit Act 1984 (NSW) Beale v Taylor (1967) 1 WLR 1193
Fair Trading Act 1987 (NSW) Qanstruct Pty Ltd v Bongiorno Ltd (1993) 113 ALR 667
Minors (Property & Contracts) Act 1970 (NSW) Director of Consumer Affairs of Victoria v AAPT Ltd
Motor Dealers Act 1974 (NSW) (Civil Claims) [2006] VCAT 1493
Motor Vehicle Repairs Act 1980 (NSW) Reardon v Morley Ford Pty Ltd (1980) 49 FLR 401
od d l aw

The buyer of a house in Nyack, New York, USA
brought an action requesting rescission of the
contract of sale, and damages, when he discovered
that the vendor, Helen Ackley, had bragged about
the house being haunted. Neither Ackley nor her
real estate agent had told him about the ghosts. The
court held that since Ackley had also reported the
presence of the ghosts to a local newspaper and to
Reader’s Digest magazine, she could not now deny
their existence ‘and, as a matter of law, the house is
haunted’. Although the estate agent was ‘under no
duty to disclose to a potential buyer the phantasmal
reputation of the premises and ... in his pursuit of a
legal remedy for fraudulent misrepresentation against
the seller, [the] plaintiff hasn’t a ghost of a chance’, the
court was ‘nevertheless moved by the spirit of equity
to allow the buyer to seek rescission of the contract of
sale and recovery of his downpayment’ (Stambovsky v
Ackley, 572 NYS 2d 672 (NY Sup Ct App Div 1991)).

Cha pter 10: Option 1: Co ns umers 223

 T h e n a t u r e o f co n s u m e r l aw
The developing need for A peasant consumer often had the advantage

consumer protection of knowing the producer of the goods. If any prob-

caveat emptor
a Latin term meaning
‘let the buyer beware’;
it implies that
consumers should use
their own powers of
care and knowledge
to protect themselves
against exploitation
laissez-faire economy
an economic system in
which the state refrains
from interfering with
markets by regulation
or other means
The need for consumer protection has grown
over time. Prior to the Industrial Revolution, the
vast majority of people throughout Europe lived
simple lives based on subsistence agriculture. The
typical marketplace of the time offered a small
range of products. The consumer therefore didn’t
need sophisticated knowledge of the quality and
value of most goods in order to make a purchase.
Furthermore, because there was no product pack-
aging, goods could be inspected more closely.
The situation for contemporary consumers
could not be more different. Today, we often need
to rely upon the expertise of others (shop
assistants, financial advisors) when purchasing
products such as superannuation plans, or elec-
trical equipment such as computers and mobile
phones. A highly specialised level of product know-
ledge is required in the marketplace of the twenty-
first century. Therefore, it is essential that legi-
slators put safeguards in place designed to resolve
conflict and protect consumers from exploitation.
lems arose with the item that had been bought or
bartered for, the buyer could easily confront the
seller to resolve the problem. Modern consumers,
on the other hand, usually deal with salespeople
(who rarely have a role in the production of the
goods they sell) or multinational corporations that
may be remote or inflexibly bureaucratic.
Early markets were also characterised by the
common law notion of caveat emptor. Purchases
in pre-industrial markets were at the buyer’s own
risk. If a product was faulty, it was the buyer’s
problem. Caveat emptor is based on the assump-
tion that the buyer and seller meet on equal terms.
Modern Australian consumer protection laws
recognise that this is not the case.
In a laissez-faire economy, the interaction
between buyers and sellers of goods is considered
to be a private realm, and intervention by the state
is minimal. In the late 18th century, manufac-
turers and sellers of goods were generally wealthy,
well-educated industrialists, while the buyers
were often poor, uneducated workers. The power

Figure 10.1 Consumers today often require a highly specialised level of Figure 10.2 It is important that tourists
product knowledge when purchasing goods and services. shopping at the Grand Bazaar in Istanbul, Turkey
understand the concept of caveat emptor.

224 C am b r id g e L e g a l S t u d ie s – HS C
imbalance was evident, and the notion of caveat
emptor came into question. Governments began
to create laws that would, in time, address the
need for consumer protection.
The definition of a
R EVI EW 1 0 . 1
1 Identify some of the risks to consumers in
a laissez-faire economy.
2 Explain why acceptance of caveat emptor
may not provide sufficient protection to
consumers.

consumer 3 Contrast the markets of medieval Europe

with those of 21st-century Australia.
A consumer is a person who buys or uses goods or
services generated within the economy. In most

O p t i o n 1: C o n s u m e rs
cases a consumer can decide whether or not to
Objectives of consumer
purchase an item – whether it’s a can of soft drink,
a computer or an insurance policy – and can be
laws
influenced by marketing and advertisements. Consumer law relates to the interaction between
When making purchases, consumers have a three categories of ‘actor’:
range of expectations about the products and/or s manufacturers or suppliers of goods and
services they are buying. Primarily, consumers services that are intended for consumption in
expect that the products they buy will work prop- domestic households
erly for a period of time as indicated by the manu- s the state (parliament and judiciary)
facturer, and that the services they receive will be s consumers.
of a standard promised by the supplier. Although All three groups pursue particular interests
these types of expectations have existed since the under the law, and can be considered to be inter-
trade in goods and services began, laws to protect dependent in the contemporary marketplace. The
consumers and their rights are relatively new. common law of contract and a variety of federal
As far as the law is concerned, an individual is and state statutes govern much of our day-to-day remedies
generally considered to be a ‘consumer’ when the dealings with merchants. means by which
redress or reparation
goods or services purchased are essentially for pri- The primary objective of consumer law is to is provided for the
vate use or consumption. Every time we purchase protect the welfare of consumers. The law achieves breach of a legal right
a commodity or service, we enter into a special this by: weights and
legal relationship with the seller. Accordingly, both s educating the public to make them aware of measures laws
laws that govern
parties to a commercial transaction are governed their rights – educated consumers can protect weights and
by what lawyers refer to as a ‘bundle’ of legal themselves from exploitation measures stated on
the packaging of
rights and responsibilities. In other words, there s articulating and mandating standards for the
products (such as
is a legal expectation that parties will behave in quality of goods and services – this promotes food and beverages)
a manner that ensures that both buyer and seller transparency and accountability in the manu- or as indicated on the
trading premises (e.g.
are treated fairly. Without this legal arrangement, facturing and service sectors
at a petrol station)
purchases would be characterised by mistrust and s providing statutory and common law remedies in order to protect
uncertainty, with greatly increased vulnerability for consumers consumers from being
cheated or deceived
for the party in the weaker bargaining position. s implementing weights and measures laws
advertising
This chapter will examine the legal rights of providing consumers with reliable benchmarks any action designed
consumers and evaluate the effectiveness of the of quality to draw the attention
law in achieving justice. It will also explore the legal s ensuring that various occupations are licensed of consumers to the
availability of goods
and non-legal remedies available when consumer s protecting consumers in a time of global or services in the
rights are denied by manufacturers and suppliers. advertising, mass marketing and e-commerce marketplace

Cha pter 10: Option 1: Co ns umers 225

 Figure 10.3 The primary objective of consumer law is to protect the welfare of consumers.

where there has been a marked reduction in per- s a clear identification of the parties to the
sonal interaction between buyers and sellers contract
s regulating contractual relationships between s contractual terms that are in writing for all to
buyers and sellers – especially ‘unfair’ contract see
terms s precise language which describes the terms
s guarding against unsafe and defective products of the contract in such a manner as to avoid
s helping vulnerable and disadvantaged the need to rely upon memories of the original
consumers. agreement
s the parties’ signatures and the assumption that
all the terms have been read and agreed to.
Contracts Normally, parties to contracts opt for written
contracts in order to avoid having to prove that:
Types of contracts s the contract existed
contract A contract is an agreement made between two or s the contract is in some way an incomplete
an agreement made more persons that is recognised by the courts as document
between two or
more persons that being legally binding on the parties. s oral undertakings were given in the negotiation
is recognised by the The basis of a contract is agreement, which in phase
courts as being legally
most cases consists of an offer made by one party s a party’s words or conduct were misinterpreted.
binding on the parties
to another person, and an acceptance of the offer
offeror
the person making an by that person. The person making the offer is O RA L C O NTRA C TS
offer of a contract referred to as the offeror and the person to whom Oral agreements rely on the good faith of all the
offeree the offer is made is known as the offeree. parties. Such agreements may be difficult to prove
the person to whom
Contracts can be: and/or remember precisely. Hence, they’re open
the offer of a contract
is made s written in a formal manner to misunderstanding. In resolving a contractual
good faith s oral dispute, the court will closely examine conduct
the intention to s a mixture of the two. and statements made by each party leading up to
honour a commitment
undertaken
It should be remembered that contracts do not the negotiation of the contract.
have to be in writing to be legally binding. Oral agreements can be supported in court by:
s the conduct of the other party both before and
WR IT T EN C ON T R AC T S after the agreement
These are the most common form of consumer s specific actions of the other party
contracts. They are usually characterised by: s past dealings with the other party.

226 C am b r id g e L e g a l S t u d ie s – HS C
 O p t i o n 1: C o n s u m e rs
Figure 10.4 Contracts do not have to be in writing to be legally binding.

WRITTEN–ORAL C ON T R AC T S Consequently, a legally binding R EV I EW 1 0 . 2

Contracts can be a mixture of written and contract does not necessarily 1 Identify the ways in
oral agreements. This is true when the written arise out of a purely social which the law protects
agreement does not contain many terms. If a arrangement or an agreement consumers.
written contract appears to be ‘incomplete,’ oral between family members. For 2 Identify and distinguish
undertakings and conduct will be scrutinised very example, a promise to meet the parties to a contractual
closely by the court. Further, it is a rule of law that someone for dinner or to provide agreement.
when a contract has been put in writing, and it a colleague with a lift home 3 Compare oral and written
appears to be complete, it will be accepted against from work would not be legally contracts.
a contradictory oral agreement. enforceable should one of the
parties fail to arrive. If your parents offered to
Elements of a contract pay you a sum of money for doing the housework
The law of contract is one of the areas of civil law or the gardening, and then changed their minds
and is essential to the successful operation of after you did the work, the law presumes that
modern capitalist economies. It attempts to define this arrangement did not involve the intention to
the circumstances under which parties who make create legal relations, and would not entitle you to
promises to each other are legally bound by them. sue them for breach of contract.
For a contract to exist, the following elements
must be present: O FFE R
s the parties’ intention to create a binding The second element required for the formation of
contract a contract is an offer. If there has been no offer
s an offer by one party there can be no acceptance, and hence no agree-
s acceptance of that offer by the other party ment between the parties.
s consideration from the promisee. An offer is a firm proposal, made with a willing-
offer
ness to be bound by the terms. A preliminary a firm proposal
I NTENTION TO C R EAT E L EGAL proposal, enquiry or price quotation during the to form a binding
contract, made with
R E LATIONS process of negotiation does not constitute an offer.
a willingness to be
If an agreement is to be treated as a contract, it Sometimes what might appear to be an offer may bound by its terms
is essential that the parties to it intended to enter only be an invitation to others to make offers. This invitation to treat
into a legally binding relationship. A court will look is known as an invitation to treat. words or conduct
made to invite
at the behaviour and statements of the parties to An offer that is accepted forms an agreement someone to make an
determine whether they had such an intention. that is the basis of a contract, and if all other offer or to negotiate

Cha pter 10: Option 1: Co ns umers 227

 essential elements of a contract are present, the
agreement will be enforceable.
The acceptance of an invitation to treat cannot
give rise to an agreement, as the invitation to
treat is not an offer. At an auction sale, the call
for bids by an auctioneer is an invitation to treat
(that is, an invitation to buyers to make an offer)
and the bid by the intending buyer is the offer.
The acceptance is indicated and completed by the
fall of the auctioneer’s hammer. Thus a bid may
be withdrawn by a buyer at any time before it is
accepted by the auctioneer. Similarly, an auction-
eer may refuse to accept an offer if the bid does not
reach the minimum (or reserve) price set by the
seller. Marked prices on articles displayed for sale
in shop windows are merely invitations to treat –
not offers to sell at the stated price. Consequently,
a shopkeeper is not obliged to sell an item on
display, nor is he or she obliged to sell it at the
displayed price. Catalogues and advertisements
that offer goods or services for sale, and time-
tables that offer transport at a particular time and
place, are in most cases mere invitations to treat.
AC C EPTAN C E OF T H E OF F ER
acceptance An acceptance of an offer is the unconditional
the unconditional
agreement to all the terms of the offer. For accep-
consent to all the terms
of the offer tance to be complete, or effective in law, it must
consideration be communicated to the offeror. It is open to the
something given, done offeror to state how the offer shall be accepted.
or suffered in return for
Quite often, an offeror makes it clear that the
a promise in a contract
offer must be accepted in writing by mail. The
duress
coercion or pressure acceptance is taken to be when the contract was
used to influence posted, not when it was received.
someone
The offeree must accept, without qualification,
all the terms of the offer. Any attempt to impose a
conditional acceptance will amount to a counter-
offer and constitute a rejection of the offer.
An offer can be accepted only by those persons
to whom the offer was made. Once an offer has
been accepted, it may only be revoked with the
consent of the offeror. Any acceptance of an offer
outside the time period stipulated in the offer will
be ineffective. If an offer, for example, specifies
that acceptance is required within three days,
228 C am b r id g e L e g a l S t u d ie s – HS C
then any attempt to accept after five days will be
invalid. If no time period is prescribed, then the
offer may be accepted within a reasonable time.
C O NSI DERATI O N
The element of consideration is essential in any
valid contract. It is this element that turns a mere
promise into a contract that the law will enforce.
Every contract contains at least one promise, and
the enforceability of a promise depends on the
promisee’s response. The promisee must have
given, done or suffered something in exchange for
the promise, and that ‘price paid for the promise’
is called consideration. It shows that the parties
intended to form a binding contract. In most
cases, consideration is in the form of giving money
in return for goods or services. Alternatively,
consideration may take the form of someone’s
reliance on a promise, to his or her disadvantage or
detriment: for example doing something, refraining
from doing something, giving up something, or
taking on some responsibility in order to obtain
the benefit promised by the promisor.
O TH ER REQU I RE M E NTS
Other conditions for an enforceable contract
include the following:
s Parties must have the capacity to contract – that
is, they must be capable of voluntary agree-
ment. Hence, contracts entered into by people
who lack that capacity – for example children,
people with mental disorders, and people under
the influence of alcohol or drugs – cannot be
enforced by the other party.
s Certain types of contracts have requirements
set out in legislation. For example, in NSW,
contracts for the sale of land must either be
in writing or there must be a written note or
memorandum of the contract (Conveyancing Act
1919 (NSW) s 54A).
s The obligations in a contract will be negated
if both parties have not given their free and
voluntary consent, due to mistake (one or both
parties misunderstand each other or agree on
the basis of an incorrect understanding of the
 ca s e s p a ce
Carlill v Carbolic Smoke Ball Co. (1893) 1 QB 256
Louisa Carlill purchased a device
that the manufacturer advertised
as a cure for influenza. It
consisted of a rubber ball with
a tube attached. When the tube
was inserted in the user’s nose
and the ball squeezed, it gave
off vapours of carbolic acid. The
advertisement promised £100
to anyone who used the ball
but still contracted the flu, and
stated that a sum of money had
been deposited in a named bank
to show good faith.
Mrs Carlill used the ball
regularly for two months.
When she became ill with the
flu, she wrote to the company
requesting her £100. Her letters
were ignored. The company
finally responded, stating that to
claim the money she would have
to use the device in their office
facts), misrepresentation (one party induces
the other to enter the contract by making a
false statement), duress (a party’s consent
was obtained by violence or threats), or undue
influence (one party’s use of power or status to
obtain the consent of the other).
s Contracts for illegal acts (e.g. a contract to kill
someone) or that otherwise contravene public
policy (e.g. that endanger public safety) are
invalid and unenforceable.
Terms of contracts
The terms of a contract relate to the basis of the
agreement: for example, Amy agrees to sell certain
goods to Liam and Liam agrees to pay the sum
of $500 to Amy. These promises are known as
so that they could verify that
she was using it properly. Mrs
Carlill brought an action claiming
that she had a contract with
the company, which they were
refusing to honour. Carbolic
Smoke Ball Co. argued that
the advertisement was not a
O p t i o n 1: C o n s u m e rs
contract, but ‘mere puff’, not a
serious offer.
The English Court of
Appeal held in Mrs Carlill’s
favour, concluding that the
advertisement constituted an Figure 10.5 The original
offer to ‘the whole world’; that advertisement for the Carbolic
she had accepted the offer by Smoke Ball.
following the directions for
use; that buying and using it
constituted consideration given
by Mrs Carlill; and that the money
deposited in the bank showed
the company’s intention to enter
a legally binding contract.
the terms of the contract R ESEAR CH 1 0 . 1
and can be expressly or Visit the website of the Law Society
implicitly agreed to by of NSW at: www.lawsociety.com.
both parties. au/community/publicationsandfaqs/
Terms may appear in legalquestions/Whatisacontract/
the form of a written index.htm and answer the following
document, usually signed questions.
by both parties, or may 1 Who can make a contract?
consist of oral statements. 2 Who decides the terms of a
If a contractual document contract?
is not signed, the terms
may be incor porated into
the contract by a notice from the supplier to the
purchaser, e.g. terms on the back of a ticket, or on
a sign at the entrance to a place where the customer
has paid for entry.
Cha pter 10: Option 1: Co ns umers 229
 condition
(of a contract) a term
of fundamental and
essential importance; if
a condition is breached
by a party the other
party is entitled to end
the contract
warranty Figure 10.6 If a party fails to honour its warranty, a term of their contract, the aggrieved party is
a term of a contract entitled to sue for damages.
whose breach entitles
the aggrieved party to
sue for damages, but
not to end the contract
damages
money ordered by
a court to be paid
to a plaintiff as
compensation for
damage suffered
consensus ad idem
a Latin term meaning
‘agreement as to
the same things’;
agreement between
the parties to a contract
Figure 10.7 Implied contractual terms protect consumers in the modern marketplace.
about the terms
express terms
contractual terms that C ON DIT ION S AN D WAR R AN TI ES EX PRE SS A ND I M PL I ED TE RM S
have been specifically
A term within a contract can be either a condition Contracts contain both express and implied
stated and agreed by
both parties at the time or a warranty. If one party to a contract breaches a terms to protect consumers. Express terms are
the contract is made, condition (for instance, using the earlier example, contractual terms that are either spoken or written
either in writing or
orally if Liam refuses to pay Amy), the aggrieved party into a contract and are agreed to by both parties.

implied terms
contractual terms
that have not been
expressly stated, but
which the courts are
willing or required by
statute to enforce
merchantable quality
a condition in contracts,
implied by statute,
guaranteeing that
goods offered for sale
are of a sufficiently high
quality to be suitable
for sale, and are fit for
their usual purpose
fit for purpose
an implied term in
contracts of sale,
guaranteeing that the
goods sold will do what
they were designed
to do
can terminate the contract and sue for damages.
Warranties, on the other hand, are terms that are
less important or peripheral aspects of a contract;
for example, a manufacturer’s promise to repair or
replace faulty goods. If a party fails to honour its
warranty, the aggrieved party can sue for damages
but is not entitled to end the contract.
Once a contract is made, legal obligations and
rights flow from it. Consequently, if one party to a
contract fails to perform their side of the bargain
(that is, if they breach the contract), contract
law recognises that a duty exists, and provides a
remedy. For a contract to be valid and therefore
legally enforceable, the parties to the agreement
must demonstrate consensus ad idem. Whether
or not there is a subjective ‘meeting of the minds’,
a court must determine whether or not the parties
agree from their words and behaviour.
They clearly set out the legal rights of both parties.
The legislature and judiciary of Australia
operate on the principle that certain standards
must be upheld when persons enter contractual
agreements, even where these standards are not
stated expressly. Consequently implied terms are
built into contracts. For example, the notion of
merchantable quality is an implied term in all
contracts for the sale of goods, where the goods
are bought on the basis of a description. In simple
terms, this means that when a consumer makes a
purchase, there is the expectation that the goods
will be fit for purpose.
Implied terms therefore add another layer of
consumer protection because they ensure that
individuals who enter contracts hurriedly, without
due consideration, are spared the expense of costly
litigation in order to attain an equitable remedy.

230 C am b r id g e L e g a l S t u d ie s – HS C
 Terms may be implied in contracts of a
certain type, for example contracts for the
sale of goods. They may also be implied in
a particular contract based on the parties’
presumed intentions, or on the basis of
ordinary custom or usage in a particular
market or situation.
An implied term should be reasonable,
equitable and consistent with the express
terms of the contract. In other words, it
station will take no responsibility for any
damage to the car while it is parked on
their premises. Other examples include an
airline ticket that guarantees a flight, but
not necessarily on the stipulated date, and
housing insurance that won’t cover acts of
God, or terrorism.
Unjust contracts
Where a contract is unjust or unfair as
R EV I EW 1 0 . 3
1 Distinguish between
conditions and warranties.
2 Explain how a court would
determine whether the
parties to a contract were
in agreement about the
obligations contained in its
terms. Give examples.
3 Distinguish between express

needs to allow the parties to perform their
tasks both efficiently and fairly.
E XCLUSION CLAUS ES
Exclusion clauses are incorporated into
contracts to limit a party’s liability for
conduct that would otherwise breach the
contract or cause harm. These terms limit
or take away the other party’s right to claim
damages. Such clauses are almost always
contained in a written document that may
or may not be signed. For example, when
a motorist parks in a car park, a contract
is entered into the moment a ticket is
accepted from an automatic dispensing
machine. On the back of the ticket or on a
sign near the ticket machine there may be
a notice drawing the motorist’s attention
to the fact that the owners of the parking
c as e s pa c e
a result of a party’s unconscionable
conduct, the innocent party can bring
a civil action seeking rescission of the
contract. The victim may also be en-
titled to any of various remedies, such
as damages. Both the common law and
legislation provide protection from unjust
contracts.
The legal notion of unconscionability
is best understood when one considers
whether both parties to a contract have
bargained on equal terms, or whether
one party has used his or her superior
position to take advantage of another,
For example, if someone is induced to
enter a contract by the other person’s
misleading statements or greater bar-
gaining strength, he or she can seek to
have the court set it aside.
O p t i o n 1: C o n s u m e rs
and implied terms.
4 Explain why contractual terms
may be implied in certain
types of contracts. Discuss, in
the context of consumer law.
5 Discuss the consequences of a
person breaching a contract.
Contrast the breach of a
condition and the breach of a
warranty, and explain how the
remedies would differ.
6 Assess the use of exclusion
clauses. Provide two
examples of contracts that
might employ exclusion
clauses, and justify their use.
unconscionable conduct
one party’s exploitation of the
vulnerability of another party
to a contract; the victim may

have been impaired by some

Blomley v Ryan (1956) 99 CLR 362 external factor (e.g. age,
disability, lack of education)
or he or she may have been
An elderly, uneducated man, suffering from poor health and the deceived or threatened by
effects of prolonged and heavy alcohol consumption, entered the stronger party

into a contract to sell a farm to Blomley. When he discovered rescission

(of a contract) the termination
that he had been persuaded to sell it at a greatly reduced price,
of a contract with the court’s
he sought to have the contract set aside. The High Court of approval; rescission treats the
Australia held that where a party has taken advantage of the contract as if it never existed
and discharges the parties
condition of another to secure an unfair contract, equity will from their obligations
refuse to enforce the contract. The factors that may provide a
basis for rescission include illness, poverty, age, illiteracy, and
lack of understanding, as well as the victim’s being under the
influence of alcohol or drugs.

Cha pter 10: Option 1: Co ns umers 231

 ca s e s p a ce
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447

An elderly Italian couple who
were not fluent in English agreed
to provide a guarantee to the
bank for their son’s business
debts, promising to pay on
demand all money owed to
the bank at that time or in the
future, with interest. Their son’s
explanation to them of the
guarantee was inaccurate, and
the bank made no attempt to
explain it to them. When the
son’s business was liquidated,
the bank began proceedings
to sell the building that the
Amadios had provided as
security. The contract was
set aside on the basis of
unconscionable dealing by the
bank. The High Court held that
where the stronger party knows
of the weaker party’s ‘special
disadvantage’, it is prima facie
unfair to take advantage of this.
In this case the disadvantages
included age, limited
command of English, lack of
understanding of the contract
terms, and lack of assistance or
explanation.

C OMMON L AW PR OT EC T IO N: I M PL I ED For example, a person who is materially or

T ER MS
As noted previously, a party who is a victim of
duress, undue influence, or unconscionable deal-
ing is entitled to obtain relief and can have the
contract rescinded. In addition, the law will also
imply contractual terms into a contract requiring
parties to do what is necessary to enable the per-
formance of the contract. In some cases, courts
will ask whether the parties would have expressly
agreed to the term if they had considered the issue
when entering their contract. In other cases
‘standard’ terms will be implied without the need
for inquiry into the actual intent of the parties.
However, if the parties have demonstrated a clear
intention to the contrary, the terms will not be
implied.
There is considerable overlap between the
common law and statutory protection, and most
of the requirements for contract formation can
be found in current legislation. In addition, most
contractual terms implied by the common law are
now implied by statute.
The following cases illustrate some of the ways
that the law protects consumers.
s A contract must be fairly negotiated without
any undue influence. Where the parties are
in a relationship in which one party may be
able to exercise considerable influence over
the other, there is a risk of abuse of trust.
emotionally dependent upon another can be
easily influenced: see Johnson v Buttress (1936)
56 CLR 113, in which a will was successfully
challenged on the ground that the personality
and mental state of the testator, an eccentric
old man, and his dependent relationship with
a friend who had taken care of him since his
wife died, influenced him in his disposition of
a house.
s A contract for professional services must be
performed with reasonable care. For example,
in Astley v Austrust (1999) 161 ALR 155, a
company sued a law firm in negligence for poor
business advice, which had left the company
with onerous debts. In addition to the tort
case, the court also considered the question
of whether the company could also succeed
in an action for breach of the implied term in
the contract that the solicitors would act with
reasonable care.
s A contract must be entered in the absence of
duress or coercion. For example, in Hawker
Pacific Pty Ltd v Helicopter Charter Pty Ltd (1991)
22 NSWLR 298, the contract was for paintwork
on a helicopter. When the charter company
arrived to pick up the helicopter, which had
been sent back to correct defects in the
paintwork, the document presented by Hawker
Pacific showed a lower price but included a

232 C am b r id g e L e g a l S t u d ie s – HS C
 term excluding liability for unsatisfactory work.
The company urgently needed the helicopter,
which had been chartered for that same day,
and argued successfully that the contract was
void for duress.
s The product purchased must be of merchant-
able quality. For example, in Australian
Knitting Mills Ltd v Grant (1933) 50 CLR 387,
under wear purchased caused a severe skin
reaction. Grant succeeded in negligence against
cial loss as a result of going
into debt without realising the
promised tax benefits. The
statements of the defendant
company, Bongiorno, were held
to have been misleading.
STATU TO RY PRO TE C TI O N
A number of state and federal
statutes ensure that all consumer
R EVI EW 1 0 . 4
1 Define unconscionable
conduct and list some of
the forms it can take during
negotiations for a contract.
2 Explain the remedies
available for unconscionable
conduct and when each may
be used.
3 Justify the use of implied

the manufacturer and against the retail shop for
breach of the implied term of the contract of
sale, that the goods would be satisfactory for
the buyer’s use.
s The product must be fit for the purpose for
which it is required. In an early English case,
G. H. Myers & Co. v Brent Cross Service Co. (1934)
1 KB 46, the court held that a repair company
that installed faulty connecting rods in a car
was liable for the breach of this implied term.
This case established that this term should
be implied both in contracts for the supply of
goods (only), and in contracts for the supply of
goods along with work to be done.
s A product must match its advertised
description, where the buyer relies on that
description, whether or not he or she has seen
the product or has bought on the basis of the
description alone. For example, in Beale v Taylor
(1967) 1 WLR 1193, a car for sale was advertised
as a ‘1961 Herald 1200 convertible’. Although
the buyer examined the car and saw that there
was a metal disc on the rear of the car showing
‘1200’, in fact a 1961 model and an earlier
one had been welded together. The buyer was
entitled to damages for breach of the English
statute applying to the sale of goods.
s Manufacturers/suppliers cannot engage in
deceptive or misleading marketing behaviour.
In Qanstruct Pty Ltd v Bongiorno Ltd (1993) 113
ALR 667, the members of a company were
induced to purchase four life insurance policies,
and also to finance their purchase by borrowing
from a company associated with Bongiorno.
They were told that payments on the policies
would be tax deductible. They suffered finan-
O p t i o n 1: C o n s u m e rs
contracts contain implied terms terms in a contract. Provide
providing broad protection against three to five hypothetical
unconscionable conduct, defec- examples of circumstances
tive products, and deceptive or in which a court might imply
misleading advertising. The most standard terms, and support
significant of these include the Sale your examples with actual
of Goods Act 1923 (NSW), the Trade cases in which the court did
Practices Act 1974 (Cth), and the imply terms.
Fair Trading Act 1987 (NSW). The
Fair Trading Act mirrors its federal
counterpart (the Trade Practices Act, whose name
would change to the Competition and Consumer Act
2010 (Cth) upon enactment of the second stage of
the new consumer legislation in 2010). However,
it was enacted because the Trade Practices Act
applied only to corporations (relying on section
51(xx) of the Australian Constitution). The Fair
Trading Act regulates businesses in NSW that are
not incorporated.
Section 74 of the Trade Practices Act 1974 (Cth)
mandated that all contracts for the supply of
services contain an implied warranty that they
will be rendered with due care and skill, and that
any materials supplied in connection with the
services will be fit for purpose. Section 68 of that
Act ensured that suppliers cannot ‘contract out’
of their statutory obligations regarding consumer
protection.
The Contracts Review Act 1980 (NSW) allows the
court to grant relief for unjust contracts. The court
may refuse to enforce any or all provisions of the
contract, make an order declaring the contract
void, or make an order varying (changing) any
provision in the contract (s 7). When deciding
whether a contract or a term is unjust, the court
must consider the public interest, as well as all the

Cha pter 10: Option 1: Co ns umers 233

 consumer contract
a contract for the
supply of goods or
services, or for a sale
or grant of interest in
land, to an individual
purchasing the goods,
services or land for
personal or household
use
product warranty
a manufacturer’s
promise or assurance
that it will repair or
replace or otherwise
compensate for
defective goods;
breach of a warranty
entitles the aggrieved
party to sue for
damages, but not to
end the contract
234 C am b r id g e L e g a l S t u d ie s – HS C
circumstances of the case, whether the aggrieved
party had the opportunity to negotiate the terms
before signing, whether the terms were reasonable
or difficult to comply with, and whether the parties
had equal bargaining power (s 9(2)). Section 9(2)
sets out the different ways in which a party may
have been at a disadvantage, such as undue influ-
ence or pressure, but also conditions of age,
mental capacity, literacy, and lack of legal or other
expert advice.
The Australian Securities and Investment Com-
mission Act 2001 (Cth) sets out the powers of the
Australian Securities and Investment Commission
(ASIC) and governs consumer protection in rela-
tion to financial services, including enforcement
and court-ordered remedies.
The Trade Practices Amendment (Australian
Consumer Law) Act 2009 (Cth) amended both the
Trade Practices Act 1974 (Cth) and the Australian
Securities and Investment Commission Act 2001
(Cth) by inserting new provisions in relation to
consumer contracts, and in relation to financial
services contracts. This was the first stage of the
process that would result in the new consumer
legislation of 2010. Unfair terms of standard form
contracts will be void, without requiring any
action by a court. A ‘standard form contract’ is a
contract that is prepared by one party – generally
the party with all or most of the bargaining power
– and then presented to the other party (the
consumer), who is required to accept or reject the
terms. An unfair term of a standard form contract
is defined as a term that would ‘cause a significant
imbalance in the parties’ rights and obligations’
under the contract.
In determining whether a term in a consumer
contract is unfair, a court must take into account:
s the extent to which the term would cause
detriment to a party if it was to be applied or
relied upon;
s the extent to which the term is transparent and
readily understood by both contracting parties.
The court may also take into account any other
matters it considers relevant.
A good example can be seen in Director of
Consumer Affairs of Victoria v AAPT Ltd (Civil
Claims) [2006] VCAT 1493. This case concerned
state legislation with similar objectives and terms
as the amendments to the Trade Practices Act
1974 (Cth), discussed above. In 2003, Part 2B
was inserted into the Fair Trading Act 1999 (Vic),
making an unfair term in a consumer contract
void. Consumer Affairs Victoria (CAV) brought
an application before the Victorian Civil and
Administrative Tribunal against the telephone
company AAPT, alleging that certain terms in its
mobile telephone contracts were unfair. Some of
these terms concerned variations to the contract
that could be made by AAPT but not by the
customer, and AAPT’s ability to terminate service
and to charge a reconnection fee for an overly
broad range of reasons. The Tribunal held that
these terms were indeed unfair.
R ESEAR CH 1 0 . 2
The Sale of Goods Act 1923 (NSW) can be
viewed at www.austlii.edu.au/au/legis/nsw/
consol_act/soga1923128/index.html#s5. Look
at sections 5 and 54 of the Act. Then visit the
NSW Office of Fair Trading website at www.
fairtrading.nsw.gov.au/Consumers/Refunds_
and_warranties.html and answer the following
questions.
1 Explain the difference between a warranty
and a condition in a contract.
2 Summarise the relevant provisions of the
Sale of Goods Act 1923 (NSW) with regard
to product warranties.
3 Describe a consumer’s options if he or she is
not satisfied with a product purchased.
Negligence and
consumer protection law
Where goods manufactured without proper care
cause injury, loss, damage or death, the con-
sumer is entitled to bring an action under the
relevant federal or state legislation. Alternatively,
he or she may have a cause of action for breach
of contract, if the supplier or manufacturer has
expressly or impliedly promised that the goods
are free of defect. A third type of claim is an action
in negligence (breach of a duty of care owed to
consumers).
In Australia, governments seek to keep unsafe
products from the market and inform consu-
mers about product safety. Federal and state
governments seek to ensure that:
s unsafe products that reach the market are
readily detected and reported
s there is effective and timely removal of unsafe
products from the market
s compulsory product recall occurs if required
s compensation is available to consumers who
purchase unsafe products
s breaches of consumer protection laws attract
sanctions.
Suppliers have a duty to warn consumers of
products whose dangerous characteristics are dis-
covered after they are already on the market. They
may also be required to recall the product, under
the Competition and Consumer Act 2010 (Cth) or
ss 34–35 of the Fair Trading Act 1987 (NSW). Even
where a product has been recalled, consumers
may still be able to sue for damages if they do not
know of the recall.
Some recent examples of product recalls
include:
s Hewlett-Packard (HP) and Compaq Notebook
Computer Lithium-Ion Battery Packs – these
were overheating and exploding (2009)
s Cadbury Old Gold Dark Chocolate, 70% Cocoa,
200 gram block – the milk solids weren’t
declared on the labelling and this caused aller-
gic reactions for lactose-intolerant consumers
(2009).
Legislative provisions regarding consumer
product safety standards, which include require-
ments for testing of the goods and the inclusion of
l e ga l l i nk s
See www.recalls.gov.au for a
comprehensive list of product
recalls.
warnings or instructions with products, are inten-
ded to prevent or reduce the risk of injury to any negligence
breach of a duty
person. See, for example, Fair Trading Act 1987
of care resulting in
(NSW) s 38. Children’s prams, smoke detectors harm that could be
and kitchen ovens are examples in which the foreseen
importance of these safety standards is particularly
evident.
In addition to these provisions, there are state
and federal laws governing the provision of infor-
mation about products and services.
O p t i o n 1: C o n s u m e rs
Regulation of marketing
and advertising
Statutory protection
Although common law provides some protection
for consumers with regard to the deceptive prac-
tices of manufacturers/suppliers, it wasn’t until it
was codified into statute that consumer law truly
emerged as a force for social and economic justice.
Provisions protecting consumers from deceptive
advertising and marketing practices are contained
in both federal and state consumer legislation.
The provisions of the Trade Practices Act governing
marketing and advertising will be incorporated
into the new Australian consumer law of 2010, to
come into force by 2011.
DE C E P TI V E O R M I SL EA DI NG C O NDU C T
Section 52 of the Trade Practices Act 1974 (Cth)
prohibited corporations from engaging in conduct
that is misleading or deceptive, or is likely to
mislead or deceive. Section 41 of the Fair Trading
Act contains a similar provision.
‘Conduct’ means ‘doing or refusing to do any
act’. Making a statement that is literally true may
nonetheless constitute misleading or deceptive
conduct. Misleading or deceptive conduct includes
exaggerated statements about a product, failure
to disclose all relevant information, and in some
circumstances silence. It also includes promises
that are not kept and incorrect predictions.
It makes no difference whether the company
intended to mislead or deceive consumers; it is
how the conduct affected the consumers’ beliefs
Cha pter 10: Option 1: Co ns umers 235
 about the product or service. If an advertisement
creates a misleading perception about an item
– for example, if a manufacturer of small toys
with many detachable parts misrepresented or
failed to disclose the risks to infants and toddlers
– then the company is likely to be in breach of
the Act. Under the federal legislation, a consumer
can recover damages for personal injury or death
resulting from a supplier’s misleading or deceptive
conduct.
Under the Australian Constitution, a federal Act
only applies to corporations that trade across state
borders. The Fair Trading Act 1987 (NSW) regulates
firms that operate only within NSW, and has a
broader application, extending to individuals.
Section 42 of that Act prohibits misleading or
deceptive conduct.
c as e s p ac e
Handley v Snoid (1981) 4 TPR 361
A band called ‘Popular Mechanics’ successfully
sued to obtain an injunction preventing another
band from performing or recording under a similar
name, ‘Pop Mechanix.’ Had this new band been
allowed to use a similar name, consumers would have
been deceived when it came to the marketing and
advertising of tickets for their concerts, or indeed,
any albums that may have been offered for sale.
injunction FA L S E OR MIS L EADIN G
a court order that R EPR ES EN TAT ION S
requires a party to
refrain from completing In addition to the general prohibition of misleading
a particular action and deceptive conduct, the Trade Practices Act 1974
bait advertising (Cth) contained specific provisions in s 53 regarding
advertising goods or
representations. A representation is a statement or
services for sale at a
specified price with assertion. Suppliers breach the law by making false
the knowledge that representations to consumers:about their products
the company will not
or services. Such representations include:
be able to offer them
at that price for a s a false claim about the quality or value of a
reasonable period product
236 C am b r id g e L e g a l S t u d ie s – HS C
s a claim that goods are new when in fact they
are second-hand
s a representation that a product is sponsored by
or used by a celebrity when in fact it is not
s a false or misleading representation concerning
a potential buyer’s need for any goods or
services
s a false claim concerning the existence or effect
of any condition, warranty or guarantee
s a false or misleading representation about the
place of origin of a product
s a false claim as to the availability of repair
facilities or spare parts for a product.
Section 44 of the Fair Trading Act 1987 (NSW)
has similar content.
U NC O NSC I O NA B L E C O NDU C T
The federal legislation (Trade Practices Act s 51AB)
and Fair Trading Act (s 43) also provide broad
protection for vulnerable consumers against
unscrupulous suppliers who use their greater
bargaining power to obtain an advantage.
O FFE RI NG G I FTS A ND PRI ZES
Suppliers who entice consumers to buy their prod-
ucts by offering gifts, prizes or other free items
with the intention of not providing the advertised
gift breach federal law (originally s 54 of the Trade
Practices Act). Suppliers participating in such
marketing schemes are considered to have been
engaging in deceptive practice. Section 48 of the
Fair Trading Act is identical.
B A I T A DVERTI SI NG
Bait advertising is the practice of advertising
something at a specified price, with the knowledge
that it will not be possible to offer it at that price
for a reasonable time and in reasonable quantities.
Often referred to as the ‘bait and switch,’ it has
the objective of getting the consumer into shops
where sales staff inform customers that they’ve
‘run out of a particular line’ and attempt to
convince consumers to buy a more expensive
product or model. Such behaviour breaches
federal law (originally s 54 of the Trade Practices

Figure 10.8 Used car yards are heavily regulated by the state.
Act) as illustrated in Reardon v Morley Ford Pty Ltd
(1980) 49 FLR 401, when the Federal Court found
against a car dealer who advertised two cars at a
low price, but then failed to sell them at that price
during the stated period.
R E FERRAL SELL IN G
Section 57 of the Trade Practices Act 1974 (Cth)
made it illegal for a supplier to offer discounts,
rebates or other benefits to consumers in return
for introducing other customers to the supplier.
P YRAM ID SELLI N G
Under s 65AAC of the Trade Practices Act, it is
illegal for a corporation to participate in a pyramid
selling scheme. This is a scheme in which new
participants are told they will receive a payment
in exchange for recruiting others. The practice is
fraudulent because what is really being ‘sold’ is the
right to distribute, and not the actual product or
service being marketed.
U NSOLICITED AN D UN OR DER ED GOODS
Section 63A of the Trade Practices Act made it
illegal for suppliers to send unsolicited credit cards
through the mail, with the exception of credit card
O p t i o n 1: C o n s u m e rs
companies providing a replacement for an expired
card. Similarly, s 64 prohibited suppliers from
sending unsolicited goods and then demanding
payment.
C O E RC I O N
Under s 60 of the Trade Practices Act, corporations
may not use physical force, harassment or
coercion on consumers in connection with the sale
or possible sale of goods or services, or to obtain
payment for goods or services.
R EVI EW 1 0 . 5
1 List the different avenues by which a pyramid selling
consumer may seek relief for damage or an illegal form of
selling whereby an
loss caused by defective goods. individual pays to
2 Explain how federal and state governments become a distributor
ensure product safety. of a good in return for
a reward for recruiting
3 Distinguish between ‘deceptive or new distributors
misleading conduct’ and ‘false or
misleading representations’. Provide
examples.
4 Explain why it is important that
advertising and marketing be regulated by
government.
Cha pter 10: Option 1: Co ns umers 237
 m e d i a cl i p
Keep it real,
watchdog tells agents
By Mark Russell
Sydney Morning Herald, 7 June 2009
It is time to put an end to ‘puffery’ that
misleads potential buyers and renters in
real estate advertisements, according to the
national consumer watchdog.
The acting chairman of the Australian
Competition and Consumer Commission,
Peter Kell, said people were fed up with
visiting advertised homes for sale or rent
only to find the best features had been
exaggerated and the worst ignored.
He said there would always be some form
of puffery in the industry, but sometimes it
went too far.
‘What the ACCC is concerned to address
are statements that are actually misleading
or statements that are likely to induce a
consumer to purchase a property on false
grounds,’ he said.
‘Silence or omitting information can also
be just as misleading as any other sort of
behaviour.
‘If the agent fails to reveal an important fact
about the property to a potential buyer, he
or she may risk breaching the Trade Practices
Act.
‘There is no point dragging people to an
open for inspection or fooling them into
coming to look at something if it’s not what
they’re looking for.’
The NSW Office of Fair Trading said agents
often used photographs of beach scenes
that were insufficiently labelled. In its latest
guidelines, it said such unlabelled photos
were acceptable only if they show the view
from the property.
Otherwise, captions such as ‘location shot’
and ‘750 metres from beach’ must be used,
it said.
Agents found to have misled potential
buyers through inaccurate or embellished
descriptions face penalties of up to $22,000
238 C am b r id g e L e g a l S t u d ie s – HS C
for individuals and $110,000 for companies.
They cannot avoid liability by claiming the
buyer should have made reasonable inquiries
and checked the information provided.
The ACCC received 833 complaints or
inquiries about real estate agents in 2007–08,
compared with 551 the previous year.
Consumer Affairs Victoria said it had
received nearly 40 complaints or inquiries so
far this financial year relating to misleading
advertising for properties for sale on the
internet, and 10 complaints or inquiries
about rental properties. These included
misleading statements about certain features
of a property; alteration of photographs; the
potential development of a property; and the
land size.
The president of the Real Estate Institute
of Victoria, Adrian Jones, said puffery
had long been an accepted practice in
the industry as long as it did not involve
misleading or deceptive conduct. ‘Anyone
who contemplates buying a property without
a thorough inspection is taking a great risk,’
he said. ‘Unless you see it warts and all, you
don’t really know what it’s like.’
Real Estate Institute of Australia guidelines
state that agents ‘must not alter or permit
to be altered photographic images of
properties, digitally or by other means, such
that the images no longer truthfully and fairly
represent that property’.
CRACKING THE CODE
‘Harbour views’ – if you climb on the roof.
‘Close to public transport’ – backs on to train
line.
‘Sunny outlook’ – faces west.
‘Leafy outlook’ – the brick wall has ivy
growing on it.
‘Tidy kitchen’ – small and unrenovated.
‘Well maintained’ – old but not quite falling
down.
 RE VIE W 10.6
Read the article on the previous page and
answer the following questions:
1 According to the article, what is the ACCC
concerned about?
2 Outline the types of penalties that real
estate agents can face for misleading
potential buyers if they employ inaccurate
or embellished descriptions.
Advertising Claims Board. These boards operate
on the principle that advertisers share a common
interest in promoting consumer confidence in and
respect for general standards of advertising.
The Advertising Standards Board provides:a
free complaint resolution service to the public. It
also makes determinations on complaints about
most forms of advertising and marketing. Issues
from which complaints arise may include the use
of language; discriminatory portrayal of people;

O p t i o n 1: C o ns u m e rs
concerns about children; portrayals of violence, cooling-off period
Cooling-off periods sexuality and nudity; and health and safety. There a period of time
that gives buyers
Legislative provisions permit cooling-off periods is an appeal mechanism by which the community
an opportunity to
in contracts because the law acknowledges the and advertisers can challenge decisions made by rethink their decision
existence of high-pressure sales tactics that can the ASB. to enter into a
contract of sale
influence consumers to make purchases they The Advertising Claims Board provides a
alternative dispute
other wise would not. These tactics may not con- complaint resolution service regarding issues of
resolution (ADR)
stitute unconscionable conduct, but may result in truth, accuracy and legality of advertising. The dispute resolution
purchases that put the buyer at a disadvantage. complainant bears the cost of the resolution processes, such as
mediation, arbitration
Statutes that provide for the insertion of a cooling- process. Its primary purpose is to resolve disputes and conciliation, that
off period in contracts include: between competitors through alternative dispute do not involve courts
s Fair Trading Act 1987 (NSW) – regulates direct resolution (ADR), rather than
commerce contracts (door-to-door and tele- expensive and time-consuming
phone sales) and permits a five-day cooling-off litigation. R EV I EW 1 0 . 7
period (s 40E) Both boards use professional 1 Briefly outline the statutory
s Conveyancing Act 1919 (NSW) – specifies a five- codes of ethics as the basis for guidelines that regulate
day cooling-off period for sales of residential their determinations. These advertising.
property (s 66S) codes include the Australian 2 Define cooling-off period.
s Student Assistance Act 1973 (Cth) – provides Association of National Adver- Explain why cooling-off
for a fourteen-day cooling-off period for a loan tisers (AANA) Code of Ethics, periods are incorporated
contract between a student and a financial AANA Food & Beverages Code, into contracts.
company. and the AANA Code for 3 Differentiate between the
Advertising and Marketing roles of the Advertising
Non-statutory controls on Communications to Children, Standards Board and the
advertising among others. Advertising Claims Board.
Non-statutory controls also afford consumer
protection when it comes to deceptive and/or
misleading marketing and advertising. Australia
l e ga l l i nk s

has a highly accessible, self-regulatory framework

which complements its statutory regime. The AANA codes can be viewed at

Australia’s system for the non-statutory regula- www.adstandards.com.au/pages/

tion of advertising and marketing is administered page16.asp

by the Advertising Standards Bureau (ASB)

through the Advertising Standards Board and the

Cha pter 10: Option 1: Co ns umers 239


fiduciary duty
(1) legal obligations
that must be fulfilled
without regard to
self-interest or the
opportunity to make
unauthorised profit
from the position
(2) the legal duty to
manage a client’s
money while it is held
in a trust account
Figure 10.9 Licensing is designed to protect consumers from unqualified
professionals, tradespersons and businesses.
240 C am b r id g e L e g a l S t u d ie s – HS C
Occupational licensing
Regulation of professions and occupations may
include the following:
s Registration – listing practitioners on an official
register, to identify them and ensure that they
comply with legal requirements;
s Certification – a means of recognising those who
have obtained qualifications that are necessary
and/or desirable for practising the profession.
It also provides information to the public that
will help them choose between competing
professionals;
s Licensing – a means of identifying those who
have fulfilled criteria related to education, ex-
perience and compliance with professional
codes of ethics, and authorising them to prac-
tise. It generally involves a regulatory body to
administer the licensing regime.
If all individuals in the workforce could be
trusted to maintain high standards of ethical prac-
tice, there would be no real need for licensing.
The imposition of licensing and registration is an
attempt to guarantee that people employed in
various occupations have attained the requisite
skills and perform their roles honestly. Licensing
controls govern most professions, trades and
businesses, including those in Table 10.1.
Table 10.1 Occupations and businesses required
to be licensed in New South Wales
Professions Trades Businesses
Doctors Plumbers Travel agents
Lawyers Electricians Car dealers
Engineers Builders Credit
Dentists Motor providers
Architects mechanics Hotels
Veterinarians Carpenters Motels
Fitters and Restaurants
turners
Self-regulation
One way that industries may set practising stan-
dards and regulate the entry of individuals into
their field is self-regulation through professional
bodies. Two notable examples of this are the
Australian Medical Association (AMA) and the
NSW Law Society. The former is a national body
that regulates the ethics, work standards and aca-
demic qualifications of doctors, while the latter
performs the same role for solicitors in New South
Wales.
In some professions, self-regulation works
closely in tandem with legal requirements. How-
ever, in others, the absence of compulsory
standards can lead to a lack of uniformity in
matters such as complaints and disciplinary
processes; difficulty for employers in assessing
a breach of professional ethics; and a burden
on consumers to inform themselves about the
quality of a professional’s practice. Individuals
in occupations as diverse as social workers,
accountants, migration agents and opticians – as
well as their professional organisations – have
addressed the need for legislation to ensure that
all practitioners meet standards of competence
and ethical behaviour.
State regulation
As a consequence of the problems with self-
regulation, states have been forced to intercede
via legislation. In recent times, for example, state
parliaments have enacted legislation that provides
strict guidelines regarding the fiduciary duty of
solicitors, real estate agents and travel agents. The
Figure 10.10 The activities of car dealers and repairers in New South Wales are governed by the
Motor Dealers Act 1974 (NSW) and the Motor Vehicle Repairs Act 1980 (NSW).
objective is to compel businesses, tradespersons
and professionals to act honestly and in accor-
dance with their legal duties to the consumer.
Two examples of statutory licensing regimes in
NSW, those for automobile dealers and repairers,
and travel agents, are discussed below.
T H E LICENSING OF MOT OR C AR
DEALERS AND REPAIR ER S
The activities of car dealers and repairers in New
South Wales are governed by the Motor Dealers
Act 1974 (NSW) and the Motor Vehicle Repairs Act
1980 (NSW). The Motor Dealers Act ensures that
firms seeking to buy or sell cars are licensed
by the NSW Office of Fair Trading. This statute
stipulates that dealers must refrain from making
false or misleading statements regarding the
quality of the vehicles they are selling and that
all guarantees and warranties are honoured.
The Motor Vehicle Repairs Act makes it illegal to
trade as a vehicle repairer without a licence. This
statute also governs the activities of all licensed
auto-electricians, panel beaters, spray painters,
and brake and transmission mechanics to ensure
that only qualified repairers complete such work.
Any licensee whose work is below the industry
minimum standard has his or her licence revoked
and hence will not be able to undertake any repair
work which could potentially harm a vehicle owner
or cause further damage to the car.
T H E LICENSING OF T R AVEL AGEN T S
In New South Wales, travel agents are regulated
via the Travel Agents Act 1986 (NSW). The NSW
O p t i o n 1: C o n s u m e rs
Office of Fair Trading oversees the operation of
this statute. Disputes between agents and their
clients are heard by the NSW Consumer, Trader
and Tenancy Tribunal.
The Act requires all travel agents to be
licensed and to contribute financially to a Travel
Compensation Fund (TCF) established to com-
pensate consumers if an agent becomes bankrupt.
Travel agents are not required to keep a trust licensee
licence holder
account, but in some circumstances the trustees
trust account
of the TCF can require them to do so.
a bank account
It is illegal for travel agents to behave in an for money held
unjust manner. ‘Unjust conduct’ is defined in s 28 and dealt with on
behalf of clients by
of the Act as conduct that is dishonest or unfair;
a professional or
is in breach of contract; infringes the Act or a business acting as
regulation; or fails to comply with a condition of a fiduciary for the
clients
the agent’s licence. The Director General of the
natural justice
state government department under which the the body of rules that
Office of Fair Trading operates can apply to the ensure that decision-
NSW Administrative Decisions Tribunal for an makers act fairly,
in good faith and
order that the agent refrain from that conduct without bias when
(s 31). In addition, the Commissioner of the Office resolving disputes
of Fair Trading has the power to discipline licence
holders. Disciplinary measures may range from
a reprimand to suspension or cancellation of the
agent’s licence.
RE V I EW O F L I C ENSI NG DEC I SI O NS
The regulatory body for a particular profession or
occupation may grant or revoke a licence. When
it makes an administrative decision to deny
access to, or revoke a licence, it must do so in
accordance with the rules of natural justice. In
simple terms, this means that individuals must be
Cha pter 10: Option 1: Co ns umers 241
 given an opportunity to hear the reasons why a
licence has been denied or revoked and to present
arguments as to why the licence should be granted
or reinstated. If an individual is unsuccessful in
obtaining or retaining a licence, he or she can
apply to the Office of Fair Trading for an internal
review. If dissatisfied with the result, the person
can apply to the Administrative Decisions Tribunal
for further review.
Table 10.2 Reasons for a licence to be refused or revoked
Possible reasons for the refusal of a licence
Inadequate training or education of the
applicant
Inability of the licence holder to meet minimum
industry or professional standards
A breach of the licence holder’s fiduciary duty
with regard to trust funds
Concern regarding the character of the
applicant, such as his or her honesty
Co nsu m er redress a n d remedies
Awareness and self-help
Self-help avenues are open to consumers who
feel they have been badly treated by suppliers
or manufacturers. Redress can be obtained by
complaining to the supplier or manufacturer. Self-
help is a useful mechanism for consumer redress
because it is resource-efficient and easily carried
out. Further, it can provide just outcomes for
consumers without undertaking costly litigation.
Complaints to suppliers
Under the law, consumers can seek redress in
the form of repair, replacement or refund. If the
product or service supplied does not do the job that
the customer was led to believe it would, or there is
some serious fault in the product, the customer is
entitled to seek a legal remedy. In most cases, this
is initially achieved by the consumer complaining
242 C am b r id g e L e g a l S t u d ie s – HS C
R EV I EW 1 0 . 8
1 Identify some of the problems with industry
self-regulation.
2 Identify three occupations that are licensed.
Explain why it is important for these
occupations to be licensed.
3 Outline and explain the main reasons why a
licence might be revoked.
Possible reasons for revoking a licence
Malpractice by the licence holder
Fraudulent, misleading or deceptive behaviour
by the licence holder
in person to the supplier. Usually, the supplier of a
faulty product will repair or replace the product or
provide a refund. This is because most suppliers
are aware of the statutory protections in place for
consumers, but also because it is an opportunity to
foster goodwill and customer loyalty. A dissatisfied
customer whose complaint is taken seriously and
promptly addressed can become an ambassador
for that supplier through word of mouth.
Complaints to manufacturers
Consumers do not always have direct access to
manufacturers. Once the location of the manu-
facturer has been determined, it is prudent for
the aggrieved consumer to contact the firm via
telephone and in writing.
Under the Trade Practices Act 1974 (Cth), manu-
facturers are legally obliged to stand by their
warranties or guarantees and to ensure a reason-
able supply of spare parts and repair facilities
for goods that cost less than $40 000 and are for
personal or household use. Manufacturers must
also meet the requirements for merchantable
quality and fitness for purpose.
Government organisations
State government organisations
There are various bodies within or authorised
ing of building or renovating a
house; and information for ten-
ants, landlords and real estate
agents about their rights and
responsibilities.
The Office of Fair Trading is
also the agency where business
owners can register their busi-
ness names, as well as obtain the
licences and certificates needed
R ESEAR CH 1 0 . 3
Visit the website of the Office of
Fair Trading, at www.fairtrading.
nsw.gov.au/About_us/What_
the_Office_of_Fair_Trading_
does.html
1 Use the links in the left-hand
menu to research some
of the other services this
agency offers specifically for

by the NSW state government that deal with
consumer complaints. The roles of these agencies
include:
s educating the public about their rights in the
area of consumer law
s providing advice to consumers about negoti-
ating with providers of goods and services, and
assisting them in their negotiations
s advising the government about consumer issues
s investigating serious complaints
s in the event of a breach, applying to the relevant
tribunal or court to bring an action.
Some of the relevant agencies are discussed
below.
N S W OFFICE OF FAIR T R ADIN G
This organisation is a division of the NSW
Department of Services, Technology and Admini-
stration, whose role is to safeguard consumer
rights and to advise business and traders on fair
and ethical practice. The legislative framework
that governs this organisation sets the rules for fair-
ness in the daily transactions between consumers
and traders. It investigates unfair practices and
administers the licensing of operators in a range
of industries, including home building, the auto-
motive trades, real estate, business and retail, and
retirement villages.
Consumers can contact the Office of Fair
Trading for information on their rights and res-
ponsibilities and for resolution of disputes. It offers
a range of services, including a statutory public
register with information to help buyers of second-
hand cars, bicycles and boats; help selecting quali-
fied builders and tradespersons for those think-
O p t i o n 1: C o n s u m e rs
to operate in the State of NSW. consumers.
2 From the ‘How Fair Trading
C O M M U NI TY SERV I C ES works’ link, research statutory
C O M M I SSI O N authorities and advisory
The Community Services Com- bodies that carry out other
mission is a statutory ‘watchdog’ functions. Identify the role
body overseeing community ser- of each and explain how it
vices in NSW. Its primary function fits in with the regulation of
is dealing with complaints rela- consumer–supplier relations.
ting to the NSW Department of
Community Services and Department of Ageing,
Disability and Home Care, and non-government
services that get funding from these departments.
It also conducts reviews of people in care and
monitors community ser vice issues. The Commis-
sion can assist anyone who receives or is eligible to
receive community services in NSW, including:
s children and young people in care and their
families and advocates
s people with disabilities and their families and
advocates
s users of supported accommodation services
s users of child care services
s users of local neighbourhood centre services
s users of home and community care services.
NEW SO U TH WAL ES L EG A L A I D
This organisation was established under the Legal
Aid Commission Act 1979 (NSW) and is an inde-
pendent statutory body. It provides legal advice
and assistance to socially and economically
disadvantaged people, including court represen-
tation upon successful application for a grant of
legal aid. Legal Aid also gives talks in schools,
community centres and libraries to educate the

Cha pter 10: Option 1: Co ns umers 243

 public about the law, people’s legal rights and
responsibilities, and services; has information
stalls at community events; and publishes book-
lets, CDs and DVDs for purchase. Legal Aid deals
with a wide range of legal areas, not just consumer
law, but it is available to consumers in disputes
with commercial organisations. All Australian
states and territories have Legal Aid Commissions.
Federal government organisations
There are several Commonwealth agencies that
deal with the regulation of industries and protect
consumer rights.
C OMPET IT ION AN D C ON S U M E R PO L I C Y
DIVIS ION OF T H E C OMMON WE A LTH
DEPART MEN T OF T H E T R EA SU RY
This division of the Treasury provides advice to
the Commonwealth Government on the consumer
policy framework contained in the federal legis-
lation and on how to promote competitive and
informed markets. This includes advice on the
policy and regulatory frameworks for promoting
competition, and those for consumer protection.
C OMMON WEALT H C ON S UME R A FFA I RS
ADVIS ORY C OUN C IL ( C C AA C )
CCAAC provides independent advice to the Mini-
ster for Competition Policy and Consumer Affairs
on consumer policy issues. Its specific tasks are:
s to consider issues, reports and papers referred
to it by the Minister and report to the Minister
on their consumer policy implications
s to investigate and report on consumer issues
referred to it by the Minister
Figure 10.11 ASIC logo
244 C am b r id g e L e g a l S t u d ie s – HS C
s to identify emerging issues affecting Australian
markets and consumers and draw these to the
attention of the Minister.
TH E A U STRA L I A N SE C U RI TI ES A ND
I NV E STM E NTS C O M M I SSI O N (A SI C )
ASIC is an independent statutory body which
regulates Australia’s corporate markets and finan-
cial services sectors and ensures that Australia’s
financial markets are fair and transparent.
Among its responsibilities is the enforcement of
consumer protection laws covering investments,
superannuation, insurance and financial advice.
These include parts of the Australian Securities
and Investments Commission Act 2001 (Cth) and
the Corporations Act 2001(Cth), as well as parts of
other Commonwealth Acts. ASIC licenses financial
services businesses, conducts public education
initiatives for consumers, provides information to
businesses to help them to fulfil their obligations,
and monitors compliance through surveillance.
ASIC’s enforcement powers, as set out in the ASIC
Act 2001 and the Corporations Act 2001, include:
s criminal prosecution through the Common-
wealth Department of Public Prosecutions
s civil penalties
s administrative action.
A U STRA L I A N C O M PETI TI O N A ND
C O NSU M E R C O M M I SSI O N (A C C C )
The ACCC is an independent statutory body that
administers the federal consumer legislation. Its
role is to promote competition and fair trade in
the marketplace. Market competition, or rivalry
among producers and suppliers of goods and
services, uses the economic principles of supply
and demand to discover the kinds of goods and
services that consumers want, and how they can
be supplied at the cheapest price. Competition, by
contrast with a market where there is a monopoly,
is believed to benefit consumers, businesses and
the community in general. An unregulated market,
however, has a greater likelihood of unscrupulous
or unfair conduct on the part of suppliers, and
thus risks harm or disadvantage not only to the
people providing the labour to businesses, but also
to consumers. Hence the ACCC’s responsibility for
ensuring that businesses and individuals comply
with the federal laws on fair trading and consumer
protection is of great importance. It complements
state consumer affairs agencies, provides edu-
cation to consumers and businesses about the
relevant laws, and also regulates the national
infrastructure industries, which include commu-
nications, energy, water, post and transport.
An example of a recent high-profile prosecution
initiated by the ACCC involved the packaging
and recycling group Visy Industries Pty Ltd. The
company received a $36 million fine in November
2008 for price-fixing in the market for cardboard
cartons. The penalty handed down in the Federal
Court followed an ACCC investigation that found
Visy breached the Trade Practices Act by engaging
in illegal cartel behaviour with rival packaging
company Amcor Ltd. Billionaire Visy chairman
Richard Pratt was also to face criminal charges for
lying to the ACCC, but these were dropped when
he became terminally ill and died in April 2009.
MINISTERIAL COUN C IL ON C ON S UMER
A FFAIRS (M CCA)
The MCCA consists of the Commonwealth, state
and territory ministers responsible for fair trading,
consumer protection and credit laws, along with
the New Zealand minister(s) with those portfolios.
Its role is to consider consumer policy issues of
national significance and develop a consistent
approach to those issues, and it facilitates com-
munication and cooperation between Australia
and New Zealand in those areas.
RE VIE W 10.9
1 Briefly explain what state and federal
government agencies do, with particular
reference to consumer issues.
2 Explain the purpose of a statutory body and
how it is constituted. Give examples of stat-
utory bodies relating to consumer issues.
3 Discuss the relationship between
competition and regulation of corporations.
Industry organisations
There are a number of industry organisations that
deal with consumer complaints and assist with
remedies. They may be classified as follows.
Industry-based dispute
resolution
Some industry groups have developed complaint
handling and dispute resolution schemes designed
O p t i o n 1: C o n s u m e rs
to provide consumer remedies, enhance business
reputation, and support claims that these indus-
tries are self-regulating. For example, Master
Builders Australia is an employers’ group that
represents and protects businesses in the building
and construction industry. It has a national code
of practice setting out the acceptable standards
for commercial behaviour and ethics, by which
its members are bound. Consumers can make a
complaint to Master Builders in their state, but the
association’s primary duty is to its members.
Customer-focused corporate
compliance programs
These are internal self-regulatory programs that
aim to ensure that a business meets its legal obli-
gations to consumers, and to remedy any breach.
Industries that adopt this approach embrace
monopoly
measures that improve relations with their cus-
exclusive control
tomers. As the different industries and businesses of a market by one
have different characteristics and circumstances, company, which
generally results
compliance programs will also vary. Some in increased prices
companies will adopt simple programs with a because there are no
alternative suppliers
complaints handling system and training for all
price-fixing
staff members, while others may have a team
suppliers’ keeping
dedicated to compliance, regular risk assessments prices in the market
and reviews, detailed guidelines, and staff edu- at a certain level by
cation programs. Compliance programs are often
agreeing among
themselves not to
linked to the strategic goals of companies. lower or raise their
prices
Industry-based Ombudsman cartel
a group of companies
An Ombudsman takes complaints from citizens
that work together
or consumers about agencies, departments or to control prices
providers and investigates those complaints and markets; if their
behaviour is found to
in order to reach a resolution that is fair to be anti-competitive, it
both sides. is illegal
Cha pter 10: Option 1: Co ns umers 245
 Generally the providers in a particular industry
(e.g. telecommunications, energy and water, finan-
cial services, insurance, public transport) are
required to be members of an independent dis-
pute resolution scheme. The industry then sets up
and funds an Ombudsman scheme. For example,
the Energy and Water Ombudsman NSW (EWON)
investigates and resolves complaints from custom-
ers of electricity and gas providers in NSW.
The role of tribunals
and courts
A tribunal is an adjudicative body that is chosen
specifically, often by the government, to decide
litigation on questions of a particular type. Consumer re-
civil legal proceedings
dress and remedies can be obtained through the
whereby disputing
parties seek a binding following bodies.
remedy by a court
Consumer, Trader and Tenancy
Tribunal (CTTT)
The Consumer, Trader and Tenancy Tribunal Act
2001 (NSW) governs the operation of this tribu-
nal. The role of the CTTT is to resolve disputes
between tenants, landlords, traders and consumers
in a timely and effective manner. The Tribunal
conducts hearings throughout NSW and deals with
matters under the following nine divisions:
s Tenancy
s Social Housing
s Home Building
s Strata and Community Schemes
s Retirement Villages
s Residential Parks
s Motor Vehicles
s General
s Commercial
After the parties to a dispute have had an
opportunity to conciliate, if an agreement is
not reached, an application will be heard by the
Tribunal. CTTT hearings are generally informal,
but formal hearings can be held on request and
witnesses can be called.
A ‘Tribunal Member’ presides at the hearing.
Both parties are given an opportunity to present
246 C am b r id g e L e g a l S t u d ie s – HS C
their evidence and ask questions of each other.
The Tribunal Member may also ask that evidence
be sworn or affirmed. After both parties have
presented their evidence, the Tribunal Member
will make orders and explain the reasoning behind
them. Both parties to the dispute usually receive
a typed copy of the order within seven days from
the completion of the hearing. Appeals against a
CTTT order can be made to the District Court of
NSW on any matter of law.
Courts
If consumers are unable to obtain a remedy
through independent avenues (self-help), ADR or
the relevant tribunal, the last resort is court-based
litigation.
The role of the judiciary is to:
s apply the law as made by the legislature
s where necessary, interpret the laws made by
the legislature
s ensure that laws comply with the Australian
Constitution
s review the decisions of the executive arm of
government (ministers, public servants).
In recent times, court-based remedies have
proven to be very costly. This has given rise to
class actions which allow aggrieved consumers
with similar complaints to pursue their legal action
collectively.
Other avenues for redress
The role of non-government
organisations
A variety of non-government organisations
represent the interests of consumers. Many of
these are advocacy groups that attempt to influ-
ence the legislative program of political parties in
government. While ‘peak bodies’ do not generally
take on and pursue individual complaints, they
have links to resources that do.
Some of these groups are:
s Consumer Credit Legal Centre (NSW) Inc. – a
community legal centre specialising in issues

Figure 10.12 Choice magazine provides
consumers with independent scientific advice on
product quality. Courtesy of CHOICE magazine,
first published February 2010.
related to financial services, such as consumer
credit, banking and debt recovery. It has a
particular focus on issues concerning econo-
mically disadvantaged consumers.
s Choice, formerly known as the Australian
Consumers Association – a non-profit organi-
sation that researches and campaigns on behalf
of consumers and publishes Choice magazine.
Choice provides consumers with independent
advice on product quality.
s Consumers’ Health Forum of Australia – the
national peak body representing the interests
of Australian health care consumers.
s Consumers’ Federation of Australia – the
national peak body for Australian consumer
groups. Its members include legal centres, local
organisations and public interest bodies.
s Not Good Enough (www.notgoodenough.org) –
a website created to help consumers to resolve
disputes with suppliers of goods and services.
It publishes individuals’ input about products
and services, and facilitates responses from
companies.
legal links
Consumer Action Law Centre
has information about consumer
issues, and a full list of consumer
advocacy groups, at www.
consumeraction.org.au.
R EVI EW 1 0 . 1 0
1 Briefly explain the different ways that
O p t i o n 1: C o n s u m e rs
industry organisations attempt to assist
consumers.
2 Outline the role of the Consumer Trader
and Tenancy Tribunal in the resolution of
consumer disputes.
3 Discuss the ways in which non-
government groups act on behalf of
consumers. Give examples.
The role of the media
The print and electronic media provide the
consumer with information regarding the release,
quality and safety of new products. Various
lifestyle and current affairs programs feature
segments that address consumer complaints and
interests. While broadcasters and print media
can be biased in favour of their sponsors, there
can be little doubt that they generally provide the
consumer with another layer of information and
publicise the shoddy practices of unscrupulous
suppliers and manufacturers.
Specific remedies
Court-based
A court may award any of a number of remedies to
a successful complainant. These include:
s Damages – monetary compensation awarded
by the court and paid by the defendant to
someone who proves that loss was suffered as
a result of the defendant’s actions
s Rescission and modification of contract – if
a court considers a contract to be unfair, it can
Cha pter 10: Option 1: Co ns umers 247

mediation
a form of alternative
dispute resolution
designed to help two
(or more) parties, in the
presence of a neutral
third party, to reach an
agreement
conciliation
a form of alternative
dispute resolution in
which the disputing
parties use the services
of a conciliator, who
takes a more active
role than in mediation,
advising the parties,
suggesting alternatives
and encouraging
the parties to reach
agreement. The
conciliator does not
make the decision for
them.
248 C am b r id g e L e g a l S t u d ie s – HS C
order a contract to be rescinded (cancelled) and
a new one created
s Special orders – courts may resolve consumer
disputes by issuing orders for rectification of
the wrong, for example the repair of defective
goods
s Injunctions – a court may order a party to a
contract to refrain from doing something that is
in breach of the contract
Table 10.3 Individual consumer remedies against suppliers
Statutory right
Unfair contracts will be rescinded
(unconscionable conduct)
Goods offered for sale must be of
merchantable quality and fit for purpose
Terms of the contract regarding guarantees
and product warranties must be honoured
Deliberately misleading or deceiving
consumers is prohibited
Goods must fit the description given to
consumers by the supplier
Product information standards must be
provided to consumers, e.g. labels relating to
contents, ingredients, design standards etc.
Table 10.4 Individual consumer remedies against manufacturers
Statutory right
A manufacturer must honour its contractual
warranties or guarantees
Manufacturers must supply reasonable repair
and spare parts facilities
Manufacturers/importers must supply goods
that are safe
Manufactured goods must be fit for purpose
and of merchantable quality
s Specific performance – a court order requiring
a party to a contract to perform the obligations
that he or she has agreed to in the contract.
Alternative dispute resolution
Mediation and conciliation are commonly ref-
erred to as alternative dispute resolution (ADR)
mechanisms because they provide an alternative
to court-based litigation. If a consumer dispute
Relevant legislation
Credit Act 1984 (NSW)
Minors (Property and Contracts) Act 1970 (NSW)
Contracts Review Act 1980 (NSW)
Sale of Goods Act 1923 (NSW)
Credit Act 1984 (NSW)
Minors (Property and Contracts) Act 1970 (NSW)
Contracts Review Act 1980 (NSW)
Trade Practices Act 1974 (Cth); Competition and
Consumer Act 2010 (Cth)
Fair Trading Act 1987 (NSW)
Trade Practices Act 1974 (Cth); Competition and
Consumer Act 2010 (Cth)
Fair Trading Act 1987 (NSW)
Trade Practices Act 1974 (Cth); Competition and
Consumer Act 2010 (Cth)
Fair Trading Act 1987 (NSW)
Relevant legislation
Credit Act 1984 (NSW)
Minors (Property and Contracts) Act 1970 (NSW)
Contracts Review Act 1980 (NSW)
Credit Act 1984 (NSW)
Minors (Property and Contracts) Act 1970 (NSW)
Contracts Review Act 1980 (NSW)
Trade Practices Act 1974 (Cth); Competition and
Consumer Act 2010 (Cth)
Trade Practices Act 1974 (Cth); Competition and
Consumer Act 2010 (Cth)
Fair Trading Act 1987 (NSW)
Trade Practices Act 1974 (Cth); Competition and
Consumer Act 2010 (Cth)
Fair Trading Act 1987 (NSW)
cannot be resolved after the initial complaint, it
may be necessary to resort to mediation or con-
ciliation. In mediation, a neutral umpire assists an
aggrieved consumer and a supplier/manufacturer
to resolve their dispute in a manner that is agreed
to by both parties. Conciliation, on the other hand,
allows the neutral third party to actively facilitate
communication between the disputing parties,
with a view to resolution.
The Community Justice Centres Act 1983 (NSW)
has enabled the establishment of Community
Justice Centres (CJCs) across the state. CJCs pro-
vide places where mediation and conciliation
can occur. More often than not, the courts have
advised the parties in dispute to use these centres
in the first instance rather than pursuing costly
court procedures.
Benefits to the individual and
society
In addition to an individual consumer who suc-
ceeds in obtaining redress from a supplier or
Co n t e m p o ra r y i s s u es co n ce r n i n g
co n s u m e r s
Issue 1: Credit
Credit is the purchase of goods and services in
advance of future payment. Many individuals in
our consumer-driven society obtain goods and
services via the use of a credit card or loans. In
Figure 10.13 Credit is the purchase of goods
and services in advance of future payment.
manufacturer, society benefits from the R EV I EW 1 0 . 1 1
legal protections in place. The societal 1 Explain the process
benefits of consumer redress include: of alternative dispute
s the promotion of social equality resolution and why it is
– consumers are treated similarly utilised.
regardless of their educational levels 2 Explain what a class
and bargaining power action is and why it
s safety – dangerous products are not might be initiated.
allowed into our markets 3 Analyse and argue for
s ethical conduct – by requiring sup- or against two of the
O p t i o n 1: C o n s u m e rs
pliers and manufacturers to fulfil claims about societal
obligations to consumers, expect- benefits resulting from
ations of responsible behaviour are consumers’ access to
reinforced remedies, considering
s international cooperation – in a glo- potential objections.
balised marketplace, a national com-
mitment to consumer protection may
have consequences for other
countries as well, at least in theory
s greater choice and quality – market
conditions become more consumer-
friendly.
a sense, the 21st century is rapidly becoming a
‘cashless society’ in which credit providers issue
loans almost too readily.
In fact, many consumers live well beyond their
means, and as a consequence, can risk exploitation
by unscrupulous lenders. As a result, they have
trouble meeting their repayments, and cars, house-
hold goods or even homes are repossessed.
In addition, consumers face other credit issues
such as:
s unfair contract terms
s credit providers with inadequate procedures for
handling complaints
s time delays in the handling of complaints by
credit providers
s too many steps involved in the process of
seeking legal redress and hence only the most
sophisticated consumers will persevere.
Cha pter 10: Option 1: Co ns umers 249
 Legal and non-legal
responses
Legal responses
A meeting of the Council of Australian Govern-
ments in 2008 determined that there should be
a transfer of consumer credit regulation powers
from the states and territories to the Common-
wealth via the Trade Practices Amendment
(Australian Consumer Law) Act 2009 (Cth). The Act
includes amendments to the Australian Securities
and Investments Commission Act 2001 (Cth), which
embodies a separate legislative framework for the
regulation of financial services. The resulting stan-
dardisation established a single uniform national
law for the regulation of consumer credit, while
providing both enhanced protection for consumers
and stability for the consumer credit sector. One
of the aims of the Act was to ensure consistency
between generic consumer protections and those
that specifically apply to financial
services.
Substantial benefits arise from
this legislation:
s Consumers and industry benefit
from a robust licensing regime
that excludes unscrupulous and
incompetent credit providers.
s The credit market in Australia has
greater integrity and consumers
can be confident that credit pro-
viders are being monitored by the
government.
s Rigorous entry conditions must
be met before the provision of an
Australian credit licence.
s Credit providers must meet
responsible lending standards
when providing credit or credit
Figure 10.14 The widespread use
assistance.
of credit in contemporary times
has produced a society that is s The credit market benefits from
reliant on both plastic money and an assurance that consumers are
e-commerce technology. well protected.
250 C am b r id g e L e g a l S t u d ie s – HS C
Further provisions were included in the
Australian Consumer Law via a second Bill intro-
duced in 2010. All Australian jurisdictions were
required, in accordance with the National Partner-
ship Agreement to Deliver a Seamless National
Economy, to apply the full Australian Consumer
Law by 1 January 2011.
TH E U NI FO RM C O NSU M E R C REDI T CO D E
(U C C C )
The amendments to the Australian Securities and
Investment Commission Act 2001 (Cth) absorb and
strengthen the national Consumer Credit Code
across Australia. The objectives of the Code are to
provide laws which apply equally to all forms of
consumer lending and to all credit providers, and
which are uniform in all jurisdictions in Australia
The newer code not only guarantees stan-
dardisation; it also presents credit information
in a clear and easy-to-understand format. Credit
providers such as banks, building societies, credit
unions, finance companies and businesses, are
required to:
s inform consumers of their rights and obliga-
tions in any credit arrangement
s truthfully disclose all relevant information about
the credit arrangement via written contract,
including interest rates, fees, commissions and
other information.
Further, credit providers must not to enter into
contractual agreements with consumers who may
find it difficult to make repayments. Moreover,
courts will order changes to, or rescind, contracts
deemed to be unconscionable.
A national uniform consumer credit code has
many advantages:
s Credit obligations and liabilities are transpar-
ent to all parties. Clearly spelt out obligations
improve consumer confidence. Debtors know
their contract is backed by national legislation.
s It allows credit providers more freedom to
organise their fees and charges as long as they
are explicitly disclosed.
s Failure to comply with the Code can lead to
civil penalties up to $500 000 and/or criminal
charges.
s A Consumer Credit Code Business Checklist
provides business owners with a ‘Plain English’
guide to setting out a credit contract.
s Credit agreements between businesses and
consumers must be in the form of a written
contract.
s Credit providers must ensure that the consumer
is given both a Pre-contractual Statement dis-
closing mandatory details about fees and
charges; and an Information Statement explain-
ing the consumer’s rights and obligations.
Non-legal responses
There are a number of useful non-legal avenues
available for consumers experiencing credit con-
cerns. Some examples are:
s NSW Office of Fair Trading – provides free ad-
vice (via phone, in person or online) regarding
the Consumer Credit Code, for example regar-
ding loan repayments, default notices and car
repossession. Visit www.fairtrading.nsw.gov.au
for more information.
s Community Justice Centres (CJCs) – provide
free mediation and conflict management ser-
vices throughout New South Wales to help
people resolve disputes. They are funded by the
NSW Government (Attorney General’s Depart-
ment). Visit www.cjc.nsw.gov.au for more
information.
s Financial Ombudsman Service (FOS) – pro-
vides a free mediation service specifically for
resolving credit disputes between consumers
and financial institutions. It employs inde-
pendent dispute resolution processes and
addresses complaints about financial services
relating to banking, credit, loans, general insur-
ance, life insurance, financial planning, invest-
ments, stock broking, managed funds and
pooled superannuation trusts. Visit www.fos.
org.au for more information.
s Consumer Credit Legal Centre (NSW) – pro-
vides free telephone and financial counselling
advice, particularly for low-income consumers.
The Centre is a community legal centre
specialising in financial services, particularly
matters and policy issues related to consumer
credit and banking. Visit www.cclcnsw.org.au
for more information.
s Redfern Legal Centre (RLC) – offers free legal
advice, referral and case work to disadvantaged
O p t i o n 1: C o n s u m e rs
people and groups in the Botany, Leichhardt
and City of Sydney municipal areas. It is an
independent, non-profit community centre
that provides face-to-face and telephone advice
about credit and debt. Visit www.rlc.org.au for
more information.
All of these resources have the advantage of
being free and thus accessible to all, regardless of
income.
Responsiveness of the legal
system
The uniform laws outlined above are designed to
protect consumers entering credit agreements,
and also regulate credit providers. A national res-
ponse to this issue is appropriate, so that all
Australian consumers are protected from uncon-
scionable credit contracts to the same extent and
with the same consequences for breach. These
include:
s criminal penalties for licensee misconduct,
including possible imprisonment for up to
two years for those who lend contrary to the
responsible lending protocols
s civil penalties for licensee misconduct, with
ASIC empowered to levy fines of up to
$220 000 for an individual and $1.1 million for
a corporation
s infringement notices enabling ASIC to act
quickly to penalise breaches of the law
s remedies such as compensation, which aims to
put aggrieved consumers back in their original
position prior to the financial loss suffered.
Cha pter 10: Option 1: Co ns umers 251
 Conclusion
The UCCC guarantees standardisation of credit
contracts across Australia and ensures that credit
information is presented in a clear and easy-
to-understand format. Further, credit providers
are now required to inform consumers of their
rights and obligations in any credit arrangement,
and to truthfully disclose all relevant information
about the credit arrangement in a written con-
tract incorporating interest rates, fees and
commissions.
In addition to civil remedies for consumers
against credit providers who breach the code, the
state can initiate a criminal prosecution. However,
it remains to be seen how effective this statutory
consumer protection will be when it comes to
the prosecution of powerful multinational
corporations, banks and/or their directors.
R E V IE W 10.12 Finally, while the legislation can be enforced,
1 What is credit and why one may wonder whether the civil and crimi-
is it a major consumer nal penalties will be sufficient to deter some
issue? corporations from licensee misconduct.
2 Outline the major Historically, there appears to have been a
benefits to Australian reluctance by courts to impose criminal sanc-
consumers resulting tions on the board members of corporations,
from uniform national and a reliance instead on fines that hardly
credit laws. put a dent in annual profit figures.
Issue 2: Product
certification
Product certification is the
process of providing docu-
mented assurance that goods
or services have passed perfor-
mance and quality tests before
they are marketed.
In a globalised world, trade
knows no boundaries. Products
made in Australia can be sold
any where on Earth. The same
is true of goods manufactured
in countries that don’t have the
Figure 10.15 A mobile phone same level of quality assurance
displaying the CE product certification as Australia. Consequently,
symbol it is vital that all products
252 C am b r id g e L e g a l S t u d ie s – HS C
meet certain minimum safety and performance
standards before they can be sold to Australian
consumers.
Legal and non-legal
responses
Legal responses
The Australian Competition and Consumer
Commission (ACCC) enforces mandatory product
safety and information standards and bans unsafe
goods under the Trade Practices Act 1974 (Cth). The
NSW Office of Fair Trading, via the Fair Trading
Act 1987 (NSW), also has an important role in
monitoring product safety.
PRO DU C T SA FETY
Under Australian law, product suppliers and manu-
facturers have an obligation to ensure that only
safe products are marketed. This is done by:
s providing clear instructions for use, including
warnings against possible misuse
s being aware of and meeting industry and man-
datory standards
s developing product recall plans and procedures,
including strategies for effective communica-
tion to the public
s incorporating safety into product design
s raising the level of safety standards through
product improvement
s implementing a quality assurance program
which includes consumer feedback
s responding quickly to safety concerns that
arise.
M A NDATO RY PRO DU C T STA NDA RDS
A standard can be made mandatory by either a
statutory regulation or a notice published in the
Commonwealth Gazette. The notice will refer to a
published Australian Standard and may contain
variations to that standard. There is a legal require-
ment that suppliers must refer to both the gazette
notice and its ‘Standards Australia’ benchmark.
There are two types of mandatory product
standards in our country:
s Safety standards – these are legal require-
ments and contain safety, labelling and
design requirements. They are established
when there is a clear risk to consumers, for
example. children’s nightwear and flotation
toys. If these standards are not met, the
product cannot be sold.
s Information standards – prescribed infor-
mation must be given to consumers when
they purchase specified goods, for example
label information as to contents and risks
for cosmetics and tobacco products, and
label information as to care for clothing
and textile products.
P ROD UCT CERT IF IC AT ION
As mentioned above, consumer goods must
pass performance and quality assurance tests
according to an industry code and/or nation-
ally accredited test standards. Essentially, if
a product gains certification, it has complied
with a set of regulations governing quality and
minimum performance standards.
Certification of products indicates their
established suitability for specified pur-
poses. For example, computers and relevant
soft ware may have to be certified as being
compatible with one another prior to market-
ing. Further, the certification process has
varying levels of stringency. The greater
the risk of injury to consumers, the more
demanding the certification process will be for
the manufacturer/supplier.
Once a good is certified, it may be endorsed
with a certification mark or logo. As stated
above, in Australia consumer goods (both dom-
estic and imported) must meet safety bench-
marks prior to sale. Certification or quality
marks are also regarded as powerful market-
ing tools that build consumer confidence.
Some common Australian and internation-
al certification marks include:
s ETL SEMKO (formerly Electrical Testing
Laboratory and now part of Intertek) is
an internationally renowned organisation
specialising in electrical product safety and
benchmark performance testing. It operates
more than 1000 offices and laboratories in
110 countries.
s The CE mark affixed to a product indicates
that it can be legally sold within the European
Union. It means that a manufacturer
has had to prepare a ‘Technical File’ to
Figure 10.16 SEMKO ‘S’
demonstrate a product’s compliance with certification symbol
applicable essential requirements and
obtain a ‘product-specific’ CE marking
O p t i o n 1: C o n s u m e rs
certificate from a body specified by the
European Union.
s British Standards are produced by the
British Standards Institution (BSI). This
non-profit distributing organisation is incor- Figure 10.17 CE
porated under a Royal Charter and is for- certification symbol
mally designated as the National Standards
Body (NSB) for the United Kingdom. Pro-
ducts and services which the BSI certifies
as having met the requirements of specific
standards within designated schemes are
‘awarded’ the above certification mark.
s Japanese Industrial Standards (JIS) speci-
fies the standards used for industrial
activities in Japan. The standardisation Figure 10.18 BSI
process is coordinated by the Japanese certification symbol
Industrial Standards Committee.
s The ‘Five Ticks’ StandardsMark is a well-
known product certification symbol used
both in Australia and internationally. It is
recognised as a symbol of safety and
quality, proving that the product and its
production processes have been assessed
to recognised national or international stan- Figure 10.19 JIS
dards. The StandardsMark is more than a certification symbol
manufacturer’s claim, giving consumers
extra confidence in the safety and perfor-
mance of the product they are purchasing.
It is available only through certification by
SAI Global.
Certification marks on goods provide the
consumer with legal assurance that:
s there is a product certification agreement
between the manufacturer of a product and Figure 10.20
an organisation with national accreditation StandardsMark
for both testing and certification certification symbol
Cha pter 10: Option 1: Co ns umers 253
 s the product was successfully tested against a
nationally accredited standard
s the accredited certification organisation guar-
antees that the item tested is identical to the
one offered for sale
s the successful test has resulted in a ‘certification
listing’, which sets out the conditions of use for
the certified product and its compliance with
the law (de-listing occurs in the case of non-
compliance)
s the manufacturer is regularly audited by the
certification organisation to ensure the main-
tenance of the original quality standard that
was employed in the manufacture of the test
specimen
s if the manufacturer fails an audit, all goods
certified will be immediately removed from
the market with the consumer compensated
accordingly.
A certification listing indicates to the consumer
that:
s the product is manufactured under a certifica-
tion that exists between the manufacturer and
the certification organisation. This means that
the certifier will conduct unannounced factory
audits each year to ensure that the product
being made is still identical to the one that was
tested;
s the manufacturer’s packaging, literature and
promotional information are authorised to use
the certification mark
s listing is a matter of public record and can be
checked for validity.
In Australia, consumers are protected from
unsafe or substandard goods and services by a
number of legal mechanisms:
s The Trade Practices Act 1974 (Cth) – Part V,
Division 1A contains provisions specifically
addressing unsafe products, through mandatory
safety standards and information standards,
banning of unsafe goods, compulsory product
recalls, and warning notices to the public.
This statute is policed by the ACCC, which is
254 C am b r id g e L e g a l S t u d ie s – HS C
responsible for all areas of consumer protection
and safety apart from financial products and
services. It has the power to conduct random
national surveys of retail outlets to detect non-
complying products, to investigate allegations
by consumers and suppliers about non-com-
plying goods, and to investigate goods sold by
direct marketing (internet and television). It can
conduct recalls, obtain court-enforceable under-
takings, and/or initiate prosecutions. It can seek
proof of compliance from the supplier or arrange
for the goods to be tested; for example, bicycle
helmets may be tested for impact resistance.
The ACCC also has an educative function and
provides information and advice to suppliers
and consumers on the requirements of the
mandatory product standards.
s The Australian Securities and Investment Com-
mission Act 2001 (Cth) – This legislation is
enforced by the Australian Securities and
Investment Commission (ASIC). ASIC protects
consumers by ensuring that market partici-
pants act with integrity with regard to contracts
for loans, superannuation and other financial
products and services.
s Various state/territory Fair Trading statutes
whose powers have been absorbed into and/
or ‘mirror’ the Trade Practices Act 1974 (Cth). In
NSW this is the Fair Trading Act 1987 (NSW).
s The Federal Treasury also provides advice to the
government on the consumer law provisions of
the Trade Practices Act in order to promote a
safer market for consumers.
Non-legal responses
Individuals may take action through one of the
independent consumer groups which advocate on
behalf of consumers, lobby Parliament to influ-
ence legislation, and act as consumer ‘watchdogs’
to highlight unsafe products in the Australian
market.
The media can also be a powerful tool for high-
lighting and publicising consumer safety issues.
Responsiveness of the legal
system
Federal and state governments enforce manda-
tory product safety and information standards
via the ACCC and the NSW Office of Fair Trading.
Both organisations play a central role in educating
businesses and consumers about product safety,
and publish publications on safety and standards.
They also conduct ongoing marketplace surveys to
ensure that products continue to meet acceptable
Conclusion
As we have seen, the Australian legal system seeks
to ensure that all products that consumers buy are
safe and meet internationally recognised quality
standards. This is achieved via product certifica-
tion, which demonstrates that a product, process,
or service satisfies specified requirements.
Clearly, without a product certification process
in operation, there would be a very real risk to the
health and safety of Australian consumers, as a

standards. Both organisations can prosecute sup-
pliers who ignore their statutory obligations.
Where problems do occur with a product, both
the ACCC and Office of Fair Trading have powers
to remove unsafe goods from sale. This might
include recalling dangerous products or a public
warning of a particular defect.
c as e s tud y
O p t i o n 1: C o ns u m e rs
consequence of inadequate quality assurance and
safety measures. Despite this, however, Australia
is one of the most open markets in the world. With
thousands of importers across our country, it is
very difficult to ensure that unsafe products will
not enter our market. While we have the requisite
laws in place to protect consumers, we have to

Bindeez beads

‘Bindeez Beads’ (also marketed under the names
Aqua Dots, Beados and Pixos) is the name of a
product that was awarded Australian ‘Toy of the
Year’ in 2007. They are plastic beads designed
to be assembled into pictures and designs
using a water spray device included with the kit.
Bindeez beads were manufactured in China for
the Australian-owned company Moose Enterprise
Pty Ltd, and were distributed in 40 countries
worldwide. 12 million packets, containing more
than 8 billion beads, were sold.
In 2007, the toy was subject to a product
recall in a number of countries around the world,
including Australia, after it was found that the
Wangqi Product Factory in Shenzhen, China had
used a toxic chemical in place of one that is safe.
When swallowed, the substance metabolises to
form Gamma-hydroxybutyrate (GHB), a sedative
and anaesthetic. The connection between the
illness and the beads was discovered by doctors
at The Children’s Hospital at Westmead, Sydney,
after a two-year-old boy and a 10-year-old girl
became seriously ill.
In Australia, replacement beads were available
from March 2008 onwards, once the interim ban
was lifted. The beads are now manufactured
using only approved ingredients, with a bitter-
tasting coating to discourage children from eating
them. The name of the product was also changed
from Bindeez to Beados, in an attempt to sever
the connection in people’s minds between the
hazardous toy and the new toy.
Insert AW 1027
Figure 10.21 Bindeez Beads

Cha pter 10: Option 1: Co ns umers 255

 rely upon consumer watchdogs such as the ACCC,
the media and various industry self-regulatory
bodies to bring unsafe goods to the attention of the
public. Sadly, this sometimes happens only after a
consumer is injured.
R EVIEW 10.13
1 Summarise your understanding of the
notion of product certification. Explain how
it is advantageous to consumers.
2 Briefly outline the major legal responses to
the issue of product safety. How effective
do you think they are?
Issue 3: Marketing
innovations
Marketing is a process by which a business creates
a ‘consumer interest’ in its products. Over time,
the marketing process has become increasingly
more sophisticated – especially with the advent
of e-commerce. Therefore, recent innovations in
Figure 10.22 Phishing scams are becoming
more prevalent in contemporary times.
256 C am b r id g e L e g a l S t u d ie s – HS C
global marketing technologies are of particular
interest to lawmakers.
As soon as a business website becomes oper-
ational, it is marketing to the world. When this
is combined with Australian consumers’ increas-
ing reliance on their credit cards and online
purchasing, consumer protection becomes prob-
lematic. Governments have a vital role to play in
developing appropriate legislative responses that
will facilitate a fair marketplace.
Legal and non-legal responses
L E G A L RE SPO NSES
Marketing innovation can be utilised for bogus
purposes, posing new challenges to Australian law.
For example:
s Many Australian consumers routinely receive
fraudulent overseas offers via the internet.
s Scammers have the ability to obtain e-mail
addresses and contact millions of internet users
very quickly.
s Overseas pyramid selling schemes proliferate.
s Householders receive overseas phone calls
from dubious investment advisors promoting
suspicious share deals.
s ‘Phishing’ attacks are becoming quite common.
This is a form of internet fraud that aims to
steal valuable information such as credit card
numbers, user IDs and passwords. It is often
undertaken through the creation of forged
websites that request consumer information.
Often phishing scams rely on placing links in
e-mail messages, on websites, or in instant
messages that seem to come from a trusted
service such as a bank, credit card company, or
social networking site.
s Spam is also becoming commonplace. Spam
is unsolicited commercial messages, sent via
e-mail, SMS, MMS, instant messaging, or any
other form of electronic communication. The
Spam Act 2003 (Cth) made it a civil offence to
use address-harvesting software to construct
distribution lists of recipients. Despite this, its
use is on the rise by e-marketing companies.

Figure 10.23 Spam is unsolicited commercial messages, sent by e-mail, SMS, MMS, instant
messaging, or any other form of electronic communication.
RE SEA RCH 10.4
Visit the Australian Consumer and Competition
Commission at www.accc.gov.au/content/
index.phtml/itemId/815400
1 Research the difference between phishing,
mishing and vishing.
2 Outline the legal problems they pose for con-
sumer protection bodies such as the ACCC.
3 Discuss how someone who suspects that he
or she has fallen for one of the above scams
might reduce the damage.
As a consequence of these developments, con-
sumer protection agencies such as the ACCC and
the NSW Office of Fair Trading regularly scan the
internet, radio and TV for illegal offers designed to
exploit consumers. They also rely on consumers
reporting deceptive marketing schemes.
O p t i o n 1: C o ns u m e rs
As discussed above, deceptive advertising and
marketing practices are addressed in both the
Trade Practices Act 1974 (Cth) and the Fair Trading
Act 1987 (NSW). Part V of the Trade Practices Act
strictly prohibits such practices. The key provi-
sions that relate to marketing can be summarised
as follows:
s Section 52 outlaws the deliberate misleading or
deception of consumers.
s Section 53 states that it is illegal for suppliers to
make false or misleading representations when
marketing/advertising their goods or services.
s Section 54 makes it illegal for suppliers or
merchants to offer gifts and prizes with the
intention of not providing the advertised gift.
s Section 56 makes it illegal to use bait
advertising.
s Section 57 outlaws referral selling; that is,
offering discounts or benefits to consumers in
Cha pter 10: Option 1: Co ns umers 257
 return for introducing other customers to the
supplier.
s Section 60 makes it illegal to coerce consumers
via aggressive marketing practices.
s Section 65AAC prohibits pyramid selling. It is
illegal to sell the right to ‘distribute’ as opposed
to the actual product.
s Section 63A makes it illegal for suppliers to
send unsolicited credit cards through the mail.
s Section 64 prohibits the act of sending
unsolicited goods to a person and then demand-
ing payment.
N ON -L EGAL R ES PON S ES
There are a number of ‘consumer watchdogs’,
whose objective is identifying fraudulent market-
ing practices and scams. These groups include:
s Choice publishes a magazine for consumers
and reports on a variety of issues including
deceptive marketing practice.
s SCAMwatch is a website operated by the ACCC.
It provides information to consumers and small
businesses regarding the recognition, avoidance
and reporting of scams. For more information
visit www.scamwatch.gov.au.
s The Australian Communications and Media
Authority (ACMA) is a government agency res-
ponsible for the regulation of broadcasting, the
internet, radio communications and telecom-
munications. Consumers can make complaints
to ACMA regarding deceptive marketing and
advertising practice. For more information visit
www.acma.gov.au.
s The print and electronic media who report
on questionable marketing activity to provide
the consumer with a greater awareness of the
nature and prevalence of scams.
Responsiveness of the legal
system
The legal system responds very well to domestic
marketing issues. Australian consumers buying
products in Australia are clearly protected. The
emerging problem, however, relates to market-
258 C am b r id g e L e g a l S t u d ie s – HS C
ing that originates from foreign countries via
the internet.
Advances in electronic marketing allow fraud-
ulent marketers to communicate easily with their
victims and to transfer ill-gotten gains across
borders. The transnational nature of scams makes
it very difficult for Australian authorities to catch
the perpetrators. Further, there are complicated
and problematic questions of jurisdiction and
foreign law.
If marketers in country X use a service provider
in country Y to establish a home page upon which
false claims are made about the safety of their
goods, where does the act of false representation
take place? Millions of consumers globally can
access that page and purchase online. How do
Australian authorities prosecute violations in that
instance? This will be an ongoing challenge for our
domestic law.
Conclusion
There will continue to be consumer protection
issues raised by marketing in the information
society. Domestic law has served us well, but
it may prove to be powerless when it comes to
online purchases from foreign marketers. Australia
doesn’t exist in a vacuum – we are part of a global
marketplace, which employs rapidly changing
technologies. Countries cannot shut down their
borders to keep out an incoming cyber-threat.
Attempts to solve these challenges at the national
or regional levels are simply not sufficient. Cyber-
criminals are not bound to geographical locations,
so laws and technological measures can no longer
be limited to national or regional boundaries.
R EVI EW 1 0 . 1 4
1 Evaluate the effectiveness of the legal
responses to marketing innovation in the
21st century. Predict how the law may
adapt to the use of the new technology.
2 Define the term ‘phishing’ and explain why
it is a problem.
Issue 4: Technology
Technology is the application of scientific know-
ledge to make life easier for humans. To that end,
the use of new technology in the areas of compu-
ting and global communication is constantly
changing the level and complexity of interaction
between consumers and sellers. Technology has
infiltrated all levels of consumer transaction ser-
vices, from the Automated Teller Machine (ATM) to
Electronic Funds Transfer at Point of Sale (EFTPOS)
and electronic home and office banking services.
The problem facing consumer law is that the
various services now available over the internet
operate in a less regulated environment. These
include e-mail, file transfer capability (FTP),
and most significantly, Hyper Text Transaction
Protocol (HTTP), which provides the basis of the
World Wide Web.
The web and telephony have facilitated elec-
tronic services such as:
s internet marketing
s electronic service delivery
s electronic lodgment services for official sub-
missions, e.g. tax returns
s branchless banking from home
s tele-shopping in ‘virtual malls’ anywhere in the
world
s online reservation schemes for entertainment,
travel and accommodation
s online ordering of and payment for goods
s telemarketing via telephone
s interactive voice response (IVR) used by sup-
pliers via answering machine, which provides
automated prompts for simple transactions
s electronic service delivery (ESD) programs
based on customer convenience, e.g. websites
such as that of the ACCC which provide con-
sumer protection advice and service 24 hours a
day, seven days a week.
As global marketing and virtual shopping
become the norm, Australian and international
law will have to work hard to protect consumers
regardless of whether a product is purchased
domestically or internationally.
Legal and non-legal responses
L E G A L RE SPO NSES
The use of technology in the global marketplace
makes it very difficult for Australian law because
it has no international jurisdiction, and legislative
strategies for meeting these challenges are still dev-
eloping. However, some effective legal responses
can be utilised to achieve justice for consumers:
s The assets of a foreign online marketer can be
frozen if the Australian legal system has infor-
O p t i o n 1: C o n s u m e rs
mation about the location of the marketer’s
assets. However, the absence of international
treaties and foreign bank privacy laws may make
it difficult to recover a consumer’s money.
s When an online marketer’s assets are within
Australia and their location is known, a court
can impose an order freezing them for compen-
sation purposes.
s Arrest warrants can be issued in Australia
and if there is an extradition treaty with the
foreign country, individuals in that country who
breach our consumer laws can be extradited to
Australia for trial.
s It is technologically possible for ‘government
monitors’ to seek out and remove fraudulent
telemarketing sites from the internet, although
governments are often reluctant to do this.
s Part 20 of the Telecommunications Act 1997 (Cth)
gives the ACCC the authority to administer the
Rules of Conduct (contained in that Act)
governing dealings with international telecom-
munications operators. While this power has
limitations, its inclusion in the legislation demon-
strates a recognition of the scope of the adap-
tations that the law must continue to make.
Problems associated with the use of technology
are not confined to international transactions.
Consumers making domestic online purchases are
also potential victims of unscrupulous behaviour.
Issues that arise in respect of online transactions,
whether local or across international borders,
include the following:
s There is a need to ensure fair dealings between
suppliers and consumers regarding terms and
Cha pter 10: Option 1: Co ns umers 259
 conditions of the sales contract. Where once
consumers could speak with someone over a
counter to obtain product information, people
are increasingly forced to interact via telephone
and internet. Not all consumers have the requi-
site information technology (IT) skills, and this
could lead to exploitation.
s Computer-generated responses to consumer
complaints (for example using IVR) act as
barriers to self-help strategies.
s The increasing trend towards ‘remote purchas-
ing’ can potentially compromise such things as
product quality, correct installation, adequate
demonstration of operation, provision of advice
and ‘after-sales service’.
s There is a need to ensure that the identity data
gathered about consumers via their online
transactions is protected and people’s privacy
maintained.
s Information gathered about consumers can be
used inappropriately by suppliers for ‘consumer
profiling’, for example collecting consumer pur-
chase data for the marketing of ‘like products’
via telephone, internet or direct mail.
s It is important to ensure that biometric data
collected for consumer identification purposes
(e.g. fingerprints, retina scans, and voice recog-
nition) are not transmitted digitally to other
organisations without the person’s consent.
Under s 155 of the Trade Practices Act 1974 (Cth),
the ACCC is empowered to enforce the prohibitions
contained in that Act, and as noted above, it also
has enforcement powers under Part 20 of the
Telecommunications Act 1997 (Cth). The extension of
trade and commerce into the online environment
poses interesting challenges for the law.
N ON -L EGAL R ES PON S ES
A number of organisations have a role in ensuring
that technology is not misused. These include:
s The Australian Communications and Media
Authority (ACMA) is a statutory authority
within the federal Department of Broadband,
Communications and the Digital Economy. It is
260 C am b r id g e L e g a l S t u d ie s – HS C
responsible for the regulation of broadcasting,
radio and television communications, and the
internet.
s The Australian Direct Marketing Association
(ADMA) is an industry body for direct marketing
companies. It is strongly committed to self-
regulation. With other industry and consumer
representatives, it formulated the ‘eMarketing
Code of Practice’ (registered in 2005) to sup-
plement the Spam Act 2003 (Cth), which
regulates commercial electronic messages
and outlaws spam. This code stipulates how
direct marketers can and can’t use electronic
messages, including e-mail, SMS and other
online and wireless applications, with the aim
of reducing the volume of spam.
s The Internet Industry Association (IIA) is a
similar organisation for internet service pro-
viders. It has developed several codes of
practice, notably the IIA Spam Code of Practice
(registered in 2006), to supplement the Spam
Act 2003 (Cth), explaining its requirements and
how to comply with it.
s The Australian Securities and Investments
Commission (ASIC) has the mission of regulat-
ing and enforcing laws relating to fairness and
honesty in financial services, markets and com-
panies. In this context, it oversees the regu latory
issues posed by developments in electronic
communication. ASIC is also responsible for
approving codes of practice in the financial
services industries. One of these is the Electronic
Funds Transfer Code of Conduct, which applies
to banks and other financial institutions that
offer EFT services to their customers.
Responsiveness of the legal
system
Generally, the Australian legal system affords con-
sumers adequate protection against the misuse of
technology provided that e-marketers are located
within Australian borders. The Trade Practices
Act 1974 (Cth) and Telecommunications Act 1997
(Cth) allow the ACCC to police the consumer law
domestically, with an arsenal of criminal and
civil sanctions at its disposal. However, cross-
border e-marketing raises complex jurisdictional
questions, and the law’s evolution in order to
adapt is ongoing. Future consumer remedies may
be dependent upon the existence of multilateral
international treaties.

Conclusion
As can be seen above, the legal system will always

O p t i o n 1: C o n s u m e rs
trail behind technological innovation. It is clear
that lawmakers will encounter significant prob-
lems into the future as they attempt to ensure that
the use of technology for sales, advertising and
marketing doesn’t weaken consumer protection in
the domestic and global marketplace.
E-commerce and e-marketing will continue to
evolve and new technologies will challenge law
enforcers by creating new opportunities for fraud.
Effective consumer protection will require not
only government enforcement, but also private
self-regulatory initiatives on the part of industry
and the combined efforts of government, busi-
ness, and consumer groups to equip consumers
with the tools to protect themselves.

RE VIE W 10.15
1 Outline the ways in which technology has
affected consumer protection.
2 Evaluate the effectiveness of non-legal
responses to the use of technology in the
advertising of goods and services.

RE SEA RCH 10.5

Learn about the work of Professor Kevin
Warwick from the University of Reading,
England at: www.kevinwarwick.com,
particularly his work on microchip implants.
1 Explain how this technology may affect
consumers in the future.
2 Outline legal concerns that may arise as a Figure 10.24 New technologies will continue to challenge law
consequence of microchipped consumers. enforcers by creating new opportunities for fraud.

Cha pter 10: Option 1: Co ns umers 261

 s The need for consumer protection grew from
the operation of caveat emptor in laissez-faire
economies.
s Contract law attempts to define the
circumstances under which parties who make s Consumer remedies are available through
promises to each other are legally bound. tribunals, courts, self-help, government
s The essential elements of a contract agencies, and industry organisations.
are intention to be legally bound, offer, s The Uniform Consumer Credit Code
acceptance and consideration. standardises credit transactions throughout
C hap ter s umm ar y

s Implied terms can provide protection to Australia.

consumers from unjust contracts.
s The Trade Practices Act 1974 (Cth) to be
renamed the Competition and Consumer
Act 2010 (Cth), and the Fair Trading Act 1987
(NSW) prohibit sellers knowingly deceiving or
misleading consumers.
s Occupational licensing and practising
standards may come from either industry self-
regulation or from state regulation.
C h ap t e r su m m ary tasks
s Product certification guarantees that goods
have passed performance and quality
assurance tests.
s Advances in electronic marketing innovation
have allowed fraudulent marketers to exploit
consumers via internet scams.
s The use of technology in the global
marketplace makes it problematic for
Australian law due to jurisdictional questions.

1 Outline the essential elements of a contract.

2 List three ways a consumer can seek a remedy
for injury or loss suffered as a result of
defective goods.
3 List the major statutory provisions that govern
marketing and advertising.
4 Briefly outline the main avenues available to
consumers seeking redress.
5 Explain why both marketing innovations and
technology pose challenges for consumer
protection law.

262 C am b r id g e L e g a l S t u d ie s – HS C
 1 Merchantable quality has been achieved if
goods:
a are fit for purpose
b fit the description of the manufacturer
c fit the description in the advertisement
d fit the description of the seller
2 Caveat emptor means let the:
a seller beware
b manufacturer beware
c buyer beware
d producer beware
M ul ti p l e c hoi ce qu e s ti o n s
3 Compliance with consumer law is
guaranteed by:
a statutory controls
b the cost of goods and services
c the goodwill of the supplier
d the honesty of the supplier
4 Product certification is the process of:
a ensuring that all goods sold in Australia
have been certified
b certifying that a product has passed
performance and quality assurance tests
c ensuring that all goods are labelled
correctly
d certifying that a product has undergone
government inspection
E xt e nd ed res p on s e q uesti ons
1 How effective is state and federal legislation
in preventing manufacturers from making
false claims about a product?
2 Discuss the types of assistance offered by
the various non-government consumer
organisations. In your answer, consider issues
of access, awareness, resources available to
the organisation, and effectiveness of the
solutions offered.
3 Evaluate the effectiveness of industry self-
regulation in protecting consumers as
compared with government regulation.
4 Discuss the role of competition in the
Australian and global economies. In your
answer, consider the relationship between
a competitive marketplace and consumer
protection.
5 Phishing scams rely on:
a placing links in e-mail messages, on
O p t i o n 1: C o ns u m e rs
websites, or in instant messages that
seem to come from a trusted service such
as a bank, credit card company, or social
networking site
b downloading advertisements that seem to
come from a trusted source such as a shop
or social networking site
c sending instant messages that seem to
come from a trusted service such as a bank,
credit card company, or social networking
site
d inserting links in instant messages that
seem to come from a trusted service such
as a bank, credit card company, or social
networking site
In Section III of the HSC Legal Studies
examination you will be expected to
complete an extended response question
for two different Options you have studied.
There will be a choice of two questions
for each Option. It is expected that your
response will be around 1000 words in
length (approximately eight examination
writing booklet pages). Marking criteria for
extended response questions can be found
at www.cambridge.edu.au/education. Refer
to these criteria when planning and writing
your response.
Cha pter 10: Option 1: Co ns umers 263
 T h e m e s a n d ch a l l e n g e s
The role of consumer law in encouraging
cooperation and resolving conflict
s To ensure that consumers and suppliers
operated on an equal footing, the laissez-
faire approach to the marketplace, along
with the principle of caveat emptor, had to
be modified or superseded by a greater
emphasis on state regulation.
s Contract law ensures that promises made by
consumers, manufacturers and suppliers are
kept.
s To constitute a legally binding contract,
an agreement must have the essential
elements of intention, offer, acceptance and
consideration.
s Self-help remedies can be a means of
achieving redress without costly litigation,
and is more likely to encourage cooperative
communication between the consumer and
the supplier or manufacturer, rather than
conflict.
s Cooling-off periods inserted into contracts
allow consumers to rethink their position and
withdraw without penalty.
s In an economy increasingly dominated by
e-commerce, Australian direct marketers have
established a code of conduct, which results
in less conflict between buyers and sellers.
Despite this, however, the global nature of
the marketplace makes it increasingly difficult
to resolve such conflict.
264 C am b r id g e L e g a l S t u d ie s – HS C
Compliance and non-compliance in
consumer law
s A wide range of federal and state legislation
operates to ensure that buyers and sellers
comply with the law. Sanctions are imposed
on parties who fail to do so.
s Express and implied terms of contracts
guarantee that all goods sold are of
merchantable quality, match their description,
and are fit for purpose.
s Section 52 of the Trade Practices Act 1974
(Cth) made it an offence for a supplier or
manufacturer to deliberately mislead or
deceive a consumer.
s Any action by unscrupulous suppliers is
punishable by law. The statutes seek to
protect vulnerable consumers, especially with
regard to unconscionable contracts.
s Non-statutory mechanisms such as industry
self-regulation and media scrutiny will
continue to have a significant role in ensuring
compliance with consumer law.
Laws relating to consumers as a reflection of
changing values and ethical standards
s The fact that caveat emptor (let the buyer
beware) no longer governs contracts of sale
demonstrates that societal values and ethical
standards have changed.
s Consumer law reflects community awareness
that modern markets are extremely complex
and consumers need to be protected by a raft
of legal regulations.
s The Office of Fair Trading (NSW) and the
ACCC (Commonwealth) are consumer
watchdogs whose activities implicitly promote
ethical standards in all consumer dealings.
s The Australian legal system endeavours to
balance the rights and values of individuals
against those of the community at large.
s Ethical standards are reflected in
occupational licensing schemes, which ensure
that unqualified and unscrupulous individuals
cannot legally provide services to consumers.
The role of law reform in recognising the
rights of consumers
s Consumer laws are constantly undergoing
reform so that consumers are provided with
uniform protection.
s The Trade Practices Act 1974 (Cth) and
the Australian Securities and Investment
Commission Act 2001 (Cth) were both
amended in 2009 to standardise the
regulation of consumer credit across the
entire nation. The Uniform Consumer Credit
Code guarantees that consumers have the
same rights to redress no matter where they
live in Australia.
s The ACCC monitors e-marketing and provides
consumer protection advice and service
delivery 24 hours a day, seven days a week.
Further, it advises the government in areas of
consumer law such as telemarketing.
s The Spam Act 2003 (Cth) outlaws the
sending of unsolicited commercial electronic
messages by e-mail, instant messaging, SMS
and MMS.
The effectiveness of legal and non-legal
responses in achieving justice for consumers
s Two federal acts governing consumer
protection are the Trade Practices Act 1974
(Cth) and the Australian Securities and
Investments Commission Act 2001 (Cth). The
Competition and Consumer Act 2010 (Cth) is
expected to enter into force in January 2011.
At state level, there is the Fair Trading Act
O p t i o n 1: C o ns u m e rs
1987 (NSW) and the Sale of Goods Act 1923
(NSW).
s Occupational licensing protects consumers
by ensuring that only licensed individuals
can provide services. It is a state/territory
responsibility. Self-regulating professional
bodies such as the Australian Medical
Association and the Law Society of NSW
perform much the same role.
s The rise of the global marketplace and
e-commerce will continue to be problematic
as the state seeks to remedy consumer
injustice. As more Australians purchase goods
and services online from foreign suppliers,
the jurisdiction of the above statutes will
be keenly tested, especially with respect to
fraud and the provision of after-sales service,
guarantees and warranties.
s Effective consumer protection requires not
only legislation against fraud and deception,
but also initiatives resulting from the
combined efforts of government, business,
and consumer groups.
© 2010 Copyright Board of Studies NSW for and on behalf of the Crown
in right of the State of New South Wales. HSC Legal Studies Syllabus 2009.
Cha pter 10: Option 1: Co ns umers 265
 CHAPTER 11
Option 2: Global
environmental protection
O pt i o n 2 : Principal focus
Through the use of contemporary examples, students investigate the effectiveness
Global of legal and non-legal processes in promoting and achieving environmental
e n v iro n m e n t a l protection.

pro t ec t i o n
Themes and challenges
25% of course time Themes and challenges to be incorporated throughout this option include:
s the impact of state sovereignty on international cooperation and the resolution
of conflict in regard to environmental protection
s issues of compliance and non-compliance
s the impact of changing values and ethical standards on environmental protection
s the role of law reform in protecting the global environment
s the effectiveness of legal and non-legal responses in protecting the environment.
At the end of Chapter 11, on pages 308–309, you will find a summary of
the themes and challenges relating to global environmental protection. The
summary draws on key points from the text and links them to each of the themes
and challenges. This summary is designed to help you revise for the external
examination.

HSC external examination information

The HSC examination will be a written paper worth a total of 100 marks. The paper
will consist of three sections.
Questions relating to Part III of the syllabus – Options – will appear in Section III
of the examination. There will be seven extended response questions, one for each
Option offered in the syllabus. Students will be required to answer two of these
questions, each relating to a different option they have studied.

Section III: Options 50 marks total (25 of the possible 50 marks per Option)
The question relating to each Option will have two alternatives. The expected
length of response is around 1000 words (approximately eight examination writing
booklet pages).

266 C am b r id g e L e g a l S t u d ie s – HS C
 ch a p te r o b j e cti ve s
In this chapter, students will:
s identify the key legal concepts and terminology that
relate to global environmental protection, especially
the need to protect the global environment
s describe the key features of the relationship between
Australian and international law and understand the
effect of international law on sovereign states
s discuss the effectiveness of the legal system in
addressing global environmental issues
s explain the role of the law in encouraging cooperation
and resolving conflict, as well as its ability to respond
to the dynamic nature of global issues
ke y te r m s
biodiversity enumerated powers
built environment external costs
codification free trade
convention globalisation
customary international law hard law
declaration instrument
ecologically sustainable intergenerational equity
development (ESD) international conference
rel evant l aw
IM PORTAN T L EGIS L AT ION
Environment Protection and Biodiversity Conservation
Act 1999 (Cth)
Environmental Planning and Assessment Act 1979 (NSW)
Protection of the Environment Operations Act 1997
(NSW)
INTERN AT ION AL T R EAT IES AN D P RO TO C O L S
Convention on Wetlands of International Importance
(1971) (‘Ramsar Convention’)
United Nations Convention on International Trade in
Endangered Species of Wild Fauna and Flora (1975)
(‘CITES’)
United Nations Convention on the Law of the Sea
(1982) (‘UNCLOS’)
Convention on the Conservation of Migratory Species
of Wild Animals (1983) (‘CMS’)
Vienna Convention for the Protection of the Ozone
Layer (1985) and Montreal Protocol
o dd l a w
All sovereign states have the right to join international
bodies that have an impact on them in some way. The
International Convention for the Regulation of Whaling
(ICRW), signed in 1946, established the International
Whaling Commission and aims to conserve whale
stocks. In 2002, Mongolia exercised its sovereign
right and became a party to the ICRW. Mongolia is
s describe the interrelationship between the legal
O p t i o n 2: G lo b al env iro nm e ntal p ro te c tio n
system and society in relation to global environmental
issues and the subsequent responses to global
environmental protection
s communicate legal information using well-structured
and logical arguments
s evaluate the effectiveness of legal and non-legal
responses with respect to the global environment
s analyse different perspectives on contemporary issues
concerning global environmental protection.
intragenerational equity pollution
locus standi precautionary principle
multilateral treaty protocol
nation-state ratification
natural environment residual powers
non-government soft law
organisations (NGOs) sovereignty
observer status
United Nations Convention on Biological Diversity
(1993) and Cartagena Protocol on Biosafety
United Nations Framework Convention on Climate
Change (1994) and Kyoto Protocol
SI G NI FI C A NT C A SE S
Australian Conservation Foundation v The
Commonwealth (1980) 28 ALR 257
Murphyores v The Commonwealth (1976) 136 CLR 1
Commonwealth v Tasmania (1983) 158 CLR 1
Trail Smelter Case (United States v Canada) 3 RIAA
1905 (1941)
Certain Phosphate Lands in Nauru (Nauru v Australia)
[1992] ICJ 2 (26 June 1992)
Nuclear Tests (Australia v France) [1974] ICJ 4 (20
December 1974)
Nuclear Tests (New Zealand v France) [1974] ICJ 3 (20
December 1974)
Case Concerning the Gabc̆íkovo–Nagymoros Project
(Hungary/Slovakia) [1997] ICJ 1 (25 September 1997)
landlocked, without any direct ocean access, but has
been a keen supporter of Japan’s ambitions to open
up whaling. In fact, Mongolia has voted with Japan
on every issue relating to whaling, but it strongly
denies any Japanese influence. For an NGO’s view on
this situation go to www.seashepherd.org/news-and-
media/editorial-060626-1.html
Cha pter 11: Option 2: Globa l environmenta l protecti on 267

profit
financial gain; money
remaining after
expenditures have been
subtracted from total
income
external costs
(externalities) the
effects of an activity,
such as the production,
transport and sale of
goods, which affect
persons who are not
directly involved in the
activity and are not paid
for by those who are
involved, such as the
producer
Figure 11.1 In a legal sense, the environment encompasses both the natural and built environments.
268 C am b r id g e L e g a l S t u d ie s – HS C
T h e n a t u r e o f g l oba l
e nv i r o n m e n t a l p r o t ec t io n
The concept and scope of
environmental protection
Since the Industrial Revolution, the environment
has largely been seen as a resource to be exploited.
For generations, capitalists, industrialists and dev-
elopers were able to use the land, the waterways
and the living organisms and non-living materials
in any way they saw fit. Decisions as to the use of
these resources were driven by profit, with little
or no regard for the environmental consequences.
Neither businesses nor governments gave much
thought to the external costs (externalities) of
economic activity.
A person’s entitlement to use his own land
under the common law meant that the effects of
the use to which the land was put only became
an issue after damage had occurred. A party who
suffered harm as a result could bring a tort action
(e.g. nuisance, negligence or trespassing) to seek
compensation. In other words, the law was used
not to prevent environmental damage, but only to
act after the damage was done, and applied only
to individual persons’ welfare and interests. Such
an approach is not compatible with a long-term
view of consequences as they apply to present and
future communities.
Modern efforts to protect the natural environ-
ment were first seen in 1863 in England, when the
first Alkali Act was passed to regulate the emission
into the air of hydrochloric acid, a by-product of
the process for manufacturing alkali (sodium car-
bonate), which was used in manufacturing glass
and other products. The Act set dilution standards
for what was emitted and appointed inspectors to
enforce the law.
Initially, environmental laws were national or
local. It was only in the latter half of the 20th century
that nation-states recognised the need for a coordi-
nated approach. As businesses began to operate on
an international scale, environmental problems also
became globalised. These new issues – for example
acid rain, the hole in the ozone layer, the depletion of
fish stocks, and climate change – could not be
adequately dealt with at a national level. In addition,
the affluence of industrialised nations has been built
on the use and exploitation of the resources as well
as the work force of developing countries. Poverty,
population growth and the accelerated pace of indus-
trial development in Third World countries have all
contributed to the environmental challenges faced.
This chapter will examine the development of
environmental law at the international level and
evaluate its effectiveness.
 O p t i o n 2: G lo b al e nv iro nm e ntal p ro te c tio n
Figure 11.2 The unique ecosystem around the town of 1770, Queensland – one of a number of
tourist destinations where the local community is trying to balance the benefits of development
against potential negative environmental effects.
natural environment
all of the elements

Interests with respect to more holistic view of components, causes and

that surround and
influence life on Earth,
environmental protection effects. The definition of ‘environment’ in s 528 of including atmospheric
the Environment Protection and Biodiversity Conser- conditions, soil,
plants, animals and
Definitions of ‘environment’ vation Act 1999 (Cth) clearly illustrates the evolution micro-organisms, the
How the law defines and perceives the environ- of what constitutes the environment. In addition, water cycle, and the
ment will shape the attitude of legislative and this definition encompasses what decision-makers systems in which these
elements interact
judicial decision-makers towards environmental need to take into account when deciding on matters
built environment
protection at all levels. In a legal sense, the environ- that have environmental implications. all of the buildings,
ment can be considered in terms of the natural The definition of the environment in the Act transport routes and
infrastructure, parks,
environment and/or the built environment. In considers:
and other surroundings
some ways, these two elements of environmental a ecosystems and their constituent parts, inclu- that have been
law represent competing interests. ding people and communities made by people and
constitute the setting
Current legal interpretations of what constitutes b natural and physical resources
for human activities
the environment reflect a gradual change in social c the qualities and characteristics of locations,
holistic
attitudes. This is evident in both Australian and places and areas taking into account
international law. No longer does the law focus on d the heritage values of places all aspects; looking
at the whole system
the rights of landowners, as was the case under e the social, economic and cultural aspects of a rather than just specific
common law. Laws are now designed to take a thing mentioned in paragraph (a), (b) or (c). components

Cha pter 11: Option 2: Globa l environmenta l protecti on 269

 ca s e s p a ce
Australian Conservation Foundation v The Commonwealth (1980) 28 ALR 257

The case concerned a
challenge by the Australian
Conservation Foundation (ACF),
an organisation with the aim of
protecting the environment.
The ACF challenged the
statutory validity of federal
Ministers’ decisions to approve
a development proposal for
a resort and tourist area near
Rockhampton, Queensland. It
sought declarations that the
decisions did not comply with
the requirements of the relevant
Act, which was at that time the
Environment Protection (Impact
of Proposals) Act 1974 (Cth).
The ACF was denied locus
standi because it was held
to lack a ‘special interest’ in
the subject matter. Individual
or special interest in the
subject matter was the test of
standing to seek a declaration
or injunction. The party would
have to be affected to a greater
degree or in a significantly
different way than the public at
large. In other words, a party
must be ‘likely to gain some
advantage, other than the
satisfaction of righting a wrong,
upholding a principle or winning
a contest, if his action succeeds,
or to suffer some disadvantage,
other than a sense of grievance
or a debt for costs, if his action
fails’. Instead, the ACF was held
to have ‘a mere intellectual or
emotional concern’ about the
environment.

locus standi
a Latin term meaning
‘a place for standing’;
also ‘standing’: a
requirement that a
person or group have
a sufficient interest in
the subject matter in
order to be permitted
to bring an action
Standing and interests
Since the decision in ACF v The Commonwealth,
discussed in the Case Space above, a more liberal
approach to standing has been taken by the lower
courts. In Australian Conservation Foundation &
Anor v Minister for Resources & Anor (1989) 76
LGRA 200, in which the ACF challenged a decision
to grant an export licence for woodchips from
state forests, the Federal Court held that the ACF
satisfied the special interest test – it was a national
organisation, established with government finan-
cial support for the specific purpose of environ-
mental protection. Moreover, logging was not a
local concern, but was ‘one of the major environ-
mental issues of the present time’.
At state level, the Environmental Planning and
Assessment Act 1979 (NSW) grants ‘open standing’
to anyone seeking an injunction to remedy or pre-
vent a breach of the Act (s 123). Sections 252 and
253 of the Protection of the Environment Operations
Act 1997 (NSW) similarly grant open standing
where the breach in question involves harm to the
environment. Although there remain restrictions
on standing at federal level, the Environment
Protection and Biodiversity Conservation Act 1999
(Cth) extends standing to persons who have been
involved in conservation activities for the past two
years or more, and to organisations established
with the purpose of protecting the environment
which have been similarly involved for the past
two years or more (ss 475(6) and (7); s 528).
While environmental issues affect everyone,
the role of state, federal and international law in
protecting those interests is not a clear-cut one.
The different perspectives of people, shaped by
their individual values and ethics, ensure that
conflict and heated debates inevitably arise when
discussions turn to prioritising environmental
issues. Citizens from Pacific nations under threat
from rising sea levels, those people suffering from
more extreme weather patterns, loggers losing
their family livelihood due to forest conservation,
people paying increasing energy costs and
indigenous communities losing their traditional
ways of life because of expanding urbanisation
will all have different views on how environmental
issues should be managed.
Global environmental protection requires an
interdisciplinary approach involving science, world
politics, social justice, international diplomacy,

270 C am b r id g e L e g a l S t u d ie s – HS C

economic reforms and changes in national and
international priorities. It will require a global,
coordinated and holistic approach to ensuring that
the planet’s capacity to support its inhabitants can
be maintained indefinitely.
REVIEW 11.1
1 Explain why environmental protection was
not initially a major concern for the law.
2 Define ‘environment’ and distinguish
between two ways it can be understood.
Give examples of conflicts that can arise
between the interests representing these
two categories.
3 Explain why global environmental
protection requires a holistic approach.
4 Explain what is meant by locus standi in a
challenge to the validity of a statute.
5 Justify a broader conception of locus standi
in relation to environmental issues.
T h e deve l op m e n t o f g l oba l
e nv i r o n m e n t a l l aw
Local activism and
domestic legislation
Localised issues generally form the basis for com-
munity reaction and pressure. The phrase ‘Think
globally, act locally’ has been used frequently in
the context of environmental activism; it suggests
the power of grassroots initiatives undertaken
with a view to the health of the whole planet.
This theme is evident in trends such as the use
of fabric bags to replace plastic shopping bags. In
an example of legislation passed in response to
calls for government support of individual com-
mitment and efforts, South Australia was the first
Australian state to ban plastic bags, through its
Plastic Shopping Bags (Waste Avoidance) Act 2008. A
number of municipalities have also imposed their
O p t i o n 2: G lo b al e nv iro nm e ntal p ro te c tio n
Figure 11.3 The customs of many indigenous peoples
around the world have evolved in harmony with the natural
environment. Today, many indigenous cultures are in danger
as a direct result of environmental degradation.
own bans. Another example is state and federal
government rebates for insulation of houses, rain-
water tanks and solar panels.
Any event that has an adverse effect on a per-
son’s day-to-day life can prompt him or her to learn
more about the consequences of environmental
degradation, and to take action. As a result of
growing awareness of environmental issues,
individuals have joined forces to form lobby or
pressure groups to educate others and to push
governments into taking action. A prominent
public issue in the 1970s was pollution. Some of pollution
environmental
the major disasters around the world involving
damage caused by
pollution are shown in the timeline on p. 274. the discharge or
In response to the public concerns, domestic emission of solid,
liquid or gaseous
legislation of industrialised nations in the
materials into the
1970s, including Australia, focused on pollution environment
Cha pter 11: Option 2: Globa l environmenta l protecti on 271

international
conference
a forum held for the
purpose of debate
and agreement among
nation-states
multilateral treaty
an international
agreement involving
three or more parties
convention
another term for
a treaty: that is,
an international
agreement between
parties who are subject
to international law
(i.e. nation-states
but also international
organisations such as
the United Nations and
its bodies)
codification
the spelling out
of obligations in
legislation (domestic
law) or in a treaty
(international law)
customary
international law
a general practice of
law, which is followed
by nation-states
because they view it as
obligatory and legally
binding
272 C am b r id g e L e g a l S t u d ie s – HS C
prevention and control. Much of Australian state
and federal legislation relating to the environment
falls into two general categories:
s Environmental impact assessment – a process
for looking at and evaluating the environmental
effects of proposed activities that are likely
to affect the environment in significant ways.
Most of the procedural requirements for
environmental impact assessment at both state
and federal level are contained in legislation
regulating the use of land (planning laws), e.g.
Environmental Planning and Assessment Act 1979
(NSW), or in legislation regulating protection of
the environment generally, e.g. Environment
Protection and Biodiversity Conservation Act 1999
(Cth), although there is also separate legislation
in Victoria and the Northern Territory.
s Pollution control – legislation setting standards
for the quality of air, water and soil, identifying
activities that can potentially cause pollution,
and restricting these activities, for example by
imposing conditions and/or requiring a permit
or approval before they can be carried out.
International conferences
and treaties
The 1970s and 1980s also saw a number of inter-
national conferences and multilateral treaties
on the environment in response to global threats,
especially highly visible ones such as marine pollu-
tion. For example, the United Nations Convention
on the Law of the Sea was the result of the third UN
Conference on the Law of the Sea (UNCLOS),
which took place from 1973 to 1982. It was a
unique treaty in that it dealt comprehensively with
a wide range of issues regarding the sea, unlike
previous conventions, and was global in its reach.
It was a codification of existing customary
international law, and took the place of four
previous treaties of 1958 governing the rights and
responsibilities of nation-states with respect to the
sea and its resources. Part IV of UNCLOS deals
specifically with environmental protection, which
had not previously been a central element of
international law with respect to the seas.
R ESEAR CH 1 1 . 1
Recent interest in ‘food miles’ has prompted
consumers to try to buy and eat only locally
grown produce, and some restaurants and
shops have responded to these concerns. The
term was coined by Dr Tim Lang, professor
of food policy at London’s City University,
in the 1990s. It measures the distance that
agricultural produce travels between the time
it is harvested and the time it is consumed,
as a way of measuring its impact on the
environment in terms of carbon emissions.
Research the ‘food miles’ movement.
1 Summarise the arguments for and against
the effectiveness of eating only locally
grown food as a means of reducing damage
to the environment.
2 List other factors besides distance travelled
that critics say should be taken into
consideration.
3 Critically analyse possible consequences
if legislation were passed to support the
‘food miles’ movement.
Some articles that could be used as starting
points can be found at:
s www.theage.com.au/news/national/
this-meal-has-travelled-all-over-the-
world/2006/05/06/1146335969069.html
s http://news.nationalgeographic.com/
news/2008/04/080422-green-food.html
s www.theage.com.au/environment/food-
miles-concept-rubbished-20091204-kay0.
html
The UN Conference on the Human Environ-
ment, which was held in 1972 in Stockholm,
Sweden, was the first major conference to address
broadly defined environmental issues. It was
motivated primarily by concern about regional
pollution that crossed national boundaries, parti-
cularly acid rain in northern Europe. Subsequent
conferences following on from Stockholm have
included the 1992 UN Conference on Environ-
ment and Development (UNCED) in Rio de
Janeiro, Brazil (the ‘Rio Conference’) and the

Timeline of major environmental disasters
1952 London smog disaster,
London, England
The unusual cold in London in
the winter of 1952–53 meant that
large numbers of people travelled
by car rather than walking,
and required additional coal
combustion for heating of homes.
The copious emissions of black
soot, sticky particles of tar and
gaseous sulphur dioxide resulted
in the heaviest winter smog
episode in history. The smog killed
approximately 12 000 people,
mainly children, elderly people
and people suffering from chronic
respiratory or cardiac disease.
1976 Seveso disaster, Milan, Italy
An explosion in a chemical plant in
the town of Seveso outside Milan
released a toxic cloud containing
tetrachlorodibenzoparadioxin, a
chemical used in the manufacture
of pesticides and herbicides
and commonly known as dioxin.
Downwind from the factory the
dioxin cloud contaminated a
densely populated area, killing
more than 3000 animals within
a few days and necessitating
the slaughter of 70 000 more to
prevent the chemical from getting
into the food chain. While there
were no human fatalities directly
resulting, more than 200 people
were treated for dioxin poisoning
and various illnesses and increased
incidence of cancers have been
attributed to the disaster.
1984 Bhopal disaster, Bhopal,
India
A gas leak caused the Union
Carbide Company’s pesticide
plant to discharge methyl
icocyanate, exposing half a million
people to the poisonous gas.
Estimates of the death toll vary,
but at least 2000–3800 people
died immediately with another
15 000–20 000 premature deaths
resulting in the subsequent 20
years. Twenty-five years later, the
site was still contaminated, and
the city has an unusually high
incidence of birth defects and
diseases including cancers and
diabetes.
1986 Chernobyl disaster,
Chernobyl, Ukraine
A nuclear reactor exploded at the
Chernobyl Nuclear Power Plant,
killing 31 people immediately.
Over 5000 square kilometres were
evacuated and a radioactive cloud
was detected all across Europe.
Despite high rates of cancers,
mutations and blood diseases in
the years following the accident,
the total death toll and sickness
rates are disputed, because there
have been no comprehensive,
coordinated studies. Hundreds
of thousands of people were
evacuated, and records were lost
after the break-up of the Soviet
Union.
1989 Exxon Valdez oil spill,
Alaska, USA
The Exxon Valdez oil tanker
ran aground in Prince William
Sound, spilling approximately 40
million litres of crude oil, killing
as many as 500 000 seabirds,
and devastating fish and otter
populations in the area.
1993 Braer disaster, Shetland,
Scotland
The oil tanker MV Braer ran
aground on the southern tip of
Shetland and spilled 94 million
litres of crude oil into the North
Sea, killing more than 30 000 birds
and taking a severe toll on marine
mammals and the fishing industry.
Even more serious consequences
Cha pter 11: Option 2: Globa l environmenta l protecti on
O p t i o n 2: G lo b al env iro nm e ntal p ro te c tio n
were averted by severe storms
in Scotland, which dispersed the
oil, as well as the characteristics
of the oil it was carrying, which is
lighter in weight and more easily
biodegradable than other types.
2000 Baia Mare cyanide spill,
Romania
Cyanide solution, used to extract
gold from waste, is carried by pipes
from the mine at Baia Mare to two
storage reservoirs. One of these
burst a wall, releasing 130 million
litres of water contaminated with
cyanide and heavy metals into the
Somes River and subsequently into
the Tisza River. Fish populations
were drastically affected, with all
acquatic life killed on one stretch
of the Tisza.
2005 Jilin chemical plant
explosions, Jilin Province, China
A series of explosions at a
petrochemical refinery resulted in
the release of benzene and other
poisonous chemicals into the
Songhua River. Five people were
dead and 70 injured. The toxic
plume of chemicals in the river
shut down drinking water supplies
for millions of people in China and
Russia for several days.
2008 Kingston Fossil Plant coal fly
ash slurry spill, Tennessee, USA
Over four billion litres of coal fly
ash sludge, a waste by-product
of coal combustion, was spilled
when a holding dam broke. Twelve
homes were completely covered
and 42 others damaged, as well
as roads, a rail line, gas and power
lines and a water main. In addition
to fish killed, mussels and other
food sources for riverine birds and
mammals were contaminated. A
year later, clean-up was still not
completed
273

instrument
a document by which
some legal objective
is achieved; may be
binding (e.g. statutes,
treaties and deeds)
or non-binding (e.g.
guidelines, declarations
and recommendations)
ratification
a nation’s formal
declaration of consent
to be bound by a treaty
and to give it domestic
effect
globalisation
the ongoing
integration of regional
economies, societies
and cultures brought
about by the removal
of restrictions on
international trade,
travel and mass
communication
free trade
trade between
countries that is
subject to few or
no government
restrictions on imports
or exports
274 C am b r id g e L e g a l S t u d ie s – HS C
2002 World Summit on Sustainable Development
in Johannesburg, South Africa (the ‘Johannesburg
Summit’). Later in this chapter, we will look at
these conferences in greater detail, as well as
other conferences which focused on specific
issues, and at the international instruments that
are formulated as a result of a conference (e.g. the
United Nations Framework Convention on Climate
Change (the ‘Climate Change Convention’), which
was one of the three ‘Rio Conventions’ that came
out of the Rio Conference in 1992) and that may
prompt subsequent conferences to discuss their
implementation.
In some countries, a treaty that the nation has
signed and ratified automatically becomes part of
the domestic law of that country, and its citizens
The need for globa l
e nv i r o n m e n t a l p r o t ec t io n
Environmental impact
of consumption and
development
Human activities have global dimensions. Dev-
eloping countries whose economies depend on the
export of primary natural resources (such as metal
ores) or agricultural products (for food, housing
and other uses) have been less likely to regulate the
methods and extent of production. For example, 1
million hectares of forest are cleared per year in
Indonesia – the highest rate of deforestation on the
planet – for illegal logging and to convert the land
for palm oil plantations. Palm oil is found in 40
per cent of the products on supermarket shelves in
Australia and other industrialised countries. The
effects of deforestation include the removal of a
major means by which carbon dioxide buildup
in the atmosphere is minimised, as well as the
addition of even more greenhouse gases when the
trees are burned.
are bound by it. In many other countries, inclu-
ding Australia, a treaty does not have a direct
effect unless and until it is incorporated into
domestic law by the enactment of a statute. There
are many domestic statutes that implement and
reflect Australia’s international treaty obligations.
legal links
A list of Commonwealth Acts
pertaining to the natural and
built environments is available at
www.environment.gov.au/about/
legislation.html
The constant demand for higher living stan-
dards in all countries is another factor in the
inadequacy of government oversight of industry.
Globalisation not only gives markets worldwide
operation, providing consumers with the goods
they desire from other countries, but it also
multiplies the problems associated with the
production of those goods. With the massive and
increasing demand for computers, televisions,
and mobile phones, the United Nations Environ-
ment Programme estimates that 50 million tonnes
of electronic waste containing lead, cadmium,
mercury and other hazardous substances is
discarded each year, and that much of this waste
is being dumped in Asia and Africa.
The reasons for the links between development
and environmental degradation are complex.
Globalisation and free trade have been accom-
panied, in many countries, by policies encouraging
economic growth – that is, increases in a country’s
capacity to produce goods, measured by the
 O p t i o n 2: G lo b al env iro nm e ntal p ro te c tio n
Figure 11.4 Palm oil fruit (left), is used to produce palm oil, which is found in 40 per cent of supermarket products in
Australia. Indonesia has the highest rate of deforestation in the world, clearing 1 million hectares of land per year for palm
oil plantations and causing significant damage to the natural environment.

amount of money spent on all of the goods
produced by that country’s residents. Without
regulation, production of goods is usually highly
energy-intensive, uses enormous amounts of
natural resources, and produces vast quantities
of waste.
A globalised economy also has indirect effects.
For example, countries with less oversight of
environmental and safety standards enjoy a
competitive advantage over countries with more
regulation. A country with lower standards can
produce the same item at a cheaper cost, giving
companies an incentive to relocate their factories
to those countries.
Businesses’ reluctance to accept measures
designed to mitigate negative effects of industry
on the environment, and in turn governments’
reluctance to introduce those measures, can
therefore be traced to economic growth pressures.
In the public arena, they have found powerful
allies in climate change sceptics who have pitted
themselves against the environmental movement,
arguing that the science is by no means settled.
Along with markets and economies in the
21st century, detrimental environmental effects
are also global. Pollution, global warming, and
ecological catastrophes causing massive damage
to an ecosystem or the broader environment are
not confined by national boundaries. However,
globalisation has not extended to worldwide
political integration. Hence, there is a need for
international environmental law.
Challenges for international law include the
rapidity of technological changes, as well as the
difficulty of integrating and reconciling environ-
mental protection with measures that could
hinder economic growth. Both international and
domestic law need to be dynamic and to some
extent holistic, in order to take account of political
changes and new issues in human rights. For
example, the Intergovernmental Panel on Climate
Change has estimated that by 2050 there could

Cha pter 11: Option 2: Globa l environmenta l protecti on 275


ecological footprint
a measure of
human demand on
Earth’s ecosystems,
comparing human
demand with the
planet’s ecological
capacity to regener-
ate; a person’s impact
on the planet as a
result of his or her
lifestyle
276 C am b r id g e L e g a l S t u d ie s – HS C
be 150 million environmental refugees – that
is, people forced to relocate because of environ-
mental disasters – yet there is no recognition for
such people under the 1951 UN Convention Relating
to the Status of Refugees of 1951, as they are not
‘fleeing persecution’.
R EVIEW 11.2
1 Explain the way in which international
treaties are binding, and what parties
they bind?
2 List the benefits and drawbacks of
industrial development and economic
growth. Discuss.
3 Explain how globalisation contributes to
environmental degradation.
Give examples.
R ESEARCH 11.2
To investigate the need for global
environmental protection students can:
1 Research the ecological footprint model
on the internet (www.footprintnetwork.
org/en/index.php/GFN/page/personal_
footprint/). Calculate your own footprint
and work out how many planets are
needed if everyone on Earth lived a
lifestyle like yours.
2 Download the ‘Story of Stuff’ (www.
storyofstuff.com/) by Annie Leonard and
describe the impacts of our consumer
society on the environment. What does
Annie Leonard suggest as a way to a
better future?
l e ga l l i nk s
For insight into the scientific
aspects of many global
environmental problems go to
www.enviroliteracy.org
Interdependence and
cooperation
Nations must cooperate if there is to be a com-
prehensive response to the need for global environ-
mental protection. While the environmental issues
faced by different geographic and cultural commu-
nities are complex and individual, global environ-
mental problems are sweeping and just as grave.
The situation concerning the overexploitation
of the world’s fishing stocks illustrates this. By
the early 1990s, thirteen of the world’s seventeen
global fisheries were in serious decline. This
represents a threat not only to the maintenance
of a valuable food source and the livelihood of the
fishing industry and those who depend on it, but to
the network of ocean ecosystems. A decision by a
group of countries to limit fishing in a certain fish
breeding ground would have a negligible effect if
even one country continued to exploit that area.
At the 2002 Earth Summit in Johannesburg, 189
countries committed to creating a series of pro-
tected marine areas by 2012, and to restrict fishing
until stocks had recovered. The purpose of the
protected areas was to provide nurseries for species
such as cod, herring and tuna, and a deadline of
2015 was set for the restoration of fish species.
However, by 2010, it was clear that the objectives
had not been accomplished: many species includ-
ing several types of shark and the bluefin tuna were
experiencing critically low numbers.
Another international agreement, a meeting
of the Convention on the Conservation of Migratory
Species of Wild Animals (CMS) in February 2010,
resulted in 113 countries agreeing to the inclu-
sion of seven species of migratory shark on a
‘threatened’ list, and prohibition of their fishing.
Another means of halting the commercial trade in
certain fish is to have them listed as endangered
under the UN Convention on International Trade
in Endangered Species of Wild Fauna and Flora
(1975) (CITES). It may be the case that measures
such as ‘plans of implementation’ need to be
supplemented by additional agreements, and with
binding, enforceable prohibitions.

The impor t a nce of ecologic a l ly
s u s t a i n a b l e deve l op m e n t
Origins
In 1983 the United Nations asked a commission to
study the consequences of environmental degra-
dation on economic and social development.
Chaired by the then Prime Minister of Norway,
(Mrs) Gro Harlem Brundtland, the World Commis-
sion on Environment and Development (WCED)
produced an influential report in 1987 titled Our
Common Future, also known as the Brundtland
Report. The commission was concerned with eco-
nomic and social equity – how resources could be
afforded to poorer nations and those nations’
economic growth encouraged – while tackling the
problems of environmental degradation and
resource depletion that accompany development.
It concluded that both of these urgent goals can be
met, but to achieve ecologically sustainable
development (ESD), both individuals’ lifestyles
and governments’ policies regarding humans’
environmental impact will have to change.
The Brundtland Report defines sustainable dev-
elopment as ‘development that meets the needs
of the present without compromising the ability
of future generations to meet their own needs’. It
aims to meet the needs of society today, including
the alleviation of poverty, while managing natural
resources, energy and waste in ways that can
continue into the future without destroying the
environment or endangering human health.
Subsequent to the Brundtland Report, the 1992
Rio Conference generated five separate agree-
ments, which further elaborate on the principles
of ESD and commit the parties to taking steps to
achieve it. These are:
s the Rio Declaration – 27 principles to guide
nation-states in environmental behaviour
s Agenda 21 – a ‘work plan’ setting out actions that
can be taken at local, national and international
level to achieve ESD
O p t i o n 2: G lo b al env iro nm e ntal p ro te c tio n
s the United Nations Framework Convention on
Climate Change
s the United Nations Convention on Biological
Diversity
s the Principles of Forest Management.
Central principles of ESD
Four central principles of ESD are found in the
agreements produced by the Rio Conference.
Although they are not listed as ‘four central
principles’ in a single document, they have been
embraced by many groups seeking to promote
the goals of ESD. Bodies that have elaborated and
built on them include the Government of Australia
(Commonwealth Department of the Environment, ecologically
Water, Heritage and the Arts); state governments; sustainable
development (ESD)
local councils; and organisations such as state and
development which
territory Environmental Defender’s Offices. Each aims to meet the
of these components of ESD is set out below. needs of society today,
while maintaining and
conserving ecological
Biodiversity processes for the
Biological diversity, or ‘biodiversity’, is the vari- benefit of future
generations
ation of life forms within an ecosystem, a biome,
biodiversity
or the planet. (An ecosystem is the set of relation- variation of life forms
ships among the plants, animals, micro-organisms on Earth; the complete
and habitats in a small area, and a biome is a range of types that
is possible within an
regional, much larger group of ecosystems in a ecosystem, biome or
wide geographic area.) There are different types species
of biodiversity as well: diversity among species,
diversity of habitats on Earth (e.g. deserts, forests,
wetlands, rivers), and genetic differences within
each species (e.g. different breeds of cattle or
wheat).
Biodiversity is important for many reasons.
Diverse ecosystems are more productive: a sig-
nificant issue for agriculture. They can better
withstand and recover from disasters. Diverse
ecosystems, species, and habitats are more
Cha pter 11: Option 2: Globa l environmenta l protecti on 277
 intergenerational
equity
fair and just behaviour of
one generation towards
subsequent generations;
in terms of environmental
issues, a concept that
centres on preserving
Earth’s resources for
future generations
intragenerational
equity
fair and just treatment of
people and groups within
a generation; in terms
of environmental issues,
a concept that focuses
on fair management and
use of Earth’s resources
between different groups
of the same generation
precautionary principle
the principle stating that
if an action or policy may
cause serious harm to
people or to the envi-
ronment, the best course
of action is to halt or
modify that activity, even
when there is no certain
proof of the probability
of the risk or the
seriousness of the harm
sustainable over the long term, and species’ inter-
dependence within an ecosystem contributes to
the health of both the ecosystem itself and that
of the life forms within it. A variety of genes in a
population is important to health, for example in
decreasing the incidence of harmful mutations.
The UN Convention on Biological Diversity sets
out three main goals – the conservation of bio-
logical diversity, the sustainable use of resources,
and the fair and equitable sharing of the benefits
from the use of genetic resources – and commits
the parties to maintaining biological diversity.
Intergenerational equity
Intergenerational equity, or ‘Equity between
generations’, is the idea that ecosystems and the
environment in general should not be passed on
in any worse condition from one generation to the
next. Principle 3 of the Rio Declaration refers to
development that meets the needs of both present
and future generations, reflecting the idea that
the decision-makers at a particular time – as well
as the individual consumers and citizens at that
time – have a responsibility to those who will be
living in the future.
Intragenerational equity
Intragenerational equity, in contrast to inter-
generational, refers to fair and just treatment of
groups of people within a generation. It is accom-
plished through policies that endeavour to raise
the standard of living of disadvantaged peoples
and nations, and ensure that the management
and use of environment does not exploit them.
Principle 5 of the Rio Declaration enjoins states
and individuals to cooperate in eradicating
poverty, as a necessary condition of sustainable
development, and Principle 8 articulates their
duty to reduce and eliminate wasteful patterns of
production and consumption.
Principle 6 states that international actions
involving development and the environment
should address the interests and needs of all
countries, and refers to the special situation
and needs of developing countries. Principle 22
deals specifically with indigenous peoples and
communities, whose cultural knowledge and
traditional practices give them an important role
in sustainable environmental management. States
are to recognise and support their participation in
ESD, and their unique contributions.

The precautionary principle

Principle 15 of the Rio Declaration states that
ECONOMIC
– growth ‘where there are threats of serious or irreversible
– efficiency damage [to the environment], lack of full scientific
– stability
certainty shall not be used as a reason for post-
poning ... measures to prevent environmental
HO TY

sV INC

degradation’. In other words, when an activity

S
ELI QUI
OD

ALU IDE
s
LIV LE

raises the risk of serious harm, but there is un-

ATI NTS
DS NA

ON OF
EE TIO

IN IM

certainty about how likely the risk and how serious

CN RA
ASI ENE

TER PA

Poverty
NA CT

the harm, a cautious approach is the best way to

sB TRAG

Equity
LISA S
N

Sustainability
TIO
sI

avoid that harm. This entails taking steps to halt or

N

Climate change
modify the activity, even though the decision-
maker does not and may never know whether it
sINTERGENERATIONALEQUITY
sVALUESCULTURE
was necessary to stop or change the activity. The
SOCIAL ENVIRONMENTAL
precautionary principle arose as a response to
– empowerment – resilience/biodiversity
– inclusion/consultation – natural resources effects on the environment and human health
– institutions/governance – pollution caused by rapid industrial growth after the Second
World War, and the lack of strong environmental
Figure 11.5 Ecologically sustainable development triangle legislation.

278 C am b r id g e L e g a l S t u d ie s – HS C
 O p t i o n 2: G lo b al env iro nm e ntal p ro te c tio n
ESD in domestic law the Act under which the licence was granted did not
explicitly refer to the precautionary principle, the
As mentioned above, the principles of ESD
court held that the principle applied ‘as a matter of
are well established in the domestic and inter-
common sense’ and was one of the factors that the
national arena. Numerous countries, including
Act permitted the court to take into account.
Australia, have incorporated it in their domestic
legislation. The importance of ESD at a national
level in Australia is probably best exemplified
by the introduction of the ‘National Strategy for
ESD: Conclusion
Ecologically Sustainable Development’ which was At the international level, ecologically sustainable
adopted by all levels of government in 1992 (see development is referred to in numerous treaties.
www.environment.gov.au/esd/national/nsesd/ The United Nations has declared a Decade of
index.html). It is important to note that none of Education for Sustainable Development (2005–
these principles is to be followed in isolation; as 2014). As the lead agency for this program, the UN
components of ESD, they are a package. Educational, Scientific and Cultural Organization
Examples of references in domestic legislation (UNESCO) develops and disseminates materials on
include s 136(2)(a) of the Environment Protection ESD that can be used by educators, professionals
and Biodiversity Conservation Act 1999 (Cth), which and organisations. ESD is also a primary consid-
states that the relevant Minister must consider the eration of the United Nations Environment
principles of ecologically sustainable development Programme (UNEP).
before deciding whether to approve a project, The development and application of ESD cor-
development, undertaking or activity, or a change responds with an evolution in society’s values. In
to any of these things. Section 391(1) requires particular, the precautionary principle is indicative
the Minister to take account of the precautionary of a new consideration of the potential conse-
principle when making such a decision, and defines quences of proposed activities,
the precautionary principle in nearly identical apart from financial benefits.
terms to Principle 15 of the Rio Declaration. Recognition of the impor tance R EV I EW 1 1 . 3
Various state laws include the principles of ESD, of biodiversity reflects a recog- 1 Explain why ESD is essential
such as the Fisheries Management Act 1994 (NSW) nition of the interrelationships to global environmental
and the Local Government Act 1993 (NSW). As a between humans, other life protection.
consequence, numerous Land and Environment forms and ecosystems. Seeking 2 Summarise the four central
Court decisions in New South Wales have either intragenerational equity with principles of ESD in your
directly or indirectly referred to the principles. For regard to living standards own words.
example, in Greenpeace v Redbank Power Co. (1995) entails consideration of distri- 3 Construct real or
86 LGERA 143, the court used the formulation of bution issues (including the hypothetical examples of
the precautionary principle contained in the Inter- provision of goods and services the application of each of
governmental Agreement on the Environment as well as a healthy environ- the principles of ESD.
(entered into in 1992 by the federal government ment) across commu nities, 4 Explain how the
and all state and territory governments of Australia indigenous peoples and nations precautionary principle
as part of the National Strategy for ESD) in its of the world. Addressing inter- is applied under the
consideration of a development application for a generational equity illustrates a Environment Protection and
power plant. In Leatch v National Parks and Wildlife shift from short-term thinking Biodiversity Conservation
Service (1993) 81 LGERA 270, the precautionary to formu lating policies and laws Act 1999 (Cth).
principle was applied. As a result, a licence granted regarding global environmental 5 Outline how the
to ‘take or kill’ endangered animals in the course of protection based on the well- development of ESD
a road development project was reversed. Although being of future generations. reflects changing values.

Cha pter 11: Option 2: Globa l environmenta l protecti on 279

 Responses to globa l
e nv i r o n m e n t a l p r o t ec t io n
The role of the state and been equated with innovation, economic growth

state sovereignty and corporate profitability. Australia’s initial

refusal to ratify the Kyoto Protocol on greenhouse
The terms ‘country’, ‘state’ (not a state of Australia) gas emissions and Japan’s refusal to stop whaling
and ‘nation’ are often used interchangeably. They pursued for ‘scientific purposes’ are illustrations of
all refer to a state, which has a defined border and national sovereignty in action.
state population, is politically recognised and is able to Some have argued that environmental health is
a country that acts as enter into international arrangements as a discrete crucial to long-term well-being or that economic
a sovereign political
entity with defined
entity. prosperity without it is ephemeral. In other words,
national borders National sovereignty is the implicit recognition there are many reasons why international environ-
and is able to enter under international law that a nation has authority
into international mental protection is essential, apart from consid-
arrangements as a over its citizens and territory, and can govern as it erations of equity and fairness. As Klaus Toepfer,
discrete entity (also sees fit. The tension between a consistent global then executive director of the United Nations
known as nation-state)
approach to environmental protection and national Environment Programme (UNEP), stated in his
sovereignty
sovereignty is apparent. At times what is best for address to the Johannesburg Summit in 2002:
the right of a nation
to control its territory the environment is not considered the best option
and peoples without for a country. Generally, nations will consent Our world is characterised by divided and dys-
external interference functional cities, dwindling water supplies and
to behave in a particular way if it is in their best
interests to do so, and ‘best interests’ have often potential conflict over scarce resources and the
accelerating loss of the environmental capital that
underpins life on Earth. We suffer from problems
of planetary dimensions. They require global
cas e s p ac e

Bradley v The Commonwealth (1973) 128 CLR 557 responses. Investing in sustainable development
will be investing in the future security of us all.
Starting in 1965, the United Nations Security Council
It is the implementation of various international
had passed resolutions condemning Rhodesia,
agreements and how vigorously they are acted
whose white minority party the Rhodesian Front
upon which will determine their effectiveness in
had declared independence from Britain and
providing global environmental protection. Every
formed a government opposed to majority rule,
sovereign state has the right to modify or even
complete with apartheid policies. Sanctions were
reject international law even if it is a signatory to
imposed. Member states, under the terms of the
the treaty in question.
sanctions, were not to trade with Rhodesia. In
As stated earlier, in Australia treaties and
Sydney, the Postmaster General issued a direction
conventions are not part of domestic law until
that all communication services with Rhodesia be
they have been incorporated or enacted into law
withdrawn, in particular to the ‘Rhodesia Information
by domestic legislation. Nor are international
Centre’, which purported to be an official body of
resolutions, declarations or directives sufficient to
the Government of Rhodesia. Although Australia did
authorise the actions of Commonwealth agents or
not recognise the Rhodesian regime as legitimate,
bodies. The following cases provide authority for
the High Court held that the Postmaster General’s
this notion.
direction was ultra vires (beyond executive power),
State sovereignty therefore enables nations to
as it was unauthorised by domestic legislation.
carry out the positive implementation of inter-

280 C am b r id g e L e g a l S t u d ie s – HS C

national agreements, but also to impede them if
they so choose.
RES E A RC H 11.3
For an interesting perspective on nation-
states, go to www.nationstates.net
Create your ‘own’ nation-state and
investigate the way it operates in a simulated
world.
The role of the
United Nations
The United Nations was established in 1945 with
international peace and security as its main objec-
tive, along with the aims of developing friendly
relations among nations, promoting human rights,
and facilitating social and economic progress.
Over time, however, its aims and functions have
evolved to keep pace with changing global con-
ditions. In its early years, global environmental
protection was of little significance, but now it is
one of the dominant aspects of UN affairs.
The United Nations has five principal organs or
bodies:
s General Assembly – the main organ, composed
of representatives of all 192 member states
s Security Council – the organ with responsibility
for international peace and security
s Secretariat – the body that handles the day-to-
day work of the UN, carrying out tasks in all
areas dalt with by the UN
s Economic and Social Council – the body that
coordinates this large area of work undertaken
by the UN and its specialised agencies
s International Court of Justice (ICJ) – the judicial
organ, which settles disputes between nation-
states and provides advisory opinions to the UN
and its agencies.
The United Nations organisation is much larger,
however, encompassing 15 specialised agencies
and related bodies, secretariats of conventions
(e.g. the UN Framework Convention on Climate
Change and the UN Convention to Combat Deserti-
fication), and many programmes and funds. The
O p t i o n 2: G lo b al e nv iro nm e ntal p ro te c tio n
ca s e s p a ce
Simsek v Macphee (1982)148 CLR 636
Simsek, a Turkish national, sought refugee
status under the United Nations Convention
Relating to the Status of Refugees (1951) and the
associated Protocol of 1967. The High Court held,
in accordance with Chow Hung Ching v R (1948)
77 CLR 449 and Bradley v The Commonwealth
(1973) 128 CLR 557, that unless the Australian
Parliament has incorporated an international
treaty into domestic law, it has no legal effect
upon the rights (or duties) of individuals, whether
citizens or aliens.
programmes and funds are subsidiary bodies of
the General Assembly. The specialised agencies
are linked to the UN by agreements; they report
to the Economic and Social Council and/or the
General Assembly. The related bodies (e.g. the
International Atomic Energy Agency and the World Figure 11.6
Trade Organization) address particular areas and Emblem of the
United Nations
have their own governing bodies and budgets.
Several programmes and specialised agencies
have been established by the UN to deal with
environmental issues. The main ones are discussed
below. Additionally, many UN bodies have other
primary tasks but nonetheless include environ-
mental protection and sustainable development as
objectives in the course of their activities. Some of
these are:
s Food and Agriculture Organization of the UN
– a specialised agency whose aim is defeating
hunger and achieving sustainable agricultural
development through responsible management
of natural resources. Current focus areas include
the use of plant material for fuel (‘bioenergy’)
and the specific challenges that climate change
poses to agriculture, fishing and forestry.
s United Nations Development Programme
(UNDP) – established by the General Assembly,
this programme helps developing countries to
obtain and use aid effectively in efforts towards
Cha pter 11: Option 2: Globa l environmenta l protecti on 281
 democratic governance, poverty reduction and
sustainable development.
s International Maritime Organization – this
autonomous specialised agency works through
the coordination of the Economic and Social
Council. It develops international standards to
regulate shipping, especially safety standards,
and is also concerned with the prevention and
control of marine pollution from ships.
REVIEW 11.4
1 Define national sovereignty and explain
how it operates alongside international law.
2 Describe the relationship between inter-
national laws and Australian domestic laws.
3 Describe the types of bodies within the
United Nations’ organisational structure.
United Nations Environment
Programme (UNEP)
The UN General Assembly established UNEP in
1972, following the UN Conference on the Human
Environment (‘Stockholm Conference’). It is a
‘programme’ (i.e. a subsidiary body of the General
Assembly), and its stated aim is:
to provide leadership and encourage partnership
in caring for the environment by inspiring, infor-
ming, and enabling nations and peoples to improve
their quality of life without compromising that of
future generations.
Its work encompasses:
s assessing global, regional and national environ-
mental conditions and trends
s developing international and national instru-
ments and guidelines
s acting as an advocate and educator, both with-
in the UN and with international organisations,
national governments, non-governmental
organisations, private corporations and society
at large, on behalf of the environment
s assisting the transfer of knowledge and tech-
nology for sustainable development
s hosting several environmental convention sec-
retariats, including CITES, the Convention on
282 C am b r id g e L e g a l S t u d ie s – HS C
Biological Diversity (the ‘Biodiversity Conven-
tion’), and the Convention on Migratory Species.
Some of its areas of priority are: environmental
aspects of disasters and wars; management of
ecosystems; harmful substances; resource effi-
ciency; and climate change. In 1988, UNEP and
the World Meterological Organization (a special-
ised agency of the UN) established the Intergovern-
mental Panel on Climate Change (IPCC), the
primary international source of scientific infor-
mation about climate change.
Since the 1992 Rio Conference and the new
focus on ESD, the scope of UNEP’s activities have
expanded.
R ESEAR CH 1 1 . 4
Investigate the role of UNEP and Australia’s
involvement in UNEP at www.environment.
gov.au/about/international/unep/index.html
Intergovernmental Panel on
Climate Change (IPCC)
As an ‘intergovernmental’ body, the IPCC is open
to all member states of the UN and of the World
Maritime Organization. Member states participate
in the government review stage of the process of
preparing reports and assessments, and in the
sessions where decisions about the work of the
Panel are made and reports are accepted, adopted
and approved.
The work of the IPCC involves reviewing and
assessing the most recent scientific information
from around the world relating to climate change.
It does not itself conduct scientific research.
Reviews are conducted by scientists from
every part of the world, working on a voluntary
basis. The IPCC strives for a complete survey
and assessment of current information, and its
reports reflect different viewpoints within the
scientific community. While it seeks to provide
rigorous scientific information to governments for
the purpose of formulating policy, the IPCC does
not itself prescribe policy. It has published four
authoritative Assessment Reports, with a fifth due
in 2014.
 O p t i o n 2: G lo b al e nv iro nm e ntal p ro te c tio n
ca s e s tu d y
Scientific procedure and the media

In November 2009, the IPCC was
rocked by emerging news that
e-mail messages stolen from the
University of East Anglia, UK
and published on the internet
undermined evidence of human-
induced climate change. The
e-mail expressed doubts about
whether global warming was
taking place and suggested
ways of presenting data to make
it more convincing, including
keeping dissenting papers
out of the IPCC’s 2007 Fourth
Assessment Report. Some of the
e-mail was written as long ago
as 1996.
Two months later, the
world learned that a highly
questionable claim by a
leading glaciologist that all
of the glaciers in the central
and eastern Himalayas could
disappear by 2035 had made its
way into the 2007 report. The
scientist, Syed Hasnain, said in
January 2010 that the comment
was ‘speculative’, and he has
never repeated the prediction
in a peer-reviewed journal.
The statement was made in an
interview conducted by New
Scientist magazine in 1999. The
IPCC expressed regret that
‘the clear and well-established
standards of evidence, required
by the IPCC procedures, were
not applied properly’. However,
the vice-chair of the IPCC,
Jean-Pascal van Ypersele, said
the mistake did nothing to
undermine the large body of
evidence of global warming
caused by humans.
Climate change sceptics
– a minority in the scientific
community – have alleged that
climate scientists engaged in
collusion and concealment, on
the basis of the e-mail, and in
sloppy research, on the basis
of the glacier claim. Other
scientists say the e-mail is
unlikely to affect the body of
knowledge, as the data from
the university are very similar to
two other data sets. However,
the procedures for scrutiny
and publication of data are
now themselves likely to be
subjected to increased critical
scrutiny. It should be noted that
views about climate change
within the wider, non-scientific
community are frequently
influenced by stories in the
mainstream media – often highly
coloured by the political views
of those interviewed, or those
producing the news stories, or
both.

United Nations Educational,

le g al li nk s

Scientific and Cultural For an overview of the role of

Organisation (UNESCO) UNESCO visit its home page at

UNESCO, a specialised agency of the UN, was www.unesco.org/new/en/unesco/

founded in 1945. Its primary function is to promote about-us/

international dialogue and cooperation in the

fields of science, communication, education and
culture. Its two highest priorities are Africa and
gender equality, but it also focuses on promoting R EVI EW 1 1 . 5
sustainable development and biodiversity along 1 Describe the functions of UNEP and
with overcoming poverty and preserving cultural UNESCO.
heritage. Its Natural Sciences Sector has a 2 Explain the origin of the IPCC and
particularly direct role in fostering ESD. describe its functions.

Cha pter 11: Option 2: Globa l environmenta l protecti on 283

 ca s e s tu d y
UNESCO’s work in preserving heritage

Human heritage is a part of our UNESCO was instrumental the World Cultural and Natural
environment that needs pro- in the development of a set of Heritage (1972). This convention
tection. Sustainable management conventions for the protection of led to the establishment of
programs are needed not only humanity’s shared heritage. The the World Heritage List, which
for natural resources, but also for first of these was the Convention as of June 2009 included 890
cultural heritage sites. There are Concerning the Protection of outstanding sites.
hundreds of these around the
world that UNESCO and other
IGOs and NGOs aim to preserve.
Palmyra in eastern Syria is one
example: its remarkable history
and potential as a major future
tourist destination has prompted
UNESCO, in conjunction with the
European Union and the Syrian
Government, to implement a
sustainable management plan for
its preservation for future
generations. Figure 11.7 Palmyra, Syria – a UNESCO World Heritage Site

International instruments Soft law

Non-binding norms include resolutions and dec-
International instruments are documents setting larations of the UN General Assembly, as well as
out commitments or obligations of nation-states statements, principles, codes of conduct, codes of
and sometimes of other parties such as inter- practice, action plans such as Agenda 21, and other

soft law national organisations. They can generally be obligations that are not contained in a treaty. Soft
any international classified into two categories: soft law and hard law instruments usually identify a problem and set
instrument, other than
law. Hard law instruments are those that have out in general terms how the problem will be dealt
a treaty, that contains
principles, standards legally binding consequences. By contrast, while with, but do not include specific commitments.
or other statements of instruments in the category of soft law impose They have the potential to become hard law in
expected behaviour
moral obligations on nation-states, parties that the future, if their provisions are later codified in
but does not have
legal consequences do not comply are not subject to enforcement a treaty. Soft law also may have an influence on
for non-compliance penalties through international law. Table 11.1 the practice of states, and thus become customary
(e.g. declarations and
resolutions of the UN
shows a range of key hard law and soft law in the international law (that is, norms followed by states
General Assembly) area of environmental protection. Each instrument because they believe them to be legally binding).
hard law has a different focus, but fundamentally, like all A framework treaty is a multilateral treaty
international laws that international law, its role is to stipulate a body of whose provisions are not directly applicable to
are legally binding
(e.g. treaties and rules and principles which regulate nation-states’ the domestic law of the state parties. It does not
protocols) relations with one another. contain specific commitments or enforcement

284 C am b r id g e L e g a l S t u d ie s – HS C

mechanisms. In that sense, it can be considered
legally non-binding. It sets out a general ‘frame-
work’ or structure for commitments to be
negotiated at a later stage. These commitments
are often contained in a protocol, or in state
parties’ domestic legislation. An example is the UN
Framework Convention on Climate Change, which
was followed by the Kyoto Protocol setting out
binding commitments.
Hard law
Hard law includes binding international agree-
ments (treaties) as well as customary inter-
national law. Treaties are international agreements
between states in written form, that are governed
by international law. They may be bilateral
(between two parties) or multilateral (more than
two parties).
A protocol is a negotiated instrument that
supplements a treaty or agreement, containing
specific actions to be taken to fulfil the terms of
the treaty, or provisions that modify the original
treaty. For example, the Montreal Protocol is an
addition to the Vienna Convention for the Protection
of the Ozone Layer (1985), and as noted above the
Kyoto Protocol is an addition to the UN Framework
Convention on Climate Change. The Cartagena
Protocol on Biosafety, which came into force in
2002, is a supplement to the Biodiversity Conven-
tion. The Protocol seeks to protect biodiversity
from potential risks posed by technological modi-
fications to living organisms by governing their
movement from one country to another. It con-
tains a procedure for nations to obtain the
information necessary to make informed decisions
as to the importation of genetically modified
organisms, and contains several provisions refer-
ring to the precautionary principle.
It is important to realise that while a treaty or
protocol may contain enforcement mechanisms,
their effectiveness is questionable. Nation-states’
ability to exercise their sovereignty will sometimes
mean that a country will refuse to comply with its
international obligations.
O p t i o n 2: G lo b al env iro nm e ntal p ro te c tio n
Courts
Ad hoc tribunals and the
International Court of Justice
Prior to the establishment of the United Nations
(and thus the International Court of Justice), there
was practically no court or tribunal in place to
settle environmental conflicts between nation-
states, since few issues had arisen. In 1928, and
again in 1935, the United States of America and
Canada referred a matter to the International Joint
Commission (a tribunal that had jurisdiction to
consider issues arising along the common border)
for resolution. It involved sulphur dioxide emis-
sions from a zinc and lead smelter located in the
town of Trail, British Columbia, 15 kilometres from
the Washington state border. The main problem
was the damage being done to fertile farming and
logging lands in the Columbia River Valley. protocol
an instrument that
In both instances the Canadian government
supplements a
had to pay damages to the state of Washington, treaty, containing
and in the 1935 decision it was decided by the two specific provisions
that the parties have
parties to enact a special agreement or ‘conven-
committed to in order
tion’ for settlement of difficulties arising from the to fulfil the terms of
smelter operation. As part of this agreement a the treaty
tribunal was established to determine the extent
of damages, whether compensation should be
paid, and whether the smelter should operate
under restricted conditions. The tribunal deter-
mined that:
s Canada had to pay $78 000 in damages to the
USA as compensation for all damage
Figure 11.8 In both 1928 and 1935, the US and Canada referred a
matter to the ICJ, regarding environmental damage to the Columbia
River Valley. This resulted in the Canadian government paying damages
to the state of Washington.
Cha pter 11: Option 2: Globa l environmenta l protecti on 285
 Table 11.1 A selection of international instruments

International law Year it Hard or soft? Mission or aim Number

entered of parties*
into force
Convention on 1975 Hard To ensure that international trade in wild 175
International Trade in animals and plants, and products made from
Endangered Species them, does not threaten their survival
of Wild Fauna and
Flora (CITES)
Convention on 1971 Hard Provides the framework for national action 159
Wetlands of and international cooperation for the
International conservation and wise use of wetlands and
Importance (the their resources
Ramsar Convention)
Vienna Convention 1988 No legally binding To protect human health and the environment 196
for the Protection of targets for reduction from adverse effects resulting from human
the Ozone Layer of substances that activities that alter the ozone layer
deplete the ozone
layer (notably
chlorofluorocarbons)
Montreal Protocol 1989 Hard Sets out a mandatory timetable for the 196
on Substances That phasing out of ozone-depleting substances
Deplete the Ozone
Layer
UN Convention on 1993 Hard The conservation of biological diversity, the 168
Biological Diversity sustainable use of its components, and the
fair and equitable sharing of the benefits from
the use of genetic resources
Agenda 21 1992 Soft Sets out a plan to achieve a sustainable 178
balance between consumption, population,
and Earth’s capacity
Rio Declaration on 1992 Soft Provides principles guiding sustainable 178
Environment and development: defines humans’ responsibilities
Development to safeguard the common environment, as
well as the rights of the people to be involved
in the development of their economies
UN Framework 1994 No legally binding To stabilise atmospheric concentrations 192
Convention on targets or enforce- of greenhouse gases at a level that would
Climate Change ment mechanisms prevent harm to the climate system
Kyoto Protocol 1997 Hard Sets binding targets for 37 industrialised 188
countries and the European Community, for
reducing their greenhouse gas emissions by
an average of 5%
Copenhagen Accord 2009 Soft Was intended to establish an ambitious global
climate agreement starting in 2012 when the
Kyoto Protocol expires, but sets no binding
targets. Recognises that global temperature
rises must be kept below 2 degrees Celsius
but no specifics included.
* In the case of a treaty, number of parties means the number of countries for whom the agreement has entered into force.

286 C am b r id g e L e g a l S t u d ie s – HS C

s the smelter operators had to refrain from emit-
ting harmful materials (instruments were put
in place to record weather conditions and emis-
sion levels) and if it exceeded the prescribed
levels further compensation was payable.
The Trail Smelter Case (United States v Canada) 3
RIAA 1905 (1941) highlighted the responsibilities
of neighbouring nation-states for damage caused
by transboundary pollution. It is important to
realise that the nations involved consented to
the establishment of the tribunal and it only had
jurisdiction over this particular matter. With the
establishment of the ICJ, a forum for such disputes
came into existence that did not rely on the
creation of an ad hoc tribunal for each and every
environmental dispute.
Only nation-states can be parties to a case
before the ICJ. It has the power to decide a case
only where the parties to a dispute have consented
to its jurisdiction, either by special agreement of
the parties, where it is specifically provided for in
a treaty, or where the state parties to the Statute of
the ICJ recognise its jurisdiction as compulsory in
relation to any other state. Where the parties have
l eg al i nfo
O p t i o n 2: G lo b al env iro nm e ntal p ro te c tio n
consented, it is rare for a decision of the Court not
to be implemented. However, a state can raise
‘preliminary objections’ to the Court’s jurisdiction,
or refuse to appear before the Court because it
totally rejects the Court’s jurisdiction. This limits
the effectiveness of this judicial body.
Article 38 of the Statute of the ICJ lists the
sources of international law that the ICJ can apply
in its rulings. These are:
s international conventions
s customary international law
s general principles of law recognised by civilised
nations
s judicial decisions and the teachings of the most
highly qualified academic writers of the various
ad hoc
nations.
for a particular
It can also make decisions ex aequo et bono if purpose, usually
the parties agree. This means it can simply consider exclusive and often
temporary
what is fair and just in the circumstances, rather
ex aequo et bono
than basing its decision on one of the sources of
a Latin term meaning
international law. ‘according to the
Environmental disputes have never dominated right and the good’;
on the basis of what
the ICJ. The UN did recognise the importance of is fair and just in the
global environmental issues in 1993, establishing circumstances

Cases heard by the ICJ

Since the establishment of the International Court of
Justice (ICJ) in 1945, a range of environmental cases
have been heard. These include:
s The nuclear test cases (1974–75) involving Australia
and New Zealand against France, which was testing
nuclear devices in French Polynesia. The cases did
not proceed to the merits stage, as the ICJ decided
that once France stated that it was ceasing the
atmospheric tests of its own accord, the cases no
longer had any object. Later, France commenced
underground nuclear testing.
s Nauru’s case against Australia for failing to
remedy the environmental damage caused by
90 years of phosphate mining (see Figure 11.10).
In 1992 a negotiated settlement was reached
whereby Australia agreed to pay $107 million in
compensation for the extensive damage caused to
Nauru prior to its independence.
s The Danube Dam Case of 1997, which concerned a
dispute over water resources between the neigh-
bouring countries of Hungary and Slovakia and
allegations of transboundary environmental harm.
After Hungary withdrew from the joint venture to
build a dam to drive a hydroelectric plant, Slovakia
diverted the river to operate the dam on its own.
The ICJ found both Hungary’s withdrawal and Slo-
vakia’s diversion of the river unlawful. It held that
the 1977 treaty between the countries was flexible
enough to take account of new international envi-
ronmental norms, and that the Slovakian action was
unjustifiable in light of shared water resources and
equitable use, and invoked the principle of ESD.

Cha pter 11: Option 2: Globa l environmenta l protecti on 287

 Figure 11.9 Nauru’s case against Australia for failing to remedy
environmental damage caused by 90 years of phosphate mining was
settled in the ICJ in 1992.
reactionary
responding to a
situation after it has
occurred
R E VIEW 11.6
1 Using examples, explain the
difference between hard and
soft international law.
2 Explain the nature and
function of a framework
treaty. Give examples.
3 Explain the nature and
function of a protocol.
Discuss in regard to
international law.
4 ‘The ICJ is ineffective as a
means of resolving serious
environmental issues.’
Discuss.
288 C am b r id g e L e g a l S t u d ie s – HS C
the Chamber for Environmental Disputes (a
discrete section of the ICJ) to provide a forum for
settling disputes in this area. However, it has never
been used, and in 2006 the UN stopped holding
annual elections for the Chamber’s membership.
One problem with the ICJ’s role in settling global
environmental disputes is that its jurisdiction
depends on whether two or more states have con-
sented to be bound by it. This seriously constrains
its jurisdiction, given that corporations are res-
ponsible for a vast number of the
environmental problems today.
Some NGOs and academics
believe a more effective solution
lies with the formulation of an Inter-
national Environmental Court that
follows the International Criminal
Court model. It could be permitted
to settle disputes between private
and public parties, if the issues
are global in their magnitude; to
mediate and arbitrate; and to insti-
tute investigations. Such a court
could readily apply ESD principles,
and could provide a high level of
consistency by utilising experts in
Figure 11.10 The International Court of Justice,
located at The Hague, Netherlands.
relevant fields to determine complex scientific
issues. It could also be compulsory, rather than
requiring consent to its jurisdiction.
Conferences
Prior to 1972, international instruments promo-
ting environmental protection were predominantly
reactionary. They addressed discrete areas of
environmental protection as the need arose. Early
international law in this area was ad hoc and
generally regional in its approach; for example,
the Protocol amending the Agreement on the
Protection of the Salmon in the Baltic Sea, adopted
in 1972.
During the 1960s it was recognised that this
sort of piecemeal approach was insufficient to
address the global threats facing the environment.
Under the guidance of the United Nations, the first
international conference to focus on the global
environment was organised for Stockholm in
1972. Since then a so-called ‘mega conference’
has been held every decade to look at global
environmental issues. In 2012 Brazil will host the
‘Rio Plus 20’ Earth Summit with a focus on low-
carbon economies.

In addition, a number of other conferences have
been held, focusing on specific issues. These often
relate to a particular treaty or convention. ‘Meet-
ings of the parties’ to a framework convention are
generally held at intervals to continue negotiations
for specific, legally binding commitments from
the state parties. For example, the Conference
of the Parties to the UN Framework Convention on
Climate Change of 1992 meets every year; the 1997
Conference of the Parties in Kyoto, Japan gave rise
to the Kyoto Protocol.
Stockholm Conference 1972
According to the United Nations Environment
Programme (UNEP), formed as a result of the
Stockholm Conference, the main aim was to con-
sider ‘the need for a common outlook and for
common principles to inspire and guide the peoples
of the world in the preservation and enhancement
of the human environment’. Officially titled the
UN Conference on the Human Environment it was
the first international gathering to consider the
natural environment and material human needs
–economic development – together.
This conference produced the Stockholm
Declaration, which can be credited with providing
the impetus for sustainability becoming the focus
of global environmental protection. Declarations
have no binding legal effect, but they do have
an undeniable moral force and provide practical
guidance to nation-states about how they should
behave. The Stockholm Declaration contains four
key themes:
s Nation-states have a responsibility to manage
their environments and they are accountable to
their neighbours.
s All people have a right to an adequate
environment.
s There is a need for intergenerational equity.
s There is a need for international cooperation.
While it can be argued that the Stockholm
Conference produced nothing concrete in inter-
national law, it did result in the formation of UNEP.
Stockholm’s real success lay in the foundations it
provided for all subsequent international environ-
O p t i o n 2: G lo b al env iro nm e ntal p ro te c tio n
mental law. It produced non-binding guidelines
that were open to wide interpretation, but it did
introduce the concept of ecologically sustainable
development (ESD) and UNEP became the major
forum for promoting global environmental
protection.
Nairobi Conference 1982
The main emphasis of the conference held in
Nairobi, Kenya was to mark the tenth anniversary
of Stockholm and reaffirm the participants’ and
the world’s commitment to the Stockholm Declar-
ation and Action Plan. The conference did not
generate as much worldwide interest as Stockholm
– possibly due to international political tensions at
the time between the USA and the Soviet Union,
and Kenya’s internal difficulties – and for that
reason is not considered an official Earth Summit.
The Nairobi Declaration urges ‘all governments
and people of the world ... to ensure that our small
planet is passed over to future generations in a
condition which guarantees a life of human
dignity for all’.
Rio Conference: the 1992 Earth
Summit
The Rio Earth Summit is more formally called the
United Nations Conference on Environment and declaration
a formal statement
Development (UNCED) and was held in Rio de
relating to a particular
Janeiro, Brazil in 1992. It was hoped that Rio would issue or set of issues,
produce a range of binding environmental agree- agreed to by a group
of nation-states but
ments, but the different perspectives of the 180
without binding legal
represented nation-states and non-government force
organisations (NGOs) made it difficult to reach a
consensus.
While Stockholm provided the general guide-
lines for ecologically sustainable development, it
was Rio that produced the framework for domestic
and international law aimed at global environ-
mental protection. As discussed earlier in this
chapter, five key agreements came out of Rio,
including the UN Framework Convention on Climate
Change, the Rio Declaration and Agenda 21. The
Rio Declaration contains twenty-seven principles
for utilising the environment in a sustainable
Cha pter 11: Option 2: Globa l environmenta l protecti on 289
 manner. Agenda 21 is a comprehensive, voluntary
plan of action for all levels of government to work
towards sustainable development. It covers using
resources efficiently, fostering an equitable world,
protecting global resources, making the world
habitable and increasing the input of disadvan-
taged groups (such as children, women and
indigenous communities). It also recommended
the strengthening of communication and partner-
ships between governments and non-government
organisations (NGOs). The main achievement of
Agenda 21 is that it placed pressure on nation-
states to implement ESD.
Johannesburg 2002
Whereas the earlier conferences provided the
guidelines and the framework for sustainable
development, the aim of the 2002 Earth Summit
in Johannesburg, South Africa was to put these
concepts into practice. In particular, its focus was
to establish time plans and enforcement mecha-
nisms. As usual, state sovereignty provided the
big gest obstacle, as expressed on the UN website
for the event: ‘Sadly we have not made much
progress in realising the grand vision contained
in Agenda 21 … it is no secret that the global
community has not demonstrated the will to
implement it.’
Johannesburg’s theme was ‘Building Partner-
ships for Sustainable Development’ and its most
notable achievements were:
s setting a target to reduce the proportion of
people without access to safe drinking water by
half by 2015, and obtaining commitments from
governments such as the USA and the European
Union, as well as bodies such as the Asian
Development Bank, to fund these initiatives
s commitments and funding for sustainable
energy programs in developing countries
s increased ratification of environmental agree-
ments including the Kyoto Protocol – Thailand,
India, Canada and Russia all announced their
intentions or that they had ratified Kyoto.
Despite the intentions of the conference, the
final result was disappointing as not all of the
commitments were sufficiently firm. For example,
290 C am b r id g e L e g a l S t u d ie s – HS C
no specific aims were set for one of the key aims:
diversification of energy sources.
R ESEAR CH 1 1 . 5
Visit the UNEP home page at www.unep.org
and write ONE paragraph on each of the six
environmental challenges listed as priority
areas for UNEP.
R EVI EW 1 1 . 7
1 Outline the key developments of the four
‘mega conferences’.
2 Explain the purpose of a ‘Conference of the
Parties’ to a framework convention.
Intergovernmental
organisations
Various other international bodies not directly
linked to the United Nations also play a role in
global environmental protection. The European
Union (EU) has developed an Environment Section
whose function is implementing environmental
policies for the 25 nation-states now comprising
the EU; this also includes an EU Sustainable
Development Strategy that took effect in 2006.
The Organisation for Economic Co-operation
and Development (OECD) has a primary focus
on the economic growth, employment, and
living standards of its member nations, but it
too has recognised the need for the environment
to be taken into account. The OECD has
introduced environment performance reviews in
conjunction with its usual economic reviews of
member countries. The OECD Working Party on
Environmental Performance has been conducting
peer reviews of the environmental performance of
OECD member countries since 1992. The review
assesses the efforts of each nation-state in meeting
both domestic objectives and international com-
mitments. For example, China was reviewed in
2006 and 51 recommendations were made to
‘strengthen China’s environmental performance
in the context of sustainable development’. One
 O p t i o n 2: G lo b al env iro nm e ntal p ro te c tio n
recommendation was to ‘… strengthen monitoring, NGOs are involved in researching and publi-
inspection and enforcement capabilities to cising environmental issues, and educating the
establish a better mix of incentives and sanctions public. They are not subjects of international law.
... Implementation of the polluter pays and user However, they have been formally recognised by
pays principles should be strengthened’. governments, notably in Agenda 21. Some NGOs
In 2004, the Director of the OECD Environment have observer status at the United Nations and non-government
organisations
Directorate, Lorents Lorentsen, stated: they are often consulted for their views when
(NGOs)
international law on the environment is being associations based on
We have made progress towards several environ-
drafted. common interests and
mental goals ... But much more progress is needed. aims, which have no
The most famous (or infamous, depending on
Ecosystems continue to be degraded, persistent connection with any
your perspective) activities of some NGOs are government
and toxic chemicals are widespread in the
their ‘envirostunts’, which are used to pressure observer status
environment, many fish stocks are declining, and
and sometimes embarrass governments and in the United Nations
greenhouse gas emissions – particularly from road General Assembly
corporations to change their activities. An NGO’s
transport and energy use – continue to grow. (GA), the position of
best weapon is the media. an organisation or
In sum, the basic question still is: how can we
other entity that has
continue to grow and overcome global poverty, been granted the
while doing relatively less damage to the environ- The media right to speak at GA
meetings, participate
ment that sustains us and all our activities? in procedural votes,
The media are one of the most powerful forces on
and sponsor and sign
Source: OECD Observer No. 242, March 2004 the planet. They have the potential not merely to resolutions, but not
shape popular opinion, but to determine it. to vote on resolutions
When even those institutions with a dominant and other important
The nature of media ownership in industrial-
focus on economic matters recognise the need for matters
ised countries, especially where it is concentrated
environmental frameworks and review, it strongly envirostunt
among just a few corporations, means that the line a publicity stunt to
suggests that the world is a vastly different place
between information (e.g. reporting the news) and attract attention
from the one that existed at the time of the to a particular
persuasion (e.g. influencing opinions about an issue)
Stockholm Conference in 1972. environmental issue
is not always clear. While promoting or protecting

Non-government
organisations
Governments are political in nature and often their
perspectives on an issue are influenced by factors
such as business and industrial interests. In
response to growing environmental awareness
over the last four decades, various non-
government organisations (NGOs) have put
pressure on governments to take into account
environmental considerations. NGOs use a
combination of action and advocacy to advance
their agendas. Some operate nationally (within a
single nation-state) and others are international.
Significant examples of environmental NGOs are:
s Greenpeace
s World Wide Fund for Nature Figure 11.11 NGOs such as Greenpeace are involved in researching
s Friends of the Earth. and publicising environmental issues, and educating the public.

Cha pter 11: Option 2: Globa l environmenta l protecti on 291

 ca s e s tu d y
NGOs action

s In 1995 Greenpeace occupied Franklin Dam Case will be

the Brent Spar oil rig operated
by Shell Oil in the North Sea
to stop it from being scuttled
and dumped in the sea. A
global audience watched the
Greenpeace actions and a
large section of the public
exerted its own pressure
by boycotting Shell service
stations. Shell then agreed to
dismantle the Brent Spar and
recycle it on land. The action
led to a worldwide ban on this
means of disposing of such
rigs.
s The Wilderness Society and
the Australian Conservation
Foundation were instrumental
in stopping the construction
of a dam in the ‘Wild Rivers’
region of Tasmania (the
discussed later in this
chapter).
s People for the Ethical
Treatment of Animals
(PETA) often use attention-
grabbing promotions
to raise awareness of
environmental issues
involving animals, e.g.
the ‘I’d rather go nude
than wear fur’ campaign,
and their unique take on
protecting whales.
Figure 11.12 PETA campaigns

R E VIE W 11.8 corporate interests may not be the sole broadcasters are not as well funded as the ABC and
1 Describe the or primary purpose of the information SBS in Australia, and must appeal to listeners and
relationship between transmitted via print, broadcast media or viewers for financial support. Also, governments
intergovernmental the internet, a news agency whose parent must take care not to exert too much influence on
organisations, national company is a multinational with a broad publicly owned media, even by well-intentioned
governments, and the range of financial interests may be to some efforts to ensure ‘balance’. A recognition of
global environment. degree constrained. Economic impera- the potential for political ‘spin’ is important to
2 Using examples, outline tives, especially in a period of recession, counteract tendencies towards selective coverage
how NGOs can promote may also influence the amounts a news- or bias. However, the financial resources of cor-
global environmental paper or broadcaster can afford to spend porations mean they are far more likely to
protection. on investigative journalism: it can be less influence public understanding and perspective
3 Discuss the positive expensive to obtain stories from a wire on environmental issues.
and negative roles service or syndicate than to pay writers In Australia, the power of the media in

that the media may and researchers to produce a unique story environmental matters was highlighted in the

play with respect or program on current events. Franklin Dam protest movements of the early

to environmental Even where a media agency is public- 1980s, which culminated in the case Common-

protection. ly owned, it is not immune from financial wealth v Tasmania (1983) 158 CLR 1. The Wilderness
considerations. In some countries, public Society and the Australian Conservation Foun-

292 C am b r id g e L e g a l S t u d ie s – HS C

dation joined forces to mount a well-organised
effort to use the media to present their version of
the situation. They were spectacularly successful.
Australia’s federal
O p t i o n 2: G lo b al env iro nm e ntal p ro te c tio n
(NSW), which consolidated these Acts and added
some significant new provisions); the Heritage Act
1977, the Pesticides Act 1978 (repealed and super-
seded by the Pesticides Act 1999 (NSW)), and the
National Parks and Wildlife Act 1974.

structure Prior to 1979, environmental law and town plan-

State powers and legislation
Under the Australian Constitution, the power to
legislate on environmental issues can only be con-
sidered a residual power. It is not one of the
enumerated powers of the Federal Parliament,
and therefore it falls to the states. Like the rest of
the world, Australia was unaware of the con-
sequences of exploiting the environment until
relatively recently. New South Wales passed the
Forestry Act in 1916 but it was primarily concerned
ning law developed separately. The creation of the
NSW Land and Environment Court in 1979 indi-
cated a major shift in policy and direction. It was
instituted as a superior court of record, with exclu-
sive jurisdiction in environmental and planning residual powers
government powers
law. In that same year, the Environmental Planning
that are not listed in
and Assessment Act 1979 (NSW) was passed, s 51 of the Australian
mandating that town planning decisions must take Constitution as
legislative powers of
account of environmental considerations.
the Commonwealth
Parliament, and thus
Federal powers and legislation belong to the states

with the regulation of the timber industry and The Australian Constitution limited the role the enumerated powers
legislative powers that
made little reference to the responsible manage- Commonwealth could play in environmental are specifically set
ment of this resource. affairs for much of the 20th century. However, as out as belonging to a
awareness of environmental degradation and the particular parliament;
During the 1960s and 1970s, New South Wales
in Australia, the
passed a number of laws that were clearly aimed loss of species and habitats became increasingly enumerated powers
at the protection of the environment, including obvious, the federal government began to take of the Commonwealth
Parliament are
the Clean Air Act 1961, Clean Waters Act 1970, a more active role. The Case Spaces following
listed in s 51 of the
Pollution Control Act 1970 (all since repealed by the illustrate how this was accomplished, through con- Constitution
Protection of the Environment Operations Act 1999 stitutional interpretations by the High Court.
c a se sp ace

Murphyores v The Commonwealth (1976) 136 CLR 1

During the early 1970s the
Queensland Government granted
a lease to a company called
Murphyores to extract certain
minerals from sand on Fraser
Island. Today such a proposal
would seem preposterous, but at
the time Queensland saw it is an
economic opportunity.
The federal government
requested that the mining cease,
but it did not have the consti-
tutional authority to order
Murphyores to stop. The Com-
monwealth did, however, have
power over exports and imports
under s 51(i) of the Constitution:
that is, the trade and commerce
power. The Commonwealth
refused to issue Murphyores with
an export permit, effectively
denying it a market.
The case went to the High
Court, which held that the
federal government’s denial of
the permit was a valid use of its
constitutional power. Technically,
the Commonwealth did not stop
the mining; it stopped access to
the markets.
The significance of this
case was that it highlighted
the increasing importance
placed on the environment
by the Commonwealth, and
its indication that it would be
prepared to intervene in affairs
traditionally handled by the
states if necessary.

Cha pter 11: Option 2: Globa l environmenta l protecti on 293

 ca s e s p a ce
Tasmania v The Commonwealth (1983) 158 CLR 1

Tasmania wanted to build a hydroelectric dam The significance of this case was enormous.
on the Franklin and Gordon River system. For example:
A group of environmentalists began a s The Commonwealth could now make
protest campaign against this proposal, and environmental laws using the external affairs
the Wilderness Society and the Australian power if this was necessary in order to fulfil its
Conservation Foundation became actively obligations under international law.
involved. Nationwide protests were organised s It ensured that Australia could implement its
under the ‘No Dams’ slogan and a range of high- international obligations to override unwilling
profile personalities took up the cause. states.
The Tasmanian Government argued that the s It is the leading example of how NGOs (in this
building of the dam was a residual power and case, the Australian Conservation Foundation
the protesters, while entitled to their view, were and Wilderness Society) can shape community
not going to change the government’s decision. values and standards and thus promote law
In the lead-up to the 1983 federal election the reform.
leader of the Australian Labor Party promised to s It highlighted how the democratic process
stop the dam if elected. Labor won the election, (in this case, the 1983 federal election) can
but Tasmania continued to build the dam. place pressure on governments to assume
The federal government recognised responsibility for the environment. Since then,
Tasmania’s ‘Wild Rivers’ area as a region of the environment has become a central policy
special significance and it was listed under the of all political parties.
World Heritage Convention. Since international
law is not binding until implemented by domestic
legislation, the federal government passed the
World Heritage (Property Conservation) Act 1983
(Cth), which specified that such areas of special
significance should be protected. The Franklin
was included as one such area. This created a
conflict however as now there was a state law
allowing the construction of the dam and a
federal law demanding that it be stopped. The
case then went to the High Court.
In a 4 to 3 decision the High Court ruled that
the federal government was making valid use
of the external affairs power (s 51(xxix)), which
gives it the authority to legislate on any matter
of ‘international concern’. Under s 109 of the
Constitution, when a law of a state is inconsistent
with a law of the Commonwealth, the Figure 11.13 Protests against the construction
Commonwealth law prevails. The construction of of the dam did not deter the Tasmanian
the dam was stopped. Government.

294 C am b r id g e L e g a l S t u d ie s – HS C

The main federal environmental law is the
Environment Protection and Biodiversity Conser-
vation Act 1999 (Cth) (‘EPBC Act’). It provides the
legal framework for the protection and manage-
ment of nationally and internationally important
animals, plants, ecosystems, and places defined in
the Act as matters of national environmental
significance. Under this Act, any activities involving
matters regulated by the Act may require asses-
sment and approval from the Minister for the
Environment. These matters under Common-
wealth jurisdiction include:
s World Heritage sites
s National Heritage places
s nationally protected wetlands (Ramsar
wetlands)
s nationally listed threatened species
ecological communities
s listed migratory species
s nuclear actions (including uranium mines)
s Commonwealth marine areas
s land owned by the Commonwealth
s activities by Commonwealth agencies.
c as e s p ac e
O p t i o n 2: G lo b al env iro nm e ntal p ro te c tio n
Relationship between
federal and state
environmental law
Australia’s three-tiered system of government
(federal, state and local) has resulted in a degree
of fragmentation of environmental authority. An
important initiative to define state and federal
roles more clearly, reduce jurisdictional disputes,
foster a cooperative approach, and ultimately pro-
vide better environmental protection was the 1992
Intergovernmental Agreement on the Environment
(IGAE), which reflected some elements of the Rio
Declaration as well as setting out the agreed areas
of responsibility between the Commonwealth and
all state and territory governments. The National
Environment Protection Council (NEPC) was set
and up under the National Environment Protection
Council Act 1994 (Cth) (‘NEPC Act’) to oversee the
implementation of the IGAE. As stated in s 3 of
the NEPC Act, the obects of the legislation are to
ensure that people enjoy the benefit of equivalent
protection from air, water or soil pollution and
from noise, wherever they live in Australia, and to

EPA v Gardner LEC [1997] NSWLEC 169

From October 1993 to April
1996 Charles Gardner, while
operating a caravan park in
Karuah, pumped over 120 000
litres of raw sewage into
the Karuah River. Gardner
had installed a system of
underground pipes and valves
to pump the raw effluent
directly into the river to avoid
$850 a week in sewage removal
fees. Not only did this material
create offensive smells in
Karuah, it posed an enormous
threat to the health and safety
of users of the river and the
nearby oyster farms.
The Hon Justice David H.
Lloyd made history in this case
by sending Gardner to prison
for his activities. Gardner
received twelve months in
prison and was also ordered to
pay $420 000 in fines and costs.
Brian Gilligan, the director of
the Environment Protection
Authority (EPA) stated that
the decision sent a powerful
message to polluters. The Land
and Environment Court had
held the power to imprison
people since 1989 but had
never used that power until
now. Ian Lloyd QC was the
prosecutor for the EPA in the
case and he noted after the
decision: ‘I see the function
of prosecuting environmental
criminals as equally if not more
important than prosecuting
murderers.’

Cha pter 11: Option 2: Globa l environmenta l protecti on 295

 R E VIEW 11.9 protect businesses and markets from
1 Explain the difference inconvenient effects of jurisdictional
between enumerated and variations.
residual powers. Another means of streamlining fed-
2 Describe the development eral and state responsibilities is the use
of environmental law in of bilateral agreements between the
New South Wales. Commonwealth and each of the states
3 List some ways in and territories. In 2007 the federal and
which federal and state NSW governments signed a bilateral
governments cooperate agreement, which allows the Common-
with respect to environ- wealth to accept an environmental
mental protection law. assessment done by the state if it fulfils
4 Outline the significance of certain conditions. In other words,
the Tasmanian Dam case. some assessment procedures under the
Co n t e m p o ra r y i s s u es co n ce r n i n g
g l oba l e nv i r o n m e n t a l p r o t ec t io n
Issue 1: The law’s role
in relation to global
environmental threats
The law and the legal system not only set out the
rules that all parties in a jurisdiction are expected to
follow, but also provide for when and how breaches
should be punished. In the area of environmental
law, laws have the aim of preventing, mitigating
and/or remedying damage that human activities
have caused to the environment. To achieve these
aims, the law must also encourage cooperation and
resolve conflicts between parties whose interests
are affected.
At an international level, treaties and protocols
set out the rules with respect to environmental
protection. The International Court of Justice is the
pre-eminent body for resolving disputes between
nation-states. As we have seen, ‘soft law’ such
as declarations and action plans can also play a
role in prompting national government action and
influencing the behaviour of corporations and
other agents. The primary actors at international
level, however, are nation-states, and national
296 C am b r id g e L e g a l S t u d ie s – HS C
Environmental Planning and Assessment Act 1979
(NSW) can replace the need for assessment under
the EPBC Act, although they still require approval
from the Commonwealth Environment Minister.
Often the various levels of government attempt
to operate collaboratively, as with the Murray–
Darling Basin Ministerial Council, comprising the
relevant Ministers from NSW, Victoria, South
Australia, Queensland and the Commonwealth.
The Council was established by the Murray–Darling
Basin Agreement in the Water Act 2007 (Cth), and it
has a decision-making role in federal–state plans
for sustainable use of the resources of the Murray–
Darling Basin, used by all of these states.
sovereignty is enshrined in the Charter of the
United Nations (Article 2). While the conventions,
protocols and declarations may outline brilliant
strategies for promoting ecologically sustainable
development, unless nation-states comply they
accomplish very little. And unless a nation con-
siders that it is in its best interests to comply with
an external obligation, it is unlikely to do so.
However, when nation-states do implement
their obligations they can be characterised as
‘thinkinging globally and acting locally’. To have
domestic effect in Australia, an international
treaty must be implemented in national law.And
in Australia there can be heavy penalties for
individuals and organisations that breach dom-
estic environmental law.
When the world’s nation-states do work collab-
oratively, the results can be spectacular.
The Vienna Convention for the Protection of the
Ozone Layer was negotiated in 1985 and came into
force in 1988. The accompanying Montreal Proto-
col came into force in 1989 and set out legally
binding reduction targets for nation-states. A
management plan for phasing out CFCs was intro-
 O p t i o n 2: G lo b al e nv iro nm e ntal p ro te c tio n
ca s e s tu d y
Ozone layer destruction

The hole in the ozone layer was first recognised as global warming, harm to marine life, and
a global issue in 1978, when satellite technology increased rates of skin cancers.
enabled its size to be measured, and over the next
few years, its growth rate. Chlorofluorocarbons
(CFCs), a class of chemical compounds that are
able to break the bonds between ozone molecules,
were identified as the main culprit. CFCs are stable
and non-toxic and have been used in refrigerators
and air-conditioning units, and as propellants in
aerosol products. It soon became apparent that
the only long-term solution to ozone depletion
was to phase out the use of CFCs. Ozone prevents
the most harmful UVB light (ultraviolet radiation
of relatively short wavelengths) from reaching the
Earth’s surface, and its continued depletion could
have dire consequences, including accelerated Figure 11.14 The hole in the ozone layer.

duced and nation-states have complied by banning

l eg al l i nks

their use and introducing alternative products. In

September 2006 the ozone hole reached its largest
size of 27.4 million square kilometres, but by
September 2009 it had contracted to 25 million
square kilometres. Roger Dargaville, a research
fellow in Climate Change at The University of
Melbourne, noted in a 2009 interview by the
Sydney Morning Herald: ‘The Montreal Protocol
was absolutely critical. It is ... the world’s most
successful treaty, with every country on Earth
signing on.’ Kofi Annan, the former Secretary
General of the United Nations, once referred to it
as ‘perhaps the single most successful interna-
tional agreement to date’.
The Montreal Protocol is the classic example of
what can be achieved through global cooperation.
At current rates, the hole in the ozone layer is
expected to be repaired within 50 years.
Conversely, when states do not work together in
accordance with international law, the results can
be disappointing. The reluctance of many coun-
tries to ratify the Kyoto Protocol provides a clear-
For an insight into the latest
research relating to the ozone
hole, see www.atm.ch.cam.
ac.uk/tour/
cut example. Both Australia and the United States
would not ratify Kyoto because they believed the
economic consequences would far outweigh the
benefits of compliance and that they would be
unfairly burdened compared to the developing
nations.
The Convention on International Trade in
Endangered Species of Wild Fauna and Flora (CITES)
has 175 parties and applies to more than 30 000
species. Yet it is common knowledge that the black
market trade in endangered species continues.
The difficulties of enforcing treaty provisions are
exacerbated by the fact that many of the indi-
viduals engaged in the trade are from developing
countries. Also, such countries may find that the

Cha pter 11: Option 2: Globa l environmenta l protecti on 297

 costs of maintaining an office for administration of
treaty obligations and participating in Convention
of the Parties meetings are prohibitive. In addition,
fees for hunting licences and permits may be a
major source of revenue for the countries.
In response to these difficulties, NGOs have
arisen to try to fill the gaps. TRAFFIC, formed as a
specialist agency of the International Union for the
Conservation of Nature and also affiliated with the
World Wide Fund for Nature (both of which have
a wider scope), actively monitors wildlife trade to
ensure it does not pose a threat to the conservation
c as e s tu d y
of species and their habitats (see www.traffic.org/
overview/). Highlighting the effectiveness, or other-
wise, of international law with respect to global
environmental protection is often a focal point for
NGOs. As they are independent of governments
as well as corporations, NGOs are able to pub-
lish inconsistencies, problems and breaches of
international obligations without conflict of inter-
est. Nationally based NGOs perform a similar
function within domestic jurisdictions. The
Tasmanian Dam and Brent Spar cases illustrate
the potential effectiveness of NGOs.

Southern Bluefin Tuna

This Southern Bluefin Tuna is one of the world’s
most prized delicacies. It is listed as critically
endangered by the World Conservation Union and
one-third of the catch takes place in Australian
waters, primarily off the coast of South Australia.
Some estimates have only 3% of its breeding
stock remaining. Moves were made by Sweden in
1991 and Kenya in 1994 to have the bluefin tuna
included in CITES Appendix I (which prohibits
trade) or Appendix II (which provides for enhanced
monitoring of the species but allows limited trade
under certain conditions). Both attempts failed
due to intense pressure from Japan. In fact, the
Australian government also refused to list the fish
as endangered under the Environment Protection
and Biodiversity Conservation Act 1999 (Cth)
because doing so ‘would be detrimental to the
survival of the species, as it may weaken Australia’s
ability to influence the global conservation of the
species, and by implication, its conservation in
Australian waters’.
In 2007 it was uncovered that Japanese boats
had taken billions of dollars worth of southern
bluefin tuna illegally and as a result the Australian
government now requires Japanese boats to have
an independent observer on board to monitor
catches. (Many countries, including Australia, have
observer programs which place observers on boats
fishing within the Australian Fishing Zone and some
adjacent areas, under international arrangements.)
The Sydney Morning Herald reported in August
2006 that Japan had illegally taken over $2 billion
worth of southern bluefin tuna over the previous 20
years (the magnitude was increased to $6 billion by
Oct 2007). So significant have these illegal catches
been that the breeding stock of southern bluefin
tuna has been drastically reduced.
A voluntary management arrangement between
Australia, Japan and New Zealand, including
quotas, was formalised in 1994 when the
Convention for the Conservation of Southern
Bluefin Tuna, signed by the three countries in May
1993, came into force. The Convention created the
Commission for the Conservation of Southern
Bluefin Tuna (CCSBT).
According to Australian Fisheries Management
Authority’s managing director, Richard
McLoughlin, Japan has a national quota of 6000
tonnes but has been catching up to 20 000 tonnes
a year. McLoughlin described it as an ‘enormous
international fraud’ that has been allowed to
occur because ‘… the Japanese only ever allowed
Japanese observers on Japanese boats’. If Japan
had stuck to its quota, the fish stock would now be
five times larger. Japan’s quota has been halved to
3000 tonnes a year.

298 C am b r id g e L e g a l S t u d ie s – HS C

legal links
A full explanation of the decision
by Australian authorities not to list
the fish as endangered under the
EPBC Act can be seen at www.
environment.gov.au/biodiversity/
threatened/species/southern-
bluefin-tuna.html
Conclusion
International law works most effectively when it
is not only directly implemented by domestic law,
but supported by additional domestic initiatives.
Issue 2: The demand for
resources and global
environmental protection
A non-renewable resource is a naturally occurring
resource that cannot be produced, re-grown, regen-
erated, or reused on a scale comparable with its
rate of consumption. Non-renewable resources are
generally considered finite because their consump-
tion rate far exceeds the rate that nature can
replenish them; examples include coal, uranium,
petroleum and natural gas. Renewable resources
are those that can regenerate themselves via natural
or human management processes, meaning they
can be replenished for future generations – for
example, timber, fish, solar energy and wind power.
If a resource such as fish or timber is over-harvested
it will not have the opportunity to reproduce at a
rate that is sufficient to ensure that it can last
indefinitely.
There is obviously a strong link between resource
usage and sustainability. Resources are the funda-
mental component of the economic system in both
industry and agriculture. The legal system has in
recent times intervened in the resource markets to
provide a more equitable outcome. The paradox is
that the use of resources generates revenue, which
provides wealth and raises living standards, but if
the resources are non-renewable, they will not be
available to future generations. The problems for
O p t i o n 2: G lo b al e nv iro nm e ntal p ro te c tio n
future generations will be compounded by the ‘side
effects’ of resource use, such as global warming,
species extinction, and pollution.
The ‘ecological footprint’ and ‘The Story of
Stuff’ highlighted the global use of resources
and clearly illustrated the inequities in resource
consumption between nations. Redressing this
imbalance to provide justice for nation-states and
society creates numerous dilemmas. Nation-states
have their own expectations of what they hope
to achieve and are averse to external standards
imposed by the international community.
NGOs such as the Australian Conservation
Foundation (ACF) have expressed their distrust
of nuclear energy in the strongest terms and Don
Henry, Executive Director of the ACF, stated in
a 2005 interview by the Sydney Morning Herald
that wind and solar energy are far more desirable
alternatives:
Australia should be leading the way by backing re-
newable energy technology and energy efficiency
– a truly practical and sustainable solution.
The Australian federal government has moved
in this direction in recent years by offering rebates
for solar panels on homes, and housing insulation
that reduces energy use for heating and cooling
purposes.
The international legal system is engaged in an
ongoing effort to implement a framework to moni-
tor climate change and limit greenhouse gas
emissions. The UN Framework Convention on
Climate Change formulated at Rio was the first step,
but it was the additional Kyoto Protocol that
outlined a legal response to the conflict between
resource use and global environmental protection.
The Kyoto Protocol recognised that developed
countries were primarily responsible for green-
house gas emissions and thus placed a heavier
burden on them compared to developing nations,
on the basis of ‘common but differentiated res-
ponsibilities’. This has proved to be quite a
stumbling block for nations deciding whether to
comply with the Kyoto Protocol.
The Kyoto Protocol contained some novel
incentives for industrialised countries, including:
Cha pter 11: Option 2: Globa l environmenta l protecti on 299
 s emissions trading (the ‘carbon market’) – allows
nations to sell emission units not used by them
to countries that have exceeded their targets
s Clean Development Mechanism – enables
industrialised countries to invest in emissions
reduction projects in developing countries
(where costs are lower), as an alternative to
more expensive reduction projects in their own
territory.
These mechanisms were designed to stimulate
‘green investment’ and help countries to meet their
targets in a more cost-efficient manner. The Kyoto
Protocol also required countries to accurately
monitor and report on emissions and any carbon
trades.
The need for a more comprehensive global
response after Kyoto led to the Copenhagen Con-
ference in December 2009. While it was generally
c as e s tud y
accepted that there is a need to keep global
temperature rises below 2 degrees Celsius, only a
weak political accord with no legal standing was
achieved. Some of the results were:
s No numerical targets were established.
s China refused to accept international
monitoring.
s ‘Rich’ nations agreed to pay $30 billion by 2012
(and $100 billion per year up to 2020) to assist
poor countries with climate change issues, but
the funding details were not addressed in detail.
s A technology transfer deal was created so that
countries could adapt to climate change and
generate clean energy.
s Carbon markets were deemed to be ‘cost-
effective ‘ in cutting emissions, but clearly busi-
ness will need much more detail in order to
enter such arrangements with confidence.

Uranium and nuclear energy

Australia has about 40 per cent of environmental guidelines (the nuclear process and is the build-
the world’s uranium. One tonne Four Mile uranium mine in South ing block for devastating nuclear
of uranium can generate the Australia was approved in July weapons. Any nuclear accidents
same amount of energy as 13 000 2009). The fears relate to pluto- could have dire consequences, as
tonnes of coal. The burning of nium, which is produced in the occurred in Chernobyl in 1986.
coal produces 9 billion tones of
greenhouse gases each year.
Australia would reap enormous
economic benefits from
embracing nuclear energy and
selling uranium on the global
markets, plus our output of
greenhouse gases would fall
markedly. So why hasn’t Australia
embraced nuclear energy?
Australia does sell uranium to
36 nations who are signatories to
the Nuclear Non-Proliferation
Treaty (1970) and the federal gov-
Figure 11.15 Peter Garrett, former lead singer of Midnight Oil, often
ernment has approved new mines spoke and sang about the dangers of uranium. As Minister for the
if they follow very stringent Environment he controversially approved the Four Mile uranium mine.

300 C am b r id g e L e g a l S t u d ie s – HS C

ca s e s tu d y
Fossil fuels and greenhouse gas emissions
Fossil fuels (oil, gas, coal) have
long been the major contributor
to greenhouse gas emissions
and thus are often held to be
the major ‘culprit’ of climate
change. Essentially, greenhouse
gases allow sunlight to enter
the atmosphere and the Earth
warms up as it absorbs the
infrared radiation, but the
greenhouse gases limit the
re-radiation of the sunlight
back into space. According
to the US Energy Information
Administration, about 75% of
anthropogenic (human-caused)
greenhouse gases has come
from the burning of fossil fuels
over the past 20 years.
In addition to the excesses
of the affluent, demand for
resources in developing
nations has surged over the
past decade. According to the
World Watch Institute, fossil
fuel consumption in developing
countries has exceeded that
The hope is that Copenhagen will lay the foun-
dation stone for a legally binding treaty in the
following years.
Conclusion
The need to resolve the conflict between resource
use and global environmental protection is at the
core of sustainable development. The legal system
must take into account an enormous range of
competing interests (including developers, finan-
cial institutions, NGOs, governments, corpor-
ations, and future generations in both rich and
O p t i o n 2: G lo b al e nv iro nm e ntal p ro te c tio n
of the developed nations. Watch Institute, Vital Signs
Developing countries have over Online, 15 October 2009).
four times the population of the International attempts to curb
industrialised world and there is consumption will inevitably
a huge demand for more energy come up against resistance
resources to ‘fuel’ economic from countries that have only
development and thus living recently begun to enjoy the
standards (James Russell, ‘Fossil material living standards of the
Fuel Production Up Despite industrialised world.
Recession’, World
Figure 11.16 According to the US Energy Information
Administration, about 75% of anthropogenic (human-caused)
greenhouse gases have come from the burning of fossil fuels
over the past 20 years.
poor countries) and somehow balance their
competing rights. The above case studies illustrate
some of the dilemmas faced by nation-states,
but underpinning every decision is the doctrine
of sovereignty. The extreme scenario faced by a
nation-state is exemplified by what is confronting
the Maldives, one of the lowest-lying nations in
the world. President Nasheed of that country
has proclaimed that a fund is being established
to purchase land to relocate its population in the
event that rising sea levels make occupation of the
Maldives untenable.
Cha pter 11: Option 2: Globa l environmenta l protecti on 301
 Issue 3: Australia’s into domestic legislation. Consequently, Australia’s

responses to responses to international initiatives must comply

international initiatives
Australia has traditionally been proactive in its
responses to international initiatives for global
environmental protection. The section of this
chapter on Australia’s federal structure outlined
the constitutional division of power between the
federal government and the states. Essentially, the
states have the bulk of the power to legislate
regarding the environment, as it is considered a
‘residual’ power, but the Tasmanian Dam case
established that the federal government can use
its external affairs power (s 51(xxix)) to implement
international obligations. Furthermore, no inter-
national law has effect in Australia until enacted
c as e s tud y
not only with the Constitution, but also with the
limitations set by relevant legislation.
Not only is it the creation of international laws
(both hard and soft) that influences the direc-
tion of Australia’s responses to international en-
vironmental initiatives, but also the outcomes
of the various conferences and findings of inter-
governmental organisations.
NGOs also play a pivotal role by placing pres-
sure on governments. Any environmental event or
issue that has a direct impact on Australian citizens
will inevitably lead to pressure from sections of the
community on elected representatives. Govern-
ments will respond to community demands
because of the power of elections. If a policy or

Enforcement of environmental laws

The enforcement of laws aimed at global

environmental protection is another
proactive way in which Australia (at both
federal and state levels) has responded
to global initiatives. The case of EPA v
Gardner highlighted the growing recognition
of ‘environmental crimes’ in domestic
jurisdictions regarding pollution and toxic
waste. The stealing (and destruction) of
biodiversity has been another activity that
has been routinely monitored and the law
enforced. For example, in November 2004
a Sydney man was charged after trying to
smuggle 23 parrot eggs out of Australia in his
underpants. He was charged for attempting
to export regulated native specimens. The
maximum penalty for wildlife smuggling
under the Environment Protection and
Biodiversity Conservation Act is 10 years’ jail
and/or a $110 000 fine. This is an example of Figure 11.17 Parrot eggs contained within a specially
domestic enforcement of CITES. designed vest.

302 C am b r id g e L e g a l S t u d ie s – HS C
 O p t i o n 2: G lo b al e nv iro nm e ntal p ro te c tio n
law is not aligned to community views and

expectations, then a government’s election
chances are in peril.
However, the same individual who
concerned about the environment may also be a
person who is concerned about his or her job.
Throughout 2009 the Rudd Labor government
attempted to implement carbon emissions laws
(notably, a carbon trading scheme) prior to the
Copenhagen Conference. This stance was
strongly supported by NGOs and many sectors
of the community (not without misgivings from
some environmentalists about selling ‘permits to
pollute’), but was opposed by the mining industry
and many agricultural interests. The Senate
blocked such moves late in 2009.
c as e s tud y
legal links
The Australian federal government
has a website to inform the public
is of its responses to the need for
environmental protection based on
ESD, at www.environment.
gov.au/esd/
R ESEAR CH 1 1 . 6
Make a summary of the cascading effect of inter-
national law on the domestic arena by viewing
the PowerPoint presentation prepared by Ilona
Millar at www.actpla.act.gov.au/__data/assets/
pdf_file/0007/13894/Millar_presentation.pdf

Ratification of international laws

As discussed, there is a vast array of international laws relating to global environmental protection.
The key international laws that Australia has ratified are shown in this table.

International Date of Australian law reflecting international obligations

law Australian
ratification
CITES 1976 Initially by the Wildlife Protection (Regulation of Imports and
Exports) Act 1982 (Cth) but since 2002 by Part 13A of the
Environment Protection and Biodiversity Conservation Act 1999
(Cth)
Ramsar 1975 Environment Protection and Biodiversity Conservation Act 1999
Convention (Cth) in conjunction with the National Framework and Guidance for
Describing the Ecological Character of Australia’s Ramsar Wetlands
Biodiversity 1993 Environment Protection and Biodiversity Conservation Act 1999
Convention (Cth). Australia’s first national report was produced in June 2009
and can be viewed at www.environment.gov.au/biodiversity/
publications/cbd/first-national-report.html
UN Climate UNCCC in Following ratification of the Kyoto Protocol by the Australian
Change 1994 and government, the Garnaut Review and the Green Paper on preferred
Convention and Kyoto in options for a broad-based emissions trading scheme in Australia (to
Kyoto Protocol 2007 be known as the Carbon Pollution Reduction Scheme) – rejected by
the Senate in late 2009
Montreal 1989 Ozone Protection and Synthetic Greenhouse Gas Management Act
Protocol 1989 (Cth)

Cha pter 11: Option 2: Globa l environmenta l protecti on 303

 Conclusion
Australia has been proactive in enacting environ-
mental legislation, including responses to global
problems, when it identifies an issue as one that
directly affects its own territory and citizens.
Resolving the tension between national sovereign-
ty and international environmental protection may
require individuals and governments to see their
own interests either as inextricably bound up with
those of other peoples and countries, or as being
directly affected by a particular environmental
threat. As Australia’s population is located primarily
around the coasts, it may be in a position where
global warming and rising sea levels represent an
urgent and immediate threat.
Issue 4: Barriers to
achieving an international
response to global
environmental protection
A cohesive, coordinated, global and holistic
approach based on ESD is the most effective way
to achieve global environmental protection. Such a
large-scale international response is the ideal, but
what is attainable is a different matter. A number
of barriers limit a coordinated international res-
ponse and the most obvious one is sovereignty.
A nation’s own unique circumstances can make
it very reluctant to comply with international
initiatives. The United Nations is in the difficult
position of having to respect national sovereignty –
as mandated by its own Charter – while serving as
the means of achieving international cooperation.
When nation-states work collaboratively the
results can be extremely positive, as evidenced by
the results of the Montreal Protocol on ozone deple-
tion. The reluctance of nation-states to take decisive
action on climate change over the past two decades
suggests that they found the short-term costs too
high, and had insufficient incentives to work together
for long-term goals. Nations were generally more
than willing to sign and ratify the UN Climate Change
Convention in 1992 but once legally binding targets
were set, many (including Australia and the USA)
304 C am b r id g e L e g a l S t u d ie s – HS C
refused to undertake the ratification process. This
situation was further exacerbated by the emergence
of so-called ‘climate change sceptics’.
Environmental processes and natural pheno-
mena are different from political and other social
events; they are arguably more difficult to deal with
in the process of negotiation and compromise that
constitutes policy-making. Environmental policy-
makers must have at least some understanding
of the science supporting the instruments they
propose to enact, and must be able to resolve
various tensions between the ethical and political
implications of the precautionary principle.
The UN is large and labyrinthine, and there is
some lack of coordination between the General
Assembly and the other organs and agencies and
between the separate development funds and pro-
grammes. These all may be factors in international
bodies’ difficulty in influencing national laws and
policies.
There is also the inherent difficulty of enforcing
international law.
International agreements are often geared to
specific issues considered in relative isolation.
When they are not, as in the framework conven-
tions arising out of international conferences,
there is a greater potential for fragmentation and
disagreement about the various issues, resulting
only in ‘soft law’.
The treaty-making process is time-consuming.
Ratification by the parties requires persuasion at
the domestic level, as governments attempt to
create support for the treaty and consensus among
their citizens.
Other challenges for international environmen-
tal protection stem from the fact that the world
is much more complex than it was when the UN
was initially formed. Development, consumers’
expectations and population growth all contribute
to increased competition for natural resources. In
addition, corporations exert a much greater influ-
ence on domestic economic and social policies
today, and governments must find ways of making
sustainability attractive to entities whose chief
objective is profit.
 O p t i o n 2: G lo b al e nv iro nm e ntal p ro te c tio n
ca s e s tu d y
The Copenhagen Conference

The Copenhagen Conference on Climate Change
in December 2009 illustrated some of the key
issues relating to international responses regarding
global environmental protection. For example:
s Although the parties ‘recognised’ the scientific
case for keeping temperature rises to no more
than 2°C, the Copenhagen Accord does not
contain binding commitments. Nations did not
want to undermine economic development.
s In early negotiations the 40 key developed
nations were expected to make cuts in
greenhouse gas emissions by up to 40% of 1990
levels by 2020 and 80% by 2050. Developing
nations, with their increased populations and
growing wealth, were expected to reduce
greenhouse gas emissions by 25% of 2000
levels by 2050. With such a large gap in
expectations it was simply not feasible that
developed nations would commit to ‘deep cuts’
without what they considered a fair reduction
by developing countries. The reference to
deeper cuts was dropped, as was the goal of
80% cuts by 2050.
s One of the more positive results of the
conference was a deal by which developed
countries would pay poorer ones to preserve
their tropical forests, obtaining carbon credits
for the financing. The deal was popular with
the USA because it is cheaper than actually
reducing emissions, but it is weak on details
and how it will be governed.
s Some American commentators blamed China
for the lack of a binding treaty. Many blamed
the US for coming to the talks with an offer of
just 4% emissions cuts from 1990 levels.
s There was a quarrel over whether to abandon
the Kyoto Protocol’s legal distinction between
developing and developed countries. This could
be seen as an attempt by the West to get out of
its responsibility for climate change.
On the final day of negotiations, UN Secretary-
General Ban Ki-moon said in an address to the
conference: ‘We do not have another year to
deliberate. Nature does not negotiate.’

Conclusion
The key barrier to achieving international
environmental protection is resolving the
tension between the need for coordinated
action and nation-states’ protection of their
own interests. It is universally recognised
that deep cuts in greenhouse gas emissions
must be made, but who should shoulder
the burden? Developing and industrialised
countries have different views on what is
fair. Frequently, in order to simply get a
global response conditions and enforcement
mechanisms are watered down. Is a soft law
better than no agreement at all?
R EVI EW 1 1 . 1 0
1 Outline the role of international and domestic
law in relation to global threats to the
environment.
2 Write a report explaining the success of the
Montreal Protocol.
3 Explain the difference between renewable and
non-renewable resources.
4 Explain the link between resource usage and
sustainability.
5 Describe the changes in Australian government
policy towards climate change since the 1990s.
6 Outline the barriers that limit a coordinated
international response to global environmental
protection.

Cha pter 11: Option 2: Globa l environmenta l protecti on 305

 s Environmental problems, like economic
development, have become globalised.
s Current laws and policies recognise that
ecologically sustainable development (ESD)
should be the basis of all efforts aimed at
global environmental protection.
s The four key elements of ESD are biodiversity,
intergenerational equity, intragenerational
equity and the precautionary principle.
s The United Nations and its various agencies
(UNEP, UNESCO) have a major role in
promoting ESD internationally.
s A vast array of international instruments (both
hard and soft law) have focused on global
environmental protection.
s The two major international conferences on
the environment have been Stockholm (1972)
C hap ter s umm a ry
s In addition to ad hoc tribunals, the
International Court of Justice is the main
forum for resolving environmental disputes
between nation-states.
s Intergovernmental and non-government
organisations (IGOs and NGOs) play a pivotal
role in publicising, educating and promoting
global environmental issues.
s Australia’s federal structure and power over
environmental issues are determined by the
Constitution. The environment is a residual

and Rio (1992). The Rio Conference resulted
in several influential instruments, including
the Rio Declaration, Agenda 21, the United
Nations Framework Convention on Climate
Change, and the United Nations Convention
on Biological Diversity.
s Other international conferences focus
primarily on a single treaty and elaborate its
provisions or negotiate binding commitments,
formulated in a protocol.
C h a pt e r su mm ary tasks
power and thus the states have the bulk of
environmental law-making power, but the
precedent set in the Tasmanian Dam case has
given the federal government the authority to
introduce environmental laws of international
importance.
s National sovereignty is a key factor in the
success of international initiatives. Nations
will act in their own best interests and this
can both assist and impede international law.

1 Use examples to explain the operation of

international law in Australia.
2 Outline how national sovereignty can limit
the effectiveness of international instruments
aimed at global environmental protection.
3 Use examples to illustrate how soft law can
protect the global environment.
4 With reference to specific cases, outline the
effectiveness of the International Court of
Justice in resolving environmental disputes.
5 Explain how the world’s demand for
resources conflicts with the need for global
environmental protection.

306 C am b r id g e L e g a l S t u d ie s – HS C

1 What element of ecologically sustainable
development refers to looking after the needs
of future generations?
a the precautionary principle
b biodiversity
c intergenerational equity
d intragenerational equity
2 The Stockholm Declaration, the Rio
Declaration, the Copenhagen Accord and
M ul ti p l e c hoi ce q u e s ti o n s
Agenda 21 are all considered:
a hard law because they contain enforcement
mechanisms
b hard law because they were all formulated
at UN ‘mega conferences’
c soft law because they do not contain
enforcement mechanisms
d soft law because they only come into effect
after they have been ratified by nation-
states
3 Which court has the jurisdiction to resolve
disputes between nation-states concerning
environmental matters?
a Land and Environment Court
b International Court of Justice
Ex t e nd e d res po ns e q ues ti ons
1 Choose a global environmental issue (e.g.
depletion of food resources, climate change,
industrial pollution) and discuss past and
current attempts to remedy it. Evaluate the
effectiveness of these attempts.
2 Discuss the principles of ecologically
sustainable development (ESD) in relation
to industrialised countries and developing
countries. What factors will influence the
choice of the means to implement ESD in
these countries?
3 Explain the conflict between increasing
standards of living and environmental
protection. Suggest strategies for resolving
this conflict. What agencies should take an
active role? Would the United Nations (or
agencies of the UN), national governments,
intergovernmental organisations, or some
other body be most effective?
O p t i o n 2: G lo b al e nv iro nm e ntal p ro te c tio n
c High Court of Australia
d The Intergovernmental Panel on Climate
Change
4 Which of the following activities are
regulated by the Environment Protection and
Biodiversity Conservation Act 1999 (Cth) and
require ministerial approval?
a proposed alterations to World Heritage
sites
b fishing by ships registered in Japan or New
Zealand
c activities by Australian NGOs
d proposed alterations to New South Wales
state parks
5 Which of the following international
instruments sets binding targets for emissions
of CFCs?
a UN Framework Convention on Climate
Change
b Kyoto Protocol
c Vienna Convention for the Protection of
the Ozone Layer
d Montreal Protocol
4 Discuss the relationship between domestic
law and international law. What changes
could feasibly be made at either national
or international levels to strengthen global
environmental protection?
In Section III of the HSC Legal Studies
examination you will be expected to
complete an extended response question
for two different Options you have studied.
There will be a choice of two questions
for each Option. It is expected that your
response will be around 1000 words in
length (approximately eight examination
writing booklet pages). Marking criteria for
extended response questions can be found
at www.cambridge.edu.au/education. Refer
to these criteria when planning and writing
your response.
Cha pter 11: Option 2: Globa l environmenta l protecti on 307
 T h e m e s a n d ch a l l e n g e s
The effect of state sovereignty on
international cooperation and the resolution
of conflict regarding environmental protection
s Sovereignty plays a crucial role in
determining nation-states’ cooperation with
international initiatives.
s Sovereignty is a fundamental right of nation-
states, as is clearly stated in Article 2 of the
Charter of the United Nations.
s Nation-states may sign and ratify international
agreements, but unless they incorporate
them into the domestic arena they are of little
effect.
s Consequently, international law aimed at
environmental protection relies heavily
on the willingness of nation-states to act
in accordance with global needs, or their
perception that it is in their own best interests
to do so.
308 C am b r id g e L e g a l S t u d ie s – HS C
Issues of compliance and non-compliance
s The means of enforcing compliance with
international agreements are limited.
Without the enforcement mechanisms
that exist at a domestic level (see EPA v
Gardner), compliance at an international
level often involves intense negotiations and
compromise.
s The means of enforcing compliance (e.g. by
the ICJ) are limited, yet enforcement is the
cornerstone of the law’s effectiveness.
s Both individuals and nations decide to comply
or not with the law depending on a range of
factors, such as ethical considerations, fear
of consequences, and what is in their best
interests.
s Overcoming the effects of climate change by
reducing greenhouse gas emissions is clearly
in everyone’s best interests, but international
compliance is limited by economic
considerations.
s Differences in the circumstances of
developed and developing nations means
that they have different perceptions of a just
and fair agreement that will limit industrial
development.

The effect of changing values on
environmental protection
s People’s attitudes towards environmental
protection have changed radically over
the past 50 years but these changes have
certainly not been uniform across the planet.
Cultural characteristics as well as material and
economic circumstances are different.
s Information about the environment has
influenced these changes in values and
attitudes. Environmental catastrophies,
species extinction, dwindling resource
supplies and pollution have a strong effect
on people’s wellbeing. Communication
technology and the media allow people to
view events in distant locations, and can
strongly influence the way they view such
issues.
s Social attitudes give rise to pressure placed
on governments and businesses by voters
and consumers to implement change –
for example see the Brent Spar and the
Tasmanian Dam protests.
s A major example of changing values is
the emergence of ESD as the basis for
environmental protection, particularly the
idea of considering future generations when
making decisions involving the environment.
O p t i o n 2: G lo b al e nv iro nm e ntal p ro te c tio n
The role of law reform in protecting the global
environment
s Scientific data indicates that there are
significant reasons to change current practice,
but the law reform process often reflects
priorities that are inconsistent with such data.
s With respect to the environment, the process
of law reform means that both domestic and
international law must be continually updated
to take into account factors such as:
– changing values that will influence
government actions
– resource depletion and corresponding
changes in the prices and markets for non-
renewable resources
– the failure of existing law
– new technology
– the effectiveness of legal and non-legal
responses in protecting the environment.
s The general objective of non-legal efforts
towards global environmental protection
is to influence the legal system. Non-legal
efforts such as the campaigns of NGOs are
generally more effective when they gain
widespread community support so that
genuine pressure can be placed on decision-
makers (governments and corporations) to
introduce measures aimed at protecting the
environment.
s Agenda 21 is credited with being the
blueprint for the 21st century, but it is only
soft law. Some people consider it to be of
immense importance as a guide, while others
claim that it is impotent because it lacks any
form of enforcement process.
s The effectiveness of international legal
measures must be assessed according to their
stated aims, for example whether it contains
achievable targets.
© 2010 Copyright Board of Studies NSW for and on behalf of the Crown
in right of the State of New South Wales. HSC Legal Studies Syllabus 2009.
Cha pter 11: Option 2: Globa l environmenta l protecti on 309
 CHAPTER 12
Option 3: Family
O pt i o n 3 : Principal focus
Through the use of contemporary examples, students investigate the legal nature
Family of family relationships and the effectiveness of the law in achieving justice.

25% of course time

Themes and challenges
Themes and challenges to be incorporated throughout this option include:
s the role of the law in encouraging cooperation and resolving conflict in the
family context
s issues of compliance and non-compliance
s changes to family law as a response to changing values in the community
s the role of law reform in achieving just outcomes for family members and
society
s the effectiveness of legal and non-legal responses in achieving just outcomes
for family members.
At the end of Chapter 12, on pages 356–357, you will find a summary of the
themes and challenges relating to family. The summary draws on key points from
the text and links them to each of the themes and challenges. This summary is
designed to help you revise for the external examination.

HSC external examination information

The HSC examination will be a written paper worth a total of 100 marks. The
paper will consist of three sections.
Questions relating to Part III of the syllabus – Options – will appear in Section
III of the examination. There will be seven extended response questions, one for
each Option offered in the syllabus. Students will be required to answer two of
these questions, each relating to a different option they have studied.

Section III: Options 50 marks total (25 of the possible 50 marks per Option)
The question relating to each Option will have two alternatives. The expected
length of response is around 1000 words (approximately eight examination writing
booklet pages).

310 C am b r id g e L e g a l S t u d ie s – HS C
 ch a p te r o b j e cti ve s
In this chapter, students will:
s identify and apply legal concepts and terminology
s communicate legal information using well-
structured and logical arguments
s discuss the problems associated with defining
‘family’ and how the concept of family is changing
s distinguish between state and federal jurisdiction in
family law
s outline the legal requirements of a valid marriage
s explain what the legal rights and obligations of
parents and children are, including rights derived
from international law
key te r m s
s understand and outline the legal processes required
in dealing with family relationship problems
s evaluate how effective the law is in protecting
victims of domestic violence
s examine the role of non-government organisations
and the media in relation to family law
s evaluate the law’s effectiveness in achieving justice
for parties involved in relationship breakdowns
s identify and investigate contemporary issues that
relate to family law and evaluate the effectiveness
of legal and non-legal responses to these issues.

referral of powers

O p t i o n 3: F am ily
adoption decree nisi intestacy
annulment decree absolute maintenance relinquishing parents
Apprehended Domestic de facto relationship marriage testator
Violence Order (ADVO) divorce neglect will
assault domestic violence nullify
autonomy ex-nuptial nuptial
blended family extended family polygamous
breach injunction probate
rel evant l aw

IM PORTAN T L EGIS L AT ION Some amending acts

Family Law Act 1975 (Cth) Family Law Reform Act 1995 (Cth)
Marriage Act 1961 (Cth) Family Law Amendment (De Facto Financial Matters
Property (Relationships) Act 1984 (NSW) and Other Measures) Act 2008 (Cth)
Status of Children Act 1996 (NSW) Family Law Amendment (Shared Parental
Children and Young Persons (Care and Protection) Act Responsibility) Act 2006 (Cth)
1998 (NSW) Same-Sex Relationships (Equal Treatment in Common-
Children (Protection and Parental Responsibility) Act wealth Laws – General Law Reform) Act 2008 (Cth)
1997 (NSW) Miscellaneous Acts Amendment (Same-Sex
Adoption Act 2000 (NSW) Relationships) Act 2008 (NSW)
Young Offenders Act 1997 (NSW) Succession Amendment (Family Provision) Act 2008
Crimes Act 1900 (NSW) (NSW)
Crimes (Domestic and Personal Violence) Act 2007 Succession Amendment (Intestacy) Act 2009 (NSW)
(NSW)
Bail Act 1978 (NSW) SI G NI FI C A NT C A SE S
Succession Act 2006 (NSW) Hyde v Hyde and Woodmansee (1866) LR 1 P&D 130
Anti-Discrimination Act 1977 (NSW) Di Mento v Visalli (1973) 1 ALR 352
B v J (1996) 21 Fam LR 212
C and M [2006] Fam CA 212
Re Michael: Surrogacy Arrangements [2009] FamCA 691
o dd l a w

The Mississippi Code of 1972 (USA) provides that a
man may not seduce a woman by lying, and claiming
he will marry her.
97-29-55 Seduction of female over age of eighteen
by promised or pretended marriage
If any person shall obtain carnal knowledge of any
woman, or female child, over the age of eighteen
years, of previous chaste character, by virtue of any
feigned or pretended marriage or any false or feigned
promise of marriage, he shall, upon conviction, be
imprisoned in the penitentiary not more than five
years; but the testimony of the female seduced, alone,
shall not be sufficient to warrant a conviction.

Cha pter 12: Option 3 : Fami l y 311


marriage
the union of a man
and a woman to the
exclusion of all others,
voluntarily entered into
for life
de facto relationship
a relationship where
the partners act as a
married couple but are
not legally married
blended family
a family that is
created when a parent
remarries; it includes
the stepmother
or stepfather and
stepchildren
extended family
a family that includes
individuals related
through marriage or
parentage and not
limited to one couple
and their children; in
some cultures, close
family friends are
regarded as members
of the extended family
referral of powers
the giving up of a
state’s legislative
powers in a certain area
to the Commonwealth
by passing an act,
pursuant to s 51(xxxvii)
of the Australian
Constitution
312 C am b r id g e L e g a l S t u d ie s – HS C
T h e n a t u r e o f f a m i l y l aw
The concept of
family law
Family law is a wide-ranging area of law governing
behaviour in the context of the family, including
rights and responsibilities regarding children
and the disposition of property when a marriage
breaks down.
The main function of the family is the care and
protection of its members. Law governs family
relationships so as to ensure that people in family
relationships are financially secure and that any
children of that relationship are cared for. The
more traditional and easily recognisable family
relationship is one based on marriage. However,
as our society has changed, so too has the struc-
ture of families, reflecting a great diversity in
domestic relationships. The many different family
arrangements within Australian society include
Aboriginal and Torres Strait Islander (ATSI) cus-
tomary marriages, de facto relationships, same-
sex relationships, single-parent families, blended
families and extended families. Family law has
continued to change in order to extend protection
to all members of these alternative family
relationships.
Under s 51(xxi) of the Australian Constitution,
the federal government has the power and author-
ity to make laws governing marriage and divorce.
The Marriage Act 1961 (Cth) established the legal
requirements of a valid marriage, while the Family
Law Act 1975 (Cth) sets out the legal duties and
obligations that a marriage creates. The principal
aim of the Family Law Act was to reform the law
governing the dissolution of a marriage.
In the past, only state parliaments could pass
legislation about de facto relationships. However,
most state governments have now referred their
powers to the Commonwealth with respect to
both parenting disputes and property disputes,
whether in the context of a marriage or a de facto
relationship. After the passage of the Family Law
Amendment (De Facto Financial Matters and Other
Measures) Act 2008 (Cth), questions regarding
property division and de facto spousal mainten-
ance are now determined under the Family Law Act
1975 (Cth). In South Australia, state courts continue
to have jurisdiction over matters concerning de
facto couples (as of 2010). Western Australia has
maintained a separate Family Court of Western
Australia, which can deal with both federal and
state family law issues.
Although family law is concerned with protect-
ing the rights of family members and ensuring
that individuals meet their family obligations, it
is also about family relationships. For this reason,
family law focuses more on reconciliation and
on encouraging compliance than on the use of
sanctions or coercion to enforce compliance.
Legal requirements of
marriage
Marriage is a legal institution, and individuals who
intend to marry must take into consideration the
legal consequences of this union. When two people
marry, they make a promise, in front of witnesses,
to provide and care for one another. The law has
evolved to enforce this promise, to protect the
rights of both parties and to protect the rights of
any children born during the relationship.
The legal definition of marriage
The descriptions of marriage in Australian legi-
slation are based on the definition in the English
case of Hyde v Hyde and Woodmansee (1866) LR 1
P&D 130. Lord Penzance, in his decision, stated
that a marriage is the ‘voluntary union for life of one
man and one woman, to the exclusion of all others’,
i.e. a formal, monogamous and heterosexual union.
These elements can be explained as follows:
s Marriage must be voluntarily entered into. The
marriage is not legally binding if one of the
parties was forced or tricked into the marriage.
s Marriage, by definition, is for life. However, a
married couple do have the right to divorce,
thereby ending the marriage legally, before the
death of either party.
s The specification of one man and one woman
indicates that the parties to the marriage must
be of different sexes.
s ‘To the exclusion of all others’ means that
marriage is the union of two people only. Some
cultures and societies do allow individuals to
have more than one spouse, that is, to have
polygamous relationships. However, polyga-

O p t i o n 3: F am ily
mous marriages are not recognised in Australia
and are void if entered into within Australia. Figure 12.1 According to the Marriage Act 1961
(Cth), marriage is ‘the union of a man and a
woman to the exclusion of all others, voluntarily
Requirements for a valid
entered into for life’.
marriage
Certain requirements must be met if a marriage is
to be legally valid. These requirements, found in PRO H I B I TED REL ATI O NSH I PS polygamous
having more than one
the Marriage Act 1961 (Cth), are discussed below. A person cannot marry anyone who is closely
wife or husband at the
related to him or her either by ‘blood’ same time
G END ER (consanguinity) or by marriage (affinity). This descendant
In 2004, the Commonwealth Government passed means that a person cannot marry his or her a person who by
genetics or adoption
the Marriage Amendment Act to add the above descendant, ancestor, brother or sister. This also
follows the family line
definition of marriage to the Marriage Act 1961 applies to half-siblings and to adopted siblings, of another; a child,
(Cth), which had not previously contained one. which includes adopted descendants and ances- grandchild, great-
grandchild, etc.
Section 5(1) of the Act defines marriage as ‘the tors who are related to the person by marriage.
ancestor
union of a man and a woman to the exclusion of However, a person can marry her uncle or his
a person from
all others, voluntarily entered into for life’, and aunt, his niece or her nephew, or a first cousin. whom someone
s 88EA explicitly states that a same-sex marriage is descended, on
either parent’s side; a
solemnised in a foreign country will not be NO TI C E O F M A RRI A G E parent, grandparent,
recognised in Australia. A couple intending to be married must give a great-grandparent,
etc.
completed Notice of Intended Marriage form to the
celebrant
MARRIAGEAB LE AGE authorised marriage celebrant who will conduct
a person who is
A person may marry at the age of 18 (s 11). If the ceremony, no earlier than 18 months before authorised to perform
either of the parties wanting to marry is between the marriage and no later than one month and one a civil or religious
marriage ceremony
the ages of 16 and 18, he or she must apply to day before it. The notice must be in writing and be
a judge or magistrate for an order authorising signed by both parties in the presence of a witness.
the marriage (s 12). Such an order will only be Approved witnesses include marriage celebrants,
granted in circumstances that are sufficiently justices of the peace, police officers, solicitors and
‘exceptional and unusual’: for example, if the doctors. Parties who intend to marry must provide
couple’s parents consent and/or if the couple are proof of age, usually their birth certificate. If either
shown to be mature and financially independent. party has been married previously, he or she must
Pregnancy alone will not guarantee an order. No provide evidence that that marriage has been
person under 16 can marry. dissolved, by death of the spouse or divorce.

Cha pter 12: Option 3 : Fami l y 313

 R EVIEW 12.1
1 Define ‘family’.
2 Explain how families have changed. Provide
examples to illustrate your answer.
3 Outline the main function of families.
4 Explain the meaning of each part of Lord
Penzance’s definition of ‘marriage’ and use
of the marriage certificate. One copy must be
lodged at the state Registry of Births, Deaths and
Marriages within fourteen days of the date of the
marriage.
Void marriages
A marriage can be declared void, or invalid, if

examples to illustrate each part. it fails to meet the definition of marriage; if, for

5 Define ‘prohibited relationship’, providing example:

examples of whom a person is and is not s the parties were of the same-sex

permitted to marry. s consent was not freely given by one of the

Requirements for a valid
marriage ceremony
The marriage ceremony must meet set criteria. An
authorised marriage celebrant must perform the
ceremony, and there must be two witnesses, both
aged over 18. There are no formal requirements
concerning the attire, the structure of the cere-
mony or the words of the ceremony. If the marriage
ceremony satisfies the conditions in Parts IV and V
of the Marriage Act 1961, then it is valid.
The celebrant issues a marriage certificate after
nullify
to declare legally void the ceremony is completed. This document is legal
or invalid proof that the ceremony took place according to
annulment law. The marriage celebrant usually provides three
a declaration by a
court that a supposed copies of the certificate. The celebrant, husband,
marriage is in fact void wife and two witnesses must each sign all copies
c a s e s pa c e
parties
s one or both parties at the time of the marriage
were married to someone else.
A marriage may also become void if the mar-
riage fails to meet the criteria for a valid marriage;
if, for instance:
s one or both parties were too young
s the parties are too closely related, by blood or
marriage
s 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.
However, any children born during the marriage
are considered to be the legitimate children of the
marriage.

Di Mento v Visalli (1973) 1 ALR 352

Mattia Di Mento, who was 14
at the time, was living in Sicily
with her parents when she was
kidnapped by Visalli, a 20-year-
old man. Visalli repeatedly
asked her to marry him, but she
refused. Di Mento was eventually
released; however, her father
told her that he would shoot
her if she did not marry Visalli.
The father argued that if she
did not marry him the family’s
reputation would be ruined. Di
Mento agreed and she married
Visalli. Two years later, she gave
birth to a child, and when the
child was a month old Visalli left
her, never to return.
Di Mento emigrated to
Australia and sought to have
the marriage annulled on
the grounds that she did not
voluntarily give her consent. The
court held that the marriage was
void because it was obtained by
duress, and noted that the Act
does not require that the duress
exerted be that of the spouse;
in this case, it was exerted by Di
Mento’s father.

314 C am b r id g e L e g a l S t u d ie s – HS C
Legal consequences
and responsibilities of
marriage
Marriage often forms the basis of our most impor-
tant emotional relationships and is regarded as
a significant social institution. In addition, it is a
legally binding agreement between a man and a
woman, which imposes mutual duties and obli-
gations. In the event that the relationship breaks
down, the law acts to ensure that the parties to the
marriage will fulfil their obligations and resolve
any issues in dispute. It also acts to protect the
more vulnerable family members, notably by
ensuring that both parents provide for the welfare
of their children.
Mutual duties of husband
and wife
A husband and wife are mutually responsible to
one another. The law does not concern itself with
how partners in a marriage carry out their duties
and responsibilities. Rather, the law tends to inter-
vene only in cases where the marriage has broken
down, where one or both parties to the marriage
have not fulfilled their responsibilities, or when
spousal rights have been infringed. Generally, the
expectation is that both parties will support each
other financially and emotionally and remain
faithful. However, no law exists to enforce these
expectations. For instance, there is no law against
adultery nor is it now grounds for divorce. Nor is
there an automatic right to sexual relations with
one’s spouse. Anyone who intentionally engages in
sex with a person who has not consented has
committed a crime, whether or not he (or she) is
married to the victim.
Maintenance
Maintenance is a financial payment made by one
spouse to contribute to the care and welfare of the
other spouse and/or children of the marriage.
Under s 72 of the Family Law Act 1975 (Cth), if
someone is unable to support himself or herself,
his or her spouse is obligated to provide mainten-
O p t i o n 3: F am ily
Figure 12.2 Most spouses buying a home
together choose to hold the title as joint
tenants. This means they own the home equally.
ance. Some examples of instances where this is
required are:
s the person has the care and control of a child of
the marriage who is under 18 years old
s the person is not able to be employed because
of age or physical or mental incapacity.
Spousal maintenance is not automatic. The
court considers the question of ‘need’ when deci-
ding on matters of maintenance. For example, it
will consider whether the spouse seeking mainten-
ance has income, property or financial assets that
could provide the means of financial indepen-
dence, and whether the spouse from whom it is
sought has the capacity to pay. The court must
consider the factors set out in ss 75(2) and 79(4)
with respect to both spouses.
Spousal maintenance is usually only sought maintenance
a financial payment
after the marriage has ended. It is usually granted
made by one spouse
for a limited period, until the spouse gains the to contribute to the
ability to be financially independent. Both parties care and welfare of
the other spouse and/
have a duty to maintain any child of their
or children of the
marriage. marriage
Cha pter 12: Option 3 : Fami l y 315

will
a document that states
how a person intends
to have his or her
property distributed
after his or her death
probate
a legal document
that is issued by the
court and certifies that
the will is true and
correct (proved), and
authorises the executor
to administer the estate
intestacy
the situation in which a
person dies without a
legally valid will
R E VIE W 12.2
1 Outline the reasons why a
marriage may be declared
invalid.
2 Explain why a court may
order a person to provide
financial support to his
or her spouse after the
marriage has ended.
3 Explain who owns property
purchased:
a by one spouse before
marriage.
b by one person during
the marriage.
c by the couple during the
marriage.
4 Outline the factors that are
taken into account when
deciding ownership of
property in the event the
relationship breaks down.
5 Explain how marriage
affects wills.
316 C am b r id g e L e g a l S t u d ie s – HS C
Property rights
The largest asset acquired during a marriage is
usually the marital home. When two people buy
a house together, they can choose to own equal
shares in the property (as joint tenants), or in
unequal shares (as tenants in common). Joint
tenancy is the more popular option for most
married and de facto couples; if one partner
dies, the surviving spouse will inherit the whole
property. Tenancy in common may be preferred if
the parties do not want their shares necessarily to
go to the other; for example, if someone wants to
leave his or her share to another individual such as
a child of a previous relationship.
Not all property acquired during the marriage
may be owned jointly. Any property purchased
by one spouse during the marriage remains the
property of the spouse who paid for it. Also, any
property owned by a person prior to marriage still
belongs to that person after marriage.
Marriage does not automatically
change ownership of property. How-
ever, the length of time the parties
have been married and the financial
and non-financial contributions, inclu-
ding any improvements made to the
property, will alter ‘ownership’.
Contract and agency
Any individual can enter into a
contract, acting for himself or herself
alone. This is not altered by marriage.
Although a person (the ‘principal’)
can appoint someone else (an ‘agent’)
to enter into a contract on his or her
behalf, and the contract is then legally
binding on the principal, a spouse is
not automatically authorised as an
agent in all contractual situations.
Just as there is no law that assets
become joint property upon marriage,
the same applies to debts in the sole
name of one individual: spouses
cannot be held liable for each other’s
debts. It is only upon the breakdown
of a marriage that the court may
make orders altering property interests, under the
Family Law Act 1975 (Cth) s 79. In addition, spouses
have the right to sue each other in contract or tort
(s 119).
Wills
A will is a document that states how a person
intends to have his or her property distributed
after his or her death. The executor must obtain a
grant of probate before the will of the deceased
person can be administered, that is, before monies
and/or assets can be released.
A person who dies without leaving a will is
referred to as intestate, or ‘partially intestate’ if his
or her will does not effectively dispose of all of his
or her property. State laws governing intestacy
determine how the property of the deceased is
divided. Generally, with the exception of some
monies that will be deducted for probate, the
entire property will go to the surviving spouse, or
the spouse and any children of the marriage. Other
family members can also inherit. The parents and
siblings of the deceased may all inherit if no valid
will exists. In NSW, the property is distributed
to certain family members according to a pre-
determined formula under the Succession Act 2006
(NSW), as amended in 2009 by the Succession
Amendment (Intestacy) Act 2009 (NSW).
The Succession Act was also amended by the
Succession Amendment (Family Provision) Act 2008
(NSW). While a person can leave his or her property
to anyone he or she chooses, s 58 of the Succession
Act 2006 (NSW) now allows certain family members
to apply for a family provision order. A spouse or
de facto spouse, child, grandchild, former spouse,
or another person who was in a close personal
relationship with or dependent on the deceased
can apply to the court for such an order. However,
the Act encourages disputing parties to enter into
mediation rather than contesting the will.
Marriage automatically cancels any pre-existing
will unless the person made the will in anticipation
of marriage (Succession Act 2006 (NSW) s 12).
Divorce or annulment cancels any provision in
an existing will that favours the divorced spouse
(Succession Act 2006 (NSW) s 13).
Alternative family
relationships
Aboriginal and Torres Strait
Islander peoples’ customary
law marriages
Relationships within Aboriginal and Torres Strait
Islander (ATSI) communities are bound by tradi-
tions and enforced through customary law. Children
may be betrothed at an early age and parents or
elders generally arrange marriages. Typically,
ATSI customary law marriages do not conform to
the requirements of a valid marriage under the
Marriage Act 1961 (Cth). These ATSI marriages are
generally not legally recorded, nor are they regis-
tered with the relevant authorities. The law, there-
fore, does not formally recognise ATSI customary
law marriages as having any legal standing.
In 1986, the Australian Law Reform Commission
tabled a report in parliament dealing with the
lack of recognition afforded to ATSI customary
laws by general Australian law. The part of the
report focusing on marriage, children and prop-
erty settlement recommended that traditional
marriages of Indigenous Australians should be
recognised and given legal status in order to:
s ensure the legitimacy of the children of those
relationships
s ensure that any child of those relationships will
be given the same protection as children of mar-
ried couples under adoption and welfare laws
s protect the right of inheritance of the surviving
spouse if his or her partner dies intestate
s allow a surviving spouse to claim any compen-
sation payments owing to his or her partner,
including workers’ compensation
s ensure that spouses in these relationships are
covered by the same laws of evidence, in court
proceedings, that apply to spouses married
under general Australian law
s allow the couple to claim the same tax benefits
as those that are currently available to de facto
or married couples.
The federal government’s response to the report
in 1995 suggested that most of the recommen-
dations are more appropriate for implementation
in state and territory law. However, the circum-
stances of Indigenous children are specifically
provided for in legislation such as the Family Law
Act 1975 (Cth); for example s 61F states that a court
making decisions about parental responsibility
must take account of any kinship obligations and
child-rearing practices of the child’s Aboriginal or
Torres Strait Islander culture.
The state parliaments have addressed some
of the recommendations since then, including
recognition of traditional marriages for limited
purposes.
O p t i o n 3: Fam ily
Children of any relationship – whether ATSI
or not, or ex-nuptial or nuptial – are protected ex-nuptial
a Latin term meaning
under the Family Law Act 1975 (Cth) and the Status
‘outside marriage’; an
of Children Act 1996 (NSW). If an ATSI customary ex-nuptial child is a
marriage does break down, the Family Court child born outside a
marriage
will determine an appropriate parenting order,
nuptial
including maintenance arrangements and deci-
a Latin term meaning
ding which parent will be given care and control of marriage; a nuptial
the child. The order is made on the basis of what child is a child born
within a marriage
the court determines is in the ‘best interest’ of the
child and the child’s need to maintain a connection
with the ATSI lifestyle, culture and traditions.
Single-parent families
The increase in the number of divorces, the
changes in social attitudes, an improved welfare
state and greater financial independence of
women have all contributed to the growth of
single-parent families. According to the Australian
Bureau of Statistics, in 2006–07 there were 5.9
million families in Australia; of these 14 per cent
(808 000) were single-parent families.
One in five children live in single-parent fami-
lies. In 2006, 87 per cent of single-parent families
with children under 15 years were headed by
women.
In addition to the many social issues confron-
ting single parents, they may face difficulties in
accessing legal advice, pursuing their rights in
court and obtaining adequate legal protection. The
high cost associated with taking a matter to court
may discourage single parents from actively
pursuing the protection of their rights through the
courts.
Cha pter 12: Option 3 : Fami l y 317
 legal links
For more statistics on one-parent
families visit the ABS web page at
www.abs.gov.au/AUSSTATS/abs@.
nsf/0/F4B15709EC89CB1ECA
25732C002079B2?
The Child Support Scheme was introduced in
1988 to enforce maintenance orders on parents
who do not reside with their dependent children.
The scheme, which was originally part of the
Australian Taxation Office and is now part of the
Commonwealth Department of Human Services,
ensures that parents fulfil their responsibility
towards their children by automatically deducting
payments from the supporting parent’s wage. The
Child Support (Registration and Collection) Act 1988
(Cth) shifted the collection and enforcement of
child support from the courts to an administrative
system, and the Child Support (Assessment) Act
1989 (Cth) introduced a formula for the calculation
Figure 12.3 A blended family is created when a parent remarries. The family includes the stepmother
or stepfather and stepchildren.
318 C am b r id g e L e g a l S t u d ie s – HS C
of child support owed, again using an admini-
strative rather than judicial procedure.
Blended families
A blended family is created when a parent re-
marries. When a parent and his or her children
from a former marriage or relationship live with
another parent and children in similar circum-
stances, it is considered to be a blended family. The
family includes the stepmother or stepfather and
stepchildren. One-third of all registered marriages
in 2008 involved individuals who were marrying
for the second time. Many divorced couples choose
to cohabit (live together) rather than remarry.
Although a step-parent may be viewed as the
parent of his or her partner’s child, step-parents
do not have the same legal responsibilities for the
care and control of the child. A step-parent does
not have an automatic right or duty to discipline
his or her partner’s child or to make the day-to-
day decisions concerning the health and welfare
of the child. A step-parent is not responsible for
the maintenance or support of a partner’s child;
the financial obligations towards a child remain
with the child’s parents. However, a court may
make an order requiring a step-parent to pay
financial support if satisfied that the step-parent
has a duty to maintain the child (Family Law Act
1975 (Cth) ss 66D, 66M, 66N). A step-parent may
also become financially responsible for his or her
partner’s children if the family has existed for a
long time and the natural parent is dead or cannot
be found.
Step-parents intending to adopt must first apply
to the Family Court (Family Law Act s 60G). Upon
approval, the step-parent must then apply to the
state Supreme Court for an adoption order. For
such an order to be granted in NSW, the step-
parent must have lived with the child and the
child’s natural or adoptive parent for no less than
two years, and the child must be at least five years
old (Adoption Act 2000 (NSW) s 30). If a step-parent
does adopt his or her partner’s children, these
children will have the same legal rights as children
born naturally into the parental relationship.
Stepchildren do not have an automatic claim
to the estate of their step-parent if the step-parent
dies intestate. In order to claim successfully
against the estate of a step-parent, stepchildren
must prove that they were financially dependent
upon the step-parent. Stepchildren in this situation
may apply for a family provision order under s 58
of the Succession Act 2006 (NSW).
REVIEW 12.3
1 Discuss the status of traditional Aboriginal
and Torres Strait Islander marriages under
federal and state law.
2 Identify some challenges for single-parent
families and ways the federal government
has tried to address these challenges.
3 Discuss the rights of stepchildren under:
a federal law
b state law.
4 Explain the interaction of state and
federal law with respect to adoptions of
stepchildren by a step-parent.
De facto relationships
A de facto relationship is defined in s 4AA of the
Family Law Act 1975 (Cth) as one in which:
s the partners are not legally married to each
other
s neither is the parent, child, descendant or
sibling of the other, and
s they have a relationship as a couple living
together on a genuine domestic basis.
According to the Australian Bureau of Statistics,
as of 2008, over 70 per cent of couples who marry
have lived together prior to marriage.
O p t i o n 3: Fam ily
As discussed at the beginning of this chapter,
the ‘marriage power’ is one of the enumerated
powers of the Federal Parliament under the Austra-
lian Constitution. However, as a result of states
referring their powers to the federal government,
the Family Law Act 1975 (Cth), as amended by the
Family Law Amendment (De Facto Financial Matters
and Other Measures) Act 2008 (Cth), governs
property settlements and maintenance orders for
separating de facto couples. The federal legislation
applies to couples whose relationship broke down
on or after 1 March 2009, and to those whose
relationship broke down earlier if they choose to
be bound by federal rather than state law in this
matter. Matters relating to the children of de facto
relationships will be heard in the Family Court.
Same-sex relationships
STATE L E G I SL ATI O N
The law has recognised relationships that exist
outside the traditional concept of marriage. The De
Facto Relationships Act 1984 (NSW) was amended
by the Property (Relationships) Legislation Amend-
ment Act 1999 (NSW) and renamed the Property
(Relationships) Act 1984 (NSW). The Property (Rela-
tionships) Act 1984 (NSW) recognises same-sex
relationships as having the same legal standing as
heterosexual de facto relationships, and provides
the same protection. Section 4 of this Act defines
a de facto relationship as ‘a relationship between
two adult persons who live together as a couple,
and who are not married to one another or related
Cha pter 12: Option 3 : Fami l y 319

Figure 12.4 Same-sex relationships have the
same legal standing as de facto relationships.
by family’. The Act provided protection to people
in same-sex de facto relationships in property
division, inheritance and decision-making in ill-
ness and after death.
The definition of ‘de facto’ in this Act also
applies to persons making an application for fami-
ly provision under the Succession Act 2008 (NSW),
and to entitlements of the de facto partners of
individuals who died intestate, under the laws
amended by the Succession Amendment (Intestacy)
Act 2009 (NSW). In other words, same-sex partners
have the same entitlements under those laws as if
they were married.
Section 4AA(5) of the Family Law Act 1975
(Cth) states that a de facto relationship can exist
whether the persons are of the same sex or dif-
ferent sexes. Therefore, the Family Law Act governs
property settlements between separating same-
sex couples.
F EDER AL L EGIS L AT ION
Under s 18 of the Evidence Act 1995 (Cth) and s 18
of the NSW and Victorian Evidence Acts modelled
on that Act (the Uniform Evidence Acts), a de
facto partner in either a same-sex or opposite-sex
relationship cannot be compelled to give evidence
against his or her partner in certain criminal
proceedings. Not all states have such provisions in
their Evidence Acts, however.
In response to the Australian Human Rights
Commission’s report Same-Sex: Same Entitlements:
A National Inquiry into Discrimination against
People in Same-Sex Relationships: Financial and
Work-Related Entitlements and Benefits (2007), the
320 C am b r id g e L e g a l S t u d ie s – HS C
federal government amended 84 Commonwealth
Acts in 2008 to remove differential treatment
of same-sex couples. These Acts include laws
about tax, superannuation, Medicare, aged care,
veterans’ entitlements, workers’ compensation,
employment entitlements, family law and child
support.
While these recent amendments give same-sex
couples most of the same rights as de facto hetero-
sexual couples, no federal government has been in
favour of amending the definition in the Marriage
Act 1961 (Cth) to allow same-sex marriage. A bill
that would have done so, the Marriage Equality
Amendment Bill 2009, was introduced by the
Greens but defeated in the Senate in February
2010.
Polygamous marriages
A polygamous marriage refers to a relationship
that is formed when an individual marries more
than one person. While some cultures and reli-
gions permit polygamous marriages overseas,
polygamous marriages are not legal in Australia.
However, under s 6 of the Family Law Act 1975
(Cth), a polygamous marriage that was entered
into overseas is deemed to be a marriage for the
purpose of children’s matters, property settle-
ments and other court proceedings under the
Family Law Act. This means that if the marriage
does break down, the parties may seek orders for
child and/or spousal maintenance, division of
property, and parenting plans. A party can also
seek domestic violence orders.
R EVI EW 1 2 . 4
1 Define ‘de facto relationship’.
2 Explain the status of same-sex relationships
with respect to:
a property settlements
b wills
c giving evidence against one’s partner in
a criminal proceeding
d superannuation
and identify whether the matter is
governed by state or federal law.
Legal rights and
obligations of parents
and children
Within the family, the rights of the child are
paramount because they are seen to be the most
vulnerable members of the family and as such
require the greatest legal protection.
As noted above, the Family Law Act 1975 (Cth)
governs proceedings for a divorce or annulment of
a marriage, as well as maintenance and property
proceedings, whether the parties are married or
in the process of ending the marriage. Its Part
Parental care
RI G H TS DERI VED FRO M I NTERNATI O NA L
L AW
The rights of children are articulated and pro-
tected by the United Nations Convention on the
Rights of the Child (CROC), which was adopted by
the UN in 1989 and has been signed and ratified
by all but two member states as of March 2010.
The convention declares that persons under 18
years of age must be protected from violence,
discrimination, exploitation and neglect.
Australia ratified CROC in 1990 and so is bound,

VII governs proceedings in relation to children,
particularly parenting arrangements. However,
most of the laws relating to the care and protection
of children are at state or territory level.
Children have the obligation to obey the law just
as adults do, though the procedures for enforcing
those laws are different from the legal mecha-
nisms appropriate to adults.
Some of the Acts concerning children in New
South Wales are listed in table 12.1. (For more
information about children and the law, go to the
Web Law website: www.weblaw.edu.au.)
O p t i o n 3: Fam ily
in international law, to its terms. Ratification is a
statement to the international community that the
federal government will adhere to its terms and
act in a certain way in its international conduct.
International instruments may be used by
courts in interpreting statutes or developing the
common law. In addition, CROC was declared
a ‘relevant international instrument’ under the
Human Rights and Equal Opportunity Act 1986 (Cth)
and the Australian Human Rights Commission can
therefore refer to it when hearing complaints of
discrimination.

Table 12.1 Legislation concerning children in NSW

Name of the Act Area covered by the Act

Adoption Act 2000 (NSW)
Child Protection (Offenders
Registration) Act 2000 (NSW)
Children (Criminal Proceedings)
Act 1987 (NSW)
Children (Protection and Parental
Responsibility) Act 1997 (NSW)
Children and Young Persons (Care
and Protection) Act 1998 (NSW)
Children’s Court Act 1987 (NSW)
Status of Children Act 1996 (NSW)
Young Offenders Act 1997 (NSW)
Adoption of children and access to information relating to adoption
Requirements of persons convicted of certain offences against children, including the
requirement to register with the police upon their release into the community and to
provide specified information about themselves to police
Conduct of criminal proceedings against children and other young persons
Responsibility of parents for the behaviour of their children; greater police powers
in respect of children, e.g. removal of children from public places and their return to
their parents’ residence
Responsibilities of the NSW Department of Community Services and other agencies
regarding the care and protection of children and young persons who are at risk of
harm or are being abused
Establishment of a Children’s Court of New South Wales; its jurisdiction and functions
Enshrines the rights of ex-nuptial children to be treated the same as children born
within marriage, for legal purposes including the disposition of property; also allows
parentage to be established via DNA testing
Procedures for dealing with child offenders, including youth justice conferences,
cautions and warnings; court proceedings are seen as a last resort

Cha pter 12: Option 3 : Fami l y 321

 However, as with the other human rights
treaties to which Australia is a party, no federal
legislation has been passed implementing it in
Australian domestic law. This means that it is not
binding at the domestic level (not enforceable in
Australian courts). The Commonwealth has left
implementation of CROC obligations up to the
discretion of the state governments.
Nonetheless, many of CROC’s principles are
embedded in state child protection legislation.
Following Article 3 of CROC, legislation in both
federal and state jurisdictions states that children’s
best interests should be a primary consideration
in decisions concerning children. Other elements
l eg al i nfo
Children and Young Persons (Care and Protection) Act 1998 (NSW) s 10
The principle of participation
(1) To ensure that a child or young person is able
to participate in decisions made under or pursuant
to this Act that have a significant impact on his
or her life, the Director-General is responsible
for providing the child or young person with the
following:
(a) adequate information, in a manner and
language that he or she can understand,
concerning the decisions to be made, the reasons
for the Department’s intervention, the ways in
which the child or young person can participate
in decision-making and any relevant complaint
mechanisms,
(b) the opportunity to express his or her views
freely, according to his or her abilities,
(c) any assistance that is necessary for the child
or young person to express those views,
(d) information as to how his or her views will be
recorded and taken into account,
(e) information about the outcome of any decision
concerning the child or young person and a full
explanation of the reasons for the decision,
322 C am b r id g e L e g a l S t u d ie s – HS C
of CROC that are reflected in state legislation
include:
s Article 12 – A child has the right to express his
or her opinions and be heard in proceedings
affecting him or her, in a manner consistent
with the procedural rules of the jurisdiction,
and the child’s views are to be given due weight
in accordance with the child’s age and maturity.
This is reflected in legislation providing for
children’s participation in decision-making.
s Preamble – ‘Taking due account of the impor-
tance of the traditions and cultural values of
each people for the protection and harmonious
development of the child’ is one of the aims
(f) an opportunity to respond to a decision made
under this Act concerning the child or young
person.
(2) In the application of this principle, due regard
must be had to the age and developmental capacity
of the child or young person.
(3) Decisions that are likely to have a significant
impact on the life of a child or young person
include, but are not limited to, the following:
(a) plans for emergency or ongoing care,
including placement,
(b) the development of care plans concerning the
child or young person,
(c) Children’s Court applications concerning the
child or young person,
(d) reviews of care plans concerning the child or
young person,
(e) provision of counselling or treatment services,
(f) contact with family or others connected with
the child or young person.
 of legislative provisions that specifically pre-
scribe taking an Indigenous child’s culture into
account in decision-making procedures, for
example Children and Young Persons (Care and
Protection) Act 1998 (NSW) ss 11, 12 and 13.
s Article 2 – enjoins state parties to ensure that
the child is protected against discrimination or
punishment on the basis of the status, activities,
expressed opinions, or beliefs of the child’s
parents or family members. This is reflected in
s 202 of the Children and Young Persons (Care
and Protection) Act 1998 (NSW), which states
that those involved in the provision of children’s
services such as education, medical care or day
care must have regard to the Anti-Discrimi-
nation Act 1977 (NSW).
l eg al l i nks
The UNICEF web page has a
simplified version of the UN
Convention on the Rights of the
Child, as well as links to the full
text of the convention:
www.unicef.com.au/Unicef/
SchoolRoom/ForChildrenand
YoungPeople/LearnMoreand
GetInvolved/ChildrensRights/
TheUNConventionon theRights
oftheChild/tabid/126/Default.
aspx
PA RENTAL RESPON S IBIL IT Y UN DER T H E
FA M ILY LAW ACT 1975 ( C T H )
Part VII of the Family Law Act 1975 (Cth) has the
object of ensuring that the best interests of chil-
dren are met. This is the chief factor that courts
must take into consideration when making chil-
dren’s orders. ‘Best interests’, as listed in s 60B of
the Act, include:
s the benefits of a meaningful involvement in
their lives by both parents
s protection from physical or psychological harm
from abuse, neglect or violence
s adequate and proper parenting to help the
children achieve their full potential.
Section 60B also sets out the principles under-
lying these objects:
s Children have the right to know and be cared for
by both their parents.
s Children have the right to spend time and com-
municate regularly with their parents, and
others significant to their welfare, care and
development (e.g. grandparents).
O p t i o n 3: Fam ily
s Parents share responsibilities for their children’s
care and welfare.
s Parents should agree about parenting matters.
s Children have the right to enjoy their culture,
including the right to enjoy it with other people
who share it.
The emphasis on responsibilities shared equally
by both parents was introduced in large part by the
Family Law Reform Act 1995 (Cth), which made signi-
ficant amendments to the Family Law Act 1975 (Cth)
with respect to children. Further amendments were
made by the Family Law Amendment (Shared Parental
Responsibility) Act 2006 (Cth), which gave further
emphasis to the child’s right to meaningful family
relationships and care, rather than either parent’s
‘right’ to have the child live with him or her.
The Family Law Reform Act 1995 (Cth) introduced
parenting plans, which are written agreements
voluntarily agreed to by parents. In contrast to
court orders assigning ‘custody’ to a parent, parents
are encouraged to create such plans themselves.
The plans can deal with any aspect of a child’s care
and welfare, such as the child’s living arrangements,
the amount of time the child will spend with each
parent, how the child’s educational, cultural and
religious needs will be handled, and what process
will be used to make changes to the plan or resolve
disagreements. If the parents cannot agree, they
will be issued with a parenting order, which is a
court-imposed decision.
The law allows parents to raise their children
as they see fit, within general guidelines. Parental
Cha pter 12: Option 3 : Fami l y 323

neglect
continued failure by
a parent to provide
a child with the basic
things needed for
proper growth and
development, e.g. food,
shelter, medical care,
hygiene and supervision
compensation
a monetary payment
made to a person to
make amends for any
loss, injury, or damage
to property
324 C am b r id g e L e g a l S t u d ie s – HS C
responsibilites to a child are not specifically
defined in the legislation, but would include:
s providing adequate food and shelter
s providing access to education
s consenting to medical treatment
s providing discipline
s protecting the child from harm and ensuring
that he or she is not exposed to illegal activities
s ensuring that others are not harmed by their
child.
C ON S EQUEN C ES OF PAR EN TA L NE G L E C T
UN DER S TAT E L AWS
Parents who fail in their duty to their child may
face any of a number of consequences. These
offences, and their consequences, are provided for
in state and territory legislation, not the Family
Law Act 1975 (Cth). Continued failure by a parent
to provide the basic things needed for proper
development (food, shelter, hygiene, medical and
dental care, adequate supervision, emotional
security) may result in criminal prosecution for
neglect of the child. Neglect is a criminal offence
under both the Children and Young Persons (Care
and Protection) Act 1998 (NSW) (s 228), which
carries fines of up to $22 000, and the Crimes Act
1900 (NSW) (s 43A), which provides for a gaol term
of up to five years. If suspected child abuse or
neglect is reported, Community Services will send
a caseworker to talk with parents and other family
members, and may follow up with practical help or
counselling. In some cases, Community Services
will apply to the Children’s Court of NSW for an
order, e.g. for supervision of the family relationship
through visits, support services, or transfer of
parental responsibilities, e.g. to foster care. Foster
care is usually temporary and involves a couple
taking on the parental responsibility of caring for
and controlling the child. One alternative to foster
care is for children to live in ‘group homes’ under
adult supervision, such as under the care of a
youth worker and child counsellors.
Parents may be held liable in tort for any dam-
age or injury that their child causes and can be
forced to pay the injured party compensation.
The Children and Young Persons (Care and
Protection) Act 1998 (NSW) addresses family prob-
lems in terms of the child’s needs and care. Other
state laws, such as the Children (Protection and
Parental Responsibility) Act 1997 (NSW) and the
Children (Criminal Proceedings) Act 1987 (NSW),
deal with the prevention of juvenile crime and the
criminal process appropriate to persons under 18.
Education
The right to an education is one of the objects of
the Education Act 1900 (NSW), and is also found in
the UN Convention on the Rights of the Child (CROC).
The Education Act imposes on the state the duty
to ensure that every child receives an adequate
education. Parents cannot refuse their child an
education, but they do have the right to choose
where their child will be educated. Parents may
choose to send their child to either a state school
or an approved non-government or private school.
There are provisions for the parent to educate the
child at home (if government consent has been
granted) or by distance education, as long as the
child is educated according to curricula approved
by the state Board of Studies. Failure to enrol a
child in a school or to provide the child access to
an education is a criminal offence.
In NSW it is compulsory for a child to attend
an educational facility from the age of 6 until the
minimum school-leaving age, which is 17 years or
the completion of Year 10. Changes to the Education
Act 1900 (NSW) in 2009 now require every young
person who has completed Year 10 to be in some
form of education, training or employment until
he or she reaches the age of 17.
Discipline
Parents have the right to discipline their child
by using physical force in order to correct their
child’s behaviour, but the physical force must
be ‘reasonable, having regard to the age, health,
maturity or other characteristics of the child,
the nature of the alleged misbehaviour or other
circumstances’ (Crimes Act 1900 (NSW) s 61AA).
The defence of ‘lawful correction’ in criminal

Figure 12.5 Parents can be held liable for any damage their child causes.
proceedings against a parent or other person for
assault will not be available if the physical force
was not reasonable.
What is considered to be reasonable and
acceptable discipline can vary from culture to
culture, but the range of punishment that will not
be considered reasonable by a court in Australia
includes striking the head or neck of a child,
causing pain lasting for more than a short period,
shaking a young child and striking a child with a
closed fist.
REVIEW 12.5
1 Evaluate the influence of the UN Convention
on the Rights of the Child on family law in
Australia.
2 Explain the concept of ‘best interests of the
child’ as elaborated by the Family Law Act
1975 (Cth).
3 Explain the concept of parents’
responsibility to their children, giving
examples.
4 Identify the requirements that must be
satisfied before a person can leave school.
5 Explain the requirement that physical
punishment of children must be
‘reasonable’, identifying what must be
considered. Justify this requirement.
O p t i o n 3: Fam ily
R ESEAR CH 1 2 . 1
Go to the Children (Protection and Parental assault
a criminal offence
Responsibility) Act 1997 (NSW) at www. involving the infliction
legislation.nsw.gov.au/viewtop/inforce/ of physical force or
the threat of physical
act+78+1997+FIRST+0+N and answer the
force
following questions:
1 What is a court required to consider when
deciding how a child should be dealt with
under this Act? (See s 6.)
2 List two ways that a court might respond
to a child found guilty of an offence under
this Act in order to encourage parental
responsibility. (See ss 8 and 9.)
3 Look at Part 3 of the Act, especially ss 18, 19,
20, 21 and 22.
a Summarise the specific issue or issues that
the Act attempts to address.
b Do you think this Act is the best way to
address these issues? Justify your answer.
Medical treatment
As discussed, parents are responsible for ensuring
that appropriate medical and dental care are
available for their minor children. However,
consent must be given before a doctor can carry
out any treatment. As with any decision carrying
risk, a person’s consent implies an understanding
of what is involved and agreement or acceptance
Cha pter 12: Option 3 : Fami l y 325
 of the procedure and the risks. For children under
14, the consent of a parent (or guardian) is
required, and parents have the right to authorise
any such treatment considered in the child’s best
interests. For those between 14 and 16, either the
child’s consent or a parent’s consent is required.
Medical or dental treatment of young persons aged
16–17 requires the consent of the young person.
These requirements are contained in the Minors
(Property and Contracts) Act 1970 (NSW) s 49. If the
parents refuse medical or dental treatment (for
instance, on religious grounds), a court can author-
ise the treatment.
If the child is over 16 and is intellectually dis-
abled, such that he or she does not understand the
problem and the treatment, then the Guardianship
Act 1987 (NSW) specifies who can give consent.
Usually, this will be a ‘person responsible’, such
as a parent.
Autonomy of children
Children are regarded as not yet having developed
the cognitive abilities and the capacity to under-
stand the consequences of their actions, and
are considered unable to make fully informed
decisions. In an effort to protect children, the

Table 12.2 Legal autonomy of children in Australia*

Area of responsibility Explanation

Alcohol and cigarettes It is illegal for a child under 18 to purchase, possess and/or consume alcohol and cigarettes.
Arrest The police can only question a child in the presence of an adult. This adult could be the child’s
parent or guardian.
Civil law Children can be sued for any damage or injury that they cause. In some situations a child’s
parents may be held responsible for the damage their child caused.
Contracts A child can only enter into a contract if an adult acts as guarantor. The contract must be for the
benefit of the child.
Criminal responsibility Children under 10 are not criminally responsible for their actions because there is a
presumption that they do not have the capacity to understand the difference between right
and wrong and so cannot form an intention to commit a criminal act. If the child is aged 10 to
14 years the prosecution must prove that the child understood that his or her act was illegal;
that is, that criminal intent was present. Children aged 14 years or older are considered to be
responsible for their criminal actions.
Driving A child can obtain his or her learner’s permit at 16 years in NSW. Once the child turns 17 he or
she can obtain a probationary licence.
Employment There is no minimum age for starting work in NSW. However, those under 15 who want to
leave school and start full-time work must seek permission from the Department of Education
and Training. Otherwise, anyone who has completed Year 10 but is under 17 must enrol in a
training or education course or undertake an apprenticeship.
Evidence Children can give evidence at any age if they understand the nature and consequences of the
oath or affirmation.
Leaving home There is no minimum age for leaving home in NSW. Persons over 16 will not normally be forced
to return to their parents’ home, as long as they have a safe place to go and can support
themselves financially.
Marriage A person under 16 years cannot marry. A person between the ages of 16 and 18 can only
marry with the court’s permission and only in exceptional circumstances.
Sexual intercourse The legal age for consensual sex is 16. It is an offence to have sexual intercourse with a child
under 16.
*The legal definition of a ‘child’ is any person aged under 18. (For more information regarding children and the law go to the Law stuff website: www.lawstuff.org.au.)

326 C am b r id g e L e g a l S t u d ie s – HS C
law makes it illegal for them to engage in certain
activities. A child’s ability to make his or her own
decisions changes as he or she reaches maturity,
and this is reflected in the law regarding children’s
autonomy and rights. As suggested above with
respect to consent to medical treatment, some
laws distinguish between ‘children’ and ‘young
persons’. For example, the Children and Young
Persons (Care and Protection) Act 1987 (NSW)
defines a child as a person who is under 16 years,
and a young person as one who is aged 16 or older
but who is under the age of 18 years.
Ex-nuptial children
In the past, ex-nuptial children had no legal status
and therefore had no legal rights. Legitimacy is
important because it provides a child with certain
rights, such as inheritance and maintenance.
Legitimacy automatically existed for a child if the
child was:
s born during marriage – that is, was a nuptial
child
s ex-nuptial but the parents of the child later
married
s adopted.
With the passage of the Children (Equality of
Status) Act 1976 (NSW) – later replaced by the
Status of Children Act 1996 (NSW) – ex-nuptial chil-
dren were given the same rights as those born to
parents who are married. Subsequent Acts have
reinforced the status of ex-nuptial children. All
children have the right to be cared for by their
parents.
The Act allows certain presumptions to be
made about a child’s parentage, and evidence to
be provided to a court to disprove the presumption.
Parentage can be established through DNA
analysis of a blood sample, or the parent’s volun-
tary recognition of the child as his or hers.
If a person making a will wants to exclude
any of his or her children, this must be explicitly
stated, for example by listing only the children
the testator wants to inherit his or her property.
The Family Provision Act 1982 (NSW) removed the
concept of ‘illegitimacy’ and the Succession Act
2006 (NSW) permits any child to apply for a family
provision order, whether nuptial or ex-nuptial.
R EVI EW 1 2 . 6
autonomy
1 Explain why consent to medical treatment
freedom of the will,
is necessary, and why age determines legal self-government; the
ability to act without
capacity to give consent.
outside interference
2 Explain the term ‘autonomy’ and how it is
testator
relevant to minors. a person who makes
3 Explain the term ‘presumption of a will
parentage’. adoption
the legal process
of transferring
O p t i o n 3: Fam ily
parental rights and
Adoption responsibilities from the
biological parents to
Adoption is the process of transferring parental the adoptive parents
rights and responsibilities from the biological relinquishing parents
parents who nominate
parents to the adoptive parents. The aim of adop- their child for adoption
tion law is to ensure that the best and most
appropriate parents are found for the child. The
needs of the adults are secondary to the needs of
the child. Adoption re-creates the legal relationship
between the child and his or her parents.
Legal requirements
and process
Adoption is a state responsibility. In NSW, adop-
tion is governed by the Adoption Act 2000 (NSW).
If the birth parents are married or in a de facto
relationship, both parents must give consent to
give up the child. In the case of a single mother,
only the mother need give consent; the father must
have been notified prior to the adoption and given
14 days to respond. Children aged over 12 years
must consent to their own adoption. The birth
mother cannot consent to adoption within three
days of the child’s birth. Once the birth parent
or parents have given consent, there is a 30-day
cooling off period during which they can change
their minds. If the child’s parents cannot be found
or are incapable of giving informed consent, the
court can give consent.
Relinquishing parents can nominate a relative
to adopt their child, but all adoption criteria must
be met and the adoption can only proceed if the
Cha pter 12: Option 3 : Fami l y 327
 court permits the adoption. Parents who give up
their child for adoption can nominate the desired
religious upbringing for their child.
Because adoption laws are primarily concerned
with the rights of the child, the law has established
strict guidelines as to who can adopt. The following
restrictions must be met:
s Married couples and those in a long-term, stable
de facto heterosexual relationship of more than
three years can apply to adopt.
s Individuals who are not in a relationship can
apply as single applicants. (There is no distinc-
tion between heterosexual and homosexual
applicants.)
s Applicants must be over 21 years of age, but
under 51 years of age.
s The prospective male parent must be at least 18
years older than the child and the female parent
must be at least 16 years older than the child.
s The applicant must be a person of good repute,
be a fit and proper parent, and be able to
fulfil the responsibilities of a good and caring
parent.
s Where applicable, the child’s culture, language
and religion will be taken into account when
determining an adoption order, as well as the
principle that the child’s given name, identity,
language and cultural and religious ties should,
as far as possible, be preserved.
After meeting the criteria, the prospective
parents are placed on a waiting list. The decision
as to who will adopt is based on what is in the
best interests of the child and whether the child’s
overall welfare will improve by being adopted by
the applicant(s).
Once the birth parents agree to the adoption,
the court will make an adoption order following
official notification from the relevant agency or
department. An adoption order creates certain
legal changes. The Registrar of Births, Deaths and
Marriages will issue a new birth certificate in the
child’s adopted name. The birth certificate will
include the family details of the adoptive family,
such as the full names and dates of birth of the
child’s adoptive parents and any other children of
the adoptive parents. The birth parents no longer
328 C am b r id g e L e g a l S t u d ie s – HS C
have any rights or obligations concerning the child.
The adopting parents have the legal responsibility
for the care and well-being of the child, who is
now legally their child. The adopted child’s rights
of inheritance to the estate of his or her biological
parents are removed (unless the child is specifically
mentioned in a will), and the adopted child will
have the automatic right to inherit from the estate
of his or her adoptive parents.
Overseas adoptions
An increasing number of Australian couples are
applying to adopt children born overseas. Inter-
country adoptions are governed by the Hague
Convention on the Protection of Children and
Cooperation in Respect of Intercountry Adoption, and
by bilateral agreements between Australia and
countries that have not ratified the convention.
In NSW, prospective parents must apply
through Community Services to arrange for an
intercountry adoption. They will be allocated a
child from the other country, and if the parents
accept the offer they may lodge an adoption visa
application, which is then forwarded to the appro-
priate overseas welfare agency. The child is then
subject to standard migration medical checks.
If the child satisfies the health requirements, the
adoption will either be finalised overseas in the
child’s country of origin or the overseas welfare
agency will authorise the child to leave so that the
adoption can take place in Australia. The child will
then be granted permanent residence in Australia.
Privately arranged adoption is possible if the
adoptive parents can prove they have been living
in the overseas country for more than 12 months
prior to their application, and if the authorities in
the overseas country have approved the departure
of the child to Australia. The Australian Depart-
ment of Immigration and Citizenship can refuse to
grant an entry visa for the child and the child must
meet migration standards.
Access to information
Previously all personal information, of both the
parent and the child, could only be released by
the Reunion and Information Register, and only if
both parties placed their information on the regis- Alternatively, the contact details of adopted chil-
ter. This register, maintained by Community Ser- dren and relinquishing parents can be placed on
vices in NSW, is still in operation, but Community the Advance Notice Register, which notifies them
Services does not help parties to search for each if any application for infor-
other. The Adoption Act 2000 (NSW) gives relin- mation is made. Even though
quishing parents and adopted children the right the relinquishing parents or R EVI EW 1 2 . 7
to request personal identifying information from the adopted child may not 1 Explain the concept of adoption
Community Services, which they can then use to wish to be contacted, their and discuss how adoption
contact one another and other family members. information will be released changes the relationship
Adopted children over 18 may apply to Com- once the party seeking the between the child and the
munity Services to obtain for a ‘supply authority’, information has signed an relinquishing parents.
which contains identifying information of the undertaking not to make 2 List the conditions that must be
met by prospective adoptive

O p t i o n 3: Fam ily
birth parents. This document then allows them to contact. A party who breach-
obtain further information from adoption records. es a contact veto may be parents. Evaluate these
Parents who have given up their child for adoption subject to a fine and/or im- requirements.
can also ask for a ‘supply authority’ allowing prisonment. Both relinquish- 3 Explain why adopted children
them to obtain a copy of their child’s amended ing parents and adopted may want their birth parents’
birth certificate (the one prepared after their children who want to make personal information. Critically
adoption), which now contains information about contact with one another analyse whether they should
the adoptive family. can enter their names in the have complete access to all
Parents and children who do not want to be Reunion and Information information regarding their
contacted by the other can lodge a ‘contact veto’. Register. parents and possible siblings.

Respo n ses to p rob le m s

i n f a m i l y r e l a t io n s h i p s
Divorce
Divorce is the legal dissolution (termination) of a
marriage. Under s 48 of the Family Law Act 1975
(Cth), the only ground for divorce is the irretrievable
breakdown of the marriage. This means that there
is little chance that the parties to the marriage
wish to remain in a relationship.
Prior to 1974, married couples who wanted to
divorce had to apply under the Matrimonial Causes
Act 1959 (Cth) on the ground of ‘fault’: that is, on
the basis that one or both spouses admitted to
acting in a way that undermined their marriage.
Grounds for divorce under the Matrimonial Causes
Act included adultery, cruelty (family violence),
insanity and desertion.
The Family Law Act removed all other grounds
for divorce and established the Family Court, divorce
the legal termination
which hears all matters related to marriage and
of a marriage by an
divorce. The single ground for divorce removes the official court decision
need to find fault. In order to prove that the rela-
tionship has irretrievably broken down, the parties
must have been living separately and apart for a
period of 12 months. Once divorced, each party is
free to marry another person.
The twelve-month separation begins when one
party tells the other that he or she intends to leave
the marriage. It does not matter that only one party
to the marriage wishes to end the relationship.
The law will not force an individual to stay in a
relationship he or she does not want to continue.

Cha pter 12: Option 3 : Fami l y 329

 The parties can be held to be living separately
and apart even if they are still sharing the same
house. In this instance, parties are considered to
decree nisi be living separately and apart if they can show
a Family Court order that they are leading separate lives: for example,
that is made to
signal the intended they sleep separately, do not socialise with friends
termination of a together, do not share meals, and no longer share
marriage
finances.
decree absolute
Although the Act removed fault and established
a final decree of the
dissolution of marriage one ground for divorce, the Act did not intend
to encourage divorce. Rather, it was designed to
encourage parties to seek an amicable resolution,
including the use of counselling services. The
Act allows for one period of reconciliation of up
to three months during the period of separation,
under s 50 (the ‘kiss and make up clause’). If
they do not succeed in reviving the marriage, the
separation period resumes, with the total time
before and after the reconciliation period counting
towards the 12 months.
If the couple seeking to dissolve their marriage
have been married for a period of time less than
two years, they must attend family counselling
before they can divorce. Counselling in this situ-
ation is compulsory. Also, if the court feels there is
a chance the parties may be reconciled, the court
can order marriage counselling.
Legal consequences
of separation
Children
If the couple have children, no application for
dissolution will be approved until all of the issues
involving the children have been solved. Once
this has occurred, the court will order a decree
nisi, which begins the process of divorce. About
one month later, the decree nisi becomes a decree
absolute, at which time the marriage is legally
dissolved. If there are children (under 18 years )
involved, the court will only grant a divorce once
all matters relating to the care and support of the
children have been made.
The focus of the law is not on ‘parental rights’
but rather ‘parental responsibility’. Parents are
330 C am b r id g e L e g a l S t u d ie s – HS C
responsible for the long-term care of their child
and the presumption is that it is in the best
interests of the child for both parents to share
this responsibility equally. Therefore, irrespective
of where the child resides, both parents are still
responsible. Parental responsibility will only cease
with a court order, the adoption of the child, the
child’s 18th birthday, or the child’s marriage.
Parents are encouraged to make and voluntarily
agree to their own arrangements in relation to the
care and responsibility of their children, rather
than asking the court to do so.
Under Part VII of the Family Law Act 1975 (Cth),
any disputes concerning children must be decided
in the best interests of the child. The court
determines ‘best interests’ by reference to primary
and additional considerations set out in s 60CC.
The two primary considerations include the child’s
right to maintain a meaningful relationship with
both parents, and the need to protect the child
from harm. Additional considerations include
factors that may modify the ability of parents to
share the parenting of the child equally, such as
the views of the child, the nature of the child’s
relationship with each parent, and where the
parent lives.
The presumption that equal shared parental
responsibility is in the best interests of the child
will not apply if there are reasonable grounds to
believe that a parent has engaged in abuse of the
child, or of any other child, or in family violence
(s 61DA). Nevertheless, the 2006 amendments to
the Act, which introduced shared parental res-
ponsibility and other provisions of Part VII (via the
Family Law Amendment (Shared Parental Responsi-
bility) Act 2006 (Cth)), have been criticised for not
dealing adequately with family violence, exposing
children who had previously been victims of
parental abuse to the possibility of further abuse.
Some provisions in the Act, such as provisions for
orders of costs against anyone making false
allegations, suggest that allegations of violence are
regarded with suspicion. Another criticism centres
on the idea that the child’s views are not given
enough weight. There have also been complaints
that the Act does not make clear the distinction
between shared parental responsibility and shared
care – some parents mistakenly believed that
shared parental responsibility entailed 50-50
‘custody’ of the children.
Separating parents are required to attend com-
pulsory family dispute resolution and enter into
a parenting plan. Parenting plans must consider
the practicality of children having equal time with
both parents, contact with other family members,
and the day-to-day care of the children, and
ensure that the children maintain their cultural
links. A parenting plan is a voluntary agreement
and most parents are compliant. If parents cannot
reach an agreement then the court will make a
parenting order. Section 64B of the Family Law Act
explains that parenting orders may deal with any
matters relating to the care and welfare of a child,
such as the parent with whom the child is to live,
the time to be spent with the other parent, and
maintenance.
REVIEW 12.8
1 Identify the sole ground for divorce in
Australia, and the consequences of there
being only one ground.
2 Describe what it means for a couple to be
living separately and apart.
3 Contrast ‘shared parental responsibility’
and ‘shared parental care’.
4 Identify the considerations the court must
take into account when determining the
best interests of the child.
Property
The Family Law Act 1975 (Cth) uses a broad defi-
nition of ‘property’. Property includes homes,
bank accounts, companies and partnerships,
shares, superannuation and household goods. If
the separating couple reach an agreement as to
the allocation of property and want to formalise it
and make it binding, they can apply to the Family
Court for consent orders. If the division of property
is fair and equitable, the court will then make a
legally binding order. A couple in dispute regarding
property allocation can choose to have the matter
heard in the Family Court. When determining
property allocation under ss 75 and 79 of the
Family Law Act (or ss 90SF3 and 90SM4 for de
facto spouses), the court will consider:
s the financial and non-financial contribution to
the property by both parties (including contri-
butions made as homemaker and carer for
children)
s the effect of the subsequent property allocation
order on the earning capacity of either party
s the age of both parties and the income, prop-
O p t i o n 3: Fam ily
erty and financial resources of both parties
s whether each or either party has the care and
control of a child of the marriage who is under
18 ears of age
s other contributions, such as any inheritance
and the acquisition, conservation and improve-
ment of any assets (including maintenance
of the family home or working for the family
business).
The court can order the disputing couple to
attend a conference in an attempt to have the
parties determine a fair and equitable allocation
of property and an agreeable settlement. If this
mediation process is unsuccessful, the Family
Court can make an order about the allocation of
matrimonial property, which includes all property
purchased or acquired during the marriage. Super-
annuation is regarded as a ‘financial resource’
and the court takes into account the financial
and non-financial contributions made by both
parties to superannuation entitlements. Since
2002, separating couples have been able to claim
superannuation that each spouse had accumulated
during the marriage as part of the matrimonial
property.
There is no set formula regarding the distribu-
tion of property. Rather the court aims to be as fair
as possible and to achieve an equitable outcome
for both parties, while taking into account their
differing needs and contributions.
FI NA NC I A L A G RE E M E NTS
Financial agreements arose out of individuals’
desire to protect their property rights. They can
Cha pter 12: Option 3 : Fami l y 331
 include guidelines for the division of property,
debt and other financial concerns in the event
that the relationship ends. Such agreements tend
to diminish the combative nature of separation
by removing two of the main sources of hostility
between the parties: money and property.
Financial agreements can be made between a
couple prior to their marriage (these were formerly
known as ‘pre-nuptial agreements’), during the
marriage, or at the end of the marriage (see
Family Law Act 1975 (Cth) ss 90B, 90C and 90D).
They may prescribe what property is and is not
to be included in the settlement, settle questions
relating to how property is to be divided after the
marriage has ended, or establish who owns what
property. Financial agreements can also include
provisions as to whether, how and by whom
spousal maintenance is to be paid.
cas e s p ac e
In the past, agreements between spouses were
not binding, and were just one of the matters
that a court could consider when determining a
property settlement. Amendments to the Family
Law Act in 2000 now allow the Family Court to
recognise them as binding financial agreements.
A party can apply to the Family Court to have the
agreement set aside, but this can be a costly and
time-consuming process.
As discussed earlier in this chapter, property
settlements for separating de facto couples are
now governed by the Family Law Act. De facto
couples can also have binding financial agree-
ments, just as married couples, for property
settlements in the event that they separate. They
can be made before, during or after the break-
down of a relationship (see Family Law Act 1975
(Cth) ss 90UB, 90UC and 90UD).

C and M [2006] FamCA 212

The parties (both aged 29)
married in October 2002
after a lengthy engagement.
However, after two months
they separated. During their
engagement the couple bought
land on which they intended
to build their home. The land
was purchased in the husband’s
name and he was responsible
for paying the mortgage. The
couple had been using the
wife’s credit cards and personal
savings for day-to-day expenses
and she was now deeply in debt.
When the couple separated,
the husband transferred the
property to himself and his
parents, therefore preventing
his wife from attempting to
claim the property. During the
period 2002–2006 the husband
continued to pay the mortgage
and his parents provided
him with substantial financial
support in order to build a
home on the land.
The court in the first instance
found that both parties had
contributed equally to one
another’s debt. The husband
was ordered to pay half his
wife’s debt, but was awarded
92.5% of the assets. No
adjustment under s 75(2) of the
Family Law Act 1975 (Cth) had
been made for the husband’s
higher income or greater
earning capacity. On appeal,
it was held that the method of
calculation of the parties’ assets
and liabilities effectively left
the wife with only 3.8% of the
net assets. The court ordered
that the wife’s share of the
‘asset’ (the land and house)
should reflect her financial
contributions to the mortgage
repayments (assessed at 20
per cent of the total assets).
However, taking into account
the short period of time that the
marriage – and hence financial
contributions – had lasted, the
ages of the parties, and the
lack of any restrictions on the
wife’s earning capacity, the
court held that there would be
no adjustment for disparity of
earning capacity.

332 C am b r id g e L e g a l S t u d ie s – HS C
 REVIEW 12.9 Table 12.3 Potential causes of family problems

1 The following tasks relate to the Case Space Psychological problems

box on the left.
a Assess whether a ‘just and equitable
outcome’ for all parties was achieved in
this case. Why or why not?
b Describe the factors that are taken into
account when deciding the allocation of
property after a marriage or de facto
relationship has broken down.
2 Outline the major changes that have been
made in family law regarding property
s Lack of self-esteem and poor self-image
s Inability to express anger or frustration appropriately
s Strong desire to control or dominate others
s Cycle of violence: an abused child may become an abusing adult
s Mental illness, including depression
s Lack of positive male and female role models
Social problems
s Drug dependency, including alcoholism and addiction to prescribed
drugs or illegal substances
s Disputes over housework, other domestic duties
s Disputes over child discipline issues
s Lack of quality time spent with family members

O p t i o n 3: F am ily
allocation.
s Cultural or geographic isolation
3 Identify and explain the various orders that
the Family Court can make. Financial problems
s Lack of money (due to unemployment, low-paid work or part-time
work), making it difficult to pay bills and mortgage or rent
s Disputes over how to spend a limited supply of money
Legal responses to s Expectation that the children will need to find employment to
contribute to the family’s finances
domestic violence s Inadequate amount of money for child care
The Australian Law Reform Commission states
that assault occurring in the home is not a private
matter but one that is of concern for the commu- 2800

2700
nity as a whole. According to s 11 of the Crimes
Number of recorded incidents

2600
(Domestic and Personal Violence) Act 2007 (NSW),
2500
which came into force in 2008 and replaced Part
2400
15A of the Crimes Act 1900 (NSW), domestic 2300
violence is personal violence committed against 2200

someone with whom the offender has, or has had, 2100

a domestic relationship – that is, a marriage, de 2000

1900
facto relationship or other close personal relation-
Jan. 2002

Apr. 2002

Jul. 2002

Oct. 2002

Jan. 2003

Apr. 2003

Jul. 2003

Oct. 2003

Jan. 2004

Apr. 2004

Jul. 2004

Oct. 2004

Dec. 2004

ship (such as between a parent and child).

There are many reasons why families experi-
ence interpersonal problems. Causes of family
crises can range from psychological or social prob-
lems to financial difficulties. Examples of these
problems are listed in table 12.3.
Violence between spouses
According to the Crimes (Domestic and Personal
Violence) Act 2007 (NSW), which came into force in
2008 and replaced Part 15A of the Crimes Act 1900
(NSW), domestic violence is personal violence
committed against someone with whom the
offender has, or has had, a domestic relationship:
Figure 12.6 Incidence of family violence in NSW, 2002–04
a marriage, de facto relationship or other close domestic violence
any act, whether verbal
personal relationship (such as between a parent
or physical, of a violent
and child). or abusive nature that
Violence between spouses may take the form of takes place within a
domestic relationship
physical, verbal, emotional, financial, psychological
and/or sexual abuse, social isolation, or actual or
threatened violence or harassment. Males tend to
commit domestic violence more than women and

Cha pter 12: Option 3 : Fami l y 333


the majority of domestic violence victims are
women and children. However, men are also
victims of domestic violence. The number of
female victims of domestic violence rose from 236
in 1995 to 607 per 100 000 in 2007, while the
number of male victims of domestic violence rose
from 46 in 1995 to 266 per 100 000 in 2007. In
2007, 2336 women were charged with domestic
violence, compared to 800 in 1999 (source:
Australian Bureau of Statistics).
Women are at greater risk of violence at the
hands of someone they know: 82 per cent of
women who have been assaulted knew the offen-
der. Research findings also show that women are
more likely to experience violence in the context
of the home (64%) than by a stranger or in a public
place, and one-third of physical assaults were
committed by the victim’s spouse or partner. Of all
women assaulted, nearly half will experience
repeated attacks (source: Australian Bureau of
Statistics 4102.0, Australian Social Trends, 2007).
Victims of domestic violence can press criminal
charges or can apply to the Local Court for an
Apprehended Apprehended Domestic Violence Order
Domestic Violence
(ADVO). Alternatively, it may be possible to apply
Order (ADVO)
a court order that aims to the Family Court for an injunction for personal
to protect the applicant protection, but these are often more complex and
from violence and other
less easily enforced by local police.
forms of intimidation or
abuse perpetrated by a The issue of an ADVO does not mean the per-
family member son is charged with a criminal offence. However, if
injunction the person breaches the order, he or she may be
a court order
charged with a criminal offence. If there is suffi-
directing someone
to do something or cient evidence available to support a conviction for
prohibiting someone this offence and any associated offence, police will
from doing something
arrest and charge the person with a breach of the
breach
to fail to obey ADVO, in addition to any other offence committed
at that time.
Domestic violence offenders or those in breach
of an ADVO may have their bail application
denied. Section 9A of the Bail Act 1978 (NSW)
excludes domestic violence offenders from an
automatic presumption in favour of bail. The Act
was amended in 1993 in response to the murder
of a woman by her estranged husband, who had
been released on bail after he had been arrested
for breaching an ADVO.
334 C am b r id g e L e g a l S t u d ie s – HS C
legal links
For more information on domestic
violence see www.aph.gov.au/
library/intguide/sp/Dom_
violence.htm
R ESEAR CH 1 2 . 2
Go to www.aph.gov.au/library/intguide/SP/
ViolenceAgainstWomen.htm
1 Discuss whether or not domestic violence is
increasing.
2 Describe who are typically ‘victims’ and
‘perpetrators’.
3 Discuss the economic, social and health costs
of domestic violence.
4 Explain who the major groups at risk of
domestic violence are.
5 Analyse the graph ‘per cent of females
experiencing violence during the last 12
months’. Which groups are most at risk and
why?
6 What are the Human Rights and Equal
Opportunity Commission recommendations
regarding Indigenous Australians?
Violence involving children
VI O L E NC E A G A I NST C H I L DRE N
Article 19 of the UN Convention on the Rights of
the Child (CROC) declares that no child should be
subjected to violence and it is the responsibility of
the state to protect them from all forms of physical
or mental violence, neglect or negligent treatment,
maltreatment or exploitation, including sexual
abuse, while in the care of parents, legal guardians
or any other person who has the care of the child.
The Children and Young Persons (Care and
Protection) Act 1998 (NSW) covers abuse as well
as neglect. Specifically, s 227 prohibits intentional
acts resulting or likely to result in physical injury or
sexual abuse, emotional or psychological harm, or
harm to health or physical development. Children
can be included on an adult’s ADVO application, or
a separate application can be made for children.
A police officer is the only person who can apply
for an ADVO for children under 16 years of age;
those over 16 can apply for their own ADVOs.
However, a court may grant an ADVO for protec-
tion of a child even if the application was not made
by a police officer (Crimes (Domestic and Personal
Violence) Act 2007 (NSW) s 38(5)). If there is a
parenting order in place that allows the offender
access to the children, and their safety is at risk,
the applicant for an ADVO must inform the court
of its existence (Crimes (Domestic and Personal
Violence) Act s 42(1)).
In NSW, certain professionals are required by
law to report to Community Services if they sus-
pect that a child is at risk of harm (Children and
Young Persons (Care and Protection) Act ss 24–
27). These persons include teachers, doctors,
school counsellors, and anyone who works with
children. If a report has been made, Community
Services is legally required to investigate the case.
Possible outcomes after notification include the
following:
s If the notification concerns a threat of abuse or
actual abuse, then an ADVO is made.
s The police can charge the accused.
s The Family Court can restrict contact by the
offender with any children the court feels are
at risk.
s Community Services can apply for a variety of
care and protection orders, including the re-
moval of the child from a violent environment.
s Less serious cases from reports will be referred
to Child Wellbeing Units in NSW Health, Police,
Education and Training, and Human Services
departments, which have the power to assess
and provide support to the children and
families.
V IOLENCE B Y C H IL DR EN
Violent acts are not committed solely by adults.
However, the law deals with child offenders
differently. Laws relating to child offenders reflect
the basic philosophy underlying the UN Convention
on the Rights of the Child: all decisions relating
to children should be in the best interests of
the child.
The Children (Criminal Proceedings) Act 1987
(NSW) s 5 states that children under the age of
10 years cannot be guilty of a criminal offence.
The law considers a child under 10 as being unable
to understand the consequences of their actions.
Children aged between 10 and 14 years are also
presumed to be incapable of committing a crime;
the prosecution in a case where the accused is
in this age range must rebut the presumption by
proving that the child did the act alleged and that
he or she knew that it was wrong. If this is proved
the child can be held criminally liable.
O p t i o n 3: F am ily
Once a charge is laid the child or young person
will usually face proceedings in the Children’s
Court. The Young Offenders Act 1997 (NSW)
provides alternative options to court for young
offenders. Options include the use of warnings and
cautions and youth conferencing. Having the child
offender face proceedings in the
Children’s Court is the last resort.
The emphasis is on preventing the R EVI EW 1 2 . 1 0
child from coming into contact 1 Identify and explain the
with the justice system, to employ various factors that may
a welfare approach through coun- cause problems within a
selling and education, and to en- family.
courage young offenders to take 2 Explain what an ADVO is.
responsibility for their actions, 3 Outline the legal remedies
rather than to punish them. The that are available to victims
long-term goal is to prevent the of domestic violence.
child from becoming an offender 4 Explain how the law deals
as an adult. with juvenile offenders.
Effectiveness of the law in
protecting victims of domestic
violence
Recent educational campaigns have raised com-
munity awareness of domestic violence as an
important social issue, and the understanding that
domestic violence is no longer a ‘private matter’,
nor is it acceptable. Legislative reforms reflect this
changing attitude to domestic violence. Domestic
violence is recognised as a community problem,
not an individual or isolated occurrence, and most
people now appreciate that reducing its incidence
is in some respects a societal responsibility.
Cha pter 12: Option 3 : Fami l y 335
 ADVOs have become an important means of
reducing the incidence of domestic violence. One
advantage of these orders is that they are a quick,
inexpensive and accessible form of protection,
which are complemented and supported by the
full weight of the criminal law if they are breached.
However, it has been argued that only those indi-
viduals who are normally law-abiding will comply
and that these orders do little to deter individuals
who are persistent offenders. In addition, pro-
tection orders can only be effective if they are
policed. But it is unfair to state that laws aimed at
domestic violence have failed utterly. Rather, these
med i a cl i p
laws have slowly evolved in response to circum-
stances that legislators or the courts had not
considered.
For example, the concept of ‘battered wife
syndrome’, which was originally applied only
to women in heterosexual marriages, has been
extended to include battered partners in de facto
relationships, including homosexual relationships.
The automatic presumption in favour of bail was
removed after several women had been stalked
and killed by their respective partners who had
been released on bail. And although gun-related
crime is relatively low in Australia, the Firearms

Murder verdict: Mum starved girl to death

Tue Jun 23, 2009
ABC/AAP
A man and woman have been found guilty of
starving their autistic daughter to death.
The seven-year-old girl died in November 2007
at her home in the New South Wales Hunter
Valley, weighing just nine kilograms.
She died of malnutrition and dehydration
resulting from starvation.
The trial heard the girl was so thin that she
looked “mummified” to ambulance officers.
A six-woman, six-man Supreme Court jury
spent the past week deliberating on the charges
against each of the girl’s parents.
They found the 35-year-old mother guilty of
murder and her 48-year-old husband guilty of
manslaughter.
The couple stared straight ahead as the verdict
was read out and showed no emotion.
Both parents had pleaded not guilty to
murdering the child at their Hawks Nest home.
Several doctors testified the girl suffered the
most severe case of malnutrition they had ever
seen, with one expert saying the child’s head
resembled a skull wrapped in skin.
During the trial the parents admitted lying to
police when they claimed she was happy and well
the night before her death, with the jury told she
would have been semi-conscious to comatose
for days.
The child’s father blamed the mother for the
death, saying she was solely responsible for the
seven-year-old’s care.
The mother told the jury the thought her
daughter may die never entered her head.
The couple’s three other daughters remain in
the custody of the Department of Community
Services (DoCS).
DoCS statement
Today DoCS released a statement saying the
case is one of the most disturbing it has had to
deal with.
“Following this tragedy, the whole child
protection system underwent an extensive,
independent review by Commissioner [James]
Wood and the government responded
with a detailed, funded five-year plan,” the
statement said.
“Changes are underway to respond to some of
the issues that this case highlighted.
“By expanding the role of other government
and non-government agencies to work with
families in crisis and children at risk of harm, the
system is being strengthened and improved.”

336 C am b r id g e L e g a l S t u d ie s – HS C
Act 1996 (NSW) offers the additional protection of
prohibiting the issue of, or revoking, a gun licence
or permit if the individual has been subject to an
ADVO. All of these legislative changes have been
in response to community pressure and specific
instances of domestic violence.
Several states have introduced mandatory
counselling for perpetrators of domestic violence.
Criminal penalties apply if they fail to attend. NSW
has not initiated such a program. There exists little
evidence supporting the effectiveness of such a
program on reducing domestic violence.
There have been allegations made that appre-
hended violence orders are too easy to obtain and
that women have falsely claimed to be victims
of domestic violence when contesting parenting
orders. However, claims of domestic violence
do not necessarily adversely affect family law
proceedings and there is little evidence to support
such allegations.
REVIEW 12.11
Read the Media Clip and answer the following
questions.
1 Given that both parents are equally
responsible for the care of their child,
suggest reasons why the father of the child
was charged with manslaughter rather than
murder.
2 Explain what the relevant authorities could
have done to prevent the child’s death.
Methods of resolving
disputes
Family dispute resolution
Family dispute resolution is defined by s 10F of the
Family Law Act 1975 (Cth) as a non-judicial process
in which an independent practitioner helps people
affected by a separation or divorce to resolve some
of their disputes with each other.
The Family Law Act 1975 (Cth) s 60I requires
couples who have a dispute about matters that
may be dealt with by a court order under Part VII
of the Act (involving children) to make a genuine
effort to resolve their dispute, using family dispute
resolution, before applying for an order. If there is
a history of family violence, then family dispute
resolution may not be appropriate.
Different forms of dispute resolution are pro-
vided by Family Relationship Centres (government-
funded community centres that assist couples
and families at all stages of relationships), but
disputing parties can go to private providers of
counselling services if they choose. The Family
O p t i o n 3: F am ily
Court and the Federal Magistrates’ Court (the
Family Law Courts) can refer disputing parties to
an extensive range of counselling ser vices for
both adults and children, and can also order
separating couples to attend dispute resolution.
Although individuals are required to pay for these
services, some associated costs may be subsidised
by the government depending on the financial
circumstances of the individual parties.
Types of dispute resolution services include:
s Reconciliation counselling – for separating
couples who are attempting to reconcile
s Post-separation parenting programs – for
couples whose issues adversely affect their
carrying out of parenting responsibilities. The
program usually takes the form of family coun-
selling, group lectures and discussions, and
teaching techniques to resolve disputes.
s Mediation – for separating couples who have
made an application to the Family Court,
mediation involves a neutral, impartial third
party (a mediator) helping them to identify
issues, formulate options, consider alternatives
and reach agreement. This service may be used
prior to a court hearing.
Couples are more likely to comply with an
agreement that they have had some say in. Indi-
viduals also learn additional skills, such as better
communication, which may help to minimise
future conflicts. In addition, this form of dispute
resolution is less costly than court proceedings,
in both time and money, and less stressful for all
parties involved.
Cha pter 12: Option 3 : Fami l y 337
 Individualised counselling is available to any
child whose parents are separating. The counsellor
(mediator) will meet and discuss with the child
his or her needs, issues, fears and concerns. The
counsellor (mediator) will then present to the
presiding judge a Family Report, which will contain
a summary of the information that the child
has given to the counsellor. The purpose of this
process is to ensure that the needs and welfare of
the child are identified and met by any parenting
order issued by the Family court.
Once an agreement has been reached, separ-
ating parents enter into a parenting plan or file
consent orders with the court. All matters relating
to the children of the relationship must be finalised
before the divorce is granted. If parties fail to
reach an agreement, or if there are issues relating
to abuse or family violence, then the matter will be
heard by a court.
Adjudication
Adjudication is the determination of a matter by a
court judgment or ruling. The Federal Magistrates
Court and Family Court can make decisions
regarding division of property, maintenance
and any decision that may affect children of the
relationship. Divorce is automatic if the parties
can show irretrievable breakdown of marriage
and the required period of separation. This will
only occur after all other counselling and family
dispute resolution processes have been exhausted.
Once the court has made its decision it will impose
an order, such as a parenting order, with which
both parties must comply. Unlike a parenting plan
(agreement), any breach of this court order may
result in further court action, financial penalties or
other criminal sanctions being imposed.
Individuals wishing to divorce can now file an
application for divorce online through the Family
Law Courts portal (www.familylawcourts.gov.au).
A small administrative fee is also payable once
the application has been made. This fee can be
waived in certain circumstances, for example for
those who hold government concession cards or
are experiencing financial hardship.
338 C am b r id g e L e g a l S t u d ie s – HS C
The role of the courts in
family law matters
The law is primarily concerned with protecting
the rights of family members and ensuring that
individuals meet their family obligations. But the
law also aims to provide structures and processes
that will help disputing parties to reach an
amicable resolution. For this reason, the Family
Court focuses more on reconciliation and on
encouraging compliance rather than on arbitration
and the use of sanctions or coercion.
Family Court of Australia and
Federal Magistrates’ Court
Prior to the establishment of the Family Court in
1975, the various state courts would hear matters
relating to divorce. The Family Court is a special-
ised court – that is, outside the judicial hierarchy
– and it hears matters relating to separation,
divorce and other disputes related to marriage. Its
jurisdiction is limited to those areas controlled by
the Family Law Act 1975 (Cth), which include
property and financial matters, maintenance, and
parenting arrangements.
In late 1999 the Federal Magistrates’ Court
was established to relieve some of the case load
of the Federal Court and the Family Court, and
to reduce the cost and time required to deal with
some federal matters. The Federal Magistrates’
Court has a similar jurisdiction to the Family Court
in that it can hear matters relating to divorce, the
division of property, and children. It cannot hear
any matters related to adoption, applications
concerning nullity (that the marriage did not exist
in the first place) or validity of a marriage.
The majority of divorce applications are
now heard in the Federal Magistrates’ Court while
more complex issues involving multiple parents,
the intention of a parent to move interstate or to
emigrate, and serious allegations of family violence
or child abuse (Magellan cases) are heard in the
Family Court. All other issues (such as adoption,
inheritance and wills) must go to courts within the
state court hierarchy.
 In most situations where a marriage or de facto
relationship breaks down, parents themselves
reach an agreement about the ongoing parenting
arrangements for their children. If an application is
made seeking an order of the court, the court will
usually provide the parties with an opportunity
to resolve the issue through counselling and
mediation. In the cases where this is not successful,
the court may determine the issue through a
hearing before a judge. When the court is called
upon to decide whether to make a particular
parenting order, the child’s best interests are the
paramount consideration.
Initially the jurisdiction of the Family Court did
not extend to ex-nuptial children. This is because
the Commonwealth Parliament’s constitutional
power to enact legislation only extended to mar-
riage and divorce, and matrimonial causes arising
from divorce; therefore only children of a marriage
came within the Act. However, all of the states
except Western Australia referred their power to
make law regarding certain matters relating to
children to the Commonwealth in 1986, through
Acts including Commonwealth Powers (Family Law
– Children) Act 1986 (NSW). Any matter relating to
the care and maintenance of a child will now be
heard in the Family Court, and the same federal
provisions cover all children.
The Family Court and Federal Magistrates’
Court have the power to determine matters rela-
ting to the division of property and maintenance
for both married and de facto couples.
REVIEW 12.12
1 Explain the concept and purposes of ‘family
dispute resolution’. Give examples of types
of family dispute resolution.
2 Explain the difference between
adjudication and other methods of dispute
resolution.
3 Outline and contrast the tasks of the Family
Court and the family law jurisdiction of the
Federal Magistrates’ Court.
legal links
Visit www.familylawcourts.gov.au/
to learn more about the family law
system in Australia.
The Children’s Court
The Children’s Court is a state court. There are six
permanent Children’s Courts in NSW, but Chil-
dren’s Magistrates conduct hearings in other
O p t i o n 3: Fam ily
locations. The Children’s Court is headed by a
president, who is also chairperson of the Children’s
Court Advisory Committee, which provides advice
on the rules, practice and procedure of the Court.
The Children’s Legal Service, which operates
through Legal Aid NSW, will provide representa-
tion for children and young people, in both criminal
cases and child welfare cases before the Children’s
Court.
The Children’s Court hears cases relating to
the care and protection of children under the
Children and Young Persons (Care and Protection)
Act 1998 (NSW). Such cases are usually brought
by Community Services, the division of the
NSW Department of Human Services whose res-
ponsibility is keeping children and young people
safe from harm and supporting the families of
children and young people.
The Children’s Court is a closed court, which
means that people not directly involved in the
case are not allowed to be present unless the Court
otherwise orders. Court proceedings are informal
and each step is explained to the child. During the
hearing the child will be represented by a solicitor.
The standard of proof required is that it is ‘very
highly probable’ that the child is in need of care.
If the Children’s Court finds that a child is in
need of care, it can make a variety of orders, which
can be either short-term or long-term. Community
Services may be required to supervise the parents to
ensure that they fulfil their parental responsibility.
Alternatively, the court may decide to place the
child with a relative, foster family or other appro-
Cha pter 12: Option 3 : Fami l y 339
 priate adult. If this decision is reached the child’s
parents no longer have control over their child. Con-
tact visits may be permitted to allow the parent(s)
and child to maintain a personal relationship, but
such visits are closely supervised and regulated.
A variety of support services may be provided to
both parents and children, including educational,
psychological and welfare services. Orders by the
Children’s Court cease when the child turns 18.
The jurisdiction of the Children’s Court also
covers crimes committed by persons who were
under 18 at the time of the alleged offence.
Bringing a child to court for a criminal offence is
seen as the last resort. Many have argued that the
earlier a child comes into contact with the law, the
more likely he or she is to commit serious offences
upon reaching adulthood. Consequently, the legal
system should minimise contact between children
and the legal system, in the hope that fewer
children will become repeat offenders. This view
underlies the objectives of the Young Offenders Act
1997 (NSW), set out in s 3 of that Act:
(a) to establish a scheme that provides an alter-
native process to court proceedings for dealing
with children who commit certain offences through
the use of youth justice conferences, cautions and
warnings, and
(b) to establish a scheme for the purpose of
providing an efficient and direct response to the
commission by children of certain offences, and
(c) to establish and use youth justice conferences
to deal with alleged offenders in a way that:
(i) enables a community based negotiated res-
ponse to offences involving all the affected
parties, and
(ii) emphasizes restitution by the offender and
the acceptance of responsibility by the offender
for his or her behaviour, and
(iii) meets the needs of victims and offenders,
and
(d) to address the over representation of Aboriginal
and Torres Strait Islander children in the criminal
justice system through the use of youth justice
conferences, cautions and warnings.
340 C am b r id g e L e g a l S t u d ie s – HS C
The role of non-
government organisations
There are a number of non-government organi-
sations that provide support for families and
individuals who may be struggling with personal
relationships and other family issues. Many of the
better known organisations are operated by various
religious groups such as the Salvation Army, or by
churches, such as Centacare (www.centacare.woll.
catholic.org.au/) and Anglicare (www.anglicare.
org.au).
Non-government organisations which are not
associated with religious groups and which provide
similar services include Relationships Australia
(www.relationships.com.au) and the Smith Family
(www.thesmithfamily.com.au). Ser vices provided
by these organisations include mentoring, support
for new parents, counselling and relationship ad-
vice, assistance with managing conflict and dealing
with violence in the family, emotional support to
children of separating parents, mediation, and
advice on creating parenting plans. Unfortunately
many of these organisations are dependent on
donations and/or have to apply for government
funding and the goodwill of volunteers.
l eg al l i nks
A more complete list of
community-based family
relationship services can be found
at www.frsa.org.au/site/Services_
Directory.php?state =NSW.
The role of the media
The media have changed dramatically within the
last few years and will continue to change with the
introduction of new communication technologies.
The Family Law Courts have embraced these
new media technologies, placing ‘self-help’ guides,
brochures and forms, and links to other sites on
their internet site, and establishing the National
Enquiry Centre to answer telephone and e-mail
enquiries about general court procedures and
individual cases, as well as referrals to legal advice
and other services, and the provision of forms and
publications.
The courts have effectively used these new
media technologies to provide better information
about rights and obligations under family law, as
well as additional support services. They are also
keenly aware of the need to protect the privacy
of individuals affected by the breakdown of a
relationship, restricting how the media publish
court proceedings and so balancing the provision
of information and legal direction with protection
of personal information about separating families.
Co ntempora r y issues
co n ce r n i n g f a m i l y l aw
Issue 1: Recognition of
same-sex relationships
The Marriage Act 1961 (Cth) and various state legi-
slation give heterosexual couples a number of
rights and obligations from which same-sex couples
are excluded, and although the Sex Discrimination
Act 1984 (Cth) and state anti-discrimination Acts
protect heterosexual de factos against discrimi-
nation on the basis of marital status, same-sex
couples do not enjoy the same protection because
their legal marital status remains ‘single’.
In 2001, the Netherlands became the first
country to recognise same-sex relationships. Since
then, Belgium, Spain and Canada have passed laws
recognising them. For some same-sex couples, the
desire for legal recognition of their relationship
does not necessarily mean that they want the right
to be married. The removal of institutionalised
discrimination and the provision of adequate legal
protections may be a more pressing concern.
In 2004, the Commonwealth Government re-
affirmed the traditional concept of marriage as
‘the union of a man and a woman’ when it passed
the Marriage Amendment Act amending the defi-
R EV I EW 1 2 . 1 3
1 Explain how and why children are treated
differently within the legal system.
2 Explain the two roles of the Children’s
Court.
3 The emphasis of the Young Offenders
Act 1997 (NSW) is to provide sentencing
alternatives other than detention. Outline
the types of alternative orders the
Children’s Court can make.
4 Explain how non-government organisations
support families.
O p t i o n 3: Fam ily
nition by adding those words to s 5(1) of the
Marriage Act. The purpose of the amendment was
to clarify that parties to a marriage must be one
man and one woman. This means that any same-
sex marriage is automatically void in Australia,
including the marriage of any same-sex couple
who had previously married in a country that
granted same-sex marriages legal status.
Figure 12.7 For same-sex couples, legal recognition
of their marriage can mean more than the right to be
married. It also signifies the removal of institutionalised
discrimination.
Cha pter 12: Option 3 : Fami l y 341
 Legal and non-legal
responses
Changes to the law have been slow and haphazard,
but the law is gradually changing. Such changes
are to be encouraged if the law is to continue to
protect the rights and mutual obligations that are
created when two individuals form a relationship.
In addition, there are cumulative benefits for our
society in protecting any mutually supportive
relationship, not least of which is the economic
benefits associated with a two-income family
(more likely without children). This purchasing
power has been acknowledged by marketing and
sales representatives as they try to attract the ‘pink
dollar’. It is arguably against society’s interests to
penalise such relationships.
Legal responses
Between 2000 and 2009, various Australian
states and territories introduced a number of law
reforms recognising same-sex relationships in
specific areas. But same-sex relationships were
still not recognised as having the same status as
a ‘marriage’ under federal laws. In 2008, following
the Australian Human Rights Commission’s report
Same-Sex: Same Entitlements, the Australian gov-
ernment introduced reforms with the aim of
removing discrimination and providing same-sex
couples the same entitlements as those presently
enjoyed by heterosexual de facto couples. Since
2008 under the Same-Sex Relationships (Equal
Treatment in Commonwealth Laws – General Law
Reform) Act, federal law reforms have removed
areas of discrimination from a range of laws
and programs by amending and/or extending
definitions such as ‘de facto partner’, ‘child’,
‘parent’, ‘couple’ and ‘family’ to include same-sex
relationships.
For example, the Health Insurance Act 1973 (Cth)
now allows a same-sex couple and their children
to register as a family for Medicare and receive
the same entitlements as a heterosexual couple
and their children. Additional areas amended
have been tax, social security, family law, super-
annuation, workers’ compensation and child
342 C am b r id g e L e g a l S t u d ie s – HS C
support. Same-sex couples will be able to claim the
same tax concession as those presently available
to married or heterosexual de factos. They and
their children will be able to claim superannuation
benefits, and to receive the same social security
and family assistance payments as heterosexual
couples.
A major change in state laws concerns the re-
cognition of a same-sex partner as the ‘parent’ of
their partner’s child. Male partners in a hetero-
sexual marriage or de facto relationship have
parental rights and responsibilities towards a child
conceived during the relationship – that is, bio-
logical parents are regarded as having joint res-
ponsibility for the child. However, a partner of the
same sex had no legal standing and could not make
decisions about the day-to-day care of the child
unless the Family Court had so ordered. Children
conceived through donor insemination or assisted
reproduction had only the mother listed on their
birth certificates. The Miscellaneous Acts Amend-
ment (Same-Sex Relationships) Act 2008 (NSW)
granted equal parenting rights for the female par-
tners of mothers, and both are listed as mothers on
the child’s birth certificate. This change gives chil-
dren born into same-sex relationships equal rights
to inheritance from both ‘parents’ and protects the
rights of both mothers in matters involving the
children if the relationship were to end.
Under the Family Law Amendment (De Facto
Financial Matters and Other Measures) Act 2008
(Cth), property and maintenance matters for
separating homosexual couples are determined
by the Family Court or the Federal Magistrates’
Court. The Act extends the definition of ‘de facto’
to include two people who are not married or
related by blood who live together ‘on a genuine
basis’. The Act does not distinguish between a
relationship between two people of the same or
opposite sex.
Non-legal responses
Non legal responses to the reforms have been
varied, ranging from complete support and criti-
cism of the various state and federal governments
for not going far enough, to individuals and groups
who are highly critical of any added protection of
the rights of same-sex couples.
The Australian Human Rights Commission
has held a number of inquiries into areas of
discrimination and human rights violations. The
Commission also makes recommendations to the
government regarding the removal of institutional-
ised discrimination and legislation which does not
comply with UN human rights treaties. In 2007,
Commission’s report Same-Sex: Same Entitlements
(www.hreoc.gov.au/HUMAN_RIGHTS/samesex/
report/index.html) recommended amending fed-
eral laws that discriminated against same-sex
couples and their children in the area of financial
and work-related entitlements and benefits.
Other groups that actively lobby and campaign
for the legal rights and social equality of gay and
lesbian couples include Australian Marriage Equal-
ity (www.australianmarriageequality.com) and
the Gay and Lesbian Rights Lobby (http://glrl.org.
au/). Australian Marriage Equality argues that the
legally recognised institution of marriage should
not exclude these couples. A different classifi-
cation sends the message that their relationships
are of a lesser standard or character and that the
people are second-class citizens. Justice requires
changing the law to make marriage available to all
Austra lians who choose it, not classifying same-
sex couples as de factos or permitting them only
to form ‘civil unions’. The Gay and Lesbian Rights
Lobby has a wide-ranging agenda, including advo-
cacy, lobbying government and the media to
address discrimination, hosting consultations,
educating the gay and lesbian community on their
rights and providing referrals to legal and welfare
services.
Some sections of the media have been critical
of these changes and have resorted to ridicule. For
example, in 2003 two radio program hosts made
comments ‘capable of inciting severe ridicule of
homosexual men’ and therefore were held to have
breached the vilification provisions of the Anti-
Discrimination Act 1977 (NSW). In 2008 the hosts’
appeal was settled, with a public apology on air
and a written apology in The Sydney Morning
Herald.
Most of the lobby groups that oppose equal
rights for homosexual couples have a religious
affiliation, such as the Australian Christian Lobby
(www.acl.org.au/). Under the current discrimina-
tion laws, religious groups continue to be able to
discriminate on the basis of sex, sexuality, race,
disability and age. This allows these organisations
to withhold services to individuals.
Responsiveness of the legal
system
In order to change the law, courts have to be willing
O p t i o n 3: Fam ily
to act, a significant number of politicians must
support legislative reform, and there also needs to
be a societal change. Law reform bodies have the
task of investigating and recommending changes.
The Anti-Discrimination Board of NSW is part
of the NSW Department of Justice and Attorney
General. It administers the anti-discrimination
laws of New South Wales. It handles complaints of
discrimination, and also informs the public of how
individuals can prevent and deal with discrimina-
tion, through consultations, education programs,
seminars, talks, community functions and publi-
cations. The Board’s third function is to advise the
government and make recommendations. It has
made a number of submissions to both the state
and federal governments concerning changes to
current legislation that are necessary in order to
provide same-sex couples the same legal rights
and protections that are now enjoyed by married
couples.
However, arguments against the recognition of
same-sex relationships continue to exert an influ-
ence in the public sphere. The legislative changes
to de facto entitlements by the Rudd government in
2008, while welcomed, sat alongside a continuing
refusal to amend the Marriage Act to permit same-
sex marriage. Then Prime Minister Rudd told the
media in 2009 that the Australian Labor Party
considered marriage to be a union between a man
and a woman, and that the party’s policy opposed
gay marriage. ‘I fully accept the integrity of same-
sex relationships … but in terms of the policy, it’s
a matter to which we have been committed for
some time,’ he said.
Cha pter 12: Option 3 : Fami l y 343
 Conclusion
In his speech at the Conference on Legal Recog-
nition of Same-Sex Partnerships in 1999, then
High Court Justice Michael Kirby stated:
As a people committed to equal justice for all
under the law, I have confidence that the Austra-
lian legal system, and those who make laws in
Australia, will, in due course, eradicate unfair dis-
crimination on the basis of sexuality. The scales
are dropping rapidly from our eyes. Injustice and
irrational prejudice cannot survive the scrutiny of
just men and women.
Source: www.hcourt.gov.au/speeches/kirbyj/kirbyj_samese.htm
Both the state and federal governments take
note of and continue to respond to issues surround-
ing discrimination. These issues are not limited to
same-sex relationships. Similar recognition, rights
and protections for non-traditional and alternative
or extended family relationships are also needed.
R EVIEW 12.14
1 List the issues surrounding same-sex
relationships and discuss the effectiveness
of legal and non-legal responses in
addressing these issues.
2 Compare and contrast arguments for
changes to practical entitlements only, and
arguments for full recognition of same-sex
relationships by means of a change to the
definition of marriage.
Issue 2: The changing
nature of parental
responsibility
The concept of parental responsibility has
changed. In the past, parents sought ‘custody
and control’ over their children, enforcing their
parental rights. Now the courts are less concerned
with parental rights and more concerned with
parental responsibility. The focus of the law is on
ensuring that parents fulfil their legal obligations
towards their children.
344 C am b r id g e L e g a l S t u d ie s – HS C
Parents have joint responsibility for the child
(see Family Law Act 1975 (Cth) ss 61B and 61C).
This applies equally to a child born within mar-
riage (nuptial) and to a child born outside of
marriage (ex-nuptial). This responsibility is not
altered if the parents separate, marry or remarry,
unless there is a court order otherwise. Reforms to
family law have tended to focus on maintaining
positive and supportive family structures even
when parents separate. But the law has also
focused on ensuring that parents meet their res-
ponsibilities towards their children.
Legal and non-legal
responses
There is a perception that the ideal of shared
parental responsibility is frequently not reflected
in reality. There are always instances where the
child will spend a disproportionate amount of his
or her time with one parent. This could be because
of financial or geographic constraints, or issues
such as a parent’s alcohol abuse or poor health.
In more than 60 per cent of parenting plans and
orders, children spend more than half of their time
with their mother. The main reason for a child to
spend no time or less than 30 per cent of his or
her time with a male parent was concern about
abuse or family violence and entrenched conflict.
For women it was concerns regarding their mental
health, and issues surrounding transport or finan-
ces, as well as abuse.
A key point to remember is that shared parental
responsibility, or shared responsibility for major
decision-making, is not the same as shared care
(equal time with both parents). However, it can be
argued that family law reforms in 2006, aimed at
encouraging parents to share both responsibility
and care more equally, have had some unintended
and undesirable effects. One of these was that
more parents mistakenly believe that they are now
entitled to 50-50 shared care of their children.
Another is that the legislation’s emphasis on a
child’s right to a relationship with both parents has
been given more weight than is warranted.
Legal responses
Reforms introduced by the Family Law Amend-
ment (Shared Parental Responsibility) Act 2006 (Cth)
included two types of considerations to be taken
into account by a court in respect of the ‘best inter-
ests’ of the child (Family Law Act 1975 (Cth) s 60CC).
The court will now take into account ‘primary’ and
‘additional’ considerations. Primary considerations
include the benefit of the child having a positive
and meaningful relationship with both parents,
and the need to protect the child from abuse and
family violence. Additional considerations include
the child’s wishes, the nature of the relationship
between the child and the parent, the financial
ability of the parent to care for the child and the
ability of the parent to provide for the intellectual
and emotional needs of the child. Where there
are factors such as the risk of violence, or shared
responsibility that is not in the child’s best inter-
ests, whether the responsibility is equally shared
is not an issue. When this is the case, the court
will not have to consider whether the child’s time is
equally shared by the parents.
Another change involved the notion of ‘sub-
stantial and significant time’ to be shared by each
parent, where equal time is not considered to be
in the best interests of the child (Family Law Act
s 65DAA). Some have argued that this provision
has not been sufficient to address parents’ mis-
perception that both are ‘entitled to’ time with the
child, and that they should both have ‘substantial
and significant time’ even when there are other
factors to the contrary.
When more time with children is coupled with
reduced child support payments, the motivations
for seeking shared care become less clear, and
courts may have a harder time reconciling the
aim of facilitating the child’s relationship with
both parents with the actual facts of the particular
family situation.
A parent who has been pressured into allowing
the other parent more time with the child may be
discouraged from raising concerns about family
violence, and may think that the court will order
shared care anyway.
Non-legal responses
Community and church-based institutions, as
well as nationwide organisations such as Relation-
ships Australia, can help separating parents to
negotiate their own parenting agreements and can
also provide a range of information and referrals.
Counselling, education and skills training not only
help parents to develop better parenting skills, but
may also assist in recognising gender issues that
affect relationships with children in negative ways,
for example the attitude that fathers are inherently
less competent than mothers in caring for tod-
O p t i o n 3: Fam ily
dlers, or that a good work–life balance is essential
for mothers but less important for fathers.
Resolving problematic issues about shared
parenting and shared responsibility requires
changes in societal attitudes, and these interact
with legislative enactments and amendments.
Successful shared care was occurring before the
2006 amendments, where the parents involved
were willing to cooperate in the effort to achieve
the best circumstances for their children. Non-
legal mechanisms such as women’s resource
centres, the National Council of Women of Australia
(www.ncwa.org.au) and parenting networks for
mothers, fathers or both may be of value in further-
ing this aim. DadsLink is one example of a network
that focuses on fathers and their relationships with
their children, and is part of the YMCA’s ParentLink
program for single parents.
Responsiveness of the
legal system
Sometimes changes to the law have led to changes
in what the community accepts as moral behav-
iour, and sometimes they reflect these social
changes. The obligation to take responsibility for
the care and financial support of a child is con-
sidered to be one that should be met by both
parents.
In addition, views about men and women have
expanded to accommodate a much wider range of
roles for fathers as well as mothers. The idea that
responsibility and care for children is primarily
Cha pter 12: Option 3 : Fami l y 345
 the mother’s role is no longer the dominant view:
a significant number of Australians believe that
fathers are equally capable of parenting, just as
mothers are equally capable of fulfilling the other
aims of a satisfying and productive human life.
In order to ensure that parents meet their
responsibilities, the government has enacted
a number of laws. Some of the trends that have
arisen since the 2006 reforms to the Family Law
Act suggest that courts – and society – to distin-
guish between families in which shared care is
desirable and those in which there are concerns
that override this aim. The most obvious legal
response would be to change the law to distinguish
between equal responsibility and equal time.
Conclusion
The emphasis on children’s rights reflects the idea
that children are vulnerable members of our
society and need greater protection. All decisions
must be in the best interest of the child and the
interests of their parents or caregivers are secon-
dary. It is important to protect the child’s right to
maintain a quality relationship with both parents.
But the law also needs to ensure that parental res-
ponsibility entails more than the child merely
spending half his or her time with each parent.
Figure 12.8 The obligation to take responsibility for the care and financial support of a child is
considered to be one that should be met by both parents.
346 C am b r id g e L e g a l S t u d ie s – HS C
R EVI EW 1 2 . 1 5
1 List the issues surrounding parental
responsibility and discuss the effectiveness
of legal and non-legal responses in
addressing these issues.
2 Consider and discuss whether further
legislative reforms would be useful to
address the problems raised by parents’
misunderstanding the idea of shared
parental responsibility.
Issue 3: Surrogacy and
birth technologies
Birth technologies
Under common law, the mother of a child is the
woman who gave birth to the child. The father
is the man who acknowledges and accepts the
responsibility for the child or who is proven to be
the father in court. Advances in birth technology
mean that it is no longer possible to presume the
identity of the biological parents. Birth technolo-
gies include:
s artificial insemination – where donated sperm
are artificially introduced into the vagina or
uterus
s IVF (in-vitro fertilisation) – where fertilisation
takes place outside the uterus using the sperm
of a parent or donor and the ovum of a parent
or donor, and the resulting embryo is then im-
planted in a uterus
s use of genetic manipulation, gene shearing or
donated genetic material to alter a foetus in
utero.
Birth technology has created many legal issues,
from paternity to rights of inheritance to who has
care and control over the child. The father of the
child may not necessarily be the ‘natural father’.

O p t i o n 3: Fam ily
For any child conceived via artificial insemination
or in-vitro fertilisation, the parents (whether
married or not) are considered to be the legal and
natural parents of the child and have all the obli-
gations of maintaining and caring for the child.
Under the Status of Children Act 1996 (NSW), these
children have the same legal status as children
conceived naturally.
The Status of Children Act created the notion
that ‘presumption of paternity’ is automatic and
is irrefutable if the couple are married or in a
de facto relationship. Under this Act, ‘when a
woman becomes pregnant by using donor sperm Figure 12.9 Advances in medical technology, such as IVF,
from someone other than her husband, then are creating new challenges for the law.
that man is presumed not to be the father of the
child born’. In the case of B v J (1996) 21 Fam
LR 186, the father refused to pay maintenance, signed by the mother and lodged with the Registry
arguing that the child was not his child and that of Births, Deaths and Marriages. If paternity is in
maintenance was the responsibility of the sperm dispute, the Act allows the identity of the father to
donor because the donor’s name appeared on the be determined by blood tests.
child’s birth certificate. The court rejected this
argument. Under the ‘presumption of paternity’ he Surrogacy
automatically became the child’s father because Surrogacy involves an agreement between a
he was in a relationship with the child’s mother, commissioning couple and a woman, where the
and he therefore had all of the responsibilities and woman agrees to bear a child for the commission-
obligations in respect of the maintenance and care ing couple and then give the baby to the couple
of the child, who was born within the relationship. when the child is born. Under the law, the woman
A sperm donor is automatically presumed not to who gives birth to the child – whether the child is
be the father (to have no paternity) and thus he is conceived naturally or artificially – is the mother.
not required to pay maintenance even if his name Even if the birth mother uses both donor ova and
appears on the child’s birth certificate. However, donor sperm or a donated embryo to achieve the
any such presumption about the sperm donor pregnancy, she is still considered the legal and
may be altered if he makes a written application, natural mother of the child. The status of the

Cha pter 12: Option 3 : Fami l y 347

 natural mother as the birth mother can be found
in the Status of Children Act 1996 (NSW), the Family
Law Act 1975 (Cth) and the Marriage Act 1961, and
under common law. The commissioning couple
may not have any rights to the child.
Because the child was not conceived within a
domestic relationship, the surrogate mother has
exclusive custody rights and she cannot be forced
to give up the child. The natural father has no
claim to the child. If the surrogate mother has
entered into a contract with the commissioning
parents, the Family Court will not enforce such a
contract. If a custody dispute does arise the surro-
gate mother will win.
The laws relating to surrogacy differ slightly
from state to state. This has created a great deal
of inconsistency, uncertainty and conflict between
state Acts.
Figure 12.10 Susie, holding a scan of the unborn child, is a surrogate
mother for Amasha and Dyon Marshall. Amasha had cervical cancer at
23 years of age and is unable to have children.
348 C am b r id g e L e g a l S t u d ie s – HS C
Legal and non-legal
responses
Surrogacy raises many complex social, emotional
and parenting issues, including the legal recog-
nition of genetic parents. Commercial surrogacy
is an agreement involving a fee or reward paid
to the woman who gives birth to the child, and
the transfer of custody and parental responsibility
for the child to another person, by adoption or
agreement, with the child to be treated as the child
of that other person. Such agreements are illegal
in NSW under Part 4 of the Assisted Reproductive
Technology Act 2007 (NSW). Altruistic surrogacy,
by contrast, is the circumstance in which the
surrogate receives no financial payment for the
pregnancy or the transfer of the child, though the
commissioning parents may pay expenses related
to her pregnancy and the birth. Altruistic surro-
gacy remains largely unregulated.
Legal responses
The laws concerning surrogacy in Australia are
state- or territory-based. Some aspects of altruistic
surrogacy are covered by the Human Tissue Act
1983 (NSW) and more indirectly, issues concern-
ing adoption under the Adoption Act 2000 (NSW).
There are only a few provisions addressing sur-
rogacy issues in the Family Law Act 1975 (Cth), and
the presumptions of parentage (ss 69P–69U) are of
limited help as applicable law on the topic. Section
60HB states that if a court has made an order
about the parentage of a child, then that order is
determinative. Section 60H deals with artificial
conception procedures. These sections alone are
not adequate to address all of the potential issues
surrounding surrogacy.
The ACT, Victoria and Western Australia have
enacted laws to address the issue of the parent-
age of a child born to a surrogate mother. In the
ACT and WA, an application can be made for a
court order transferring the status of legal parent
from the surrogate mother and her partner to
the commissioning parents. This is analogous to
adoption. However, adoption orders in these cir-
cumstances are not available in states such as
New South Wales.
In October 2008, the NSW government sub-
mitted its views to the NSW Parliamentary
Inquiry into Legislation on Altruistic Surrogacy.
The government suggested that some parts of the
regulatory framework for adoption could be used
in forming a prospective framework for surrogacy.
It noted that Community Services is sometimes
involved in helping with surrogacy arrangements,
when approached by commissioning parents to
facilitate the adoption of a child. However, this
is not considered ideal, as it goes outside the
agency’s main function, which is to provide adop-
tive placements for children at risk and children in
out-of-home care.
Alternatively, commissioning parents may
apply to the Family Court to adopt the child under
Family Law Act 1975 (Cth) s 60G. The case Re
Michael: Surrogacy Arrangements [2009] FamCA
691 was heard under the Family Law Act because,
as noted above, NSW lacks clear state legislation
relating to surrogacy. The essential question was
‘Who are the parents of a child born as a result
of a surrogacy agreement?’. In this case, the two
biological parents (Sharon and Paul) sought an
order to adopt their child after the surrogate mother
(Lauren) had given birth to Michael. There was no
dispute between the parties over who should have
custody and responsibility for Michael, but the
court had to determine whether Sharon and Paul
were Michael’s legal parents, in order to decide
whether or not they could initiate proceedings to
adopt him. However, under the Family Law Act, if
no orders have been made under state law regar-
ding parentage, then the child is deemed to be
the child of the woman who gave birth (the ‘birth
mother’ – Lauren) and the birth mother’s partner
(see s 60H) – in this case, these were Lauren, the
surrogate mother, and her partner Clive, neither
of whom contributed genetic material. It was
irrelevant that Lauren and Clive did not intend to
be the legal parents. Even though Michael’s birth
certificate named Sharon and Paul as his parents,
the court found that the presumption of their
parentage based on the birth certificate (s 69R)
was rebutted by the provision in s 60H. The court
could not make an order for Sharon and Paul’s
adoption of Michael. However, they could apply to
the Supreme Court of NSW for an adoption order
under the Adoption Act 2000 (NSW).
Where the child is conceived in a stable
relationship, the male partner is assumed to be the
O p t i o n 3: Fam ily
father even if he was not the biological parent. This
would mean that the child’s biological father has
no rights in regards to his child.
It is illegal for the surrogate mother to ‘give’
her child to the commissioning parents. Placing a
child with a person who is not a relative for more
than 28 days is illegal under the Children (Care and
Protection) Act 1987 (NSW). If, however, one of the
commissioning parents was also the biological
parent of the child, this would be permitted.
Non-legal responses
Various organisations and lobby groups have
opposed surrogacy on moral grounds, usually
based on religious principles. These concerns
centre on the concept of a traditional family,
especially as surrogacy may provide an avenue for
same-sex couples to have children. These lobby
groups have expressed a desire that surrogacy be
restricted to infertile heterosexual couples. They
have claimed that families with parents of the
same sex face difficulties ranging from problems
accompanying one’s small child of the opposite
sex to a public toilet to social stigma. A slippery-
slope argument has also been employed, for
example the Australian Christian Lobby’s 2009
claim that surrogacy ‘would pave the way for two
men or two women to “order” a baby they are
not even genetically connected to’, also denying
the child either a male or a female parent and
role model.
Cha pter 12: Option 3 : Fami l y 349
 Responsiveness of the legal
system
The federal government has been slow to pass
laws relating to surrogacy issues and the courts
are constrained by existing legislation. The Stand-
ing Committee on Law and Justice (of the NSW
Parliament) has been asked to examine altruistic
surrogacy arrangements in NSW, in order to:
s clarify the legal rights and responsibilities of
commissioning parents and birth parents
s clarify the rights of a child born through
surrogacy
s determine how to remove inconsistencies
between existing state and federal legislation.
The Standing Committee of Attorneys General,
a ministerial council drawn from state and Com-
monwealth parliaments and including the New
Zealand Minister of Justice, has agreed that a
national model law regulating surrogacy is needed.
In 2008 it agreed in principle that the model should
have the following characteristics:
s commercial surrogacy should remain illegal
s a birth mother cannot be legally compelled to
give up the child
s informed consent of all parties is essential,
along with specialist counselling
s court orders should be available to recognise
the commissioning parents as the legal parents,
where the surrogacy agreement is in the best
interests of the child.
Conclusion
Advances in birth technology have created a great
need for law reform. When considering the new
laws in this area, both parliaments and the courts
need to address a multitude of conflicting ethical
views. The rapid development of birth technology
has challenged long-standing moral and legal
conceptions of ‘family’ and ‘parent’. Prior to IVF,
the woman who gave birth and her husband or
partner were the child’s parents. However, the
legal definition of ‘parent’ has now been extended
to meet the challenges of new family arrange-
ments and technological advances.
350 C am b r id g e L e g a l S t u d ie s – HS C
R EVI EW 1 2 . 1 6
1 List the issues surrounding surrogacy and
discuss the effectiveness of legal and non-
legal responses in addressing these issues.
2 Identify the jurisdictional problems in the
area of surrogacy and discuss how the
Family Court met these challenges in Re
Michael.
Issue 4: Care and
protection of children
All states and territories, together with the
Commonwealth government, have passed laws
regarding family violence, child abuse and child
neglect. The focus of the Children and Young Persons
(Care and Protection) Act 1998 (NSW) is safe-
guarding the health and well-being of children,
including protecting them from violence or abuse
and provisions for the mandatory reporting of
concerns to Community Services, where a teacher,
doctor, nurse or other professional believes there
to be a risk of harm from family violence or abuse.
The amendments to the Family Law Act 1975 (Cth)
by the Family Law Amendment (Shared Parental
Responsibility) Act 2006 (Cth), which had the aim
of ensuring that children have a meaningful
relationship with both their parents, require the
court to consider the child’s best interests rather
than parental interests. But the amendments have
been criticised on the basis that there is a greater
potential for a child to be exposed to family
violence.
According to the submission of the NSW
Ombudsman to the Wood Inquiry (Special
Commission of Inquiry into Child Protection
Services in NSW) on mandatory reporting, the
number of ‘at risk of harm’ reports made to
Community Services has increased steadily
and continues to grow. In 2006, 241 003 reports
were made about concerns for a child’s or young
person’s safety. In the following year, the number
of reports increased by 19% to 286 022.

Figure 12.11 The number of reports to Community Services about children at risk of harm has increased.
Legal and non-legal
responses
The Family Law Act 1975 (Cth) defines ‘family
violence’ as any action or threat of violence by
one family member against another, including
witnessing that action or threat, that causes fear
or apprehension about personal safety. The 2006
amendments to the Family Law Act 1975 (Cth)
endeavoured to ensure that children are protected
from both direct harm and from harm resulting
from exposure to family violence. The presumption
of equal shared parental responsibility does not
apply if there is a risk of child abuse or family
violence.
Legal responses
If there is evidence of family violence, the court may
order that the child’s contact with the offending
parent is restricted or that the contact takes place
O p t i o n 3: F am ily
within a controlled environment, such as with a
social worker present. In this instance the concept
of ‘shared parental responsibility’ does not apply.
In cases where there is evidence that family
violence has occurred, family dispute resolution
may be inappropriate. The court will hear cases
that raise family violence issues quickly so that it
can take appropriate action to protect vulnerable
family members.
The Family Court can order relevant state and
territory agencies to provide information regarding
allegations of family violence. Under s 117AB of the
Family Law Act, the court can also order a person
to pay some or all of the costs of another party
to the proceedings, if the court is satisfied that
the person knowingly provided false information,
including false allegations of family violence.
When Community Services NSW receives a
‘risk of harm’ report involving allegations of phy-
sical or sexual abuse, neglect or other criminal
Cha pter 12: Option 3 : Fami l y 351
 conduct regarding a child, a caseworker makes an
assessment to determine the extent of the risk.
Almost two-thirds of all reports are referred to
community services centre or Joint Investigation
Response Team (JIRT) for further assessment
and investigation. Members of this team include
Community Services representatives, police and
representatives from NSW Department of Health.
Once the report has been made, the response
team will speak to the young victim and act
to protect the child if the child is in immediate
danger.
If police decide that there is evidence of a
crime, the suspect will be charged, the child
will be assigned a caseworker, and the child will
receive medical attention if needed. The response
teams were established to improve interagency
collaboration between NSW Health, the police and
Community Services, and to provide counselling
and trauma support for victims.
Reporting reduces the amount of administra-
tive work for a caseworker. This reduces the call
load on Helpline and allows caseworkers to focus
on assessment. During 2008 Community Services
Helpline received approximately 300 000 calls.
Non-legal responses
Churches and organisations such as the Salvation
Army have traditionally provided extensive sup-
port and educational services to children in
need. These services include child care centres,
counselling services (for example addiction and
bereavement), and emergency housing and youth
support programs. Although these groups have
provided necessary help and support to children
and families in crisis, some groups have also been
heavily criticised for their lack of action in dealing
with accusations of child abuse made against their
own members.
Clergy members of various churches have been
accused and found guilty of serious misconduct
and child abuse. Some church organisations have
been heavily criticised for their lack of support for
victims of abuse at the hands of the clergy and
352 C am b r id g e L e g a l S t u d ie s – HS C
some churches have been accused of protecting
known child sex offenders within their ranks.
In response, the Anglican Church has estab-
lished a Professional Standards Unit that investi-
gates complaints involving clergy and ancillary
staff. In 2002 the Anglican Church made a public
apology for the misconduct of clergy and staff and
reaffirmed the church’s condemnation of such
behaviours. In 1996 the Catholic Church estab-
lished the Melbourne Response to investigate
claims of clergy abusing young children.
Victims of abuse have been encouraged to
contact the relevant church authorities to lodge a
complaint. All major religious bodies which have
contact with children and young people have
established internal procedures for investigating
abuse claims. As part of this process, each has
established counselling services for abuse victims
and compensation funds to pay future claims
made by victims.
There are a number of initiatives to provide
support for families and children in crisis. These
include:
s Child Abuse Prevention Service (CAPS) – aims
to alleviate child abuse by educating the com-
munity about child abuse issues and providing
counselling and ongoing support for victims
and perpetrators (www.childabuseprevention.
com.au)
s Child Protection and Family Crisis Service –
provides 24-hour telephone counselling.
s The Benevolent Society (www.bensoc.org.au)
– offers programs supporting families to over-
come stresses that lead to abuse and neglect;
services include counselling, home visits, access
to child health professionals, play groups, social
groups for parents, art therapy, and links to
local services
s Parenting NSW – a state government initiative
which aims to make parenting easier by helping
parents become better parents.
s Various local municipal councils also offer
programs providing help and support for
children and young persons.
Responsiveness of the legal
system
Criticisms of child protection in NSW have been
made against Community Services, the police, the
courts and community groups. A review of the
NSW child protection system began in 2006. A
new Children’s Commissioner was established to
monitor state programs to eradicate child abuse
and strengthen existing child protection. The
review also proposed that a national framework for
child protection should be established. Presently
no such a framework exists.
The legal system has been accused of acting too
slowly to protect child victims of abuse and that
existing mechanisms to protect children are in-
adequate. An increasing number of persons under
18 have been placed on care and protection orders.
According to the report of the Australian Institute
of Health and Welfare, A Picture of Australia’s
Children 2009, more than 25 000 children were
placed on care and protection orders, which repre-
sents an increase of 88 per cent since 2000. While
some would argue that this indicates that people,
once they are aware of their rights, will seek
ADVOs to protect themselves and their children
from actual harm, it also indicates that support
and counselling services provided to perpetrators
have been less than successful in encouraging
them to modify their abusive behaviours.
Sadly, in 2007 more than 150 children who had
been previously reported to Community Services
as being at risk of harm died at the hands of their
abusive parent or carer. Many of the victims were
aged less than 4 years old. Hampered by dwindling
financial resources and staff cuts, Community
Services has been unable to provide adequate
protection and support for families and victims of
child abuse.
The federal government has recognised child
abuse and neglect as a major issue and is seeking
to create a national framework for protecting
children. This will necessitate the coordination of
government and non-government organisations,
the creation of uniform child protection laws,
and a focus on early intervention and prevention
strategies to protect children from abuse and
reduce the harmful effects that abuse has on
children.
O p t i o n 3: F am ily
Conclusion
Children are considered to be vulnerable members
of our society and therefore deserving of greater
levels of protection. The legal system has res-
ponded by strengthening legislation surrounding
the care and protection of children. Neglect and
the abuse of children are now considered serious
crimes and parents who are found guilty of such
crimes can ultimately be charged with murder if
their child dies in their care.
R EVI EW 1 2 . 1 7
1 List the issues surrounding the care and
protection of children and discuss the
effectiveness of legal and non-legal
responses in addressing these issues.
2 Consider the question of coordination
between government and non-government
bodies, and discuss how this could best
be accomplished to provide protection for
children.
Cha pter 12: Option 3 : Fami l y 353
 s The concept of family includes nuclear,
extended, blended and single-parent families
and the main function of the family is the care
and protection of its members.
s Marriage is the ‘voluntary union for life of one
man and one woman, to the exclusion of all
others’. A valid marriage is between one man
and one woman, who must be adults and not
closely related.
s Marriage imposes legal rights and obligations
on both husband and wife. These include mat-
ters relating to maintenance, property and wills.
s The Australian federal government has the
power and authority to make laws governing
marriage and divorce. However, state
laws regulate de facto and other domestic
relationships, including adoption.
s Parents have legal and moral obligations to
their children. Children have the right to the
C hap ter s umm ary
care and protection of their parents, and the
right to education, medical treatment, and
inheritance.
s The United Nations Convention on the Rights
of the Child recognised the need for the univer-
sal protection of children’s rights. The conven-
tion has influenced family law within Australia.
s There is only one ground for divorce in
Australia: irretrievable breakdown of marriage.
The spouses must live separately and apart
C h ap t e r su mm ary tasks
1 If a marriage breaks down, should
the dependent spouse be entitled to
maintenance? Outline and explain the various
factors that should be taken into account
when determining maintenance issues.
2 Discuss the issues surrounding blended
families and explain why a step-parent is not
financially responsible for the children of their
spouse.
3 Briefly explain how family law has responded
to changing social values, such as increased
incidence of divorce and the acceptance of de
facto and same-sex relationships.
354 C am b r id g e L e g a l S t u d ie s – HS C
for 12 months before a divorce order will be
granted.
s In property settlements, courts will consider
financial and non-financial contributions, age,
income, child care factors, and other specific
characteristics of the parties.
s Binding financial agreements can be made
before, during or after a marriage.
s A main focus of family law is the protection
of children. Many of the amendments made
to legislation centre on enforcing parental
responsibility and ensuring that decisions
concerning children are made in the best
interests of the child.
s The law also aims to provide dispute resolution
structures and processes that will help parties
to reach an amicable termination of their
relationship. The court focuses more on
reconciliation and on encouraging compliance
rather than on enforcement through the use of
sanctions.
s Legal responses to domestic violence include
ADVOs, injunctions and criminal charges.
s Advances in birth technology have raised a
number of new ethical and legal issues. The
concept of parentage has expanded. Surrogacy
remains a problematic area within family law.
4 Create a table listing in chronological order
the legislative and common law changes in
family law and their effects.
5 Outline the legal issues surrounding family
violence, and evaluate the effectiveness of
current family law remedies in achieving just
outcomes for all family members.
 1 Marriage in Australian society
a can only be entered into by a person of
sound mind and understanding
b is the joining of two people to live together
for the remainder of their lives
c is defined in legislation and not in case law
d is based on the idea of romance and can
only occur once the couple have become
engaged
2 A parenting plan is an agreement between
parents covering:
a living arrangements only
b living arrangements and maintenance
agreements
M ul ti p l e c hoi ce q ue s ti o n s
c living arrangements, maintenance
agreements, religion, culture, education,
health and other issues
d living arrangements and maintenance
agreements but not religion, culture,
education, health and other issues
3 If an ADVO is breached, police can arrest the
offender
a if there is sufficient evidence to prove that
such a breach occurred
b although sufficient evidence is not
necessarily required to prove that such a
breach occurred
c if they suspect the offender of previous
breaches
Ex t e nd ed res po n se ques ti ons
1 How effective are the existing legislative
responses to the abuse and neglect of
children? Identify any tensions between the
aims and objectives of state and federal
legislation.
2 Identify and evaluate the arguments for and
against changing the definition of marriage
to include same-sex couples. Discuss, with
reference to the claim that practical benefits
such as superannuation, tax, property
rights and medical consent issues are more
important than the symbolic social role of
marriage.
3 What weight should be given to children’s
views with respect to disputes about parental
responsibility?
4 Identify and explain some contexts in which
states have referred their legislative powers
d but they don’t have to investigate claims of
domestic violence
4 Family Relationship Centres were established
to
a help people find a partner
b help individuals maintain healthy
relationships and encourage good
parenting practices
c provide information, referrals and
assistance to individuals seeking to have
the dominant share of responsibility and
care for their children
d provide a forum for disputing parents to
negotiate a settlement
O p t i o n 3: F am ily
5 Individuals who enjoy greater protection of
their rights than others include:
a adults, who have more rights because they
can earn money
b children, who have rights until they are 18
years of age
c adults, because they are seen as vulnerable
members of our community, especially in
their dealings with the law and with other
adults
d children, because they are seen as
vulnerable members of our community,
especially in their dealings with the law and
with adults
to the Commonwealth. Are there other areas in
which such a referral would be advantageous?
Discuss, providing examples.
In Section III of the HSC Legal Studies
examination you will be expected to
complete an extended response question
for two different Options you have studied.
There will be a choice of two questions
for each Option. It is expected that your
response will be around 1000 words in
length (approximately eight examination
writing booklet pages). Marking criteria for
extended response questions can be found
at www.cambridge.edu.au/education. Refer
to these criteria when planning and writing
your response.
Cha pter 12: Option 3 : Fami l y 355
 T h e m e s a n d ch a l l e n g e s

The role of the law in encouraging s If the breach was of orders pertaining to
cooperation and resolving conflict in regard to children, the court has a range of actions
family available to it. Remedies available to the
court include variation of parenting orders,
s An emphasis on mediation and counselling
compulsory attendance at parenting
as primary dispute resolution processes has
programs, community service orders and
encouraged greater levels of cooperation
in extreme circumstances, imprisonment
between separating couples, and the vast
(Division 13A of Part VII of the Family Law Act
majority of family disputes are now resolved
1975 (Cth)).
without arbitration.
s Although ADVOs are designed to provide
s This has been enhanced by court provision
protection against harm, there are concerns
of information via websites and do-it-yourself
about the their effectiveness. Approximately
kits.
10% of individuals do not comply with
s Disputing couples are required to attend
protection orders. ADVOs depend on the
compulsory family dispute resolution and
named individual’s voluntary compliance with
family counselling sessions.
the order, the active policing of the ADVO,
s The Family Court has reviewed its own
and the victim’s willingness to report any
internal processes and made substantial
breaches to the police.
changes to make them less complex.

Changes to family law as a response to

Issues of compliance and non-compliance
changing values in the community
s The Family Law Council (a Commonwealth
s The law reflects community values. Individuals
statutory authority established under s 115 of
are therefore more likely to obey the law
the Family Law Act 1975 (Cth) to advise the
if they believe that the law is essentially
federal Attorney-General) has recommended
enforcing and promoting ‘right’ behaviours.
that an enforcement agency be established to
Family law is concerned with managing
oversee the enforcement of parenting orders
human relationships, which is complicated by
and assist in bringing complaints before the
the multicultural nature of our society. The
court.
legal system must balance different cultures,
s It is only when parties cannot reach an
ethical systems, religious values, social and
agreement that the dispute will be heard in
family attitudes, and individual rights, in
the Family Court. Court intervention is seen
the effort to develop the best processes for
as a ‘last resort’ because individuals are
society as a whole.
more likely to comply with a decision that
s When children born in Australia to migrant
they negotiated and reached voluntarily.
parents adopt the cultural beliefs and
Enforcement of Family Court orders therefore
practices of their new country, family conflict
only comes into effect when there is a breach.
can result.
The court will act to protect individual
s The first major change in family law was the
rights and enforce spousal or parental
introduction of no-fault divorce. The declining
responsibilities.
influence of religion, an interest in removing
s An individual must apply to the court to
the conflicts and difficulties resulting from
enforce orders breached by another party.
blame, and the idea that marriage does not
Once the court is satisfied that a breach has
always last ‘for life’ were social factors that
occurred, it can impose various sanctions
influenced this change, reflected in the Family
depending on the type, magnitude and
Law Act 1975 (Cth), as well as the introduction
number of breaches.
of the sole ground for divorce – ‘irretrievable
breakdown of the marriage’.

356 C am b r id g e L e g a l S t u d ie s – HS C
s Another important change in social attitudes
has been in the increasing acceptance of
gay and lesbian relationships. Recent law
reforms have centred on providing same-sex
couples the same rights and obligations as
de facto heterosexual couples and removing
discrimination based on sexuality.
s The concept of responsible parenthood with
respect to the care and financial support
of a child is considered an important moral
obligation that should be met by both
parents. The Australian government has
enacted legislation to encourage and enforce
parental responsibility through the legal
system.
s Many of the changes in the law have revolved
around protecting children. The emphasis
on children’s rights reflects the idea that
children are vulnerable members of our
society and need greater protection. All
decisions regarding children must be in the
children’s best interests, and the interests
of their parents or caregivers are secondary.
This change can be seen in the emphasis on
parenting plans and parental responsibility,
in contrast to ‘residence’ and ‘custody’. The
legal system’s aim is to protect the child’s
right to maintain a quality relationship with
both parents.
The role of law reform in achieving just
outcomes for family members and society
s Agencies of reform are not limited to
parliament and the courts. Law reform may be
initiated by interest groups, the Law Reform
Commission, international treaty bodies and
government departments. Other agents
of law reform include lobby or pressure
groups attempting to influence members of
parliament who will support the group’s aims.
s The Australian Human Rights Commission
monitors and investigates any breaches of
human rights recognised under Australian
law. If the Commission determines that a
breach of human rights has occurred, it can
make recommendations for legislative change
to Parliament.
s One perennial criticism of the law is that
it moves too slowly and does not adjust
to changed circumstances fast enough.
However, if the law changes too quickly, it
may become poor law: too broad or too
narrow, contradictory and hard to enforce.
s One of the main criticisms of legislative
reform is the recurring problem of time
delays between proposing legislative
change, drafting and enacting the change.
Any unnecessary delay may have enormous
consequences; however, passing legislation
O p t i o n 3: F am ily
without due consideration can lead to an
unjust outcome.
The effectiveness of legal and non-legal
responses in achieving just outcomes for
family members
s The legal system acts to protect the values
that the whole community holds important.
The principles of fairness, justice and equity
constitute key values. In addition, our
community believes that it is important to
protect the disadvantaged, or those who
cannot act to preserve their own rights –
particularly children.
s Increasingly, society does not tolerate family
violence. The law has changed to eradicate
family violence and protect its victims.
Mandatory reporting of children at risk is
one way in which this goal is promoted.
Non-legislative mechanisms include
services provided by government and non-
government organisations to assist families
with conflict resolution, such as counselling
and mediation.
s There are still concerns about the
effectiveness of child protection services.
Community Services NSW has been
inundated with reports of alleged abuse.
There is evidence that the laws relating to
domestic violence and the protection of
children are inadequate, particularly when
considering the deaths of children identified
as being at risk.
© 2010 Copyright Board of Studies NSW for and on behalf of the Crown
in right of the State of New South Wales. HSC Legal Studies Syllabus 2009.
Cha pter 12: Option 3 : Fami l y 357
 CHAPTER 13
Option 4: Workplace
O pt i o n 4 : Principal focus
Through the use of contemporary examples, students investigate legal rights and
Wo r kp l a c e responsibilities and the effectiveness of the law in achieving justice in the workplace.

25% of course time

Themes and challenges
Themes and challenges to be incorporated throughout this option include:
s the role of the law in encouraging cooperation and resolving conflict in the
workplace
s issues of compliance and non-compliance
s laws relating to the workplace as a reflection of changing values and ethical
standards
s the role of law reform in recognising rights and enforcing responsibilities in the
workplace
s the effectiveness of legal and non-legal responses in achieving justice in the
workplace.
At the end of Chapter 13, on pages 402–403, you will find a summary of the
themes and challenges relating to the workplace. The summary draws on key
points from the text and links them to each of the themes and challenges. This
summary is designed to help you revise for the external examination.

HSC external examination information

The HSC examination will be a written paper worth a total of 100 marks. The paper
will consist of three sections.
Questions relating to Part III of the syllabus – Options – will appear in Section III
of the examination. There will be seven extended response questions, one for each
Option offered in the syllabus. Students will be required to answer two of these
questions, each relating to a different option they have studied.

Section III: Options 50 marks total (25 of the possible 50 marks per Option)
The question relating to each Option will have two alternatives. The expected
length of response is around 1000 words (approximately eight examination writing
booklet pages).

358 C am b r id g e L e g a l S t u d ie s – HS C
 ch a p te r o b j e cti ve s
In this chapter, students will:
s outline the increasing need for workplace law
s outline where workplace regulations come from
s describe the rights and responsibilities employees and
employers have in the workplace
s examine workplace law and the legal framework
behind it
s evaluate the effectiveness of dispute resolution
processes
k e y te r m s
s assess regulation of the workplace and the legal
system’s role
s outline what determines renumeration
s evaluate the effectiveness of legal and non-legal
actions in recognising and protecting workplace rights
s identify and investigate some contemporary
workplace issues, and evaluate the effectiveness of
legal and non-legal responses to these issues.

arbitration employment industrial action sexual harassment

Australian Workplace
Agreement
casual employment
conciliation
constitutional corporation
contract for services
contract of service
direct discrimination
discrimination
rel evant l aw
O p t i o n 4: Wo rkp lac e
enterprise agreement industrial award stand down
equal employment industrial relations strike
opportunity legislation Industrial Revolution trade union
express terms injury management unfair dismissal
freedom of contract mediation vicarious liability
greenfields agreement outworker workers’ compensation
implied terms picket line wrongful dismissal
independent contractor regulation
indirect discrimination retrenchment

IM PORTAN T L EGIS L AT ION
Conciliation and Arbitration Act 1904 (Cth)
Fair Work Act 2009 (Cth)
Industrial Relations Act 1996 (NSW)
Workplace Relations Act 1996 (Cth)
Workplace Relations Amendment (Work Choices) Act
2005 (Cth)
Superannuation Guarantee (Administration) Act 1992
(Cth)
Age Discrimination Act 2004 (Cth)
Disability Discrimination Act 1992 (Cth)
Australian Human Rights Commission Act 1986 (Cth)
Sex Discrimination Act 1984 (Cth)
Racial Discrimination Act 1975 (Cth)
Anti-Discrimination Act 1977 (NSW)
Occupational Health and Safety Act 2000 (NSW)
Workers Compensation Act 1987 (NSW)
odd law
Human Rights and Equal Opportunity Act 1986 (Cth)
Equal Opportunity for Women in the Workplace Act
1999 (Cth)
SI G NI FI C A NT C A SES
Ex parte H. V. McKay (Harvester Case) (1907) 2 CAR 1
R v Kirby; Ex parte Boilermakers Society of Australia
(1956) 94 CLR 254
Hollis v Vabu Pty Ltd (2001) 207 CLR 21
Paris v Stepney Borough Council [1951] AC 367
Zuijs v Wirth Bros Pty Ltd (1955) 93 CLR 561
Australian Municipal, Administrative, Clerical and Services
Union v Ansett Australia Ltd (2000) 175 ALR 173
Wilsons & Clyde Coal Co. v English [1938] AC 57
Russell v Trustees of the Roman Catholic Church [2007]
NSWSC 104
Briggs v James Hardie & Co. Pty Ltd (1989) NSWLR 549

A Finnish court has ruled that taxi drivers must pay
copyright fees on the music they play on the radio.
The Supreme Court of Finland upheld a decision
by two lower courts. Under Finnish law, royalty fees
have to be paid on almost all music played in public.
Since the 2002 ruling, a cab driver in Finland must pay
22 euros (about $40) annually for playing music while
transporting a fare.
‘The sum is fairly small … but, of course, higher
expenses result in higher prices for customers,’ said
Nina Nizovsky of the Finnish Taxi Association, the
country’s taxi driver union.
The issue of royalties arose when Lauri Luotonen
refused to pay his bills from the Finnish Copyright
Society, Teosto, in 1997 and 1998.
Teosto, which administers and redirects royalty
payments to artists, argued that playing music for
customers in a taxi was similar to playing music in a
public setting, such as a restaurant or pub.
‘Almost all taxis play music, so we are now expecting
to collect as many payments as there are taxis,’ said
Kalle Jamsen, a Teosto spokesman. Teosto said it
would meet the drivers’ union to work out methods for
enforcing the ruling and collecting the royalties.

Cha pter 13: Option 4: Work pl ace 359


employment
the contractual
relationship between
an employer and an
employee, involving
work performed for
monetary payment and
other benefits
independent
contractor
someone who is
paid for work done
for another person
without there being a
contract of employment
between them; instead,
the parties will have a
contract for services
guild
a medieval association
of craftsmen or
merchants
journeyman
dating from the later
Middle Ages, a worker
who had completed his
apprenticeship (period
of training) and was
then qualified to work
for wages for a master
Industrial Revolution
the period in Great
Britain during the late
18th and early 19th
centuries when small
home-based methods
of production of goods
were replaced by
industry and machine
manufacturing
trade union
an association of wage
earners, formed to
maintain and improve
the working conditions
of its members
360 C am b r id g e L e g a l S t u d ie s – HS C
T h e n a t u r e o f wo r k p l a ce l aw
Development of
workplace law
The main subject matter of workplace law is
employment. To be employed means to have a
particular type of contract with another person
(a contract of service), under which the employee
receives monetary payment and other benefits
in exchange for doing work. It is also possible to
have a contract for work that does not involve
an employer–employee relationship. The person
doing the work in such a situation is usually called
an independent contractor.
Laws about employment have changed over the
centuries due to changes in economic conditions,
attitudes, technology and the influence of trade
unions. Australian workplace laws were originally
based on British industrial laws, but over the past
100 years these laws have been amended to reflect
the changing nature and specific demands of the
Australian workplace.
The Middle Ages
The first laws governing labour and industrial
relations within the workplace originated in
England during the feudal period (the later part
of the Middle Ages, from approximately 800 to
1400 CE). However, legal regulation of working
arrangements was based on status, rather than on
contract or negotiations. The majority of people
in feudal England either worked on the land
(farming) or produced clothing, household goods
and/or food for their own use. The family could
trade any excess production or use it to barter for
products that they could not produce. These people
were called ‘villeins’ or ‘vassals’. Villeins did not
receive payment for their labour and so were not
employed by the local lord, who generally was the
owner of the land that the villein tenant worked.
They had few rights and little choice but to work
for the landowner in exchange for the right to live
on the land, although the lord might have provided
protection from external threats.
As the cities developed, there was greater
regulation of the work of artisans and craftsmen.
These laws usually had the purpose of preventing
people from making a profit from their own work
or having much say in the terms, conditions
and price paid for it. Laws were also designed
to prevent people from leaving the agricultural
areas, as labour was scarce due to the toll taken
by disease. Statutes enacted throughout the 14th
and 15th centuries allowed lords to be sued if
they paid their workers more than others, pressed
people into work with penalties if they refused,
and required parents to put their children to work
on lords’ estates. In some rural areas of England,
gangs of people, often women and children,
moved from farm to farm under the direction of a
‘gang master’, who was paid by farmers seeking a
temporary workforce.
Early employment law
The law related to employment in Britain from
medieval times through the 18th century was
limited, due to the nature and type of employment
available. Some protections began to be instituted,
gradually and erratically, such as a 1514 statute
that limited wages but also fixed the hours of
labour. The Statute of Labourers, passed in 1562,
punished people for refusing to work, but also had
the expressed aim of protecting workers from low
wages.
The law was also limited by and reflected
the prevailing attitudes and values of the time.
It favoured the rich and influential members of
society who were more concerned with making
profits than with the needs of their employees.
‘Poor Laws’ penalised beggars and vagrants, who
supposedly could work but refused to do so, and
were regarded as potential criminals. Poor Laws
eventually evolved to provide relief for those who
were unemployed through no fault of their own.
Guilds of craftsmen or merchants were asso-
ciations of people in a particular trade. Their
purpose was primarily to ensure that the products

Figure 13.1 The arrival of the Industrial Revolution meant skilled labour was not necessarily required
to manufacture goods.
were of good quality. They also regulated con-
ditions of labour, but generally in the interest
of maintaining the quality of the goods, rather
than to protect the workers’ rights: for example
work ing on holidays was prohibited to ensure
that some craftsmen did not enjoy an advantage
over the others by having a larger stock of goods.
When conflicts arose between journeymen and
their masters, laws were passed to regulate the
formation of guilds, and perhaps also to ensure
that they did not gain too much influence.
The Industrial Revolution
The invention of ‘powered machines’ during the
Industrial Revolution that took place in Britain
during the late 18th and early 19th centuries
changed the way in which goods were produced.
These machines changed not only how people
worked but also where people lived. The bulk of
the working population turned from agriculture
to industry. This was encouraged by changes in
agricultural methods, as well as an increased need
for transport for the products.
As machines were needed for manufacturing,
further industrialisation to build those machines
resulted. With the increased use of machines,
employees became specialised or skilled in only a
few aspects of the production of an item. Clothing
factories no longer required highly skilled weavers;
machines could do this faster and cheaper than any
individual. Cheaper methods of production meant
that hand-woven cloth was now too expensive to
O p t i o n 4: Wo rkp lac e
produce and sell. People who had earned money
by working at home producing small amounts
of manufactured items, such as cloth, were now
employed in the new factories and mills. Whole
cities began to grow around these new industries as
more and more people left their villages in search
of employment. Employee–employer relationships
also changed. People worked in a factory to produce
goods, which were then sold. The employees’
wages were paid out of the sale of these goods and
the factory owners received a profit.
The changing nature of employment in Britain
during the Industrial Revolution also resulted in
changes in labour laws. Initially these laws favoured
the owners of the factory (who were also usually
landed gentry and had some parliamentary influ-
ence). Those who owned the factories created laws
to maintain their profits and to protect their inter-
ests and growing economic
power. One British statute, R EV I EW 1 3 . 1
the Combination Act of 1799, 1 Describe the social and economic
stated that being a member conditions for most people in
of a trade union was grounds feudal England.
for imprisonment. Some 2 Describe the ways in which
early union leaders were wealthy and powerful people
hung for ‘sedition’; that is, used the law to their advantage
encouraging people to ‘rise at the expense of workers, and
up against and overthrow the identify the advantages they
lawful government’. Unions obtained.
were legalised in 1832, with 3 Outline how the nature of
the passing of the Reform Act
employment changed during the
by the British Parliament.
Industrial Revolution.
Cha pter 13: Option 4: Work pl ace 361

freedom of contract
the freedom of
individuals to bargain
the terms of their own
contracts, without
regulation by the state
laissez-faire
a French term used
to describe economic
philosophies that
government should not
intervene in business
Figure 13.2 As a result of the Industrial Revolution, manual labour was replaced by machines in a wide variety of industries.
362 C am b r id g e L e g a l S t u d ie s – HS C
Laissez-faire and state
intervention
During the Industrial Revolution, when the major-
ity of people had to become employees in order
to survive, factory owners found themselves in a
position of superior bargaining power. Nineteenth-
century employment was based on the concept of
freedom of contract – individuals’ freedom to
negotiate the terms of the contracts they enter,
without government restrictions. This idea is the
foundation of laissez-faire capitalism, which
regards government intervention in economic
activity, including employment, as inappropriate. It
is based on the assumptions that since individuals
are the best judges of their own interests, they
should be allowed to bargain freely and create
a contract that suits them, without interference;
and that the parties have equal bargaining power.
This, of course, is not true, as people will often
agree to terms that are not in their best interests in
order to get a job or keep a job. An employer could
simply sack a worker he regarded as troublesome
and hire someone else.
There was no set minimum wage that took into
account how much it cost an employee to live.
Employers did have to pay a minimum wage to
workers, but this amount was very low and hardly
enough to pay for food, clothing and shelter. Unions
had effectively been banned and so they did not
exist, meaning that working conditions were poor
and people worked long hours. Employees often
had to work up to sixteen hours a day, seven
days a week. These working conditions were also
experienced by children, some of whom started
work in cotton mills or textile factories when
they were as young as seven years of age. The
‘Poor Laws’ were partly to blame for this. These
laws were based on ‘charitable’ efforts to prevent
future unemployment and vagrancy by training
children to work from a young age. There was no
difference between the working conditions for
adults and children but there was a large difference
in the wages they received. Factory owners were
concerned with making a profit, not with providing
safe and healthy working conditions. Factories
were often poorly ventilated, poorly lit, noisy and
extremely dangerous places to work.
These substandard working conditions led to
the beginning of state intervention in workplace
relations in 19th-century Britain. Legislation began
to be enacted, but not without a great deal of
suffering and injuries having taken place. In 1819 an
Act was passed prohibiting the employment of chil-
dren under nine years old, and limiting children’s
working hours to twelve in a day. Further legis-
lation progressively expanded these protections.
These included prohibiting night work, limiting
children’s employment underground in mines,
requiring ventilation and working equipment in
the mines, raising the minimum age for working
in textile factories to ten, and eventually (in 1901)
an effort to limit the employment of women too
soon after they had given birth.
Trade unions
A trade union is an association of wage earners
that exists in order to maintain and improve the
pay and working conditions of its members. When
trade unions began to form in Britain in the late
1700s the British government passed the
Combination Acts of 1799 and 1800, which
outlawed unions. The second of these Acts was
repealed in 1824, largely due to the lobbying
efforts of the reformer Francis Place, and a
new Combination Act was passed in 1825.
The new Act allowed trade unions to form,
but placed severe restrictions on union activities.
Their rights were narrowly defined in terms of
meeting to bargain over wages and conditions,
but they were prohibited from doing anything
to ‘molest’, ‘obstruct’ or ‘intimidate’ others.
Subsequently, any trade union that engaged in
industrial action was punished under criminal
law until the 1870s, when the Trade Union Act
of 1871 was passed, granting trade unions legal
status for the first time in England.
Industrial relations in Australia
Australian craftsmen and other workers began to
organise themselves into trade unions in the early
19th century. The first significant union campaign
in Australia was the effort to achieve an eight-hour
working day, by stonemasons in Sydney in 1855
and Melbourne in 1856. Although the eight-hour
day was achieved for only some trades, it was the
first in the world.
During the Australian gold rush in the 1850s, industrial action
any action taken
many workers left their employers in order to seek
by employees to
gold. At the same time, Australia experienced an reduce productivity
influx of immigrants hoping to make their fortune. in the workplace, e.g.
strikes, slowdowns of
The subsequent increased demand for goods and
work, refusal to work
services meant that industries could not meet overtime, or doing
supply unless employers were willing to pay higher only the minimum
required; the purpose
wages and improve working conditions to attract
is usually to protest
individuals back to their jobs. During this period unjust workplace
Australian trade unions became increasingly policies of the
employer
O p t i o n 4: Wo rkp lac e
political and gained important rights for workers.
conciliation
Conciliation and arbitration have been at the process of resolving
centre of Australian industrial relations law since an industrial dispute
by mutual agreement
1904, when the Conciliation and Arbitration Court
of the parties,
was established by the Conciliation and Arbitration ratified by a court or
Act 1904 (Cth). The court could settle disputes commission
by making an award – an order that sets out the arbitration
(industrial relations
workplace terms and conditions for a group of
law) process of
employees – and could also enforce that award. resolving an industrial
In 1956 the court was replaced by two bodies, dispute, often after
conciliation has
the Commonwealth Conciliation and Arbitration
failed, by a legally
Commission and the Commonwealth Industrial enforceable order of a
Court. This came about as the result of the High court or commission
Court’s decision, in R v Kirby; Ex parte Boilermakers
Society of Australia (1956) 94 CLR 254, that
because of the doctrine of separation of powers,
it was unconstitutional for the Conciliation and
Arbitration Court to exercise both judicial powers
and also the non-judicial power of arbitration. In
1977 the functions of the Industrial Court were
taken over by the Federal Court of Australia,
and in 1988 the Australian Industrial Relations
Commission replaced the Conciliation and
Arbitration Commission.
R EV I EW 1 3 . 2
1 Define ‘freedom of contract’ and explain
the assumption on which this doctrine is
based.
2 Identify some of the circumstances that
led to greater workplace regulation by
the state in 19th-century Britain.
3 Explain why workers might want to form
a trade union rather than negotiating
their own contracts of employment.
Cha pter 13: Option 4: Work pl ace 363

contract of service
an employment
agreement, under
which a worker
(employee) works for
an employer, imposing
certain duties on each
party and providing
specific rights for the
period of employment,
which may be for a
fixed term or ongoing
contract for services
an agreement between
a contractor and a
client, under which the
contractor performs
agreed tasks for an
agreed fee but is not
employed by the other
party
vicarious liability
legal liability of an
employer for the
wrongful act of another
364 C am b r id g e L e g a l S t u d ie s – HS C
Contracts
Types of work contracts
When parties enter into a contract for work to
be done, it will generally be either a contract of
service or a contract for services. A contract of
service is also known as a contract of employment.
It is an agreement between an employer and an
employee, containing the rights and obligations
of the parties. A contract for services, by contrast,
is an agreement to do certain work for someone
without being employed by that person or
corporation. The person doing the work in such
arrangements is usually known as an independent
contractor. The duration of the contract is the
period of time agreed for completion of the tasks,
and once those tasks are completed, there is no
continuing legal relationship between the client
and the contractor.
Both types of contract are legally binding,
and both types may be either in written or oral
form, although a written contract is more easily
enforced because it is easier to prove the existence
of a particular term of the contract.
C ON T R AC T F OR S ER VIC ES
A contract for services (also known as an inde-
pendent contract for services) arises when a
person agrees to do one or more specific tasks for
another person. For example, a plumber agrees
to unblock a sink and is paid for the work once it
has been successfully accomplished. The plumber
is not the employee of the person with whom he
or she has the contract, and there is no ongoing
legal relationship between the two once the work
has been completed. However, there may be an
ongoing series of contracts between a contractor
and a client. For example, a freelance writer may
provide articles primarily to one newspaper or
magazine, without being employed by that client.
C ON T R AC T OF S ER VIC E
A contract of service (contract of employment)
is an agreement between an employer and an
employee for work specified by and under the
direction of the employer. It imposes certain
duties on each party and provides each with
certain rights.
A contract of employment may be for a fixed
term or ongoing. Generally, a fixed-term contract
cannot be terminated before the end of the
specified period, unless the contract provides
otherwise. If the contract does not contain such
a term, it can only be terminated if one party has
breached an essential term. At the end of the fixed
period of time, if the employer continues to accept
an employee’s work, the contract may be deemed
to have been converted to an indefinite contract.
Whether there is a contract of service (contract
of employment) between two parties, rather than
a contract for services, will depend on all of the
characteristics of their relationship. The most
important factor has traditionally been whether the
employer has the right to control the way in which
the work is performed: that is, to tell the employee
how to perform the tasks. An employer generally
provides the equipment or tools necessary for the
work to be done; an independent contractor must
usually provide his or her own tools of trade.
Another factor is the manner of payment. An
employee is usually paid a regular salary or wages
rather than being paid for each job completed,
and the employer will deduct tax and pay
superannuation on behalf of the employee. An
independent contractor is responsible for his or
her own taxes and must charge fees that will take
account of future retirement needs.
Employees are entitled to annual leave, sick
leave, and long service leave. While an indepen-
dent contractor has the flexibility of arranging his
or her own working hours, he or she must nego-
tiate both fees and work schedules that will allow
time off for holidays, illness, family commitments
and so on.
One reason why it is significant whether some-
one is employed under a contract of service or
works under a contract for services is that it is
relevant in determining vicarious liability. An
employer can be held legally responsible for the
conduct of an employee as long as the employee
was acting ‘in the course of employment’ – in other
words, the employee was carrying out the duties
that he or she was contracted to perform. It is
often justified on the basis that the employer gains
benefits from the work done by employees, and
should also bear the risk of employees’ behaviour
at work.

RE VIE W 13.3
1 Distinguish between a contract of

O p t i o n 4: Wo rkp lac e
service and a contract for services.
Provide an example of a type of worker
who would enter into a contract for
services.
2 Define ‘vicarious liability’.
3 Discuss whether or not an employer
should be held vicariously liable for the Figure 13.3 A self-employed plumber would enter
actions of an employee. Use examples to into contract for service rather than a contract of
illustrate. service when being contracted by a client.
c as e s p ac e

Hollis v Vabu Pty Ltd (2001) 207 CLR 21

Mr Hollis was injured when
struck by a courier who was
unlawfully riding a bicycle on
the footpath. The courier was
wearing a jacket with the words
‘Crisis Couriers’. Crisis Couriers
was a business operated by
Vabu Pty Ltd. It contracted
with bicycle couriers, who were
required to be available during
certain hours every day, to take
the jobs that were allocated to
them, and to wear the uniforms
issued by Vabu. Vabu set the
pay rates and there was no
room for negotiation. However,
the couriers had to provide
their own bikes and bear the
expense of maintaining them.
They received no annual leave
or sick leave, were taxed as
independent contractors, and
had contributions towards
Vabu’s insurance deducted from
their pay.
The High Court held that
the couriers were employees
rather than independent
contractors, and Vabu was
therefore vicariously liable for
the negligence of the courier
who ran into Mr Hollis. The
judgment was based on all of
the factors of the relationship,
including the terms of the
contract and the work practices
imposed. The couriers had little
control over how their work was
to be performed, the hours or
the pay, and the only tool they
had to provide was a bicycle,
which could be used for other
purposes besides courier work.
The court noted that a different
conclusion might result in a case
where the couriers invested
more in equipment, and greater
specialised skills and training
were required in order to do
the job.

Cha pter 13: Option 4: Work pl ace 365


express terms
contractual terms that
have been specifically
stated and agreed by
both parties at the time
the contract is made,
either in writing or
orally
casual employment
employment ‘as
needed’, on an
irregular basis, with
no set schedule or
guarantee of ongoing
employment; generally
paid at an hourly rate
implied terms
contractual terms
that have not been
expressly stated, but
which the courts are
willing or required by
statute to enforce
366 C am b r id g e L e g a l S t u d ie s – HS C
Terms of a contract of
employment
All contracts of employment contain express and
implied terms.
EX PR ES S T ER MS
Express terms are terms that have been speci-
fically stated and agreed by both parties at the
time the contract is made, either in writing or
orally. Express terms in a contract of employment
cover only the key elements of the employment
relationship, such as the position description;
whether the position is ongoing or for a fixed term,
and whether it is full-time, part-time or casual;
hours of work; pay; the location where the work is
to be done; and leave provisions.
Employers and employees have a duty to satisfy
the express terms in a contract, and each has a
right to expect that the other party will do so.
IMPL IED T ER MS
In addition to express terms, there are also terms
within an employment contract that are implied.
Implied terms are not recorded in writing and may
not even have been discussed by the parties to the
contract. These terms may arise from the common
law, from current practice or custom, or from
specific state or federal legislative requirements,
or where it is clear that the parties would have
included the term as an express term if they had
turned their minds to it. The criteria for when a
term can be implied are:
s It must be reasonable and fair.
s It must be necessary to ensure that the contract
works effectively.
s It must be so obvious that it ‘goes without
saying’.
s It must be capable of being expressed clearly.
s It must not contradict any express term of the
contract.
In Australia, courts have held that implied
terms in a common law employment contract
confer certain rights and duties on employers and
employees. Where an employee has a duty to do
something, the employer has a right to expect
it. Similarly, where an employer has a duty or
obligation to do something, provide something to
employees, or ensure that certain protections are
in place, the employee has a right to expect that
protection or provision.
The main obligations contained in implied
terms are set out below.
Duties of employers
s The duty to provide work for the purposes of the
employment contract. Where the employee’s
pay depends on the amount of work done,
the employer must ensure that the work and
any necessary materials are available. If the
employer cannot achieve this, the employee
must still be paid the agreed wage. The employer
must also provide work for employees whose
skill would diminish without it. For example, a
hospital must provide a surgeon with enough
surgery to maintain his or her skills.
s The duty to provide a safe working environment.
This duty is now largely imposed by and regu-
lated through legislation. A contract of employ-
ment with provisions stating that employees
must work in conditions that are dangerous
cannot be enforced.
s The duty to pay reasonable wages. While the
actual amount is set by an award or agreement
and is generally written into the contract as an
express term, what is ‘reasonable’ can be deter-
mined by the amount of money that is usual for
that type of occupation or employment.
Duties of employees
s The duty to obey lawful directions given by the
employer.
s The duty to exercise reasonable care in carrying
out the work, and to meet certain standards in
their work.
s The duty of fidelity (faithfulness or loyalty) to
the employer. This includes obligations not to
steal from the employer or damage equipment,
not to disclose confidential information (e.g. not
to divulge ‘trade secrets’ to other companies)
or act in a manner designed to undermine the
 profitability of the company, and not to use
the employer’s time for their own self-serving
purposes.

Mutual duties of employers and employees

Implied duties of mutual trust and confidence and
good faith have been found in some recent state
cases. For example, in Russell v The Trustees of the
Roman Catholic Church [2007] NSWSC 104, the
NSW Supreme Court held that the employment

O p t i o n 4: Wo rkp lac e
relationship gives rise to the parties’ obligation
to exercise their rights or duties honestly and
reasonably, with ‘prudence, caution and diligence’.
They must act in such a way as to minimise
adverse consequences to each other, and not act
in a manner likely to damage the relationship
of confidence and trust between them. For
example, the way in which an employer conducts
disciplinary investigations into an employee’s
alleged misconduct would be subject to such an
Figure 13.4 It is the duty of the employer to provide a
implied duty.
safe working environment, however it is the duty of an
However, in other cases, courts have held that
employee to exercise care when carrying out the work.
this implied term will not be found if the employee
is adequately protected against unfair employer
decisions by legislation or awards. Until a High order of an industrial commission, tribunal or
Court ruling has been rendered, the existence of arbitrator, which is made to settle a dispute.
an employer’s implied duty of good faith will not Today the term usually refers to a legally binding
have been conclusively established. document, approved by an industrial commission,
which sets out the minimum terms and conditions

RE VIE W 13.4 for employees in a particular industry or type

of work, or who are employed by particular
1 Define and explain the concepts of express
employers.
terms and implied terms in a contract of
In 1907, a case was brought before the Con-
employment.
ciliation and Arbitration Court, established three
2 Identify the rights of employers and
years earlier. An Act designed to provide better
employees that come from implied terms.
pay to workers had created an excise tax on
locally made machinery, which could be waived
Awards and agreements if the manufacturer’s workers were paid ‘fair and
reasonable’ wages. H. V. McKay, a Melbourne industrial award
Background manufacturer and owner of the Harvester a standard set of
wages and working
As discussed earlier in this chapter, Australia’s Company, applied to the court to waive the excise conditions for
system of conciliation and arbitration included tax. McKay’s company was not known for fair and employees in a
reasonable treatment of its employees, and the particular industry or
an independent tribunal with powers to conciliate
type of work, or those
and where necessary, to settle industrial disputes union to which the workers belonged opposed the who are employed by
through arbitration. An industrial award is an application. particular employers

Cha pter 13: Option 4: Work pl ace 367


Australian Workplace
Agreement (AWA)
an individual workplace
agreement between
an employer and an
employee under the
Workplace Relations
Act 1996 (Cth); an
AWA would override
and take the place of
any award or collective
agreement
constitutional
corporation
a corporation to
which s 51(xx) of the
Australian Constitution
applies; these include
foreign corporations
and companies
incorporated under
Australian law that
engage in financial
activities and buying
and selling
368 C am b r id g e L e g a l S t u d ie s – HS C
The decision in Ex parte H. V. McKay (1907) 2
CAR 1 was the first time an industrial tribunal set
wage levels for workers, rather than allowing them
to be set by individual employers. Justice Henry
Bourne Higgins ruled that McKay was obliged
to pay his employees a ‘fair and reasonable
wage’, and defined this as an amount sufficient
to ‘support the wage earner in reasonable and
frugal comfort’. He took evidence as to the cost
of housing, food and clothing in Melbourne for a
a man with a non-working wife and two children
to establish the cost of living. The decision applied
to more than 1000 workers at the Harvester
Company, working in a variety of jobs. It is
regarded as a momentous judgment that paved
the way for workers’ entitlement to a basic living
wage for their work.
Industrial awards
By 1920, there were 96 federal awards in force and
all of the states, as well as the Commonwealth, had
adopted systems of conciliation and arbitration.
The Australian Industrial Relations Commission
(AIRC), which eventually took the place of earlier
conciliation and arbitration bodies, created federal
awards that covered a wide range of industries.
There were also state Industrial Relations
Commissions, which created state awards.
Federal awards were created as a result of
the settlement of interstate industrial disputes,
but disputes taking place within a state were
governed by state awards. In 1996 the State of
Victoria became the first state to refer its industrial
powers to the Commonwealth. It abolished state
awards and created a limited number of statutory
entitlements, leaving employees to negotiate all
other terms and conditions with their employers.
The Workplace Relations Act 1996 (Cth) aimed to
simplify and streamline awards. It contained a list
of only 20 ‘allowable award matters’, and any terms
or conditions that were not among the allowable
matters would not be enforced. The allowable
matters included hours of work, including rest
breaks, rates of pay, annual leave, parental leave,
personal carer’s leave, penalty rates, and dispute
settling procedures. Obviously, the fewer the
number of matters that can be contained in an
award, the weaker the ‘safety net’.
The 2006 amendments to the Workplace Rela-
tions Act 1996 (Cth) by the Howard government,
called ‘WorkChoices’, further limited awards
throughout Australia, combining all federal and
many state awards into a national system. State
awards could only apply to unincorporated em-
ployers, although transitional provisions allowed
them to continue to apply for three years to
those already covered by them. No new awards
could be made, and federal awards were further
simplified and trimmed down by reducing their
content to even fewer allowable matters. Some
allowable matters (e.g. notice of termination, jury
service, long service leave and superannuation)
were removed on the basis that they were covered
by other legislation. The 14 protected award
conditions could be excluded or modified by an
Australian Workplace Agreement (AWA).
The Fair Work Act 2009 (Cth) replaced Work
Choices. In late 2009 all of the states except
Western Australia referred their industrial powers
to the Commonwealth. As a result, all employers
and their employees who were previously covered
by state industrial relations systems moved into
the new federal Fair Work system in 2010, and
existing state awards were replaced by federal
‘modern awards’. Those state awards covering
employees of organisations that are not consti-
tutional corporations (such as sole traders,
partnerships and unincorporated associations)
were permitted to remain in force for a transitional
period of 12 months from 1 January 2010, before
being replaced by modern awards. Some federal
awards created before 2006 may continue in
force, but only if they apply to a single enterprise.
R EV I EW 1 3 . 5
1 Explain why the Harvester decision is
significant to Australian workplace law.
2 Define ‘industrial awards’ and explain their
purpose.
Agreements I NDI V I DU A L A G RE E M E NTS
The Workplace Relations Act 1996 (Cth), and
E NTERPRISE AGR EEMEN T S
especially the WorkChoices amendments, were
In 1991 enterprise bargaining was introduced enterprise
aimed at shifting workers from collective to bargaining
as an alternative to awards, and enterprise
individual forms of employment contracts. An negotiation of an
agreements became the primary means of agreement about
employer could make it a condition of hiring
setting wages and conditions in 1993. This was wages and working
someone that the employee signed an AWA; under conditions by an
seen as a means of creating a more ‘flexible’
WorkChoices, this did not constitute duress. employer and its
system of industrial regulation: agreements could employees, or
Employees had no statutory right to collective
be tailored to a particular enterprise, whereas the trade union
bargaining, and while an AWA was in operation, representing them
awards covered a whole industry or occupation,

O p t i o n 4: Wo rkp lac e
it overrode any award or collective agreement. enterprise
either nationwide or within a state. While nego- agreement
WorkChoices introduced five minimum statutory
tiation at the individual workplace level can a legally binding
entitlements, which replaced the ‘no disadvantage’ agreement between
result in different conditions or wages applying to
test. Prior to the amendments, both collective the employees of a
people in the same occupation, and thus arguably corporation, non-
agreements and AWAs had to pass this test, to
is not in the best interests of workers, awards profit organisation
ensure that employees would be no worse off under or government body,
were retained. They set a minimum ‘safety net’
the agreement than under the relevant award. and their employer,
for workers. The bargaining system also included setting the terms
Under the Fair Work Act 2009 (Cth), there are
a ‘no disadvantage test’. This was a requirement and conditions of
no longer any legislative provisions for individual the employment
that an enterprise agreement would not be
agreements. Through 2009, Individual Transitional relationship
approved by the AIRC if it put employees at an
Employment Agreements (which replaced AWAs) enterprise
overall disadvantage compared to the applicable a business or
could still be made, but after 1 January 2010
award. company
it was no longer possible to register individual
Under the Workplace Relations Act 1996 (Cth), duress
agreements of any kind. coercion or pressure
prior to the WorkChoices amendments of 2006, used to influence
enterprise agreements were also known as someone
‘certified agreements’ if they were registered and Statutory framework
certified by the federal or state Industrial Relations
Commission. The term ‘collective agreements’ was Federal legislation
used to refer specifically to enterprise agreements The main features of the Fair Work Act 2009 (Cth)
reached between an employer and a trade union are:
representing employees. Enterprise agreements s a legislative safety net of 10 National Employ-
could be either union-negotiated or not. ment Standards (NES)
There is no distinction between union and s new ‘modern awards’
non-union agreements under the Fair Work Act s new enterprise bargaining arrangements
2009 (Cth). The current process of negotiating s improved mechanisms to protect industrial
an enterprise agreement has been characterised rights, including protection against discrimi-
as ‘collective bargaining at the enterprise level’. nation and unfair dismissal
An enterprise agreement will be made between s the creation of new national industrial relations
an employer and some or all of its employees. organisations: Fair Work Australia (FWA) and
Employers must notify their employees of the Fair Work Ombudsman.
their right to be represented in the bargaining
process, and employees can choose who will NATI O NA L E M P L O YM ENT STA NDA RDS
represent them. Those who are union members The National Employment Standards (NES) are set
will automatically be represented by their union, out in the Fair Work Act. They comprise 10 mini-
unless they choose otherwise. mum standards for employees’ pay and conditions.

Cha pter 13: Option 4: Work pl ace 369

 All awards, agreements and contracts of employ-
ment between employers and employees in the
national industrial system must meet these mini-
mum standards. These standards include maxi-
mum hours of work, flexible working arrangements
for parents, leave entitlements (such as sick leave,
parental and annual leave), and termination and
redundancy pay. They also include a requirement
that a ‘Fair Work Information Statement’ must be
provided by employers to all new employees, ex-
plaining all of the elements of the new system (the
NES, modern awards, and all rights and entitle-
ments under the legislation, including union rights
of entry and dispute resolution mechanisms).
Only some of the NES entitlements apply to
casual employees.
In addition to the NES, further conditions of
employment can come from a modern award,
agreement, or transitional instrument containing
provisions from an award or agreement made
under the previous legislation. They can also come
from minimum wage orders, state laws or federal
laws.
MODER N AWAR DS
The second half of the ‘safety net’ is the modern
award. Modern awards were created to establish
a single set of minimum conditions for people
working in the same industries or jobs across
Australia. The process of ‘modernisation’ of pre-
vious awards involved updating them to reflect
current work environments, and in many cases
their coverage was broadened. They can be made
and varied by Fair Work Australia, and the awards
that previously applied prior to the Fair Work Act
were replaced by modern awards. Most modern
awards contain transitional provisions that allow
wages that are higher or lower than previous
ones to be progressively introduced in five annual
instalments from 1 July 2010.
Modern awards can contain terms setting out
minimum pay (including overtime and penalty
rates), annual wage or salary, leave and leave
loading, superannuation, a redundancy scheme
specific to an industry, and procedures regarding
consultation and dispute settlement processes.
370 C am b r id g e L e g a l S t u d ie s – HS C
All modern awards must also have a ‘flexibility
term’, which allows employees and employers to
negotiate changes to the award to accommodate
individual workplace circumstances.
If an employee’s take-home pay has been
reduced by modernisation of an award, an appli-
cation can be made to Fair Work Australia by
the employee or by the union to which he or she
belongs. A take-home pay order can be made to
ensure that the person earns no less while remain-
ing in the same job. However, such an order will
not be made if Fair Work Australia finds that the
workers under the award have been adequately
compensated in other ways for the reduction.
Modern awards only cover employees in jobs
that have historically been covered by awards.
For example, the terms of more senior positions
have traditionally been contained in other instru-
ments. Employers can exclude employees earning
a guaranteed income of more than $108 300 per
year (indexed annually) from modern award
coverage.
The modern awards will be reviewed by Fair
Work Australia every four years, and minimum
wage provisions will be reviewed annually.
R EV I EW 1 3 . 6
1 Define and contrast collective agreements
and individual agreements.
2 Explain the difference between
agreements and awards.
R EV I EW 1 3 . 7
Refer to the following article and answer the
following questions:
1 Explain what steps a worker can take if he
or she finds that his or her take-home pay
is less than it was before the award was
modernised.
2 Identify difficulties that might arise from
having to go through this procedure, and
any factors that could prevent a take-
home pay order from being made.
m e d i a cl i p Unions clash with ALP on award
by Ewin Hannan
The Australian, 2 March 2010
Fresh tensions have erupted between the
Rudd government and key unions, after union
officials demanded an immediate review of
Labor’s award revamp and warned that the
overhaul risked cutting the safety net for
women in female-dominated industries.
ACTU vice-president, Linda White, said
the award modernisation process had been
‘soul-destroying’. She lashed out at a new
Fair Work Australia ruling that she said risked
leaving thousands of her members in the
airline industry worse off.
‘Our safety net has been lowered and
it is because of the government’s award
modernisation process,’ she said.
‘While the government may not have
wanted this to occur, unfortunately their
system has let this happen.’
Ms White, assistant national secretary of the
Australian Services Union, said people stood
to be disadvantaged in the retail, hospitality,
clerical and airline sectors.
‘To me, in the end, what it’s going to show
is that, in the women’s industries, the award
modernisation process has really cut the
safety net for women; that’s my impression
of what’s happened,’ she told The Australian
yesterday.
Ahead of an ACTU executive meeting
tomorrow, Transport Workers Union federal
secretary Tony Sheldon said the government
should bring forward a proposed review of the
legislative changes underpinning the awards.
‘The fact that wages and conditions are
at risk is an unintended consequence of the
current modern award, and it is time we had a
good look at it to prepare for a second round
of industrial relations changes,’ he said.
But Julia Gillard last night reiterated that
workers could not have their take-home
pay cut.
‘I want to make clear that under the Fair
Work laws, no employee can have his or her
take-home pay reduced as a result of the
making of a modern award,’ she said.
‘Take-home pay orders are available in the
event any employer attempts to cut pay.
‘I’d encourage workers and if they wish
their unions to make an application for a
take-home pay order, if they feel that they are
worse off as a result of award modernisation.’
A spokesman for the Workplace Relations
Minister also rejected Mr Sheldon’s call for a
O p t i o n 4: Wo rkp lac e
review.
‘The award modernisation process has only
recently been completed. Fair Work Australia
will undertake a review in 2012 as planned,’
the spokesman said. In a ruling last Friday,
Fair Work Australia refused union attempts to
modify the new award covering thousands of
airline ground staff. Ms Gillard had written to
the tribunal highlighting union concerns about
the award.
Ms White said the rates of pay in the
overseas airlines award were cut by between
$76.23 and $301.56 a week, while the
transport, social disability and tropical zone
allowances were eliminated.
She said the tribunal had found wrongly
that Qantas was award-free and that the
allowances were not in the original awards.
‘This decision is a disgrace, and there is
no doubt people will be disadvantaged,’ she
said.
The unions would fight to ensure workers
were not disadvantaged, by pursuing take-
home pay orders for award employees and
through enterprise bargaining.
ACTU secretary Jeff Lawrence said the Fair
Work Australia airline ruling was disappointing
but did not mean airline workers would
‘necessarily be worse off, as their take-home
pay is protected by law’.
Mr Lawrence said unions would work
to ensure employers did not use award
modernisation as an excuse to cut the wages
and conditions of their employees.
‘We will vigorously pursue take-home pay
orders and other legal remedies against any
employers who use the modern awards to cut
pay,’ he said.
Cha pter 13: Option 4: Work pl ace 371
 R E SE A RC H 13.1
Use the internet to research
developments that have
taken place since the modern
award for airline ground staff
was made in March 2010,
especially with respect to the
following issues:
s the 17% pay gap between
men and women with
similar qualifications
s the relationship between
the legislature, Fair Work
Australia, and unions
s the progress or outcome of
any test case.
greenfields agreement
an agreement created
to cover prospective
employees of a new
enterprise
better off overall test
(BOOT)
a criterion for FWA’s
approval of an
enterprise agreement,
requiring that
employees are better
off overall than under
the relevant modern
award
workplace surveillance
an employer’s use of
technology such as
cameras, computers
and tracking devices to
monitor employees
372 C am b r id g e L e g a l S t u d ie s – HS C
EN T ER PR IS E AG RE E M E NTS
UN DER T H E FAIR WO RK A C T
2009 ( C T H )
Enterprise agreements may include
a broader range of matters than
modern awards. Like awards, agree-
ments must provide entitlements at
least as favourable as the NES, for
example a minimum four weeks
paid leave per year.
Enterprise agreements between
an employer and its employees
must be approved by a majority of
employees before being submitted
to Fair Work Australia (FWA) for
approval. Once the parties are sat-
isfied with the draft agreement,
the employer must ensure that the
employees have been informed of its terms and
their consequences, and of the time, place and
procedure for voting. A ballot is then held to
approve the agreement.
An enterprise agreement, made with or without
union involvement, may apply to workers in a
specific workplace (single-enterprise agreements)
or at an industry level (multi-enterprise agree-
ments). A single-enterprise agreement requires
a majority of employees to endorse it, and a
multi-enterprise agreement requires a majority of
employees of at least one of the employers to do
so. FWA can help certain low-paid employees and
their employers to negotiate a multi-enterprise
agreement, if it is in the public interest to do so.
These include people working in child care, aged
care, community services, cleaning, and security,
who have often lacked the bargaining power to
negotiate for better wages and conditions at the
single-enterprise level.
A third type of enterprise agreement is a
greenfields agreement, which covers future
employees of a new enterprise to be established
by one or more employers. The agreement is made
when it has been endorsed by each employer
and by the trade union or unions that cover the
prospective employees.
Once the agreement has been approved by
the parties, it is then submitted to FWA by the
employer or a bargaining representative for the
employees. It must meet certain conditions to be
approved by FWA. These include:
s the parties have come to a genuine agreement
s the agreement has a specified expiry date, not
more than four years after FWA approval
s the agreement contains a dispute settlement
procedure, a flexibility term, and a term
outlining the consultation procedure to be
undertaken by the employer upon deciding to
make a major change to the enterprise affecting
employees
s the agreement passes the ‘better off overall
test’ (BOOT).
To pass the ‘better off overall test’, the
agreement must result in each employee covered
being better off overall than they would be under
the relevant modern award. BOOT replaced the
‘no disadvantage’ test.
New South Wales arrangements
New South Wales enterprise agreements were
introduced under the Industrial Relations Act
1996 (NSW). As a result of the state’s referral
of its industrial powers to the Commonwealth
in 2009, that Act no longer applies to private
sector employers and employees in NSW: from
1 January 2010, all employees of sole traders and
partnerships, as well as employees of constitutional
corporations, were covered by the industrial
relations system governed by federal law. The
Industrial Relations (Commonwealth Powers) Act
2009 (NSW) effected the referral. Section 9B of
the Industrial Relations Act 1996 (NSW) states that
‘this Act is subject to the Fair Work Act 2009 of the
Commonwealth, including provisions of that Act
that have effect in this State because of the referral
of matters relating to workplace relations to the
Commonwealth Parliament’.
Other state laws dealing with workplace health
and safety, anti-discrimination provisions, and
workplace surveillance continue to operate as
before.

Figure 13.5 Employees may be represented by their union in negotiating enterprise agreements.
Transitional instruments called Notional Agree-
ments Preserving State Awards (NAPSAs) pre-
served the terms and conditions of state awards
and of some state legislation that applied to employ-
ees of constitutional corporations prior to 2006.
These were largely replaced by modern awards in
2010. If parties to the award fail to apply to FWA to
convert a NAPSA into a modern award, the NAPSA
ceases to operate on 31 December 2013.
However, the referral of powers does not
include the powers of the State of New South Wales
regarding state and local government employers.
Section 9A of the Industrial Relations Act 1996
(NSW) declares those employers not to be national
system employers. The awards and collective
agreements in place continued to apply.
Different awards and agreements apply to the
various departments and agencies within state and
local government. The NSW Industrial Relations
Commission continues to have jurisdiction in
relation to the employment terms and conditions
for state and local government employees. For the
Commission to approve an enterprise agreement
for those employees, similar requirements to
those contained in the Fair Work Act 2009 (Cth)
operate. A majority of employees must vote for
the agreement, the agreement must comply with
O p t i o n 4: Wo rkp lac e
relevant state legislation (e.g. occupational health
and safety and anti-discrimination laws), and it
must pass the ‘no net detriment’ test.
The ‘no net detriment’ test is similar to
BOOT. The agreement must not put employees
at a disadvantage compared to state or federal
awards that would otherwise apply. This means
that employees cannot make an agreement
that removes or reduces award conditions. For
example, employees cannot make an agreement
that provides lower pay or fewer annual leave days
than are provided by the relevant award.
The Commission must also ensure that the
parties understand the effect of the agreement
and that no duress was involved in signing it.
R EV I EW 1 3 . 8
1 Discuss the changes made to the industrial
statutory framework under the Fair Work
Act 2009 (Cth).
2 Discuss the legislative powers retained by
New South Wales after referral of industrial
powers to the Commonwealth.
3 Explain the aim of BOOT and the ‘no net
detriment’ test. Why is it necessary to have
these two tests?
Cha pter 13: Option 4: Work pl ace 373
 Re g u l a t io n o f t he wo r k p l a ce
Industrial relations:
the state and federal
framework
Commonwealth and state
powers
Section 51(xxxv) of the Australian Constitution
gives the federal government the power to make
laws with respect to ‘conciliation and arbitration
for the prevention and settlement of industrial
disputes extending beyond the limits of any one
state’. This means that the Federal Government
cannot use legislation to regulate industrial rela-
tions directly. Rather, it is limited to creating mach-
inery for the settlement of industrial disputes.
Moreover, with Commonwealth legislative
power limited to interstate disputes, this still leaves
a large proportion of disputes to be settled at state
level. As a result of these restrictions, the states
industrial relations historically shared the industrial relations power
the relationship
with the Commonwealth, and there were separate
between employers,
employees, the industrial law systems in place.
government and trade The Constitution Act 1902 (NSW) s 5 gives the
unions
NSW Parliament the power to make laws for the
‘peace, welfare and good government’ of the state.
The NSW government therefore has the power to
pass legislation that aims to improve the welfare
of employees and employers (such as awards)
and to establish procedures for the resolution of
industrial disputes.
As both governments can create law in the
same area, conflicts between federal and state
laws sometimes occur. If conflict does occur,
under s 109 of the Australian Constitution, federal
laws will prevail.
The existence of both state and federal laws
created confusion for individual employers who
may have found it difficult to determine which
award or agreement applied to their workplace.
This would often have to be resolved in court.
In recent years, the federal government has
used other constitutional powers to legislate in
the area of workplace relations. In order to pass
374 C am b r id g e L e g a l S t u d ie s – HS C
the WorkChoices amendments to the Workplace
Relations Act 1996 (Cth) in 2006, the government
relied on the corporations power in s 51(xx) to
bring in a national industrial system relating to
incorporated companies, replacing the separate
state and federal systems.
Although WorkChoices was one of the issues
that brought about a change of government in
the 2007 federal election, the federal government
has continued to extend its ability to legislate in
areas that were traditionally considered state
jurisdiction. In order to remove some of the cost,
inefficiencies and inconsistencies of two systems
of industrial relations laws and dispute resolution
structures, the states have relinquished much
of their industrial relations power to the federal
government.
Industrial relations
Industrial relations is a term used to refer to
the relationship between employers, employees,
the government and trade unions. These four
groups are the major stakeholders in the industrial
relations process, but it would be reasonable to
argue that everyone is a stakeholder because any
industrial change or dispute could have an impact
on everyone in the community.
The NSW Industrial Relations Commission
(NSW IRC) and Fair Work Australia were estab-
lished to help resolve such disputes. The Fair
Work Act 2009 (Cth) created Fair Work Australia,
a national tribunal that replaced the AIRC, the
Australian Fair Pay Commission (which set mini-
mum wages) and the Workplace Authority (which
approved collective agreements made before
1 July 2009 and assessed them using the ‘no
disadvantage’ test). Both tribunals were created
to set salary and working conditions in the form
of awards, resolve industrial disputes, and hear
and determine any industrial matter. An industrial
dispute can concern various matters, including
unfair dismissal, discrimination or occupational
health and safety.
 The Fair Work Act also created the Fair Work
Ombudsman, an office that will replace the Work-
place Ombudsman and take over the advisory role
of the Workplace Authority.
When employers and employees are in dispute
they may engage in industrial action. Employers,
as part of their industrial action, may lock out their
employees (keep them from entering their work-
place) until they agree to certain terms. They may
stand down their employees or refuse to pay them.
Employees may choose to go on strike, do only the
Fair Work Australia can stop unprotected action. If
parties continue with the unprotected action they
may face severe legal consequences, which are
enforceable by the courts.
Fair Work Australia can stop protected action
if it threatens to harm the economy, threatens
the safety of individuals, or if Fair Work Australia
believes that the parties would benefit from a
cooling-off period. The Minister for Employment
stand down
and Workplace Relations can also terminate pro- to suspend

O p t i o n 4: Wo rkp lac e
tected industrial action if the action threatens employees without
pay from the
bare minimum required (‘work to rule’), reduce people’s safety or threatens the economy.
workplace, usually
their productivity (‘go slow’), or form a picket line. Fair Work Australia acts to ensure that the temporarily
All of these actions are done to exert pressure on the bargaining process complies with industrial laws. strike
employer to accede to the employees’ demands. In order to commence a claim in support of a new employees’
organised withdrawal
When employers and employees enter into enterprise agreement after an existing agreement
of labour until a
negotiations to create a new enterprise agreement has passed its expiry date, employees must first grievance is resolved
they can engage in protected industrial action. This obtain an order from Fair Work Australia allowing picket line
means that nothing can legally be done to stop the them to proceed, with a protected action ballot a line of striking
union members
action unless the action involves injury to persons, endorsing industrial action.
forming a boundary
damage to property, or the unlawful taking or Disputes under modern awards and enterprise outside or near
use of property. Protected industrial action is agreements will be resolved according to the dis- their place of
employment, which
not available to employers unless they are taking pute resolution procedures contained in the award others are asked not
action in response to employees’ industrial action. or agreement. to cross

Figure 13.6 Striking workers may engage in public actions to advertise their grievances.

Cha pter 13: Option 4: Work pl ace 375

 The new industrial relations system relies on
increased cooperation between the state and
federal governments. Although the federal indus-
trial relations system covers the majority of
Australia’s workforce, state government employ-
ees in NSW are not covered and remain under the
jurisdiction of the state.
R EVIEW 13.9
1 Explain Australia’s system of workplace
law as it arose under the Australian
Constitution.
2 Explain the purpose of industrial action on
the part of employees or an employer.
3 Identify the conditions for industrial action
to be protected under the Fair Work Act
2009 (Cth).
Figure 13.7 Workplace bargaining can enable employees to achieve
their desired working conditions.
376 C am b r id g e L e g a l S t u d ie s – HS C
Negotiations between
employers and employees
Negotiations about the type of work and working
conditions that take place between employees and
employers are known as workplace bargaining.
When all employees within the workplace are
united on a series of workplace issues, they can
negotiate with their employer from a position of
strength, and are therefore better able to achieve
their desired results. Enterprise agreements
reached through collective bargaining by the
employees or their union representatives often
contain conditions that are more generous than
those contained in awards.
When an individual employee is hired, the
employer will usually present a contract of em-
ployment to be signed by both parties, specifying
working hours, pay rates, leave entitlement, and
so on. The terms of the contract cannot be less
favourable than the wage rates or conditions set
out in the modern award for that occupation or
the applicable enterprise agreement (if the work-
place has an enterprise agreement). The employer
should tell the employee which award or agree-
ment he or she will be working under. Most but
not all employees are covered by a modern award,
if not by an enterprise agreement. However, no
employment contract can provide for entitlements
less favourable than the NES.
‘Award/agreement-free employees’ (those who
are not covered by either a modern award or an
enterprise agreement) may make agreements
that vary the operation of the NES about a limited
number of matters:
s averaging of hours of work
s cashing out of paid annual leave
s substitution of other days for public holidays
s extra annual leave in exchange for not taking
an equivalent amount of pay
s extra personal or carer’s leave in exchange for
not taking an equivalent amount of pay.
Fair Work Australia makes minimum wage
orders for employees who are not covered by a
modern award.
Dispute resolution
mechanisms
Industrial disputes may arise in the workplace
over issues such as working conditions, pay and
entitlements, and discrimination. Mechanisms
used to resolve disputes centre on mediation and
other consensual forms of resolution. If disputes
cannot be resolved then the matter will move to
arbitration.
Consensual forms of dispute
resolution
Under both the Fair Work Act 2009 (Cth) and the
Industrial Relations Act 1996 (NSW), all awards
and agreements must contain dispute resolution
procedures (the NSW legislation exempts busi-
nesses employing fewer than 20 people from this
requirement).
An important aim of any dispute resolution
process is to encourage disputing parties to come
to a peaceful and mutually beneficial agreement.
The goal is to resolve any matters in dispute
through mutual consent or agreement, not through
arbitration. Consensual forms of dispute resolution
include conciliation and mediation. These can
take place between an individual employee and
his or her employer or could involve a group of
employees negotiating with their employer.
Conciliation and mediation are favoured over
arbitration for a number of reasons. Arbitration
can be extremely costly and time-consuming,
and can involve direct confrontation between the
employee and employer. This may lead to addi-
tional antagonism. By contrast, in mediation both
parties are encouraged to put forward their claims
and concerns, suggest solutions, and discuss
proposed terms and conditions. This allows the
parties to see themselves as an integral part of the
dispute-settling process rather than as observers.
Parties in a workplace dispute may feel less
inclined to honour an agreement that they feel has
been imposed upon them by an outside third party.
Mediation allows disputing parties to exercise their
own rights and take a key role in the process.
The effectiveness of consensual forms of
dispute resolution depends on the nature of the
relationship between the parties. If the relationship
is one built on mutual respect, then consensual
forms of dispute resolution will be more successful
than arbitration.
Consensual forms of dispute resolution are less
costly to all parties concerned. Some of the costs
associated with the supervision and enforcement
of parties’ obligations will also be reduced, as
O p t i o n 4: Wo rkp lac e
parties are more likely to comply with an agree-
ment that they negotiated.
Under the Fair Work Act, when a dispute first
arises, parties are to follow the dispute resolution
procedures as outlined in their award or agreement.
The initial discussion will usually be between the
employer and employees within the workplace.
FA I R WO RK A U STRA L I A
If the dispute cannot be resolved, disputing
parties may take the matter to Fair Work Australia
(FWA). The role of FWA is a very broad one and is
determined by the dispute resolution procedures
set down in the relevant agreement or award.
Generally an FWA representative will discuss the
issues in dispute with both parties and encourage mediation
a form of dispute
the parties to come to a consensual agreement
resolution in which a
through mediation or conciliation, or may make third party helps the
a recommendation. If the matter remains un- disputing parties to
settle their dispute
resolved, a party can apply to have the matter
heard by the Fair Work division of the Federal
Court or the Federal Magistrates’ Court. FWA will
advise the parties if it believes the matter to have
no reasonable prospect of success in court.
FWA can also assist with disputes arising under
the general protections provisions of the Fair Work
Act, and with disputes arising during a bargaining
process.
TH E FA I R WO RK O M B U DSM A N
The Fair Work Ombudsman also has jurisdiction to
deal with complaints about pay and entitlements,
employers breaching the law, and discrimination.
Again, the person making the complaint must be
covered by the national system. The Fair Work
Cha pter 13: Option 4: Work pl ace 377
 Ombudsman strives to resolve disputes through Federal Court and Federal
consensual processes within the workplace. The Magistrates’ Court
Ombudsman is supported by Fair Work Inspectors The Industrial Relations Court of Australia was
whose role is to investigate com- established in 1993 as a superior court equal in
plaints, starting with fact-finding, status to the Federal and Family Courts. How-
R E S E A RC H 13.2 assisted voluntary resolution, where ever, the Workplace Relations Act 1996 (Cth)
Using the internet, research necessary proceeding to a full (now repealed) transferred the jurisdiction of the
recent Australian industrial investigation and mediation. If investi- Industrial Relations Court to the Federal Court of
disputes and how they were gation reveals that a party has broken Australia. The Industrial Relations Court continued
resolved. For each dispute the law, the inspector can give the to exist at law as a court administered by the
you investigate, examine the party notice to remedy the breach, and Federal Court.
cause of the dispute and the if the party fails to do so, the matter The Fair Work Act 2009 (Cth) created a Fair
resolution procedures that may go to court. Work Division of the Federal Magistrates’ Court
were employed to settle it. and a Fair Work Division of the Federal Court.
NEW SOUTH WALES INDUSTRIAL One consequence has been that when a union
RELATIONS COMMISSION undertakes illegal industrial action despite being
R E V IE W 13.10 At the state level, the NSW IRC in- ordered by the FWA to cease the action, the
1 Explain why there is an vestigates alleged breaches of state employer may take the matter directly to the
emphasis on consensual industrial legislation, awards and enter- Federal Magistrates’ Court. This change has made
forms of dispute resolution prise agreements. It will first order a some aspects of industrial dispute settlement at
rather than arbitration. compulsory conference between the the federal level more combative and adversarial.
2 Summarise the functions parties, then conciliation. It will only The Fair Work Act also provides for certain
and powers of the various employ arbitration to deal with an matters to be heard as a small claim (the claim
federal and state bodies industrial dispute if conciliation is un- must be less than ($20 000) in the Federal
that can help parties to successful. Its orders are binding. Magistrates’ Court. This allows employees to
settle industrial disputes. pursue the recovery of any unpaid entitlements or
compensation. These proceedings are relatively
The role of courts and informal, a party may not be represented by a
tribunals lawyer without the Court’s permission, and the
Court is not bound by the rules that normally
Fair Work Australia control the admission of evidence in legal pro-
As discussed above, Fair Work Australia (FWA) ceedings and can investigate the matter as it sees
is the federal industrial relations tribunal. It can fit. Use of the the small claims tribunal minimises
resolve disputes including those arising in the costs and is less intimidating for many people.
course of enterprise bargaining and industrial
action, and can adjudicate matters involving New South Wales Industrial
breaches of the law. Relations Commission
Fair Work Australia can play a role in voluntary At the state level in NSW, the Industrial Court of
efforts between employers and employees to New South Wales exercises the judicial function of
resolve disputes at the workplace level. When such the NSW Industrial Relations Commission. It has
efforts are unsuccessful, it can arbitrate disputes, the same status as the state Supreme Court, and
as outlined above in the section on the dispute has an appellate jurisdiction (to hear appeals from
resolution process. It can also hear and determine decisions of lower courts on industrial matters). It
unfair dismissal claims and matters arising from has exclusive jurisdiction with respect to industrial
industrial action. matters – in other words, it is the only court that

378 C am b r id g e L e g a l S t u d ie s – HS C
can arbitrate industrial disputes. The types of
matters that it hears include:
s unfair contracts claims
s offences under the Industrial Relations Act 1996
(NSW)
s proceedings for breaches of awards and agree-
ments, including underpayment of entitlements
s superannuation appeals
s unfair dismissal claims
s criminal prosecution of occupational health and
safety offences under the Occupational Health
and Safety Act 2000 (NSW).
Conclusion
Courts and tribunals still play a significant role in
the resolution of industrial disputes. The use of
a court as the final arbitrator lends weight to the
decision, and parties must comply or face the legal
consequence of their defiance. Courts provide cer-
tainty by establishing legal principles, clarify legal
questions, and are able to identify and resolve
industrial issues as they emerge, ensuring that the
law continues to reflect community standards and
satisfies the changing requirements of the federal
or state industrial system.
REVIEW 13.11
1 Briefly outline the role of courts and
tribunals in governing industrial relations.
2 Outline the judicial role of Fair Work
Australia and the NSW IRC and how they
act to protect employee entitlements.
The role of government
organisations
New South Wales Industrial
Relations Commission
The role of the NSW IRC is not limited to
hearing disputes. It also establishes employment
conditions and wages by making industrial awards
and approving enterprise agreements for those
employees within the state system.
In its administrative role, the Commission can:
s review awards and enterprise agreements,
ensuring that these comply with the ‘no net
detriment test’ and contain no discriminatory
provisions
s revise awards to comply with legislation that
has been enacted
s register and regulate employer associations
and employee organisations (e.g. trade unions),
including proceedings for enforcement of rules
O p t i o n 4: Wo rkp lac e
and challenges to the validity of rules
The NSW IRC plays a significant role in super-
vising enterprise agreements for state and local
government employees in NSW. In addition
to ensuring that agreements meet the ‘no net
detriment’ test, it must also consider the appro-
priateness of the negotiation process. The IRC has
to ensure that the parties understand the effect of
the agreement and that no duress was involved in
the signing of the agreement.
Fair Work Australia
The role of Fair Work Australia (FWA) is to oversee
the federal industrial relations system. In addition
to its judicial functions, it has an administrative
role and can:
s vary awards
s make minimum wage orders
s review and approve enterprise agreements for
all workplaces in the federal system, ensuring
that they meet BOOT
s assist with the modification of agreements
when a business is transferred or a new busi-
ness created
s provide assistance and advice about the
industrial relations laws, through its telephone
helpline.
The Fair Work Ombudsman
Section 682(1)(a) of the Fair Work Act 2009
(Cth) states that the functions of the Fair Work
Ombudsman are to promote ‘harmonious,
productive and cooperative workplace relations’
and to ensure compliance with the Act, awards,
agreements and orders. It does this by providing
Cha pter 13: Option 4: Work pl ace 379

outworker
an employee who
works at home or
another place besides
the premises of his or
her employer, or an
independent contractor
in the textile, clothing or
footwear industry who
works at home or other
premises
peak body
an association made
up of a number of
organisations that have
similar interests and
aims; the peak body
will set policy and
coordinate common
activities for the
organisations
R E SE A RC H 13.3
Go to www.lawlink.
nsw.gov.au/lawlink/
irc/ll_irc.nsf/pages/
IRC_research_information_
announcements_2009_06
Click on the link ‘State
Wage Case 2009 – Statement
of the Commission’.
1 Discuss the arguments
presented by the different
stakeholders (unions,
employer associations and
the government).
2 What other factors did
the Commission take into
account when setting the
minimum wage?
3 What was the final
decision?
380 C am b r id g e L e g a l S t u d ie s – HS C
education, advice and assistance to employees,
employers, outworkers and registered organi-
sations of employees and of employers. The
Ombudsman publishes information on the federal
industrial relations system, and has offices
throughout Australia as well as an online advisory
service. The Fair Work Ombudsman encourages
employees and employers to take the initiative
themselves in resolving complaints.
The Ombudsman has the power to investigate
and enforce breaches of the Act and of awards,
agreements and orders. For example, Fair Work
Inspectors can inspect and copy documents at an
employer’s premises.
The Ombudsman can represent employees or
outworkers in proceedings before a court or FWA.
The role of trade unions
Trade unions are employee organisations. A group
of people with a common interest enjoy greater
bargaining power than individuals,
and unions have been instrumental
in achieving better workplace safety,
superannuation, a 38-hour working
week, penalty rates, rest breaks and
other benefits for employees.
A union usually represents employ-
ees from similar occupations or
industries. The union may engage in
discussions with employers regarding
working conditions, awards and enter-
prise agreements. All employees have
the right to join a union if they wish and
many occupations and industries have
their own specific union. One such union
is the Electrical Trades Union. Other
unions represent a broad range of
employees within diverse workplaces.
For example, the Construction, Forestry,
Mining and Energy Union represents
people work ing in the building, timber,
mining and energy production indus-
Figure 13.8 Australian Council of
Trade Unions logo
tries. The Australian Workers Union was formed to
represent the interests of shearers and miners, but
later expanded into manufacturing and today
covers employees in aviation, food processing and
retail areas as well as its traditional industries. The
Media, Entertainment and Arts Alliance represents
people working in film and theatre, journalism,
and the wider publishing industry.
Unions may act together in pursuit of a common
goal. The NSW State Wage Case of 2009 is one
such example. In this case, Unions NSW applied
to the NSW Industrial Relations Commission for a
general wage increase in awards. Unions NSW is
the state peak body for unions, comprising more
than 67 unions.
The Australian Council of Trade Unions (ACTU)
is the national peak body for all Australian unions.
It was formed in 1927. The ACTU represents
Australian labour organisations internationally,
articulating positions and advocating on behalf
of human rights and other issues. The ACTU
has been influential in campaigns to further the
rights of workers within Australia as well, such as
the 2007 federal election campaign that focused
on the detrimental effects on employees of
WorkChoices.
Unions may act as a lobby group to exert
pressure for government reform. The ACTU has
successfully backed government financial assis-
tance for working parents: as of January 2011
new parents will receive 18 weeks’ payment at
minimum wage rates, or nearly $10 000. Unions
continue to lobby for better parental leave for
both fathers and mothers, e.g. longer periods of
employer-provided paid leave.
The role of employer
associations
Employer associations are composed of employers
within the same or related industries. Employer
associations can represent their members during
the negotiation of a new enterprise agreement.
Associations may also act to present a case to the
relevant industrial relations commission or court
in support of their members’ interests. Employer
associations include the Australian Chamber of
Commerce and Industry, the Chamber of Com-
merce (NSW), the Business Council of Australia,
and Master Builders Associations of Australia and
the various states and territories.
The role of non-
government organisations
Non-government organisations (NGOs) may pro-
vide training and education to raise awareness
of issues involving industrial relations, employ-
ment conditions and workplace safety. They may
also engage in research and make submissions
to government and other appropriate bodies on
regarding these issues. Some may undertake
political campaigns to pressure the government.
A non-government organisation may have been
established by statute or may receive govern-
ment funding, but nonetheless is not affiliated
with any government and excludes government
representatives from its membership and gover-
nance. A national NGO may endure over time
through many changes of government.
Australian Human Rights
Commission
The Australian Human Rights Commission is an
independent statutory organisation established
in 1986 to act as the human rights ‘watchdog’. It
administers federal anti-discrimination statutes
(Age Discrimination Act 2004 (Cth), Disability
Discrimination Act 1992 (Cth), Sex Discrimination
Act 1984 (Cth), Racial Discrimination Act 1975 (Cth))
and has powers under the Fair Work Act 2009 (Cth)
to make submissions to Fair Work Australia for
consideration in review of modern awards and
enterprise agreements. If a provision of an award
or agreement requires a person to do something
that is illegal under one of the anti-discrimination
Acts, FWA must vary the award or agreement.
The Commission can accept complaints about
discrimination in the workplace, and generally will
O p t i o n 4: Wo rkp lac e
conciliate, although it can also refer matters to the
Fair Work Division of the Federal Court.
Other NGOs
Safe Work Australia is an independent statutory
body whose main aims are to promote safer
workplaces and improve occupational health
and safety.
The Human Rights Council of Australia is a
private organisation that monitors and publicises
the performance of governments, and provides
links between Australian human rights activists
and those in other countries. It works to promote
the development of Australian policy in human
rights, which includes workplace issues such as
discrimination and safety.
The National Women’s Justice Coalition pro-
motes women’s equality before the law, through
education and lobbying.
The International Labour Organization (ILO), an
agency of the United Nations, aims to encourage
member nations to undertake common action
in the protection of workers’ rights around the
world. It drafts and oversees international labour
standards, and seeks to promote compliance with
these standards.
The role of the media
The role of the media and associated technologies
has changed over the past decade. New and
innovative communication technologies have
meant that all stakeholders within the workplace
Cha pter 13: Option 4: Work pl ace 381

sexual harassment
unwelcome and
uninvited behaviour of
a sexual nature, which
is likely to intimidate,
humiliate or offend the
person towards whom
it is directed
382 C am b r id g e L e g a l S t u d ie s – HS C
are better informed and better placed to gather
support for their cause with both the public and
the government. Employer associations and trade
unions use the internet extensively to inform the
public about current claims and negotiations.
Unions, in particular, use the internet to survey
employees regarding hours of work and workplace
conditions, and have used the information as the
basis for test cases. The IRC and Fair Work Aus-
tralia have also effectively used these new tech-
nologies to inform employees and employers
about their rights and obligations under workplace
law, and to provide additional support services.
Use of the internet as a method of communi-
cation and a source of information within the
workplace has given rise to various issues. One
issue is the extent to which an employer can and
should be allowed to monitor and/or regulate
employees’ use of the internet while at work.
There is a risk for employers in not monitoring
e-mail and internet traffic. In the case of sexual
harassment, employers may be held liable if they
have not taken reasonable steps to prevent the
distribution of offensive material.
Employees using the internet at work for private
correspondence and web browsing may not be
aware that their activity may not be protected from
scrutiny by their employer. There is no common
law right to privacy in Australia. The federal
Office of the Privacy Commissioner has developed
guidelines for employers, to ensure that their staff
understand the employer’s expectations and what
is permitted at work, and what will be done with
any personal information collected as a result of
monitoring.
Finally, the use of workplace electronic commu-
nication for purposes related to trade union aims
has been addressed in at least one Federal Court
case. In Australian Municipal, Administrative, Cleri-
cal and Services Union v Ansett Australia Ltd (2000)
175 ALR 173, Ansett objected to the content of a
union bulletin distributed via e-mail, and sacked
the union delegate for using the workplace e-mail
server to distribute union material. The Federal
Court held that the employee’s dismissal was un-
lawful. Her use of e-mail to distribute the material
was considered ‘reasonable’, given her role in the
union and because Ansett had ‘impliedly per-
mitted’ it by permitting a union working group
to be established at the work site. In addition, the
court held that a union should be entitled to pro-
vide information on the outcome of a meeting to
its members.
Remuneration
Remuneration refers to an employee’s salary
package, which can include pay, superannuation,
share offers, educational expenses, and car and
rental assistance. The remuneration package must
satisfy the NES as to minimum award rates of pay
and entitlements. It may also include an ‘incentive
package’, which is based on the employee’s
performance.
Many employers now bundle a variety of ser-
vices and benefits as part of the salary package to
attract and retain staff. This means the employee
receives the benefit as part of his or her salary,
rather than a higher salary on which income tax
would be payable. The financial advantage for
employees is that although they may sacrifice part
of their salary, this is more than made up by the
tax benefit.
Superannuation Guarantee
The Superannuation Guarantee Scheme was
established in the early 1990s under the Super-
annuation Guarantee (Administration) Act 1992
(Cth). Its main aim is to ensure that employees,
on retirement, will have adequate funds to sup-
port them. The scheme relies on the employer
contributing a sum equivalent to percentage of
the employee’s annual salary to a fund that will
be preserved (cannot be touched by either the
employer or the employee) until the employee
retires and has reached ‘preser vation age’, deter-
mined by the year of birth. The employee can also
make personal contributions to his or her own
superannuation fund, and these contributions can
be accessed prior to retirement but will be subject
to a tax penalty.
R EV I EW 1 3 . 1 2
1 Briefly outline the role of government
organisations, unions, industry groups and
non-government organisations in industrial
relations.
2 Critically evaluate the role of the media in
industrial relations.

O p t i o n 4: Wo rkp lac e
Co ntempora r y issues
co nce rn i n g t he wo rkp l a ce
Issue 1: Discrimination notion of equality in workplace law centres on
equality of opportunity. The law acts to ensure
The International Labour Organization (ILO) first
that there is equal opportunity for individuals
articulated and advocated equal opportunity and
within the workplace, by making acts or
the adoption of anti-discriminatory work practices
omissions that discriminate against them illegal.
as a basic workers’ right in 1919. The preamble
All workplaces must have equal opportunity and discrimination
of the Constitution of the ILO states its general unfavourable treat-
anti-discrimination procedures and complaints
intention to eradicate working conditions which ment of a person or
mechanisms in place. group relative to the
cause ‘... injustice, hardship and privation to large
way others are treated
numbers of people’. This general aim is reflected in
Legal responses direct discrimination
Australian anti-discrimination, equal opportunity a practice or policy
The Anti-Discrimination Act 1977 (NSW) initially
and human rights legislation. of treating a person
prohibited only discrimination on the grounds of or group of people
Discrimination is unfavourable treatment less favourably than
race, gender and marital status. Over the following
of a person or group relative to the way others another person or
years a number of additional grounds have been group in the same
are treated. It may take the form of direct
added and the Act slightly modified, but this was position, on the basis
discrimination or indirect discrimination. In of sex, race, national
done in a piecemeal fashion. Although it was
the context of the workplace, it is unlawful to or ethnic origin, age,
found that the Act had been successful in changing sexuality or other
discriminate between employees on the basis
community attitudes and behaviour, the NSW characteristic
of characteristics such as sex, race, pregnancy,
Industrial Relations Commission argued that the indirect
religion, national origin, marital status, sexual discrimination
Act needed to be extended to include new grounds
orientation, etc. practices or policies
for discrimination in order to remain relevant that appear to
and up-to-date. Three additional grounds for be neutral or fair
because they treat
Legal and non-legal discrimination were recommended. These were
everyone in the
religion, political opinion and carer responsibilities same way, but which
responses adversely affect a
(in employment).
higher proportion
The ideal of equality implies that all persons Discrimination is illegal in New South Wales of people from one
should be treated equally before the law. The under the various state and federal Acts listed in particular group

Cha pter 13: Option 4: Work pl ace 383

 Table 13.1. The Acts cover different grounds for
discrimination. In the workplace, employers must
treat all employees, and anyone applying for a job,
fairly – that is, on the basis of their individual merit,
skills and suitability for the job, not irrelevant
personal characteristics.
Table 13.1 Discrimination laws
s Racial Discrimination Act 1975 (Cth)
s Anti-Discrimination Act 1977 (NSW)
s Sex Discrimination Act 1984 (Cth)
s Age Discrimination Act 2004 (Cth)
s Human Rights and Equal Opportunity Act
1986 (Cth)
s Equal Opportunity for Women in the
Workplace Act 1999 (Cth)
s Disability Discrimination Act 1992 (Cth)
s Fair Work Act 2009 (Cth)
s Industrial Relations Act 1996 (NSW)
Figure 13.9 It is illegal to discriminate on the basis of sexual orientation,
age, gender or disability.
384 C am b r id g e L e g a l S t u d ie s – HS C
RA C I SM
Persons cannot be treated differently because of
their membership of a particular race or cultural
group. This is prohibited by the Racial Discrimi-
nation Act 1975 (Cth) and the Anti-Discrimination
Act 1977 (NSW).
SE X I SM
A person cannot be treated differently simply
because she is a woman or he is a man. This form of
discrimination, which includes sexual harassment
and discrimination due to pregnancy, is illegal
under the Sex Discrimination Act 1984 (Cth) and
the Anti-Discrimination Act 1977 (NSW).
DI SC RI M I NATI O N O N TH E B A SI S O F
SE X U A L O RI E NTATI O N
Both the Anti-Discrimination Act 1977 (NSW) and
the Fair Work Act 2009 (Cth) make it illegal to treat
someone less favourably because he or she is
gay, lesbian, or bisexual. The Anti-Discrimination
Act also makes it illegal to discriminate against
someone because he or she has a relative or
associate who is homosexual.
DI SA B I L I TY DI SC RI M I NATI O N
Under both the Disability Discrimination Act 1992
(Cth) and the Anti-Discrimination Act 1977 (NSW),
it is illegal to discriminate against someone on
the grounds of his or her disability. This includes
intellectual, physical, sensory, psychiatric and
learning disabilities. These Acts also prohibits dis-
crimination against someone because he or she
has HIV/AIDS or is associated with someone who
has HIV/AIDS.
A G E DI SC RI M I NATI O N
It is illegal to discriminate on the basis of age
under the Age Discrimination Act 2004 (Cth).
This legislation also makes it illegal to force an
employee to retire because of his or her age. There
are specific types of employment that are excluded
due to the nature of the employment, such as the
job of a judge or aircraft pilot.
E QUAL EM PLOY MEN T OPPORT UN IT Y
Equal employment opportunity legislation
consists of the Anti-Discrimination Act 1977
(NSW) and the Equal Opportunity for Women in
the Workplace Act 1999 (Cth). The NSW Act aims
to provide equal employment opportunities
for women, members of racial minorities, and
disabled persons. The Commonwealth Act is
aimed at women only.
Unfortunately, these Acts do not make dis-
crimination illegal. Rather, they provide for work-
places to develop appropriate programs to ensure
the absence of discrimination and to take positive
steps to promote equal employment opportunity
for members of disadvantaged groups. The major
difficulty in ensuring that employers comply
with the legislation is the lack of an enforcement
provision. Publicising the name of a workplace
that fails to comply is one punishment available,
as is excluding the employer from obtaining
government contracts.
E QUAL PAY FOR EQ UAL WOR K
Two test cases, the Equal Pay for Equal Work Case
(1969) 127 CAR 1142 and the Equal Pay for Work of
Equal Value Case (1972) 147 CAR 172, established
certain principles with respect to wages for
women. In the first, the court held that women
doing the same work as men should receive the
same pay. In the second, it held that different jobs
of the same worth warrant the same minimum
wage. This decision was intended to address
the difference between men’s and women’s pay
resulting from the preponderance of men in some
jobs and women in others.
The ‘worth’ of a job has no legal definition.
However, one significant reason for the difference
in pay between work traditionally regarded as
‘men’s work’ and ‘women’s work’ is the greater
value placed on some types of work compared
to others. One way to determine whether two
different jobs are of equal value or worth might
be to ask whether there are equal levels of skill
required or responsibility attached, under the
same or comparable conditions. As the average
earnings of women in 2010 were still only 67 equal employment
opportunity
per cent of men’s average earnings, unions and
legislation
women’s advocacy groups have continued to press laws requiring
for change, with the ACTU likely to run further pay employers to ensure
that people are
equity test cases.
not subjected to
discrimination, to
Non-legal responses eliminate factors
that restrict groups’
Numerous independent and non-government
opportunity to
organisations are involved in investigating and enjoy employment
benefits, and
O p t i o n 4: Wo rkp lac e
researching discrimination issues, and in making
perhaps to
recommendations to government or providing implement programs
policy advice to relevant departments. These that provide specific
opportunities to
organisations usually concentrate their efforts
disadvantaged
in particular areas. The NSW Council of Social groups
Services (NCOSS) and the Federation of Ethnic
Communities’ Councils of Australia (FECCA)
are examples. As a lobby group each seeks to
represent the interests of disadvantaged people
and modify government policy to support social
justice issues. The National Disability Services
is the peak body for non-profit organisations
that provide services to the disabled and the
disadvantaged.
Important independent statutory bodies such
as the Australian Human Rights Commission aim
to protect and promote the rights of all people. The
commission is responsible for the administration
of federal discrimination laws. The commission
can investigate complaints, research human rights
issues and make recommendations. Other organ-
isations such as Amnesty International regularly
campaign for the recognition of human rights
and the removal of discriminatory practices.
These bodies do not have the legal authority to
make or amend laws; rather, their role tends to
be limited to investigating complaints and making
recommendations to government.
Responsiveness of the legal
system
To a certain extent the law has responded to
the need to protect individuals and groups from
discriminatory practices. Changing social attitudes
Cha pter 13: Option 4: Work pl ace 385
 and human rights movements of the 1960s,
such as the feminist and civil rights movements,
provided the initial impetus to create legislation
protecting rights. Later Australia became a party to
several UN conventions, including the Convention
on the Elimination of All Forms of Discrimination
Against Women (CEDAW) and the Convention on
the Elimination of Racial Discrimination (CERD). As
such, Australia was obligated to create domestic
legislation in line with these conventions.
Legislatures have responded to a number of
recommendations which pointed out that loop-
holes still existed with respect to protection from
discriminatory practices. The Anti-Discrimination
Amendment (Carer’s Responsibilities) Act 2000
(NSW) amended the Anti-Discrimination Act 1977
(NSW) to prohibit direct or indirect discrimination
in employment because of an employee’s
responsibilities as a carer for children, adults with
disabilities, or other family members.
The courts and various tribunals have also
responded to protect individual rights in this area.
In Mayer v Australian Nuclear Science and Tech-
nology Organisation [2003] FMCA 209, the com-
plainant wanted to work part-time after returning
from maternity leave. She was unable to return
to work on a full-time basis because she now
had to care for her child. Mayer was told that her
position was only available
as a full-time position and
R E VIEW 13.13 she was dismissed. The court
1 Define ‘discrimination’. company’s refusal to allow her
2 Discrimination can occur on to work part-time was found to
many grounds. Discuss the be indirect sex discrimination,
different forms of discrimination on the basis that it is still often
and how legislation protects women who bear the brunt of
employees. child care in a family.
3 Explain the concepts of ‘equal In a similar case, Evans
opportunity’ and ‘equal pay for v National Crime Authority
equal work’. [2003] FMCA 375, Evans left
4 ‘Equal pay for equal work has her employment before her
never really existed.’ Discuss this contract ended. She had been
statement, providing examples told that her contract would not
to support your discussion. be renewed. Her supervisor had
386 C am b r id g e L e g a l S t u d ie s – HS C
been critical of Evans taking leave to care for her
sick son. It was held that the leave she had taken
was within her entitlements.
Although the legal system has acted to remove
discriminatory practices within the workplace it
has not been entirely successful. For example,
more than 30 years after the Equal Pay for Equal
Work Case and the passing of numerous Acts
making discriminatory pay practices illegal,
there still exist pay and promotional disparities
between men and women. In addition, those who
have family or carer responsibilities continue to
face inequities in the workplace, such as lack of
professional development, promotional and over-
time opportunities.
Conclusion
In 2008 the Australian Human Rights Commission
conducted a telephone survey (‘Sexual Harass-
ment: Serious Business’) to investigate the nature
and extent of sexual harassment in the workplace.
Responses to the survey indicate that it continues
to be a major issue. The majority of victims sur-
veyed were women (22% claimed to have been
victims of harassment) while only 5% of men said
that they had experienced some form of sexual
harassment. In addition, one in three women
aged 18–64 claimed to have experienced sexual
harassment.
The Commission received 438 complaints
under the Sex Discrimination Act 1984 (Cth) in
2007–08. The majority of complaints were related
to employment (87% of complaints). 22% of
the complaints were related to discrimination
based on pregnancy and 18% concerned sexual
harassment.
The various discrimination laws were intro-
duced in response to changing social attitudes
and values. Recent workplace reform has centred
on removing discriminatory practices involving
work–family issues and the introduction of family-
friendly initiatives within the workplace. However,
there is a continuing need for further workplace
reforms in the area of parental leave.
Issue 2: Safety
A safe workplace includes safe equipment, safe
work systems and appropriate training pro-
cedures. The court will decide what constitutes
‘safe’ and the court’s decision concerning this
is usually determined by the relevant legislation
and the individual facts of the case. Therefore,
workplace safety is a variable concept. What is
safe in an office workplace will differ very much
from what is safe on a naval destroyer carrying
nuclear weapons.
On average each year, over 690 000 workers
suffer a work-related injury or illness – almost 10
per cent of Australian workers. According to the
ACTU, in 2007–08 there were 150 work fatalities.
Approximately one-fifth of the workers who are
injured or become ill are absent from work for more
than five days. This means that for the employer
there is an enormous loss of production and
profit; for the worker there is the cost of medical
treatment and lost wages; for the government and
the community there are additional costs to the
health system.
As mentioned earlier in this chapter, occupa-
tional health and safety (OHS) is a matter that
is falls within state jurisdiction and is primarily
governed by state legislation.
Legal and non-legal
responses
Legal responses
The legal system has responded to workplace
safety concerns through further development of the
common law duty of care in relation to employer
negligence, and through legislative reforms.
C O M M ON LAW DUT Y OF C AR E
Employee rights concerning safety were originally
protected under the common law. Employers had
an implied duty of care to their employees, to
safeguard their health and safety. A breach of the
duty of care resulting in injury to an employee in
the course of performing his or her duties amounts
to the tort of negligence.
The employer is negligent if it fails to:
s employ competent staff and provide proper
supervision, which includes maintaining the
skill levels of employees
s provide a safe working environment and
equipment
s provide a safe means of access to the
workplace
s ensure a safe system of conducting work.
O p t i o n 4: Wo rkp lac e
Authority for these principles is found in the
English case Wilsons & Clyde Coal Co. v English
[1938] AC 57.
Employers’ obligations to their employees are
enforceable in tort. If someone owes a duty of
care to another person, and his or her action or
omission (failure to act) causes foreseeable loss or
injury to that person, compensation in the form of
damages may be payable to the victim. Medical
bills, lost wages and the cost of retraining are
some examples of compensable losses.
In order to prove negligence, the plaintiff (the
injured party) must prove three elements:
s that a relationship existed between the parties:
that is, the employer owed the employee a duty
of care
s that there was a breach of that duty of care in
that the employer did not provide a safe working
environment: for example, the employer failed
to provide adequate training or did not install a
safety guard on a machine
s that the plaintiff suffered damage as a result of
the breach; that is, the worker was injured or
suffered a loss.
Employers’ duty of care includes a duty not
to expose employees to unreasonable hazards,
such as toxic chemicals, dust or disease-causing
agents.
In certain instances, workers may find it diffi-
cult to establish that they were owed a duty of care.
In today’s workplace, the dividing line between
an employment relationship and a contract
for services is not always clear. For example,
Cha pter 13: Option 4: Work pl ace 387
 a business may contract with a hire company,
which in turn engages workers. The business
might argue that it had no contract of any kind
with the workers, and that liability for their safety
rests with the hire company. In another example,
an employee might be responsible for his or her
hours or work and the manner in which the job
is performed. The employer might argue that the
‘control test’ points to an independent contract for
services, not a contract of service, and therefore
there is no duty of care owed to the worker and no
liability for loss suffered. In such cases, the court
would need to look at other aspects of the parties’
relationship, such as whether the employee uses a
business structure under which invoices are issued Figure 13.10 Employers have a duty to care for
(the ‘economic reality’ test). the health and safety of their employees.
cas e s p ac e

Paris v Stepney Borough Council [1951] AC 367

In this UK case, Mr Paris was
already blind in one eye when he
began working for the council
as a motor mechanic. It was not
the practice to provide safety
goggles to employees. Paris
was hammering at a rusty bolt
when a shard of rust flew off and
lodged in his good eye, resulting
c a s e s pa c e
in total blindness. It was held
that the potential seriousness
of the harm to Paris was much
greater than for an employee
with sight in both eyes, and
therefore the standard of the
duty of care owed to him was
higher. Knowing of his unique
circumstances, the council
should have provided him
with safety goggles. The duty
owed by the employer to the
individual employee must take
into account the employee’s
circumstances, and therefore
the standard of care owed may
be greater.

Zuijs v Wirth Bros Pty Ltd (1955) 93 CLR 561

Zuijs, a circus trapeze artist,
was injured when he fell during
a performance. His employer,
the circus owners, argued
that because Zuijs was largely
responsible for his own training,
rehearsal and performance, he
was not their employee and
they did not owe him a duty
of care. Zuijs countered that
Wirth Bros paid him a wage
and generally treated him as an
employee, controlling his hours
of work and his workplace. The
courts agreed with Zuijs and
held that Wirth Bros had been
negligent.

388 C am b r id g e L e g a l S t u d ie s – HS C
S TATUTORY D UT IES OF EMPL OY ER S
Statutory duties are found in a number of different
Acts. In NSW, the principal Act governing workplace
safety is the Occupational Health and Safety Act
2000 (NSW). It contains general requirements
which must be met at all places of work in NSW. It
covers self-employed people as well as employees
and contractors.
Other legal requirements regarding health and
safety at work are contained in associated legis-
lation, which may be specific to an occupation,
for example the Nurses Act 1991 (NSW). This
also includes statutes governing workers’
compensation and injury management. Injury
management programs that employers may be
required to institute cover treatment, rehabil-
itation and retraining, to facilitate the employee’s
return to work.
Some of the statutes providing for employer
compensation for a worker’s injury or death
include:
s Workers Compensation Act 1987 (NSW)
s Workplace Injury Management and Workers
Compensation Act 1998 (NSW)
s Workers Compensation (Bushfire, Emergency and
Rescue Services) Act 1987 (NSW)
s Workers Compensation (Dust Diseases) Act 1942
(NSW).
Some statutes govern compensation payable
as a result of industry-specific injuries or diseases.
For example, the Workers Compensation (Dust
Diseases) Act covers occupational lung diseases
caused by exposure to particular types of dust
in industries ranging from textile manufacturing,
aluminium mining and production, mushroom
farming, poultry breeding, and asbestos industries
(mining, building construction, shipbuilding,
plumbing and electrical work) and many others.
Provisions for workers’ compensation have
become mandatory in all workplaces, and employ-
ers who do not comply are subject to large fines.
Workers’ compensation in New South Wales
is governed by the Workers Compensation Act
1987 (NSW). This Act introduced the WorkCover
scheme, which is workplace injury insurance.
The WorkCover premiums paid by an employer
cover the costs of the compensation provided to
employees if they are hurt or become ill because of
their job. WorkCover NSW is a statutory body that
administers the scheme and also investigates and
monitors OHS issues. Under the Workplace Injury
Management and Workers Compensation Act 1998
(NSW), another role of WorkCover is to oversee the
development of appropriate injury management
O p t i o n 4: Wo rkp lac e
programs. All employers are required to take out
a WorkCover policy if their annual payroll is $7500
or more. workers’
compensation
a compulsory
DE V E L O P M E NT O F STATU TO RY DU TI ES insurance scheme
Workplace safety in NSW was originally covered paid into by
employers to
by individual Acts that were confined to specific
compensate
industries. These included: employees injured
s Employers Liability Act 1880 (NSW): this Act at work through
financial payments;
provided ‘workmen’ who were injured in speci-
claims do not require
fic work situations or by fellow employees with proof of fault
the right to sue the employer for damages. injury management
The Act only referred to workmen who were a program developed
for an injured worker
manual labourers; other types of workers were that includes all
excluded. aspects of his or
her treatment,
s Factories and Shops Act 1912 (NSW): this Act
rehabilitation and
required employers to follow specific work pro- retraining, and is
cedures or risk criminal penalties. The Act was aimed at facilitating
his or her return to
written in general terms and was limited to
work
factory settings, excluding those employed in
services industries.
In the early 1970s, Lord Robens was charged
with inquiring into workplace health and safety
issues in the UK. The Robens Report, published
in 1972, recommended a number of changes.
These recommendations formed the basis for legi-
slative reform in the area of workplace safety in
both England and Australia. The Robens Report
concluded that not only were there serious
problems in the safety legislation existing at that
time, but that there existed a certain degree of
worker apathy towards safety, and this was one
of the primary causes of workplace accidents.
The Robens Report considered self-regulation to
Cha pter 13: Option 4: Work pl ace 389

codification
the spelling out of
obligations in legislation
regulation
a form of subordinate
legislation, comprising
a set of rules made
under an act on the
legislature’s delegated
authority (e.g. the
Executive), providing
the technical and
administrative detail
required by the Act
R E V IE W 13.14
1 Explain, in detail, what
is meant by safety in the
workplace. Use examples
to illustrate your answer.
2 Outline the elements
that must be proved to
establish negligence.
3 Define and explain the role
of workers’ compensation
and injury management.
4 Discuss employees’
statutory duties in relation
to occupational health and
safety.
390 C am b r id g e L e g a l S t u d ie s – HS C
be the best method of achieving a safer working
environment. In this context, self-regulation meant
workers and management working together to
meet and improve on the OHS standards pre-
scribed in legislation. The aims included workers
having a greater responsibility for their own safety,
with education and training about safety issues
becoming integral elements of all workplaces.
The report also recommended that employers
should be subject to statutory duties to consult
with employees about OHS measures and provide
for their participation in the development of such
measures. The chief means of having employee
representation in OHS matters would be through
the selection of an OHS representative in the
workplace.
Within a decade of the publication of the
Robens Report, workplace safety in New South
Wales was also being scrutinised. In 1981, the NSW
government established a commission of inquiry
into occupational health and safety within the
workplace. Chaired by NSW Industrial Magistrate
T. G. Williams, the Williams Report pointed out that
NSW workplace safety legislation was inadequate
and did not do enough to prevent workplace
accidents. The report recommended that any
new legislation must include specific employer
and employee duties and rights.
In addition, the report stated that
there had to be greater cooperation
between employers and employees
in order to improve workplace
safety. The report introduced the
notion of individual workplace safety
committees. More importantly, the
report recognised that workplace
safety was the responsibility not
just of the employer but of everyone
within the workplace.
EMPL OY EES ’ R O L E I N
WOR K PL AC E S AF ETY
The Williams Report recommended
the codification of common law
in order to provide uniform workplace practices
across all industries. A few years later, the
Occupational Health and Safety Act 1983 (NSW)
was passed, codifying much of the law that had
evolved through the courts. Later reforms and
amendments to the 1983 Act resulted in the
current Occupational Health and Safety Act 2000
(NSW), the consolidation of NSW regulations in
2001, and increased penalties for breach.
The Occupational Health and Safety Act 2000
(NSW) introduces employees’ obligation to take
reasonable care for the health and safety of
people at their workplace and those who may be
affected by their acts or omissions, and broadens
employers’ duty of care to those who are not
their employees but are visitors to the workplace.
In other words, not only employers, but also
employees and the self-employed are obliged to
take reasonable care to ensure the health and
safety of those in the workplace.
These statutory duties reflect the common law
duty of employees to work with due skill and care.
Section 17 of the Act mandates that a workplace
of 20 or more employees must have an OHS
committee, and that an OHS representative is
to be elected if at least one person requests it
or WorkCover so directs. The function of the
committee and/or representatives is to consult
with the employer about risks to health and safety,
and regarding decisions as to the measures to be
taken.
An OHS committee is made up of both employer
and employee representatives. Regulation 24
of the Occupational Health and Safety Regulation
2001 (NSW) states that the number of employer
representatives must not exceed the number of
employee representatives. The committee can
investigate any matter that may be a risk to health
and safety in the workplace. Inspectors from
the WorkCover Authority of NSW can also visit
workplaces and are authorised to investigate a
wide range of safety-related activities. Their powers
include prohibiting any further work and imposing
on-the-spot fines for any breaches discovered.
Non-legal responses
The ACTU has played a major role in lobbying
governments to strengthen workers’ rights to a safe
workplace. In 2009, it launched a media campaign
entitled ‘Don’t Risk Second-Rate Safety’, with the
aim of ensuring that any new harmonised set of
OHS laws would not compromise existing laws
and standards protecting workers. The campaign
was a response to new legislation under which
the states and territories would retain separate

O p t i o n 4: Wo rkp lac e
legislation, but agree to base their respective laws
on a national model: in other words, the same law
would be passed separately in state, territory and
federal jurisdictions.
Safe Work Australia is an independent statutory
body established in 2009 to improve occupational
health and safety and workers’ compensation
throughout Australia. It provides advice to the
government concerning workplace health and
safety issues. In February 2010 it began work on
the development of regulations to accompany the
model OHS law.

Responsiveness of the legal

system Figure 13.11 WorkCover provides workers’ compensation and
The introduction of reforms to occupational rehabilitation benefits to injured workers and investigates and
health and safety legislation and the emphasis monitors workplace health and safety issues.

on preventive measures (such as educating

employees and employers, making them more
aware of workplace issues and imposing a mutual
responsibility on employers and employees for
workplace safety) have reduced the number of
claims and the severity of workplace injuries.
However, there are times when the legal res-
ponse is inadequate in protecting victims and
their rights. The legal system has acted to make
companies more accountable for damages to
employees in the course of their employment
during the manufacture of their products. James
Hardie was a company that mined asbestos and
manufactured and distributed various products
containing it, including building products, in-
sulation, pipes and brake linings. In 1989
James Hardie attempted to avoid its liability for
negligence when a worker contracted asbestosis harmonised
legislation
while working for a Hardie subsidiary (see Briggs v
statutes in two or
James Hardie & Co. Pty Ltd (1989) 16 NSWLR 549) more jurisdictions
arguing that the subsidiary was responsible. In a which deal with
certain matters in
similar case where a parent company attempted
the same way
to avoid its liability (Barrow & Heys v CSR Ltd &
Midalco Pty Ltd (unreported), Supreme Court of
Western Australia, 1988), CSR stripped its sub-
sidiary Midalco of most of its assets as a way of
minimising a possible compensation payout. In
both these cases the companies were held liable
and compensation was paid to the victims.
With the increasing number of asbestos victims,
court claims and increasing public pressure, the
government enacted the James Hardie (Civil Penalty
Compensation Release) Act 2005 (NSW). The Act

Cha pter 13: Option 4: Work pl ace 391

 required Hardie to establish a compensation fund,
which would provide monetary compensation
for asbestos victims well into the future. The
Act attempted to protect future victims’ rights
to compensation by creating a $4.5 billion fund,
and included provisions to stop Hardie from
restructuring its operations to distance itself from
its manufacturing and mining divisions, thereby
avoiding liability.
Unfortunately the Act failed to properly protect
victims’ rights. In 1998 Hardie applied to move
the parent company to the Netherlands. The NSW
Supreme Court agreed, but required Hardie to
deposit $1.9 billion into the asbestos fund. At the
same time, Hardie transferred $2 billion from its
Australian subsidiaries to the parent company in
the Netherlands and in 2003 was able to separate
itself entirely from its subsidiaries in Australia,
resulting in the fund having insufficient money
to pay compensation. It was only after intense
media coverage and public outcry that Hardie
shareholders approved the compensation and
the Asbestos Injury Compensation Fund was
established in 2007.
Several of Hardie’s executives were found
to have acted illegally in an effort to minimise
Hardie’s liability. The fines ranged from $30 000
to $350 000. Despite the intense media coverage,
legal battles and government intervention, Hardie
announced that the asbestos fund was almost out
of money. In 2009, Hardie began legal action for
the recovery of money paid to a worker who had
made a successful compensation claim, arguing
that the man’s employer, Ipswich Council, was
negligent in protecting its employee from asbestos
and that the council should share liability for the
compensation.
Conclusion
Workplace deaths and injuries have tragic conse-
quences for victims and their families. In addition,
economic losses from work-related deaths, injur-
ies and disease impose a heavy burden on the
Australian economy. The total cost of workplace
392 C am b r id g e L e g a l S t u d ie s – HS C
injury and disease is estimated at over $50 billion
each year. The cooperation of governments,
unions and employer associations has thus far
proven to be the most effective means of reducing
the number of deaths, injuries and illnesses,
although it has been argued that a greater willing-
ness to impose statutory regulation of business is
needed.
Issue 3: Termination of
employment
Termination of employment may occur as a result
of the employee leaving a job of his or her own
accord, or the employer asking the employee to
leave. Termination can occur in a number of ways:
s resignation
s retirement
s dismissal
s retrenchment.
Legal and non-legal
responses
Legal responses
RE SI G NATI O N
When an employee wishes to leave a job, he or she
can resign. The procedure to follow when resigning
and the conditions imposed on resignation are
usually contained in an enterprise agreement or
award, or within the contract of service. Usually a
person intending to resign must give notice: that
is, inform the employer of one’s intention to leave
the job. The employee may be required to give two
to four weeks’ notice or an amount of time that
is seen as reasonable. Notice is usually in writing.
An employee who does not give reasonable notice
may be in breach of the contract of employment
and could be sued by the employer.
Constructive dismissal occurs when a worker
resigns because conditions at work leave him
or her no alternative but to do so. This may be
conduct of the employer that is designed to force
the employee to resign. For example, a worker
may resign as a result of sexual harassment at
work, which the employer has failed to act upon
and halt. Constructive dismissal may entitle
the employee to sue the employer for wrongful
dismissal or unfair dismissal.
R E TIREM ENT
A person retires when he or she voluntary leaves
a job, usually due to age or health issues. Over
the last few years the Australian government has
attempted to encourage individuals to continue
working by removing the statutory retirement
age for many areas of employment. Some areas
of employment do have mandatory retirement
ages, for example judges (70 years of age) and
individuals employed under federal awards such
as airplane pilots (65 years). Many Australians
now choose to continue to work into their sixties,
moving from full-time to part-time or casual
employment.
DISM ISSAL
Dismissal with notice
An employer can dismiss an employee with
notice, provided the dismissal is not harsh, unjust
or unreasonable. In considering whether a dis-
missal was harsh, unjust or unreasonable, Fair
Work Australia must take into account whether
there was a valid reason for the dismissal, related
to the person’s capacity or conduct, including
OHS considerations, and whether the person was
notified of that reason.
The period of notice of dismissal that must be
given is usually in the contract of employment,
award or enterprise agreement. For casual workers
the period of notice may be one hour, while for
other workers it may be two weeks or more. An
employee who is dismissed is entitled to be paid for
the period of notice of the dismissal. An employee
who is dismissed may ask for pay in lieu of notice.
In this instance, the employee chooses to be paid
for the period of notice and immediately leave the
workplace rather than continue to work during the
period of notice.
Dismissal without notice
An employer may dismiss an employee without wrongful dismissal
termination of
notice. Dismissal without notice is also referred
employment that
to as summary dismissal or immediate dismissal. constitutes a breach
Under common law, an employer can summarily of the employment
contract, an award or
dismiss an employee under any of the following
a statute
O p t i o n 4: Wo rkp lac e
circumstances:
unfair dismissal
s the employee is extremely incompetent under the Fair Work
s the employee has committed an act of serious Act 2009 (Cth) s 385,
termination of
misconduct
employment for
s the employee has acted in a certain way, despite reasons that are
being warned not to do so. ‘harsh, unjust or
unreasonable’, as
In the last example, the number of warnings found by Fair Work
required may vary slightly between individual Australia
workplaces. However, usually three warnings must
be given. In this instance, each time a warning is
given (usually in writing), the employer is required
to make it clear that the employee’s action was
unacceptable, and to provide counselling for the
worker. The counselling should have included an
explanation of what is expected of the employee,
and assistance in the form of retraining or
additional training.
Under s 388 of the Fair Work Act 2009 (Cth),
small businesses employing fewer than 15 full-
time employees are covered by a Small Business
Fair Dismissal Code. Summary dismissal or
dismissal without notice may be considered fair if
the employee committed fraud, theft or violence.
Under the code, all other dismissals maybe
considered fair if the employee was warned and
given the opportunity to respond to the warning
and correct the problem.
Unfair dismissal
If a dismissal is harsh, unjust or unreasonable,
the employee can file a claim of unfair dismissal
with Fair Work Australia (FWA) (or the NSW IRC if
he or she is a state or local government employee
in NSW). Remedies available under the Fair Work
Cha pter 13: Option 4: Work pl ace 393
 Act 2009 (Cth) include reinstatement, in which the
employee is re-employed. Monetary compensation
may also be sought.
Unlawful termination
Section 772 of the Fair Work Act 2009 (Cth) pro-
hibits dismissal of an employee on the following
grounds:
s temporary absence from work due to certain
illnesses or injuries
s trade union membership or participation
s non-membership of a union
s acting as, or seeking office as, an employee
representative
s filing a complaint or action against an employer
involving alleged violation of laws
s race, sex, sexual orientation, age, disability,
marital status, carer’s responsibilities, preg-
nancy, religion, political opinion, or national
origin
s absence from work during parental or mater-
nity leave
s temporary absence from work for the purpose
of voluntary emergency service.
If a private conference between employer and
employee, initiated by FWA, is unsuccessful in
resolving the matter, the employee can apply to
the Fair Work Ombudsman or the Federal Court.
R ET R EN C H MEN T
retrenchment Retrenchment occurs when an employee loses his
the loss of a job
or her job because there is no longer a job for that
because there is no
longer a job for the employee to do. When the job that person used to
employee to do do disappears, the employee becomes redundant.
Redundancy has become a major area of dispute,
as the real reason for the loss of jobs in an econo-
mic downturn may be the need to reduce costs.
There is protection for redundant employees
in both federal and state legislation. Section 119
of the Fair Work Act 2009 (Cth) sets out minimum
rates of redundancy pay. The amount of payment
owed depends on the length of service – minimum
amount is four weeks’ pay, increasing to a
maximum of 12 weeks.
394 C am b r id g e L e g a l S t u d ie s – HS C
Section 14 of the Employment Protection Act
1982 (NSW) gives the NSW Industrial Relations
Commission wide-ranging powers where state or
local government employees are retrenched.
In the late 1990s, over 3000 Australian workers
lost an estimated $30 million of entitlements,
along with their jobs, because their employers
went bankrupt and had insufficient capital to pay
the employees their entitlements. Unions agitated
very strongly for both the state and federal
governments to establish some means to protect
worker entitlements. Today, when a firm is facing
bankruptcy, employee entitlements are one of the
first obligations that must be protected. Employees
who have lost their jobs as a result of their
employers’ bankruptcy may apply to the General
Employee Entitlement and Redundancy Scheme
(GEERS) for basic entitlements such as unpaid
wages, unpaid leave and long service leave and upt
to 16 weeks unpaid redundancy entitlement.
The Corporations Law Amendment (Employee
Entitlements) Act 2000 (Cth) was passed to make it
illegal for companies to alter corporate structures,
their accounts or their procedures in a way that
would allow them to avoid paying their workers’
entitlements.
In 1984, the Australian Industrial Relations
Commission (AIRC) handed down a decision
regarding redundancy. This decision is referred
to as the Termination Change and Redundancy
Case (TCR Test Case). Employers of more than 15
workers must consult with staff if the introduction
of new technology will reduce the number of
workers needed and thus lead to redundancies.
The AIRC decided that there should exist a
minimum redundancy ‘package’. A redundancy
package may include monetary compensation,
assistance in finding other employment, retraining
and counselling. It also held that, in addition to the
usual period of notice of dismissal, a worker should
be given four weeks’ notice that he or she will be
retrenched. Retrenched workers may be given one
paid day of leave during each week of notice in
order to look for another job. Employees who are

Figure 13.12 Legislation provides protection for employees who are retrenched for technological, economic or
restructuring reasons.
aged over 45 and have worked for the employer for
two or more years can be given one week’s extra
notice as well as the four weeks retrenchment
notice. Allowing for this extra notice for those aged
over 45 years was considered necessary because
those individuals may find it more difficult to
secure another job.
The Fair Work Ombudsman has now taken over
the role of investigating and hearing complaints
regarding unpaid redundancy entitlements.
As well as normal termination payments (which
include paid leave not taken, superannuation and
wages and overtime owed), a retrenched worker
may receive extra redundancy payments. These
additional payments reflect the number of years
worked and current salary. For example, on top of
his or her termination pay a worker may be paid
one week’s salary for every year worked, up to an
agreed limit.
Small businesses employing 15 or fewer employ-
ees are excluded from redundancy legislation,
meaning they do not have to provide redundancy
O p t i o n 4: Wo rkp lac e
payments. There have been suggestions that
larger workplaces should also be excluded from
making redundancy payments, due to the financial
burdens such payments place on employers.
R EVI EW 1 3 . 1 5
1 List and explain the various ways in which
employment can be terminated. Identify
which of these would be considered
voluntary.
2 Under common law an employer can dismiss
an employee. Outline the procedure that
must be followed and list the grounds
available for dismissal.
3 Discuss whether or not an employer should
have the right to summary dismissal of an
employee.
4 Discuss how federal legislation protects the
rights of redundant employees and whether
this protection has been adequate.
Cha pter 13: Option 4: Work pl ace 395
 Non-legal responses
Industry interest groups lobby governments to
influence policy direction or legislation, other
groups act on behalf of their members to promote
the objectives of their group, and there exist
groups that are motivated by concerns for the
general welfare of workers and their families and
the protection of workers’ rights.
Groups that lobby on behalf of their members
include the ACTU and the major industry asso-
ciations representing employers’ interests, such
as the Australian Chamber of Commerce and
Industry. One role that these two groups perform is
presenting arguments in test cases that may affect
legal entitlements and obligations of employees
and employers. Other groups, such as the Equal
Opportunity for Women in the Workplace Agency,
work with employers to advance the interests
of particular groups of workers and to address
inequities in legal entitlements.
Non-government organisations such as the
Salvation Army provide training and education
opportunities as well as counselling and welfare
support to those struggling to find employment.
Responsiveness of the legal
system
A number of factors influence the ways in which
the law responds to issues involving dismissal and
redundancy. These include:
s Australia’s obligations under international
treaties
s public opinion
s pressures arising from global and national
economic circumstances
s the government of the day, its labour policies
and affiliations.
Under WorkChoices, people working in a busi-
ness employing fewer than 100 employees could
be dismissed for no reason. Those working in
larger businesses could also be unfairly dismissed
on grounds of ‘operational reasons’. The Fair Work
Act 2009 (Cth) abolished these provisions and
introduced some safeguards for employees of
small businesses.
396 C am b r id g e L e g a l S t u d ie s – HS C
Conclusion
Recently, a major means of changing the law
relating to dismissal has been through a change
of government and legislative reform. Achieving
protection for employees against retrenchment
continues to challenge trade unions and other
advocates of workers’ rights, as the global economy
and the power of domestic and multinational
corporations raise formidable hurdles.
Issue 4: Leave
Leave is a fundamental right of employees and
can be found within ILO conventions and UN
treaties. Minimum leave entitlements are included
in all modern awards and enterprise agreements
and are protected under both state and federal
legislation.
The types of leave available include:
s annual leave – a period of paid holiday time to
which an employee is entitled each year
s long service leave – an additional period of
holiday time, provided in recognition of a long
period of service to an employer
s sick leave – time off while ill
s community service leave – time off work for the
purpose of voluntary emergency management
activity, such as service with a fire-fighting or
rescue organisation, and for jury service
s parental (maternity and paternity), family, and
adoption leave
s carer’s leave – time off to provide care to a
member of one’s immediate family.
The AIRC’s decision in the Maternity Leave
Test Case of 1979 decision established employed
mothers’ right to 52 weeks’ unpaid maternity leave.
In 1985 the AIRC extended this right to adoptive
mothers, and to fathers in 1990. Although unpaid
parental leave could be found in awards, it was
not until 1998 with the passing of the Industrial
Relations Act 1988 (Cth) that it was included in
legislation. In 2005 the AIRC Family Provisions Test
Case established the right to request an extension
of leave and to return to work on a part-time basis.
This was later extended to part-time and casual

Figure 13.13 The Maternity Leave Test case (1979) decision established the right of employed women to 52 weeks’
unpaid maternity leave.
employees (who must be continuously employed
for more than 12 months).
Unpaid parental leave became one of the five
minimum statutory entitlements of employees
under WorkChoices, but it removed the ‘return
to work’ guarantee. A woman’s return to work
became dependent on her employer’s decision.
The National Employment Standards (NES)
established under the Fair Work Act 2009 (Cth)
retained the WorkChoices provisions for parental
leave, but re-established the right to return to
work. At the end of the period of leave, an employ-
ee is entitled to return to the position held prior to
leave. If the position no longer exists, the employee
has the right to be employed in a similar position,
of the same status and pay.
Legal and non-legal
responses
The connection between work and family has
become an increasingly important issue. Although
annual and long service leave have been available
O p t i o n 4: Wo rkp lac e
to employees for many years, the same cannot be
said of paid parental leave. Moreover, it has been
seen as an entitlement of concern only to women,
as traditionally it was mothers who bore the bulk
of the responsibility for child care. Men’s higher
wages and greater career opportunities, financial
necessity within families, and social expectations
have been mutually reinforcing factors making
it difficult to advocate equal parental leave
entitlements for fathers and mothers, concurrent
parental leave for both parents, or other legislative
incentives to make parental leave an issue for
working parents of both sexes. Parental leave for
both men and women will not, by itself, solve the
gender inequities, though it would be a good start;
other issues of high priority include the problem
of low value placed on certain types of labour
and correspondingly low pay, and the difficulties
for business posed by employee parents’ need for
flexible hours or part-time work.
Even on maternity leave, Australia has not
been a world leader in providing support for
work ing parents. Despite public criticism the
Cha pter 13: Option 4: Work pl ace 397
 federal government refused to ratify the ILO’s
Maternity Protection Convention of 2000, which
recommended 14 weeks’ paid leave. The govern-
ment argued that paid maternity leave should be
decided on an individual basis by the employee
and the employer.
The recent announcement that 18 weeks’ paid
leave for a parent earning less than $150 000 per
year will be available from 2011 heralds a gradual
move by Australia to adopt world standards.
The World Health Organization recommended a
minimum of 16 weeks; the ILO now encourages
governments to provide 18 weeks. However,
even though Australia has moved to 18 weeks,
it still lags behind other OECD countries. France
(16–26 weeks), Germany (14 weeks) and Norway
(18 weeks) provide for maternity leave paid at
100 per cent of the employee’s wage. The United
Kingdom (26 weeks) provides for 90 per cent of
the employee’s wage. In contrast, the rate payable
in Australia is set at the current federal minimum
weekly wage of $543.
Periods of paternity leave are still much shorter
than for maternity leave, worldwide. On average,
OECD countries provide 18 weeks’ paid maternity
leave and two weeks’ paternity leave. However,
because of the short period of absence, workers on
paternity leave often continue to receive full wage
payments. In some countries, father-specific leave
entitlement is part of the parental leave scheme,
rather than a separate right. France and Spain
allow both parents to stay at home until their
child’s third birthday, and return to their previous
jobs or comparable ones.
Legal responses
AN N UAL AN D OT H ER L EAVE
Under the National Employment Standards (NES),
employees are entitled to four weeks’ paid annual
leave, 10 days’ paid sick or carer’s leave, two days’
unpaid compassionate leave or carer’s leave as
required, and up to 12 months’ unpaid parental
leave. Annual and personal leave can accumulate
398 C am b r id g e L e g a l S t u d ie s – HS C
but many companies discourage employees from
accumulating large amounts of annual leave. Part-
time employees have the same entitlements but
accumulate them on a pro rata basis.
Long service leave for employees in the NSW
industrial law system is governed by the Long
Service Leave Act 1955 (NSW). Two months’ long
service leave is available after 10 years’ continuous
service with the same employer. For each sub-
sequent five years completed, the employee is
entitled to an additional one month’s leave. Long
service leave is paid according to the individual’s
normal wage prior to leave, excluding penalty
and overtime rates. Leave can be taken prior to
completing 10 years’ service. If the employee
leaves his or her job prior to taking long service,
he or she will receive payment for the untaken
leave.
PA RENTA L L E AV E
The NES contain similar minimum parental
leave provisions to those that existed under the
Workplace Relations Act 1996 (Cth), except that it
has been extended to both male and female same-
sex couples. Parental leave can be taken for up
to 52 weeks (unpaid) by either the mother or the
father. Generally, only one parent may be on leave,
other than a concurrent period of three weeks. For
parents who are adopting, the primary carer is
entitled to 52 weeks’ unpaid leave and two days’
pre-adoption leave.
Under the NES, employees can request an
extension of unpaid parental leave for up to 12
months. The employee must have already taken
12 months unpaid leave and the additional leave is
a continuation of leave. At the end of the leave, the
employee is entitled to return to the same position
he or she held prior to leave.
The federal Paid Parental Leave (PPL) scheme
will commence in 2011. The scheme provides
eligible parents up to 18 weeks of paid leave
(capped at the Federal Minimum Wage – currently
$543 per week). To be eligible, the primary carer
of the child must be in paid employment and earn
less than $150 000 per year. If a parent returns
to work before taking all of his or her PPL entitle-
ment, the unused part may be transferred to
another person (usually the other parent) who
meets eligibility requirements. The scheme also
covers the self-employed, contractors and casual
employees.
Non-legal responses
The idea of paid parental leave is not new. In
2001 the Australian Human Rights Commission
(then officially titled the Human Rights and Equal
Opportunity Commission) released a discussion
paper, Valuing Parenthood. The paper argued
that women’s general health and well-being were
adversely affected by the economic instability
resulting after the birth of a child. The ILO
(Convention 183) and the UN Convention on the
Elimination of All Forms of Discrimination Against
Women also promoted paid leave to help women
return to the workforce after childbirth. The ACTU
has, over the past 30 years, lobbied Australian
governments to provide greater assistance in the
form of parental leave.
The Family Provisions Test Case [2005] AIRC
692 prompted the Commonwealth government
to include new leave provisions in awards. These
included parental leave, flexible working hours,
emergency family leave and personal or carer’s
leave. The ACTU had argued for these inclusions
over a significant period. Industry groups had
opposed elements of the ACTU case. Industry
groups suggested that the financial burden of
childbirth should be with the government, arguing
that the lack of appropriate and affordable child
care facilities, rather than a lack of paid time off,
is a real cause of why women often do not return
to work. While an award clause was introduced
giving employees the right to request that their
employers allow them to extend the one year’s
unpaid parental leave to a second 12 months,
return to work part-time, or extend the existing
period of unpaid leave, an employer had the right
to refuse on ‘reasonable’ grounds, which included
cost, lack of adequate replacement staff during the
leave period, the effect of the leave on ‘efficiency’,
and the effect on customer service.
Responsiveness of the legal
system
Leave has become an important issue. More than
5 million Australians have responsibilities for
the care of someone else. The economic need or
personal choice of both parents to work and an
O p t i o n 4: Wo rkp lac e
increase in the number of single-parent families
means that in a majority of families, all of the
adults are employed. The workplace has had to
become more flexible to meet the demands of
a changing workforce. The number of people in
casual employment has also meant that their need
for leave entitlements cannot be dismissed.
The Australian Parliament has and is attempting
to meet these needs through legislation providing
greater entitlements for working families. While it
must also respond to the concerns of the business
community, the progress made by other countries
suggests that the global economy not only should
but can accommodate the social necessities of the
people who constitute the labour element in the
production of goods and services.
Conclusion R EVI EW 1 3 . 1 6
Issues relating to leave, such as 1 List and explain the
demographic changes, will continue different forms of leave
to be driving forces for law reform. available.
In the future the government may 2 Why has leave become
have to consider extending leave and an important issue?
creating more flexible workplaces, as 3 To what extent should
more Australians age and increasing- the government provide
ly need the support of their families. support to working
Changes to parental leave focusing parents?
only on mothers have raised issues of 4 Discuss whether or not
equity, as many families want fathers employers should be
to have an equal role in caring for expected to contribute
their children. The capping of leave to the PPL scheme and
payments under the PPL at the federal provide parents with
minimum wage is a second issue of additional financial
concern that will require resolution. support.
Cha pter 13: Option 4: Work pl ace 399
 s Workplace law regulates the relationship
between employees and employers, ensuring
that the rights of workers are protected and
that both employees and employers comply
with their obligations.
s Labour laws began to develop during the
Industrial Revolution in Britain, and govern-
ment intervention in employment began to
replace laissez-faire policies, which assumed
that parties negotiating an employment
contract had equal bargaining power.
s Conciliation and arbitration have been at the
centre of Australian industrial relations law
since 1904.
s The Australian Constitution gives the Federal
Parliament the power to make laws to settle
interstate industrial disputes, but broader
industrial powers were shared with the states
until they all (apart from Western Australia)
referred their powers to the Commonwealth
between 1996 and 2009.
s A contract of employment is a contract of
C hap ter s umm ary
service between an employer and employee,
which provides specific rights and imposes
specific duties on both parties. By contrast, a
contract for services is an agreement to do
work for an agreed fee, but the worker is not
employed by the other party.
s All contracts of employment contain both
express and implied terms. Examples of
implied terms include an employer’s duty to
provide a safe working environment, and an
C h ap t e r su mm a r y t as ks
1 Why is there an emphasis on consensual forms
of dispute resolution rather than arbitration?
2 Discuss the advantages of being employed
under a contract of service rather than having
a contract for services. Use appropriate
examples to support your discussion.
3 Explain the importance of injury management
programs.
4 Evaluate the effectiveness of the law in
protecting and enforcing the rights of
employees and employers.
5 Assess the effectiveness of the law in
responding to the changing needs of the
workplace and in resolving disputes between
employees and employers.
400 C am b r id g e L e g a l S t u d ie s – HS C
employee’s duty to obey lawful directions of
the employer.
s Australia’s industrial relations framework includes
industrial awards and enterprise agreements.
The federal system covers most employees in
Australia, but NSW retains legislative powers
relating to state and local government
employees.
s In their judicial role, Fair Work Australia and the
NSW Industrial Relations Commission hear
disputes, resolving issues through a process of
negotiation and conciliation to achieve a con -
sensual solution. These bodies also have the
administrative functions of setting conditions and
wages and approving enterprise agreements.
s The Fair Work Ombudsman can investigate and
enforce breaches of the Act, awards or
agreements. It also provides education, advice
and assistance.
s The National Employment Standards comprise
10 minimum standards for employees’ pay and
entitlements. All awards, agreements and con-
tracts of employment must meet these
standards.
s Trade unions represent workers’ interests and
work to achieve better conditions and pay.
s Occupational health and safety is regulated by
state legislation such as the Occupational Health
and Safety Act 2000 (NSW). Workers’ compen-
sation is a compulsory insurance scheme to
compensate employees injured at work.
 1 Under the Occupational Health and Safety
Act 2000 (NSW) s 13, an employer has the
duty to consult with their employees allowing
them to contribute to the making of decisions
that affect their
a health, safety and welfare at work
b children’s health, safety and welfare
c health, safety and welfare at home as well
as at work
d child care arrangements
2 Non-voluntary termination of employment
M ul ti p l e c hoi ce q ues ti ons
includes:
a unfair dismissal, retirement and long
service leave
b resignation, redundancy and dismissal
c resignation, retrenchment and retirement
d summary dismissal, retrenchment and
dismissal with notice
3 A valid enterprise agreement requires
a equal bargaining power between the
parties
b trade union representation for employees
c approval by Fair Work Australia upon
completion
d a greenfields clause to cover employees
commuting to work from rural areas
E xt en d ed re sp o ns e q u es t i ons
1 Critically analyse the interaction between
legislative changes and changes in social
attitudes with reference to parental leave.
2 Discuss the tension between the rights of
employees and the needs of Australian
businesses and how governments have
addressed these competing concerns.
3 Outline the role that trade unions have played
in obtaining entitlements for workers, and
discuss the question of whether unions are
still relevant in today’s economy. Justify your
answer.
4 Explain why legislation is necessary to protect
people’s health and safety at work, providing
examples. How does technology give rise to
the need for legislative change?
O p t i o n 4: Wo rkp lac e
4 In order not to be found negligent, an
employer must
a hire only competent staff who require no
training or supervision
b provide all employees with safe transport
to work
c provide a safe working environment and
equipment
d require employees to provide their own
equipment and a certificate of safety
5 Protected industrial action is available
a during negotiations for an enterprise
agreement, if it does not threaten
individuals’ personal safety
b only after negotiations for an enterprise
agreement have concluded
c only to employees who are not members
of a union
d only if conciliation has failed
In Section III of the HSC Legal Studies
examination you will be expected to
complete an extended response question
for two different Options you have studied.
There will be a choice of two questions
for each Option. It is expected that your
response will be around 1000 words in
length (approximately eight examination
writing booklet pages). Marking criteria for
extended response questions can be found
at www.cambridge.edu.au/education. Refer
to these criteria when planning and writing
your response.
Cha pter 13: Option 4: Work pl ace 401
 T h e m e s a n d ch a l l e n g e s
The role of the law in encouraging
cooperation and resolving conflict in the
workplace
s Legislation at both state and federal level
has created industrial relations processes
with the aim of minimising conflict within the
workplace as well as encouraging cooperation
between employers and employees.
s Enterprise agreements encourage employers
and employees to negotiate satisfactory work
arrangements on an individual workplace
level.
s Occupational health and safety (OHS)
legislation also emphasises employees’ duty
to take reasonable care for the health and
safety of others in their workplace, and their
participation in maintaining a safe work
environment through representation on OHS
committees.
s Employees and employers are encouraged
to resolve disputes about pay and conditions
through negotiation and conciliation. All
modern awards and enterprise agreements
contain dispute resolution procedures, which
must be followed before taking the matter
further. It is only when discussions break
down that the dispute will go to arbitration.
s The Fair Work Ombudsman is able to
investigate complaints within the workplace
and make an order resolving the conflict.
s Fair Work Australia and the NSW Industrial
Relations Commission have a judicial role in
settling disputes. The Federal Court and the
Federal Magistrates’ Court have industrial
divisions that hear workplace disputes and
appeals.
Issues of compliance and non-compliance
s Effective industrial laws require that
governing bodies be given the resources and
authority to enforce compliance. Enforcement
also includes the availability of penalties that
will deter non-compliance. Criminal sanctions
are sometimes more effective than the
imposition of a fine.
402 C am b r id g e L e g a l S t u d ie s – HS C
s In order to remove ambiguity and ensure
enforceability, employee and employer rights
and duties have been clearly defined in
legislation, as well as the penalties that can
be imposed for any breaches of the law. For
example, under the Occupational Health and
Safety Act 2000 (NSW) s 13, an employer has
the duty to consult with employees to enable
them to contribute to the making of decisions
affecting their health, safety and welfare at
work. Failing to do so results in heavy fines.
s Mutual obligations and employees’ active
involvement in maintaining safety at work
have been shown to be a way to increase
compliance with OHS legislation.
Laws relating to the workplace as a reflection
of changing values and ethical standards
s All legislation is subject to review, including
the opportunity for members of the public
to comment on proposed amendments. This
enables legislation to reflect current social
values, attitudes and issues.
s A national review into model OHS laws is
concluding in 2010. The model laws will
create uniform OHS laws in all Australian
jurisdictions. The process of review and public
comment, including publication of discussion
papers and establishment of reference
groups, aimed to provide all interested
parties with the opportunity to have a voice
in the drafting, and to ensure that existing
OHS laws are not undermined. The ACTU has
expressed concerns in this respect.
s Various employer groups, including the
Business Council of Australia (BCA), have
been critical of elements of the government’s
Fair Work reforms, arguing that the new laws
unfairly favour unions. Some advocates of
workers’ rights have argued that the laws do
not go far enough.
The role of law reform in recognising rights body for unions in Australia, the ACTU, has
and enforcing responsibilities in the workplace argued for an increase in the minimum wage,
equal pay for women, and the eradication of
s The law needs to reflect prevailing community
discriminatory practices in the workplace.
standards and expectations. Laws that are in
s Other groups, such as Equal Opportunity
conflict with current attitudes are less likely
for Women in the Workplace Agency, act
to be effective. Individuals may engage in
to influence policy and industrial laws in the
civil disobedience, openly opposing the laws,
promotion of the rights of particular groups.
or may simply ignore the laws. To determine
However, women still earn substantially less
the best means of ensuring that laws reflect

O p t i o n 4: Wo rkp lac e
than men. One of the reasons is that they
community standards and expectations,
comprise a large proportion of casual and
legislators may call for public submissions
part-time employees and as a consequence
before debating issues in parliament. They
do not have the same employment
are, in the end, accountable to the electorate
protections as full-time employees.
for the laws that are passed.
s Non-government organisations include social
s Those responsible for law reform aim to
welfare groups such as the Salvation Army.
balance the needs of all stakeholders while
They may help individuals find employment
ensuring that the law is consistent with
and provide training, counselling and welfare
Australia’s international obligations.
support to people seeking jobs.
s While the laws passed may reflect the views
s Non-government organisations play a varied
of the majority, this does not mean that the
role within state and federal industrial
rights of minority groups are secondary.
relations. Non-government organisations such
Numerous laws have been passed protecting
as the Australian Human Rights Commission
individual rights, which is seen as necessary
can investigate discrimination complaints. If
for the protection of the entire community.
the complaint cannot be resolved, the matter
For example, laws that make discrimination
may go to court. While the Commission does
illegal protect the rights of all employees.
not have the authority to enforce its rulings,
s The General Employee Entitlement and
for example by imposing a fine or order, its
Redundancy Scheme (GEERS) was established
findings can be used in a court or a tribunal in
to protect workers’ entitlements in the event
support of the complainant’s case.
that their employer became bankrupt.
s The International Labour Organization aims
s The protection of individual rights with
to encourage member nations to undertake
respect to occupational health and safety can
common action in the protection of workers’
be seen in laws prohibiting smoking in the
rights around the world.
workplace.
s Numerous independent and non-government
s Well-drafted legislation clearly sets out
organisations are involved in investigating and
the rights and duties of employees and
researching issues relating to discrimination,
employers, and provides for a process of
pay inequities and substandard conditions,
resolving disputes.
for example for outworkers. They may
make recommendations to government or
The effectiveness of legal and non-legal
provide policy advice to relevant government
responses in achieving justice in the workplace
departments. However, the power of these
s Employers’ associations, as well as groups groups is limited. How effective they are in
representing workers’ interests, lobby changing government policy is difficult to
governments to influence legislation. Non- determine.
legal responses to industrial relations issues
include the activities of unions. The peak
© 2010 Copyright Board of Studies NSW for and on behalf of the Crown
in right of the State of New South Wales. HSC Legal Studies Syllabus 2009.

Cha pter 13: Option 4: Work pl ace 403

 CHAPTER 14
Option 5: World order
O pt i o n 5 : Principal focus
Through the use of contemporary examples, students investigate the
Wo r ld o rd e r effectiveness of legal and non-legal measures in promoting peace and resolving
conflict between states.
25% of course time

Themes and challenges

Themes and challenges to be incorporated throughout this option include:
s the role of law in encouraging cooperation and resolving conflict in the world
s issues of compliance and non-compliance
s the impact of changing values and ethical standards on world order
s the role of law reform in promoting and maintaining world order
s the effectiveness of legal and non-legal responses in promoting and maintaining
world order.
At the end of Chapter 14, on pages 452–453, you will find a summary of the
themes and challenges relating to world order. The summary draws on key points
from the text and links them to each of the themes and challenges. This summary
is designed to help you revise for the external examination.

HSC external examination information

The HSC examination will be a written paper worth a total of 100 marks. The
paper will consist of three sections.
Questions relating to Part III of the syllabus – Options – will appear in Section
III of the examination. There will be seven extended response questions, one for
each Option offered in the syllabus. Students will be required to answer two of
these questions, each relating to a different option they have studied.

Section III: Options 50 marks total (25 of the possible 50 marks per Option)
The question relating to each Option will have two alternatives. The expected
length of response is around 1000 words (approximately eight examination writing
booklet pages).

404 C am b r id g e L e g a l S t u d ie s – HS C
 ch a p te r o b j e cti ve s In this chapter, students will:
s discuss the concept of ‘world order’
s outline the evolving nature of world order
s describe the need for world order, its benefits and the
threats to it
s identify key treaties that underpin international law
s describe the various mechanisms by which
international law is created and enforced
s explain the role of international law in encouraging
cooperation and resolving conflict
s describe key international and non-government
organisations that contribute to world order
key te r m s
Cold War interdependence
collective security intergovernmental organisation
communal killing (IGO)
crimes against humanity international humanitarian law
dictatorial jus cogens
ethnic cleansing mass atrocity crimes (mass
genocide atrocities)
global financial crisis militia
globalisation multilateralism
hegemony non-government organisation
humanitarian intervention (NGO)
rel evant l aw
IM PORTAN T IN T ER N AT ION AL IN S TRU M ENTS
Treaty of Westphalia (1648)
United Nations Charter (1945)
Universal Declaration of Human Rights (1948)
United Nations Convention on the Prevention and
Punishment of the Crime of Genocide (1948)
Treaty of Rome (1957)
Treaty on European Union (‘Maastricht Treaty’) (1992)
Geneva Conventions (1949)
Limited Nuclear Test Ban Treaty (1963)
Nuclear Non-Proliferation Treaty (1968)
o dd l a w
In July 2009, marketing standards for 26 types of fruit
and vegetables in the European Union were scrapped,
in an effort to cut down on unnecessary bureaucracy.
This move was welcomed by supermarkets, which had
been forced to reject about 20% of produce because it
failed to meet the requirements. It was also cheered by
consumers who failed to see the need to prohibit curly
cucumbers, crooked carrots and ugly apples.
s describe and explain the interaction between
international law and domestic law, particularly in
relation to Australia
s locate authoritative information from a variety of
sources and effectively analyse and synthesise that
information
s examine the role of sovereignty in assisting and
impeding the resolution of world order issues
s identify and investigate these contemporary issues
involving world order and evaluate the effectiveness
O p t i o n 5: Wo rld o rd er
of legal and non-legal responses to these issues
peacekeeping
Permanent Five
state sovereignty
terrorism
The Hague
unilateral
veto
war crimes
world order
Comprehensive Test Ban Treaty (1996)
Anti-Ballistic Missile Treaty (1972)
Rome Statute of the International Criminal Court
(1998)
United Nations Convention Against Torture and Other
Cruel, Inhuman and Degrading Treatment (1984)
SI G NI FI C A NT C A SE S
Military and Paramilitary Activities in and against
Nicaragua (Nicragua v United States of America),
Merits, 1986 ICJ Rep 14
The rules were introduced in 1989 to ensure
common EU standards. Examples included
Commission Regulation no. (EC) 730/1999, which
required carrots to be ‘firm, not woody, not forked,
and free from secondary roots’, and Commission
Regulation (EEC) Number 2257/94, under which
cucumbers had to be at least 5.5 inches long and 1
inch wide, and free from abnormal curvature.
Cha pter 14: Option 5: Wor l d order 405

world order
the activities and
relationships between
the world’s states, and
other significant non-
state global actors,
that occur within a
legal, political and
economic framework;
an international set
of arrangements for
promoting stability
Cold War
the state of hostility,
without actual warfare,
between the USSR and
its satellites and the
USA and its allies in the
Western world, which
lasted from just after
the Second World War
until about 1991
globalisation
the ongoing
integration of regional
economies, societies
and cultures brought
about by the removal
of restrictions on
international trade,
travel and mass
communication
global financial crisis
the international
collapse of banks and
credit institutions,
along with devaluation
of many currencies,
a downturn in stock
markets, and decline
in international trade,
caused by a cluster
of factors including
the sudden drop in
property values in the
USA in September
2008
406 C am b r id g e L e g a l S t u d ie s – HS C
T h e n a t u r e o f wo r l d o r de r
The term ‘world order’ refers to the way in which
global events and circumstances are influenced
by the major actors in the world. Until the 1990s,
commentators on world affairs called their dis-
cipline ‘international relations’. Since the advent
of globalisation the term ‘international relations’
– relations between nations – is no longer broad
enough to describe the world. To understand the
world today, it is necessary to look at more than
just the activities of countries.
The term ‘new world order’ originated in the
early 1990s in the wake of the optimism at the end
of the Cold War. Many world leaders hoped that
the end of communism and the Cold War would
mark the beginning of a new era in which states
would act collectively to address global problems
that were beyond the capability of any of them
to solve individually. Both former US president
George Bush (senior) and former president Mikhail
Gorbachev of the USSR used the phrase to define
the emerging spirit of cooperation between the
superpowers, which they hoped would continue.
Figure 14.1 With the end of the Cold War,
Mikhail Gorbachev hailed the beginning of ‘a
new world order’.
As ‘world order’ implies a certain level of peace
and stability, world order issues are those that
relate to promoting peace and resolving conflicts
between states. The importance of world order
as a goal can be seen in the dramatic growth and
development of international law over the past 60
years. A major aim of this chapter is to explore the
role of international law in promoting world order.
It is also important to consider the relationships
between political and economic issues. Not only
are global peace and security prerequisites for
economic stability and social progress for every
nation on Earth, whether rich or poor; material
disadvantage and inequities have historically led
to conflict both within and between nations and
regions. While international trade, on its face, may
not appear to be a world order issue, differences
in the various countries’ laws relating to workers
and the environment are a factor in a country’s
attractiveness as a factory site for multinational
corporations. There is thus a very real potential for
labour exploitation, environmental degradation
and danger to human health, with attendant,
though usually indirect, risks to international
peace and security.
The need for world order
Interdependence and global
threats
Never in history has there been a time like ours,
when the fate of all human beings is so dependent
not just on good governance in individual countries
but also on a healthy global economic, political and
social order. The need for world order has never
been greater due to the high level of interdepen-
dence that has resulted from globalisation. As the
recent global financial crisis has demonstrated,
a financial problem in one part of the world can
have a quick ripple effect across the globe. This
feature of the globalised world has not promoted
stability, but instead has made the world more
 O p t i o n 5: Wo rld o rd e r
mass atrocity
crimes (mass
atrocities)
a broad term for
crimes that fall
Figure 14.2 Only swift multilateral action ensured that the world averted an economic depression into the categories
of genocide, war
after the onset of the Global Financial Crisis in September 2008.
crimes, ethnic
cleansing and
crimes against
vulnerable. A terrorist attack within a country’s their interests, the vast majority of international humanity; this is
borders, a regional conventional war, an outbreak treaties, whether in the areas of trade, finance, the term favoured
by the UN since
of illness in a single area, or mass atrocity crimes transport or security, are recognised by the parties
it avoids making
committed by a dictatorial regime can have an as benefiting them in some way. distinctions of
immediate flow-on effect to the rest the world. We whether the crimes
were committed in
are all potentially vulnerable if things go terribly
The development of war or peace, or as
wrong on another part of the planet, as the threats part of an intrastate
of nuclear war and climate change demonstrate.
world order over time or interstate conflict

The current world order is founded upon two interdependence

the interconnection
Benefits of interdependence principles that on their face seem contradictory: of two or more
Despite these issues, the news is not all bad. Those state sovereignty and multilateralism. State states to such an
in the well-off developed world, representing one- sovereignty is a nation-state’s legal power and extent that they are
mutually dependent
sixth of the total global population, benefit greatly authority over everything that occurs within it. on each other
from the current world order. Recognising the Multilateralism is cooperation between multiple for survival and
mutually vulnerable
threats posed by interdependence, states have states for mutual benefit or to deal with common
to crises
made serious efforts towards cooperation over the threats. Multilateralism often requires a surrender
state sovereignty
past 20 years. The sheer volume of international of some degree of sovereignty. Both concepts were a nation-state’s
law has grown exponentially, and most incredibly, evident in the 17th-century Treaty of Westphalia. power and authority
over persons,
there is a high degree of compliance with inter-
things and events
national law. The reason for this level of compliance State sovereignty within its territory;
is simply that most international law is created State sovereignty had its origins in the Treaty of independence from
external control
by consensus. All treaties are negotiated and no Westphalia, the collective name given to the two
multilateralism
country is ever forced to sign a treaty. Countries treaties concluded on 2 October 1648 – otherwise cooperation
agree to binding treaties and commit themselves to known as the Peace of Westphalia. The treaties between multiple
the treaties’ provisions because of mutual benefit. ended the Thirty Years’ War within the Holy states for mutual
benefit or
While there are always some nations that do not Roman Empire and the Eighty Years’ War between protection from
wish to sign up to treaties seen as detrimental to Spain and the Dutch Republic, and marked the common threats

Cha pter 14: Option 5: Wor l d order 407

 NY AUSTRALIA BR
CHINA INDIA
CA UK NE
INDONESIA USA
Figure 14.3 International law is like cement
which binds states together. Today’s world
order is like a wall that has cemented together
all the states using international treaties and
agreements. If the cement erodes or is broken,
the world order collapses.
beginning of the modern concept of states and
modern diplomacy. As European imperialism,
trade and ideas spread throughout the world, so
too did the Westphalian concept of the nation-
state. As European empires dissolved, colonies
became states, following the European model. All
international treaties and agreements are based
on states exercising their sovereignty and working
together. Today, states are like the building blocks
of the international system and international
treaties and agreements are like the cement that
binds them together.
Multilateralism
conscription Multilateral cooperation occurs when nations act
compulsory enlistment together for a common purpose. The reason for
in the military force of a
nation-state its emergence was, quite simply, survival. From
the 17th century, the leaders of Europe gradually
began to find the political will to act together to
stop the cycle of war and violence. Success in this
endeavour was patchy, and repeatedly the desire
for peace was overwhelmed by destructive forces,
408 C am b r id g e L e g a l S t u d ie s – HS C
Figure 14.4 The Hague in the Netherlands is
the primary headquarters for the UN’s judiciary,
playing host to the ICJ, the ICC and 150
international legal organisations.
yet gradually the hope of multilateral cooperation
for mutual benefit and to prevent war became
ingrained in Western Europe.
The first modern instance of multilateral co-
operation was the Treaty of Westphalia, ending
a period of religious war in Europe in which ten
million people died. The next significant example
of multilateral cooperation was the Concert of
Europe, an agreement by the victorious powers in
1815 after the Napoleonic Wars to prevent future
wars between the nations of Europe.
During the 19th century, there was an increasing
awareness by political leaders that the awesome
destructive power of new weaponry, combined
with the introduction of mass conscription and
fuelled by imperial rivalry and militarism, could
lead to a war of disastrous proportions. This aware-
ness, along with a violent series of revolutions
and wars between 1848 and 1870, quickened the
desire for multilateral cooperation to ensure peace.
Two peace conferences were held at The Hague,
Holland (now the Netherlands) in 1899 and 1907.
The Hague Conferences acted as a kind of global
legislature that drew up conventions to limit war-
fare by various means, such as banning certain
types of weapons. Also out of these conferences
came an agreement for a Permanent Court of Arbi-
tration to settle international disputes. This court
was based in The Hague in Holland.
REVIEW 14.1
1 Explain the concepts of state sovereignty
and multilateralism.
2 Discuss the interaction between these two
concepts.
The First World War and the
League of Nations
The trend towards multilateral cooperation that had
developed in the early years of the 20th century
seemed to vanish instantly upon the outbreak of
war in Europe in 1914. The world became divided
into two armed camps, with nations choosing to
side with the Allies, led by Britain, or the Central
Powers, led by Germany. Both armed camps were
prepared to fight to the finish and the warring
nations of Europe bled themselves dry as they
unleashed all the horrors of modern technological
warfare on each other. The pursuit of victory on
both sides seemed elusive. Meanwhile, there were
many people who viewed the war as insanity and
argued for a return to multilateralism through
the creation of a ‘league of nations’. In 1917, US
President Woodrow Wilson committed the United
States to joining the war on the side of the Allies
on condition that the ‘league of nations’ was
established at the end of the war. At the 1919 Peace
Conference its establishment was agreed. The
main aim of the League of Nations was to prevent
war; international peace would be guaranteed by
the principle of collective security.
The creation of the League of Nations based
on the principle of collective security was a sub-
stantial act of multilateral cooperation. The League
achieved some notable successes in the 1920s.
However, the League was doomed to failure due
to serious flaws in its legal framework and a lack
of political will on the part of the world leaders
at the time to fully support it. Finally, it was
blatant military aggression by powerful nations,
the very thing that the League was designed to
prevent, that sealed its fate. The League had no
answer for Japan’s annexation of Manchuria in
1931, Italy’s invasion of Abyssinia in 1935, and
finally Nazi Germany’s annexations of Austria
and Czechoslovakia by March 1939. By the time
O p t i o n 5: Wo rld o rd e r
Germany invaded Poland in September 1939, the
League was all but a distant memory, though as a
legal entity it did linger on until 1945.
President Roosevelt and the
creation of the United Nations
One would think that the resounding failure of
the League of Nations in the 1930s would have
killed off any further ambitious experiments in
multilateral cooperation to prevent war. However,
in the first dark years of the Second World War,
at a time when the Nazi war machine seemed
unstoppable as it overwhelmed all opposition in
Europe, another blueprint for a world organisation
was placed back on the agenda. In August 1941,
two experienced world leaders, both of whom
had been in office during the First World War,
met on a battleship off the coast of Canada and
drew up a document that was to become the first
step in the creation of a new world organisation.
The document, drafted by US President Franklin
Delano Roosevelt (affectionately known as ‘FDR’
by his contemporaries) and British Prime Minister
Winston Churchill, has since become known as
the Atlantic Charter. This was an eight-point plan
in which they pledged themselves:
s ‘after the final destruction of the Nazi tyranny
… to see a peace which will afford to all nations
collective security
the means of dwelling safely within their own
the principle based
boundaries, and which will afford assurance on the agreement of
that all the men in all the lands may live out a group of nations not
to attack one another
their lives in freedom from fear and want’
and to defend each
(6th point) other from attack from
s ‘to the abandonment of the use of force’ and the others; the idea is
that an attack on one
‘the establishment of a wider and permanent country is an attack
system of general security’ (8th point). on all
Cha pter 14: Option 5: Wor l d order 409

Figure 14.5 In August 1941, US President Roosevelt and Prime Minister
Churchill wrote the Atlantic Charter which became a blueprint for the
post-war world.
The Atlantic Charter was a visionary attempt
to avoid the mistakes of the past, to place on the
record early in the dark days of the Second World
War exactly what the Allies were fighting for, and
to bring about the just and lasting peace that had
eluded the peacemakers at Versailles in 1919.
However, FDR was also a realist. He built biparti-
san support within the American political system
for a new world organisation, and he and Churchill
worked hard with their wartime allies to secure
their support. The name ‘United Nations’ was first
used on 1 January 1942, when 26 nations pledged
their governments to fight for a common purpose
against the Axis powers. Detailed planning for the
new world organisation proceeded throughout
the following three years of the war. The United
Nations Charter was signed in San Francisco by
50 nations on 26 June 1945, and on 24 October
1945 the United Nations became a legal entity.
The second try at a grand scheme for multilateral
cooperation had begun.
The nature of conflict:
Interstate and intrastate
Throughout human history, conflict has been
a destabilising factor and a constant threat to
world order. Warfare has evolved over time due
410 C am b r id g e L e g a l S t u d ie s – HS C
to advances in technology combined with changed
approaches to strategy. Biological weapons (such
as disease-causing agents capable of triggering a
global pandemic) and nuclear weapons are two
types that threaten the existence of all human life
(in the first instance) and even the existence of all
life on the planet (in the second).
Interstate
C O NV E NTI O NA L WA R
Conventional war is the use of large, well-organised
military forces. During such a war, soldiers wear
clearly identified uniforms and there is a clear
command structure. The majority of wars in his-
tory have been conventional. Both World Wars
were conventional wars, as were the Korean War,
Vietnam War, Gulf War, Iran–Iraq War, the two Gulf
Wars and many more. From the beginning of the
20th century technological advances have made
each successive conventional war more and more
deadly. It was interstate conventional warfare that
the drafters of the UN Charter had in mind when
they wrote the first words of the preamble: ‘We
the peoples of the United Nations determined to
save succeeding generations from the scourge of
war, which twice in our lifetime has brought un-
told sorrow to mankind ...’.The provisions for the
use of armed force in Chapter VII of the Charter
were designed to deal with an aggressive attack
by one state against another: that is, conventional
interstate war.
Figure 14.6 A well-trained infantry soldier is the
backbone of the modern conventional army.
N U CLEAR WAR
Nuclear war involves the use of atomic or hydro-
gen bombs. Since 1945 the number of types of
nuclear weapons has increased. During the height
of the Cold War, the United States and the USSR
possessed 50 000 nuclear weapons. The use of just
a few hundred of these would have caused utter
devastation to the planet. The United States and
the USSR ended atmospheric testing of nuclear
weapons with the signing of the Limited Nuclear
Test Ban Treaty in 1963. According to Robert
McNamara, US Secretary of Defense from 1961 to
1968, luck has been the major factor preventing a
nuclear war in the past 60 years.
Currently, nuclear weapons are possessed by
the United States, Russia, Britain, France, China,
India, Pakistan and Israel. Both North Korea and
Iran are suspected of attempting to build nuclear
weapons in violation of the 1968 Nuclear Non-
Proliferation Treaty, which prohibits any nation-
state that does not already have nuclear weapons
from acquiring or building them. Another major
concern since the attacks of 11 September 2001
is that terrorist groups may succeed in acquiring
nuclear weapons.
With the end of the Cold War, tensions between
the USA and Russia decreased dramatically,
nuclear weapons treaties were negotiated and
Figure 14.7 Modern ballistic nuclear missile on display
during a military parade in Moscow, Russia.
massive cuts were made to the arsenals of both
powers. The 1990s saw a new era of cooperation
between these once determined enemies. How-
ever, the election of George W. Bush as US
President in 2000 saw a revival of American
interest in modernising their nuclear weapons
and developing new types, and a weakening of
the international mechanisms to control nuclear
weapons. Since 2008 and the election of Barack
Obama as President of the United States, there
O p t i o n 5: Wo rld o rd e r
has been a renewed commitment on the part of
that country to pursuing a multilateral approach
to nuclear disarmament and to strengthening the
Nuclear Non-Proliferation Treaty.
There are still 30 000 nuclear weapons in exis-
tence. A regional war using nuclear weapons
would be devastating not only for the region, but
for the world.
C YB ER-WA RFA RE
A cyber-attack can direct a carefully engineered
packet of data towards systems that control essen-
tial infrastructure, such as power stations, dams,
airports, hospitals, electricity grids or financial
systems. It can affect:
s internet nodes
s defence systems
s networks and computer systems
Figure 14.8 Countries need to develop defence
systems to guard against cyber-attack.
Cha pter 14: Option 5: Wor l d order 411

dictatorial
(of a government)
having unrestricted
authority or power
genocide
the deliberate
extermination of a
national, ethnic, racial
or religious group
412 C am b r id g e L e g a l S t u d ie s – HS C
s telecommunications infrastructure
s the stock market
s nuclear power plants
s critical infrastructure such as electricity grids
s water supply
s transportation systems
s health infrastructure.
One of the problems of a cyber-attack is that
it is hard to determine the origin of the attack. It
may take days after the beginning of an attack to
determine the origin of the attack, if that can be
done at all. A cyber-attack could be launched by
terrorists, criminals or states.
C OL D WAR
The Cold War is the name given to the state of
armed, uneasy peace between the United States
and the USSR (the superpowers) between 1947 and
1991. It involved rivalry in almost every political,
economic, military and strategic matter but did
not lead to direct war. Direct war was avoided
due to the threat of mutual annihilation if nuclear
weapons were used. This situation is referred to by
historians as the ‘balance of terror’.
The Cold War did not only involve the super-
powers. Each side called upon its allies to wage
war with the other superpower’s allies in order to
gain more influence and to counter the threat from
the other side. The Cold War also paralysed the UN
Security Council, and this dramatically reduced
the effectiveness of the UN in dealing with world
order issues.
Intrastate
The one thing that all of the following forms of war-
fare have in common is that the United Nations
Charter was not written with them in mind. The
UN Charter focused mainly on provisions to deal
with interstate conventional warfare, yet today
internal conflict now outstrips interstate conflict.
The UN has had to develop approaches to each
of these types of warfare and graft them into
the UN system. The notable example of this is
peacekeeping.
C I V I L WA R
A civil war is a conflict between two or more sides
within one country. Prominent examples are
the American Civil War (1861–65) and the war
in Lebanon in the 1980s. Both the Korean War
(1950–53) and the Vietnam War (1964–75) were
civil wars in that there were two opposing sides in
each country. These latter two wars also became
Cold War conflicts by drawing in the superpowers.
Some notable examples of places where civil wars
occurred since the 1990s are: Bosnia, Burundi,
Cambodia, Congo, Darfur, Georgia, Iraq, Liberia,
Rwanda, Sierra Leone, Sri Lanka, Somalia, Sudan,
Yemen and Kosovo.
G U ERRI L L A WA R
Guerrilla war involves the use of hit-and-run tactics
and the element of surprise. Guerrilla fighters
harass the enemy, hide, retreat and repeat this
pattern until the enemy’s army is worn down. Only
then will the guerrillas attack with some force.
Such tactics can bog down a greatly superior
military force. The Vietnam War (1954–75) is a
prime example of a much smaller force, the Viet-
cong, using guerrilla tactics against the techno-
logically superior US forces. Guerrilla war tactics
have been used by some armed groups opposing
US occupation in Iraq and Afghanistan.
WA R WA G ED B Y G O V E RNM ENTS
A G A I NST TH E I R O WN PEO P L E
Dictatorial regimes often engage in systematic
campaigns of genocide, mass murder, the elimi-
nation of classes of people, or state-sponsored
terror and death squads. These activities can
also be classified as war crimes, crimes against
humanity or mass atrocity crimes.
In his 1998 study of the spread of global
democracy, Pax Democratica, James Huntley found
it useful to describe this kind of warfare waged by
a regime against its own people as ‘democide’.
Huntley argued that ‘democide’ captures the
essence of this sort of activity, which is the killing
of a democracy. The term was coined in 1994 by
Figure 14.9 The policies pursued by President Figure 14.10 About one million people were slaughtered in the

O p t i o n 5: Wo rld o rd er
Robert Mugabe caused untold suffering for the Rwandan genocide in 1994.
people of Zimbabwe.

R. J. Rummel, an international law expert. It does end of the Cold War in the 1990s. During the Cold terrorism
acts of violence
not include military deaths in war or the deaths War, the superpowers exerted some restraining
against a population,
of non-combatants killed in attacks on military influence on rival groups in countries within their intended to
targets, because under international law, war political orbit. Following the collapse of the USSR’s cause terror and
thereby influence a
deaths are seen as legitimate killing. The term empire in Eastern Europe, however, there were
government
‘democide’ has not gained the same status as outbreaks of communal killing in Yugoslavia in the
communal killing
the term ‘genocide’, which is defined by the UN 1990s after it was split up into the states of Bosnia, violence and killing
Convention on the Prevention and Punishment of the Serbia and Croatia. Communal killing has also within communities

Crime of Genocide (1948), Article 2. occurred in the African states of Somalia (1993) crimes against
humanity
and Rwanda (1994). Since 2004 the international
crimes such as
T E RRORISM community has been concerned about this type murder, enslavement,
Terrorism is actions intended to cause death or of conflict in the Darfur region in Sudan. Many deportation from a
country, torture, rape
physical injury to civilians and to cause terror, of these activities may fit into the categories of and persecution that
with the intent of coercing a government or other crimes against humanity, war crimes or mass occur on a large and
systematic scale
body to meet certain demands. Terrorism has atrocity crimes. This type of internal warfare often
war crimes
became a greater global phenomenon since the spills into neighbouring nations, thus becoming a
crimes such as willful
11 September 2001 terrorist attacks against the serious issue of regional security and world order. killing, deportation
United States. Terrorist networks such as Al Qaeda, United Nations has found it very difficult to deal or ill-treatment of
civilians, taking
which was widely regarded as being responsible with communal killing.
of hostages and
for those attacks, have loosely connected cells extensive destruction
in many countries. In the 21st century, terrorist of property –
R EVI EW 1 4 . 2 committed in
groups display a common characteristic of think-
interstate and
ing globally, but acting locally. 1 Explain why an organisation of states was intrastate conflicts
seen as desirable after the First and Second and that are in
violation of the
C O M M UNAL KILL IN G World Wars. Geneva Conventions
Communal killing refers to violence and warfare 2 Identify potential and actual objections to
within communities, not necessarily perpetrated such an organisation.
by the government. This may be a result of ethnic 3 Distinguish between interstate and
rivalries, historical differences, religious dif fer- intrastate conflict, giving examples and
ences or territorial grievances. This type of vio- identifying potential causes for each type of
lence has been a feature of the world since the conflict.

Cha pter 14: Option 5: Wor l d order 413

 Access to resources as a in the Middle East is to secure resources for an

source of conflict economy dependent on a high amount of energy.

The US continues to be Israel’s staunchest ally
‘War is the continuation of policy by other means.’ partly because of its pivotal position in the Middle
– Carl von Clausewitz East, and has sought good relations with oil-rich

When nations do not get what they want by Arab states like Saudi Arabia and the Gulf states.

peaceful means, they are often tempted to revert One major factor in the first Gulf War (1990–91)

to war. War has been a constant feature of the was the American fear that not only would Iraq

human race throughout history. However, for most succeed in its annexation of oil-rich Kuwait, but

of human history war was also seen as a legitimate also that it stood poised to invade Saudi Arabia.

and in many cases a desirable way of sorting out The US viewed the prospect of an enlarged Iraqi

issues between nations. Technological advances in superstate with control over the vast majority of

the weapons of warfare in the 20th century led to the world’s oil supplies as an unacceptable situ-

the belief that war was now too deadly to allow to ation. Similarly, a major factor in the US invasion

happen randomly or without just cause. The desire of Iraq in 2003 was Iraq’s oil. Ridding Iraq of its

to prevent war was the main motivation for the hated leader, Saddam Hussein, and installing a

creation of the United Nations, and the UN Charter democratic pro-American government in Iraq

made war illegal except in two cases: would be in American geopolitical interest.

s self-defence (Article 51) Other major powers are also very concerned to

s UN Security Council authorisation (Chapter VII). secure future access to essential resources. China,

While war has continued to wreak destruction with the fastest growing economy in the world,

around the world since the signing of the UN is making great efforts to secure gas, coal, iron

Charter in 1945, there has been one significant ore and oil contracts as well as food supplies in

change. Nations that go to war are now far more Australia and around the world.

concerned to give a legal justification of their It is highly likely that competition for increas-

actions. ingly scarce resources will become a major source

Despite this, the legal reasons that may be of conflict in the future. For example, many geo-

given by various countries for going to war are scientists and petroleum industry experts believe

quite often merely a front for the real reasons. that the production of fossil fuels will reach its

For instance, in the First World War, the warring peak in the not-too-distant future, and then will

nations claimed that they were fighting for their decline. This is a major concern since so many of

own survival, in defence of small nations, and to the products and so much of the economic acti-

preserve democracy. However, the secret treaties vities in developed economies are dependent on

signed with their alliance partners during the fossil fuels. Some experts argue that before the

war indicated that they were fighting for more world reaches crisis point with dwindling fossil

base motives such as territory and wealth. More fuels, an ‘Oil Depletion Protocol’ needs to be nego-

recently, the stated public reason for United States’ tiated, in order to have a planned and equitable

invasion of Iraq in 2003 – to eliminate Saddam approach to cutting back on the use of fossil fuels.

Hussein’s weapons of mass destruction – has been

l e ga l l i nk s

widely criticised as a sham, concealing an agenda

hegemony for securing American hegemony. For further information on the
dominance of one Oil Depletion Protocol, see
nation over others
Access to resources www.oildepletionprotocol.org/

One reason why the United States has so many getinformed/oildepletion

military bases around the world and particularly

414 C am b r id g e L e g a l S t u d ie s – HS C
 Food scarcity is likely to be a cause of future
conflict. Lack of sufficient food for the people of the
world today has a number of causes, including over-
population, climate fluctuations and drought, soil
degradation from pesticides and inorganic fertili-
sers, redirection of food crops to biofuels and live-
stock production. Water shortages caused by poor
agricultural practices combined with drought are
another source of conflict. The upheavals caused by
climate change will also be catastrophic, creating
millions of refugees in the Asia-Pacific region alone
and a rise in tensions between states. The move-
ment of large numbers of displaced people is almost
certain to result in a scarcity of resources and
disputes about which countries are to bear res-
ponsiblity for the refugees’ survival and health.
Other causes of war
While competition over resources is a major cause
of conflict, there are many others as well, such as:
Responses to wo rld orde r
The role of the nation-
state and state
sovereignty
As explained earlier in the chapter, the states of
the world are like the building blocks of world
order. States have sovereignty, which is the right
to make all the laws within the territories they
govern. State sovereignty also gives a nation-state
the right to make treaties with other states. The
treaties are the primary source of international
law. However, states can also impede the influence
of international law to a certain degree, by using
their sovereignty as a barrier to unwanted input
from the international community regarding their
conduct.
The architects of the United Nations opted to
use the current system of international law, based
on treaties made between sovereign states. As a
result, individual states still have significant legal
s Ideological disputes – The Cold War was in part
a competition of ideas, between communism
versus capitalism.
s Religion – While religious conflict has been a
recurring theme in wars throughout history, the
rise of extreme fundamentalism in a number of
countries has accompanied a backlash against
the perceived decadence of Western consumer
culture.
s Global or regional hegemony – A nation’s desire
O p t i o n 5: Wo rld o rd er
for dominance in an area or in the world often
leads to conflict as other nations resist what
may be seen as imperialism or the thwarting of
their own ambitions.
s Ethnic, religious or racial intolerance – The wars
that occurred when the country of Yugoslavia
split apart in the 1990s were fought on ethnic
and religious lines, as have been many contem-
porary conflicts in Africa.
power. States can decide to cooperate with the
international community on matters in which
they have some interest, and they can also decide
to reject international treaties that they believe
conflict with their national interest. The principle
of state sovereignty was enshrined in Article 2.7 of
the UN Charter:
Nothing contained in the present Charter shall
authorize the United Nations to intervene in
matters which are essentially within the domestic
jurisdiction of any state or shall require the
Members to submit such matters to settlement
under the present Charter; but this principle shall
not prejudice the application of enforcement
measures under Chapter VII.
The last phrase of Article 2.7 (underlined
above) allows the UN Security Council (UNSC) to
use its Chapter VII powers to overrule a nation-
state’s sovereign right to deal with its own affairs
Cha pter 14: Option 5: Wor l d order 415

humanitarian
intervention
the doctrine justifying
military intervention in
a state in order to stop
serious human suffering
and/or human rights
violations
Permanent Five
the permanent five
members of the UN
Security Council, namely
France, the United
Kingdom, China, Russia
and the United States
416 C am b r id g e L e g a l S t u d ie s – HS C
without UN intervention. This, combined with the
placement of human rights as the second priority
in the preamble, has provided a thin edge of a
legal wedge which in theory allows the UNSC to
intervene in a nation-state if there are widespread
human rights violations or mass atrocity crimes.
However, the condition that must be met is that
there must be a ‘threat to peace’, a ‘breach of the
peace’, or an ‘act of aggression’ to allow the UNSC
to take action to ‘restore international peace and
security’ according to Article 39. In short, this
means that the effects of human rights violations
must in some way spill across the border of the
offending nation-state. For instance, mass killings
within a nation-state may cause an exodus of
refugees into neighbouring states, which can then
be viewed as a ‘threat to peace’ requiring UNSC-
sanctioned intervention. This type of action is
known as humanitarian intervention.
The problems with UNSC-sanctioned inter ven-
tion in a nation-state to stop mass atrocity crimes
are:
s It is very difficult to get UNSC agreement,
especially when the interests of one of the
Permanent Five is threatened as is the case
Figure 14.11 UN peacekeepers protect the
civilian population of Sarajevo during a siege
in 1993.
with China’s blocking of effective UN action in
Darfur, due to its interest in obtaining oil from
Sudan.
s The Permanent Five members of the UNSC are
often unwilling to undertake the intervention
themselves, yet usually they are the only ones
that have the military muscle to mount an
effective humanitarian intervention.
s It is also hard to get other member nations to
place their armed forces in harm’s way to pro-
tect the human rights of some distant nation.
Popular opinion back home may have little or
no enthusiasm for placing their own troops in
danger in some far-off land.
s States have a justified fear of failure, such as
occurred with the US-led and UNSC-sanctioned
humanitarian intervention in Somalia in 1993.
The UN and US missions were both ill-defined
and suffered from internal bickering. The UN
force lacked sufficient resources, as well as
political and financial support, and public
opinion in the United States quickly turned
against the intervention when 18 American
soldiers were killed in a brutal firefight with
Somali gunmen.
In short, although the UN Charter can be used
to justify humanitarian intervention, it is difficult
to motivate military intervention where member
nations’ own interests are not obviously at stake.
The more realistic option is the placement of
peacekeeping forces once the fighting has stopped.
This may or may not require the use of Chapter VII
powers by the UNSC.
While state sovereignty is the foundation upon
which our global system is based, its exercise can
impede the resolution of world order issues.
R EVI EW 1 4 . 3
1 Explain the relationship between access to
resources and world order. Provide actual
or potential examples of conflicts.
2 Explain the concept of humanitarian
intervention and identify the conditions
required for the UN Security Council to
authorise it.
The United Nations
In June 1945, the leaders of 50 nations came
together in San Francisco, along with represen-
tatives from many non-government organisations
(NGOs). The meeting took place following the end
of the Second World War and was held with the
determination that the world would never again
experience such widespread destruction. These
leaders emerged at the end of the conference at
San Francisco with the structure of a new world
organisation called the United Nations.
The Charter of the United Nations begins with
the following words:
We the peoples of the United Nations
determined:
– to save succeeding generations from the
scourge of war, which twice in our lifetime has
brought untold sorrow to mankind, and
– to reaffirm faith in fundamental human rights,
in the dignity and worth of the human person,
in the equal rights of men and women and of
nations large and small,
– to establish conditions under which justice and
respect for the obligations arising from treaties
and other sources of international law can be
maintained, and
– to promote social progress and better standards
of life in larger freedom ...
The postwar record of the
United Nations
In its history the United Nations has achieved the
following aims:
s promoted the idea that everyone has human
rights regardless of where they live
s led numerous peacekeeping operations
s served as the hub of a massive body of inter-
national law
s enabled dialogue to continue between hostile
states
s kept all nations-states as members, even those
that have been at odds with the international
community
s acted as a court of world opinion on issues of
great importance.
O p t i o n 5: Wo rld o rd er
Figure 14.12 UN headquarters, New York
When considering the small amount of fund-
ing that the United Nations operates on, its
achievements far outweigh the meagre monetary
budget that it operates on. The total UN system
runs on less than $15 billion a year. Leaving out
peacekeepers, the United Nations employs 98 000
people, which is about one-tenth of all the people
employed by McDonalds to sell hamburgers world-
wide. In addition to the core UN staff, there about
88 000 police, military and civilian peacekeepers
deployed in about 17 UN peacekeeping missions
around the world. The total peacekeeping budget
is about US$7 billion, which is about what the
US government was spending in Iraq every three
weeks for the duration of the war there.
The UN has been involved in numerous
missions since the 1990s, and although there
were some dramatic failures such as Rwanda,
Somalia and Bosnia, there have also been many
successes. Furthermore, the great drop in the
number of conflict deaths and politically motivated
mass murders since the end of the Cold War has
been attributed to the UN’s activities in conflict
prevention and peace operations.
Problems with the UN have come from a variety
of sources, including its inflexible structure under
Cha pter 14: Option 5: Wor l d order 417
 the UN Charter, poor leadership (though not since
the end of the Cold War), and the dominance of the
Permanent Five in the UNSC. However, we must
remember that the UN is a collection of member
states, and individual member states may act in
ways that are counterproductive or unhelpful.
In 2009 the world spent 1.4 trillion dollars on
new weapons and armaments while the total UN
budget was 15 billion dollars – or around 1/900
of the military spending. If that funding were
reversed it is likely that the UN could achieve far
greater outcomes.
The UN Charter
The UN Charter is similar to a constitution, out-
lining the rights and obligations of the members
of the United Nations. The purposes of the United
Nations, as stated in Article 1, are:
s to maintain international peace and security
s to develop friendly relations between states
s to cooperate in solving international problems
of an economic, social, cultural and humani-
tarian nature
s to promote respect for human rights.
Article 2 states that the United Nations and its
members should act in accordance with the follow-
ing principles:
s the full sovereignty and equality of all of its
members
s the peaceful settlement of international
disputes
s refraining from the threat or use of force against
any nation-state
s non-intervention in matters within the domes-
tic jurisdiction of any nation-state.
The Charter can only be amended by a two-
thirds vote in the General Assembly, including the
five permanent members of the Security Council.
A major criticism of the UN Charter is that it is very
hard to change it. Not only is achieving a two-thirds
majority of the General Assembly an enormous
task, it only takes one permanent member of the
Security Council to use its veto for the proposed
change to the Charter to be rejected.
418 C am b r id g e L e g a l S t u d ie s – HS C
The structure of the
United Nations
The United Nations headquarters was built in New
York during 1948–49 on land donated by the wealthy
American John D. Rockefeller, and officially opened
in 1951. The United Nations also has other major
agencies situated in Vienna, Geneva and The Hague.
Membership of the United Nations is open to
all states of the world that profess themselves
to be ‘peace-loving’ and are willing to accept
the obligations of the UN Charter. In reality, no
stringent conditions have to be met for a nation-
state to join the United Nations. By 2010 there were
192 member states.
The United Nations has five major organs: the
General Assembly, Security Council, Secretariat,
Economic and Social Council, and International
Court of Justice. A sixth body, the Trusteeship
Council, was also established in 1945 to supervise
11 Trust Territories and to help them prepare for
self-government and independence. By 1994, all of
the Trust Territories had attained self-government
or independence. The Trusteeship suspended
operation, its work completed, and agreed to meet
‘as and when occasion may require’.
In addition to the myriad day-to-day activities
of the UN and its agencies to promote world
order, various other organisations participate in
cooperative initiatives with the UN. These include
NGOs as well as regional organisations (such as
the European Union), military alliances (such as
the North Atlantic Treaty Organization), and many
other world organisations that are sympathetic to
the aims of the UN Charter. The United Nations
also provides leadership in dealing with issues that
affect global order in the following ways:
s commissioning research and reports
s convening conferences
s initiating new treaties
s promoting arms control
s promoting human rights
s carrying out peacekeeping operations
s providing humanitarian and development
assistance.
 RES E A RCH 14.1
1 Find out how many states there are in the
world, whether all states are members of the
United Nations, and why or why not.
2 Use the UN website (www.un.org) to
complete the following tasks:
a Construct a table about the six major
organs of the United Nations. Draw up
the table with columns titled ‘origins’,
‘role’, ‘functions’ and ‘history’. Complete
the table using information from the UN
site.
b Examine the membership and system
of voting in the UN General Assembly.
Explain how the composition of
membership and the system of voting
in the General Assembly can be both
democratic and undemocratic. (Hint:
What are the respective populations
of China and East Timor and how many
votes does each have in the General
Assembly? Also, how are the individual
representatives of the various countries in
the General Assembly chosen?)
The Security Council
The Security Council has the main responsibility
for maintaining international peace and security.
There are 15 members. Of these, five are per-
manent members, consisting of the United States,
France, the United Kingdom, China and Russia.
The five permanent members are often referred
to as the Permanent Five, ‘PERM 5’or ‘P5’. The
ten non-permanent members are elected by the
General Assembly to two-year terms. For the
Security Council to take action on a matter, there
must be nine votes in favour of it, including all five
permanent members. If one of the five permanent
members disagrees with a proposal, it can halt
any action by exercising its power of veto. The veto
power is one of the most controversial features of
the Security Council. Not only does it enable any of
the permanent members to stop any substantive
action contemplated by the UNSC from being
taken, it can also be used to block the appointment
of someone to the position of Secretary-General
and to block any changes to the UN Charter, there-
by hampering any substantial reform.
If a permanent member does not agree with a
decision but does not want to exercise its power of
veto, it can abstain from a vote.
The Security Council can order ceasefire direc-
O p t i o n 5: Wo rld o rd er
tives, dispatch military observers of peacekeepers,
and attempt to create calm conditions to promote
peaceful settlements. Under Chapter VII, the
Security Council may use enforcement measures
such as economic sanctions, arms embargoes or
collective military action.
During the Cold War the UNSC was paralysed
by the inability of its permanent members to co-
operate to deal with regional and global issues
that threatened world order. This all changed in
1990 with Iraq’s invasion of Kuwait. The UNSC,
for only the second time in 43 years, used its
Chapter VII powers. It authorised a US-led military
force against Iraq, ushering in a new era of global
cooperation.
Though the UNSC has worked together much
better since the 1990s, there have been many
calls for reform of its organisation, particularly
with respect to the permanent members, which
reflect the power realities of 1945 rather than of
today. For instance, it has been suggested that
India, Brazil, Germany and Japan would be front
runners for permanent member status. Also, there
have been suggestions that there should be one
permanent member from Africa and one from the
Arab states. However, the current Permanent Five
are unlikely to agree to any of these proposals and
it will only take the use of the veto power by one of
them to block any such reform.
The non-permanent members of the Security
Council are selected according to a geographical
formula. There must be:
s three African
s two Asian
Cha pter 14: Option 5: Wor l d order 419
 R E VIE W 14.4
1 Examine whether there
are any membership
conditions for joining the
United Nations.
2 Identify the main aims
of the United Nations as
expressed in its Charter.
3 Briefly outline the roles
and functions of the
major UN organs.
4 Outline the structure
of the United Nations
Security Council and
evaluate the Security
Council’s effectiveness in
meeting its purposes.
peacekeeping
the activity of creating
conditions for
sustainable peace in
countries affected by
conflict, through the
use of force, quite often
provided by a number
of countries and
consisting of soldiers,
civilian police and
civilian personnel
420 C am b r id g e L e g a l S t u d ie s – HS C
s one Eastern European
s two Latin American
s two from Western Europe.
After taking office at the end of 2007,
the former Rudd government vigorously
campaigned for Australia to serve a term
as a non-permanent member of the
UNSC.
Peacekeeping
The term ‘peacekeeping’ is found no-
where in the UN Charter. However, the
founders of the United Nations had a
plan for enforcement action. This was
to be an improvement on the League
of Nations, which had no provision for
a standing military force. One of the
perceived weaknesses of the League of
Nations was the lack of concrete provisions for a
standing military force to deal with blatant acts
of aggression. The League had many successful
peacekeeping operations in the 1920s using mili-
tary forces put together on an ad hoc basis, but
in the 1930s it crumbled in the face of blatant
aggression by two major powers: Italy and Japan.
The framers of the UN Charter were conscious of
this weakness so they sought to give the Security
Council the legal right to use whatever force was
necessary to maintain or restore peace. This
power (sometimes called ‘peace enforcement’,
though not in the UN Charter) was incorporated
into Chapter VII of the UN Charter, which provided
for the creation of a permanent military staff
committee consisting of the chiefs of staff of the
five permanent members of the Security Council
– all experienced military leaders. Their job was
to coordinate a permanent UN armed force whose
role was to respond to aggression and the illegal
use of force. Security Council members were to
have forces on standby to serve in the UN force.
The onset of the Cold War in 1947 halted the
implementation of the original UN plan for a
military staff committee and the concept of peace
enforcement. This was because peace enforce-
ment relied on the cooperation of the Permanent
Five. The issue came to a head in the 1956 Suez
Crisis, when Britain, France and Israel invaded
Egypt. The United States, with Canada, sponsored
a Security Council resolution calling for a cease-
fire, which was promptly vetoed by Britain and
France. The United Nations feared that if the
United States and USSR were also to become
involved in the Suez Crisis it could lead to a nuclear
war. So the then Secretary-General of the United
Nations, Dag Hammarskjöld, moved the debate to
the General Assembly (over the objections of
Britain and France) and accepted a plan from
Canada’s foreign minister at that time, Lester B.
Pearson, for the establishment of a peacekeeping
force – the United Nations Emergency Force – to
supervise a ceasefire. Thus, a watered-down ver-
sion of peace enforcement called ‘peacekeeping’
was born.
The main difference from peace enforcement
was that peacekeeping could operate without the
agreement of the five permanent members of the
Security Council. The whole UN peacekeeping
apparatus has operated out of the Secretary-
General’s department since 1956.
l eg al l i nks
For further information on
peacekeeping go to the United
Nations Peacekeeping website:
www.un.org/en/peacekeeping/
The future
PEA C E B U I L DI NG C O M M I SSI O N
Realising that peacekeeping operations alone are
not enough to deal with regional situations that
threaten peace and security, the UN General
Assembly and the Security Council together took
the stop of establishing a Peace Building Com-
mission (PBC) at the 2005 World Summit, a high-
level meeting of heads of governments coinciding
with the 60th session of the UN General Assembly.
The main aim of the PBC is to extend the period of

Figure 14.13 Australia provides a military force to the UN peacekeeping mission in East Timor. Here
an Australian serviceman plays with East Timorese orphans.
assistance provided to countries emerging from
recent conflict, to help prevent them from slipping
back into violence. The PBC acts as an advisory
body to marshal support and resources for re-
construction, institution-building and sustainable
development.
Peacebuilding is a longer process where success
may not be seen for years, perhaps decades. The
hope is that the new PBC will ensure longer-term
attention by the global community to the tasks of
post-conflict recovery.
l e ga l l i nk s
For further information on the
Peacebuilding Commission see
www.un.org/peace/peacebuilding/
mandate.shtml
P ROPOSAL FOR T H E UN IT ED N AT ION S
E M ERGENCY PE AC E S ER VIC E ( UN EPS )
There are a number of peace and security NGOs
that are currently lobbying for the establishment
of a permanent group called a ‘United Nations
O p t i o n 5: Wo rld o rd er
Peace Service’ (UNEPS), which can intervene
quickly in a crisis. The World Federation of UN
Associations (WFUNA) is just one of the NGOs
pushing for the creation of a UNEPS. The Centre
for Peace and Conflict Studies (CPACS) at The
University of Sydney is also promoting the idea. If
established, a UNEPS would respond to inter-
national crises within 48–72 hours, rather than
the months it takes for peacekeeping services.
Military services, negotiators, and specialists
would combine to rebuild infrastructure, especi-
ally in developing nations with pressing issues,
such as those in Darfur, Sudan. All of these jobs
would be full-time jobs and the faster reaction
times could lead to a reduction in deaths in
international crises.
l eg a l l i nk s
For further information on
UNEPS see the WFUNA article at
www.wfuna.org/site/c.rvIYIcN1J
wE/b.3783545/k.9D7C/UN_
Connections__Issue_No_77.htm
Cha pter 14: Option 5: Wor l d order 421
 International instruments
Treaties and customary law are the main sources
of international law. Treaties are also known as
conventions, charters, covenants and statutes and
all of these terms refer to a binding agreement
voluntarily entered into by states. The agreement,
or treaty, places an obligation on the parties to
act in a particular way or adopt a certain type
of behaviour as the norm. Usually treaties are
entered into because the states perceive that they
will mutually benefit from the treaty.
There are two types of treaty:
s bilateral treaties – treaties between two states
(for example the Free Trade Agreement between
the United States and Australia, signed in 2004)
s multilateral treaties – treaties between a
number of states.
Treaties between states have existed for thou-
sands of years, since the beginning of civilisation.
The majority of these treaties have been bilateral.
The number of multilateral treaties has increased
over the past few hundred years, escalating
sharply since the end of the Second World War.
Multilateral treaties now number in the tens of
thousands and are an indispensable part of the
current world order.
Since 1945 all states have been obliged to
lodge their treaties with the United Nations. This
requirement is stated in Article 102 of the UN
Charter, as follows:
Every treaty and every international agreement
entered into by any Member of the United Nations
after the present Charter comes into force shall as
soon as possible be registered with the Secretariat
and published by it.
The requirement has its origins in former US
President Woodrow Wilson’s ‘Fourteen Points’
speech of January 1919. The first of Wilson’s
Fourteen Points declared that treaties should be
arrived at openly. This declaration was made in
response to the belief that a cause of the First
World War was the existence in 1914 of secret
treaties between governments that had not been
approved by their citizens.
The most significant treaties in terms of their
contribution to world order would undoubtedly
be the UN Charter, the Universal Declaration of
Human Rights (UDHR), the Geneva Conventions
and the Nuclear Non-Proliferation Treaty (NPT).
These treaties have to a large extent set the
framework for international law.

Table 14.1 Significant treaties signed since 1945

s United Nations Charter (1945)

s General Agreement on Tariffs and Trade (1947) updated in 1994, creating the World Trade
Organization
s United Nations Convention on the Prevention and Punishment of the Crime of Genocide (1948)
s Universal Declaration of Human Rights (1948)
s Geneva Conventions (1949)
s United Nations Convention Relating to the Status of Refugees (1951) and Protocol (1967)
s International Covenant on Civil and Political Rights (ICCPR) and International Covenant on
Economic, Social and Cultural Rights (ICESCR) (1966)
s Nuclear Non-Proliferation Treaty (1968)
s United Nations Convention on the Law of the Sea (1982)
s United Nations Convention Against Torture and Other Cruel, Inhuman and
Degrading Treatment (1984)
s Comprehensive Test Ban Treaty (1996)
s Rome Statute of the International Criminal Court (1998)

422 C am b r id g e L e g a l S t u d ie s – HS C
Jus cogens Courts and tribunals
States do not need to have agreed to or signed a International Court of Justice
treaty for an obligation to be considered binding The International Court of Justice (ICJ) deals with
on them by the international community. The disputes between states. The ICJ was established
principle of jus cogens refers to a legal norm that in 1946 as an organ of the United Nations. The jus cogens
is accepted by the international community and court is based in the Netherlands and has 15 judges a Latin term meaning
‘compelling law’
is therefore binding on everyone regardless of elected by the United Nations. The questions also called a
whether a particular leader or nation accepts it. before the court are usually decided by a majority ‘peremptory norm’:
a norm of customary
For example, it is now accepted as a norm that of judges, and decisions are arrived at by applying
international law

O p t i o n 5: Wo rld o rd er
slavery, piracy and torture are prohibited under international conventions and international cus- that is indisputably
international law. tomary law. The ICJ may refer to academic writings accepted by the
international
and previous decisions to interpret the law,
community and is
although it is not bound by previous decisions. If therefore binding on
REVIEW 14.5 no clear-cut conventions apply to a case the court everyone regardless
of whether a
1 Distinguish between the enforcement may make decisions based on the concept of particular leader or
powers given to the UN Security Council ‘justice and fairness’, as long as the two parties nation accepts it
by Chapter VII of the UN Charter and agree to this basis of decision-making.
peacekeeping powers. The ICJ hears two types of case:
2 Distinguish between treaty law and jus s contentious issues between states – the court
cogens. produces binding rulings between states that
c as e s p ac e

Military and Paramilitary Activities in and against Nicaragua (Nicragua v

United States of America), Merits, 1986 ICJ Rep 14 (June 27, 1986)

In this case, the ICJ ruled that the United

States had to cease unlawful activities
against Nicaragua, which included mining
Nicaraguan harbours and supporting
guerrillas in their rebellion against the
Nicaraguan government. The majority of
the judges reasoned that the United States’
actions against Nicaragua were in breach
of the obligation not to use force against
another nation-state, found in customary
international law. The court ordered that the
United States pay reparations to Nicaragua.
However, the United States ignored the
decision, refused to pay Nicaragua and Figure 14.14 The ICJ resides in the historic Peace Palace
terminated its acceptance of ICJ jurisdiction. in the city of The Hague in the Netherlands.

Cha pter 14: Option 5: Wor l d order 423

 have agreed to be bound by the rulings of
the court.
s advisory opinions – the court provides
reasoned, but non-binding, rulings on questions
of international law submitted by the General
Assembly of the United Nations.
There are numerous treaties that confer juris-
diction on the ICJ. In theory, the court’s decisions
are binding, final and without appeal, except in
cases where it gives an advisory opinion. In prac-
tice, however, the ICJ’s effectiveness has often
been limited by the losing party’s unwillingness to
abide by the court’s ruling, as well as the reluctance
of the Security Council to enforce the rulings.
International Criminal Court
The Rome Statute of the International Criminal
Court is a treaty signed in 1998 by 121 states,
including Australia, which pledged the parties to
the establishment of a permanent court in which
individuals can be tried for mass atrocity crimes
such as war crimes and genocide. In July 2002,
the Rome Statute came into effect when it was
ratified by more than 66 states. The ICC was
established at The Hague, although its statute
allows it to hear cases anywhere in the world if
it decides to. The ICC was given jurisdiction over
acts of genocide, war crimes and crimes against
humanity committed since 2002 – the three most
serious types of international crime and the cause
of a great deal of regional disorder.
The ICC is a legal entity that was created inde-
pendently of the United Nations by a separate
treaty between states. It was not a product of the
Security Council acting under the UN Charter, as
was the case with the tribunals set up to deal with
war crimes in Rwanda and the former Yugoslavia;
unlike the ad hoc international tribunals, the
Security Council cannot veto referrals to the ICC.
Despite this autonomy, the ICC works closely
with the United Nations. By 2010, 110 states were
members of the ICC, having both signed and
ratified the Rome Statute, while 41 states had
signed but not ratified the statute. Cases can be
referred to the ICC by either a party to the statute,
the Security Council, or the ICC Prosecutor.
424 C am b r id g e L e g a l S t u d ie s – HS C
R ESEAR CH 1 4 . 2
Research the attitude of the United States to
the International Criminal Court during the
two terms of George W. Bush (2001–08). Then
use the information you find to complete the
tasks below:
1 Outline the US opposition to the ICC.
2 Outline the following measures that the
United States has taken against the ICC:
a American Service Members’ Protection
Act (Hague Invasion Act)
b the threat to use the veto in the Security
Council
c Article 98 agreements.
Other international tribunals
Following is a discussion of some other major
international courts and tribunals. The first two
of these were ad hoc tribunals set up by the UN
Security Council in the 1990s, to deal with the
human rights abuses that had occurred in the
Balkans and Africa, respectively.
The International Criminal Tribunal for the
Former Yugoslavia (ICTY) was established by a UN
Security Council resolution in 1993. It has juris-
diction over breaches of the Geneva Conventions
and international customary law committed in the
territory of the former Yugoslavia since 1991. The
most high-profile case is that of former Serbian
leader Slobodan Milosevic, who in 2001 was arres-
ted for war crimes and crimes against humanity in
Kosovo and was placed on trial in 2002. Milosevic
died in 2006 before the completion of his trial.
The International Criminal Tribunal for Rwanda
was established in 1994 and is based on the model
of the ICTY. It has jurisdiction over acts of geno-
cide committed by the Rwandan government and
armed forces in 1994. The government, dominated
by the majority Hutu ethnic group, engaged in
mass atrocity crimes during 1994 against the
minority Tutsi people, following the assassination
of President Juvénal Habyarimana.
The European Court of Human Rights was
established by the Council of Europe in 1998 to
replace the European Commission on Human

Figure 14.15 Former Serbian leader Slobodan
Milosevic on trial for war crimes and crimes
against humanity in Kosovo.
Rights. It is based in Strasbourg, France, and has
jurisdiction over issues of human rights in the EU.
It is becoming an increasingly important court
and is taken very seriously by both the Council of
Europe and the European Union. Between 2003
and 2004 the court dealt with over 7000 cases.
Any member state of the EU that does not comply
with the ruling of the European Court of Human
Rights could face the ultimate sanction of expulsion
from the Council of Europe. Also, it is a provision
of all EU trade and investment agreements that
they must respect human rights. This means that
a ruling of the court on human rights violations
in one country may jeopardise trade agreements
with another country. The court thus has a role
in promoting the rule of law in countries where it
lacks jurisdiction, and also of contributing to the
promotion of world order generally.
As states intensify their competition for access
to natural resources, tribunals with jurisdiction
over the management of these resources, such as
the International Tribunal for the Law of the Sea,
are likely to grow in importance. This tribunal,
established under the UN Convention of the Law of
the Sea, can look at any issue relating to the sea,
such as mining the seabed or overfishing of certain
types of fish. State parties are obliged to use either
this tribunal or the ICJ to settle peacefully any sea-
related disputes.
R EVI EW 1 4 . 6
1 Describe what the International Criminal
Tribunal for the Former Yugoslavia and the
International Criminal Tribunal for Rwanda
O p t i o n 5: Wo rld o rd er
have in common.
2 Evaluate the growing importance of the
European Court of Human Rights.
Intergovernmental
organisations
Regional intergovernmental organisations (IGOs) intergovernmental
organisation (IGO)
are increasingly making a significant contribution
an organised group
to world order. Each of these organisations has of two or more
been set up for a particular purpose. They vary states, set up to
pursue mutual
enormously in their economic power, effectiveness,
interests in one or
level of cooperation and integration, plans for the more areas
future and impact on the rest of the world. Profiled
below are two of the larger regional organisations:
the European Union and NATO. The following are a
few other notable examples:
s African Union – The AU is modelling itself on
the EU and is receiving assistance from the EU
to set up its structures. The AU currently has
peacekeepers serving in Darfur under a UN
mandate.
s Commonwealth – This consists of former
members of the British Empire. In the past the
Commonwealth made a strong stand against
apartheid in South Africa. More recently, the
Commonwealth has taken a strong stand
against the dictatorship that has existed in Fiji
since 2006. In 2009, Fiji was suspended from
the Commonwealth for refusing to agree to hold
elections in 2010.
s ASEAN (Association of Southeast Asian Nations)
– This organisation has the most influence in
trying to encourage the military dictatorship in
Myanmar/Burma to stop its systematic human
rights violations.
Cha pter 14: Option 5: Wor l d order 425

supranational
an organisation in
which decisions
are made by the
appointed or elected
representatives of
the member states;
because decisions
are made by majority
vote, it is possible for
a member state to be
forced to do something
against its own will
European Union
The European Union (EU) stands out as the most
successful and influential regional intergovern-
mental organisation because it has created
unprecedented wealth and security for its mem-
bers and has revitalised European influence in the
world. Furthermore, it has made the prospect of
war between any of its 27 members unthinkable.
A large number of states seek admission to the EU
and it is emulated by other regional organisations,
including the African Union. It is a supranational
organisation.
A European federation of democratic states that
would forever end the scourge of war in Europe
was a dream of visionaries after the First World
War. Despite their hopes, it took another world war
and the political commitment of a few individuals,
especially Jean Monnet (credited as the ‘father’
of the EU), to bring the European federation into
existence.
The EU officially began in 1992 after a long
and gradual development from its origin in 1950,
when it was named the European Coal and Steel
Community and consisted of just six countries:
Belgium, Germany, France, Italy, Luxembourg and
the Netherlands. Under the Coal and Steel Treaty,
the member states agreed to common manage-
ment of those industries, so that none could make
weapons of war to turn against any of the others. As
it evolved, economic and political goals continued
to coexist. In 1957, the Treaty of Rome was signed,
forming the European Economic Community
(EEC), which had the aim of allowing free trade
across borders. The 1992 Treaty on European Union,
signed at Maastricht, the Netherlands, set rules for
the future common currency (the euro) as well as
common foreign and security policy and closer
cooperation in justice and legal procedure.
As of March 2010, there were 27 member
states with three more awaiting approval. The EU
has strict membership criteria, adheres to the UN
Charter regarding the use of force, and requires
that its members are democracies that uphold
the rule of law and respect human rights. It has a
Charter of Fundamental Rights and a Fundamental
Rights Agency whose role is to advise policy-

Finland
makers and raise public awareness. The member
states work together to develop common solutions
in the areas of immigration and asylum, to
Sweden Estonia manage the application process for people coming
Latvia to Europe to escape war, persecution, natural dis-
Lithuania asters or poverty. The states also cooperate to

Ireland
fight organised crime including drug and people
Netherlands
United trafficking, money laundering, and terrorism,
Kingdom Poland
Germany through both legislation and police powers.
Belgium
Czech Europol, the European Law Enforcement Agency,
Luxembourg Republic
Slovakia
is responsible for coordinating the various nations’
Austria Hungary
France Romania police efforts in this area.
Slovenia
Italy The EU has become a powerful role model
Bulgaria to other states and regional organisations, and
Portugal exercises a great deal of persuasive power by
Spain
Greece holding out the promise of membership, by using
development assistance (of which it provides 50
per cent of the world’s aid), and by developing
strategies for conflict management for use around
Figure 14.16 The membership of the European Union as at May 2010 the world.

426 C am b r id g e L e g a l S t u d ie s – HS C
North Atlantic Treaty
Organization
The North Atlantic Treaty Organization (NATO)
was established in 1949 to counter the threat from
the USSR-led communist bloc of Eastern Europe. It
is an alliance of 28 countries from North America
and Europe, with the mission of safeguarding
its members through political but also military
means. It provides a forum for European countries,
Canada and the United States to discuss and
address security issues of common concern.
NATO military forces have helped to end con-
flicts in Kosovo and Bosnia. The organisation
provided transport and training for the African
Union’s peacekeeping mission in Darfur, Sudan.
Currently, NATO has forces deployed in Afghani-
stan with the aim of supporting the fledgling
democratic government. NATO’s International
Security Assistance Force (ISAF) in Afghanistan is
under the authority of the UN Security Council,
although it is not a UN body.
Like the European Union, NATO has strict
membership criteria, adheres to the UN Charter
regarding the use of force, and requires that its
members are democracies that uphold the rule
of law and respect human rights. Ex-communist
countries from Eastern Europe have flocked to
join NATO, which they see as a guarantee against
Russian domination.
REVIEW 14.7
1 Identify the six original members of the
European Coal and Steel Community.
2 Outline the criteria for membership of the
EU and of NATO.
RES E A RCH 14.3
1 Using the ‘Institutions and bodies’ section of
the EU website (http://europa.eu/), identify
the main institutions within the EU.
2 Research the other regional
intergovernmental organisations listed on
page 425 and create a table with columns
showing the origin, purpose, structure,
membership and role of each organisation.
Non-government
organisations
Groups such as Amnesty International, Human
Rights Watch, World Vision, Greenpeace and
Oxfam are just a few of the tens of thousands of
organisations that have come to be known as
private voluntary organisations, citizen associa-
tions, civil society organisations, or most com-
monly, non-government organisations (NGOs). non-government
O p t i o n 5: Wo rld o rd er
organisation (NGO)
One of the first NGOs was the Red Cross. (In some
an association based
countries the Red Cross is known by other names, on common interests
such as the Red Crescent or the American Red and goals, which has
no connection with
Cross.) The main activities of the Red Cross are to
any government
give humanitarian aid to victims of war and nat-
ural disasters, and to champion international
humanitarian law. NGOs have played an increas-
ingly important part in world order since the end
of the Second World War. There are about 25 000
NGOs today that campaign globally for
humanitarian ideals. NGOs helped to write the UN
Charter and are an integral part of the United
Nations, and many of them collaborate on a daily
basis on humanitarian work with various special-
ised agencies.
In addition to these NGOs, there are NGOs that
specialise in world order issues by investigating,
researching, educating policy-makers and the
public, and lobbying leaders to take action. The
International Crisis Group (ICG) was founded in
1995 by some retired international leaders in
response to the failure of the international
community to anticipate and respond effectively
to the genocides that occurred in Somalia, Rwanda
and Bosnia in the early 1990s. With a budget of
around $16 billion a year, the ICG monitors 60
conflicts and potential conflict situations. The
ICG’s aim is to be an accurate source of infor-
mation for governments, IGOs and NGOs that are
working to respond directly to conflict situations.
The ICG also uses the media effectively, getting
14 000 mentions annually. Gareth Evans, former
Australian Foreign Minister in the Hawke and
Keating governments, served as president of the
ICG from 2000 to 2009. The current president is
Louise Arbour.
Cha pter 14: Option 5: Wor l d order 427
 The ICG sees its role as:
s supplying behind-the-scenes support and ad-
vice in peace negotiations
s giving highly detailed analysis on policy issues
s offering strategic thinking on the world’s most
intractable conflicts, such as those in Myanmar/
Burma, Iraq, and Israel/Palestine
s giving an early warning when a security situ-
ation is becoming a full crisis. The ICG is
constantly on alert in areas like Darfur, Somalia,
Pakistan and even Timor-Leste (which is still in
a fragile nation-building stage after initial UN
intervention in 1999).
Finally, the ICG is strongly supportive of a
multilateral, rules-based approach to world order
using the current structures of the United Nations
and other international organisations, regional
organisations and international courts. The ICG is
particularly supportive of the new UN approach to
dealing with crises, the ‘Responsibility to Protect’.
(Responsibility to Protect will be covered in Issue 1
at the end of this chapter.)
l eg al l i nks
For further information on the
International Crisis Group see
www.crisisgroup.org/
Some other NGOs that specialise in world order
issues are:
s Centre for Peace and Conflict Studies (Sydney
University) – www.arts.usyd.edu.au/peace_
conflict/
s Campaign for Nuclear Disarmament (UK) –
www.cnduk.org/
s Carnegie Endowment for International Peace
(a private, non-profit US organisation dedicated
to international cooperation, especially US
engagement; it has offices in Washington,
Moscow, Beijing, Beirut and Brussels) – www.
carnegieendowment.org/
s Centre for Justice and International Law (a legal
organisation that defends human rights in the
428 C am b r id g e L e g a l S t u d ie s – HS C
Americas, and that brings cases before the Inter-
American Commission on Human Rights and
the Inter-American Court of Human Rights) –
www.cejil.org/
s Freedom House (a US organisation that provides
information, advocacy and training relating to
the promotion of democracy and civil rights) –
www.freedomhouse.org/
s Global Policy Forum (monitors international
policy-making and has a consultative role with
the UN) – www.globalpolicy.org/
s World Federation of United Nations Associations
(a global network connecting UN Associations,
which disseminate information about the UN,
lobby governments, and undertake other acti-
vities in support of the UN) – www.wfuna.org/
R ESEAR CH 1 4 . 4
Go to the websites of five NGOs that are
concerned with world order issues.
1 Outline an issue or a crisis that each NGO
focuses on.
2 Assess the role of each NGO in promoting
world order.
3 Locate two other NGOs (not on the list
above) that are concerned with world order
issues and outline their aims.
Australia’s federal
government
The Australian Constitution
The structure of Australia’s federal government has
implications for Australia’s response to world order
issues. First, under s 51(xxix) of the Australian
Constitution, only the federal parliament has the
power to make laws relating to ‘external affairs’,
that is, matters of international concern. As such,
only the federal government has the authority to
enter into international treaties and agreements.
In order for international obligations to be binding
in Australian domestic law, federal legislation must
be passed implementing the treaty. All legislation
must go through both houses of parliament. As a
result, the party in power may have to agree to
compromises in order to pass the legislation.
In 2004, the federal government was forced to
agree to significant amendments to the Free Trade
Agreement with the United States to ensure the
Senate would pass it.
The states and international
law
Any international agreements entered into by the
federal government can affect the states in some
way. The federal government usually consults the
states before signing an international agreement,
but it is not obliged to do so. Sometimes inter-
national agreements can be a point of contention
between the states and the federal government.
As discussed in Chapter 11, in 1983 the federal
government used its external affairs power to bring
a halt to Tasmania’s damming of the Franklin River.
During the last years of the Howard government a
number of the states, under Labor governments,
were at odds with the federal government’s refusal
to ratify the Kyoto Protocol on global warming.
The states cannot enter into international
agreements in their own right. However, they
can enact their own legislation that is in harmony
with international agreements. For instance, the
NSW Government went further in adhering to UN
human rights treaties with its Anti-Discrimination
Act 1977 (NSW) than the federal government did
with the Racial Discrimination Act 1975 (Cth).
Australia’s role in global affairs
Since federation in 1901, Australia has taken its
global responsibilities seriously. Australia’s mass-
ive contribution in the First World War was due to
its obligations to the maintenance of the British
Empire, which it saw as essential to global stability,
the spread of civilisation and the rule of law. From
1907 to 1914 Australia was a dominion of the
British Empire – a political entity that was nomi-
nally under British sovereignty but independent
from Britain in all matters except its foreign policy.
Australia’s contribution during World War I won it
recognition as a nation-state in its own right in the
League of Nations, along with the other dominions
of Canada, New Zealand and South Africa. As a
foundation member of the League, Australia played
a very active role internationally. Many of its
proposals were taken up by the United Nations
upon formation of that body.
Australian involvement in the
United Nations
A number of Australians have served Australia
with distinction on the international stage. One of
O p t i o n 5: Wo rld o rd er
these notable individuals was Jessie Street, who
attended League of Nations Assemblies in Geneva
in 1930 and 1938. Street was the only woman in
the Australian delegation to the San Francisco
conference to write the UN Charter in 1945, and
one of only four women delegates from all over the
world. After the Second World War, Australia was a
strong supporter of the international organisations
to promote world order. Dr H. V. Evatt, Foreign
Minister in the Chifley Labor government (1945–
49), was elected president of the UN General
Assembly in 1949.
Many other Australians have also served the
United Nations with distinction. From 1997 to 1999
Australian Richard Butler was one of the most
powerful and controversial figures in world politics
as head of the UN Special Commission (UNSCOM)
charged with monitoring Iraq’s dismantling of its
weapons facilities after the Gulf War of 1990–
91. Butler was also involved in the Canberra
Commission on the Elimination of Nuclear Weapons
in 1996, which was initiated to formulate a plan for
the reduction and eventual elimination of nuclear
weapons. Gareth Evans, who served as Foreign
Minister in the Hawke and Keating governments,
has been very actively involved in the United
Nations in the areas of nuclear disarmament and
the new UN doctrine of ‘Responsibility to Protect’.
In March 2008, the former Rudd government
embarked on a campaign for Australia to be a dominion
a semi-autonomous
candidate for a non-permanent seat on the United
political entity that
Nations Security Council in 2013–14. From 2009, was nominally under
then Prime Minister Rudd took a leading role in the sovereignty of the
British Empire
the UN-sponsored debate on global warming and
in the debate at the Copenhagen Conference in
December 2009.
Cha pter 14: Option 5: Wor l d order 429

militia
a group of unofficial
soldiers who act
outside international
law and are often
secretly used by
governments
R E VIE W 14.8
1 Outline the power
that s 51(xxix) of the
Constitution gives the
federal government.
2 Summarise Australia’s
involvement in international
activities and evaluate its
contributions.
430 C am b r id g e L e g a l S t u d ie s – HS C
Figure 14.17 Australian peacekeepers in the
Solomon Islands playing with local children.
Dr Michael Fullilove of the Lowy Institute
for International Policy gave strong support to
Australia’s bid for a non-permanent seat on the
UNSC. In September 2009, Dr Fullilove published
a detailed paper on the subject, ‘The Case for
Australia’s UN Security Council Bid’, which can
be found at www.lowyinstitute.org/Publication.
asp?pid=1129.
Australia’s contribution to
peacekeeping
Australia has also taken its responsibilities with
respect to the maintenance of world order seri-
ously, as evidenced by its consistent involvement
in UN peacekeeping missions. Australia has contri-
buted either military forces or police
to 54 peacekeeping forces, two-thirds
of these since 1991. In 1999–2000,
Australia played a leading role in
establishing order in East Timor
when Indonesian-backed militia went
on a rampage of killing there after
the East Timorese people voted for
independence from Indonesia in a
UN-sponsored referendum in 1999.
Australian military and federal police
have continued to play a peacekeeping role in
East Timor. Australia has also been engaged in
peacekeeping efforts internationally outside of
the United Nations. In recent years, Australia
has conducted a peacekeeping operation in the
Solomon Islands and committed federal police to
many peacekeeping operations around the world.
Australia and international
agreements
Australia has also been a part of many other
international agreements to promote world order.
Australia is a signatory to the Geneva Conventions
and the Rome Statute establishing the Interna-
tional Criminal Court.
Australia has undertaken many international
obligations outside its multilateral agreements.
The majority of the 900 treaties and agreements
that Australia has signed are bilateral. In addition,
most of the $1 billion dollars in Australian aid for
the victims of the 2004 Boxing Day tsunami was
given as part of bilateral aid partnerships with
Indonesia and Sri Lanka, rather than being chan-
nelled through multilateral organisations. This
reflects a preference of the Howard government
for working through bilateral, not multilateral,
agreements. After its election to office at the end
of 2007, the former Rudd government expressed a
preference for multilateral agreements.
The media
The media have an enormous influence on
world order and that influence can be positive or
negative. A free and unbiased media are an essen-
tial ingredient for the rule of law in the global
sphere.
Despite the immense technological advances in
all areas of mass media, the question of ownership
is a significant issue. For both print and broadcast
media, the trend has been towards domination
by a few large and powerful transnational
corporations.
No matter who owns the media and controls
their various aspects, the media today have a
tremendous effect on how we view major events.
One characteristic of modern media is the ten-
dency to treat news as entertainment. This means
that there is often little effort to provide a full
and considered explanation of the background to
major problems and issues. Consequently, while
people know of events taking place all around the
world, they often lack any real understanding of
the issues. This is particularly the case when it
comes to war.
Nevertheless, the media have played a signi-
ficant role in drawing the world’s attention to
various disasters and political crises, and have
the potential to influence political leaders through
public opinion. Examples in the past decade have
included the ongoing crises in Zimbabwe and
the Darfur region in Sudan. However, once such
events are off the front pages of the newspapers
and the evening television news, public interest in
them tends to fade.
Non-legal mechanisms
for international dispute
resolution
Political negotiation
Political negotiation is the simplest and most fre-
quently used means of working with other states
and resolving disputes. Communication between
states now occurs at many levels of government,
and each country has a vast array of experts
who can negotiate the details of international
agreements. These changes in the means available
for political negotiation have increased the scope
for greater cooperation. When disputes cannot
be solved through political negotiation, the next
option is the use of persuasion.
Persuasion
States, international organisations and trans-
national corporations can be persuaded to change
their behaviour through the pressure of world
public opinion. Persuasion, in the form of naming
and shaming, is one of the main ways in which
NGOs achieve their objectives. The United Nations
can also use this tactic, through reports that it
delivers on various issues and the deliberations of
its human rights bodies. In recent years, the gov-
ernment of Zimbabwe has been widely criticised
for its mass atrocity crimes.
States can also be encouraged to improve their
behaviour by the prospect of membership of world
organisations. For instance, China had to raise its
trade standards in order to comply with the rules
O p t i o n 5: Wo rld o rd er
of the World Trade Organization (e.g. to apply the
same tariff rates to all member countries, and
to apply internal laws equally to domestic and
imported products). Another example is Turkey’s
bid for membership of the EU. To be permitted
to join the EU and receive the massive economic
benefits of a large, successful market, Turkey has
to improve its compliance with human rights. This
type of persuasive power employed by the EU
is described as ‘soft power’. Soft power co-opts
rather than coerces people.
Persuasion is not always effective. To be chosen
to host the 2008 summer Olympics, China prom-
ised to improve its conduct in relation to human
rights and civil liberties. However, many com-
mentators feel that China reneged on its promises
to the International Olympic Committee, given its
practices of detention, harassment and torture of
political dissidents and its censorship of media.
l e ga l l i nk s
For further information on the
concept of soft power, see the
article ‘Propaganda isn’t the way:
Soft power’, by Joseph Nye, at
http://belfercenter.ksg.harvard.
edu/publication/1240/propaganda__
isnt_the_way.html
Force
When political negotiations break down and
persuasion and soft power have no impact, then
the resort to force may occur.
Cha pter 14: Option 5: Wor l d order 431
 The idea that force or the threat of force should
not be the norm in international relations is
enshrined in the UN Charter. Article 2(4) of the
Charter states:
All members shall refrain in their international
relations from the threat or use of force against
the territorial integrity or political independence
of any state, or in any other matter inconsistent
with the Purpose of the United Nations.
However, the architects of the UN Charter were
realistic enough to realise that force would some-
times be used, and so they sought to create a legal
framework for it. Article 51 of the Charter states
that force can be used in self-defence. The United
States argued that its invasion of Afghanistan in
November 2001 was legal because it was carried
out in response to the 11 September attacks by
terrorists purporting to be part of Al Qaeda. At
the time of the attack, Al Qaeda had bases in
ethnic cleansing Afghanistan and was supported by the Taliban
a term used as a
regime in that country. However, after nearly 10
euphemism for
genocide years of war, commentators, while conceding the
invasion was legal, now question whether it was
wise and whether the Bush Administration had
Figure 14.18 The NATO action in Kosovo invites the question of what
circumstances make the use of force legal under international law.
432 C am b r id g e L e g a l S t u d ie s – HS C
given due consideration to the amount of political
and economic commitment would be required.
As well as providing a self-defence clause, the
UN Charter was realistic enough to legitimise
the use of force in circumstances other than self-
defence. However, the constraint placed upon this
use of force was that it had to be agreed to by the
Security Council. Article 42 states that the UN
Security Council can ‘take such action by air, sea
or land forces as may be necessary to maintain or
restore international peace and security’.
Multilateral action
In 1998, the threat of the use of the veto by two
Permanent Five members was enough to stop the
Security Council from intervening in the genocide
taking place in Kosovo. Kosovo is a province of the
nation-state of Serbia with a majority Muslim
population. In 1998, the Serbian government, under
the leadership of Slobodan Milosevic, began
engaging in ethnic cleansing against the Muslim
population of Kosovo. In this case, the Security
Council was unable to act immediately to pass a
resolution condemning Serbia’s actions and to
sanction the use of force by the United Nations, due
to the threat of a veto from China or Russia. Russia
traditionally backed Serbia’s control of Kosovo, and
China sided with Russia (possibly drawing a parallel
to its own control of Taiwan). However, the prospect
of a humanitarian disaster prompted by the acts of
genocide perpetrated by the Serbian forces caused
great concern in Europe and the United States. As a
result, in March 1999, NATO successfully inter-
vened in Kosovo. The Security Council, minus
China, which abstained, then called for an inter-
national civil and security presence in Kosovo, thus
retrospectively ratifying the NATO intervention in
Kosovo and lending it greater legitimacy.
The NATO action in Kosovo invites the question
of what circumstances make the use of force legal
under international law. The question is: Was
the NATO action legal under international law
before it was retrospectively sanctioned by the
Security Council? Scholars of international law
would answer that the original NATO action in
Kosovo was legal because it was carried out by a R EVI EW 1 4 . 9
multilateral force – NATO. 1 Outline what the following articles in the
As a general rule, multilateral or collective mili- UN Charter say about the use of force:
tary intervention has the sanction of inter national a Article 2(4)
law if it is in response to a situation where the b Article 51
threat to peace is significant. Unilateral military c Article 41 unilateral
undertaken by one
inter vention has been prohibited under interna- 2 Identify which members of the United nation-state
tional law since the end of the Second World War. Nations can use Chapter VII rules.

O p t i o n 5: Wo rld o rd er
Co ntempora r y issues
co nce rn i n g wo rl d o rde r
Issue 1: The principle of
‘responsibility to protect’
How can we possibly do worse flying under the
flag of R2P than we did for centuries accepting, in
effect, that state sovereignty was a license to kill?

Gareth Evans, President of the International Crisis Group, inter-

view with Stiftung Entwicklung und Frieden News, Spring 2008

The ‘Responsibility to Protect’ is a new interna-

tional security and human rights norm designed
to address the international community’s repeated
failure to prevent and stop mass atrocity crimes
such as genocide and war crimes. The principle,
known in abbreviated form simply as ‘R2P’, came
about in response to the controversy that raged
over whether the international community had
the ‘right of humanitarian intervention’ in the
conflicts of Rwanda, Bosnia and Kosovo. Figure 14.19 As President of the International Crisis Group from
Supporters of humanitarian intervention argued 2000 to 2009, Gareth Evans (left) championed the concept of the
that the UNSC could use its Chapter VII powers to ‘Responsibility to Protect’.
intervene, while opponents argued that the
principle of state sovereignty, upheld by Article
2.7 of the UN Charter, did not permit humanitar- lobbying, the heads of state attending the World
ian inter vention. R2P was aimed at bridging the Summit in September 2005 unanimously accepted
gap between these two views of state sovereignty. R2P. The UN Security Council has also accepted
It had its origin in the 2001 report produced by the this general principle. Adoption of this new doc-
International Commission on Intervention and trine represented an international commitment
State Sovereignty, called The Responsibility to by states to prevent and react to grave crises,
Protect. After several years of negotiations and wherever they may occur.

Cha pter 14: Option 5: Wor l d order 433

 Legal and non-legal
responses
Legal responses
The Responsibility to Protect places the onus on
states and international organisations to protect
populations from mass atrocity crimes. For indi-
vidual states, R2P means the responsibility to protect
their own citizens, and to help other states build their
capacity to do so. For international organisations,
including the UN, R2P means the responsibility to
warn, to generate effective prevention strategies,
and when necessary to mobilise military action.
For NGOs and individuals, R2P means the
responsibility to draw policy-makers’ attention to
what needs to be done, by whom and when.
Overwhelmingly, prevention is the key response
in the R2P doctrine, through measures such as
building states’ capacity to safeguard human
rights, remedying grievances, and conforming
to the rule of law. But if prevention fails, R2P
requires whatever measures are necessary to stop
mass atrocity crimes, whether those measures are
economic, political, diplomatic, legal, security or in
the last resort military.
Non-legal responses
R ES PON S IBIL IT Y T O PR OT EC T –
EN GAGIN G C IVIL S OC IET Y (R2 PC S)
NGOs have taken up the cause of the Responsibi-
lity to Protect. In 2003 the World Federalist Move-
ment–Institute for Global Policy (WFM–IGP)
launched the ‘Responsibility to Protect – Engaging
Civil Society’ project (R2PCS) with the aim of
building support for R2P. The goals of this project
were to engage civil society and educate other
NGOs about the Responsibility to Protect prin-
ciples, in order to effectively lobby governments to
respond promptly and appropriately to emerging
humanitarian crises.
The R2PCS has been involved in:
s strengthening the acceptance of R2P with gov-
ernments and international organisations
434 C am b r id g e L e g a l S t u d ie s – HS C
s raising awareness about R2P and building
NGOs’ advocacy skills
s promoting the implementation of R2P by the
United Nations
s helping NGOs to develop strategies to imple-
ment R2P for country-specific situations.
I NTERNATI O NA L C O A L I TI O N FO R TH E
RE SPO NSI B I L I TY TO P RO TEC T (I C RTO P )
In January 2009 the R2PCS launched another pro-
ject, the International Coalition for the Responsi-
bility to Protect (ICRtoP). This effort is supported
by a number of NGOs, such as Oxfam Inter-
national, Human Rights Watch, the International
Crisis Group, and Refugees International. The
Coalition aims to raise awareness about R2P and
to educate NGOs on how to form partnerships with
other NGOs interested in joining and how to apply
the norm to specific regions.
l eg al l i nks
For more information on the
Responsibility to Protect,
R2PCS and ICRtoP, see www.
responsibilitytoprotect.org/
Conclusion
The Responsibility to Protect is a framework that
enables the two contradictory aspects of the UN
Charter – the non-interference principle in relation
to state sovereignty and the obligation on UN
members to act against human rights violations –
to be reconciled. Some work still needs to be done
in making R2P a useful mechanism for improving
the international community’s response to crisis
situations. There are a number of priorities for R2P
more than five years after its adoption by the UN.
These are:
s Care should be taken in labelling conflicts R2P
situations. In his 2008 book, The Responsibility

Figure 14.20 Many nuclear missiles can reach their targets in 30 minutes.
to Protect: Ending Mass Atrocity Crimes Once and
For All, Gareth Evans estimates that of the 60 or
so conflicts or potential conflict situations in the
world at any time, only about 12 to 15 would be
R2P situations. Evans stressed that R2P does
not apply to all human security situations.
s R2P is more about prevention and should not
be focused narrowly on military action.
s The UNSC needs to develop specific guidelines
for when force is used in R2P situations. It
needs to clarify the limits of military action.
s There needs to be a greater emphasis on build-
ing the capacity of regional organisations like
the African Union and NATO so that they have
a variety of options on hand and are prepared
to mount military operations.
Finally, there needs to be the political will on
behalf of world leaders to make the hard decisions.
It is also the responsibility of all those people of
goodwill who believe in the R2P principle to press-
ure their governments to be involved. It remains to
be seen how effective the UNSC will be in dealing
with the question of military intervention when
extreme cases warrant it.
O p t i o n 5: Wo rld o rd er
Issue 2: Regional and
global situations that
threaten peace and
security: The nuclear
threat
The greatest threat to global peace and security is
the presence of nuclear weapons. At the height of
the Cold war there were 58 000 nuclear warheads.
The number has now been reduced to 27 000 war-
heads, with thousands still on a 20-minute alert.
However, the detonation of only a few hundred
would not only destroy targeted cities, but would
cause massive ecological damage to the rest of the
world that was not targeted.
We were very lucky to survive the Cold War
without a nuclear war between the superpowers.
We came close to World War III a few times during
the Cold War, particularly in 1962, 1973 and 1985.
Then in 1995 a false reading nearly sparked a
nuclear retaliation by Russia against a suspected
US attack. There have been a number of bilateral
nuclear weapons treaties and a few multilateral
treaties to deal with the threat of nuclear war.
Cha pter 14: Option 5: Wor l d order 435
 However, the world has a long way to go before the
threat of nuclear weapons has been removed.
Legal and non-legal
responses
Legal responses
BIL AT ER AL T R EAT IES
The thaw in relations between the two super-
powers not only gave the United Nations a new
lease of life, but it also led to the most substantial
progress in the area of nuclear disarmament since
the beginning of the Cold War. Unfortunately, the
UN did not have any role in this progress. Some
of the highlights of this post-Cold War bilateral
progress are as follows:
s 1983 – The USA and USSR began talks.
s 1991 – The USA and Russia signed START I
and began reduction of their nuclear arsenals
from 58 000 nuclear warheads. The aim was
to reduce their arsenals to about 5000 each.
The total amount between the two countries is
about 11 000 at present.
s 2002 – US President Bush and Russian President
Putin signed the SORT treaty. Both states were
to reduce their nuclear weapons to between
1700–2000 each. However, SORT was widely
criticised as it omitted ‘tactical’ nuclear weapons
(those intended to be used on a battlefield) and
only included deployed warheads, meaning
parties could simply put them in storage. It also
omitted verification procedures.
s 2010 – US President Obama and Russian
President Medvedev signed ‘New START’, to
replace the expiring START I and SORT treaties.
The reductions required include a reduction in
deployed nuclear warheads to 1550 combined,
down two-thirds from START I and one third
from SORT. The new treaty has been welcomed
by commentators, but some have suggested
that it could have gone further.
MULT IL AT ER AL T R EAT IES
The Nuclear Non-Proliferation Treaty (NPT) was
signed in 1968 in Washington, London and
436 C am b r id g e L e g a l S t u d ie s – HS C
Moscow, and came into force in 1970 when it was
ratified by a sufficient number of nations. This
treaty is based on a bargain between the five
nations that possessed nuclear weapons at the
time and all the other nations of the world that do
not possess them. The bargain was that the coun-
tries lacking nuclear weapons (with the exceptions
of Israel, India and Pakistan) promised not to
develop them if the five nations that did possess
them (USA, Russia, China, Britain and France)
agreed to gradually reduce the number of weapons
that they held. The treaty was to be renewed every
five years. Optimistically, in 1995 the parties to
the treaty decided to extend the treaty indefinitely.
At this conference, the parties committed them-
selves to the adoption of a new treaty called the
Comprehensive Test Ban Treaty (CTBT) by 1996.
This treaty would ban the production of weapons-
grade fissile material, eliminate nuclear weapons,
support nuclear-free zones and give security assur-
ances to all nations. The Australian government
took the treaty to the General Assembly where it
was adopted, and the CTBT entered into force in
2007. As of March 2010, there were 182 signator-
ies and 151 ratifications. However, the United
States had not ratified the treaty at this time.
In 2000, the nuclear weapons states declared
their unequivocal desire to accomplish the total
elimination of the nuclear arsenals. However, at
the same time the USA announced its intention to
abandon the Anti-Ballistic Missile Treaty (ABM) of
1972. This was seen as ominous news at the time
by other major powers, who feared that this sig-
nalled the first stage of the United States putting
weapons into space. Also disturbing was the
United States’ 2002 announcement that it was pre-
pared to use ‘pre-emptive’ action to strike an
enemy first, before the enemy could strike. This
represented an abandonment of basic UN
principles.
Multilateral cooperation took another hit at
the 2005 World Summit. There were high expec-
tations that the world leaders would agree to a
strengthening of the NPT. However, despite five
weeks of negotiations, nothing was achieved
and no final document was produced. Unless the
leaders of the world’s major powers show more
political and moral commitment to the cause of
nuclear disarmament, the NPT will collapse and
possibly lead to an increase in nuclear prolifer-
ation. President Obama’s commitment to the NPT,
expressed in his support of UN Resolution 1887
(2009), is an optimistic sign.
legal links
For the full text of the NPT, see
www.un.org/en/conf/npt/2005/
npttreaty.html
The UN Security Council and
Nuclear Disarmament
While the General Assembly has concerned itself
with general disarmament and supporting both
multilateral and bilateral treaties, the Security
Council was hamstrung for most of the postwar
period by the Cold War. However, since the end of
the Cold War, the Security Council has been able
to work together to a certain extent on specific
cases. The Security Council has tended to act on a
case-by-case basis.
I RAQ
At the end of the 1990–91 Gulf War, the Security
Council passed Resolution 687, which set out the
terms that Saddam Hussein’s Iraq was to comply
with. The resolution required the destruction of
all chemical and biological weapons, and bal-
listic missiles with a range greater than 150 kilo-
metres, and required Iraq to submit to a rigorous
UN inspection system. The inspections were
conducted by UNSCOM and later the United
Nations Monitoring, Verification and Inspection
Commission (UNMOVIC) throughout the 1990s
and from the end of 2002 until the US-led inva-
sion in 2003. The fact that no ‘weapons of mass
destruction’ were found after the American inva-
sion in 2003 attests to the success of the UN
weapons inspections. The inspectors were con-
fident that the inspection regime had precluded
the development of these weapons, and that they
had not been developed was evidenced by the fact
that none was found.
NO RTH K O RE A
In 1993 North Korea was referred to the Inter-
national Atomic Energy Agency (IAEA) for violating
its safeguards. (The IAEA is an independent
organisation within the UN that promotes the
O p t i o n 5: Wo rld o rd er
safe, secure and peaceful use of nuclear tech-
nologies, and verifies countries’ compliance with
these principles.) The following year North Korea
and the United States signed an ‘Agreed Frame-
work between the United States of America and
the Democratic People’s Republic of Korea’. This
framework was a non-binding political commit-
ment, noted by the UN Security Council, under
which North Korea agreed, among other things,
not to manufacture nuclear weapons and to
remain a party to the NPT. However, in 2003
North Korea withdrew from the NPT, and in 2006
it detonated a nuclear bomb, allegedly as a test.
After further pressure from the Security Council in
2007, North Korea agreed to abandon its nuclear
weapons program. As of 2010 this had still not
been achieved.
I RA N
From 2006 the Security Council has also been
putting pressure on Iran, which seems determined
to develop a nuclear bomb. However, as of 2010,
Security Council is divided on how to deal with
Iran’s violations of the NPT.
C O NC L U SI O N
The International Weapons of Mass Destruction
Commission was set up in 2003 to identify the
most effective ways the international community
can cooperate to reduce the danger of such
weapons. As noted by its chair, Hans Blix, the
Security Council cannot really be said to be doing
its job with respect to nuclear disarmament. The
Commission’s 2006 report, Weapons of Terror:
Freeing the World of Nuclear, Biological and Chemical
Arms, states that the Security Council has not
Cha pter 14: Option 5: Wor l d order 437
 fulfilled its role of establishing ‘a system for the
regulation of armaments’, in order to promote
peace and security, as set out in Article 26 of the
UN Charter. Article 47(1) also lays down a disarm-
ament role for the Security Council, and Article 39
gives the Security Council legal authority to take
action on any matter affecting international peace
and security. It therefore has great potential power
to deal with WMD and conventional weapons by
passing resolutions that virtually legislate what the
rest of the world can and cannot do. Under Article
25 of the Charter, UN member states are obliged
to carry out the decisions of the Security Council.
As Blix’ report states:
The primary responsibility placed upon the
Council for the maintenance of international peace
and security is thus matched by the authority that
is given to it and that can be exercised to reduce
the risk of WMD, whether in the hands of the five
permanent members or other members of the
United Nations, or non-state actors.
Figure 14.21 US President Barack Obama spoke
passionately about the need for multilateral
cooperation in urging the UNSC to pass
Resolution 1887 on 24 September 2009.
438 C am b r id g e L e g a l S t u d ie s – HS C
Only time will tell whether the leaders of the
Permanent Five can make an effort to work
together and provide leadership in this area, which
represents perhaps its most important responsi-
bility. One hopeful indication that multilateral
approaches to the threat of nuclear weapons
will be pursued by our current world leaders
was the historic resolution passed by the UNSC
on 24 September 2009. US President Barack
Obama chaired the meeting, which was attended
by the leaders of all of the Permanent Five. All
fifteen members of the Security Council voted
unanimously for Resolution 1887, which pledged
the UNSC to restart stalled talks on strengthening
measures against proliferation and making mass-
ive reductions in nuclear stockpiles. The Security
Council reaffirmed its strong support for the NPT,
calling on states that were not yet signatories, such
as India, Pakistan and Israel, to sign it.
The meeting also looked towards the 2010
Review Conference, where they hoped to strength-
en what they called the three pillars of the NPT.
The three pillars of the NPT were:
s disarmament of countries that currently have
nuclear weapons
s preventing countries not possessing nuclear
weapons from getting them
s peaceful use of nuclear energy for any country
that wishes to use it.
Resolution 1887 also called upon all states
to refrain from nuclear testing and ratify the
Comprehensive Nuclear Test Ban Treaty as soon
as possible.
Non-legal responses
There are numerous non-legal ways of promoting
world order. The following examples are a
government-initiated organisation, a political plan
and a non-government organsiation.
I NTERNATI O NA L WEA P O NS O F M A SS
DE STRU C TI O N C O M M I SSI O N
The Weapons of Mass Destruction Commission
was established by the Swedish government in
2003. Dr Hans Blix, former UN weapons inspector,
was appointed as chair of the Commission. It was
set up as a response to slowed progress on non-
proliferation, arms control and disarmament. The
Commission sees its role as being a facilitator of
informed public debate about the international
effort to rid the world of weapons of mass destruc-
tion. The major achievement of the Commission
was the publication of its 2006 report, Weapons of
Terror: Freeing the World of Nuclear, Biological and
Chemical Weapons. The report was in the tradition
of the earlier Canberra Commission (1995) and
represented an extremely detailed investigation of
every conceivable aspect of achieving disarma-
ment. Australia’s Gareth Evans also worked on the
report. In 2007, Hans Blix was awarded the Sydney
Peace Prize for his ‘principled and courageous
opposition to proponents of war in Iraq, for lifelong
advocacy of humanitarian law and non-violence,
and for leadership of disarmament programs to rid
the world of weapons of terror’.
l eg al l i nks
For further information see
www.wmdcommission.org/
T H E INTERNATION AL C OMMIS S ION ON
N U CLEAR NON-PR OL IF ER AT ION AN D
DISARM AM ENT AN D T H E N PT R EVIEW
C O NFERENCE
Initiatives by world leaders are an important
non-legal means of promoting world order. On
10 June 2008, former Prime Minister Kevin Rudd
announced a renewed attempt to kick-start
global discussion on formulating a plan to elimi-
nate nuclear weapons. On a visit to Kyoto, Rudd
announced that the Australian government would
take the lead in setting up a commission to investi-
gate nuclear disarmament plans, which would be
known as the International Commission on Nuclear
Non-Proliferation and Disarmament. The main goal
of the Commission was to develop tighter rules for
the 40-year old NPT when it came up for review
in 2010. Former Prime Minister Rudd
appointed Gareth Evans, who was
president of the International Crisis
Group at the time, to the International
Commission. Evans was chosen for
his long track record in working for
nuclear disarmament, starting with
the Canberra Commission in 1995.
The Commission’s report was released
in mid December 2009. It was hoped
O p t i o n 5: Wo rld o rd er
that the report, titled Eliminating
Nuclear Threats: A Practical Guide for
Global Policymakers, would make
Figure 14.22 Hans Blix
a positive contribution to the NPT
received the Sydney
Review Conference held in 2010.
Peace Prize for his efforts
on nuclear disarmament.
R ESEAR CH 1 4 . 5
1 Go to the Eliminating Nuclear
Threats website and download
a copy of the report. Read
pp. 159–60 detailing the
recommendations for the NPT
Review conference.
2 Research the NPT Conference of
2010. Discuss the extent to which
the NPT Review Conference
adopted the recommendations of
the Eliminating Nuclear Threats
report.
3 Evaluate the likelihood that
real progress will be made in
the near future in dealing with
the global threat to peace and
security posed by the existence
of massive arsenals of nuclear
weapons.
l e ga l l i nk s
For a full copy of the report,
Eliminating Nuclear Threats:
A Practical Guide for Global
Policymakers, see www.icnnd.
org/reference/reports/ent/
index.html
Cha pter 14: Option 5: Wor l d order 439
 C AMPAIGN F OR N UC L EAR
DIS AR MAMEN T ( C N D)
The Campaign for Nuclear Disarmament is a
British NGO that aims to rid the world of nuclear
weapons using non-violent means. The CND advo-
cates immediate negotiation that will lead to a
rapid, timetabled abolition of nuclear forces world-
wide. Like other NGOs, it attempts to stimulate
widespread public debate about the global threat
of nuclear weapons. It also participates in UN
conferences on disarmament.
l eg al l i n k s
For further information about the
CND, see:www.cnduk.org/
Conclusion
The elimination of the threat of nuclear weapons is
an enormous undertaking. However, nuclear
weapons are one of the most serious threats to
world order. The only other threat that is of the
same magnitude is climate change. The difference
is that nuclear annihilation can occur within
hours, not decades. Furthermore, a decision to
launch a nuclear attack can be made by one
person. There will be no lengthy conferences,
work ing group and committees to decide whether
to start a nuclear war. The only effective way to
address this issue is through multilateral cooper-
ation. No single country can solve this problem.
The UNSC’s Resolution 1887 of 2009 and the 2010
Review Conference for the NPT give some cause
for optimism for the future.
The world depends on the leaders of states
with nuclear weapons to undertake the following
actions:
s Set an example to the rest of the world by dram-
atically cutting their own nuclear arsenals.
s Take coordinated action against countries such
as North Korea, Iran and Myanmar/Burma
to get them to drop their plans for nuclear
armament.
440 C am b r id g e L e g a l S t u d ie s – HS C
s Commit to no weapons in space.
s Strengthen the control and security of nuclear
weapons, especially in Russia.
s Ban the production and stockpiling of fissile
material.
s Eventually make deep cuts in nuclear arms,
until we get to zero.
s Ban all weapons of mass destruction though
a convention, in the same way that chemical
and biological weapons have been banned by
treaty.
s Build trust, not bombs, and so assure all states
that they do not need to possess nuclear
weapons for their own defence.
Issue 3: The success of
global cooperation in
achieving world order:
East Timor and UN
intervention
The United Nations intervention in East Timor
in 1999 and in the years since is considered
a successful example of global cooperation in
achieving the resolution of world order issues. In
the case of East Timor, the issues were the illegal
invasion of East Timor in 1975, the mass atrocity
crimes committed during the 25-year Indonesian
occupation, and violence committed by pro-
Indonesian militias in 1999.
Compared to the catastrophes of Somalia,
Rwanda and Srebrenica earlier in the 1990s, the
UN achieved some success in Haiti, Sierra Leone
and East Timor. For years, East Timor was a classic
case of sovereignty being used as a barrier to
impede the resolution of world order issues. After
illegally invading East Timor in 1975, Indonesia
governed the annexed territory harshly. It is con-
servatively estimated that over 100 000 people
died as a result of the Indonesian occupation.
Reports of mass atrocities being committed
against the East Timorese were denied by the
Indonesian authorities and calls for independent
observers to assess the situation were rejected.
Figure 14.23 The killing of Australian journalists at Balibo by Indonesian troops in 1975 has caused much controversy.

O p t i o n 5: Wo rld o rd er
After the Asian financial crisis in 1998 and the
downfall of the dictatorial Suharto regime in Indo-
nesia, there was a temporary change of heart by
the Indonesians and a UN-sponsored referendum
for the East Timorese on independence was agreed
to. However, when the East Timorese voted over-
whelmingly for independence, there was a violent
backlash by pro-Indonesian supporters. Again, the
UN faced disaster. However, the UN did not give
up, and with the strong backing of the UN Security
Council, the diplomatic pressure exerted by UN
Secretary General Kofi Annan and US President
Bill Clinton, and the willingness of the Australian
government to send military forces, it was able
to stand up to the violence and guarantee East
Timor’s future security. The most important con-
clusion that can be drawn from the UN inter ven- Figure 14.24 East Timor is one of Australia’s closest neighbours.
tion in East Timor was that the world organisation
was in it for the long haul. The UN not only guided
East Timor to independence in 2002, but has con- 1949, East Timor continued to be ruled as a colony
tinued nation building policies in the years since. of Portugal until 1975. In that year, Portugal deci-
East Timor has been a success story for global ded to give up its colony.
cooperation to resolve world order issues.
Indonesian invasion
Background When the Portuguese left East Timor, there was
East Timor has had a painful history. Since the division within the former colony over who should
1600s, East Timor was ruled by the Portuguese as rule. The Indonesian government did not like the
part of their empire while the rest of Indonesia was idea of having a small nation on its doorstep which
ruled by the Dutch. As a result of Portuguese rule, could potentially host groups hostile to Indonesia,
the population of East Timor is a mixture of Malay such as communists for example. Indonesia deci-
and Portuguese and the people are predominantly ded to exploit the confusion in East Timor and
Catholic. This is in contrast to the rest of Indonesia, invade the small country. The invasion was con-
which is mainly Muslim. While the rest of Indo- demned by the international community and
nesia gained independence from the Dutch in seen as a blatant case of aggression, the sort that

Cha pter 14: Option 5: Wor l d order 441

 was outlawed by the UN Charter. However, the
Australian government, which was in the middle
of an election campaign at the time, turned a blind
eye to the Indonesian invasion. To complicate
matters, five Australian journalists on the border
between East Timor and Indonesia were murdered
by Indonesian soldiers. For these reasons, the
issues of East Timor and the death of the ‘Balibo
Five’ journalists remained sore points in relations
between Indonesia and Australia.
The United Nations never accepted Indonesia’s
annexation of East Timor and it was debated
repeatedly over the following 25 years in the
General Assembly. The Australian government did
not openly condemn Indonesian rule of East Timor
in the UN. Rather, the Australian government tried
to ensure that Indonesia ruled the territory fairly,
sending a number of investigative missions to East
Timor to report on conditions there. However, in
1991, there was a terrible massacre of civilians
in the East Timorese capital, Dili, an event that
happened to be filmed. When the film footage
was aired, the world and the Australian public
became more inclined to believe the stories of
mass atrocities that refugees from East Timor had
been claiming for years. In addition, there was a
growing body of politicians in Australia who felt
that we had betrayed the people of East Timor by
doing nothing about the 1975 invasion, and that
now it was time we stood up for the rights of the
East Timorese.
The UN-sponsored referendum
Since its independence from the Dutch in 1949,
Indonesia has not had a true democracy. In 1966,
the country was ruled by General Suharto, who
called himself President but ruled as a dictator.
Suharto allowed the Indonesian army (the TNI –
Tentara Nasional Indonesia) to have many posi-
tions of power and even to have seats in the
legislature. However, in 1999, widespread distur-
bances and protests led to Suharto’s resignation.
The new president, B. J. Habibie, committed his
country to becoming truly democratic. In May
1999, Prime Minister John Howard wrote to
442 C am b r id g e L e g a l S t u d ie s – HS C
President Habibie, asking him to allow the people
of East Timor to vote on whether to remain part of
Indonesia or become independent. Habibie agreed
to allow the United Nations to conduct a referen-
dum on the issue.
Legal and non-legal
responses
Legal responses
TH E U N SE C U RI TY C O U NC I L A ND
RE SO L U TI O N 1 2 4 6
The matter was then referred to the United Nations
Security Council, which unanimously adopted
Resolution 1246: ‘Ballot to Decide on Special Auto-
nomy for East Timor’. The UNSC established the
United Nations Mission in East Timor (UNAMET)
and authorised the deployment of 280 civilian
police to act as advisors to the Indonesian police
(in East Timor) and 50 military liaison officers to
keep the lines of communication open to the TNI.
Despite the robust UNSC mandate, the force
deployed to implement it was appallingly weak.
None of the civilian police, many of whom were
Australians, was armed. The Indonesian author-
ities in East Timor resented the UN-sponsored vote
and were uncooperative, even to the point of
paying armed groups of thugs to disrupt the pro-
cess. It seemed that the UNSC still had not learnt
the lessons of UN failures earlier in the 1990s, in
which dismally undermanned and under-armed
forces were sent to do a job against impossible
odds. However, the force that the UNSC authorised
was all that the Indonesians would allow. Under
international law, the Indonesians still had sover-
eignty over East Timor and the UNSC was not
willing to authorise the use of military force. The
Indonesian government was able to use its sover-
eignty to keep UNAMET as weak as possible.
THE REFERENDUM AND MILITIA VIOLENCE
The referendum UN ballot was organised for
August 1999 and was overseen by UNAMET.
Unarmed UN personnel worked courageously to
administer the vote despite constant threats and
harassment from pro-Indonesian militia groups.
On 3 September 1999, the result of the ballot was
announced. 78.5 per cent of the East Timorese
voted for independence.
A violent reaction from pro-Indonesian militias
ensued, killing hundreds of independence sup-
porters, destroying many buildings and forcing
250 000 people from their homes. It is estimated
that they destroyed over 70 per cent of the infra-
structure, leaving East Timor without utilities,
health care, food or schools. Also, it was estimated
that over the next few weeks, between 1000
and 2000 people were killed while the TNI and
Indonesian police stood by. Foreign aid workers
also became targets of the militias. The TNI were
even seen giving guns to militias and Kopassus
(Indonesian special forces) were alleged to have
been supplying the militias with money and drugs.
Around the world, people were appalled by the
violence that was filmed by the few remaining
journalists before they fled the country.
UN SECURITY COUNCIL RESOLUTION 1264
The matter of the violence was discussed at the
UN Security Council in New York. After two-days
of consultations, the Security Council adopted
Resolution 1264. The resolution authorised the
formation of INTERFET (International Force for
East Timor), which was to be a UN peacekeeping
force under Australian command.
The Australian-led multinational force was
deployed within days. Humanitarian aid soon
followed. Finally, after tense negotiations between
the Australian military leaders in East Timor and
the Indonesian commanders, the TNI left East
Timor. INTERFET successfully brought East Timor
under control within a few weeks and the last Indo-
nesian troops left on 1 November 1999. The deci-
sive military action of the Australian armed forces
under a UNSC mandate was hailed as an outstand-
ing success for the UN, for Australia and also for
global cooperation. Behind the scenes there was
significant diplomatic pressure put on the Indo-
nesian government not to attack the Australians.
U NTA ET
The dramatic events of 1999 were only the begin-
ning of the UN involvement in East Timor. INTER
FET was replaced by UNTAET, which stands for
the UN Transitional Administration in East Timor.
UNTAET was established to administer the terri-
tory, exercise legislative and executive authority
during the transition period and help East Timor
to prepare for self-government. Its mission was an
ambitious one, including the exercise of judicial
O p t i o n 5: Wo rld o rd er
powers, assisting with social services and the
delivery of humanitarian aid, providing security,
and promoting sustainable development. In
short, UNTAET’s mission was to lead East Timor
to statehood and help to build the foundation for
democracy.
East Timor, now known as Timor-Leste, became
an independent country on 20 May 2002. Also on
that day, UNTAET was succeeded by the United
Nations Mission of Support in East Timor
(UNMISET), established by Security Council resolu-
tion 1410 to support administrative structures.
U N SU C C E SS I N EA ST TI M O R
Overall, the UN’s role in East Timor has been widely
judged a success for putting a halt to the militia-led
violence that occurred after the UN ballot, although
it has also been criticised for not anticipating that
violence. Defenders of the UN’s role in 1999 argue
that no intervention could have occurred without
the consent of the Indonesian government, and
that proceeding without that consent would have
had even more disastrous results. In terms of its
mission since 1999, the UN’s role in East Timor is
viewed as having led to positive outcomes, chiefly
the creation of East Timor as a nation. However,
as UN historian Paul Kennedy reminded us in his
book, The Parliament of Man: The Past, Present
and Future of the United Nations, the success of
UN intervention in this case depended very much
on the willingness of a member state – namely
Australia – to provide military assistance. East
Timor’s long-term success prospects may depend
on Australia’s continued willingness to contribute
to the rebuilding of the new country.
Cha pter 14: Option 5: Wor l d order 443
 Kennedy also argued that the increasing will-
ingness of smaller powers like Australia to be
involved in peacekeeping was a good thing for the
UN. The 47 000 military personnel and civilian
police serving in the UN’s 15 peacekeeping opera-
tions came from 88 different countries.
East Timor’s transformation to an independent
nation was an enormous legal step, but it occurred
relatively quickly due to the help of the United
Nations. A few months later, on 27 September
2002, Timor-Leste became the 191st member of
the United Nations.
Non-legal responses
T H E MEDIA
Journalists and global media networks were able to
broadcast real-time film footage of the murderous
rampage of pro-Indonesian militia, as well as the
lack of action by the Indonesian army and police
to stop the violence. This was highly influential
in turning world opinion against the Indonesian
occupation of East Timor and prompting decisive
UN action.
Figure 14.25 Australian soldiers served as UN
peacekeepers in East Timor.
444 C am b r id g e L e g a l S t u d ie s – HS C
DI PL O M ATI C PRE SSU RE
UN Secretary-General Kofi Annan did everything
he could, talking to all of the parties involved in
pursuit of an end to the violence that occurred
after the referendum. He maintained round-the-
clock contact with the governments of Indonesia
and Portugal and governments that might play
a key role in mounting and supporting an inter-
national force, such as Australia. Meanwhile,
Mary Robinson, the UN High Commissioner for
Human Rights, expressed deep concern over
reports of the escalating violence and said that
the Security Council must urgently consider
deploying forces to East Timor. There was much
communication between the UN and Indonesia
in the weeks following the UN ballot, with the UN
urging Indonesia to accept outside intervention.
US President Bill Clinton also pressured the
Indonesian president to allow a UN intervention.
Finally, the Indonesian government conceded
and the Australian-led INTERFET mission began
moving into East Timor, as American generals
quietly warned their Indonesian counterparts not
to attack the Australian peacekeepers. Again, in
Figure 14.26 Kofi Annan played an important
role in ensuring a peaceful settlement of the
situation in East Timor.
 O p t i o n 5: Wo rld o rd er
Figure 14.27 It was media images like this one, showing the violence that terrorised the people of East
Timor after the 1999 ballot, that turned public opinion against the Indonesian occupation of East Timor.

the area of diplomacy global cooperation was an
essential ingredient.
N G O EXPERTISE
Many NGOs are involved in East Timor, working
in a range of areas including improving education,
health, women’s rights and housing. There are also
NGOs working in the area of peace and security.
One notable NGO that has maintained a deep
interest in East Timor, particularly since the civil
strife that arose in 2006, is the International Crisis
the United Nations, Australia and the international
community. The December 2009 report, Handing
Back Responsibility to Timor-Leste’s Police, also
sounded a cautionary note. The report was very
critical of the way in which the UN administration
came in and took control of the East Timor police.
In short, work by NGOs such as the ICG is
indispensable for the long-term success of nation-
building in East Timor.
l eg a l l in k s

Group (ICG). The ICG assists the East Timorese

The ICG has an extensive
government and the UN administration there
database on Timor-Leste,
by producing reports on issues that are of vital
including detailed reports on
importance to East Timor’s future peace and
various issues. For the latest
security. For instance, the February 2009 report,
information on peace and
No Time For Complacency, noted that the security
security in Timor-Leste, go to
situation had dramatically improved since 2008
the ICG websites at www.crisis
but that there were still problems with security,
group.org/home/
the justice system was weak and corruption was
still a concern. Assistance was still needed from

Cha pter 14: Option 5: Wor l d order 445

 UN N AT ION -BUIL DIN G
The United Nations has committed itself to the
long-term future of Timor-Leste. It has learnt from
past mistakes of leaving conflict zones too early,
only to the see that area slip back into anarchy.
The UN is using all its experience and expertise
while also seeking out support globally to ensure
that Timor-Leste finally makes the transition to
a strong, economically sustainable nation-state
characterised by the rule of law. To this end the
UN Security Council passed a resolution in 2006
to shift the focus of the UN mission to nation-
building. On 25 August 2006, Resolution 1704
established the United Nations Integrated Mission
in Timor-Leste (UNMIT). Resolution 1867 in 2009
further extended UN operations into 2010.
l eg al l i nks
For the latest information on the
UN mission in Timor-Leste see
unmit.unmissions.org/
Default.aspx?tabid=225
AUS T R AL IAN AID
Australia has assisted East Timor since 1999 in
numerous ways. A few examples include:
s providing $890 million in assistance between
1999 and 2009
s building partnerships with the World Bank and
the UN to help with the coordination of develop-
ment assistance
s training 800 police for the East Timorese police
force
s providing medical aid in the form of 10 000
operations and 15 000 consultations by Austra-
lian medical personnel, and providing specialist
training for East Timorese
s training and supporting thousands of civil
servants
s 170 scholarships for East Timorese students to
study at universities in Australia
446 C am b r id g e L e g a l S t u d ie s – HS C
s creating 32 000 jobs through public works
projects
s supplying aid, water, food and medicine for
thousands of internally displaced people.
Australia has given strong political and moral
support to the government of Timor-Leste. When
Timor-Leste’s President José Ramos-Horta was
shot in an attempted revolt by some rebels in 2008,
Australia lent support by rushing the Timorese
leader to hospital in Darwin and ensuring that
Australian troops maintained peace and security
in the country.
Conclusion
While the United Nations intervention in East
Timor is considered a successful example of global
cooperation in world order issues, its work did not
finish in 1999 but continues to this day. The main
task now is building the institutions, infrastructure
and economic foundations for the future peace
and security of East Timor. In working towards this
goal, the United Nations knows that East Timor will
need all of the global cooperation that it can get.
The UN also appreciates the special responsibility
that Australia has taken in helping to maintain
peace and security, and continued aid packages.
Australian commitment has been needed. In
fact, Australia has had to step in twice in a sig-
nificant way in recent years. In 2006, thousands
of extra Australian soldiers and police were rushed
to the country to restore order and prevent further
bloodshed, and in 2008 Australian reinforcements
were again sent.
The United Nations’ success in East Timor has
been based on global cooperation in the following
areas:
s UN Security Council working together and give
a strong legal mandate for UN intervention
s diplomatic pressure exerted on Indonesia by
John Howard, Kofi Annan, Mary Robinson and
Bill Clinton
s media coverage of the violence in East Timor
s Australian willingness and capability with
respect to sending military forces in 1999
s UN commitment to continued nation-building
in East Timor
s Australian commitment to providing long-term
assistance.
Issue 4: Rules regarding
the conduct of
hostilities: International
humanitarian law
International humanitarian law (IHL) refers to
the body of treaties and humanitarian principles
that regulate the conduct of armed conflict and
seek to limit its effects. The treaties that form the
basis for IHL include the Hague Conventions, the
four Geneva Conventions of 1949 and the Geneva
Protocol of 1977.
International humanitarian law had its origins
in the late 19th century. While travelling through
a war-ravaged part of northern Italy on a business
trip in 1859, a Swiss merchant named Henri
Dunant witnessed the aftermath of a battle
between French and Austrian forces near the town
of Solferino. Thousands of wounded soldiers were
lying on the battlefield, dying lingering and lonely
deaths. Dunant was appalled, and he abandoned
his original trip to help care for them. Reflecting
on this experience, Dunant came up with the idea
of setting up a permanent organisation that would
look after the wounded of both sides in wartime.
His book, A Memory of Solferino, was published in
1862 and concluded with two appeals:
s that permanent relief societies should be estab-
lished in peacetime, with nurses who would
be available to treat the wounded in the event
of war
s that these volunteers who give medical assis-
tance in wartime should be protected by an
international treaty.
In 1863 the International Committee for Relief
to the Wounded was established. International
conferences in Geneva, Switzerland were held
that year and the following year, the second of
which resulted in a treaty that was called Geneva
Convention for the Amelioration of the Condition of
the Wounded in Armies in the Field. This convention,
with 10 articles, was the first Geneva Convention.
Prior to the treaty, the treatment of people
during wartime was random, with no agreed
universal standards. All nations that signed the
Convention understood that it would afford protec-
tion to their own wounded or captured soldiers in
the future. Countries had a mutual stake in agree-
O p t i o n 5: Wo rld o rd er
ing to respect international humanitarian law.
international
humanitarian law
the body of
l eg al l i n k s
international law
Dunant’s book, A Memory of deriving from treaties
Solferino, can be downloaded free and customary
practice that governs
as a PDF file from the Red Cross:
armed conflict,
www.icrc.org/WEB/ENG/ including rules on the
siteeng0.nsf/html/p0361 conduct of hostilities
and related issues that
may arise
Legal and non-legal
responses
Today we take the rules regarding the conduct of
hostilities for granted. Warfare is still horrific and
some soldiers commit atrocities in war. However,
today everyone knows the standards and the
rules of war. No one can say that he or she did
not know that a particular action was illegal. In an
imperfect world in which wars still occur far too
often, international humanitarian law encourages
compliance with the standards of human decency
that this branch of international law highlights.
Legal responses
The International Committee of the Red Cross
(ICRC) has a hybrid nature. It is an NGO, since it
was created by a group of private individuals and
is not controlled by any government. However, its
main role, to provide assistance and protection
to people in wartime, is now mandated by inter-
national treaties and applies to all states. Indeed,
Cha pter 14: Option 5: Wor l d order 447

Figure 14.28 Swiss citizen Henri Dunant
founded the International Committee of the Red
Cross (ICRC) in 1863.
the Geneva Conventions are the most signed
and ratified set of treaties in the world, with 194
signatories. Therefore the Geneva Conventions
have universal jurisdiction. This makes the ICRC
more than just an NGO, because the treaties give
it a legal personality of its own and raise it to the
level of an intergovernmental organisation (IGO)
bearing some similarities to the status of the
United Nations. Like the United Nations, the ICRC
enjoys privileges and immunities, and its offices
and facilities enjoy exemptions from taxation and
duties, inviolability of documents and premises,
and immunity from prosecution.
T R EAT IES
The primary instruments governing IHL are the
four Geneva Conventions.
The 10 articles of the First Geneva Convention
were adopted by 12 nations in 1864. The Conven-
tion covered the neutrality of ambulances, mili-
tary hospitals and medical personnel; the pro-
vision that wounded prisoners of war, if incapable
448 C am b r id g e L e g a l S t u d ie s – HS C
of serving, were to be returned to their home
country; and the use of the white flag with a red
cross as a symbol for neutral medical units.
After the Second World War, the First Geneva
Convention was updated and expanded, giving it a
total of 64 articles. Three other Conventions were
also created. The four Geneva Conventions of 1949
specifically protect people who are not taking part
in the conflict – civilians, medical personnel and
aid workers – and those who were but no longer
are participating, such as wounded, sick and ship-
wrecked soldiers and prisoners of war.
In 1977 two Additional Protocols were drafted
to supplement the Geneva Conventions.
The Conventions and their Protocols contain
strict rules to deal with ‘grave breaches’, which
include wilful killing of people protected by the
Conventions, torture and inhuman treatment,
including biological experiments, unlawful depor-
tation and forced service in the opposing side’s
military. Persons responsible for grave breaches
must be located and tried or extradited, regardless
of their nationality.
In brief, the content of the Geneva Conventions
is as follows:
s The First Geneva Convention (1949) protects
wounded and sick soldiers on land during war,
as well as medical and religious personnel.
s The Second Geneva Convention (1949) protects
wounded, sick and shipwrecked personnel at
sea during war. It also protects medical staff
and hospital ships.
s The Third Geneva Convention (1949) protects
prisoners of war. A central principle is that pris-
oners of war shall be released and repatriated
without delay after hostilities have ended.
s The Fourth Geneva Convention (1949) protects
civilians, including those in occupied territory.
The Second World War brought the necessity of
such a convention into stark relief.
All four Geneva Conventions have a common
article, Article 3, which covers situations of intra-
state armed conflict. This includes civil wars,
internal wars that spill over into other states, and
internal conflicts in which other states or a multi-
national force intervenes. This provision is of
essential importance given the nature of armed
conflict today.
s Additional Protocol I (1977) further strengthens
protection for civilians in international conflict
and bans the use of child soldiers.
s Additional Protocol II (1977) further strengthens
protection for civilians in intrastate conflict.
s Additional Protocol III (2005) protects people
working under any of the official symbols of
the International Red Cross and Red Crescent
Movement. (The Red Crescent was formally
recognised in 1929, in connection with military
forces from Muslim countries; the Red Crystal
was introduced as an additional symbol with
equal status, for military forces from Israel and
predominantly Jewish countries.)
The Hague Conventions of 1899 and 1907
govern other aspects of the conduct of war. Along
with the First Geneva Convention, they are among
the earliest formal statements of the laws of
war and certain types of war crimes. They were
negotiated at two peace conferences held at The
Hague in the Netherlands. The chief purpose of the
Hague Convention of 1899 was to prohibit the use
of certain types of technology in war, including
chemical weapons and hollow point bullets, as well
as the aerial bombing of cities and villages. The
Hague Convention of 1907 modified and expanded
upon the 1899 Convention, with a greater focus on
naval warfare.
In addition to the formal written law contained
in treaties, customary international humanitarian
law is another source of obligations on states.
Customary international law is general practice
accepted as law by the international community.
In 2005, the ICRC undertook an exhaustive study
resulting in the identification of 161 rules consti-
tuting the body of customary international law.
C O URTS
The ICRC was instrumental in the creation of the
International Criminal Court. In 1972, Gustav
Moynier, one of the founders of the ICRC, proposed
a permanent criminal court. At the Paris Peace
Conference in 1919, a permanent criminal court
was considered but with the massive agenda facing
the representatives and the peace conference,
never eventuated.
In 1945–46 the Nuremberg Trials put top Nazi
leaders on trial for war crimes and set a precedent
of holding leaders accountable for their actions. In
1948, when the Convention on the Prevention and
O p t i o n 5: Wo rld o rd e r
Punishment of the Crime of Genocide was adopted,
the UN General Assembly asked the International
Law Commission to develop a treaty establishing a
court to hear and determine charges of genocide.
However, the Cold War put an end to the project.
In the 1990s, the UN Security Council estab-
lished ad hoc international tribunals in response
to the mass killings in Rwanda and the former
Yugoslavia. In 1998, 160 countries and 200 NGOs
participated in a conference resulting in the Rome
Statute of the International Criminal Court. After
its 60th ratification in 2002 the treaty entered into
force and the International Criminal Court came
into being. The ICC finally gave teeth to the Geneva
Conventions. Previously, the ICRC had to depend
on states to prosecute offenders. Individuals can
now be prosecuted at the ICC for war crimes under
the Geneva Conventions.
A B U G H RA I B A ND G U A NTÁ NA M O : TH E
G E NE VA C O NV E NTI O NS DEFI ED
In recent years the ICRC has had to deal with
breaches of the Geneva Conventions from an un-
expected source: the United States. Vice President
Dick Cheney announced in 2001 that the ‘gloves
were off’ and the United States now had to be
prepared to work on the ‘dark side’ in its pursuit
of terrorists. This was more than just exaggerated
talk. Secret orders were given to allow the use
of various torture methods on detainees in US
detention. The US government claimed that since
these people were terrorists and therefore ‘unlaw-
ful combatants’, they were outside the protection
of the Geneva Conventions. In addition, the US
Cha pter 14: Option 5: Wor l d order 449
 Figure 14.29 American forces were guilty of violations of the Geneva Conventions at Abu Ghraib
prison in Iraq.
military made it difficult for the Red Cross to visit
detention facilities. Finally, the US government
set up a prison for people captured in the ‘war
on terror’ at their military base in Cuba called
Guantánamo Bay. Again the reasoning was to avoid
US law, albeit in a highly questionable fashion. The
Fifth and 14th Amendments to the US Constitution
state that a person cannot be deprived of ‘life,
liberty or property’ without due process of law –
that is, they cannot be held without trial – and the
Eighth Amendment prohibits ‘cruel and unusual
punishment’. The claim was that the constitutional
protections did not extend to foreigners held out-
side US borders. Nor, apparently, did the Convention
Against Torture and Other Cruel, Inhuman and
Degrading Treatment, signed and ratified by the US
in 1994. That convention prohibits such treatment
without exception.
450 C am b r id g e L e g a l S t u d ie s – HS C
The Bush Administration’s dabbling in the use
of torture badly damaged America’s international
reputation when photos of Iraqi victims being
tortured in Abu Ghraib prison in Iraq were released
to the media and the Red Cross released a damn-
ing report on the prison. America’s allies in the war,
including Britain and Australia, were dismayed
that their alliance partner was sanctioning the use
of torture. Not only had many of the Guantánamo
inmates, including the Australian David Hicks,
been held in detention for years without being
charged, but other factors made the practices
thoroughly imprudent. For example, it was argued
that terrorists could use these photos showing the
truth about Americans’ treatment of Muslims to
attract more recruits.
In 2009 President Obama announced that
Guantánamo Bay prison facilities would be closed
down and the remaining inmates brought to trial.
Also in 2009, discussion began in the US about
whether to conduct an inquiry into the actions of
the people at the top levels of the Bush Administra-
tion. The Obama Administration has signalled that
it will not use torture and will respect international
laws in this regard.
Non-legal responses
The International Committee of the Red Cross
(ICRC) plays a significant role in educating the
military forces of the world and the general
public about the requirements of IHL. The ICRC
has detailed guides designed for all the different
groups involved in wartime situations, such as:
s victims
s humanitarian workers
s UN peacekeepers
s journalists
s soldiers.
The ICRC also undertakes extensive education
programs in high schools around the world so
that the next generation may be fully informed
about IHL.
As well as initiating the rules and enforcement
mechanisms regarding the conduct of war, the
ICRC also works in many non-legal ways to help
people in armed conflict. In this work, the ICRC
acts as a neutral party and helps people on all sides
in a conflict. This does not mean that ICRC repre-
sentatives stay silent if they witness atrocities or
war crimes. The ICRC is the only organisation that
has the right to free movement across battle lines
in times of war. The following is a list of activities
that ICRC delegates are constantly engaged in:
s visiting prison camps, internment camps or
labour camps of both sides
s evaluating the conditions of prisoners of war
held in detention
s providing food, medicine, clothes and blankets
to those in need
s facilitating the exchange of information
between people on both sides of the conflict
about prisoners of war and missing persons.
The ICRC has a database in Geneva with 55
million entries, which represent more than 30
million cases over the last hundred years.
O p t i o n 5: Wo rld o rd e r
Today the ICRC has offices in more than 60
countries and conducts operations in about 80
countries. Geneva remains the head office and
provides backup for its field operations.
l eg al l i nks
For further information about
the global work of the ICRC
see www.icrc.org/web/eng/
siteeng0.nsf/htmlall/icrc_
worldwide?OpenDocument
Conclusion
The rules regarding the conduct of hostilities
have evolved into a sophisticated branch of public
international law. The international community
has given this body of law universal jurisdiction
and strengthened the enforcement measures. In
addition, the International Committee of the Red
Cross has served not only to alleviate the suffering
of people caught up in armed conflict, but also as
an inspection mechanism on the ground. Inter-
national humanitarian law plays an important role
in the maintenance of the international rule of law,
which in turn promotes world order.
Cha pter 14: Option 5: Wor l d order 451
 s An ordered world is needed if states are to
cope with globalisation and to counter global
threats such as nuclear war, climate change
and economic meltdown.
s Our system of international law is based on
the concept of state sovereignty.
s Multilateral approaches are far more effective s Australia has been an enthusiastic contributor
than unilateral action in dealing with the to the United Nations in the areas of the
common problems that face the international regulation of nuclear weapons, peacekeeping
community. and humanitarian assistance.
s Competition over access to resources such as s Chapter VII of the UN Charter sanctions the
fossil fuels and water are likely to become an use of force if authorised by the UN Security
C hap ter sum m ar y

even more serious source of conflict.
s The creation of the United Nations was a
massive multilateral commitment to a global
environment characterised by the rule of law.
s A growing number of international courts
exist to enforce international treaties and
conventions. These include the International
Court of Justice, the International Criminal
Court, and ad hoc tribunals set up to hear
matters arising from armed conflicts.
C ha p t er s um m ary tasks
Council, and Article 51 of the Charter allows a
nation-state to go to war in self-defence.
s The Geneva Conventions of 1949 are the
most signed treaties and are universally
applicable.
s The UN intervention in East Timor from
1999 to the present has been a success, but
this success has only been possible with the
cooperation and support of the international
community.

1 Describe the main means of achieving world

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

452 C am b r id g e L e g a l S t u d ie s – HS C
 1 The principle of the Responsibility to Protect
a is the same as humanitarian intervention
b allows the UNSC to send in peacekeepers
as soon as a country fails to meet basic
standards of human rights
c focuses more on prevention than reaction
d has yet to be agreed to by the UN General
Assembly
2 The Nuclear Non-Proliferation Treaty
a does not apply to the five permanent
members of the UNSC
b has not been signed by Israel, India and
M ul ti p l e choi ce q u e s ti o n s
Pakistan
c has failed to prevent most countries of the
world from acquiring nuclear weapons
d has not been signed by Iran, North Korea
and Myanmar
3 The International Criminal Court
a was authorised by the UN Security Council
in 1998
b was set up to deal with the mass atrocities
committed by the Nazis in the Second
World War
c was created by the Rome Statute, an
agreement between a number of states
d can hear only cases against states, not
individuals
Ex t en d ed re sp o n se q ues ti ons
1 Critically evaluate the effectiveness of
multinational efforts to achieve world order
over the past century.
2 Discuss the role of non-government
organisations in limiting the harm resulting
from interstate and intrastate conflicts.
3 Choose one or more states and non-state
actors (which can include international
organisations) and an example of a world
order issue from recent history or current
events that has not been discussed in this
chapter. Outline the interrelationships and
critically evaluate the parties’ conduct.
4 Can pressure be brought to bear on a
nation-state that refuses to participate in
international efforts to promote world order?
Outline potential strategies and identify
the parties that may be able to use such
strategies. Justify your answers.
4 International humanitarian law
a applies to all people in peacetime
b applies to all people affected by armed
O p t i o n 5: Wo rld o rd e r
conflicts
c was created by the Universal Declaration
of Human Rights
d only applies to about half of the states in
the world
5 The UN Security Council can override a
nation-state’s sovereignty when
a there are widespread human rights abuses
or mass atrocity crimes that require
intervention
b the nation-state does not trade with any
of the Permanent Five members
c there is a greater than 50% chance of
success
d the nation-state agrees to waive
sovereignty
In Section III of the HSC Legal Studies
examination you will be expected to
complete an extended response question
for two different Options you have studied.
There will be a choice of two questions
for each Option. It is expected that your
response will be around 1000 words in
length (approximately eight examination
writing booklet pages). Marking criteria for
extended response questions can be found
at www.cambridge.edu.au/education. Refer
to these criteria when planning and writing
your response.
Cha pter 14: Option 5: Wor l d order 453
 T h e m e s a n d ch a l l e n g e s
The role of law in encouraging cooperation
and resolving conflict in regard to world order
s The UN Charter laid out the mechanisms for
encouraging cooperation for the purpose of
safeguarding human rights and promoting
social and economic progress. It also gave
detailed guidelines for resolving disputes
using peaceful means and for the use of force
by the UNSC if all else fails.
s The ICRC has encouraged all military forces to
educate their personnel about international
humanitarian law, particularly the Geneva
Conventions, and seeks to educate the
community about how to alleviate the
suffering of people affected by war.
s NGOs use education and persuasion to
encourage global cooperation.
s Multilateralism is an approach to world order
that draws on the individual and collective
strengths of the various parties, and is
generally the most effective way to resolve
conflicts.
s Peacekeeping has been strengthened since
the 1990s by the willingness of the UNSC to
use Chapter VII powers to give its operations
legal authority.
454 C am b r id g e L e g a l S t u d ie s – HS C
Compliance and non-compliance in world
order contexts
s Interdependence of states encourages
greater compliance with international law, but
also may contribute to non-compliance.
s State sovereignty can be used as an
impediment to compliance with international
law, but also may encourage compliance,
especially when two or more states agree on
world order issues.
s States that fail to comply with the Geneva
Conventions and other mechanisms that
regulate the conduct of hostilities will usually
face international condemnation.
s The UN and the Security Council sought to
secure compliance from Indonesia in 1999 by
intervening in East Timor.
s International courts and tribunals seek
to enforce individuals’ compliance with
international law by providing a means to
bring people to justice when their countries
either cannot or will not take action.
s Force, persuasion and political negotiation
are generally used to obtain states’
compliance with international law.
s Force alone is generally ineffective in
producing long-term compliance with the law;
hence the need for more measured, long-
term approaches, such as are represented by
R2P and the Peace Building Commission.
The effect of changing values and ethical
standards on world order
s The UN Charter represents a fundamental
change in world order; it declared war to be
illegal except in specified conditions, and
declared the protection of human rights to be
one of the world community’s main priorities.
s The Universal Declaration of Human Rights
marked a fundamental change in the values
of the international community and laid
the foundation for a major new branch of
international law.
s The Genocide Convention declared that the The effectiveness of legal and non-legal
international community will never again responses in promoting and maintaining world
tolerate the sort of genocide carried out by order
the Nazis against the Jews in the Second
s Most international law is made by treaties,
World War.
which therefore have a major role in giving
s Responsibility to Protect places the security
order and direction to global governance.
of individuals at the centre of the international
s UNSC resolutions have the force of law and
community’s concern, rather than the security
are binding upon all UN member states.
of states.

O p t i o n 5: Wo rld o rd er
However, it is only since the 1990s that a
s UNSC Resolution 1887 of 2009 marked a
level of cooperation has existed between
return to multilateral cooperation in dealing
the permanent members of the UNSC to
with the threat of nuclear war.
allow their effective operation. If the UNSC
members are prepared to back them with
The role of law reform in promoting and
action, UNSC resolutions can be the most
maintaining world order
powerful legal mechanism.
s As the doctrine of Responsibility to Protect s The advent of the ad hoc tribunals in the
becomes the norm, all those organisations 1990s marked the beginning of a new chapter
involved in dealing with difficult regimes that in using international courts to maintain world
have little regard for their citizens will have order by prosecuting serious breaches.
clear guidelines on how to proceed. s NGOs use investigation, research, education
s The Geneva Conventions have been subject and lobbying to promote the welfare of
to ongoing improvement for over 150 individuals and groups.
years; the ICRC continues to educate both s Wise political leadership is always a necessary
the public and all military forces about ingredient for promoting a just and stable
the Conventions, as well as monitor their world order.
observance.
s The Nuclear Non-Proliferation Treaty has
proved very useful in limiting proliferation
to a small number of countries. However,
genuine reform must occur from 2010 to
tighten the treaty and enforce compliance
by intransigent states, as well as to reduce
nuclear stockpiles significantly.
s UN peacekeeping was grafted onto the UN
system to meet an urgent need during the
Cold War. Since then it has been accepted as
performing an invaluable role in maintaining
world order.
s The International Criminal Court plays a
critical role in enforcing international human
rights law and international humanitarian law.

© 2010 Copyright Board of Studies NSW for and on behalf of the Crown
in right of the State of New South Wales. HSC Legal Studies Syllabus 2009.

Cha pter 14: Option 5: Wor l d order 455

 Answers to multiple-
choice questions
Pa rt I

C H APT ER 1 C H A P TER 4
1b 2a 3d 4d 5b 1a 2d 3c 4a 5c

C H APT ER 2 C H A P TER 5
1a 2d 3a 4c 5a 1b 2c 3c 4b 5c

C H APT ER 3 C H A P TER 6
1a 2b 3c 4a 5a 1d 2c 3c 4c 5d
P art I I

C H APT ER 7
1b 2c 3b 4d 5b

C H APT ER 8
1b 2c 3c 4c 5d

C H APT ER 9
Issu e 1 – 1 c 2c 3a 4b 5d
Issu e 2 – 1 b 2c 3b 4a 5a
Pa r t I I I

C H APT ER 10 CH A P TER 1 3
1a 2c 3a 4b 5a 1a 2d 3c 4c 5a

C H APT ER 11 C H A P TER 1 4
1c 2c 3b 4a 5d 1c 2b 3c 4b 5a

C H APT ER 12
1c 2c 3a 4d 5d

456 C am b r id g e L e g a l S t u d ie s – HS C
Glossary
abolitionism a worldwide political
movement that sought to abolish
slavery
acceptance the unconditional
consent to all the terms of the offer
accused the person or alleged
offender that the criminal action is
being taken against
acquittal a judgment that a person
is not guilty of the crime with which
the person has been charged
actus reus a Latin term meaning
‘guilty act’ that refers to the
physical act of carrying out a crime
ad hoc for a particular purpose,
usually exclusive and often
temporary
adoption the legal process of
transferring parental rights and
responsibilities from the biological
parents to the adoptive parents
adversary system a system of law
where two opponent sides present
their case to an impartial judge or
jury
advertising any action designed to
draw the attention of consumers to
the availability of goods or services
in the marketplace
affray using or threatening to
use violence towards another that
would cause a reasonable person
present at the scene to fear for
their safety
aggravated assault the assault of
a person with an object rather than
the assailant’s own body
aggravated sexual assault in
company sexual assault performed
with another person or people
present together with aggravating
circumstances
aggravating factors circumstances
that make the offence more serious
and can lead to an increased
sentence
alternative dispute
resolution dispute resolution
processes, such as mediation,
arbitration and conciliation, that do
not involve courts
ancestor a person from whom
someone is descended, on
either parent’s side; a parent,
grandparent, great-grandparent,
etc.
annulment a declaration by a
court that a supposed marriage is
in fact void
appeal against conviction appeal
where the appellant (the
defendant) argues that they did
not commit the offence for which
they were found guilty
appeal an application to have a
higher court review a decision of a
lower court
appellant in an appeal case, the
party who is making the appeal
appellate jurisdiction the
authority for a court to review
matters on appeal from another
court
Apprehended Domestic Violence
Order (ADVO) a court order
that aims to protect the applicant
from violence and other forms of
intimidation or abuse perpetrated
by a family member
Apprehended Personal Violence
Order (APVO) a court order that
aims to protect the applicant
from violence and other forms of
intimidation or abuse perpetrated
by someone who is not a member
of the applicant’s family
arbitration (industrial relations law)
process of resolving an industrial
dispute, often after conciliation
has failed, by a legally enforceable
order of a court or commission
arrest to seize a person by legal
authority and take them into
custody
assault a criminal offence involving
the infliction of physical force or
the threat of physical force
attempt an offence where a
principal crime was attempted but
failed or was prevented for some
reason despite the intention to
complete it
Australian Federal Police
(AFP) Australia’s Commonwealth
police force established to enforce
Commonwealth criminal law and
to protect Australia’s interests from
crime in Australia and overseas
Australian Workplace Agreement
(AWA) an individual workplace
agreement between an employer
and an employee under the
Workplace Relations Act 1996
(Cth); an AWA would override and
take the place of any award or
collective agreement
autonomy freedom of the will,
self-government; the ability to act
without outside interference
bail the temporary release of an
accused person awaiting trial,
sometimes on particular conditions
such as lodgment of a sum of
money as a guarantee
bait advertising advertising goods
or services for sale at a specified
price with the knowledge that the
company will not be able to offer
them at that price for a reasonable
period
better off overall test (BOOT) a
criterion for Fair Work Australia’s
approval of an enterprise
agreement, requiring that
employees are better off overall
than under the relevant modern
award
beyond reasonable doubt the
standard of proof required in
criminal law, which requires the
prosecution to show there is no
reasonable doubt that the accused
committed the offence
bilateral agreement an agreement
between two countries
biodiversity variation of life forms
on Earth; the complete range of
types that is possible within an
ecosystem, biome or species
blended family a family that is
created when a parent remarries;
it includes the stepmother or
stepfather and stepchildren
457
 bond a compulsory condition
imposed on the offender for a
period of time, which the offender
undertakes to comply with
breach to fail to obey
break and enter commonly
known as burglary, break and enter
offences usually occur when a
person enters a home with intent
to commit an offence
built environment all of the
buildings, transport routes and
infrastructure, parks, and other
surroundings that have been made
by people and constitute the
setting for human activities
burden of proof in criminal
matters, the responsibility of the
prosecution to prove the case
against the accused
cartel a group of companies that
work together to control prices and
markets; if their behaviour is found
to be anti-competitive, it is illegal
casual employment employment
‘as needed’, on an irregular basis,
with no set schedule or guarantee
of ongoing employment; generally
paid at an hourly rate
causation the link between the
behaviour of the accused and the
result (i.e. that the behaviour of
the accused actually caused the
criminal act alleged)
caution (1) a formal, recorded
alternative to prosecution where
the young offender admits to the
offence and consents to receiving
a formal police caution; it can
later be taken into account at the
Children’s Court, but not an adult
court
(2) a statement issued by police to
a suspect when they are detained
to inform them of their rights
celebrant a person who is
authorised to perform a civil or
religious marriage ceremony
challenge for cause when the
legal team strikes a juror because
it is believed that for some reason
the juror will be prejudicial
charge formal accusation of a
person of committing a criminal
offence
child soldier a person under the
age of 18 who participates, directly
or indirectly, in armed conflict as
part of an armed force or group,
including both armed and support
roles
458 C am b r id g e L e g a l S t u d ie s – HS C
circle sentencing a form of
sentencing for some adult
Aboriginal offenders where
sentencing is conducted in a circle
of local community members and a
magistrate
codification the spelling out of
obligations in legislation (domestic
law) or in a treaty (international
law)
Cold War the state of hostility,
without actual warfare, between
the USSR and its satellites and the
USA and its allies in the Western
world, which lasted from just after
the Second World War until about
1991
collective right a right belonging
to a group or a people, as opposed
to an individual right
collective security the principle
based on the agreement of a
group of nations not to attack one
another and to defend each other
from attack from others; the idea is
that an attack on one country is an
attack on all
committal proceedings where
a magistrate determines if there
is enough evidence for a case to
proceed to trial in a higher court
common assault threatening to
cause physical harm to another
person
communal killing violence and
killing within communities
community service order where
the offender is sentenced to serve
specified hours of work in the
community
compensation a monetary
payment made to a person to
make amends for any loss, injury,
or damage to property
consent it is a complete defence
for some crimes if the accused can
show the victim freely consented to
the act in question
conciliation (1) a form of
alternative dispute resolution in
which the disputing parties use
the services of a conciliator, who
takes a more active role than in
mediation, advising the parties,
suggesting alternatives and
encouraging the parties to reach
agreement. The conciliator does
not make the decision for them
(2) process of resolving an
industrial dispute by mutual
agreement of the parties, ratified
by a court or commission
conclusive presumption a legal
presumption in favour of one party
that is final (conclusive) and cannot
be rebutted by the other party
condition (of a contract) a term
of fundamental and essential
importance; if a condition is
breached by a party the other
party is entitled to end the contract
conscription compulsory
enlistment in the military force of a
nation-state
consensus ad idem a Latin term
meaning ‘agreement as to the
same things’; agreement between
the parties to a contract about the
terms
consideration something given,
done or suffered in return for a
promise in a contract
conspiracy when two or more
people plot to commit a crime
together
constitutional corporation a
corporation to which s 51(xx) of
the Australian Constitution applies;
these include foreign corporations
and companies incorporated under
Australian law that engage in
financial activities and buying and
selling
constructive manslaughter the
killing of a person while the
accused was carrying out another
dangerous or unlawful act
consumer contract a contract for
the supply of goods or services,
or for a sale or grant of interest in
land, to an individual purchasing
the goods, services or land for
personal or household use
contemporary slavery a form of
forced or bonded labour, without
or with pay, under threat of
violence
continued detention on-going
detention of a person after they
have already served the full
sentence for their offence
contract an agreement made
between two or more persons
that is recognised by the courts as
being legally binding on the parties
contract for services an
agreement between a contractor
and a client, under which the
contractor performs agreed
tasks for an agreed fee but is not
employed by the other party
contract of service an
employment agreement, under
which a worker (employee) works
for an employer, imposing certain
duties on each party and providing
specific rights for the period of
employment, which may be for a
fixed term or ongoing
control order similar to an adult
sentence of imprisonment, except
served in a juvenile justice centre
convention another term for a
treaty: that is, an international
agreement between parties who
are subject to international law (i.e.
nation-states but also international
organisations such as the United
Nations and its bodies)
cooling-off period a period of time
that gives buyers an opportunity to
rethink their decision to enter into a
contract of sale
coroner a judicial officer
appointed to investigate deaths in
unusual circumstances
coronial inquest a court hearing
conducted by a coroner to help
determine the manner and cause
of death
correctional centre commonly
known as a prison – institution
where offenders are held in
custody for the period of their
imprisonment
court hierarchy the system of
courts within a jurisdiction, from
lower courts to intermediate and
higher courts
crime against the international
community a most serious crime
of concern to the international
community as a whole, and
recognised as punishable by the
international community
crime an act or omission com-
mitted against the community at
large that is punishable by the state
crimes against humanity crimes
such as murder, enslavement,
deportation from a country,
torture, rape and persecution that
occur on a large and systematic
scale
criminal infringement notice
a notice issued by the police
outside of court alleging a criminal
infringement and requiring
payment of a fine
criminal negligence where the
accused fails to foresee the risk
where they should have and so
allows the avoidable danger to
manifest
criminology the scientific study of
crime and criminal behaviour
customary international law a
general practice of law, which is
followed by nation-states because
they view it as obligatory and
legally binding
damages money ordered by a
court to be paid to a plaintiff as
compensation for damage suffered
de facto relationship a
relationship where the partners act
as a married couple but are not
legally married
debt bondage a situation where
a person is forced to repay a loan
with labour instead of money,
where the proper value of the
labour is not applied towards
repayment or the type or duration
of services are not properly limited
debt slavery slavery in order to
pay off a loan with forced labour
rather than money
declaration a formal statement
relating to a particular issue or set
of issues, agreed to by a group of
nation-states but without binding
legal force
decree absolute a final decree of
the dissolution of marriage
decree nisi a Family Court order
that is made to signal the intended
termination of a marriage
descendant a person who by
genetics or adoption follows the
family line of another; a child,
grandchild, great-grandchild, etc.
deterrent something that discour-
ages or is intended to discourage
someone from doing something
dictatorial (of a government)
having unrestricted authority or
power
diminished responsibility also
known as substantial impairment of
responsibility, this defence is used
when the accused is suffering from
a mental impairment that caused
them to commit the crime
direct discrimination a practice
or policy of treating a person or
group of people less favourably
than another person or group in
the same position, on the basis
of sex, race, national or ethnic
origin, age, sexuality or other
characteristic
discrimination unfavourable treat-
ment of a person or group relative
to the way others are treated
diversionary program an
alternative to the traditional court
system, diversionary programs
focus on therapeutic justice and
rehabilitation of offenders
division of powers the
arrangement for the how the
Glo s s ary
powers between the federal and
state government and divided.
divorce the legal termination of
a marriage by an official court
decision
DNA evidence genetic material
(such as hair, blood and saliva) that
can be used to link a suspect with a
crime scene or criminal offence
doli incapax a Latin term
meaning ‘incapable of wrong’; the
presumption that children under a
certain age cannot be held legally
responsible for their actions and
cannot be guilty of an offence
domestic violence any act,
whether verbal or physical, of a
violent or abusive nature that takes
place within
dominion a semi-autonomous
political entity that was nominally
under the sovereignty of the British
Empire
dualist system a legal system that
does not deem treaties enforceable
domestically but requires
incorporation into domestic law,
usually by passing similar legislation
duress coercion or pressure used
to influence someone; a defendant
may be acquitted if they can show
they acted against their will under
unlawful pressure
ecological footprint a measure
of human demand on Earth’s
ecosystems, comparing human
demand with the planet’s
ecological capacity to regenerate;
a person’s impact on the planet as
a result of his or her lifestyle
ecologically sustainable
development (ESD) development
which aims to meet the needs of
society today, while maintaining
and conserving ecological
processes for the benefit of future
generations
Gl os s ary 459
 Economic and Social Council
(ECOSOC) the UN organ acting as
a forum for international economic
and social cooperation and
development
embezzlement when a person
steals money from a business over
a period of time while they are
employed at that workplace
employment the contractual
relationship between an employer
and an employee, involving work
performed for monetary payment
and other benefits
enterprise a business or company
enterprise agreement a legally
binding agreement between the
employees of a corporation, non-
profit organisation or government
body, and their employer, setting
the terms and conditions of the
employment relationship
enterprise bargaining negotiation
of an agreement about wages and
working conditions by an employer
and its employees, or the trade
union representing them
enumerated powers legislative
powers that are specifically set
out as belonging to a particular
parliament; in Australia, the
enumerated powers of the
Commonwealth Parliament are
listed in s 51 of the Constitution
envirostunt a publicity stunt to
attract attention to a particular
environmental issue
equal employment opportunity
legislation laws requiring
employers to ensure that people
are not subjected to discrimination,
to eliminate factors that restrict
groups’ opportunity to enjoy
employment benefits, and perhaps
to implement programs that
provide specific opportunities to
disadvantaged groups
ethnic cleansing a term used as a
euphemism for genocide
evidence information supporting
to used to establish facts in a legal
investigation or admissible as
testimony in court
ex aequo et bono a Latin term
meaning ‘according to the right
and the good’; on the basis of what
is fair and just in the circumstances
ex-nuptial a Latin term meaning
‘outside marriage’; an ex-nuptial
child is a child born outside a
marriage
460 C am b r id g e L e g a l S t u d ie s – HS C
express rights rights that are
expressly included in a document
express terms contractual terms
that have been specifically stated
and agreed by both parties at the
time the contract is made, either in
writing or orally
extended family a family that
includes individuals related through
marriage or parentage and not
limited to one couple and their
children; in some cultures, close
family friends are regarded as
members of the extended family
external costs (externalities) the
effects of an activity, such as the
production, transport and sale of
goods, which affect persons who
are not directly involved in the
activity and are not paid for by
those who are involved, such as the
producer
extradition the legal surrender of
a suspect or convicted criminal by
one jurisdiction to another to face
criminal charges or sentence
fascism an authoritarian system
of government that is opposed
to democracy and is marked by
the State having total control over
the economic, social, cultural and
political life of the people
fiduciary duty (1) legal obligations
that must be fulfilled without
regard to self-interest or the
opportunity to make unauthorised
profit from the position
(2) the legal duty to manage a
client’s money while it is held in a
trust account
fine monetary penalty imposed for
infringement of a law
fit for purpose an implied term in
contracts of sale, guaranteeing that
the goods sold will do what they
were designed to do
forced labour work performed
under the threat of a penalty or
harm which the person has not
voluntarily submitted to
forced marriage marriage in which
one or both parties is married
against his or her will, often on
promise of payment of money
or goods to the family or other
person involved
forfeit (also known as forfeiture)
loss of rights to property or assets
as a penalty for wrongdoing
Four Freedoms the freedoms
for all people called for by US
President Franklin Roosevelt in his
1941 State of the Union address,
including freedom of speech and
conscience, and freedom from fear
and want
fraud deceitful or dishonest con-
duct carried out for personal gain
free trade trade between countries
that is subject to few or no
government restrictions on imports
or exports
freedom of contract the freedom
of individuals to bargain the terms
of their own contracts, without
regulation by the state
General Assembly (UNGA) the UN
organ representing all UN members
states; acts as a forum for global
discussion and runs numerous
committees and programs
general deterrence punishment
attempting to make an example
of an offender in order to send
a message to the rest of the
community
Geneva Conventions four treaties
and three additional protocols that
set the standards in international
law for the humane treatment of the
victims of war
genocide the deliberate
extermination of a national, ethnic,
racial or religious group
global financial crisis the
international collapse of banks
and credit institutions, along with
devaluation of many currencies,
a downturn in stock markets, and
decline in international trade,
caused by a cluster of factors
including the sudden drop in
property values in the USA in
September 2008
globalisation the ongoing
integration of regional economies,
societies and cultures brought
about by the removal of restrictions
on international trade, travel and
mass communication
good faith the intention to honour
a commitment undertaken
gratuitous violence excessive
amount of violence carried out
without reason, cause or excuse
grave adult behaviour where a
young offender has acted like an
adult in committing the offence,
indicated by the seriousness of
the offence and other factors
surrounding the behaviour such as
premeditation
greenfields agreement an
agreement created to cover
prospective employees of a new
enterprise
guideline judgments a judgment
issued by the court on application
of the Attorney-General that will
set out sentencing guidelines for a
particular offence
guild a medieval association of
craftsmen or merchants
hard law conventions and treaties
that under international law create
legally binding obligations on their
members
harmonised legislation statutes
in two or more jurisdictions which
deal with certain matters in the
same way
heads of power powers listed in
ss 51 and 52 of the Constitution
that describe the areas that the
Commonwealth can legislate on
hegemony dominance of one
nation over others
holistic taking into account all
aspects; looking at the whole
system rather than just specific
components
home detention imprisonment
sentence where the offender is
confined to their home under
certain conditions of monitoring
homicide the act of killing a
human being
Human Rights Council
(UNHRC) UN forum of member
states responsible for overseeing
and making recommendations on
human rights in all member states
human rights in a general sense,
basic rights and freedoms believed
to belong justifiably to all human
beings
human shield the placement of a
civilian in or around military targets
to deter the other party from
attacking that target
human trafficking the commercial
trade or trafficking in human
beings for the purpose of some
form of slavery; usually recruiting,
transporting or obtaining a person
by force, coercion or deceptive
means
humanitarian intervention the
doctrine justifying military
intervention in a state in order to
stop serious human suffering and/
or human rights violations
implied rights rights that can be
implied through the text, structure
or purpose of a document
implied terms contractual terms
that have not been expressly
stated, but which the courts are
willing or required by statute to
enforce
in situ a Latin term meaning ‘in the
place’; used to describe the place
in which a piece of evidence is
found or situated
inadmissible evidence evidence
that cannot be considered by
a judge or jury in court, for
example, evidence that has been
compromised or was obtained by
unlawful means
inalienable right a right that
cannot be taken away
incapacitation to make an
offender incapable of committing
further offences by restricting their
freedom
incorporation the process by
which a country implements a
treaty into domestic law
indecent assault an assault
and ‘act of indecency’ on or in
the presence of another person
without their consent
independent contractor someone
who is paid for work done for
another person without there
being a contract of employment
between them; instead, the parties
will have a contract for services
indictable offences more severe
offences that are heard and
sentenced by a judge in a District
Court or tried before a judge and
jury
indirect discrimination practices
or policies that appear to be
neutral or fair because they treat
everyone in the same way, but
which adversely affect a higher
proportion of people from one
particular group
industrial action any action
taken by employees to reduce
productivity in the workplace, e.g.
strikes, slowdowns of work, refusal
to work overtime, or doing only the
minimum required; the purpose is
usually to protest unjust workplace
policies of the employer
industrial award a standard set of
wages and working conditions for
employees in a particular industry
or type of work, or those who are
employed by particular employers
industrial relations the
relationship between employers,
employees, the government and
trade unions
Industrial Revolution the rapid
development of industry in the 18th
and 19th centuries, characterised
by changes in manufacturing,
agriculture and transport
infanticide the death of a baby
under the age of 12 months at the
hands of its mother
injunction a court order directing
Glo s s ary
someone to do something or
prohibiting someone from doing
something
injury management a program
developed for an injured worker
that includes all aspects of his
or her treatment, rehabilitation
and retraining, and is aimed at
facilitating his or her return to work
inquisitorial system a system
of law where two sides present
their cases to a judge who directs
the cases and calls for particular
evidence
insider trading when a person
illegally trades on the share market
to their own advantage using
confidential information
instrument a document by which
some legal objective is achieved;
may be binding (e.g. statutes,
treaties and deeds) or non-binding
(e.g. guidelines, declarations and
recommendations)
interdependence the
interconnection of two or more
states to such an extent that they
are mutually dependent on each
other for survival and mutually
vulnerable to crises
intergenerational equity fair and
just behaviour of one generation
towards subsequent generations;
in terms of environmental issues, a
concept that centres on preserving
Earth’s resources for future
generations
intergovernmental organisation
(IGO) an organised group of two
or more states, set up to pursue
mutual interests in one or more
areas
International Bill of
Rights informal term collectively
describing the UDHR, ICCPR and
ICESCR combined
international conference a forum
held for the purpose of debate and
agreement among nation-states
Gl os s ary 461
 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
International Covenant on
Civil and Political Rights
(ICCPR) binding international
treaty creating obligations on
states to respect civil and political
rights of individuals
International Covenant on
Economic, Social and Cultural
Rights (ICESCR) binding
international treaty creating
obligations on states to respect
economic, social and cultural rights
of individuals
international crime a broad term
covering any crime punishable by
a state with international origin
or consequences, or a crime
recognised as punishable by the
internationally community
International Criminal Court
(ICC) an independent international
court established by the Rome
Statute in July 2002 to prosecute
and try international crimes of the
most serious nature
International Criminal Police
Organization (INTERPOL) the
world’s largest international police
organisation established in 1923
to facilitate collaboration among
intelligence agencies around the
world
international customary
law actions and concepts that
have developed over time to the
extent that they are accepted by
the international community and
have become law
international humanitarian
law the body of international
law deriving from treaties and
customary practice that governs
armed conflict, including rules
on the conduct of hostilities and
related issues that may arise
International Labour Organization
(ILO) an international agency of
the United Nations, created with
the aim of improving conditions for
workers around the world
interrogate (interrogation) the act
or process of questioning a suspect
by the investigating officers
interview friend a parent,
guardian, friend or legal
representative present at the
police interview of a minor; the
presence of an interview friend is
462 C am b r id g e L e g a l S t u d ie s – HS C
to offer support and witness that
statements are made voluntarily
intestacy the situation in which a
person dies without a legally valid
will
intragenerational equity fair
and just treatment of people and
groups within a generation; in
terms of environmental issues,
a concept that focuses on fair
management and use of Earth’s
resources between different groups
of the same generation
investigate for the police, this
means carrying out research to
discover evidence and examine
the facts surrounding an alleged
criminal incident
invitation to treat words or
conduct made to invite someone
to make an offer or to negotiate
involuntary behaviour or
automatism an act that could not
be controlled or was not voluntary,
such as an epileptic fit
involuntary manslaughter the
killing of a person where the death
occurred because the accused
acted in a reckless or negligent
way without intention to kill
journeyman dating from the later
Middle Ages, a worker who had
completed his apprenticeship
(period of training) and was then
qualified to work for wages for a
master
judicial discretion the power of
a judge or magistrate to make
a decision within a range of
possibilities based on the particular
circumstances of a case
jus cogens a Latin term meaning
‘compelling law’ also called a
‘peremptory norm’: a norm of
customary international law that
is indisputably accepted by the
international community and is
therefore binding on everyone
regardless of whether a particular
leader or nation accepts it
juvenile justice centre a detention
centre housing young offenders
subject to a control order
juvenile justice the area of law
and policy concerned with young
people and the criminal justice
system
labour rights rights at work,
including rights to safe working
conditions, minimum wages, paid
leave or the right to join a trade
union
laissez-faire a French term used to
describe economic philosophies that
government should not intervene in
business
laissez-faire economy an economic
system in which the state refrains
from interfering with markets by
regulation or other means
larceny when one or more persons
intentionally takes another person’s
property without consent and
without intention of returning it
legal aid a subsidised legal service
provided by the state for low-
income earners
licensee licence holder
litigation civil legal proceedings
whereby disputing parties seek a
binding remedy by a court
locus standi a Latin term meaning
‘a place for standing’; also
‘standing’: a requirement that a
person or group have a sufficient
interest in the subject matter in
order to be permitted to bring an
action
magistrate a judicial officer in
the Local Court; in NSW they are
appointed by the Governor
maintenance a financial payment
made by one spouse to contribute
to the care and welfare of the
other spouse and/or children of the
marriage
mandatory sentencing removal of
judicial discretion by legislation, by
setting a minimum or mandatory
sentence for a particular offence or
type of offender
manslaughter the killing of a person
in a manner that is considered to be
less intentional than murder
marriage the union of a man and a
woman to the exclusion of all others,
voluntarily entered into for life
mass atrocity crimes (mass
atrocities) a broad term for
crimes that fall into the categories
of genocide, war crimes, ethnic
cleansing and crimes against
humanity; this is the term favoured
by the UN since it avoids making
distinctions of whether the crimes
were committed in war or peace, or
as part of an intrastate or interstate
conflict
maximum penalty set by
parliament, this is the maximum
sentence available to a court to
impose for an offence; the maximum
penalty will rarely be handed down
mediation a form of dispute
resolution in which a neutral third
party helps the disputing parties to
settle their dispute
mens rea a Latin term meaning
‘guilty mind’, meaning that the
accused intended to commit the
crime knowing their actions were
wrong
mental illness or insanity mental
incapacitation at the time of the
act, meaning the accused cannot
have formed the mens rea, but
rarely proved
merchantable quality a condition
in contracts, implied by statute,
guaranteeing that goods offered
for sale are of a sufficiently high
quality to be suitable for sale, and
are fit for their usual purpose
militia a group of unofficial
soldiers who act outside
international law and are often
secretly used by governments
mistake the defendant acted
under an honest and reasonable
mistake and could not have formed
the mens rea
mitigating factors conditions that
may be considered by a court when
determining guilt or innocence
of a defendant; mitigating
circumstances do not justify or
excuse an offense but may reduce
the severity of a charge
monist system a legal system
that deems treaties enforceable in
domestic law as soon as they have
been signed
monopoly exclusive control of a
market by one company, which
generally results in increased prices
because there are no alternative
suppliers
multilateral treaty an international
agreement involving three or more
parties
multilateralism cooperation
between multiple states for mutual
benefit or protection from common
threats
murder the deliberate killing of a
person
nation a people that share
common heritage, language or
culture and sometimes a common
race
nation-state see state
natural environment all of the
elements that surround and
influence life on Earth, including
atmospheric conditions, soil, plants,
animals and micro-organisms, the
water cycle, and the systems in
which these elements interact
natural justice the body of rules
that ensure that decision-makers
act fairly, in good faith and without
bias when resolving disputes
natural law the theory that certain
laws come from an unchanging
‘natural’ body of moral principles
as the basis for all human conduct,
and so have validity everywhere
neglect continued failure by a
parent to provide a child with the
basic things needed for proper
growth and development, e.g.
food, shelter, medical care, hygiene
and supervision
negligence breach of a duty of
care resulting in harm that could be
foreseen
non-government organisations
(NGOs) independent non-
profit groups based on common
interests and aims, which have no
connection with any government
and which often play an important
role in advocating, analysing and
reporting on various issues
non-parole period a period of
imprisonment for which parole
cannot be granted
nullify to declare legally void or
invalid
nuptial a Latin term meaning
marriage; a nuptial child is a child
born within a marriage
Nuremburg trials a series of
military tribunals that took place
from 1945 to 1946; they were held
by the victorious allied powers in
Nuremburg, Germany after the
Second World War; the trials are
famous for their prosecution of
prominent leaders of defeated
Nazi Germany for crimes against
humanity and war crimes
observer status in the United
Nations General Assembly (GA),
the position of an organisation or
other entity that has been granted
the right to speak at GA meetings,
participate in procedural votes,
and sponsor and sign resolutions,
but not to vote on resolutions and
other important matters
offer a firm proposal to form a
binding contract, made with a
willingness to be bound by its
terms
offeree the person to whom the
offer of a contract is made
offeror the person making an offer
of a contract
Office of the High Commissioner
for Human Rights UN human
rights office responsible for
monitoring and reporting on
human rights worldwide
original jurisdiction the authority
for a court to hear a matter for the
first time
outworker an employee who
works at home or another place
besides the premises of his or
Glo s s ary
her employer, or an independent
contractor in the textile, clothing
or footwear industry who works at
home or other premises
parole release of a prisoner before
the expiry of an imprisonment
term, temporarily or permanently,
on the promise of good behaviour
peacekeeping the activity of
creating conditions for sustainable
peace in countries affected by
conflict, through the use of force,
quite often provided by a number
of countries and consisting of
soldiers, civilian police and civilian
personnel
peak body an association made
up of a number of organisations
that have similar interests and aims;
the peak body will set policy and
coordinate common activities for
the organisations
penalty units a specified unit
of money used in legislation to
describe the fine payable
people smuggling illegal
transportation of people across
borders, where people voluntarily
pay a fee to the smuggler, usually
free to continue on their own after
arrival in the hope of starting a new
life in the destination country
peremptory challenge when the
legal team strikes a juror without
needing a specific reason
periodic detention imprisonment
sentence where the offender
spends a period of each week or
month in prison and the rest of the
time at home
Permanent Five the permanent
five members of the UN Security
Council, namely France, the United
Kingdom, China, Russia and the
United States
picket line a line of striking union
members forming a boundary
outside or near their place of
employment, which others are
asked not to cross
Gl os s ary 463
 plea a formal statement of guilt
or innocence entered into by the
accused
plea bargaining agreement
between the prosecution and the
accused on the acceptance of a
guilty plea, usually in exchange for
something else
police prosecutor a NSW police
officer trained in prosecution,
usually used to prosecute summary
offences
pollution environmental damage
caused by the discharge or
emission of solid, liquid or gaseous
materials into the environment
polygamous having more than
one wife or husband at the same
time
positivism the theory that laws
are valid simply because they
are enacted by authority or from
existing decisions, and that moral
and ideal considerations do not
apply
precautionary principle the
principle stating that if an action
or policy may cause serious harm
to people or to the environment,
the best course of action is to
halt or modify that activity, even
when there is no certain proof of
the probability of the risk or the
seriousness of the harm
press-ganging the act of forced
conscription used in England
during the 1800s; groups of
men known as press gangs were
employed by the government to
recruit people forcibly into lifetime
service with the armed forces
preventative detention detention
of a person in custody without
having committed any offence, in
case of some future harm that they
may commit
price-fixing suppliers’ keeping
prices in the market at a certain
level by agreeing among
themselves not to lower or raise
their prices
probate a legal document that is
issued by the court and certifies
that the will is true and correct
(proved), and authorises the
executor to administer the estate
probation a type of good
behaviour bond where the offender
is released on condition of good
behaviour but placed under some
form of supervision, such as daily
reporting to a probation officer
464 C am b r id g e L e g a l S t u d ie s – HS C
proceeds of crime assets (money recklessness when the accused
or property) obtained by an was aware that their action could
offender through their criminal lead to a crime being committed,
activities but chose to take that course of
action anyway
product warranty a manufacturer’s
promise or assurance that it will referral of powers the giving up
repair or replace or otherwise of a state’s legislative powers in a
compensate for defective goods; certain area to the Commonwealth
breach of a warranty entitles by passing an act, pursuant to
the aggrieved party to sue for s 51(xxxvii) of the Australian
damages, but not to end the Constitution
contract
regulation a form of subordinate
profit financial gain; money legislation, comprising a set of
remaining after expenditures have rules made under an act on the
been subtracted from total income legislature’s delegated authority
(e.g. the Executive), providing the
prosecute when the Crown or
technical and administrative detail
state take action against the
required by the Act
offender in a court of law
rehabilitation an objective of
protocol an instrument that
sentencing designed to reform
supplements a treaty, containing
the offender to prevent them
specific provisions that the parties
committing offences in the future
have committed to in order to fulfil
the terms of the treaty relinquishing parents parents who
nominate their child for adoption
provocation a defence where the
accused claims that the actions remand a period spent in custody
of another person caused him or awaiting trial at a later date
her temporarily to lose control;
remedies means by which redress
the act of inducing rage, anger, or
or reparation is provided for the
resentment in another person that
breach of a legal right
may cause that person to engage
in an illegal act remorse deep regret or sorrow for
one’s wrongdoing
public defender public barristers
who can appear for an accused rescission (of a contract) the
in serious criminal matters where termination of a contract with the
legal aid has been granted court’s approval; rescission treats
the contract as if it never existed
public prosecutor a legal prac-
and discharges the parties from
titioner employed by the Director
their obligations
of Public Prosecutions, usually used
to prosecute indictable offences residual powers government
powers that are not listed in s 51
pyramid selling an illegal form of
of the Australian Constitution
selling whereby an individual pays
as legislative powers of the
to become a distributor of a good
Commonwealth Parliament, and
in return for a reward for recruiting
which thus belong to the states
new distributors
resolutions decisions passed by
ratification a nation’s formal
the General Assembly or Security
declaration of consent to be bound
Council; when passed by the
by a treaty and to give it domestic
Security Council they can be legally
effect
binding on all member states
reactionary responding to a
restorative justice a form of
situation after it has occurred
sentencing involving a voluntary
reasonable force such force as is conference between the offender
reasonably necessary for the officer and the victim of the crime
to perform the function; the officer
retrenchment the loss of a job
must honestly believe that it was
because there is no longer a job for
justified and not excessive
the employee to do
rebuttable presumption a legal
retribution punishment considered
presumption in favour of one party
to be morally right or deserved
– it can be rebutted by the other
based on the nature of the crime
party if they can show sufficient
evidence to disprove it
recidivism habitual or repeated
lapses into crime
right to peace the right of citizens
to expect their government will do
all in its power to maintain peace
and work towards the elimination
of war
right to silence the right of a
person to refuse to answer any
question put to them on the
grounds they may incriminate
themselves
riot similar to affray, but with 12 or
more people using or threatening
to use unlawful violence for a
common purpose
robbery when property is taken
directly from a victim, usually
forcefully
Rome Statute the Rome Statute of
the International Criminal Court, an
international treaty that establishes
the International Criminal Court
search and seizure the power to
search a person or their possessions
and seize and detain items that are
discovered
Secretariat the UN administrative
body headed by the UN Secretary-
General; contains the departments
and offices of the UN
Security Council (UNSC) the UN
organ responsible for maintenance
of international peace and security;
power to authorise military action or
other measures
sedition promoting discontent,
hatred or contempt against a
government or leader of the
State through slanderous use of
language; in Australia, sedition
includes offences of urging force or
violence against the government
self-defence or necessity the
defendant acted in defence of self,
another or property; only accepted
in limited circumstances and only
for reasonable force
self-determination the right of
people of a territory or national
grouping to determine their own
political status and how they will be
governed
sentence appeal an appeal
against the severity or leniency of a
sentence
sentencing hearing a hearing
following a finding of guilt in which
a magistrate or judge will determine
the sentence to be handed down to
the accused
separation of powers the
prevention of one person or
group from gaining total power
by dividing power between the
executive, the legislature and the
judiciary
sexual assault when someone is
forced into a sexual intercourse
against their will and without their
consent
sexual harassment unwelcome
and uninvited behaviour of a sexual
nature, which is likely to intimidate,
humiliate or offend the person
towards whom it is directed
sexual intercourse broadly
defined in the Crimes Act 1900
(NSW) to include oral sex or
penetration of the vagina or anus
by any part of another person’s
body or by an object manipulated
by another person
sexual slavery repeated violation
or sexual abuse or forcing of a
victim to provide sexual services;
it often takes the form of forced
prostitution or forced labour where
sexual abuse is also common
slavery a type of forced labour
where a person is considered to be
the legal property of another
soft law any international
instrument, other than a treaty,
that contains principles, standards
or other statements of expected
behaviour but does not have legal
consequences for non-compliance
(e.g. declarations and resolutions
of the UN General Assembly)
sovereignty the right of a nation
to control its territory and peoples
without external interference
specific deterrence punishment
against an individual offender
aiming to deter them from
committing crime in the future
stand down to suspend
employees without pay from the
workplace, usually temporarily
standard of proof the level of
proof required for a party to
succeed in court
state an independent country;
in law, an internationally-
recognised entity possessing
the characteristics required for
statehood; not to be confused with
political divisions within a federal
system, like the states of Australia
or the United States
state sovereignty the authority
of an independent state to govern
itself (e.g. to make and apply laws;
impose and collect taxes; make
war and peace; or form treaties
with foreign states)
strict liability offence an offence
where the mens rea does not need
to be proved; only the actus reus
(the guilty act) needs to be proved
strike employees’ organised
withdrawal of labour until a
grievance is resolved
suffrage the legal right to vote in
a democratic election
suffragette a supporter of
women’s right to vote (or women’s
suffrage); the term was first used
in Britain at the end of the 19th
Glo s s ary
century
summary offences less severe
offences that are heard and
sentenced by a magistrate in the
Local Court
summons a legal document that
states when and where a person
must appear in court and, if they
are the accused, the charge to
which they must answer
supranational an organisation
in which decisions are made
by the appointed or elected
representatives of the member
states; because decisions are made
by majority vote, it is possible for
a member state to be forced to do
something against its own will
surety in bail, where another
person agrees to provide a
financial guarantee that the
accused will return to the court for
trial in exchange for the accused’s
temporary release
suspended sentence a sentence
of imprisonment imposed but
suspended on condition of good
behaviour
tax evasion an attempt to avoid
paying the full amount of taxes due
by concealing or underestimating
a person or business’s income or
assets
terrorism acts of violence against
a population, intended to cause
terror and thereby influence a
government
testator a person who makes a will
the Crown the state party who
commences a criminal action
in a court of law against the
offender. In NSW, the action
is usually commenced by the
Director of Public Prosecutions.
If the alleged crime is against a
federal criminal law then the action
is usually commenced by the
Commonwealth Director of Public
Prosecutions
Gl os s ary 465
 the state a term used to refer to
the government and the people
that it governs
trade union an association
of wage earners, formed to
maintain and improve the working
conditions of its members
trafficking dealing or trading
in something illegal, particularly
drugs
transatlantic slave trade the
trading of African people by
Europeans, transporting them as
slaves from Africa to the colonies
of the New World
transnational crime crimes that
occur across international borders,
either in origin or effect
treason an attempt or manifest
intention to levy war against the
state, assist the enemy, or cause
harm to or death of a head of state
trust account a bank account
for money held and dealt with on
behalf of clients by a professional
or business acting as a fiduciary for
the clients
Trusteeship Council inactive since
1994 but originally responsible for
overseeing transition of UN trust
territories after decolonisation
unconscionable conduct one
party’s exploitation of the
vulnerability of another party to
a contract; the victim may have
been impaired by some external
factor (e.g. age, disability, lack of
education) or he or she may have
been deceived or threatened by
the stronger party
unfair dismissal under the Fair
Work Act 2009 (Cth) s 385,
termination of employment for
reasons that are ‘harsh, unjust or
unreasonable’, as found by Fair
Work Australia
unilateral undertaken by one
nation-state
Universal Declaration of Human
Rights (UDHR) a declaration
of rights signed adopted by
the United Nations in 1948,
representing the first universal
acceptance of the idea of human
466 C am b r id g e L e g a l S t u d ie s – HS C
rights and becoming the reference weights and measures laws laws
point of all subsequent human that govern weights and measures
rights treaties stated on the packaging of
products (such as food and
universal education the right to
beverages) or as indicated on
free and compulsory education for
the trading premises (e.g. at a
all children
petrol station) in order to protect
universal jurisdiction where consumers from being cheated or
a state claims a rare right to deceived
prosecute a person for actions
white-collar crime a general term
committed in another state, based
for various non-violent crimes
on the common international
associated with professionals
opinion that the alleged crime is so
or businesspeople, such as
serious that normal laws of criminal
embezzlement, tax evasion or
jurisdiction do not apply
insider trading
universal suffrage the right for
will a document that states how a
all citizens to vote in political
person intends to have his or her
elections, regardless of status,
property distributed after his or her
gender, race or creed
death
vicarious liability legal liability of
workers’ compensation a
an employer for the wrongful act
compulsory insurance scheme paid
of another
into by employers to compensate
victim impact statement a written employees injured at work through
statement by the victim or victim’s financial payments; claims do not
require proof of fault
family about the impact the crime
has had on them, heard at the time
workplace surveillance an
of sentencing
employer’s use of technology
voluntary manslaughter the killing such as cameras, computers
of a person where the accused did and tracking devices to monitor
employees
intend or was reckless about killing
someone but there are mitigating
world order the activities and
circumstances
relationships between the world’s
war crimes crimes such as wilful states, and other significant
non-state global actors, that
killing, deportation or ill-treatment
occur within a legal, political
of civilians, taking of hostages and
and economic framework; an
extensive destruction of property
international set of arrangements
– committed in the context of war
for promoting stability
and that are in violation of the
Geneva Conventions
wrongful dismissal termination
warning a notice given to a young of employment that constitutes
offender (usually for a first minor a breach of the employment
offence) that is recorded by police contract, an award or a statute
but with no conditions attached;
youth justice conference a
the offender must be told of the
measure to divert young offenders
nature, purpose and effect of the
from the court system through
warning
a conference that addresses the
warrant a legal document issued offender’s behaviour in a more
by magistrate authorising an officer holistic manner
to perform a particular act, for
example make an arrest, conduct
a search, seize property or use a
phone tap
warranty a term of a contract
whose breach entitles the
aggrieved party to sue for
damages, but not to end the
contract
Index

A
abolitionism 148 bilateral agreements 132, 296, 328
acceptance (of a contract) see contracts biodiversity 269–70, 272, 277–9, 282–3, 285, 295, 303
accused 4–12, 15, 18, 20, 30, 32, 39, 40–1, 46, 48–53, birth technologies 346–7
56–9, 61–3, 68, 74–6, 103, 108, 120, 122, 132, blended family see family
174, 335, 352 bond 20, 80, 108
acquittal 58, 61 breach 6, 8–9, 19, 50, 79–80, 83, 109, 119, 161
actus reus 6–8 break and enter 14–16, 34
adoption 317, 319, 321, 327–30, 338, 348–9, 396 built environment see environment
Adoption Act 2000 (NSW) 319, 321, 329 burden of proof 57, 184
adversary system 52, 61
affray 9, 18, 30 C
AFP see Australian Federal Police care and protection see children
African Charter on Human and Peoples’ Rights 159 Cartagena Protocol on Biosafety 277
Age Discrimination Act 2004 (Cth) 185, 381, 384 casual employment see employment
aggravated assault see assault caution 39, 78–9, 102–3, 106–8
aggravated sexual assault in company see assault caveat emptor 224–5, 264
aggravating factors 73–5, 107 challenge for cause 62
American Convention on Human Rights 159, 177 charge 6–7, 10–12, 18, 20–21, 32–3, 39–41, 46–8, 50,
annulment 314, 316, 321 55–8, 103
Anti-Ballistic Missile Treaty 436 criminal 68, 79, 108, 132, 245, 302
Anti-Discrimination Act 1977 (NSW) 185, 323, 343, defences to 58–61
383–6, 429 Charter of the United Nations 121, 296, 308, 417
Anti-Terrorism Act (No. 2) 2005 (Cth) 14 Child Protection (Offenders Registration) Act 2000 (NSW)
appeals 46, 76–7, 133, 140, 201, 343 88, 321
against conviction 77 child soldiers 205–215
appellant 76–7 defining 205–7
appellate jurisdiction 46, 49–51, 378 extent of issue 207–9
Apprehended Domestic Violence Order (ADVO) 334–5, responses to 210–15
337, 356 Children (Criminal Proceedings) Act 1987 (NSW) 96–7, 101,
arbitration 239, 338, 356, 363, 367–8, 374, 377–8, 402 104, 321, 324, 335
arrest 30, 36–9, 100, 102, 140, 211, 259, 326 Children (Protection and Parental Responsibility) Act 1997
assault 8–10, 12 (NSW) 321, 324
aggravated 12 Children and Young Persons (Care and Protection) Act 1998
aggravated sexual assault in company 12–13, 77 (NSW) 322–5, 327, 334–5, 339, 350
common 12 children
indecent 12, 49 care and protection of 49, 104, 312, 321, 339, 350–3
sexual 9, 12–15, 22, 31, 59, 68, 71, 75–6, 83, 105, Children’s Court Act 1987 (NSW) 49, 104, 106, 321
141 Children’s Court see courts
attempts 18 circle sentencing see sentencing
Australian Crime Commission Act 2002 (Cth) 129 codification 272, 390
Australian Federal Police (AFP) 16, 30, 127–8, 200 Cold War 164, 406, 411–15, 417–20, 435–7, 449, 455
Australian Federal Police Act 1979 (Cth) 127 collective right 157–8
Australian Human Rights Commission 185–7, 320–1, collective security 156, 158
342–3, 357, 381, 385–6, 399, 403 committal proceedings 47–8, 53–4, 105
Australian Human Rights Commission Act 1986 (Cth) 185 common assault see assault
Australian Securities and Investment Commission Act 2001 communal killing 413
(Cth) 234, 250, 254, 265 community service order 80–81, 108–9, 141, 356
Australian Workplace Agreements (AWA) 368 Competition and Consumer Act 2010 (Cth) 233, 235, 248,
autonomy (of children) 326–7 265
Comprehensive Test Ban Treaty 422, 436
B conciliation 248–9, 363, 367–8, 374, 377–8, 402
bail 30, 40–1, 55, 100, 102, 113, 141, 334–6 Conciliation and Arbitration Act 1904 (Cth) 363
hearing 46, 48, 53 conclusive presumption 96–7
Bail Act 1978 (NSW) 40, 334 condition 40–1, 80–7
bait advertising 236–7, 257 conspiracy 9, 18–19, 50
beyond reasonable doubt 6, 57, 63, 96–7 constitutional corporation 368, 372–3

467
 constructive manslaughter see manslaughter Crimes (Sentencing Procedure) Act 1999 (NSW) 68–70, 73,
Consumer, Trader and Tenancy Tribunal 241, 246 76, 79–81
Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) Crimes (Serious Sex Offenders) Act 2006 (NSW) 88
246 Crimes Act 1900 (NSW) 37, 68, 79, 324, 333
consumers 222–65 Crimes Act 1914 (Cth) 13, 71, 119
nature of consumer law 224–42 Crimes Amendment (Computer Offences) Act 2001 (NSW) 5
redress and remedies 242–9 Criminal Assets Recovery Act 1990 (NSW) 80
contemporary issues concerning 249–61 Criminal Code (Slavery and Sexual Servitude) Amendment
contemporary slavery see slavery Act 1999 (Cth) 200
Contracts Review Act 1980 (NSW) 233, 248 Criminal Code Act 1995 (Cth) 129, 200, 213
contracts Criminal Code Amendment (Trafficking in Persons Offences)
acceptance of 226–8, 264 Act 2005 (Cth) 200
contract for services 360, 364–5, 387–8 criminal infringement notice 78
contract of service 360, 364–5, 387–8, 392 criminal negligence 6–7
freedom of contract 362 criminology 10, 21, 34, 112
rescission of 231, 247 Crown, the 4, 6, 13, 60, 76–7
control order 108–9, 112 customary international law 210, 272, 284–5, 287, 423,
Convention on the Conservation of Migratory Species of 449
Wild Animals (1983) (‘CMS’) 276 Customs Act 1901 (Cth) 16
Convention on the Rights of the Child (1989) 96, 100, 104,
107, 210, 321, 324, 334–5 D
Convention on Wetlands of International Importance (1971) damages 6, 230–2, 247, 285, 387
(‘Ramsar Convention’) 286 de facto relationship 312, 316, 319–20, 327–9, 33–2,
cooling-off period 239, 375 336–7, 339, 342, 343, 347
Copyright Amendment Act 2006 (Cth) 5 debt bondage 196, 199–201
coroner 48 debt slavery see slavery
Coroner’s Act 2009 (NSW) 48 Declaration on the Right of Peoples to Peace 161
Coroner’s Court see courts decree absolute 330
coronial inquest 48 decree nisi 330
Corporations Act 2001 (Cth) Defence Act 1903 (Cth) 213
correctional centre 81, 86–7, 108 detention
court hierarchy 46–7, 49, 51, 104, 328 home detention 73, 81–3, 141
Court of Criminal Appeal see courts periodic 81, 83, 86, 141
courts deterrence
Children’s Court 46–7, 49, 53–4, 94, 98–9, 103–7, general 70, 75, 82, 109
110–12, 321–2, 324, 335, 339–40 specific 70
Court of Criminal Appeal 50–1, 75, 77, 109–10 deterrent 69–70, 79–80,112, 136, 212
Coroner’s Court 46–8 diminished responsibility 61
District Court of NSW 20, 46, 49–50, 53, 61, 77, 246 direct discrimination see discrimination
High Court of Australia 47, 51, 56, 77, 88, 96, 133, Disability Discrimination Act 1992 (Cth) 185, 381, 384
174, 179, 183–7, 201, 231–2, 280–1, 293–4, 344, discrimination 146, 152, 179, 185–7, 320–5, 341–4,
365, 367 369, 372, 374, 377, 381, 383–4, 386, 399, 403
Land and Environment Court 46, 49–50, 279, 293, direct 383
295 indirect 383
Local Court of NSW 20, 35, 46–50, 53–4, 61, 77, 83, District Court Act 1973 (NSW) 49
334 District Court of NSW see courts
Supreme Court of NSW 35, 47, 49–51, 53, 55, 60–1, diversionary program 83–4, 110
77, 98, 182, 185, 319, 336, 349, 367, 378, 391–2 division of powers 182–3
credit 16, 237, 240, 245–52, 256, 258, 265, 232 divorce 312–21, 329–30, 337–9, 356
Credit Act 1984 (NSW) 248 DNA evidence see evidence
crime doli incapax 95–9
against humanity 120, 122–4, 127, 132, 172, 175, domestic violence 10, 31, 40, 320, 333–7
178, 210, 412–12, 424 Drug Misuse and Trafficking Act 1985 (NSW) 16
against the international community 118–21, 123, dualist system 182
125–7, 131, 136–7, 162 duress 59, 74, 103, 229, 232–4, 314, 369
categories of 8–20
defining 4–6, 118 E
elements of 6–8 East Timor 420, 430, 440–7, 454
international ecologically sustainable development (ESD) 277–80, 289,
nature of 4–6 296
parties to a 20–1 Economic and Social Council (ECOSOC) 173, 281–2,
prevention 23–5 418
Crimes (Administration of Sentences) Act 1999 (NSW) 86 Education Act 1870 (Great Britain) 155, 324
Crimes (Appeal and Review) Act 2001 (NSW) 77 education
Crimes (Domestic and Personal Violence) Act 2007 (NSW) universal 147, 155–8
333, 335 embezzlement 14–15, 23, 50

468 C am b r id g e L e g a l S t u d ie s – HS C
employment fraud 16, 51, 79, 125–6, 130, 135–6, 196, 206, 256,
and trade unionism 151–2 261, 265, 393
casual 366, 393, 399 free trade 274, 422, 426, 429
contract 364–7 freedom of contract see contracts
full-time 326, 366, 393, 403
termination of 368, 370, 392–5 G
enterprise agreement 369, 372–3, 375–6, 381, 392–3 General Act of Brussels 149
enumerated powers 293, 319 General Assembly see United Nations General Assembly
Environment Protection and Biodiversity Conservation Act general deterrence see deterrence
1999 (Cth) 269–70, 272, 279 Geneva Conventions 124, 127, 141, 210, 220, 422–4,
environment 440, 449
built 269 Geneva Conventions Act 1957 (Cth) 127
natural 269 genocide 119–24, 131–2, 136, 172, 175, 178, 210, 220,
Environmental Planning and Assessment Act 1979 (NSW) 412, 422, 424, 427, 432
270–2, 296 global environmental protection
equal employment opportunity legislation 385 contemporary issues relating to 296–305

Ind ex
Equal Opportunity for Women in the Workplace Act 1999 nature of 268–71
(Cth) 384–5 development of law 271–4
ESD see ecologically sustainable development responses to 280–96
ethnic cleansing 175, 407, 432 global financial crisis 406–7
Evidence Act 1995 (NSW) 32, 57, 320 globalisation 118, 274–6, 406
evidence grave adult behaviour 109
DNA 33–4 greenfields agreement 372
gathering of 30, 32–4, 36 guideline judgments 68–9
inadmissible 32
use of 39, 248, 53–6 H
physical 6 Hague, The 120, 408–9, 412, 423
ex-nuptial 317, 321, 327, 344 hard law 163, 284–5
children 327, 329 heads of power 183
express rights 182, 184 hegemony 414
express terms 230–1, 366 High Court of Australia see courts
extended family see family home detention see detention
external costs 268 homicide 9–11, 107
extradition 132–5, 259 Human Rights (Sexual Conduct) Act 1994 (Cth) 179
Extradition Act 1988 (Cth) 132–3 Human Rights and Equal Opportunity Act 1986 (Cth) 321,
384
F Human Rights Commission Act 1986 (Cth) 185
Fair Trading Act 1987 (NSW) 233, 235–6, 239, 248, 252, Human Rights Council
254, 257, 265 see United Nations Human Rights Council
Fair Work Act 2009 (Cth) 368–9, 372–4, 376–9, 381, 384, human rights
393–4, 396–7 and state sovereignty 171–2
family 310–57 defining 146–7
alternative family relationships 317–20 developing recognition of 147–62
blended 312, 318–19 formal statements of 162–5
contemporary issues concerning family law 341–53 in Australian law 182–9
definitions of 312–4 in the international community 170
extended 111, 312, 344 promoting and enforcing 170–82
Family Law Act 1975 (Cth) 312, 315–17, 319–21, human trafficking 125–31, 149, 194–204
323–4, 329–32, 337–8, 345, 348–51, 356 humanitarian intervention 416, 433
Family Law Amendment (De Facto Financial Matters humanitarian law see international humanitarian law
and Other Measures) Act 2008 (Cth) 312, 319, 342
Family Law Amendment (Shared Parental I
Responsibility) Act 2006 (Cth) 323, 330, 345, 350 ICC see International Criminal Court
Family Law Reform Act 1995 (Cth) 323 ICCPR see International Covenant on Civil and Political
nature of family law 312–29 Rights
responses to problems concerning family law ICESCR see International Covenant on Economic, Social and
329–41 Cultural Rights
single-parent families 317–18 ICJ see International Court of Justice
fascism 154 IGO see intergovernmental organisation
fiduciary duty 240, 242 ILO see International Labour Organization
fines 18–20, 70, 79, 108 implied rights 182, 184
fit for purpose 230, 233, 248, 264 implied terms 230, 232–3, 264, 366–7
forced labour 129, 147, 149, 151, 195–8, 200, 202 in situ 32
forced marriage see marriage inadmissible evidence see evidence
forfeit 55, 80 inalienable right 146
Four Freedoms 163 incapacitation 71, 73, 81–87

Index 469
 indecent assault see assault licensee 241, 251–2
indictable offence 9, 20, 35, 38, 46, 54, 99–100, 104–5 Limited Nuclear Test Ban Treaty 411
indirect discrimination see discrimination Local Court Act 2007 (NSW) 46–7
industrial action 363, 375, 378 Local Court of NSW see courts
industrial award 367 locus standi 270
industrial relations 360, 363, 368–72 Lubanga Dyilo, Thomas 211
Industrial Relations Act 1996 (NSW) 372–3, 377, 379, 384
Industrial Revolution 151, 224, 268, 360–2 M
infanticide 10–11 magistrate 20, 33, 35–6, 39–40, 47–9, 52–3, 55
injunction 236, 270, 334 maintenance (family) 315–27, 331–3, 338, 342, 347
inquisitorial system 52 mandatory sentencing see sentencing
insider trading 14–15, 23 manslaughter 7–8, 10–12, 49–50, 61, 83, 98, 105
intergenerational equity 278–9, 289 involuntary 11
intergovernmental organisations (IGO) 170, 176, 214, voluntary 10
425–6, 448 constructive 11
International Bill of Rights 164–5, 172–3, 176 Marriage Act 1961 (Cth) 312–17, 320, 341
International Court of Justice (ICJ) 173, 177–8, 281, 285, marriage
287, 296, 418, 423 annulment of 314, 316, 321
International Covenant on Civil and Political Rights (ICCPR) forced 196–9, 207
164, 171, 422 polygamous 320
International Covenant on Economic, Social and Cultural mass atrocity crimes (mass atrocities) 407, 412–13, 416,
Rights (ICESCR) 153, 164–5, 171, 422 424, 431, 433–4, 440
International Criminal Court (Consequential Amendments) media, the 14, 62, 105, 181, 247, 283, 291–2, 340, 343,
Act 2002 (Cth) 127, 182 380–3, 427, 430, 450
International Criminal Court (ICC) 120–7, 131–2, 137, mediation 85, 239, 248–9, 251, 316, 331, 337, 339–40
162, 174–5, 178, 182, 210–12, 288, 422, 424 mens rea 6–8, 10, 58–9, 95, 97
International Criminal Court Act 2002 (Cth) 127, 182 merchantable quality 230, 233, 243, 248, 264
International Criminal Police Organization (INTERPOL) Migration Act 1958 (Cth) 68–9
134, 176 Miscellaneous Acts Amendment (Same-Sex Relationships)
international customary law 163, 423 Act 2008 (NSW) 342
international humanitarian law 177, 180, 427, 447, 449, mitigating circumstances 10, 61
454–5 mitigating factors 73, 75
International Labour Organization (ILO) 152, 195, 197, monist system 182
203, 213, 381, 383, 403 monopoly 244
INTERPOL see International Criminal Police Organization Motor Dealers Act 1974 (NSW) 241
interrogation 39, 102–4 Motor Vehicle Repairs Act 1980 (NSW) 241
interview friend 102–4 multilateral treaty 272, 284
intestacy 316, 320 multilateralism 407, 409
intragenerational equity 278–9 murder 4, 8, 10, 12–3, 18–20, 49–51, 59–61, 68–70,
invitation to treat 227–8 105, 124, 209, 211, 334, 353
involuntary manslaughter see manslaughter partial defences to 61

J N
judicial discretion 68–9, 73 nation 118, 171, 220, 265
Judiciary Act 1903 (Cth) 46, 51 nation-state see state
Jury Act 1977 (NSW) 61, 63 natural environment see environment
Jury Amendment (Verdicts) Act 2006 (NSW) 63 natural law 146–7
jus cogens 423 neglect (family) 321, 323–5, 334, 350–3
juvenile justice 94–5, 100, 108, 111 NGO see non-government organisation
juvenile justice centre 108 non-government organisation (NGO) 181–2, 202, 207,
381, 427
K non-parole period 81, 87, 108
Kyoto Protocol 159, 280, 285–6, 289–90, 297, 299–300, Nuclear Non-Proliferation Treaty 300, 411, 422, 436
303, 429 nuclear threat 435
nuptial 317
L Nuremburg trials 123, 132
labour rights 147, 151, 165
laissez-faire economy 224, 362 O
Land and Environment Court see courts observer status 171, 180, 291
larceny 14, 16, 22, 50, 78 Occupational Health and Safety Act 2000 (NSW) 379,
Law Enforcement (Powers and Responsibilities) Act 2002 389–90, 402
(NSW) 30, 35–7, 39, 100–4 offer (consumers) 226–8
leave 152, 364–74, 376, 380, 392–4, 396–9 offeree 226
legal aid 54, 56, 243 offeror 226
Legal Aid Commission Act 1979 (NSW) 56, 243 Office of the High Commissioner for Human Rights
Legal Aid NSW 56, 339 173–6

470 C am b r id g e L e g a l S t u d ie s – HS C
Optional Protocol to the Rights of the Child on the
Involvement of Children in Armed Conflict 210
original jurisdiction 46, 51
P self-determination 147, 156–8
parental responsibility 317, 324, 330–1, 339, 344–6
parole 81, 83, 87, 108
peacekeeping 128, 173, 412, 416–7, 419–21, 427, 430,
443
penalty units 79, 108
people smuggling 125, 196
peremptory challenge 62
periodic detention 81, 83, 86–7, 141
Permanent Five 416, 418–20, 432, 438
plea bargaining 54–5, 141
police
powers 30, 35–6, 38, 78, 100, 141, 321
prosecutor 53
polygamous marriages see marriages
positivism 146–7
post-sentencing considerations 86–9
precautionary principle 278–9, 285, 304
probation 80, 83, 108–11
product certification 252–6
product warranty see warranty
Property (Relationships) Act 1984 (NSW) 319
Protection of the Environment Operations Act 1997 (NSW)
270, 293
Protocol to Prevent, Suppress and Punish Trafficking in
Persons, especially Women and Children 135, 199
provocation 10, 60–1
public defender 54
public prosecutor 20, 54
pyramid selling 237, 256, 258
R specific deterrence see deterrence
R2P see responsibility to protect
Racial Discrimination Act 1975 (Cth) 381, 384, 429
reasonable force 30, 33, 38, 59, 102
rebuttable presumption 96–7
recidivism 72, 82, 84–5, 110, 140–1
recklessness 7
referral of powers 312, 373
relinquishing parents 327, 329
remand 41, 63, 81, 108, 110, 113
remedies (consumers) 225, 231, 234, 242–9
Representation of the People Act 1918 (Great Britain) 153
rescission (of a contract) see contracts
residual powers 183, 293
responsibility to protect (R2P) 175, 220, 433–5
restorative justice 84–5, 141
retribution 71–3, 81,109
right to peace 147, 161
right to silence 39, 101
Rio Declaration 159, 277–9, 286, 289, 295
robbery 14, 16, 21–2, 50, 105, 110
Rome Statute of the International Criminal Court 120–7,
131–2, 182, 210–13, 422, 424, 430, 449
S Supplementary Convention on the Abolition of Slavery, the
Sale of Goods Act 1923 (NSW) 233, 248, 265
Same-Sex Relationships (Equal Treatment in
Commonwealth Laws – General Law Reform) Act
2008 (Cth) 342
same-sex relationships 179, 186, 313–14, 319–21,
341–4, 349, 357
search and seizure 30, 35–6, 100, 188
Secretariat see United Nations Secretariat
Security Council see United Nations Security Council
sedition 9, 13–14
sentence appeal see appeals
sentencing
alternative methods to 84–5
circle 84–5
factors affecting 5, 68, 73–6
guidelines for 55, 68
hearing 68–9
mandatory 69
role of victim in 76
separation of powers 182–3, 187, 363
Sex Discrimination Act 1984 (Cth) 185, 341, 381, 384,
In d ex
386
sexual assault see assault
sexual harassment 207, 382, 384, 386, 393
sexual slavery see slavery
situational crime prevention 23, 25–6
Slave Trade Act 1807 (Great Britain) 148
Slavery Abolition Act 1833 (Great Britain) 148
Slavery Convention 149, 199
slavery
abolition of 147–8, 150
and human trafficking 129, 149, 194
and torture 164
contemporary 195–204
debt 147–8
sexual 123,149, 196, 200
social crime prevention 23, 25–6
soft law 163, 284–5, 296, 304–5, 309
sovereignty see state sovereignty
Spam Act 2003 (Cth) 256, 260, 265
standard of proof 6, 57, 339
state sovereignty 118–19, 137, 170–172, 175, 178, 189,
220, 280, 285, 290, 296, 301, 304, 308, 407–8,
415–18, 433, 440, 442, 454
state 4–6, 10, 13, 20, 22, 30, 46, 48, 53, 68, 70, 94, 119,
127, 134, 140, 155, 163, 172, 175, 224, 241, 249,
252, 280, 284–9, 296, 317, 319, 322, 324, 338,
374–6, 412, 415–16, 418, 423, 432–3
Status of Children Act 1996 (NSW) 317, 321, 327, 347–8
Stockholm Declaration (1972) 159, 289
strict liability offence 8, 19
strike 151–2, 363, 375
Succession Act 2006 (NSW) 316, 319–20, 327
Succession Amendment (Family Provision) Act 2008 (NSW)
316
Succession Amendment (Intestacy) Act 2009 (NSW) 316,
320
suffrage see universal suffrage
summary offence 16, 18, 20, 46–7, 50, 54, 100, 110
Summary Offences Act 1988 (NSW) 16, 18, 20, 100
summons 40
Superannuation Guarantee (Administration) Act 1992 (Cth)
382
Slave Trade and Practices Similar to Slavery 199
Supplementary Protocol to Prevent, Suppress and Punish
Trafficking in Persons, Especially Women and
Children 200
Supreme Court Act 1970 (NSW) 50
Supreme Court of NSW see courts
Index 471
 surety 40
surrogacy 346–51
suspended sentence 34, 80, 82, 108
T organs of 120, 173, 418–20
tax evasion 14–15, 79, 125–6
technology 16, 33, 118, 130, 300, 309, 394, 410, 449
and consumers 259–61
birth 346–50
Telecommunications Act 1997 (Cth) 259–60
termination of employment see employment
Terrorism (Police Powers) Act 2002 (NSW) 88
terrorism 14, 22, 88, 125–6, 128, 134, 141, 183–4, 231,
413, 426
testator 232, 327
Trade Practices Act 1974 (Cth) 233–8, 242, 245, 248, 252,
254, 257, 260, 265
Trade Practices Amendment (Australian Consumer Law) Act
2009 (Cth) 234, 250
trade union 147, 152, 156, 163, 186, 360–3, 369, 372,
382, 394
Trade Unions Act 1871 (Great Britain) 152
trafficking see human trafficking
Trafficking Victims Protection Act of 2000 (US) 203
transatlantic slave trade 148–9
transnational crimes 118–19, 125–31, 134–6, 199
treason 13, 49
Treaty of Rome 426
Treaty of Versailles 160
Treaty of Westphalia 407–8
Treaty on European Union (‘Maastricht Treaty’) 426
Trusteeship Council 157, 173, 418
U W
UDHR see Universal Declaration of Human Rights
UN see United Nations
unconscionable conduct 231, 233, 236, 239, 248
unfair dismissal 369, 374, 378–9, 393
unilateral 433
union see trade union
United Nations Convention Against Torture and Other Cruel,
Inhuman and Degrading Treatment 422, 450
United Nations Convention on Biological Diversity 277
United Nations Convention on International Trade in
Endangered Species of Wild Fauna and Flora
(‘CITES’) 276, 282, 286, 297–8, 302–3
United Nations Convention on the Law of the Sea
(‘UNCLOS’) 272, 422, 425
United Nations Convention on the Prevention and
Punishment of the Crime of Genocide 121, 123, 413,
422, 449
United Nations Declaration of the Rights of Indigenous
Peoples 158
United Nations Declaration of the Rights of the Child 205
United Nations Framework Convention on Climate Change
274, 277, 281, 285, 287, 289, 299
United Nations
and education 156, 194
and employment 381
and human rights 321
and the environment 277–85, 290–6
472 C am b r id g e L e g a l S t u d ie s – HS C
Australia’s involvement in 429–30
Charter 121, 158, 160, 176, 410, 412, 422
establishment of 96, 149, 152, 160–3, 170, 409–18,
448
treaties 422
United Nations General Assembly 146, 161–4, 173–5,
180, 280–1, 284, 291, 304, 418–20, 424, 429,
436–7, 442, 449
United Nations Human Rights Council 164, 173–4,
381
United Nations Secretariat 173–4, 281, 418, 422
United Nations Security Council 120, 132, 136, 161,
173, 175, 177–8, 212, 280–1, 412, 414–16, 418–
20, 424, 429–30, 432–3, 437, 439, 442–6, 449
United Nations Charter 121, 158, 160, 176, 410, 412,
422
Universal Declaration of Human Rights (UDHR) 146,
149–50, 152–3, 156, 162–3, 170, 188, 195, 205,
422, 454
universal education see education
universal jurisdiction 119, 127, 448, 451
universal suffrage 147, 153–5
V
veto 173, 177, 418–19, 424, 432
vicarious liability 364
victim impact statement 73, 75–6
Victims Rights Act 1996 (NSW) 76
Vienna Convention for the Protection of the Ozone Layer
285–6, 296
voluntary manslaughter see manslaughter
war crimes 119–20, 122–5, 127, 131–3, 162, 175, 178,
210–12, 407, 412–13, 424–5, 433, 449, 451
War Crimes Act 1945 (Cth) 127
warning 78, 106, 110–11, 321, 335, 340
warrant 30–2, 35–9, 102–4, 140
warranty 230–4
white-collar crime see crime
will 316, 338
Workers Compensation Act 1987 (NSW) 389
workers’ compensation 317, 320, 342, 389, 391
workplace 358–403
nature of workplace law 360–3
regulation of the 374–82
contemporary issues relating to 383–99
Workplace Relations Act 1996 (Cth) 368–9, 374, 378,
398
world order 404–455
nature of 406–15
responses to 415–33
contemporary issues related to 433–51
Worst Forms of Child Labor Convention 210
wrongful dismissal 393
Y
Young Offenders Act 1997 (NSW) 78, 104, 108, 110–12,
321, 335, 340
youth justice conference 108, 110–12, 321, 340