1.

Basic Legal Concepts

1.1 Why do we need laws?

● To avoid a state of anarchy; keep society in control by introducing consequences

● To avoid abuse of power, introduce equality
● For the safety of society and it’s individuals, to protect them

1.2 Laws, Rules and Customs

Laws - set of formal rules, enforceable

Rules - set of informal rules set on a group of people

Customs - Things that become normal over a period of time

1.3 Value and Ethics

Values - principles, standards and qualities considered important to a society

Ethics - rules or standards that are of value to an individual or profession - to do with right and wrong
behaviour

Importance of value and ethics in law making - By determining ethics we can determine what laws will
be in line with humanity and its values. Laws that are derived from broadly held social values are suited
to society and how to protect it. Often most of society will agree to these laws and understand why they
have been placed.

Changing social values affecting laws - Social values are a major part of society and laws. They are there
to protect and control society therefore when social values change, the law should change with them in
order to support the updated society. An example of this can be same-sex marriage, in history this topic
was looked down on therefore the laws aligned with this and made it illegal to marry someone from the
same sex. Recently society has become more accepting about this topic, people have fought for change
regarding the outdated law. The law was changed based on the changing social values and therefore
suits and supports today’s society.
1.4 Characteristics of Just law

Discoverable/Accessible - For everyone in society to be able to access legal information and laws

Consistent with community standards/expectations - Community expectations can be analogised to the

“reasonable person” standard that pervades all areas of the law.

Uphold human rights - Human rights are standards that allow all people to live with dignity, freedom,
equality, justice, and peace.

Treats everyone equally - A law being equal to everyone, and not discriminating between people

Enforceable - People such as police or the courts should be able to enforce these laws and punish anyone
who breaks them.

1.6 Procedural Fairness

Procedural fairness refers to the idea that there must be fairness in the processes that resolve disputes.
It is closely linked to the concept of natural justice. Natural justice refers to the fact that everyone should
be treated fairly in legal situations. There are two main principles of natural justice. These are:

● the right to be heard – this includes the right to a fair hearing

● the right to have a decision made by an unbiased decision-maker – even an appearance of bias is
enough to constitute a breach of natural justice.

1.7 Rule of Law

The principle of the rule of law is that no one is above the law, including those who make the law.

This means that the groups and individuals who are involved in the legal system – such as the legislators
and judges who make, administer and interpret the laws; the police who enforce the law; and the
lawyers who represent and advise people on the law – are all answerable to the same laws as every
other citizen. Thus, the rule of law means that everyone is subject to the same laws.
1.8 Anarchy and Tyranny

Anarchy - the absence of laws and government. We use the term anarchy when there are no laws or
rules in place and the result is usually chaos.

Why Anarchy occurs - Anarchy may occur due to an absent or inefficient government, in the
circumstance that there is no legitimate government to govern the population the citizens will often
experience difficulty in accessing money or other public resources. This can result in civil unrest and
allow people to take actions with no laws preventing them.

Tyranny - when one person is ruling and has all the power. Generally, tyranny is associated with:

● Severe punishments for breaking the law

● One person making all the decisions regardless of desires of society
● Secret police
● Closed courts
● Abuse of power by the state
● Lack of separation of powers between legislation, executive and judiciary

A state of emergency - a situation in which a government is empowered to be able to put through

policies that would normally not be permitted to do. This would be needed in situations of anarchy for
the safety and protection of their citizens and to control the chaos.

Martial law - Military government, where the ordinary law is suspended.

Somalia - an example of an anarchist state, absence of a legitimate government in power, failing legal
system. Various terrorist groups fighting for power. Absence of law and law enforcement → civil unrest,
piracy, more violence. People are unsupported, suffer from poverty, hunger, poor health and education.
Forcing some to take advantage of the absence of law and commit crimes in order to survive.

END OF CHAPTER
 2. Sources of Australian Contemporary Law
2.2 British Origins of Australian Law

**(**Common Law, Courts of Equity, Precedent, Adversarial System of Trial)

Common Law: The system of law which is based on judicial discretion and on custom rather than on
written laws.

Judicial discretion - the power given to judges to make some decisions based on their training and
expertise e.g.

Decisions that fall under common law include:

● New specific cases that aren’t already specified under Crimes Act 1900 (NSW)
● When determining specific years on sentence
● When determining alternatives to sentencing

Development of the common law - **Common law is derived from the English law. This system of laws
can be traced back to the invasion of the Normans in England, their law began with travelling
judges/magistrates who applied a common set of laws to different areas of England. These judges also
had authority to make decisions when they heard new cases. In this way, a set of uniform laws
developed throughout England. The decisions made by the judges provided the standards, or
precedents, for later cases, and the laws they applied became the basis of the British legal system. This
system was later brought over to Australia during the invasion, throughout time Australia gradually
developed their own legal system based on statute and common law.

Equity Courts

Equity Definition - equity in the body of law that supplements the common law and corrects injustices
by judging each case on its merits and applying principles of fairness.

Development of Equity - Equity developed in the 15th century after complaints against the common law
courts and it’s decisions. Consequently, equity courts were created, this decision prevailed for a while
however there was a clash between the common and equity courts. As a resolution of this clash, it was
decided that equity laws prevail common laws. In the 1870’s England passed a law merging Equity courts
and Common courts, in Australia we followed with similar legislation.
Courts of equity – when the judge uses his/her discretion to determine sentencing and punishment

● Case by case basis

● This is a discriminatory stance but intends to make the law accessible for the disadvantaged

Rules of Precedent

● Stare decisis – if precedent is set all lower courts must follow it

● Ratio decidendi – the essential legal reason why a judge made the decision they did
● Obiter dicta – other remarks made by the judge regarding the conduct of the trial; for example,
about the credibility of a witness.
● Binding precedent – when the court must follow the precedent already set whether they agree
or not.
● Persuasive precedent – may influence a decision but judge is NOT bound to follow it e.g. if made
in another jurisdiction

Adversary and Inquisitorial Systems

Adversarial system - This system is when there are 2 opposing parties who argue over the case whilst a
3rd, neutral party (judge/jury/magistrate) presides over the case. We derived this system from the
British system.

Adversarial system of trial

● Within the restrictions of evidence, both sides can introduce whatever evidence & witnesses
they want
● Both parties can cross-examine the witnesses
● The judge/magistrate cannot cross-examine a witness or introduce evidence

Inquisitorial System

The alternative type of system to the adversarial system. This system allows the judge to have a more
investigative role in a case – i.e. asking questions, requesting certain types of evidence. Countries such as
France & Italy use the inquisitorial system. However, we do use such systems in Australia in coronial
inquests & Royal Commissions
2.3 Court Hierarchy

State/Territory Courts:

Lower Courts

Local Court of NSW: No jury instead there’s a magistrate who hears cases, decides verdict and sets any
punishment. Deals with minor civil disputes and criminal matters e.g assault, stealing etc. Committal
proceedings conducted for the magistrate to decide whether there is enough evidence in major crimes
cases for it to go to a higher court. 95% of criminal matters and mostly summary offences. Only have
original jurisdiction.

Children’s Court: Another lower level court but focuses on cases to do with the care of children e.g.
domestic violence or any criminal cases to do with anyone who committed a crime under 18. Private
hearings, only a magistrate.

Drug Court: This court has limited jurisdiction – only focusing on criminal cases to do with drug related
activity. Cases must be referred to by the Local Court or District Court

Coroner’s Court: Cases take the form of an inquest or inquiry in this court. Deals with cases to do with;
The way people have died if it is suspicious or sudden, The cause of death, They can autopsy the body to
find more evidence, They provide evidence that can be used in criminal or civil cases later on. Don’t have
the power to determine guilt but they can pass this info into a different court

Intermediate Courts

District Court of NSW: Cases are heard by a judge, more serious civil cases up to $75000, serious criminal
cases such as rape, armed robbery. Hears appeals from local courts. Some cases the jury decides the
verdict.
Superior Courts

Supreme Court: Highest court of NSW, deals with most serious civil cases, and most serious criminal
cases e.g murder, large sums of money. Deals with appeals from lower courts. Case heard by jury and
judge. Has original jurisdiction and appellate jurisdiction. Deals with murder, manslaughter & attempted
murder, major conspiracy cases, more serious drug related charges

Criminal Court of Appeals: The Court of Criminal Appeal is the State's highest court for criminal matters.
A person who has been convicted or who pleaded guilty and been sentenced by a Supreme Court or
District Court judge, may appeal to the Court of Criminal Appeal.

Land and Environmental Court: Has very restricted jurisdiction focusing on interpreting & enforcing
environmental law in NSW. Mostly civil & administrative disputes to do with land & contract disputes to
do with land. No jury only judges.

Federal Courts

Federal Court: Some criminal cases are heard in the Federal Court of Australia. Cases often heard in
federal courts include: Drug trafficking, money laundering, tax evasion, fraud, etc

Supreme Court: Interprets the Australian Constitution when there is confusion/lack of clarity. Determines
whether laws are valid/appropriate i.e. adhere to rule of law, etc.

Federal vs State Court Jurisdiction

● If something is a crime in NSW then it will be heard in the NSW court hierarchy system, however
if it is a Cth offence then it can be heard in the state the offence was committed OR Cth court
● The Judiciary Act 1903 (Cth) gives all state & territories the power to hear federal cases 🡪 this is
about resource efficiency 🡪 note federal courts do still hear Cth cases (but state courts can hear
them as well)

Appeal System

Appeal Power: Original jurisdiction → Power given to a court to hear the case for a first time

Appellate Jurisdiction → Power given to courts to hear appeals from other courts, any court except a
lower court e.g local court
2.4 Statute Law

Parliament

Bicameral system - meaning we have a system of 2 houses (upper and lower)

Ministers - members of government with special responsibilities

Executive Council - governor or governor general

Reshuffling the cabinet - when members of the front bench are changed.

Structure of Parliament

In NSW we have:

● Upper House (legislative council)

● Lower House (legislative assembly)

In Federal Parliament we have:

● Upper House (Senate)

● Lower House (House of Representatives)

Formed with the majority winning party. Leader of the winning party becomes Prime Minister. Political
parties that have the remaining seats are opposition.

Parliament Members

Ministers - members of parliament with special responsibilities e.g minister of education, these are
appointed by the PM

Reshuffling the cabinet - When members of the front bench are changed, Back Bench are other
members of government who aren’t ministers

Executive council – Governor or Governor General and all Cmth ministers & assistant ministers
Common Law

Common law is a system of law that is based on the previous decisions of judges (known as precedent).

It is developed piece-by-piece. When judges come across new problems in cases, their interpretation and
judgement is recorded for future cases that have similar circumstances. Common law is also known as
judge-made law or case law.

Judges try not to deliberately attempt to change the law or make a new law; but this can occur in the
process of resulting in the dispute brought to the courts.

Delegated Legislation

Less important laws made by non-parliamentary bodies. This occurs when there is little time to draft,
consider and pass laws. The bodies that are able to do this include local council, government
departments

Advantages

● Lawmakers have an extended knowledge of the area and process

● Easy to change
● Saves parliaments time and money which could be used on more important laws

Disadvantages

● MP’s dont always check them, leaves more room for errors
● Inconsistencies from government bodies, councils etc.
● Laws are less accessible, media doesn’t report on them
2.5 The Constitution

The Constitution of Australia is the supreme law under while the government operates.

It was approved over a series of referendums between 1898 and 1900, and came into force on January
1st, 1901.

It was an Act passed by the Parliament of the United Kingdom and only in 1986 the power of the
Parliament of the United Kingdom was removed.

The Constitution can only be changed by a referendum. The High Court of Australia and the Federal
Court of Australia have the authority to interpret the Constitution.

There are 6 basic rights established under the Constitution – everything else is about how our nation is
governed and run. These rights are

● Right to vote
● Freedom of religion
● Prohibition of discrimination on the basis of State of residency
● Right to a trial by jury
● Protection against acquisition of property on unjust terms
● Freedom of speech in debating political issues ONLY (added later)

WE DO NOT HAVE FREEDOM OF SPEECH!

Referendum

We would have to have a referendum but it is very difficult to pass. It must:

● Pass both senate & house of reps

● Proposed change must be voted by population between 2-6 months after agreed in parliament
● Must get 50+ votes
● 4 of 6 states must vote for the change 🡪 A referendum is only passed if it is approved by a
majority of voters in a majority of states, and by a majority of voters across the nation as a
whole.
● Governor General must agree
 Separation of Powers

The Constitution says that the power is divided between 3 groups of

bodies, so they can balance out each other. Each body checks the
power of the other 2.

Separation of power means that people in one of these three arms

should not control the other two.

High Court

Role of High Court

The high court has Appellate Jurisdiction and Original Jurisdiction. Its role is to:

● Interpret the constitution and clarify issues concerning lack of clarity.

● Figure out the Judicial power help by particular bodies e.g what the federal government has
control over
● Outlines how governments can use their power and limits to their power
● Judicial Review; investigates if decision/actions by government officials and department bodies is
legal or not
● Listens to appeals on cases that have grounds for 2nd up to 5th opinion; usually debate is a
‘question of law’ which means when there is a legal contention e.g when certain evidence is
admissible

Case Study

Outline the case/issue

● On 17/12/86 - Olaf Dietrich arrid in Melbourne following his trip to Thailand. He was then
arrested on the grounds of allegedly importing seventy grams of Heroin. In court he claimed that
the police had planted the drugs there, he was convicted of 4 charges and faced up to life
imprisonment. Olaf appealed his convictions to the Supreme Court, after being refused he
appealed to the High Court.

Identify which role of the high court was needed for this case
 ● Listening to appeals on cases that have grounds up for 2nd up to 5th opinion - usually a debate
of a ‘question of law’ which means when there is legal contention e.g when certain evidence is
admissible

Identify is any legislation/policy has changed as a result of the decision

● The ‘Right to a Fair Trial’ and ‘Right to legal representation’ principles were established as a
result of this case, it was decided that a person charged with a serious criminal offence should,
except in exceptional circumstances, have their trial stayed until they can obtain legal
representation.

2.6 Aboriginal and Torres Strait Islander Peoples Customary Laws

Customary Law - principles developed by the people or nation that are treated as obligatory

The main difference between European and Aborginal law is to do with land rights. Right to possess land
is key to European law but in Indigenous law land can't be owned as it is sacred, instead people are seen
as custodians of land. This is why British people thought that they could settle in Australia as they saw no
signs or fences.

Terra Nullius - ‘land belonging to no one’ this was the idea and legal concept that when the first
Europeans came to Australia the land was owned by no one and thus was open to settlement. It has
been judged legally invalid. Many issues arise from this.

Diversity of Indigenous Societies

Aboriginal law is tribal and each community has their own systems of customary law. Common
similarities for customary law:

● Resolution of disputes - negotiation, mediation and conciliation

● Insulting an elder
● Singing of sacred songs in public

Some of these offences are considered customary laws but others aren’t recognised by our government
but are still punishable by traditional law

Spiritual nature of Indigenous Customary Law

The dreaming (history of Aboriginal peoples) is a source of Indigenous customary law. These are not
written down therefore making customary laws derived from this is somewhat challenging. In remote IA
communities they are more likely to use customary law rather than statute/common law
Ritual and Oral Traditions within Indigenous Societies

ATSI law is central to all parts of their life inc. marriage, education, religion and family. It's part of their
values, customs and ethics. Stories, songs and dances are methods this law is communicated.

Each members of IA has different laws based on them e.g women and men, children and adults

Non IA aren’t allowed to hear these stories unless given permission.

Dispute Resolution

Usually resolved in the community, meetings are held and elders try to reach a resolution. Mediation is
used, when a neutral 3rd party helps the other parties reach an agreement.

Elders have the power to impose punishments such as

● Ridicule
● Shaming
● Exile
● Spearing
● Death

Issues with Customary Law cases

Queen v GJ (2005) - where the accused received a 24 month sentence with 23 months suspended for a
conviction of sexual intercourse with a minor and aggravated assault – he pled guilty to both charges
even though it was a customary right.

Relevance to contemporary Australian law

Many laws are inspired by customary law:

● Mediation & conciliation laws

● Environmental laws
● Native title and access to land laws
● Circle sentencing
2.7 International Law

Key Terms

● Domestic law – laws that belong to a state or country

● Sovereignty – the authority to rule by itself
● State– independent entity that is recognised as such internationally
● State sovereignty - that states are in complete and exclusive control of all the people and
property within their territory
● Ratify – when nations officially sign an intl treaty agreeing to follow it
● Monist – countries that ratifying an intl agreement automatically incorporates it into their
domestic law
● Dualist – countries that need to both ratify and codify an intl agreement before it becomes
legally binding in their domestic legislation

What defines a state?

State - an independent entity that is recognised as such internationally. In this context we aren’t referring
to states we have in Aust. etc

For a country to be recognised as a state it has to possess of all the following characteristics

● Permanent living population

● Ability to enter into international negotiations
● Effective government
● Defined territory

State Sovereignty

The idea that a nation state has the power to govern, operate and control people under that state. +
Protects people from imposition of other nations beliefs, decisions etc. - Gives nations ground for abuse
of power and running their state in ways that breach human rights.

Capital Punishment - the death penalty

The following countries still allow capital punishment for minors:

● Democratic Republic of Congo

● Iraq
● Saudi Arabia
● Pakistan
● Nigeria
● Yemen
● United States
This breaches many international laws:

● UN Conservation of children's rights

● UDHR
● International Customary Law
● International Covenant on Civil and Political rights (ICCPR)

Categories of International Crime

Category 1 Crimes against the International Community : Category 2 ****Transnational Crimes

1. Crimes against the International Community

Crimes against the international community (CAIC) – crimes we recognise as being those that are of
universal concern, they are so serious that the whole world condemns them and punishes it
internationally.

No fully agreed list (especially with specifics) but some majority agreed are:

● Genocide – acts intent on destroying all or part of a national, ethnic, racial or religious group
● War crimes – actions carried out during a time of war that violate accepted international rules of
war
● Crimes against humanity – acts of a sanctioned widespread or systematic attack against any
civilian population
● Crimes of aggression – acts of war committed by leaders whereby they direct military, etc to act
directed at nation leaders

These are all able to be prosecuted in the ICC

● Piracy (at sea) – any criminal acts of violence, detention, sexual assault, or depredation
committed for private ends by the crew or the passengers of a private ship
● Hijacking of aircraft – unlawful seizure of an aircraft by an individual or a group
● Slave trading – the kidnapping and selling of people in exchange for unpaid services e.g.
prostitution, labour, militia, etc.

These types of crimes CANNOT be prosecuted by the ICC

Case Studies

Ad hoc tribunals vs International Criminal Court (ICC)

● Rwandan Genocide (International Criminal Tribunal for Rwanda - 94 indicted, 80 convicted, 14

acquitted)
 ● International Criminal Tribunal for the former Yugoslavia (250 convicted)
● Nuremberg Trials (22 convicted, 19 convicted)
● Tokyo Trials (28 indicted, 7 convicted & executed (capital punishment) & 11 sentenced
● ICC - Sudanese President charged with genocide, war crimes & CAH but was acquitted

2. Transnational Crimes

Transnational crimes include the following:

➢ Human trafficking
➢ International fraud and white collar crime – e.g. tax evasion or money laundering
➢ Transnational internet crimes –e.g. data theft, internet fraud, copyright infringements or spam
networks
➢ Transnational trade of illegal substances
➢ International terrorism – e.g. cyber-terrorism of electrical systems, etc.
➢ Creation & trafficking of child pornography
➢ Organised crime rings

Difference between international and national law

● Domestic law - laws that belong to a state or country

● Sovereignty – the authority to make, enforce and rule by themselves
● State – independent entity that is recognised as such internationally (refers to NSW state or
Australia state)
● International law – laws that apply to all nations and have to do with basic human rights
● They often lack enforceable

International law

International Law Outlines how states should interact with each other. It also enables states to trade,
engage in commerce. International law helps keep peace and security, and covers fundamental human
rights.

Examples of Int Law.

➢ Hague (1989) – laws on child abduction

➢ Geneva Convention (1864) - rules of war
➢ Universal Declaration of Human Rights (UDHR) – basic human rights for all
➢ International Covenant on Civil and Political Rights (ICCPR)
➢ International Covenant on Economic, Social and Cultural Rights (ICESCR) Domestic Law
Limitations

➢ Lacks power to enforce these laws (unless crimes against intnl community – even that is difficult)
➢ Differences of opinion on what should be law
➢ Very expensive – who fronts the cost? ad hoc tribunals cost approx. $150mil to run, ICC costs
$140mil/yr
➢ Who enforces and by whose punishment system?
➢ UN has no international police force
➢ Countries get touchy about state sovereignty and others coming into their countries to
investigate
➢ More a punishment system rather than preventative system

Sources of International Law

Treaties

Treaties are written agreements between nations, they’re governed by international law. They’re the
most commonly used source of international law. The main sources of international law are customs,
declarations, treaties, legal decisions and legal writing. Characteristics of treaties include:

➢ They set legal decisions for nations to follow

➢ Covers any sphere of international relations between the parties
➢ Can establish an international organisation e.g. the Rome Statute of the International Criminal
Court (2002)
➢ They need to be signed before it can become a legal document, then ratified by each nation
➢ The more states that sign a treaty, the more powerful it becomes

The ICCPR & ICESCR are the most well known treaties. before it must be followed by the county.

Types of Treaties

➢ Bilateral treaties: between 2 nations.

E.g The United Kingdom/Ireland Continental Shelf Boundary Agreement 1988. This agreement between
Britain and Ireland defines the sea boundary between these two nations.

The Agreement between the Republic of Indonesia and Australia on the Framework for Security
Cooperation (the ‘Lombok Treaty, 2006’), concerning their common security and respective national
security.

➢ Multilateral treaties: between multiple nations

E.g The Antarctic Treaty (1959). This treaty is between several nations that have an interest in Antarctica.

The Charter of the United Nations (1945), which established the United Nations and its organs and
agencies. Each country that is a signatory to this treaty has a seat in the General Assembly and
participates in UN processes.

Making treaties:

There is no set way to make a treaty, although the most common method used includes:

1. Negotiation: the various nations that have an interest in the treaty discuss the terms and
conditions that the treaty will contain.
2. Consent to be bound: the participating nations agree that they will be bound by the conditions
of the treaty. This commitment is demonstrated by signing the agreement.
3. Ratification: this is considered the most important step. It involves the signatory nation passing
domestic law to accept the treaty. In a parliamentary democracy such as Australia, the federal
parliament would pass a Bill accepting the treaty.
4. Reservation: this allows nations to withdraw from a treaty or a part of it.

E.g - when the United States signed the Convention on the Prevention and Punishment of the Crime of
Genocide, it took a reservation that an American citizen could only be tried for genocide if the American
government first granted approval.

Examples of Treaties

ANZUS Treaty - The ANZUS Treaty is a defence treaty signed between Australia, New Zealand and the
United States. Since New Zealand refused access to its ports by American nuclear-armed or -propelled
warships in 1985, the United States has refused to honour its treaty obligations to New Zealand.

THE US - AUS TAX TREATY

● The US – Australia tax treaty was signed in 1982, with an additional protocol added in 2001. The
purpose of the treaty is to prevent double taxation for Americans living in Australia and
Australians living in the US, however, it doesn’t prevent US citizens living in Australia from having
to file US taxes.
Customary Law

Definition: Laws that aren’t written down but are expectations that have been around for a long time.

Often customary law influences what becomes actual law. (In international situations only).

It is not official until nations ratify it.

This source of international law has long been accepted – the law of piracy is an example.

Customary law is an important source of international law because it binds all nations, and so is not
limited in its application, as a treaty is, by reference to who has ratified it or acceded to it.

Expectations or legal obligations that are unanimous among nations without having to speak about it or
make written laws about it.

It is the aspect of International Law that involves the principle of custom - which is considered to be one
of the primary sources of International Law.

International Customary Law is of importance in armed conflicts because it covers factors that are not
covered by treaty law, and therefore strengthens the protections given to victims.

Examples

Principles about treatment of individuals during times of war have been established over 100s of years
before we developed any actual documentation

Many crimes against humanity under the ICC were a response to breaches to customary law. (Examples
include slavery and genocide).

Diplomatic immunity for visiting heads of state (there is no legal document specifying this)

Case Study:

The Place of Customary International Law in Australian Law: Unfinished Business

Nulyarimma v Thompson; Buzzacott v Hill

This involved two cases, heard together, both involving claims by members of the Aboriginalcommunity
that certain Commonwealth Ministers and members of Parliament had engaged in genocide. The ability
to institute criminal proceedings alleging genocide and to bring a civil claim based on the alleged
genocide were both directly raised.
Declarations

Definition

A formal statement of a party’s position on a particular issue. They are not legally binding documents-
they simply formal documents that state intention. State and clarify the parties’ position on particular
issues, but aren’t legally binding

Example:

The most well-known declaration is the Universal Declaration of Human Rights (UDHR) (1948). The
United Nations Commission on Human Rights was established following the second world war and
Holocaust in order to draft the first universal statement of the basic principles of human rights. This
declaration:

➢ Defined human rights

➢ Outlined what behaviour constitutes human rights
➢ Was ratified UN in 1948 by 48/56 countries, today we have 192 countries who have signed

Covenants that were established following the Universal Declaration of Human Rights are:

➢ International Covenant on Economic, Social and Cultural Rights (ICESCR) which ensured the
protection of economic, social and cultural rights
➢ International Covenant on Civil and Political Rights (ICCPR) which allowed the enjoyment of civil
and political rights

Both are legally binding but have to be ratified into the state’s domestic law for it to be valid in that
country.

Case Study – Child executions

Some countries still execute under 18s for crimes.

Article 6 of ICCPR says ‘sentence of death shall not be imposed for crimes committed by persons below
eighteen years of age’.

Article 37 of the Convention on the Rights of the Child (CROC) provides that ‘neither capital punishment
nor life imprisonment without possibility of release shall be imposed for offences committed by persons
below eighteen years of age’.

In Roper v Simmons (2005), the US Supreme Court agreed executing under 18s violated the Eight
Amendment. In 1989, the same court had found that it was within the constitution. This tells us the
views of society have evolved.
Legal decisions

Definition:

This is about who deals with disputes when they arise.

In reference to law, a decision is a determination of parties' rights and obligations reached by a court
based on facts and law. A decision can mean either the act of delivering a court's order or the text of the
order itself.

In international law, judicial decisions are not generally considered binding in finding disputes but are
evidence of international practice and can assist in the interpretation of treaties and customary law.

We have a few international courts and a few regional courts. The International Criminal Court (ICC) and
the European Court of Human Rights (ECHR) are two examples

The ICC prosecutes serious crimes concerning the worldwide community

The ECHR is a regional court that rules on violations of the European Convention on Human Rights.

Specialised courts have also been set up for particular purposes and timeframes such as to deal with war
crimes committed during a specific conflict

Example:

The International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for
Rwanda.

The International Court of Justice (ICJ), which is part of the United Nations, is the judicial body that deals
with disputes between states.

Many treaties designate the ICJ as the means of resolving disputes that arise under the treaty.

Stare decisis (or precedent) does not apply to decisions of the ICJ.

According to Article 59 of the Statute of the International Court of Justice, a decision of this court only
binds the parties to the particular dispute.

The court considers past rulings in its decisions, and ICJ decisions may help to shape the content of
treaties.
Legal Writings

Definition:

The analysis of different patterns and arguments that are combined to create a document that is either
filed or presented in court. It is when the writing of respected judges and academics is considered when
decision making and treaty formulation.

Purpose - Legal writings help us to understand the international law and helps sort out any disputes,
confusion and interpret the international treaties. The goal of legal writing is to articulate the way people
interact with rules which govern society in an understandable and thorough manner.

Example:

In 2007 when whaling was banned Aust Gov wanted to challenge Japan for whaling when it was banned
under Inl Convention for Registration of Whaling (1946). This is an example of when the Government
sought advice from experts on International Laws.

Relevance of Contemporary Aust law

International law in Australia

In some countries ratification of a treaty automatically makes it part of that country’s domestic law
(monist countries like France) not the case in Australia (we are dualist)

International law does not dictate the way in which Australia implements the obligations it has under
treaties.

International treaties influence Australian law:

➢ in the development of the common law - when there is no precedent set already
➢ in judicial review of decisions – when laws are behind the times
➢ in the judicial interpretation of statutes

International Laws Australia has adapted into domestic

➢ International Covenant on Civil and Political Rights (ICCPR)

➢ International Covenant on Economic, Social and Cultural Rights (ICESCR)
➢ International Law of the Sea
➢ Convention on the Rights of the Child (CROC)
➢ Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
➢ Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(CAT)