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HSC LEGAL STUDIES 2011

100 Marks 3 hours (180 minutes) working time and 5 minutes reading time (~33 seconds per mark)

Section I: Core Crime and Human Rights (20 Marks) ~20 minutes 20 multiple-choice questions, 1 mark per correct answer o Crime (15 marks) o Human Rights (5 marks)

http://www4.boardofstudies.nsw.edu.au/course/higher-school-certificate/legal-studies/ Section II: Core Crime and Human Rights (30 marks) ~60 minutes Part A: Human Rights ~30 minutes o Short answers (15 marks) 2 lines per mark o 3-4 items in total, may refer to stimulus o One question on contemporary human rights issue Part B: Crime ~30 minutes o Extended response (15 marks) ~600 words o May refer to stimulus o Usually young offenders

Section III: Options Consumers and Family (50 marks) ~100 minutes Two extended responses (25 marks) ~50 minutes ~1000 words each Essay plan, logical order

CONTENTS
Glossary of key terms ......................................................................................................................................................................... 3 Section I: Crime and Human Rights ................................................................................................................................................... 4 Crime .............................................................................................................................................................................................. 4 The Nature of Crime .................................................................................................................................................................. 4 The Criminal investigation process ............................................................................................................................................ 9 Criminal trial process ............................................................................................................................................................... 13 Sentencing and Punishment ..................................................................................................................................................... 19 Young Offenders ...................................................................................................................................................................... 29 International Crime .................................................................................................................................................................. 38 Crime Themes and Challenges ................................................................................................................................................. 45 Human Rights ............................................................................................................................................................................... 47 The Definition of Human Rights .............................................................................................................................................. 47 Developing recognition of human rights .................................................................................................................................. 47 Formal Statements of Human Rights ....................................................................................................................................... 50 Promoting and enforcing human rights .................................................................................................................................... 51 Human rights in Australian Law .............................................................................................................................................. 57 The Australian Constitution ..................................................................................................................................................... 57 Contemporary slavery .............................................................................................................................................................. 60 Section III - Options.......................................................................................................................................................................... 64 Consumers .................................................................................................................................................................................... 64 The developing need for consumer protection ......................................................................................................................... 65 Consumer redress and remedies ............................................................................................................................................... 70 Family Law................................................................................................................................................................................... 77 The Nature of Family Law ....................................................................................................................................................... 77 Contemporary issues concerning family law ........................................................................................................................... 94 Miscellaneous .................................................................................................................................... Error! Bookmark not defined.

GLOSSARY OF KEY TERMS

(QUESTION DIRECTIVES)

Account Account for: state reasons for, report on. Give an account of: narrate a series of events or transactions Analyse Identify components and the relationship between them; draw out and relate implications Apply Use, utilise, employ in a particular situation Appreciate Make a judgement about the value of Assess Make a judgement of value, quality, outcomes, results or size Calculate Ascertain/determine from given facts, figures of information Clarify Make clear or plain Classify Arrange or include in classes/categories Compare Show how things are similar or different Construct Make; build; put together items or arguments Contrast Show how things are different or opposite Critically (analyse/evaluate) Add a degree or level of accuracy, depth, knowledge and understanding, logic, questioning, reflection and quality to (analyse/evaluate) Deduce Draw conclusions Define State meaning and identify essential qualities Demonstrate Show by example Describe Provide characteristics and features Discuss Identify issues and provide points for and/or against

Distinguish Recognise or note/indicate as being distinct or different from; note differences between Evaluate Make a judgement based on criteria, determine the value of Examine Inquire into Explain Relate cause and effect; make the relationships between things evident; provide why and/or how Extract Choose relevant and/or appropriate details Extrapolate Infer from what is known Identify Recognise and name Interpret Draw meaning from Investigate Plan, inquire into and draw conclusions about Justify Support an argument or conclusion Outline Sketch in general terms; indicate the main features of Predict Suggest what may happen based on available information Propose Put forward (for example a point of view, idea, argument, and suggestion) for consideration or action Recall Present remembered ideas, facts or experiences Recommend Provide reasons in favour Recount Retell a series of events Summarise Express, concisely, the relevant details Synthesise Put together various elements to make a whole

SECTION I: CRIME AND HUMAN RIGHTS CRIME THE NATURE OF CRIME


Crime: Any act that law makers in a particular society deems to be morally and ethically criminal. Crimes are offences against the society as a whole and are punishable by the state. Criminal law: The area of law that deals with crime and covers the main areas, including investigation, enforcement, prosecution, defence, criminal trial, sentencing and punishment. Factors which determine what a crime is: Culture History Legal traditions Social attitudes Religious beliefs Political systems

Law reform in crime occurs as societys attitudes evolve or when none have existed before. Key characteristics of criminal law: Against society as a whole. Can be against an individual, the state, or property The Crown or state prosecutes an accused in a court of law to obtain some form of sanction or punishment. In NSW, the Director of Public Prosecutions (DPP) or the police commence the prosecution procedure in court against the offender (defendant). If the crime is against a federal criminal law, then action is taken by the Commonwealth Director of Public Prosecutions. The Crown must prove the case beyond reasonable doubt: if there is any reasonable conclusion besides proving the criminal charges can be made from the evidence, then there is reasonable doubt. The aim of criminal law is to protect the community and provide a sanction or punishment to the offender if found guilty of a crime.

Elements of a Crime Police must prove that the elements of the particular crime are present before it can be taken to court. Actus reus: latin; guilty act, the accused physically committed the crime. It is proven by physical evidence and witness testimonies in court. Must be a voluntary act but can also include an omission or failure to act (i.e. criminal negligence) Mens rea: latin; guilty mind, the accused intended to commit the crime. The conscious and willing mind that was present in performing a crime. Includes acting intentionally, fraudulently, maliciously, negligently, recklessly, or wilfully. Three main levels are o Intention: a clear, malicious or wilful intention to commit the crime. Highest level degree of mens rea to prove. o Recklessness: an intermediate level of intent, where the accused was aware that the action could lead to a crime being committed, but chose to take that course of action anyway. o Criminal negligence: where the accused fails to foresee the risk where they should have and so allows the avoidable danger to manifest. Causation: the link between the actions of the accused and the result, i.e. that the behaviour of the accused actually caused the criminal act alleged.

Strict liability offences Does no require the prosecution to prove mens rea, only the element of actus reus will need to be shown. Minor offences, such as traffic offences (speeding offences) or breaches of regulation (selling alcohol to minors) Possible defence if the accused can prove the act was an honest and reasonable mistake.

CATEGORIES OF CRIME
Categorised by: Type of offence Jurisdiction Seriousness of the offence Parties to a crime

Types of offences In NSW, the Crimes Act 1900 (NSW) is currently divided into roughly 16 parts relating to the main type of offences. The main offences are Offences against the person It involves some form of harm or injury to an individual Further separated into three distinct areas o Homicide It is defined as the unlawful killing of another person; both deliberate and accidental (varying degrees of mens rea). Causation must be established between the actions of the accused and the death of the victim. In NSW law, there are four main categories of homicide: Murder: The most serious homicide offence and is punishable by life imprisonment. The prosecution must prove at least The accused intended to deliberately kill the victim The accused set out to inflict serious bodily harm, which resulted in death The accused did not care that the act might end a human beings life The act was done while committing or attempting to commit another serious crime punishable by life or 25 years imprisonment Manslaughter: The killing of a person but with a reduced level of intent from murder. Punishable by up to 25 years imprisonment, a person may be charged with manslaughter where it cannot be proved they intended to commit murder. There are three main types of manslaughter Voluntary manslaughter when a person kills with intent, but there are mitigating circumstances which reduces culpability Involuntary manslaughter when the accused acted in a reckless or negligent way and kills a person, but without intention. Constructive manslaughter when the accused kills a person while carrying out another dangerous or unlawful act constructed. For example, assault without intention to kill or inflict serious bodily harm, but death results. Infanticide: Death of a baby under the age of 12 months at the hand of its mother. The Crimes Act requires that the court take into account the state of mind of the mother at the time she committed the crime. Many women suffer from post-natal depression, which if the accused is found to be suffering from this condition when she killed her baby, it can be seen as a mitigating circumstance of the crime. Dangerous driving causing death: Death as a result of unsafe and dangerous driving of a motor vehicle. It carries a maximum penalty of 10 years, but if the offence is aggravated by certain circumstances, it can carry as much as 14 years imprisonment. o Assault It is broadly defined as causing physical harm or threatening to cause physical harm to another person. Common assault: threatening to cause physical harm to another person. Physical assault: a direct act in which force is applied to another persons body unlawfully and without consent. Punishable by up to 5 years imprisonment. Threats which cause victims to fear immediate and unlawful violence might also constitute such a form of assault. Aggravated assault: the assault of a person with an object rather than the assailants own body, or if the accused attacks a police officer when the officer is carrying out their duties. A Bill to provide for mandatory life sentences for the murder of police officers has been passed by the NSW Parliament. The Crimes Amendment (Murder of Police Officers) Bill 2011 was introduced into Parliament by Michael Gallacher on 24 May 2011. It was assented to on 23 June 2011. See CRIMES AMENDMENT (MURDER OF POLICE OFFICERS) ACT 2011, NSW Act No 20.

Sexual offences Sexual assault (offences) occurs when someone is forced into sexual intercourse against their will and without their consent. (It was formally known in common law as rape.) Sexual intercourse is defined in the Crimes Act to include oral sex and penetration. A person does not give consent when they are substantially intoxicated by drugs and alcohol; intimidated or coerced into the act; or if the accused is abusing their position of trust or authority over the victim. Aggravated sexual assault will be applicable when there are aggravating circumstances, such as violence, the victim is under 16 years old or if the victim has a serious physical or intellectual disability. Indecent assault where the accused commits an assault and act of indecency on or in the presence of another person without their consent. The most serious sexual offence in NSW is that of aggravated sexual assault in company. It is punishable by life imprisonment (equal to murder). Introduced in 2002, s 61JA of the Crimes Act.

Offences against the sovereign It includes political offences against the state or heads of state, such as treason and sedition. o Treason: any attempt or manifest intention to levy war against the state, assist the enemy, or cause harm to or death of the Governor-General, prime minister or the Queen. Punishable by up to 25 years imprisonment (NSW) or life imprisonment (Commonwealth) o 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. In 2007, the Australian Law Reform Commission (ALRC) recommended to remove sedition from the laws as it received widespread public criticism as being unnecessary and a danger to freedom of expression. Economic offences o Crimes against property Larceny: known commonly as theft or stealing, it occurs when one or more persons intentionally take another persons property without their consent and without the intention of returning it. Robbery: occurs when force is present in the act of stealing goods or when property is taken directly from the victim. If it is accompanied with the use or threatened use of a weapon, then it is classed as armed robbery. Break and enter: known commonly as burglary. It occurs when a person or persons enter a room or building with the intention of committing an offence like larceny o White-collar crime A general term given to various non-violent crimes associated with business people or professionals. They are often difficult to detect, time consuming and expensive to investigate. The three most common are Embezzlement: when a person, usually an employee, misappropriates another persons property or money that they have been entrusted with. Tax evasion: when a person avoids paying taxes to the government, usually by fraudulent tax returns Insider trading: when a person, usually a stock broker or company director, obtains confidential inside information that will affect the share price and takes advantage of this knowledge. o Computer offences It includes the various crimes related to hacking and unauthorised access or modification of data. Fraud refers to deceitful or dishonest conduct carried out for personal offences and can be included above.

Drug offences Drug offences relate to acts involving prohibited or restricted drugs. In NSW, the Drug Misuse and Trafficking Act 1985 (NSW) outlines numerous offences, and some additional offences included in the Summary Offences Act 1988 (NSW) o Possession: The drug is in the accuseds custody or control, and the accused must know about it; including shared ownership or minding it for another person. o Use: Intentional consumption of the drug by any means, except in a medically-supervised injecting centre o Cultivation: Refers to the growth or cultivation of a prohibited plant, such as cannabis o Supply: Offering or agreeing to supply, whether or not the actual drug or money really changed hands. Driving offences

Driving offences are included under both the Road Transport (Safety and Traffic Management) Act 1999 (NSW) and the Crimes Act 1900 (NSW) In NSW, driving offences are enforced and regulated by the police and regulated by the NSW Roads and Traffic Authority (RTA). The most common offences are o Exceeding the speed limit o Driving without a licence or while disqualified o Ignoring road signs o Driving above the legal blood alcohol limit of 0.05 Public order offences Refers to acts which are deemed to disturb the public in some way and are inappropriate or offensive when conducted in public, such as: o Obscene, indecent or threatening language or behaviour in public o Possessing a knife in a public place without a reasonable excuse o Obstructing traffic or ignoring a reasonable police direction to move on More serious offences listed in the Crimes Act: Affray: the use or threatening to use unlawful violence on another that would cause a reasonable person present at the scene to fear for their safety. It is often laid as a result of a public fight or brawl. o Riot: involves 12 or more people use or threatening to use unlawful violence for a common purpose. o Explosives and firearm offences o Bomb hoaxes o Participation in criminal organisations Preliminary offences o

Refers to offences that precede the commission of a crime or where the crime has not been completed for some reason and fall in two main categories: o o Attempt: an offence where a principal crime was attempted but failed or was prevented for some reason despite the intention to complete it Conspiracy: when two or more people plot to commit a crime together

Regulatory offences Regulatory offences are set out in regulations or local laws that address a range of day-to-day situations and standards. They are usually strict liability offences. Watering the garden despite water restrictions being in place Breach of OHS Travelling on public transport without a valid ticket Lighting a fire or BBQ on a day of total fire ban.

SUMMARY AND INDICTABLE OFFENCES


Summary offences Less severe offences that are heard and sentenced by a magistrate in a local court The judgement and punishment are determined by a magistrate The charge is usually laid by a police officer or government officer The punishment is usually less severe, such as a fine, good behaviour bond or community service.

Indictable offences: More severe offences that are heard and sentenced by a judge in a District Court or tried before a judge and jury, such as murder or rape The judgement is determined by a jury and the punishment is determined by the judge The charge is brought by a public prosecutor working for the state The punishment will usually result in imprisonment or a hefty fine

PARTIES TO A CRIME
Principal in the first degree The principal offender or the person who actually commits the criminal act.

Principal in the second degree This is a person who was present at the crime and assisted or encouraged the principal offender to perform the offence. The presence does not need to be immediate physical presence, but assisting the principal may be sufficient.

Accessory before the fact A person who has helped the principal in planning or preparation before the actual crime is carried out.

Accessory after the fact A person who has assisted the principal after the actual act is committed.

FACTORS AFFECTING CRIMINAL BEHAVIOUR


Psychological or pathological factors o Mental illness affecting a persons behaviour Social factors o A persons attitude towards crime such as family situation or personal relationships o The social environment that the person is living or grew up in Economic factors o People from disadvantaged backgrounds are more likely to commit crimes (AIC 1/3 or male and of female offenders receive a welfare or government payment as a source of income) o Low level of education and lack of skills o Low income Political factors o Dislike for government Self interest o Profit, revenge, greed, self-interest Genetic theories o People are born criminals. INCONCLUSIVE

CRIME PREVENTION: SITUATIONAL AND SOCIAL


Situational Crime Prevention Influencing the physical environments where crime occurs to deter people from committing a crime by: Installing bars or an alarm system at home Computer passwords or internet firewalls CCTV

Rational choice theory, decreasing the rewards of crime while increasing the risks and costs. Colour tags attached to clothing in shops Magnetic strips embedded in items that will set off a detector at the door.

Social Crime Prevention Attempts to address the underlying social factors that may lead to criminal behaviour, such as: Poor home environment and parenting Social and economic disadvantage Poor school attendance Early contact with the police and other authorities

By Funding educational programs in school to raise the education of students deemed to be at risk Parenting workshops to provide skills and empower themselves and their children to make better life choices Youth programs to teach dispute resolution skills and social skills that encourage better decisions

THE CRIMINAL INVESTIGATION PROCESS POLICE POWERS


The Police are responsible for enforcing criminal laws and ensuring they are adhered to. They are also responsible for the prevention and detection of crime and for the maintenance of public order. In NSW, crimes will be investigated by the NSW Police Force, unless it is a Commonwealth offence which is handled by the Australian Federal Police. In the criminal investigation process, the role of police includes: Investigating crimes Making arrests if necessary Interrogating suspects Gathering evidence against the accused Presenting evidence for judgement to a court on behalf of the state

The majority of police powers are contained in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), and other specific legislation. The main police powers include the power to Detain and question suspects Search and seizure Use reasonable force if necessary to carry out their duties Use particular technologies to assist an investigation Arrest and interrogate suspects Recommend whether bail should be granted.

A warrant may be necessary for police to be able to use a particular power. It is a legal document issued by magistrate authorising an officer to perform a particular act, for example make an arrest, conduct a search, seize property or use a phone tap. The NSW Police Force follows a specific code of behaviour called the Code of Practice for CRIME (Custody, Rights, Investigation, Management 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. Suspects are able to complain if they believe his or her rights have been abused. The Force is overseen by the NSW Ombudsman and the Police Integrity Commission. How frequently are taser stun guns being used by police since being introduced as part of the standard police kit? According to a recent article in the SMH, police are using them more regularly and the government has spent over $118,000 defending claims of improper use. See 'Hundreds more hit as police rely on stun guns' by Anna Patty, SMH, 25 June 2011. According to this article, tasers were used: 126 times in 2008 407 times in 2009 and 1169 times in 2010.

1. REPORTING CRIME

000, Police station, or police officer Community involvement such as Crime Stoppers assists police work and helps promote a sense of participation in the criminal justice system.

However people may be reluctant to report a crime as: Do not want to become involved or have to appear as a witness Fear of the consequences if the crime is reported Inability to report the crime The dispute has already been settled Perceived time or administrative burden of reporting a crime

Some crimes are more widely reported, such as car theft because a police report is necessary to claim insurance, whereas domestic violence and sexual assault more frequently go unreported. Investigating a crime Once Police receive information about a crime, they will exercise police discretion in whether to investigate or take no further action, based on: Severity of the offence The likelihood of success Availability of resources or priorities

Gathering evidence When a crime is committed, it is the role of the police to gather evidence to further the investigation and to support a charge in court at a later date. o Witness statements and looking at evidence must be done ASAP before witnesses forget what they saw or heard and before evidence is compromised or interfered with. o All evidence must be obtained in a proper and lawful matter as required by the Evidence Act 1995 (NSW) to be admissible at trial. This helps to ensure that the collection of evidence is legitimate and does not interfere with the rights of ordinary citizens. In some situations, a court warrant is required. o Oral testimonies of the accused, police, witnesses o Physical evidence such as objects or weapons o Documents, fingerprints, DNA sampling, tape recordings, video surveillance and electronic information stored on HDDs are also use.

Use of Technology Technology has helped the police gather evidence and prove charges DNA evidence: Genetic material, such as hair, blood and saliva) can be used to link a suspect with a crime scene or criminal offence. In NSW, a person must consent to a sample. If they refuse, a court order is required and the use of reasonable force. Electronic criminal databases are easier and more effective and can be shared across states and internationally.

Search and Seizure Under Part 4 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) police are given the powers to search people and seize and detain things. In NSW, the police have the broad power to stop and search any person where they believe on reasonable grounds that they are carrying anything stolen, used in an indictable or another specified offence, prohibited drugs or plants, or a dangerous article when they are in a public place. Police can seize and detain any of these objects if discovered. Police can search anything in a persons possession or control, including the persons body, bag, clothes, or possessions. The Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) also sets a number of procedures when conducting a personal search or strip search. This is the most controversial as it is seen as an invasion of privacy or personal place. It can also be confronting or embarrassing, particularly in a public place. Use of Warrants

A warrant is a legal document issued by magistrate authorising an officer to perform a particular act. This ensures special police powers are used only when appropriate and provides an additional layer of protection for ordinary citizens against misuse of that power. Substantial reasons or evidence must be given to a magistrate to justify the use of a warrant Emergency warrants exist when time is of the essence in an investigation NSW Police usually require a valid warrant before they can enter and search any premises, residential or business, without the consent of the occupier or owner. In this particular case, the warrant will state the reason and what articles are being searched for

2. ARREST, DETENTION AND CHARGE


Arrest Law Enforcement (Powers and Responsibilities Act) 2002 (NSW) outlines the conditions in which police can lawfully arrest a person Catching a suspect committing an offence Believing on reasonable grounds that a suspect has committed or is about to commit an offence Where a person has committed a serious indictable offence for which they have not been tried Possessing a warrant for that persons arrest

Police can use whatever reasonable force is necessary to make an arrest, and must state that they are and why they are under arrest. Detention and interrogation Law Enforcement (Powers and Responsibilities Act) 2002 (NSW) outlines the conditions in which police can lawfully detain a suspect for questioning and further investigation Can only detain a suspect for a maximum of four hours, by which time that the person must be either charged or unconditionally released A warrant may extend this period up to a further eight hours Rest periods are not included in the total time, including o Transportation time o Waiting for those necessary in the investigation o Time for the suspect to talk to a friend, relative or lawyer o Medical treatment o Refreshment periods

As soon as a suspect is in custody, they are usually questioned. Interrogation refers to the act or process of questioning a suspect by the investigating officers. The police must issue a caution to the suspect as soon as practical, which informs them of their rights (maximum period of detention, not have to say or do anything but that anything the person does say or do may be used as evidence.) Everyone has the right to a legal representative during a police interview. A suspect under 18 years of age has the right to have a responsible adult present with them at the interrogation. The interview is recorded on videotape as well as on two audiotapes: one for the police records and one for the defendant. Release or charge A suspect can only detained for a maximum of four hours, by which time that the person must be either charged or unconditionally released. If charged, the police must either release the accused or bring them before a magistrate or authorised officer as soon as practicable after the end of the maximum detention periods. The accused will then be brought before the court for a bail hearing.

THE RIGHTS OF THE VICTIM


To have their case reported or recorded

To be informed of all services available to them To be informed of the progress of the investigation To be told of any arrest or charges To be informed of all hearing dates To be informed of any changes to charges/pleases To be informed of their role as a witness To be protected from the accused To be compensated for damages resulting from crime up to the value of $50 000 To be able to make a victim impact statement to the court

THE RIGHTS OF THE ACCUSED


To not be illegally searched and have property seized The right to silence To be allowed bail To have legal representation To have all interviews recorded Only to be detained if arrested Only to be arrested if suspected of committing the offence To not have illegally obtained evidence presented at trial To not have prior charges/convictions detailed to the court prior to a guilty verdict The right of appeal based on legal argument against the conviction or severity of the sentence

3. SUMMONS, BAIL OR REMAND


Summons A legal document that states when and where a person must appear in court and, if they are accused, the charge top which they must answer Bail The temporary release of an accused person awaiting trial, sometimes on particular conditions such as lodgement of a sum of money as a guarantee A bail hearing decides whether the accused should be released on bail or remains in custody until their trial. Bail can take many forms, such as upfront monetary payments or recognisance, which the accused promises to turn up, knowing failure to do so will result in them being fined and arrested. It can also come in the form of surety, where someone else agrees to put up money on behalf of the accused as an assurance that the accused will turn up for court. If on bail, the accused must wear wrist and ankle monitoring devices and diversionary services such as rehabilitation programs. The accused may also need to show up to a police station or a regular basis to prove that they have not moved out of a restricted area and surrender their passport. Bail can be refused particularly in violent offences where the accused may be of a risk to the community or commit another offence. If there is indication that the accused might attempt to flee to another state or country, bail is unlikely to be granted. The Bail Act 1978 (NSW) outlines the guidelines for bail such as the presumption against bail for certain offences such as drug trafficking or serious domestic violence. It is up to the accused to prove why bail should not be refused. Denying bail can be severe on an accused person and may result in an extensive period of custody before a final verdict is reached and especially if the accused may be innocent and found not guilty. Remand A period spent in custody awaiting trial at a later date. Remand is usually sought against people who have committed particularly violent crimes, dangerous criminals, repeat offenders or those thought to be a flight risk.

CRIMINAL TRIAL PROCESS COURTS JURISDICTION: CRIMINAL COURTS


Different courts have different jurisdiction to hear criminal offences. The seriousness of the matter Whether the matter is being heard for the first time or whether it involves an appeal The nature of the offence some courts or divisions within courts have authority to hear particular types of offences The age of the accused, particular if they are under 18 years old The type of hearing: bail hearing, committal hearing or trial Whether the alleged crime is an offence under state law or federal law.

Court hierarchy: The system of courts within a jurisdiction, from lower courts to intermediate and higher courts.

Original jurisdiction: the authority for a court to hear a matter for the first time Appeal: An application to have a higher court review a decision of a lower court Appellate jurisdiction: the authority for a court to review matters on appeal from another court In NSW, the court hierarchy is as follows: Lower courts Local Court of NSW, the Coroners Court, the Childrens Court and the Land and Environment Court Intermediate courts the District Court of NSW Superior courts the Supreme Court of NSW and the High Court of Australia Lower courts Local Court of NSW The Local Court Act 2007 (NSW) sets out the jurisdiction and operation A magistrate (judicial officer in the Local Court; in NSW they are appointed by the Governor) presides proceedings Conducts committal proceedings; where a magistrate determines if there is enough evidence for a case of indictable offence to proceed to trial in a higher court Can hear indictable offences triable summarily if the accused consents Bail hearings No jury present

Jurisdiction to hear civil matters up to the value of $60 000

Criminal matters heard in the local court will usually be heard and determined much faster than in superior courts as fewer formalities are required. The cost of hearing will also be significantly less for the accused and the state. Nonetheless, it lacks the jurisdiction to conduct jury trials or to hear appeals. It also limited on the sentences it can hand out. Coroners Court Powers outlined in the Coroners Act 2009 (NSW) Specialist local court that deals specifically with the cause and manner of a persons death, as well as fires and explosions where property has been damaged or a person has been injured. The coroner is a judicial officer appointed to investigate deaths in unusual circumstances and determining the identity of the deceased as well as the date, place, manner and medical cause of death Can also investigate disappearances, deaths where a medical certificate has not been issued, or deaths that occur in unusual or suspicious circumstances, such as deaths occurring: o In a violent or unnatural way, or suddenly with unknown cause o After an accident (up to one year and one day) that may have contributed to the death o In police custody or in a prison or detention centre o While receiving care or medical treatment, or within 24 hours of administration of an anaesthetic Court hearings are known as coronial inquests and it is where a coroner considers information to help determine the matter and cause of death. Able to conduct post-mortem examination of a body (autopsy)

The findings of the coroner will often be used as evidence in a later criminal trial. Childrens Court Established under the Childrens Court Act 1987 (NSW) Specialist court that deals specifically with matters relating to the care and protection of children and young people as well as criminal matters concerning children who are under the age of 18 years old, or who were under 18 at the time of an alleged offence. General public is prohibited from viewing proceedings (closed court) Presided over by a magistrate with no jury More in depth in Young Offenders chapter

Land and Environment Court Specialist court responsible for interpreting and enforcing environmental law in NSW Deals mainly with civil and administrative disputes related to environmental planning (i.e. zoning of parklands) but has criminal jurisdiction to hear some environmental offences, such as illegal polluting or dumping No jury Prosecutions are brought by the NSW Environment Protection Authority (EPA)

Intermediate Courts District Court of NSW Established under the District Court Act 1973 (NSW) Matters heard before a judge and a jury Has appellate jurisdiction from the Local Court and the Childrens Court Hears serious criminal offences except for murder and treason o Offences against the person such as manslaughter, sexual or indecent assault, assault occasioning actual bodily harm or assault of police officers o Property offences such as larceny, robbery, embezzlement, or break enter and steal o Drug offences such as supply, manufacture or production of a prohibited drug o Driving offences such as dangerous or negligent driving causing death or serious bodily harm Civil matters up to $750 000 A jury of 12 people will decide on the accuseds guilt or innocence based on evidence presented in the court trial The judge will control proceedings and decide on questions of law, and will also determine the sentence if found guilty

More formalities than the Local Court, matters are longer and have greater cost to both the accused and the prosecution Superior Courts Supreme Court of NSW Constituted under the Supreme Court Act 1970 (NSW) Hears the most serious criminal cases, as well as civil matters beyond the jurisdiction of the Local and District Courts o Murder, manslaughter and attempted murder o Major conspiracy and drug related charges o Commonwealth prosecutions for serious breaches of the Corporations Law o Jury of 12 o Appellate jurisdiction to hear criminal appeals from lower NSW Courts. Criminal appeals are heard in the Court of Criminal Appeal

Highest levels of formality and cost of the NSW courts and can carry the highest consequences Court of Criminal Appeal The appellate branch of the Supreme Court of NSW The highest court for criminal matters Can hear appeals from the District and Supreme Court(s), as well as the Land and Environment Court Appeals are usually heard by three Supreme Court judges with the majority view prevailing Where significant legal issues are being considered this may be increased to five judges Grounds for appeal might include a question of law, a question of fact, or a challenge to the severity or adequacy of a sentence.

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 Commonwealth offences will usually 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 prosecuted by the Commonwealth Director of Public Prosecutions Most common prosecutions for Commonwealth offences include drug importation, money laundering, offences under the corporate law, tax or social security fraud.

High Court of Australia Mandated by section 71 of the Constitution of Australia and is constituted under the Judiciary Act 1903 (Cth). Original jurisdiction in limited Commonwealth matters Appellate jurisdiction to hear all appeals from state and territory supreme courts. Cases which are concerned with the interpretation of the Constitution of Australia and the constitutional validity of laws, including criminal laws Only hears matters on appeal where it grants special leave where questions of law of public importance, conflict between courts or in the interests of the administration of justice.

THE ADVERSARY SYSTEM


A system of law where two opponent sides, adversaries each present their case to an impartial judge or jury. Apart of the English common law system Each party has equal opportunity to present their case Less prone to abuse or bias by the official determining the case Opposite sides may not be equal before the law in resources, skills or knowledge The judge or jury cannot request additional evidence or testimony that would assist the case and in achieving justice Jury system has flaws in understanding of evidence or in making its decision Differs from the inquisitorial system where a judge or group of judges plays a role in investigating the case or calling for evidence of testimony that has not been requested by either side

LEGAL PERSONNEL IN A CRIMINAL TRIAL


Magistrates: Judges The judicial officers that preside over the intermediate and superior courts Oversees proceedings, maintains order in the court room and ensures that the procedures of the court are followed Makes decisions about points of law and gives instructions to the jury to make sure they understand the proceedings and the evidence presented The jury decides the verdict, the judge hands down sentences and rulings In some cases the judge will sit without the jury The judicial officers that preside over hearings in the Local Court. Specialised magistrates also hears cases in the Childrens Court In criminal law, magistrates will hear summary proceedings in the local court and indictable offences triable summarily (where the accused has given consent) Conducts committal proceedings for indictable offences to be tried and will usually hear bail proceedings Determines the guilt of the accused based on evidence presented and will also pass an appropriate sentence

Prosecutors Represents the state or Crown and brings the action against the accused Police Prosecutors o Members of the NSW Police with specialised training to conduct prosecutions. o Usually prosecutes summary offences in the Local and Childrens court NSW Director of Public Prosecutions o Independent authority that prosecutes all serious offences on behalf of the NSW Government. Not influenced by politics or public pressure o Indictable and some summary offences o Some committal proceedings for indictable offences o Prosecutors employed by the DPP are barristers or solicitors o Prosecutes cases once sufficient evidence has been established (reviews cases proposed by the Police and when it is in the public interest to do so) o Factors on deciding to prosecute or not Sufficient evidence to establish the elements of the offence Evidence is sufficient to gain a conviction by a reasonable jury Discretionary factors to determine public interest, Seriousness of the offence Special circumstances of the offence Accused or victim Maintaining public confidence Length and expense of trial Likely outcome and consequences if the trial succeeds

Barristers and solicitors Solicitors: Provides legal advice on a range of matters, and may also represent the accused in court Barristers: Provides legal advice for the accused on the likely outcome of a court case and to present that case in court Public defenders Barristers who appear in serious criminal matters for an accused who has been granted legal aid cannot afford legal representation Independent of the government and perform similar duties to a privately retrained barristers

PLEAS AND CHARGE NEGOTIATION

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. (Lesser charges) Charge negotiation: (formerly charge bargaining): Negotiations during a criminal trial, between an accused person and a prosecutor in which the accused agrees to admit to a crime (sometimes a lesser crime than the one set out in the original charge) Advantages Decreases costs and time delays Increases the rate of criminal conviction Lesser charge better than no charge

Disadvantages Crimes may go unpunished or insufficiently unpunished o The offender may receive no real punishment, or a punishment that does not match the crime o Allows certain crimes they commit to go unpunished May result in an accused pleading guilty to a crime for which they are innocent Bullying or manipulation of the accused to forfeit their right to a trial Prosecution can threaten more serious charges to intimidate the accused to plead guilty to the lesser charge Victims may feel they have been treated unjustly

LEGAL REPRESENTATION AND LEGAL AID NSW


Right to a fair trial, both sides equal and thus able to achieve justice Dietrich v The Queen established a limited right to legal representation in Australia Self-representation is allowed but not advised unless it relates to a very minor matter. Legal Aid Commission formed under the Legal Aid Commission Act 1979 (NSW). o Provides legal assistance and representation to people who are socially and economically disadvantaged to ensure that they have equitable access before the law. Usually disabled persons, women, people of Aboriginal and Torres Strait Islander backgrounds and the financially disadvantaged o Free brief legal advice sessions to anyone o Means tested o In some cases, contributions are necessary

BURDEN AND STANDARD OF PROOF


Onus is on the prosecution to prove the case Standard of proof required is beyond reasonable doubt there is no reasonable doubt that the accused in fact committed the offence. DPP will usually not bring a case to court where they believe this standard of proof can be met by all 12 jurors.

USE OF EVIDENCE, INCLUDING WITNESSES


Evidence Act 1995 (NSW) Relevant to the case and obtained legally Real evidence, documentary evidence and witness testimony Real evidence o Physical evidence, i.e. tape recordings, charts, photographs, fingerprints, DNA testing, weapons, clothing Documentary evidence, i.e. original documents recovered during the investigation Witnesses Someone who saw the crime take place Expect witness with relevant knowledge about an aspect of the case

DEFENCES TO CRIMINAL CHARGES

Complete defences result in the complete acquittal of the accused Mental illness or insanity o Mentally incapacitated when they committed the offence, hence no mens rea o Difficult to prove o If successful, the accused may be found not guilty on the grounds of insanity Involuntary behaviour or automatism o The accuseds action was not voluntary or could not be controlled, i.e. epileptic fit, no mens rea Mistake o Not generally a defence and will be difficult to prove o If the accused can show it was an honest and reasonable mistake, and that the act was not intended, the relevant mens rea is not present Self-defence or necessity o Defending themselves or another person, while attempting to prevent a crime or in defence of property o Must be reasonable force, R v Zecevic (1987) their life was threatened and they must use proportional and reasonable force Duress o Against own free will, R v Williamson (1972) disposed of a body while under a death threat Consent o Most often used as an absolute defence in sexual assault cases o Cannot be used in murder euthanasia

Partial defences to murder mitigating factors that caused them to carry out the act which may reduce the sentence or result in an acquittal Provocation o Their actions were a direct result of the other persons actions and caused them to lose control of their actions o There is some level of responsibility on the victim, extreme reaction resulting in murder o Abolished in Victoria, Western Australia and Tasmania, but still exists in NSW o Can only be used to have a murder charge reduced to manslaughter o R v Camplin (1978) 15 year old boy killed his uncle after he sexually assaulted the boy and mocking him about the incident. Diminished responsibility o Substantial impairment of responsibilities reduces it to manslaughter o Low IQ or mental retardation

THE ROLE OF JURIES, INCLUDING VERDICTS


Jury Act 1977 (NSW) Jury is a panel of citizens, selected at random for a jury list compiled from electoral roles Determine guilt or innocence based on evidence presented to them in trial Used in the District Court or the Supreme Court In most cases, 12 jurors In most cases, must reach a unanimous verdict, but this may be reduced in certain circumstances

Challenging jurors Both the prosecution and the defence have the right to challenge the selection of the entire panel or individual jurors Peremptory challenges given to both sides to disqualify individual jurors without having to give a reason. Based on nothing more than name or appearance (age, gender, race, clothing, physique)

Eligibility for jury duty 18 years or older Exemptions for certain people available, those aged over 65, pregnant or care for children full time. Ineligible to sit on a jury o Do not speak English o Emergency services staff members (police, fire and ambulance)

o o o Jury role -

Disabled people Convicted criminals Members of the legal profession

Sworn in Listen to evidence and come to a verdict as to the accuseds guilt or innocence Ask for clarifications from the judge Only talk to fellow jurors about the case Can make notes Remain unbiased and impartial and make a judgement based solely on evidence provided Should not be influenced by the media or their own personal beliefs when reaching a decision No time limit on deliberating a verdict

Refer to Sudoku case (Drug trial, District Court, Sydney, 2008 - $1mil, 105 witnesses, 20 police) Verdict Hung jury cannot reach a verdict In 2006, NSW Parliament amended the Jury Act 1977 (NSW) with the Jury Amendment (Verdicts) Act 2006 (NSW) to allow a majority verdict of 11-1 or 10-1 allowed, where reasonable time for deliberation has passed and the court is satisfied that a unanimous verdict will not be reached.

SENTENCING AND PUNISHMENT


When the accused is found guilty, a sentencing hearing will occur, usually on a separate day to the trial or a summary hearing. It is where the judge or magistrate hears and considers arguments and evidence about relevant law and what the most appropriate sentence ought to be in the circumstance. Statutory and Judicial Guidelines Crimes (Sentencing Procedure) Act 1999 (NSW) Main source of sentencing law in NSW Sets out the purpose for which a sentence may be imposed, 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.

Maximum penalties are 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 is used where the judge or magistrate has the power to make a decision on a case-by-case basis. The Crimes (Sentencing Procedure) Act also allows for the NSW Attorney-General to apply to the court for guideline judgements. This sets out sentencing guidelines for a particular offence. Mandatory sentencing was introduced in some jurisdictions to remove judicial discretion from some offences or type of offender by setting a minimum or mandatory sentencing. This is aimed at being a deterrent but opponents claim that such laws are too harsh. Individual circumstances of the accused and the offence they have committed are disregarded and particular groups may be targeted.

THE PURPOSES OF PUNISHMENT


The Crimes (Sentencing Procedure) Act 1999 (NSW) provides the allowable purposes of sentencing in s 3A of the Act The purposes for which a court may impose a sentence on an offender are as follows: a) To ensure that the offender is adequately punished for the offence, b) To prevent crime by deterring the offender and other persons from committing similar offences, c) To protect the community from the offender,

d) e) f) g)

To promote the rehabilitation of the offender, To make the offender accountable for his or her actions, To denounce the conduct of the offender, To recognise the harm done to the victim of the crime and the community.

DETERRENCE
Deterrent is something that discourages or is intended to discourage someone from doing something General deterrence states that by punishing one individual others will be deterred from committing the same act in order to avoid being punished themselves. Specific deterrence states that punishing one individual will prevent that same individual from committing another act in order to avoid being punished a second time.

Studies into the effectiveness of deterrence in individual criminal sentencing are either inconclusive or suggest that it is not effective. In New Zealand from the year 1924 to 1962, the general deterrence of the death penalty for murder was in force, abolished, reinstated and abolished again, with much publicity and discussion. However, this had no significant impact on the murder rate. Studies have shown that imprisonment of an individual (specific deterrence) 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.

Sentencing a person for the purpose of deterrence is injustice if it is ineffective. In 1998, the ALRC recommended that deterrence should 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 of the federal Crimes Act 1914 (Cth), but remains in the Crimes Act 1900 (NSW). Deterrence to be applied notwithstanding criticisms The effectiveness of general deterrence has always been the subject of debate. King CJ in Yardley v Betts (1979) 1 A Crim R 329 at 333 remarked: The courts must assume, although the evidence is wanting, that the sentences which they impose have the effect of deterring at least some people from committing crime. [emphasis added.] Before the enactment of s 3A(b) (which affirmed the importance of deterrence), Spigelman CJ said in R v Wong (1999) 48 NSWLR 340 at [127][128] that legislation would be required to change the courts approach to deterrence: There are significant differences of opinion as to the deterrent effect of sentences, particularly, the deterrent effect of marginal changes in sentence. Nevertheless, the fact that penalties operate as a deterrent is a structural assumption of our criminal justice system. Legislation would be required to change the traditional approach of the courts to this matter. Deterrence only works to the extent to which knowledge is transmitted to potential offenders about actual sentencing practice. Guideline judgments are a mechanism for increasing the efficiency of the transmission of such knowledge. Deterrence is an appropriate basis for promulgation of a guideline. (See Henry [(1999) 46 NSWLR 346] at [41] and [205][211]; Police v Cadd (1997) 94 A Crim R 466 at 511; and my address Sentencing Guideline Judgments 11 CICJ 5 at 1011; 73 ALJ 876 at 880 881). In R v Miria [2009] NSWCCA 68 at [8], the sentencing judge erred by omitting to incorporate any reflection of general deterrence in his sentencing assessment. The sentencing judge echoed the first part of Spigelman CJs comments in R v Wong concerning the significant differences of opinion as to the deterrent effect of sentences, but did not heed the Chief Justices qualification which recognised the legal imperative to acknowledge general deterrence: R v Miria at [13]. The sentencing judge stated that [t]he general deterrent effect of any sentence is debatable, given that it will at best be published as a statistic and thus unlikely to cause anyone else to act differently: R v Miria at [7]. However, there is no legal authority permitting a judge to dismiss general deterrence as a factor for assessment in sentencing: R v Miria at [11]. A study by the Bureau of Crime Statistics & Research found that increased severity of sentences for driving offences made no difference on the recidivism rates: S Briscoe, The impact of increased drink-driving penalties on recidivism rates in NSW (2004) 5 Alcohol Studies Bulletin 1.

Overseas studies have analysed the effectiveness of deterrence theory: Von Hirsh et al, Criminal deterrence and sentence severity, Hart Publishing, Oxford, 1999. A Canadian study reviewed empirical research in several countries on deterrence and urged its readers to conditionally accept the hypothesis that crime levels are not affected by the severity of sentences: A Doob and C Webster, Sentencing Severity and Crime in M Tonry (ed), Crime and Justice. A Review of Research, University of Chicago Press, Chicago, 2004.

RETRIBUTION
Punishment considered to be morally right or deserved based on the nature of the crime. It ensures that the punishment is proportionate to the crime but not violent or physically harmful to the offender. Main justification for inflicting punishment on an offender and is related to a number of points under s 3A purposes above, including o Ensuring the offender is adequately punished for the offence, and according to the severity of the offence o Making the offender accountable for his or her actions and denouncing their conduct o Recognising the harm to the victim and the community

where three teenagers (Notably Bilaf Skaf & Mohamed Skaf) were sentenced to particularly long terms of imprisonment due to the horrific nature of the offence (sexual assault in company) and the long lasting effective it would have on the victims. Original 55 year sentence. Two counts of aggravated sexual assault without consent in company His brother found guilty of being an accessory before the fact On appeal, sentence reduced to 28 years Retrial in 2006 o Serve a minimum of 32 years non-parole and a maximum of 38 years o Brothers original sentence of 32 years, reduced to 19 on appeal, will now serve a minimum of 18 years, with a maximum of 26.

REHABILITATION
Considered the most important objective of sentencing, designed to reform the offender to prevent recidivism. May include programs such as drug counselling and drug rehabilitation programs, alcohol programs or anger management courses. It may also include educational or skills courses to give the offender the skills needed to function in society. It will rarely be the prime consideration for very serious offences. Evidence that rehabilitation programs to some degree are successful, particular for less serious offences or drug and alcohol related offences.

INCAPACITATION
Incapacitation is to make an offender incapable of committing further offences by restricting their freedom, such as home detention, community work, licence cancellation and imprisonment. The likelihood of the individual person reoffending should be considered in each case to ensure the sentence is not unnecessarily excessive.

FACTORS AFFECTING A SENTENCING DECISION


Part 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) sets out the factors to which judicial discretion must take into account: the facts of the offence, the circumstances and seriousness of the offence and certain subjective factors about the offender themselves. Aggravating factors, which are circumstances that make the offence more serious and can lead to an increased sentence o It can relate to the way the offence was committed, the characteristics of the victim(s) or factors relating to the offender Offence: if the offence involved any violence, cruelty or weapons, or any threat of them (including gratuitous violence); 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. Victim: if the victim was vulnerable (e.g. old, young or disabled) or targeted for their occupation (e.g. police officer, judicial officer, teacher, health worker); if there were multiple victims

Offender: if the offender abused a position of trust or authority when committing the offence, for example a doctor a patient or a teacher to a student; if the offender is a re-offender or has any prior convictions. Mitigating factors which are circumstances that make the offence less severe and can lead to a reduced sentence o They are usually subjective factors about the mind of the accused or their behaviour The offender is of good character (e.g. character references from teachers or employers) or does not has any prior convictions The offender is youthful or inexperienced and was easily led The offender pleaded guilty or assisted police The offender has shown honest remorse (e.g. by making some compensation or indication or has good prospects of rehabilitation and is unlikely to reoffend The offender was somehow provoked or was acting under duress. Any other objective or subjective factor that affects the relative seriousness of the offence o Objective factors refer to the circumstances of the crime o Subjective factors refer to the circumstances and personal state of mind of the offender Whether the accused pleads guilty Whether the offender assisted law enforcement authorities A victim impact statement by the victim or victims family about the impact the crime has had on them, heard at the time of sentencing. Section 21A of the Crimes (Sentencing Procedure) Act lists the aggravating and mitigating factors that are to be taken into account.

McCartney v R [2009] NSWCCA 244 This case of sexual assault looked at the appropriate balance of aggravating and mitigating factors in sentencing. A 22 year old male sexually assaulted his intoxicated victim in his home as she lay down to sleep after the offender invited her over for drinks. The victim repeatedly told the offender that she would not have sex with him. The offender was found guilty and convicted to two years and six months imprisonment. In sentencing the offender, the judge referred to general deterrence as a purpose of the sentence; that sexual assault is not acceptable. The offender appealed that too much weight was given to the purpose of deterrence, but was counter-argued that deterrence was only a very strong consideration and not applied over and above all other purposes. Aggravating factors included the nature and seriousness of the offence, and the victim impact statement, that her life and studies have been totally disrupted by this event and she has suffered considerable distress. Mitigating factors included that the offender was relatively young, had no prior criminal history, and was unlikely to reoffend. The offender was in study employment as a carpenter in a supervisory position, and strong character references were given from his friends and employer were given. (Judge noted that even people of the best character sometimes make mistakes and commit offences.) The judge also reduced the sentence (by one-sixth) due to the offender having pleading guilty. The offender argued that intoxication affected his judgement and contributed to the offence. Nonetheless, the judge stated firmly that intoxication was not a mitigating factor and did not excuse the behaviour. It was pointed out that the offender had managed to drive his utility truck back to the house. The offender also noted that he had consulted an alcohol counsellor after the offence and the judge expressed that the offender should be given further assistance in rehabilitation. The appeal was dismissed by a panel of three judges, stating that the sentence already fell within the lowest range of available sentences for the offence, which carries a maximum of 14 years.

THE ROLE OF THE VICTIM IN SENTENCING


Victims are involved in the criminal trial process in reporting the crime committed, assisting police through to testifying at trial as a witness and submitting a victim impact statement. The Victims Rights Act 1996 (NSW) contains a Charter of Victims Rights which recognise and guarantee certain rights including Respect for a victims dignity

Victims compensation Protection from the accused Protection of identity Certain rights to information and assistance during the criminal trial process.

It also introduces victim impact statements to the sentencing process. This is a voluntary statement written by the victim or the victims family about the impact that the crime has had on them. It allows the victim an opportunity to participate in the criminal trial process. Statements are only permitted for serious offences involving violence (actual or threatened) or the death of or any physical harm to a person, and only if the court considers it appropriate. Statements are heard in the sentencing hearing. The statement relates to the personal harm to the victim including physical or psychological harm. It can include reports or diagrams or pictures (in the case of a child). If the crime has resulted in death for the victim, the victims family will relate to the impact of the death has had on them. Victim impact statements are controversial because they can be very subjective yet had a significant effect on sentencing. Benefits An important opportunity for victims to express themselves in the criminal process If the offender is able to submit personal circumstances in mitigation of their sentence, then the victims personal circumstances should also be considered. Offender is confronted by the victim and their family

Criticisms Some suggestion that statements by family members are based on whether the victim was more or less loved by their family and are irrelevant.

APPEALS
A person convicted of an offence and sentenced will have the right to appeal their case. The crown also has the right to appeal a case where, for example, the sentence is too lenient. The party appealing is known as the appellant. There are two types of appeals in criminal cases: Appeal against conviction, where the defendant argues they did not commit the offence for which they were found guilty. o Will usually involve an argument that there was some legal error at law in the handling and prosecution of their case. If successful, the appellant may be acquitted or the case may be ordered for retrial. Sentence appeal against the severity (by the offender) or leniency (by the prosecution) of a sentence. o Might be made alone or in conjunction with an appeal against conviction, and the just may set aside a sentence, vary a sentence or dismiss the appeal. A sentence might be increased or reduced to which the appellant must consider in making the appeal.

The type of appeal will depend on the court the offender was tried in and if there are various time limits and process requirements on when a person can appeal. Under the Crimes (Appeal and Review) Act 2001 (NSW), any person convicted or sentenced in a Local Court will have a right to appeal to the District Court. A person is able to appeal directly to the Supreme Court if it is on a question of law, but otherwise only be seeking permission of the Supreme Court. The District Court will usually conduct a rehearing of all the evidence, usually by reading the documents from the initial hearing. A person sentenced in the District or Supreme Court and The Crown seeking a harsher sentence can seek permission to appeal to the Court of Criminal Appeal. An appeal will only succeed if the person can prove that there was a legal error. The final court of appeal in NSW criminal justice system is the High Court of Australia. Again, an appellant will need to seek permission of the High Court to appeal.

TYPES OF PENALTIES

The Crimes (Sentencing Procedure) Act 1999 (NSW) lists the various penalties that can be imposed. The type of penalty imposed will depend on how the judicial officer ultimately weights all of the factors discussed above, and cannot exceed the maximum penalty specified for the offence. Caution A formal warning without charge issued by police for less serious offences. Aims to divert the offender from the court system: that the offender has learnt a lesson and will not reoffend. o An example in NSW is the Cannabis Caution Scheme, where the police may issue a caution for minor offences involving cannabis if a person has no prior conviction. Caution may include a warning about health and legal consequences as well as providing details of certain counselling and support services.

Criminal Infringement Notice A notice issued by the police outside of court alleging a criminal infringement and requiring payment of a fine Introduced in NSW in 2007, they allow police to issue on-the-sport fines for certain offences, such as larceny of goods less than $300, offensive behaviour or language and obstructing traffic. Aims to remove some burden on the court system for minor offences. Although it is an increase in police powers, the notices are not final and the offenders have the option of electing to have the matter heard in court. No conviction is recorded if the offender accepts the notice, but if the matter goes to court and the offender is found guilty, the sentence is likely to be more severe..

Conviction or no conviction recorded When a person is charged with an offence and declared guilty by a judge or jury. In sentencing, the judicial officer has the option to record the conviction against the offender, or pass sentence with not conviction recorded. A criminal conviction is a serious matter and can have an important impact on a persons life. A person will be required to declare their criminal convictions at various times in their life, e.g. when applying for certain jobs, seeking certain entitlements or applying for travel visas. Normally a conviction will be recorded and an appropriate sentence imposed. Alternatively, the court may decide to record the conviction, but impose no other sentence.

Fines A monetary penalty imposed for infringement of a law and usually applies for less serious offences e.g. driving offences, breaches of local laws or for particular types of offences such as some violations of environment law or corporate law. The most common sentencing option used in Australia For most minor offences, fines will be issued outside of the court by the police or by local law enforcement officers. They will have the option of being challenged in court. The maximum fine for a particular 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): currently $110 For more serious offences, judicial officers have the option of applying a fine or imprisonment or both, depending on the circumstances, e.g. unlawful gambling under the Crimes Act 1900 (NSW) can carry up to 1000 penalty units ($110 000) and imprisonment for up to seven years, or both Effectiveness depends on financial circumstances of the offender

Forfeiture of assets Assets (money or property) obtained by an offender through their criminal activity is known as proceeds of crime Under the Criminal Assets Recovery Act 1990 (NSW), the NSW court system has the power to examine an offenders 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. Laws are especially important in regards to organised crime as money is the primary incentive for criminal organisations. It makes the offender accountable and acts as a deterrent.

Bond

A compulsory condition imposed on the offender for a period of time, which the offender undertakes to comply with in exchange for a more lenient sentence e.g. good behaviour bond o A good behaviour bond involves the offender undertaking to be of good behaviour for the bond period (up to five years). o If breached, they would be required to come before court again and may be sentenced to more serious penalties such as imprisonment Other conditions could be imposed include o Attending family counselling o Attending anger management courses o Avoiding visiting a particular place or associating with certain people o Attending drug or alcohol rehabilitation o Refraining from particular activities, such as gambling Used where lesser penalties are not considered sufficient or effective, but imprisonment is too severe.

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 for a period of time. Imposed where there is a high danger of reoffending, but where an order of detention is considered too severe. Breaches would mean the offender is to return before the court and risk facing a higher sentence

Suspended sentence A sentence of imprisonment imposed but suspended on condition of good behaviour for the same period of time Can be imposed by the court where they are sentencing an offender to imprisonment of up to two years. Breach can result in the bond being revoked and the original prison sentence reinstated, with an additional sentence for breaching the bond. According to a recent study undertaken by the NSW Bureau of Crime Statistics and Research, the use of suspended sentences has doubled in the Local Courts and risen by 60 per cent in higher criminal courts.

Community Service Orders Where the offender is sentenced to serve specified hours of work in the community for up to 500 hours. Punishing and shaming the offender while allowing for rehabilitation Cost effective and beneficial to the community as a whole while still penalising the offender for the offence Provides freedom to a degree to the offender

Imprisonment The most severe sentence that can be imposed in Australia o Section 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. Deprives a person of their liberty and removes them from the community Forms varying in levels of severity include full-time imprisonment served at a o Correctional centre, or gaol o Periodic detention, where an offender spends a period of each week or month in prison and the rest of the time at home. Can only be ordered where the sentence of imprisonment is less than three years. Allows the offender to continue to live in the community but return to prison on allocated days. Can assist in rehabilitation but is not appropriate in offences where incapacitation is the purpose of the sentence. o Home detention, where an offender is confined to their home under certain conditions of monitoring. For certain non-violent offences where a person is sentenced to 18 months imprisonment or less. Cannot be used for violent or sexual offences where a victim is involved, if there is a risk of reoffending, if the offender has a history of any violent offences or live at the same address as the victim of the offence.

Conditions may be added allowing the person leaving the home e.g. for work or to get medical treatment as well as controls and restrictions e.g. electric monitoring Beneficial as it is more cost-effective, provides an opportunity for rehabilitation, reduces burden on prison system and allows to a degree normal family activity to take place. The total sentence of imprisonment will include a non-parole period o Parole being the release of a prisoner before the expiry of an imprisonment term, temporarily or permanently, on the promise of good behaviour. Unless there are special circumstances, the non-parole period will be at least three-quarters of the total sentence. A sentence will be imposed for each offence that the offender is convicted of, but will usually be served concurrently. If the offender is in remand, the sentence will also take into account the amount of time the offender has already served. NSW Bureau of Crime Statistics and Research Media Release, November 2009 found that imprisonment does not reduce recidivism and, if anything, being sent to prison actually increases the risk of recidivism. Imprisonment may still be justified on the grounds of general deterrence, punishment or incapacitation.

The Health of Australia's prisoners 2010 produced by the Australian Institute of Health and Welfare provides some interesting findings. The two-week snapshot showed that: almost 1 in 3 prison entrants had been told they have a mental health disorder 1 in 5 prisoners in custody was taking medication for a mental health condition more than 4 in 5 prison entrants was a current smoker; over half report drinking alcohol at risk levels; 2 in 3 had used illicit drugs during the previous 12 months; more than 1 in 3 prison entrants had not completed Year 10 at school; and 1 in 4 prison entrants had a chronic condition such as asthma, cardiovascular disease or diabetes.

The report also conta Diversionary Programs An alternative to the traditional court system, diversionary programs focus on therapeutic justice and rehabilitation of offenders. They target the causes of offending and improve offenders future prospects by assisting individual needs. Only available for particular offences or types of offenders. Usually a magistrate will adjourn the case while the offender attends some form of rehabilitation or special hearing. Sometimes called therapeutic justice, it may include education, medical or psychiatric treatment, rehabilitation or social welfare assistance. The Drug Court is a specialised court and is one of the most important diversionary programs. o Established in 1999, it is aimed to rehabilitate non-violent drug addicted offenders with the ineffectiveness of the traditional criminal justice system in providing long-term solutions to cycles of crime and drug abuse. Over 150 offenders a year complete its program. o The NSW Bureau of Crime Statistics and Research report in 2008 assessing the effectiveness of the Drug Court found those who had completed the program were less likely to be reconvicted than those sentenced with traditional penalties. It also found that the Drug Court is more cost-effective than prison in reducing drug related recidivism. Participants who completed the program were: 37% less likely to be reconvicted for any offence 65% less likely to be reconvicted for an offence against the person 57% less likely to be reconvicted for a drug offence.

ALTERNATIVE METHODS OF SENTENCING


Circle Sentencing

A form of sentencing based on Aboriginal customary law and more traditional forms of dispute resolution for some adult Aboriginal offenders (repeat offenders and offenders of more serious crimes) Sentencing is conducted in a circle for local community members and a magistrate discussing the offenders crime and tailors the most appropriate sentence for the offender. o Directly involves local Aboriginal people in the sentencing process to make it more meaningful to the offender and improving Aboriginal confidence in the criminal justice system. o Aims to improve understanding between Aboriginal communities and the courts and reduce recidivism among offenders. It has the full sentencing powers of a court. Effective but improvements are being made in some areas, including improving participation and support services.

Restorative Justice A form of sentencing involving a voluntary conference between the offender and the victim of the crime. Usually accompanied by another form of traditional sentencing. Run by the Restorative Justice Unit of the NSW Department of Corrective Services of the NSW Department of Corrective Services. Involves safe and private conferencing and mediation services run by a facilitator. Offers the chance for the offender to take responsibility for their actions and the impact they have had on others while giving victims a voice and an opportunity to confront the offender and work out a way to repair the damage done. 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. Can be confronting and difficult for both parties involved. Cases of victims finding it helpful in for recovery from crime. Effectiveness is unclear, but Australian studies based on youth conferencing initiatives have shown a 15-20% reduction in reoffending if possible. Restorative justice programs will mainly relate to minor infringements or youth justice and is unlikely to expand greatly beyond this role.

POST-SENTENCING CONSIDERATIONS
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 imprisonment, they will first be sent to an assessment centre to receive a security classification and then sent to an appropriate correctional centre. The Crimes (Administration of Sentences) Act 1999 (NSW) governs the administration of imprisonment and other sentences. Correctional centres are managed by Corrective Services NSW. Security classification Correctional centres are divided into maximum, medium and minimum security. Offenders will be classified according to factors such as the seriousness of their crime, prospects for rehabilitation and whether they have displayed good behaviour during previous sentences.

Maximum security centres hold offenders who committed the most serious crimes and whose escape would be highly dangerous to the public, e.g. Goulburn Correctional Centre for men and the Silverwater Womens Correctional Centre. Medium security prisons allow inmates to move around freely, but within high walls or security fences, e.g. Tamworth Correctional Centre Minimum security centres would have fewer barriers to escape and inmates will be allowed more open conditions, e.g. Silverwater Correctional Centre. Protective Custody Protective custody is provided in NSW correctional centres to offenders who are vulnerable to attack from other prisoner as correctional authorities have a duty of care for the safety of offenders in their custody. Certain offenders, such as police officers or politicians may be more vulnerable to attack

Parole Parole refers to the conditional release of a prisoner from custody after the minimum term of the sentence (Non-parole period) Provides the incentive for rehabilitation through the prospect of early release. Encourages better prisoner discipline within the prison setting. Parolee is put under the direct supervision of a parole officer. They are required to report to an officer as directed, and the officer will visit the parolees residence and make inquiries in the community to ensure the parolee is meeting the conditions of their early release. This may include o Good behaviour bond o Not reoffending during the parole period o Gaining employment o Possibly avoiding certain company or a specified public area o Receiving specific counselling or other treatment o Programs are aimed to assist offenders in their process of gradual reintegration into the community and to prevent recidivism.

Preventative and continued detention Detention of a person in custody without having committed any offence, in case of some future harm that they may commit There are two types of preventative detention o Post-sentence preventative detention, which occurs when a person has already been sentenced and has served that sentence o Preventative detention without charge, which can occur at any time. Highly controversial as they remove a persons basic human legal rights without due criminal process The most severe type of preventative detention is legislation that is targeted at individual offenders. This was ruled unconstitutional in the High Court case of Kable v DPP (1996) 189 CLR 5 Most jurisdictions have legislation enabling general powers of preventative detention in restricted circumstances, e.g. the Terrorism (Police Powers) Act 2002 (NSW) allows police to detain a person for a maximum of 14 days on suspicion that they will engage in a terrorist act. An example of post-sentence preventative detention is Crimes (Serious Sex Offenders) Act 2006 (NSW) that allows the continued detention of offenders serving a sentence for a serious sexual offence. The Attorney-General can apply to court for continued detention of the offender if satisfied to a high degree of probability that the offender is likely to commit another offence. The allowable purposes include o To ensure the safety and protection of the community o To facilitate the rehabilitation of serious sex offenders

Sexual offenders registration Known sex offenders who have been convicted of certain sexual offences are recorded in both state and federal web-based databases such as the Australian National Child Offenders Register (ANCOR) and the NSW Child Protection Registry designed to assit police with the registering and case management of child sexual offenders. 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 of eight years; juveniles four years. Must provide a range of personal information and travel plans up to date For the protection of the community although certain offenders may be targeted.

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 highly publicised as the circumstances of such cases will usually be severe. Seen as moving the problem elsewhere. Problems for deportee if the place is foreign and without support network If such a person is found to be a threat to national security or convicted of a serious offence, they may be prohibited from ever returning to Australia.

Case Study: Robert Jovicic Born on 4/12/1966 in France to Serbian parents, his family migrated when he two to Australia, where he became a permanent resident. However, Jovicic never became an Australian citizen. Jovicic developed a heroin addiction and by 2004 he had been charged with more than 100 criminal offences (mainly burglary and theft) to support his heroin addiction. In June 2004, Jovicics permanent residency was cancelled under ss 200 and 201 of the Migration Act 1958 by the then Federal Immigration Minister, Phillip Ruddock. Jovicic was then held in custody before being deported to Belgrade, Serbia. However, he had no knowledge of the Serbian language and no working visa and was declared stateless by the Serbian government. He was discovered homeless and ill sleeping outside the Australian embassy in Belgrade and the case became widely publicised in the Australian media. In March 2006, he was granted a special purpose visa and allowed to return to Australia. He returned the same month, but his residency status remained unclear for a year until he was granted a two-year special protection visa. In February 2008, he was granted a Permanent Residency visa by the Labor Minister for Immigration and Citizenship, Senator Chris Evans.

YOUNG OFFENDERS YOUNG OFFENDERS AND THE LAW


The community and the law recognises that children and young people who have not reached full young people may have a different level of responsibility for their actions and a different level of protection or assistance is required. The Juvenile Justice system is the area of law concerned with young people. NSW Juvenile Justice suggests various possible factors for young people being involved in crime, such as: Poor parental supervision Drug and alcohol abuse Neglect and abuse Homelessness Negative peer associations Poor personal and social skills or Difficulties in school and employment.

NSW Juvenile Justices annual report for 2008-09 states that, for every 1000 people in NSW aged 10-17, 13.5 had a criminal matter finalised in the Childrens Court 11 were convicted and/or sentenced in these finalised matters 3.3 were given sentences requiring the department to supervise them in the community and 1 was sentenced to detention.

The Australian Institute of Criminology has found that the number of juvenile offenders is considerably higher than adult offenders, and that of the sexes, there are far greater number of males. There are two recognised approaches that can be taken by the law with regard to young offenders and juvenile justice. These are: The welfare model, which recognises the need to protect children and young people from the causes of crime and to assist in their rehabilitation if an offence is committed. The causes of crime can relate to different factors, such as social and psychological factors, or the state of the economy.

The justice model, a more traditional model which promotes a tough on crime i.e. a zero tolerance approach towards offenders of any age, and emphasises punishment and deterrence over rehabilitation.

The Juvenile justice system encompasses a combination of both approaches when dealing with offenders. Some aspects of the model aim to maximise an offenders chance at rehabilitation, but elements of justice model have influenced current laws.

AGE OF CRIMINAL RESPONSIBILITY


The criminal justice system recognises doli incapax (Latin, incapable of wrong); that children under a certain age cannot be held legally responsible for their actions and cannot be guilty of an offence. The mens rea of the crime was difficult to prove in young people. There are a number of reasons for this: Children and young people are vulnerable to exploitation They can make uninformed decisions without realising the consequences Protects others from being disadvantaged by dealing with a person who is a minor Children and young people can be less responsible due to their relative youth or inexperience.

Historical background Historically, the law has treated young people in more or less the same way as adult offenders. Under common law, doli incapax was a rebuttable presumption, i.e., a legal presumption in favour of one party it can be rebutted by the other party if they can show sufficient evidence to disprove it. The presumption was that the child could not have committed the offence, unless the prosecution could prove beyond reasonable doubt to the judge, or jury, that the child was capable of understanding their actions that is, that the child knew what they were doing was seriously wrong at the time they did, and not just naughty. By the end of the 19th century, the age of criminal responsibility was considered. By the late 20th century, most countries had adopted a minimum age of criminal responsibility, but varied in most jurisdictions. In 1989, the United Nations established a treaty on childrens rights known as the Convention on the Rights of the Child. o It included many aims and requirements for the treatment of children, including certain rights for children under criminal law Article 41(3)(a) of the treaty encouraged establishment in all countries laws of a minimum age below which children shall be presumed not to have the capacity to infringe the penal code The treaty is enforced in all countries on the exception of Somalia and the United States In Australia, there is no 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 ruling

Children (under 10 years old) Section 5 of the Children (Criminal Proceedings) Act 1987 (NSW) [i]t shall be conclusively presumed that no child who is under the age of 10 years can be guilty of an offence o A conclusive presumption cannot be rebutted. No child under the age of ten can be found by law to have committed an offence. o Proving the existence of mens rea beyond reasonable would be extremely problematic as children under the age of 10 have very limited life experience when making decisions about right and wrong. o Punishment may also be considered cruel, and may prevent rehabilitation o There have been instances of children under the age of 10 of being capable of committing horrific acts, calling for the law to lower the age of criminal responsibility or abolish it, but is extremely unlikely.

Children (10 to 13 years) In NSW, the legal notion of doli incapax is able to be rebutted for children between the age of 10 and 13. o i.e., 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. o The law recognises that children of this age may have the mens rea element if they commit a crime, but only if the prosecution can prove it beyond reasonable doubt. Evidence to prove this may include psychiatric evidence, evidence of parents and teachers, or behaviour and statements by the child.

R v LMW [1999] NSWSC 1343 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. LMW was the youngest person to face the Supreme Court of NSW and the youngest in Australia to be charged with manslaughter. 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 depicted LMW as a bully who showed malice and deception. The defence argued that it was a childish prank gone wrong and that LMW did not understand the consequences of his actions. Evidence raised included a child psychiatrist who determined that LMW probably could understand the difference between right and wrong, three teachers that informed the court LMW was behind intellectually at school, but was capable of following school rules and from two other six-year-old witnesses. After 18 months and high media and political interest in the case, the Supreme Court jury acquitted LMW after three hours of deliberation.

Doli incapax: Why Children Deserve its Protection ((2003) 10 (3) Murdoch University Electronic Journal of Law) Thomas Crofts, Associate Professor at Murdoch university School of Law Criticisms Opponents argue that doli incapax should be lessened or removed because children today are better educated and the criminal law is not as harsh as it once was The rule can be unfair, especially to the victims of the crime It makes the prosecutions role in criminal trial more difficult, as there is not always enough evidence to rebut the presumption of doli incapax

Support It is consistent with the principals of international law of which Australia is a signatory. Children develop maturity at different ages, and the notion forces prosecution to prove understanding on a case-by-case basis. Ultimately, it does not stop them if there truly is proof of a guilty mind

Young people (14 to 17 years) Offenders can be found criminally responsible for their actions. Full criminal responsibility, public triable in adult courts does not occur until a person reaches 18 years of age. Offenders aged 14-15 years old cannot have a criminal conviction recorded against them, unless the offence was an indictable offence. o If it is an indictable offence, the judicial officer may decide to record a conviction. Childrens (Criminal Proceedings) Act 1987 (NSW) has a number of protections for people under the age of 18 o Prohibiting reporting of the childs name o A requirement that any convictions will be cleared after three years (if no more have been committed) o Matters will be heard in the Childrens Court

THE RIGHTS OF CHILDREN AND YOUNG PEOPLE WHEN QUESTIONED OR ARRESTED


The law recognises that children and young people require some special protections when dealing with the police The Australian Law Reform Commission (ALRC) inquiry in 1997, in conjunction with the Human Rights and Equal Opportunity Commission titled Seen and Heard: Young People and the Legal Process recommended changes in compliance with Australias obligations under the UNs Convention on the Rights of the Child. (National standards have not yet been implemented in compliance with the UNs Convention on the Rights of the Child.) Standardising the minimum age of criminal responsibility across Australian jurisdictions, (achieved in 2000)

Standardising national standards through legislation or policy for juvenile justice Covering investigation and arrest, bail conditions, sentencing and detention

The inquiry also surveyed 843 children and young people on dealings with the police. 78% stated that the police rarely treated young people with a sufficient degree of respect. Does not necessarily suggest inadequate policing, but improvements in the relationship between young people and police can be improved.

Main legislation outlining police powers in NSW in regards to young offenders is in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). Questioning of young people Most police powers that apply to adults apply equally to children and young offenders, e.g. the power to approach young people and ask them questions at any time, to ask a person to move on, and most compulsory powers of search and seizure. Identification, name and address o Right to ask a person to identify themselves with their name and address A person can ask a police officer for their name and their police station o A person is legally required to respond and may commit an offence if they do not When they are suspected on reasonable grounds that the person can assist them in investigating an indictable offence that was committed nearby In a number of situations relating to vehicles and traffic Where a person is suspected of committing an offence on a train. Questions and right to silence o In most circumstances a person is not required to respond and may exercise their right to silence Can refuse to answer questions, even if they have been taken to a police station for questioning or arrested. Their answers may later be used as evidence against them. A person suspected of committing an offence should usually not answer police questions or sign any statements until they have received independent legal advice Right to support of a responsible adult o Under s 13 of the Children (Criminal Proceedings Act 1987 (NSW), any information or statement a child or child person gives to police will be inadmissible as evidence in court proceedings against that person, unless There is a responsible adult other than the police member present, such as a parent, youth worker, guardian or lawyer The judge or magistrate otherwise decides that it should be admitted o The law assumes that young people may not be aware of their rights, may not fully understand the law or may be more vulnerable than adults in these circumstances Searches o Largely the same, apart from strip searches o Under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Police can never perform a strip search on a child under 10 A responsible adult other than a police officer must also be present for a person between 10 and 18, If the person is 14 or older they must agree who the adult should be Police may only conduct strip searches in serious and urgent circumstances, and have to respect a persons privacy and must not touch the person.

Arrest and Interrogation The conditions under which a young person can be lawfully arrested are the same as those for adults. Conditions listed in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) require that: Police know or believe on reasonable grounds that the person has committed or is about to commit an offence Police must have a warrant for the persons arrest 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, Inform the person of the police officers 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 o Under the Law Enforcement (Powers and Responsibilities) Regulation 2005 (NSW), people under the age of 18 are defined as vulnerable people and are given special protection when arrested and detained for question. The police must find out as soon as possible who the childs parent or guardian is and to contact them o Young people must have a support person, or interview friend, present such as a parent, guardian or solicitor. Police may not conduct any interview 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. o The police custody manager has a positive requirement to assist the child or young person o At present there is no requirement to have legal representation during a police interview. Caution of rights o Under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), any person arrested has the right to receive a caution, i.e. a statement issued by police to a suspect when they are detained to inform them of their rights, as soon as practical Not have to say or do anything but that anything the person does say or do may be used as evidence They must also inform them of the maximum allowable for detention without charge (4 hours) Accused to sign an acknowledgement that this caution has been given usually would be completed by an interview friend, guardian or carer on the childs behalf. Detention and identification o People less than 18 years of age in NSW, like adults, can be detained for a maximum of four hours, or up to a further eight hours if a warrant for the extension is granted Forensic procedures, photos and searches o For young people 14 years or older, police may take fingerprints or photographs if it is for the purpose of identifying them. o For children under 14 years, the police can only take photos or fingerprints if they apply to the Childrens Court to do so. 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. o Police cannot take a DNA sample of any suspect under 18 years old unless they have a court order allowing them to do so. Children and young people cannot give this consent on their own. Additional comments (for essay?) o In some jurisdictions, criticisms that police may rely too heavily on powers of arrest to gather evidence or to further the interrogation of suspects, especially indigenous youth. UN Convention on the Rights of the Child obliges countries to use arrest only as a last resort, as it can often be a negative and traumatic experience Section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) lays down the principle in NSW, 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 violence one, or there is a danger of further offences or violent behaviour. Suggestion that police arrest young people on suspicion unlawfully and they enter the criminal justice system unnecessarily, which could negatively impact on their perceptions and experiences.

The age of criminal responsibility in NSW 0-9 years old o 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 o Criminally responsible for any offence committed, but no conviction can be recorded unless it is a serious offence. 16-17 years old o Criminally responsible for any offence committed and a conviction may be recorded, but the case will still be heard in the Childrens Court 18 years or older o Full adult responsibility, with case to be heard in adult courts. If the offence was committed before the accuseds 18th birthday, it can still be heard in the Childrens Court until the accused turns 21.

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

CHILDRENS COURT- PROCEDURES AND OPERATION


The Childrens Court was established under the Childrens Court 1987 (NSW) and has a dual role: Dealing with criminal matters of children and young people under 18 years of age Dealing with matters of care and protection of children and young people referred to it by the Department of Community Services

Criminal jurisdiction Any offence other than a serious indictable offence committed by a child (serious indictable offences will be heard in a higher court, including murder and manslaughter, armed robbery or sexual assault) Committal proceedings of any indictable offence, including serious ones, committed by a child.

Differences in childrens criminal proceedings In the Childrens court, the matter will be heard summarily (with no jury), before a single magistrate Childrens proceedings are conducted in a close 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 Prohibition on the media publishing any childs name who is involved in the process, unless authorised by the court or the child is deceased Courts in childrens proceedings will need to consider the main trial and sentencing principles under s 6 of the Childrens (Criminal Proceedings) Act 1987 (NSW) Court will give the child the fullest opportunity to be heard and to participate Court must take measures to ensure that the child understands the proceeding, and answer any questions that the child asks about the process or decision Available penalties and sentencing procedures differ from ordinary courts

Childrens Court statistics Main findings of the NSW Commission for Children and Young people, which looks at matters heard before the Childrens Court (statistics do not include diversionary methods such as warnings, cautions or conferencing)

The number of young people with at least one finalised criminal matter before the NSW Childrens Court has increased from 2003 to 2007 following a downward trend since 1996. Overall, the numbers in 2007 are almost 40% are almost 40% lower than those in 1996. 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. From 1996 to 2007 the majority of finalised matters before the NSW Childrens Court involved males. The involvement of males in these matters is over four times that of females.

The Childrens Court Clinic Established under the Childrens Court Act 1987 (NSW), the clinics main role is to make clinical assessments of children and submit reports to the court. Specific psychological, psycho-social or mental health issues present in the childs situation that the court needs to consider prior to passing sentence. May report the childs mental health, intellectual disability, drug and alcohol use use, violence, sexual abuse/assault, or psychological issues.

PENALTIES FOR CHILDREN


The purpose of rehabilitation is given primary weight. The Convention on the Rights of the Child acknowledges that children and young people have the best chance of any offenders of being rehabilitated and reintegrated back into society. Additional s 6 of the Childrens (Criminal Proceedings) Act 1987 (NSW) that relate more specifically to the sentencing process include that: o The penalty imposed on a child shall be no greater than that of an adult for the same offence o Children should be assisted with reintegration into the community to sustain ties to their family and community o Children accept responsibility for their actions and if possible make reparation for them o Subject to other principles, consideration should be given to the effect on the victim. Section 33 of the Childrens (Criminal Proceedings) Act 1987 (NSW) lists the penalties that can be applied to children o Dismissal The court can dismiss the charge without punishment or conviction, but may decide to issue a caution to the offender o 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 o Adjournment The sentencing can be adjourned or deferred for up to 12 months to assess the childs prospects of rehabilitation and reconsider at a later date o 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 o Youth justice conference Release subject to the child complying with a youth justice conference outcome plan o Fine A fine of up to 10 penalty units ($1 100), but the court must take into the childs age and ability to repay it o Probation A bond with a probation order of up to two year, overseen by an officer of NSW Juvenile Justice o Community service order A community service order is a severe penalty, and can be made for up 100 hours if the child is under 16 years old, or up to 250 hours if they are 16 or over; an assessment is required to confirm if the child is suitable for a community service order o Suspended control order Similar to a suspended sentence, a court can suspend a control order for up to two years, subject to good behaviour o Control order

A control order is the most severe penalty, and is similar to an adult sentence of imprisonment except it involves detention in a juvenile justice centre; the maximum time a child can be sentenced to a control order is two years

Juvenile justice centres Centres house young offenders sentenced to control orders and some accused held on remand Managed by NSW Juvenile Justice, which is a part of the Department of Human Services and overseen by the Children (Detention Centres) Act 1987 (NSW). Courts must announce a non-parole period for any control order longer than six months, but can still be released before the end of their non-parole period

Sentencing considerations for young offenders Seen and Heard Report noted in sentencing, more attention was needed on social factors such as homelessness, family circumstances, educational needs or the special health and other requirements of children and young people and economic situation. Rehabilitation is of paramount concern, even with the seriousness of the offence often being a significant consideration. However, exceptions are made when a young offender is involved in repeated offences, or where they engage in grave adult behaviour, i.e., 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. R v GDP (1991) 54 A Crim R 112 Rehabilitation is the primary aim for the sentencing of young offenders GDP was 14 years old when he committed serious criminal damage (to the value of $550 000) with two of his friends. GDP was very young, had no prior incidents and was well regarded by his teachers. The judge sentenced him to a 12-month custodial sentence. GDP appealed to the court of Criminal Appeal, where a panel of three judges held that the sentence was manifestly excessive. A custodial sentence would have severely affected GDPs rehabilitation, who by now facing year 12 and his HSC certificate. The court reversed the original sentence and substituted it with a 12-month probation order.

R v Pham & Ly Element of Grave adult behaviour is present in an offence committed by a young offender. Despite the offenders ages, there must be reasonable proportion between the sentence and the serious of the crime committed with the need to protect the community. Involved two main offenders - one just under the age of 18, who committed a robbery together: breaking into a house and injuring the occupants. They invaded the home early in the morning knowing the occupants were home. The occupants were gagged with sticky tape and a blanket put over their heads. The offenders then proceeded to rob the property, taking jewellery and a number of other items. At the time, one of the offenders was on bail and the other was on probation. The judge sentenced both offenders to 12 months on remand. The case was appealed and The Court of Criminal Appeal overturned the original sentence as wholly inappropriate and inadequate. The case was referred for resentencing.

ALTERNATIVES TO COURT
The Young Offenders Act 1997 (NSW) became operational in 1998 to provide various diversionary measures for young offenders and police as an alternative to the traditional criminal processes and court penalties. The aim is to encourage rehabilitation, reduce rates of recidivism and reduce the burden on the court system. The program only applies to summary offences and to indictable offences triable summarily, i.e. serious offences, such as robbery, sexual offence, or any offence that results in a persons death cannot be heard. The principles of the Act are that:

The least restrictive sanction should be applied where possible Children should be informed of their right to seek legal advice Criminal proceedings are not to be started if there is an appropriate alternative for dealing with matter.

Under the act, children and young offenders who have committed an offence covered in the Act may proceed through a threetiered system of diversionary processes: Warnings o A notice given to a young offender (usually for a first minor offence) that is recorded by police but with no conditions attached; the offender must be told of the nature, purpose and effect of the warning. Cautions o A formal, recorded alternative to prosecution where the young offender admits to the offence and consents to receiving a formal police caution; it can later be taken into account at the Childrens Court, but not an adult court. Youth justice conferences o A measure to divert young offenders from the court system through a conference that addresses the offenders behaviour in a more holistic manner. o The young offender admits to an offence and consents to have it dealt by a conference of different parties. o Those involved include the Child A conference convenor Investigating official A member of the childs family or extended family The offenders legal representative Another adult chosen by the offender A specialised youth officer and The victim can also attend, as well as any support people the victim may want present. o The purpose of a YJC 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 o The system enhances the rights of the victim(s) as it holds the offender accountable, empower families and victims in decisions about the childs offence and, where suitable, make reparations to the victim. It has been well received by commentators, embracing the welfare model of juvenile justice (diversionary methods) in encouraging rehabilitation of the offender. One criticism is that it is not being used for a wide range of offences and thus excluding some young offenders from the benefits. Shopfront Youth Legal Centre in response to a 2003 review of the NSW Law Reform Commission on sentencing of young offenders argued it could even be suitable for very serious offences.

THE EFFECTIVENESS OF THE CRIMINAL JUSTICE SYSTEM WHEN DEALING WITH YOUNG OFFENDERS
The age of criminal responsibility recognises that child and young people need time to mature up until adulthood, and there must be concessions and protection Rehabilitation for such young people is intended to be the primary concern for the criminal justice system and young offenders. o Expressed in the purposes of the Children (Criminal Proceedings) Act 1987 (NSW) and attempted through programs available in the Young Offenders Act 1997 (NSW). Statistics from the Australian Institute of Criminology shows that the rate of detention of young offenders has decreased since 1981 by 50%. o In 2007, 10.3% of a total 6488 total young offenders who appeared before the NSW Childrens Court were given a control order o In Australia, 900-1000 young people are held in custody on an average day. In the Australian Institute of Criminologys 2009 study, The Specific Deterrent Effect of Custodial Penalties on Juvenile Offenders, o It found no difference in the rate of reoffending in young offenders given a custodial sentence than those given another form of sentence

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 1997 (NSW) has been particularly successful in diverting young people away from the traditional court system and thus custodial sentences. The Childrens Court has the power to refer young people who before it to the Childrens Court o 50% of conferences have been referred by the Court Other aspects of the criminal justice system continue the justice model o Changes to the Bail Act 1978 (NSW) in 2007 allowed only one application for bail unless there was a change in circumstances. In 2006, there were 3623 minors admitted to remand, but in 2008 this figure jumped to 5082 66% had been locked up for breaching other bail conditions, most commonly not complying with a curfew. Magistrates frequently impose tougher bail conditions on children than on adults

The Criminal Law Review Division is reviewing two key juvenile justice Acts: Young Offenders Act 1997 (NSW) and Children (Criminal Proceedings) Act 1987 (NSW).

The aim of this review is to ensure these pieces of youth justice legislation continue to reflect best practice and meet the needs of young people and the community, including victims. -

INTERNATIONAL CRIME DEFINING INTERNATIONAL CRIME


State sovereignty is the authority of an independent state to govern itself, i.e. to make and apply laws; impose and collect taxes; make war and peace; or form treaties with foreign states With closer ties between countries and the development of the international community, there is recognition that certain actions committed within sovereign state jurisdictions may be so extreme, and so universally condemned, as to constitute a crime against the international community and is punishable by the international community With globalisation, increased international travel and advances in technology has led to transnational crimes (crimes occurring across international borders). International crime is 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.

CATEGORIES OF INTERNATIONAL CRIME


A domestic citizen who commits a crime in a foreign country (according to its own laws) are criminally liable to any applicable sentence that country imposes. Likewise, a foreign citizen in a domestic country will be subject to their criminal laws. There have been instances where Australian legislators have deemed it necessary to criminalise acts committed by Australians travelling abroad Part IIIA of the Crimes Act 1914 (Cth) on Child Sex Tourism which makes it an offence for an Australian citizen or permanent resident to engage in sexual activity with a child under 16 years old while overseas. o Even though the criminal act occurs overseas, the offender is still liable under Australian domestic law, or under foreign criminal law if the act is also a crime in that jurisdiction.

Can be broadly divided into two main categories: Crimes against the international community

No fully agreed list of such crimes: many countries will disagree about the specific aspects of the offence, or about the inclusion of certain crimes, but will almost always include certain crimes such as genocide, war crimes, piracy (at sea), hijacking of aircraft and slave trading. Can be very controversial: most crimes committed in the context of a war, politically motivated, or have been ordered or committed by the state itself (or by those in positions of power). In other instances, the offenders may have fled to a different jurisdiction to attempt to escape prosecution o The importance of all states condemning crimes against the international community is that the criminals may be unable to escape prosecution. o Other states condemning the action may claim a right to prosecute the offender under a claim of universal jurisdiction (where a state claims a rare right to prosecute a person for actions committed in another state, based on international opinion that the alleged crime is so serious that normal laws of criminal jurisdiction do not apply. Change in the view of state sovereignty

International Criminal Court (ICC) First signed at the 1968 UN Conference in Rome Established in 2002 in The Hague, Netherlands, after the Rome Statute of the International Criminal Court (Rome Statute) came into force in July 2002 when the requisite number of states (60) had formally ratified it o As of 2010, over 110 state parties to the ICC o Permanent court and independent from the United Nations or from any nation state o Consists of 18 judges who come from different signatory countries o Jurisdiction over three categories of crime: genocide, crimes against humanity and war crimes Also has jurisdiction to prosecute crimes of aggression, but there has yet been agreement on the definition of it. o The ICC can only prosecute a case when state courts cannot or are unwilling to do so. The ICC can only exercise jurisdiction where: The accused is a national of a member state of the treaty The alleged crime occur in the territory of a member state, or The situation is referred to the ICC by the UN Security Council o Can impose a sentence of imprisonment up to life imprisonment, served in a state prison designated by the court, and in addition, a fine or forfeiture of assets.

Genocide Rome Statute defines the crime of genocide as including: o Killing members of the group o Causing serious bodily or mental harm to members of the group o Deliberately inflicting conditions of life calculated to bring about the groups physical destruction o Imposing measures to prevent births within the group, or o Forcibly transferring children of the group to another group. 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. Before ICC genocide (and other war crimes and crimes against humanity) were dealt with by the international community in specific ad hoc tribunals, such as the International Criminal Tribunal for the Formal Yugoslavia and the International Criminal Tribunal for Rwanda. Since its establishment, the ICC has not yet succeeded in convicting any person of genocide

Crimes against humanity Article 7 of the Rome Statute define crimes against humanity as any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack o Murder o Extermination o Enslavement o Deportation or forcible transfer of population o Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law o Torture

Rape, sexual slavery, enforced prosecution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity o Prosecution against any identifiable group or collectivity on political, radical, national, ethnic, cultural, religious, gender as defined in paragraph 3 (:S) or other grounds that universally recognised as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court o Enforced disappearance of persons; o The crime of apartheid (forced segregation of populations) o Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health Easier to prosecute by the ICC than genocide because of the broader definition and issues of proof. o i.e. Nuremburg trials of prominent Nazi Germany leaders charged leaders for crimes against humanity, as well as war crimes. Does not need to be committed within the context of an armed conflict

War Crimes Action carried out during the conduct of a war that violates accepted international rules of war: the most well-known of which is the Geneva Conventions o Four treaties and three additional protocols that sets the standards in international law for the human treatment of the victims of war Civilians, the sick and wounded, prisoners of war and medical or religious personnel. Article 8 of the Rome statute provides an extensive list of activities that can constitute war crimes o Must have taken place during an armed conflict, either international or domestic o Any grave breaches of the Geneva Conventions and listed under the Rome Statute Torture or inhuman treatment, including biological experiments Wilful killing or wilfully causing great suffering or serious injury Extensive and militarily unjustified destruction or appropriation of property Intentionally directing attacks at civilian populations or objects Intentionally directing attacks at humanitarian personnel or equipment. o ICC has jurisdiction where the acts are part of a plan or policy, or as part of a large-scale commission of war crimes.

Transnational crimes Crimes that take place across international borders. o Similar to domestic crimes, but involve movement across international borders as an element of the act o Rapid rise of international telecommunications and international travel, globalisation and diversity of migration Main types include o Human trafficking and people smuggling across borders o International fraud and white collar crime like tax evasion or money laundering o Transnational internet crimes including data theft, international fraud, copyright infringements or spam networks o International tourism including cyber terrorism such as disruption of infrastructure counting electrical systems or computer networks o Creation and trafficking of child pornography, or transnational trade in illegal substances, including international air, shipping and postal networks. Some causes of transnational crimes might include: o Differences in socioeconomic conditions between countries, for example human trafficking or even internet fraud from developing countries. o Desire for prohibited goods or services, where suppliers are based in one country and consumers in another o Differences in political or ideological reasons. o Hope that transnational element will prevent detection o Opportunistic desire for power or financial gain Difficult for domestic law enforcement authorities to track down offenders operating transnationally and prosecute. o Many crimes are now underpinned by international cooperation agreements between affected countries

DEALING WITH INTERNATIONAL CRIME

Domestic Measures Australian law enforcement cannot operate in a foreign country, do not have jurisdiction over crimes committed under foreign laws and Australian parliaments cannot legislate on the laws of other countries. Effectiveness of the Australian legal system requires co-operation from foreign countries. Exceptions may be possible, for example where express permission has been granted for the presence of Australian law enforcement agencies by the host country (e.g. assisting in crisis relief efforts), where parliament legislates on actions involving Australian residents abroad (e.g. child sex tourism laws) or where a court claims rare jurisdiction under a rule of international law (e.g. universal jurisdiction).

Crimes against the international community Most significant is the signing (on 9 December 1998) and ratification (1 July 2002) of the Rome Statute o International Criminal Court Act 2002 (Cth) and the International Criminal Court (Consequential Amendments) Act 2002 (Cth) was passed to ensure that Australias domestic laws would comply with the statute o Introduced a new section to Commonwealth Criminal Code, Chapter 8 Offences against Humanity and Related Offences Created domestic offences in Australia for all the crimes listed in the Rome statute and existing offences Prior to Rome Statute Australia had legislation in force: War Crimes Act 1945 (Cth) and the Geneva Conventions Act 1957 (Cth) which outlawed the recognised war crimes under the Geneva Conventions

Transnational Crime Australian Federal Police (AFP) Established under the Australian Federal Police Act 1979 (Cth) to enforce Commonwealth criminal law and to protect Australias interests from crime in Australia and overseas Works closely with range of law enforcement bodies at state, territory, Commonwealth and the international levels Role has grown in recent years with growth of transnational crimes Engages in various international activities in the region and worldwide o Posts in more than 25 countries o Deployed for international capacity-building, monitoring and peacekeeping o Specialist training for international law enforcement agencies, encouraging greater international co-operation and preventing transnational crimes at their source. Some specific examples o Jakarta Regional Co-operation Team assisted Indonesian police in the 2002 Bali bombings, 2004 Australian Embassy bombings, 2005 Marriot hotel bombing o Established the Jakarta Centre for Law Enforcement Co-operation, which aims to enhance regional law enforcement skills in dealing with transnational crimes o Continuing to develop relations with other regional bodies such as the South East Asian Regional Centre for Counter-Terrorism in Kuala Lumpur and the International Law Enforcement Academy in Bangkok Commonwealth Attorney-Generals Department Reports and provides o valuable advice on Australias compliance with its international obligations o oversees the operation of legislation relating to transnational crimes and provides advice on their implementation and o provides general information to the public and to parliament on the status of Australias efforts against transnational crimes. Australian Crime Commission (ACC) A national statutory body established under the Australian Crime Commission Act 2002 (Cth) to combat serious and organised crime. Investigates matters of national concern an in coordination with other international law enforcement agencies it delivers specialist law enforcement capabilities to assist in investigating and analysing intelligence concerning national and transnational crimes

Some areas the ACC specifically investigates include South East Asian organised crime (heroin importation, money laundering and tax fraud, identity crime, and human trafficking for sexual exploitation Australian Customs and Border Protection Service

The national agency responsible for the security and integrity of Australian borders Works closely with other government and international agencies to detect and deter the unlawful movement of goods or people across Australias borders. Australian High Tech Crime Centre (AHTCC)

Created in 2002 to coordinate all Australian law enforcement authorities in fighting serious types of crime that involves the use of technology Main functions include o Coordinating a national approach to serious, complex and multi-jurisdictional crimes o Assist all Australian jurisdictions in their ability to deal with high-tech crime State Bodies In NSW,

Independent Commission against Corruption (ICAC) NSW Crime Commission Police Integrity Commission and divisions within the NSW Police Service

International Measures Co-operation between governments through international treaties and international organisations targeted at specific types of international crime International courts and tribunals to deal with enforcement of international crimes Co-operation and intelligence sharing between nations and sub-national agencies to tackle problems of trans-border crime Crimes Against the International Community Development of treaties such as the Geneva Conventions and the Rome Statute of the International Criminal Court Courts and Tribunals Prior to ICC, these crimes were usually dealt with on a domestic level by court or military tribunals on a case-by-case basis. Ad hoc international tribunals were established in order to prosecute atrocities. o Nuremburg trials and Tokyo trials prosecuting surviving leaders of Nazi Germany and the Empire of Japan for crimes against humanity and war crimes relating to the Second World War o International Criminal Tribunal for the formal Yugoslavia (ICTY) in 1993 prosecuting individuals for war crimes, crimes against humanity and genocide committed during the Yugoslav conflict between 1999 and 2001 o 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 Extradition Treaties Extradition is the legal surrender of a suspect or convicted criminal by one jurisdiction to another to face criminal charges or sentence International extradition is generally governed by a series of bilateral agreements between Australia and other countries. o Australia currently has extradition agreements with about 130 countries A few international agreements also have their own specific extradition arrangements, including the Rome Statute of the International Criminal Court and the Geneva Conventions. o Australia has received three extradition requests from the ICTY against people residing in Australia accused of committing war crimes Extradition Act 1988 (Cth) sets out the criteria required before extradition will be granted. o Accused has a case to answer on the evidence

o Will receive a fair trial in the state to which they are being returned o The offence is a crime in both Australia and the target country Extradition is important to prevent offenders simply fleeing the prosecution for their crime by leaving the jurisdiction where the offence was committed

Croatia to appeal to High Court over Dragan Vasiljkovic extradition Croatia requests the extradition of Captain Dragan, a Serbian paramilitary leader from Australia to face questioning of war crimes committed during the ethnic conflict in the Balkans between 1991 and 1993 Commander of a paramilitary unit known as the Red Berets Allegations against him including that he directed his troops to commit the war crime of torture o He has denied these claims Been in custody in Australia since January 2006 Walked free after Federal Court decision on September 4, 2009

The Federal Court prevented the extradition under section 7c of the Extradition Act 1988 (Cth), where an accused person can be exempted from extradition if on surrender to the extradition country the person may be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, by reason of race, religion, nationality or political opinions. Federal Court found that Croatias courts had allowed its own soldiers to rely upon their service in the Croatian armed forces during the war to mitigate sentences, but Serbian soldiers had not received the same considerations Federal Court concluded that if Mr Vasiljkovic would not be given a fair trial, and if convicted, would be given a a longer sentence because of his political beliefs

The High Court has granted the Croatian Government special leave to appeal. Australian Government appealed the ruling, which was successfully overturned by the High Court in 2010, but the AFP lost track of Mr Vasiljkovic. Found 6 weeks later and detained. Lost appeal in Australian Federal Court in September 2011 Transnational crimes International Criminal Police Organisation (INTERPOL) Worlds largest international police organisation with to date 188 member countries including Australia Established in 1923 to improve transnational cooperation between police around the world and to prevent or combat international crime Headquarters in Lyon, France Currently lists its six priority crime areas as: o Drugs and criminal organisations o Public safety and terrorism o Financial and high-tech crime o Trafficking in humans o Fugitives o Corruption Specific examples o Targeting organised crime in Asia and Eurasia, o International counterfeiting and money laundering, o Trafficking in arms and drugs, and o International terrorism INTERPOL advocating a movement to a global police force in cooperation with the United Nations aimed to improve the skills of police peacekeepers and sharing of communications networks and criminal data o Increase the ability to track international criminals by sharing resources and common standards The United Nations Convention against Transnational Organised Crime Established in 2000 and is regarded as the main international instrument in the fight against transnational organised crime Three protocols o Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children o Protocol against the Smuggling of Migrants by Land, Air and Sea

Protocol against the Illicit Manufacturing and Trafficking in Firearms, Their Parts and Components and Ammunition Signature states commit themselves to ensuring their own domestic criminal offences regulate participation of organised crimes, money laundering and other aspects of corruption. States must also adopt broad changes to extradition procedures, commit to providing mutual legal assistance and co-operation between law enforcement agencies, and undertake to upgrade the capacity of national authorities to deal with organised transnational crime networks Pacific Transnational Crime Network (PCTN) Formed in July 2002 as a response to increases in regional transnational crime Initiative of the AFP to develop strong relationships with Pacific neighbours. Headquarters at the Pacific Transnational Crime Co-ordination Centre in Apia, Samoa Pacific nations have less resources to tackle law enforcement Particularly successful o In 2004, the then largest methamphetamine laboratory in the southern hemisphere was discovered and dismantled in Suva, Fiji.

The Effectiveness of Measures Dealing with international Crime Effectiveness is mixed Transnational crime Organised crime groups and the crimes they commit are sophisticated and so take complex measures to avoid detection from law enforcement authorities Some states may lack the skills, training and resources to combat such crimes or may be unable due to political factors and corruption. These states may attract more organised crime groups making it very difficult to combat the problem The main areas for efforts against transnational crime to address include: The extent of international cooperation between states provision of adequate resources The effectiveness of coordination among international agencies- exchange of information The level of compliance among weaker or poorer states states where rule law may be weak become targets by organised crime groups

States will require significant cooperation and sharing of skills, resources, funding and intelligence on an unprecedented scale. There has been some success with the domestic and international response but like with domestic crimes, transnational crimes will continue to exist. Crimes against the international community The establishment of the International Criminal Court (ICC) and ad hoc tribunals cannot eradicate crimes against the international community, but serve justice to offenders after it has occurred. The ICC is symbolically very powerful, warning leaders or other criminals that they can no longer hide behind the immunity of state sovereignty. The threat of later prosecution may act as a deterrent against those who plan to exploit that immunity. It also offers enormous support to victims of the crimes by attempting to bring to justice those responsible for these human atrocities. The main criticism is that the response from the international community has 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. Darfur, Sudan, the ICC did not lay charges against President al-Bashir until 2008, 5 years after the atrocities began. Khmer Rouge Tribunal many high ranking government officials including prime minister hun sen were former Khmer rouge leaders. 3rd and 4th trials led to resignation of the German judge. Political interference Enormous costs of such investigations and prosecutions Cant prosecute all of the offenders who commit the crime

Nonetheless, having a permanent court, with established investigative and court mechanisms as well as permanent staff, is a step towards greater efficiency. Although the ICC now has over 110 member states, several influential countries including some of the worlds major powers (such as the United States, China and India) and some very influential countries (such as Pakistan, Vietnam and Indonesia) have not joined. Most countries object to joining the ICC as it would violate their state sovereignty Critics claim that in many cases states fear subjecting themselves to investigation over their own affairs (However, the ICC only has jurisdiction for crimes committed after its establishment. It still has jurisdiction over any individuals from non-member states who commit crimes against or in the territory of a member state) o India over Kashmir o China over Tibet or Xinjiang

Development of the international criminal justice system is promising. With adequate resources and political determination by states around the world, the ICC has the potential to make a significant difference. Crimes against the international community Australia in dealing with human trafficking Human trafficking involves the movement of people by force, coercion or deceptive means, often trafficking women and children into the sex industry. Estimated 500 000 to 4 000 000 victims annually, making it a difficult and complex crime to address. In the last decade, over 250 matters of trafficking were referred to the AFP 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 have been passed by Australian states and terrotiries $60 mil in 2003 dedicated to tackling the problem AFP Funding to strengthen its ability to detect, investigate and provide specialist training for tackling the crime National Policy Strategy to combat trafficking of women for sexual servitude Victim support measures and special visa arrangements to support victims of trafficking Co-operation with regional and international agencies in tackling the sources and prosecuting the offenders Support and training for the Commonwealth Director of Public Prosecutions to help prosecute people trafficking

CRIME THEMES AND CHALLENGES


The role of discretion in the criminal justice sentence Discretion acknowledges that the law can be a blunt instrument in delivering justice. 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 bias or corrupt way undermining justice. 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 power 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. 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 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.

Issues of compliance and non-compliance in regard to criminal law The majority of individuals within a society obey the law most of the time. 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. 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 individuals noncompliance may vary. Issues that could be critiqued could include ways the criminal justice system tries to ensure greater compliance through: o Crime prevention (situational and social) o More effective investigation of crime o The purposes of punishment to reduce criminal behaviour (the lack of success with high rates of recidivism) o Emphasis on rehabilitative initiative with young offenders (such as youth justice conferencing) o Measures to combat transnational crime

The extent to which the law reflects moral and ethical standards Crimes are actions that individual societies have decided should be illegal. For this reason, jurisdictions will differ in what actions will constitute a crime, and crimes will change over time. Most crimes are the result of moral and ethical judgements by society about behaviour that may be deemed harmful and therefore warrant sanctions by the state. 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: o Specific domestic legislation and international treaties concerning international crime that reflect a degree of public morality o Areas where there have been law reforms or changes to the law as a result of shifting public morality sentencing laws, sexual assault laws, decriminalisation of certain behaviours, legislation concerning young offenders, the growth of the international criminal system.

The role of law reform in the criminal justice system Any example where the law changes is law reform. Agencies of law reform such as Law Reform Commissions, Parliaments, 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 initiatives 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; balance 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 In many instances societys needs may be outweighing the rights of individuals in light of, for example, anti-terrorism legislation or restriction in bail laws, where individual civil liberties have been eroded in the name of protection of the community. The law and order debate that has been on-going in some areas has gained the upper hand in the balancing act which is the tension mentioned above Areas that could be critiqued include police powers against the rights of suspects, or the criminal trial procedures that aim to balance the rights of victims, offenders and society. The right to a fair trial, supported by strict rules of evidence and procedure, is fundamental to the criminal justice system and this balancing act. The criteria used by judges when sentencing is also a feature of this balance and on-going 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

The effectiveness of legal and non-legal measures in achieving justice

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. 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.

HUMAN RIGHTS THE DEFINITION OF HUMAN RIGHTS


Human rights: the basic rights and freedoms believed to belong justifiably to all human beings. The Universal Declaration of Human Rights (UDHR), adopted by the United Nations in 1948, states recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. As stated in the UDHR, these rights are considered to be: Universal Inalienable Inherent Indivisible

DEVELOPING RECOGNITION OF HUMAN RIGHTS


Natural law: the theory that certain laws come from an unchanging natural body of moral principles as the basis for all human conduct, and so have validity 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 The abolition of slavery o A type of forced labour where a person is considered to be the legal property of another o Moves to abolish slavery and slave trading in European cities and states began as early as the 12th century Iceland officially abolished slavery in 1117 o European empires supported the use of slaves from new territories, but particularly from trade posts in Africa Transatlantic slave trade between the 17th to early 19th centuries West Africa to New World Colonies Estimated 12 million Africans shipped to the Americas o Abolition movement, or abolitionism which sought to abolish slavery began in the 18 th century Rational thinkers began to criticise slavery as violating the rights of man Evangelical thinkers began to criticise it as unchristian In Britain, slavery ruled illegal by common law 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. Slavery elsewhere in the British Empire still allowed Slave trade officially ended in British empire with the passing of the Slave Trade Act 1807 (UK) , but slavery itself abolished in the Slavery Abolition Act 1833 (UK) All remaining slaves in the British Empire freed in the following year US followed in 1808 Following the 1776 Declaration of Independence, the northern states of America began to abolish slavery; southern states were against abolition One of the main causes of the American Civil War (1861-1865) All US slaves were freed by the end of war in 1865, and slavery abolished by the 13 th Amendment to the US Constitution

European countries ceased exporting slaves in the following decades Many countries in Latin America abolished it during the wars of independence from Spain in 18101822 In 1890, European countries met and signed the General Act of Brussels First ever major collaboration of international states to abolish slavery and was mainly at the slave trade in European protectorates in Africa League of Nations Slavery Convention passed in 1926 after the end of the First World War by the League of Nations (precursor body to the United Nations), comprehensive international convention on abolishing slavery worldwide. Article 4 of the Universal Declaration of Human Rights prohibits slavery Last state to officially abolish slavery was Mauritania in West Africa in 1981 Illegal slavery still exists, with an estimated 27 million people enslaved worldwide. The campaign for universal suffrage o Suffrage is the legal right to vote. In the first modern democratic countries, only a limited number of men were allowed to work, usually those with higher status who owned large amounts of property or came from certain backgrounds. This was usually due to a mistrust or suspicion of the general population, or an assumption that they could not understand the affairs of government. Demand for suffrage for all males began in world democracies in the 19th century 1832 Males who rented land of a certain value 1867 All male householders 1884 Males in the countryside Representation of the People Act 1918 (UK) vote extended to the whole adult population Suffragettes were supporters of womens suffrage, symbolically, equality In 1893, New Zealand was the first country to allow women to vote South Australia followed in 1894 Australian Commonwealth allowing womens suffrage in 1902 In the UK, limited in 1918 and made equal in 1928 The US passed the 19th amendment allowing women the right to vote in 1920 By race In the Americas, all adult males, regardless of race (African-Americans & native Americans), colour or previous servitude were allowed to vote under the 15 th Amendment implemented in 1870. In New Zealand, voters required to own property, thus excluding Maori voters. Removed in 1867 In Australia, Indigenous people were permitted the right to vote since federation in 1901, if their state granted them that right. o Later interpretations by the government and discriminatory measures adopted by the states denied them the right to vote until 1962 o 1967 referendum gave Indigenous Australians equal status as citizens, including the right to be counted in the Australian census. The right to vote was recognised as a universal human right in Article 21 of the Universal Declaration of Human Rights. The trade union movement and labour rights o Employment conditions and wage outcomes o Major changes with the Industrial Revolution in the 18th and 19th century, characterised by changes in manufacturing, agriculture and transport. o Trade unions first emerged in 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. Employers want to keep costs of production low Industrial action and strikes by the entire workforce o UK Laws were created to criminalise workers involvement in trade unions and heavy penalties were applied. Tolpuddle Martyrs six leaders of a group of farm labourers who formed a society to campaign for higher wages were arrested and sentenced to transportation to Australia for seven years

British Parliament pressured to pass the Trade Unions Act 1871 (UK), which secured the legal status of trade unions. o In Australia, union movement developed from the 19 th century In the 1890s after harsh tactics by governments and employers were used to break large scale strikes, unions joined together to form their own political party, known as the Australian Labour Party (ALP) o Unions have achieved minimum wages and working conditions, equal pay, long service leave, paid public holidays, maternity leave, annual leave, OHS laws and workers compensation. o In the late 19th century, associations of workers began to link up with similar organisations in other countries to protect workers rights internationally. The First International (1864-1876) and the Second International (18891916) o In 1919, following the end of WWI, the International Labour Organisation (ILO) was created to discuss social reforms and to put them into practice. Created in the aim of improving conditions for workers around the world and over time has been responsible for many conventions on working conditions and rights. The campaign for universal education o The idea that all human beings have a right to an education o Began in the 19th century onwards Churches By mid-1800s in Europe, the increasing demand of industrialisation led to governments 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 compulsory for all children 5-10, later raised to 12 in 1889. In France, by 1880 all children under the age of 15 were required to attend school, with free and secular public instruction In New South Wales, the Public Instruction Act 1880 (NSW) led to the government taking control of all the Church-run schools, except those run by the Catholic Church, and making education free, secular and compulsory. Compulsory for all Australians to attend school from at least the ages of 6 to15, depending on the state. From 210, the leaving age in NSW was raised to 17 years United Nations made education a majority priority of its economic and social development programs and the right to free education for all human beings was included under Article 26 of the UDHR, which goes on to state that Childrens elementary education should be compulsory and made widely available There are still many children that cannot access education. In 2001, UNs Millennium Development goals aimed To improve social and economic conditions in the worlds poorest countries Ensure that all children will have a minimum education up to the end of primary level by 2015. The right of a group to self-determination o A collective right o People of a territory or national grouping have the right to determine their own political status the group has the right to choose how it will be governed without undue influence from another country. o Closely related to democratic rights as it involves the consent of the people as the basis of a sovereign state o Particularly important after world colonisation by the European powers in Africa, the Americas, Asia, the Middle East and Oceania o Rise to self-determination as a right began with the 1776 Declaration of Independence against British Colonial Rule French Revolution of 1789-1799, Latin America from the 18th century onwards against European colonial rule o UN Charter Article 1(2) calls for respect of the principle of self-determination o Article 15 of the UDHR states that everyone has a right to a nationality and no-one should be arbitrarily deprived of this or of the right to change nationality. o 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) o Between 1960 and 1993, 53 territories became self-governing independent states o Self-determination of indigenous people In many countries, indigenous people have been oppressed, exploited, forcefully assimilated or excluded from society and the democratic system. o In 2007, the United Nations adopted the Declaration of Rights of Indigenous Peoples

As with the UDHR, it is only a non-binding declaration on member states Only four states rejected the declaration, including Australia (endorsed by Rudd in 2009) Stepping stone to greater awareness and protection of the worlds indigenous people. Emerging environmental rights o Supporters of environmental rights argue that it is related to many existing rights, such as the rights to life, health or property already contained in human rights declaration treaties and many other international agreements. These rights cannot be fully realised without the right to a healthy, safe and adequate environment. o The right is said to relate not only to current generations, but also future generations. Intergenerational equity o They have been recognised in some international agreements, such as the African Charter on Human and Peoples Rights under Article 23 all people have the right to a general satisfactory environment favourable to their development and the American Convention on Human Rights in its second protocol the right to a health environment. o Treaties that attempt to deal universally with specific environmental threats e.g. the Stockholm Declaration (1972), the Rio Declaration (1992) and the Kyoto Protocol (1997) environmental problems including global warming, the spread of epidemics, marine pollution, the depletion of the ozone layer and atmospheric pollution o UN Climate Change Conference in Copenhagen 2009 demonstrated how difficult it is for all states to agree. Global issue needs a global community The attempt to establish a right to peace o After WWI, the first world body with the primary aim of preventing war: the League of Nations Covenant of the League of Nations: to promote international co-operation and to achieve international peace and security LOL fail WWII -> US was not a member of the LoN o After WWII, the United Nations was formed. UN Charter signed 26 June 1945 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 gives the power to take measures to prevent and remove threats to peace (with war) 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 o In 1984, the UN adopted a Declaration on the Rights of Peoples to Peace, people of our planet have a sacred right to peace. Promoting and implementing the right to peace is a fundamental obligation of states, and that government policies should be directed towards: Elimination of the threat of war, particularly nuclear war Renunciation of the use of force in international relations The settlement of international disuptes by peaceful means on the basis of the UN charter o War still happens o Right of self-defence, contained in Article 51 of the UN Charter which declares that states have an inherent right of individual or collective defence if an armed attack occurs against them, and under Article 39 the UN Security Council can authorise actions to maintain or restore peace if necessary. 2003 Invasion of Iraq led by the US Coalition was claimed to be legal under a resolution made by the Security Council under Article 39 (Resolution 1441) o ICC given jurisdiction to try individual people for wars of aggression, as well as war crimes and other crimes against the community

FORMAL STATEMENTS OF HUMAN RIGHTS UNIVERSAL DECLARATION OF HUMAN RIGHTS


US President Roosevelt in his State of the Union Address 1941 called for the protection of Four Freedoms: the freedom of speech and conscience, and the freedom from fear and want. The UN Charter did not define human rights and fundamental freedoms o to reaffirm faith in fundamental human rights, in the dignity and worth of the human person.

Obligation under Article 2(2) for the promotion of universal respect for, and observance of, human rights and fundamental freedoms for all Adopted on 10 December 1948 by the recently formed United Nations. Originally signed by 48 of the 58 states that existed in the world at that time UDHR is soft law as it is a declaration: they are officially non-binding upon states but do create pressure to act in accordance with them. o Meant more countries were willing to sign it The most important human rights document, inspiring more than 200 international treaties, conventions, declarations and bills of rights in the last 50 years. Foundation for eight core human rights treaties Become a part of international customary law o

INTERNATIONAL BILL OF RIGHTS


Formation of a binding treaty of rights Cold War tensions in the 1960s Western European and American nation-states wanted only civil and political rights covered, while communist countries wanted only economic and social rights dealt with

The covenant was split in two and collectively known as the International Bill of Rights: The International Covenant on Civil and Political Rights (ICCPR) and The International Covenant on Economic, Social and Cultural Rights (ICESCR)

Both declarations were drafted and approved in 1966, but came into force in 1976 when they were finally ratified by the requisite number of countries: 35. Neither covenant received much support from the superpowers. The International Covenant on Civil and Political Rights (ICCPR) Equality between men and women (Article 2 and 3) The right to life (Article 6) Right to freedom, the right to a fair trial and the right to be presumed innocent until proven guilty (Articles 9 and 14) Freedom of thought, conscience, speech, religion and assembly (Articles 18-19, 27, 22) Right to marry whoever they wish and have a family and it provides for all children to be given special protection under law (23-24) Torture and slavery are outlawed and prisoners must be treated with respect (Articles 7 and 8) Right to vote and receive equal protection under the law and ensures that ethnic minorities have the right to enjoy their own cultures

Monitored by the Human Rights Committee which reports on compliance by member states and investigates violations In 2011, 167 state parties. Notable exceptions include China, Pakistan and Cuba who have signed but not ratified. The International Covenant on Economic, Social and Cultural Rights (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 Rights to an adequate standard of living, including the right to adequate food, clothing, housing and health care The right to education primary education should be compulsory and free to all

Monitored by the UN Committee on Economic, Social and Cultural Rights In 2011, 160 state parties. US has signed but never ratified

PROMOTING AND ENFORCING HUMAN RIGHTS


The promotion and enforcement human rights depends on the will of the international community and individual nation states On the international level, governing bodies are responsible for promotion of compliance, courts responsible for enforcing them, and various organisations and pressure groups that report on them and expose violations that occur.

HUMAN RIGHTS IN THE INTERNATIONAL COMMUNITY


Began with the establishment of United Nations in 1945 and recognition of human rights through the Universal Declaration of Human Rights Numerous branches of the United Nations International courts, tribunals and other authorities Inter-governmental organisations (IGOs) Non-government organisations (NGOs) Media groups

STATE SOVEREIGNITY
Statehood A state is an independent country; in law, an internationally recognised entity possessing the characteristics required for statehood. It is not to be confused with a nation, which is a group of people that share a common heritage, language, culture or race: they do not always correspond with state borders. o Nations seeking state-hood will often claim a right to self-determination Characteristics necessary for the recognition of a state is outlined in article 1 of the Montevideo Convention on the Rights and Duties of States 1933 o A defined territory o Permanent population o Effective government o The capacity to enter into international relations It must also be recognised by a sufficient number of other states so it can exercise its full international political and legal capacity.

An unrecognised state or people may be unable to claim protections under the international human rights framework if they live in a territory of an unrecognised state, or if they form part of another state with which relations have broken down. For example, Taiwan (Republic of China) is an unrecognised state without UN membership, but in 2009 the Taiwanese Parliament has ratified both the ICCPR and ICESCR into domestic law. Taiwan cannot access the international framework, but also means no other state can submit any complaint to the UN Human Rights Committee about Taiwan

Sovereignty State sovereignty is the ultimate authority of an independent state to govern itself (population): independence and freedom from external interference in its own affairs. In regards to human rights, in its strictest sense it means that no foreign state or law can interfere in another states domestic affairs without consent. o Under the UN Charter, article 2(1) the [UN] is based on the principle of the sovereign equality of all its Members Nonetheless, state sovereignty is not absolute: it is limited under international law by certain responsibilities to the international community

State Sovereignty Not all governments equally accept the idea that their own people have certain rights o Most commonly this occurs in non-democratic countries, where there are no checks on the power of the government and use the excuse of sovereignty as a rationale to justify mistreatment of their own citizens. o In extreme cases, these countries may commit human rights abuses with impunity, with little or no avenue for their citizens to respond. States who have signed international agreements (treaties) between themselves create legal obligations to comply with their human rights provisions, submit periodic reports to the Human Rights Committee, allow other states to submit complaints about them, and for most members allow their own citizens to complain to the committee about the treatment in the state.

THE ROLE OF THE UN


It is the main international organisation, with responsibility for most international affairs. It includes almost every sovereign state in the world, with 193 member states. The UN has five principal organs under the UN Charter Organs of the UN human rights responsibilities General Assembly (UNGA) forum for global discussion and runs numerous committees and programs. It has representatives from all member states with equal voting power. o The UN Human Rights Council (UNHRC) is the UNs principal human rights body, and reports directly to the UNGA. A forum of member states responsible for overseeing and making recommendations on human rights in all member states. Security Council (UNSC) the UN organ responsible for maintenance of international peace and security; power to authorise military action or other measures o It exercises its power through legally binding resolutions Decisions passed by the General Assembly or Security Council; when passed by the UNSC they can be legally binding on all member states. o Has five permanent members with the power to veto decisions: US, UK, China, Russia and France, and ten nonpermanent members with two-year terms o The Council is argued to have power to intervene in the most serious of human rights abuses by states. Economic and Social Council (ECOSOC) the UN organ acting as a forum for international economic and social cooperation and development as well as environmental and humanitarian issues o 54 rotating members meeting annually Secretariat the UN administrative body headed by the UN Secretary General(Currently Ban Ki-moon); contains the departments and offices of the UN o Provides various information, studies, tasks and facilities needed by the UN o Includes the departments and offices of the UN, including the Office of the High Commissioner for Human Rights (OHCHR) UN human rights office responsible for monitoring and reporting on human rights world-wide. International Court of Justice (ICJ) the principle judicial organ of the UN; has jurisdiction to hear disputes submitted by member states and issue advisory opinions. o Jurisdiction under the UN Charter to settle international disputes submitted to it by member states, and produce advisory opinions when requested on matters of international law Note, its cases will only rarely relate to issues of human rights

Office of the High Commission of Human Rights (OHCHR) An administrative agency under the UN Secretariat that works to promote and protect the human rights contained in the UDHR and international law High Commissioner for Human Rights is Navanethem Pillay, appointed in 2008 and was the former judge of both the High Court of South Australia and the International Criminal Court. Established in 1993, its purposes include: o Advancing universal ratification and implementation of the UDHR and human rights standards and treaties o Promoting universal enjoyment of human rights and international cooperation, including education, information and technical assistance, taking preventative action and responding to serious human rights violations. o Providing support and information for other UN human rights bodies and treaty monitoring bodies, including the Human Rights Council and Human Rights Committee Reports directly to the Secretary-General

Human Rights Council A inter-governmental body under the UN General Assembly that contains representatives of members states 47 seats rotated on three-year terms Established in 2006 to replace the previous Commission on Human Rights (which had been a part of ECOSOC since 2006, but criticised for failing its purpose - it had allowed courtiers with some of the poorest records on human rights to be members, effectively preventing 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: o A complaints procedure allowing individual people to bring issues to the Councils attention where they have been a victim of human rights abuse in a state o Compulsory periodic reviews of the human rights situation in all 193 states (not just those who are members of the ICCPR and other treaties) o An Advisory Committee to provide expertise and advice and recommend issues for the Council to reconsider President George Bush originally refused to participate in the Human Rights Council, but in 2009 President Barack Obama joined the council and strengthened its international influence. The Council has already received from criticism, from both current and former Secretary-Generals Ban Ki-moon and Kofi Anan, as well as the former High Commissioner for Human Rights o It has criticised for not acting in the interests of human rights, but according to political considerations particularly influential states, including China and Russia, have also been accused of backing and controlling certain candidates to block criticism of themselves.

Millennium Development Goals The declaration outlined eight ambitious Millennium Development Goals that all members pledged to try reach by 2015 Began in 2002, where all member states of the UN at the time agreed to a declaration at the end of a conference on world poverty, which became known as the Millennium Declaration. The goals include o Eradicating extreme poverty and hunger, o Achieve universal primary education, o Promote gender equality and empower women o Reduce child mortality rates o Improve maternal health o Combat HIV/AIDS, malaria and other diseases o Ensure environmental sustainability o Develop a global partnership for development The goals have provided significant funding, resources and provide a focus for states, UN agencies and various organisations to eradicate some of the most serious problems of our times with effects that will last well beyond 2015. Many countries have improved their performances in these areas, but others show little or no real improvement

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 as a charter outlining the organisations purpose and operation. They are usually permanent, meet regularly and have international legal personality and so can enter into enforceable agreements and are subject to international law. Around 1000 IGOs The UN is the most important of all IGOs Other notable IGOs include the World Trade Organisation (WTO), the International Monetary Fund (IMF), the North Atlantic Treaty Organisation (NATO) and INTERPOL Apart from the UN, a number of IGOs have the promotion of human rights as part of their stated goals and can exert significant influence on the human rights of their member states o Commonwealth of Nations Made up of almost all the former colonies of the British Empire, with 54 members including the UK, Australia and Canada. Its stated aims include the promotion of democracy, the rule of law, human rights, individual liberty and good governance. Several members have been suspended due to serious or continued violations and human rights abuse, including Zimbabwe in 2002 and Fiji on various occasions due to military coups. o African Union Comprises of almost all the African states Among its many aims including achieving peace and security in Africa and promoting democratic institutions, good governance and human rights

The union includes the African Commission on Human and Peoples Rights, responsible 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) Organisation of American States Includes almost all the states of North, Central and South America. The American Convention on Human Rights is overseen by the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights

COURTS, TRIBUNALS AND INDEPENDENT AUTHORITIES


International Court of Justice (ICJ) An organ of the United Nations, it was established in 1946 at the Peace Palace in the Hague, Netherlands The ICJ has two roles: to hear and judge disputes between states and to issue advisory opinions on matters of international law ICJ has heard relatively few cases, but has issued some important judgements and opinions o Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) International Court of Justice, 9 July 2004 The Israeli West Bank barrier, 700km wall dividing the Palestinian-occupied West Bank from Israeli territory contrary to international law and encroaching on disputed territory International NGOs including the International Red Cross and Amnesty International argues the barrier causes serious humanitarian problems or violates Israels obligations under international humanitarian law. Israel has disputed these claims, and the UNSC has yet to accept and enforce the ICJs ruling. Strongest criticism is that it requires the consent of state parties to hear matters and so has very little jurisdiction. o States can consent to compulsory jurisdiction of the court but as of 2011 only 66 states have done so, most with some form of reservation limiting the courts power. Australia has consented. o 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. Nonetheless, important judgements in international law and act as significant guides to future actions.

International Criminal Court (ICC) and ad hoc tribunals Established in 2002 to prosecute international crime Replaces ad hoc tribunals which had been established by the UN Security Council to deal with specific and serious breaches of international crime, such tribunals for the Former Yugoslavia and Cambodia The ICC is not a court for human rights violations, but prosecutes and hears matters of the most serious international crimes, including genocide, crimes against humanity and war crimes (serious human rights abuse) Also has undefined jurisdiction to hear crimes of aggression (illegal war) Importantly, it has jurisdiction to prosecute individual people rather than states, important for those who use state sovereignty as a defence for their abuses

European Court of Human Rights (ECHR) Set up in 1959 in Strasbourg, France, to apply and protect human rights of the citizens of Europe Hears cases brought by individuals, organisations and state, against all countries bound by the European Convention on Human Rights (ECHR) o Similar to the UDHR, it was also drawn up after WWII and includes 47 European countries Compliance with the ECHR has been incorporated into the treaties of the EU: member states must comply with the rulings of the ECHR Very successful, backlog of 120 000 cases across Europe waiting to be heard

The Australian Situation Australia is not currently a party to any regional human rights instrument or human rights court. Suggestion of a Commonwealth Human Rights Commissioner in the CHOAM meeting in Perth, 2011, but ultimately failed to gain support

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 compliance by member states with the treaties Human Rights Committee o Assesses member state compliance with the ICCPR and can hear petitions raised by the states about each others compliance o First Optional Protocol to the ICCPR gives the Committee jurisdiction to hear personal complaints brought by individuals of member states about human rights violations in their own countries 112 countries have ratified this optional protocol, including Australia Australian citizens can take complaints directly to the Committee Citizens must first attempt to resolve the matter with human rights bodies in their own country, or region if applicable o At the Committee, 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. Decisions are not enforceable, but they are highly influential, embarrassing for the government of a state accused of violation and might influence local legal interpretation. Judgements will also be raised by the Committee in its periodic reports to each member state, which will include recurring recommendations to address the issues until the Committee is satisfied that the state is compliant

Toonen v Australia, CCPR/C/50/D/488/1992, UN Human Rights Committee (HRC), 4 April 1994; Croome v Tasmania (1997) 191 CLR 119 Complaint by Toonant that existing Tasmanian laws that criminalised consensual sex between adult males were in violation of his human right to privacy, protected under Article 12 of the UDHR and Article 17 of the ICCPR o Also claimed discrimination on a basis of sexual activity and orientation, 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 Toonen also complained people in authority in Tasmania would regularly make derogatory remarks about homosexual people amounting to a campaign of official and unofficial hatred The UN committee found that adult consensual sexual activity in private was covered by the human right to privacy, and that Toonens right was interfered with by Tasmanias laws, without any reasonable justification for that interference. o Violated Article 17 of the ICCPR, and the Committee ordered Australia to respond to the Committees finding Tasmania, however, refused to repeal the law. o The federal government was forced to enact the Human Rights (Sexual Conduct) Act 1994 (Cth), which legalised consenting sexual activity between adults under federal law. Tasmania still refused to repeal its law In 1997, Tasmania rights campaigner Rodney Croome took the matter to the High Court where the law was deemed illegal as it was consistent with both the ICCPR and Australian law o Tasmania has no option to abolish its law and decriminalise homosexuality o Received negative national and international publicity, so now it is 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 Australia and one of the first in the world to legally recognise and register same-sex domestic partnerships.

NON-GOVERNMENT ORGANISATIONS (NGOS)


Organisations created by people that are independent and without representation of any government o Includes private voluntary organisations, citizen associations and civil society organisation Work together with government and intergovernmental organisations and specialised UN agencies in human rights and humanitarian work o Informing the global community, governments and the UN of human rights violations and progress o Investigates, researches, documents and publicises cases of human rights violations to ensure greater government compliance if named and shamed Some NGOs will work directly with violators or victims, providing evidence to international courts, or encouraging other states or the UN to place diplomatic pressure or take action on violating states.

International Committee of the Red Cross (ICRC) Origins back to 1863, they are concerned with international humanitarian law, to protect the life and dignity of the victims of international armed conflicts, although this work often overlaps with human rights abuses. Granted observer status at the UN General Assembly in 1990

THE MEDIA
Media plays a crucial role in the naming and shaming of governments and human rights violators by exposing instances of human rights abuse and helping to bring about change Investigating and reporting on human rights issues to influence public opinion and government action Role of a free and impartial media and and peoples right to information is recognised as a human right article 19 of the UDHR, everyone has the right to seek, receive and impart information and ideas through any media regardless of frontiers Media freedom is restricted through censorship, imprisonment, beatings even death Journalists get killed

HUMAN RIGHTS IN AUSTRALIAN LAW


In Australia, there is no one document where all human rights can be found international treaties, the Constitution of Australia, the common law, and statue law of the Commonwealth, states and territories protect human rights in Australian law.

INCORPORATION OF HUMAN RIGHTS INTO DOMESTIC LAW


States can sign a treaty but it will not be binding. They must ratify; i.e. formally approving a treaty by the state before it becomes binding and enforceable. In monist systems, treaties are enforceable in domestic law as soon as they have been signed In dualist systems, like in Australia and the UK, international law must be incorporated into domestic legislation; that is, the parliament will need to pass legislation that echoes the words of the treaty or amends existing laws is necessary o For example, when Australia ratified the Rome Statute of the International Criminal Court in 2002, the Commonwealth Parliament simultaneously passed the International Criminal Court Act 2002 (Cth)

THE AUSTRALIAN CONST ITUTION


Two important roles in protecting human rights Lays down the system of government through which human rights are recognised, including the separation of powers and division of powers Source of some specific human rights: express and implied rights

DIVISION OF POWERS AND SEPARATION OF POWERS


Separation of powers Separates the branches of the state into: The legislative elected law-makers in parliament The executive government, including minsters and agencies The judiciary the courts that interpret and apply the law

Separation of powers prevent one person or a group from gaining total power Separation of powers is protected under Chapters I to III of the constitution which describes the functions of each branch respectively As Australia uses the Westminster system of responsible government, there is no strict separation between the legislature and executive (Ministers can sit in parliament and the executive can make delegated legislation). The strict separation of the judiciary from the other two political branches is a fundamental principle in the Constitution

o o o

Essential in upholding the rule of law, i.e. all people, including government, are equally subject to the same law Prevents the risk of abuses of power that could come with a politicised judiciary Allows the judiciary to overrule any legislation that is deemed incompatible with the provisions of the Australian Constitution and the rights and limitations it contains

Division of powers Divides the power between the Commonwealth and Australian states Commonwealth heads of power are the powers listed in ss 51 and 52 of the Constitution that describe the areas that the Commonwealth can legislate on o Currency (s 51(xii)), marriage (s 51(xxi)) or copyright and patents (s 51(xviii)) Powers not listed in the Constitution are known as residual powers and deemed to remain the power of the states. o States can refer that power to the Commonwealth

The area of most importance for the development of human rights in Australia has been the external affairs power in s 51(xxix). This gives the Commonwealth the authority to legislate on external affairs, which includes Australias treaty obligations. Treaties have been developed to cover many of the areas of the law that would have traditionally have been in the power of the Australian states. Commonwealth parliament can bind states to those rights and if necessary protect those rights across all Australian jurisdictions.

Express and Implied Rights Australia does not have a bill of rights. The Constitution provides some rights, known as express rights. The High Court has also found that certain rights which are not explicit in the Constitution also exist and are intended for the Constitution to function effectively: implied rights Express rights include: Freedom of religion (s 116) Right to vote in Commonwealth elections (s 41) Right to a trial by jury in federal indictable offences (section 80) Right to just terms where the Commonwealth compulsorily acquires property on just terms (section 51(xxxi)

Implied rights include Freedom of political communication, a type of freedom of speech

Common Law Some examples of fundamental rights protected by common law are The presumption of innocence and the burden of proof Right to a fair trial

The common law does not offer absolute protection as they can be removed by any act of parliament, for example, anti-terrorism laws passed by the Commonwealth govt. after the Sept. 11 attacks. It cannot be relied upon to develop new rights, as judgements will only define those rights on a case-by-case basis Still establishes some rights Statute Law Majority of human rights are protected by statute law. However, they can be removed by a later act of parliament and so are not fixed. Includes 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), and Anti-Discrimination Act 1974 (NSW)

Courts and Tribunals All courts and tribunals have some role in applying and enforcing human rights laws, as well as interpreting and developing human rights law. Australian Human Rights Commission (Formerly the Human Rights and Equal Opportunity Commission (HREOC) o Established under the Human Rights Commission Act 1986 (Cth) as an independent national body to deal mainly with alleged violations of Australias anti-discrimination legislation. o States and territories also have equal opportunity or anti-discrimination bodies to oversee compliance with state human rights laws o Responsibility has grown to: Receive and investigate complaints into discrimination and breaches of human rights Promote public awareness about human rights and provide legal advice Conduct public inquiries into human rights issues and issue recommendations Give advice and make submissions to parliament and governments on development of laws, policies and programs consistent with human rights o It has been influential on Australias laws Conducted an inquiry into the Stolen Generation in 1997 Bringing Them Home which recommended an apology by the Australian government to the victims Other inquiries include into children in immigration detention, people with mental illness, racial violence and same-sex entitlements and more recently recommendations on an Australian Charter of Human Rights o The Human Rights commission has power to Investigate many areas of discrimination and try to conciliate the complaint. If it cannot be resolved the complainant can take the matter to the Federal Court of Australia (which has the power to enforce orders on recommendation of the commission) Hear complaints on many other human rights breaches in Australian law and international human rights. Complainant cannot take the matter to the Federal Court, but the Commission can make a report to the A-G who is required to table the report in parliament. Findings are not enforceable and the complainant will have no right to have the wrong rectified. High Court of Australia o Has the power to set binding precedents on other courts or to overturn state or Commonwealth legislation o Decisions include Croome v Tasmania, which decriminalised homosexuality Lange v Australian Broadcasting Corporation, which interpreted a Constitutional right to freedom of political communication ABC v Lenah Game meats, common law right to privacy Roach v Electoral Commissioner [2007] HCA 43 which upheld the Constitutional right of all people to vote, including prisoners o Can be influential and occasionally controversial, for example, Mabo v Queensland (No 2) (1992) 175 CLR 1 dealt for the first time of Australias Indigenous peoples right to title in their traditional land; i.e. native title. The judge Justice Brennan said in making the decision international law was influential and that it was a legitimate and important influence on the common law, especially when international law declares the existence of universal human rights and that a common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration. Opens numerous international human rights documents to domestic consideration Critics argue that the court exceeds its powers under the doctrine of separation of powers, and expanding such rights is a matter for parliament only. The High Court being influenced by international agreements is crucial, with the potential to apply those standards in absence of conforming legislation passed by parliaments.

Courts power to declare legislation invalid, uphold the rights of the Constitution and to continue to develop the common law

Non-government organisations Numerous NGOs in Australia that work in the area of human rights Researching and reporting on human rights issues, Making submissions to state and Commonwealth parliaments or law reform bodies on human rights inquiries, Working in the field of human rights with victims of rights violations

The media Naming and shaming Influence public opinion and government action

A Charter of Rights for Australia Arguments for a Charter of Rights Extremely high common support for a Charter of Rights Redressing the inadequacy of existing human rights protections Reflecting basic Australian values Protecting the marginalised and disadvantaged Improving the quality and accountability of government Contributing to a culture of respect for human rights Improving Australias international standing in relation to human rights Bringing Australia into line with other democracies Generating economic benefits

Arguments against a Charter of Rights The adequacy of current human rights protections in Australia Undermining a tradition of parliamentary sovereignty, including transferring legislative power to unelected judges No better human rights protection is guaranteed Potentially negative outcomes for human rights Excessive and costly litigation Democratic processes and institutions offer better protection of rights A major economic cost Unnecessary legalised human rights

National Human Rights Consultation

CONTEMPORARY SLAVERY
Contemporary slavery: a form of forced or bonded labour, with or without pay, under threat of violence. The movement to abolish slavery began in the 18th century. It culminated in the 20th century with the development of numerous anti-slavery treaties, leading eventually to the abolition of slavery world-wide. Article 4 of the 1948 Universal Declaration of Human Rights stated no one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms. Today, every country has enacted laws officially abolishing slavery and ensured the practice has ended within their own borders. Minimum working conditions Laws on the migration and movement of individuals across international borders.

Accurate statistics is hard to obtain as it is involves illicit activities. The UN International Labour Organisation (ILO) estimates at least 12.3 million adults and children are in forced or bonded labour or commercial sexual servitude at any time. Other researchers and NGOs estimate as many as 27 million people

The main types of slavery include: Forced labour: work performed under the threat of a penalty or harm which the person has not voluntarily submitted to, such as threat of hardship, detention, violence or even death to the person or to another person. o Victims might include domestic workers or workers in factories or sweatshops, mining and agriculture or construction. A person may, for example, be lured by the promise of a legitimate job opportunity and instead forced to work without pay or enduring physical abuse. Debt bondage: often a form of forced labour, this refers to 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. o In many cases, the person is deceived into paying extremely high rates of interest making it impossible to repay the debt; tricked or trapped into working for very little to no money; or have unreasonable expenses deducted from any pay or further added to the debt. In some cases, children of the borrower may be forced to repay the debt across generations Sexual slavery: repeated violation or sexual abuse or forcing of a victim to provide sexual services; it often takes the form of forced prostitution or forced labour where sexual abuse is also common. o Includes forced prostitution, single-owner sexual slavery, slavery associated with religious practices or another type of slavery such as forced labour where sexual abuse is also common. o The victims might be captured, coerced, deceived or even sold by their own families or acquaintances into sexual slavery

May also include Domestic workers kept in captivity The adoption of children who are effectively forced to work as slaves Child soldiers Forced marriage

HUMAN TRAFFICKING AND SLAVERY


Many victims of slavery are forced into slavery by way of human trafficking The commercial trade or trafficking in human beings for the purpose of some form of slavery, usually recruiting, transporting or obtaining a person by force, coercion or deceptive means. Distinguished from people smuggling, which refers to the 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. Includes a whole line of criminal activity, from o Recruitment and harbouring of victims o Transport and sale o Obtaining or buying to o Exploiting that person in slavery or forced labour

EXTENT OF TRAFFICKING
2009 Australian Government report, Trafficking in Persons estimates the number of people trafficked across international borders between 700 000 to four million o This does not include the millions of people trafficked within their own countries o Difficult to determine exact number because of the illicit nature of the activity. UNs 2009 Global Report on Trafficking in Persons, sexual trafficking is the most documented type of trafficking, whereas forced labour, debt slavery, forced marriage and domestic servitude may be less well documented International Labour Organisation estimates at least 56% of all forced labour victims are women and girls Siddharth Kara, researcher into human trafficking, has suggested international profits of human trafficking may be as high as $92bn, second to only drug trafficking. Many victims come from developing countries where poverty, fraudulent recruiters, exploitative employers and corrupt officers are widespread.

A global issue with almost every country in the world being a source, transit or destination country.

RESPONSES TO HUMAN TRAFFICKING AND SLAVERY


Legal responses Began with the worldwide abolition of slavery o Slavery Convention of 1926 This treaty was expanded in 1956 by the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Practices Similar to Slavery, which clarified and expanded the definition of slavery to include debt bondage, forced marriage and child slavery, etc. Did not address issues of illicit slavery and human trafficking o UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (the Protocol) Entered into force in 2003 First legally binding instrument with an agreed definition on human trafficking As of 2011, 146 state parties to the Protocol Designed for member states to enact into the most appropriate domestic laws. 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. There are still many countries that lack the necessary legal instruments or political will. Resources, focus and cooperation is needed to address the issue

Domestic responses Opportunities for trafficking into Australia may be fewer than for some other countries, due to geographic isolation and strong migration controls. Nonetheless, Australia is still a destination country Australian government established a human trafficking strategy in 2003 and since has dedicated almost $60 million to tackling the problem o Address the full trafficking cycle, from recruitment to reintegration, and lends equal weight to the critical areas of prevention, detection and investigation, prosecution and victim support. Ratified the Supplementary Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children on 27 May 2004 First introduced sexual slavery laws with the Criminal Code (Slavery and Sexual Servitude) Amendment Act 1999 (Cth) o Further refined and added more specific human trafficking offences to the federal Criminal Code in the Criminal Code Amendment (Trafficking in Persons Offences) Act 2005 (Cth) o Current provisions are found under Divisions 270 and 271 of the Criminal Code Act 1995 (Cth) Includes penalties of up to 25years imprisonment for some offences Similar offences also included under state and territory legislation include: o Division 270 Slavery, sexual servitude and deceptive recruiting, contains offences including possession of a slave, engaging in slave trading or entering into any commercial transaction involving a slave. It also contains prohibitions on the deceptive recruiting of a person for sexual servitude o Division 271 Trafficking in persons and debt bondage. This division makes it an offence to traffick in persons or children, whether internationally or domestically. It also contains offences relating to debt bondage of persons, forced labour and the trade in human organs. 2004 Commonwealth Action Plan to Eradicate Trafficking in Persons, which included the aims of prevention, detection and investigation, criminal prosecution, victim support and rehabilitation In 2008, new measures under the Commonwealth Government Anti-Trafficking Strategy were introduced, including o Increased specialist training and funding for the Australian Federal Police to detect and investigate human trafficking operations o Additional funding and training for the prosecution of human trafficking for Commonwealth Director of Public Prosecutions o A National Policy Strategy to combat trafficking in women for sexual servitude o Victim support measures and special visa arrangements to support victims of trafficking o A targeted Communications Awareness Strategy providing information about trafficking and the help available o Cooperation with regional and international agencies in tackling the sources of human trafficking and prosecuting offenders

The Australian government has made a number of prosecutions under the criminal provisions, R v Tang (2008) 237 CLR 1; R v Wei Tang (2009) 233 FLR 399 Serious problems in Australias enforcement campaigns have been the issue of protection visas and threat of deportation of victims on discovery by authorities. This can mean potential witnesses cannot testify in the court and can have the effect of punishing the victims of the crimes.

R v Tang (2008) 237 CLR 1; R v Wei Tang (2009) 233 FLR 399 Wei Tang accused of purchasing five women from Thailand to work in a licensed brother in Fitzroy, Melbourne, under illegal conditions of slavery and debt bondage Australias first jury conviction under the slavery provisions of Division 270 of the Commonwealth Criminal Code Women arrived in Australia on fraudulently obtained visas, although the owners applied for protection visas for them after they arrived so that they could work legally. They had worked in the sex industry in Thailand, and voluntarily entered agreements with a broker, and then purchased by Wei Tang from the Thai recruiter for $20 000 o Passports and their return airline tickets were withheld by Wei Tang Each woman was required to repay a debt of $45 000. Each client serviced by the woman counted towards $50 off the payment (900 clients required to repay debt) and working six-day weeks over seven to eight months. No evidence that the women were physically abused Two women paid off their debts in six months after which they were paid and could choose their working hours. Not under lock and key, they had little money and limited English, passports were retained, and visas illegally obtained so they feared immigration authorities Convicted in 2006 of five counts of intentionally possessing a slave and five courts of intentionally exercising a power of ownership over a slave, contrary to section 270.3(1)(a) of the Commonwealth Criminal Code, and sentenced to 10 years imprisonment Conviction overturned and order for retrial in the Victorian Court of Appeal in 2007 on the basis that the judge had misdirected the jury on the meaning of the term slavery and whether Wei Tang had to know or believe that the women were actually slaves Prosecution appealed to the High Court of Australia, where the original conviction was upheld in 2008 by a 6-1 majority. Was found to have exercised the power to make each woman an object of purchase, the capacity to use the women in a substantially unrestricted manner for the duration of their contracts, the power to restrict and control their movements, and the power to use their services without adequate compensation.

Non-legal responses International responses Organisations such as the United Nations (UN), the International Labour Organisation (ILO) and various NGOs o 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. Increase awareness about human trafficking Assist non-state actors (e.g. NGOs) in their anti-trafficking campaigns in their anti-trafficking campaign campaigns by encouraging co-operation and joint action between NGOs and efficient prosecution of criminals Reduce the demand for the exploitation of people and the vulnerability of potential victims, and ensures support for victims who have escaped o The ILO also plays a crucial role in implementing and reporting on workers rights worldwide. o Campaign ceaselessly against forced labour. More recently, in 2001, the ILO established a Special Action Programme on Forced Labour (SAPFL) to attempt to raise global awareness of forced labour in its different forms. Undertaken several worldwide and country-specific studies and surveys, on such diverse aspects of forced labour as bonded, human trafficking, forced domestic work, rural servitude, and forced prison labour. NGOs play an important in combating human rights 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. Anti-Slavery International is an international NGO founded in 1839 and based in the UK. It aims to draw attention to the continuing problem or slavery worldwide and continuing

problem of slavery worldwide and campaign for recognition and action in the countries most affected today. American Anti-Slavery Group is an anti-slavery NGO that works on awareness, advocacy and aid against contemporary slavery. It focuses primarily on slavery in Sudan and Mauritania.

Domestic responses o US plays an important role in combating human trafficking worldwide First began monitoring human trafficking in 1994 and has broadened its reporting over the years to cover all main forms of contemporary slavery In 2000, the US passed the Trafficking Victims Protection Act of 2000 which established an office to monitor and combat trafficking and has initiated programs and provided millions in grants to organisations around the world Assists many countries on training, investigating, prosecuting and on protection of victims from abuse In 2004, established a centre to coordinate the activities of federal agencies, police, intelligence, and diplomatic representatives together to coordinate activities to stop trafficking Detailed annual report published by the US Department of State, Trafficking in Persons Report o Australia has a number of NGOs, such as the Coalition Against Trafficking in Women (CATW) Australia and Caritas Australia The media plays an important role informing the public about the existence and nature of modern slavery in films, books, and documentaries July 2006, SBS aired Trafficked, a documentary about sex slavery in Australia, watched by over 500 000 viewers Australian universities in researching and reporting University of Technology Sydneys Anti-Slavery Project, established in 2004 is dedicated to the elimination of modern slavery in all its forms through collaboration with government agencies and community groups. The University of Queensland established a Human Trafficking Working Group in 2008, which researches and analyses cases and statistics on human trafficking and slavery in Australia.

Effectiveness of Responses Main reasons of why human trafficking and modern slavery is difficult to eradicate o limited resources or effectiveness of developing states to combat forms of exploitation and transnational crime o socio-political and economic factors that underpin the movement of people from one place to another In a globalised economic system, there is an increased demand for all types of labour: both legal and illegal. This demand is exploited by criminal organisations, and vulnerable people are trafficked as victims to meet this demand. o Poverty, lack of education and rule of law in source countries can contribute to the vulnerability of victims State sovereignty means some states are unwilling to acknowledge and resolve the problem, where other states may be unable to effectively tackle the problem.

The UN, ILO and NGOs play a crucial role in encouraging countries to continue their efforts Trafficking in Persons Report classes Australia as a Tier 1 best practice country, but improvements in areas can be made. Crime was becoming increasingly recognised in the Asia-Pacific region, with a 30% increase in prosecutions in one year in Indonesia, and legislation now in place in over half of Pacific Island nations. Regional reform in policy frameworks and technical assistance programs produced or managed by regional bodies, with Australia playing an important role Improved awareness and monitoring of vulnerabilities can help prevent and reduce trafficking in the region

SECTION III - OPTIONS CONSUMERS

THE DEVELOPING NEED FOR CONSUMER PROTECTION


In the 21st century, consumers need a highly specialised level of product knowledge when buying goods and services to protect themselves from unfair business practices. The industrial revolution brought the most change on consumers, from a subsistence economy and small markets to cities with mass production by companies. Caveat Emptor let the buyer beware became the way of the past. A consumer is a people who buys or uses goods or services for their own personal use or household consumption. The primary objective of consumer law is to protect consumers Educate consumers to protect them from exploitation Articulating and mandating standards for the quality of goods and services Providing statutory and common law remedies for consumers Implementing weights and measure laws to provide benchmarks of quality Ensuring various occupations are licensed Protecting consumers from global advertising, mass marketing, and e-commerce with less personal interaction between buyer and seller Regulating contractual relationships between buyers and sellers Guarding against unsafe and defective products Helping vulnerable and disadvantaged consumers

Contracts
A contract is an agreement between two or more parties that is recognised by the courts as legally binding and enforceable. It can be written, oral or both. Person making the offer is known as the offeror Person to whom the offer is made is known as the offeree

Basic elements of a contract are: Legally binding intention o The intent to be bound by the agreement and expect the law to enforce that agreement. It could be explicit or implicit An offer by one party o A firm proposal made with a willingness to be bound by the terms Acceptance of that offer by the other party o Unconditional consent or agreement to all the terms of the offer Consideration of offer and acceptance o The acts or promise which back up the offer or acceptance

Counteroffer: an offer made to another offer which was seen as unacceptable. Allows for negotiations between the buyer and seller Rescind means to end. A contract is rescinded if any of the following are present: Misrepresentation o When one party is induced into a contract by a false statement from the other party. Elements of misrepresentation are that there was: A false statement Of fact Which was intended to induce the innocent party into the contract Which did cause the innocent party to enter the contract Duress o Illegitimate threat used by one party to coerce the other party to enter into a contract Actual or threatened violence to the person or property Undue influence o Where a dominant person unfairly influences another, weaker person into entering a contract. Usually through relationships

Lawyer over client Doctor over patient Parent over child Unconscionability o Where a strong party attempts to enforce, or retain a benefit, over a weaker party who is under a special disability when it is inconsistent with good conscience The Contracts Review Act 1980 (NSW) i.e. Amadio v Commercial Bank of Australia (1983)

For a contract to be enforceable, The parties must have the capacity to contract: they are able to enter the contract voluntarily. The following cannot be: o Children/minors under the age of 18 o People with mental disorders o People under the influence of drugs or alcohol Certain contracts must be in written form as set out by legislation Neither party should have been misinterpreted or misled in any way No duress or any form of threats or violence used No undue influence where a dominant party unfairly influences the weaker party Unconscionable conduct where a stronger party attempts to use their power to obtain the consent of the weaker party who may have a certain disability, i.e. language barrier Cannot be of an illegal act, such as a murder contract

Commercial Bank of Australia v Amadio (1983) Amadios agreed to a guarantee to the bank for their sons business debt, not fully explained by son or bank. o Unconscionable conduct of the bank with the Amadios disadvantage: limited English, understanding of the contract terms, and lack of assistance or explanation

Common law protection: Implied terms A contract must be fairly negotiated without any undue influence A contract for professional services must be performed with reasonable care A contract must be entered in the absence of duress or coercion The product purchased must be of merchantable quality The product must be fit for the purpose for which it is required A product must match its advertised description Manufacturers/suppliers cannot engage in deceptive or misleading marketing behaviour

Statutory law protection: Implied terms - Sales of Goods Act 1923 (NSW), Fair Trading Act 1987 (NSW), Competition and Consumer Act 2010 (Cth), Trade Practices Act 1974 (Cth) The seller has the right to sell the goods The buyer shall have and enjoy quiet possession of the goods Goods which have been sold by description correspond to that description Goods are fit for the purpose for which they were purchased Goods purchased are of a merchantable quality (of a minimum trade or retail standard) Bulk goods sold by sample correspond to the sample Suppliers will not be misleading or deceptive

Statutory Protection Sale of Goods Act 1923 (NSW) Competition and Consumer Act 2010 (Cth), formerly the Trade Practices Act 1974 (Cth) established the Australian Consumer Law (Schedule 2) o Applied only to corporations Fair Trading Act 1987 (NSW) (mirrors its federal counterpart), Fair Trading Amendment (Australian Consumer Law) Act 2010 (NSW) o Regulates businesses in NSW that are not incorporated Contracts Review Act 1980 (NSW)

o Allows court to grant relief for unjust contracts Australian Securities and Investment Commission Act 2001 (Cth) o Establishes power of the Australian Securities and Investment Commission (ASIC) o Consumer protection in relation to financial services, including enforcement and court-ordered remedies

Contracts Review Act 1980 (Cth) Designed specifically to remedy situations where contracts are harsh, unconscionable or oppressive Circumstances include o Whether there was any inequality in bargaining power between the parties o Whether provisions in the contract are unreasonably difficult to comply with o Whether a party was unable to reasonable protect their interests because of age, or physical or mental incapacity o The relative economic circumstances, educational background and literacy of the parties o The intelligibility of the language used in the contract o Whether independent legal or expert advice was given o Whether undue influence, unfair pressure or unfair tactics were exerted against a party to the contract o The conduct of the parties in previous dealings

Trade Practices Act 1974 (Cth) Section 51AB o A corporation shall not, in trade or commerce, in connection with the supply or possible supply of goods or services to a person, engage in conduct that is, in all the circumstances, unconscionable

Privity of contract Only those who are parties to the contract can suffer a liability or gain a contractual benefit. Those outside cannot sue or be sued A common law doctrine which states that only parties who make a contract can enforce it Exceptions o The law of torts: allows third party to a contract to sue for damages Donoghue v Stevenson (1932), manufacturers negligence and duty of care towards Donoghue, although no contract had existed (her friend had purchased the drink, not her) o Trade Practices Act 1974 (Cth) manufacturers and importers must make certain guarantees, one of which is the merchantable quality of goods. Consumers can claim against them covered by this act even though they have no contract with them o Product liability laws Anyone who is injured as a result of defective goods can claim compensation from the manufacturer. No need to prove negligence, breach of contract or breach of statutory duty

STANDARDS TO BE EXPECTED IN CONTRACTS


Express terms: terms that are clearly and specifically mentioned and agreed by both parties at the time the contract is made Implied terms: terms which have not been mentioned but are still included and are part of a contract. It is required by statute and enforceable by the courts Terms and Conditions of Contracts Terms of contract o Statements that govern the rights and obligations of the parties concerned. o The elements of the contract and are binding Representations o Statements made prior to agreement which are intended to influence the other party to engage into the contract, but not intended to be a part of the contract o Statements that are fraudulent or negligent, or it has been used to influence the innocent party into the contract, may allow the party to repudiate or reject the contract and sue for damages Conditions o Terms that is fundamental to the contract. Any breach of a condition allows the innocent party to rescind or end the contract and sue for damages

Warranties o Less important terms of a contract and as such oblige a non-breaching party to continue with the contract and allow the party to sue for damages Exclusion clauses o Terms that attempt to reduce the potential liability of a party to a contract. o Limits claims by the other party to a contract o For example, parking lot Not responsible for any damage Will not take any liability Will not pay any damages or compensation for your loss o Other notable include insurance and marketing schemes

REGULATION OF MARKETING AND ADVERTISING


Statutory Protection Deceptive or misleading conduct o Section 18 of the ACL o Section 41/42 of Fair Trading Act contains similar provisions o Conduct refers to doing or refusing to do any act False or misleading representations o Section 29 of the ACL o Section 44 of the Fair Trading Act o Representations refer to statement or assertion Unconscionable Conduct o Section 20 of the ACL o Section 43 of Fair Trading Act Offering Gifts and Prizes o Section 32 of the ACL Bait Advertising o Section 35 of the ACL Referral Selling o Section 49 of the ACL Pyramid Selling o Section 44-46 of the ACL Unsolicited and unordered goods o Section 41 of the ACL Coercion o Section 50 of the ACL

Direct Marketing Refers to practices where goods are advertised and bought by a consumer from his or her home o Telephone o Mail o Specialised shopping programs o Has grown enormously in Australia over the last 15 years Advantages o Convenience o Access to a wide range of goods and services Disadvantages o Invasion of privacy, particularly telephone marketing o Delay in receiving goods o Little customer service in regards to complaints o No opportunity to inspect goods before purchase The Australian Direct Marketing Association (ADMA) developed the standards of practice to help ensure that these problems do not occur. Practices include o Direct marketers must print a full street address of where they can be contacted

o o

Firms may only call between 8AM-9PM The ADMA has a database of people who do not want to receive direct mail which they distribute to their members

Cooling-off periods A period of time that gives buyers an opportunity to rethink their decision to enter into a contract of sale ACL provides 10 business days cooling-off periods for unsolicited consumer agreements o Telephone o Door knocking o Approaching in shopping centres o Leaving call on answering machgine

Non Statutory controls on advertising Self-regulatory framework which complements its statutory regime Advertising Standards Bureau (ASB) and the Advertising Claims Board

Balmain New Ferry Co Ltd. V Robertson (1906) A fare of one penny must be paid on entering or leaving the wharf. No exceptions will be made to this rule, whether the passenger has travelled by the ferry or not. o Company had not given reasonable notice of the clause to him before the contract had been made, but he had made similar journeys with the ferry company, and thus he should reasonably have known of the clause

OCCUPATIONAL LICENSING
Occupational licensing refers to the government or industry practice of issuing licensing in order to control the standards of work done. Can either be done by: State regulation Self-regulation

Occupational licensing Protects consumers from non-licensed traders Ensures minimum standards of service Ensures ethical practices and maintain a high standard Ensures members have the skills to perform their job honestly Provides consumer confidence that the person they are dealing with is qualified and competent to do the work required

Reduces a wide range of public risk factors such as Public health and safety Occupational health and safety Consumer protection Environmental protection

Industry regulators Manage and monitor the application of these requirements Stipulate whether workers need to obtain a license in order to work in their chosen industry

Requirements needed for applicants applying for occupational licensing Whether they can meet the minimum standards required by the industry Level of competency skills Suitability of character Level of experience Clean criminal record (for certain professions, such as teaching) Current financial situation

Regulation may include Registration: official listing to identify legal practitioners Certification: a means of recognising those who have obtained qualifications Licensing: a means of identifying those who have fulfilled the criteria related to education, experience and compliance with professional codes of ethics, authorising them to practice

Self-regulation occurs when a particular trade or occupation imposes its own licensing restrictions on those who practice in that occupation Adopting codes of practice which lists obligations of members of that particular occupation or industry Internet and direct marketing industries are self-regulated

Advantages State regulation may be inefficient or time consuming for the occupations concerned State regulation may result in a lack of profitability for the providers of the good/service because the cost of compliance is too high If self-regulating bodies do not protect consumers adequately, the reputation of the whole industry might suffer Other forms of redress are available to consumers Can force self-examination of businesses

Disadvantages Tends to favour members rather than consumers May have poor standards which may not monitor the work practices of its licensed members closely Can form monopolies Complaints may favour the practitioner rather than consumers May lack sufficient provisions to protect consumers

State Regulation is where the government determines who may be granted a license and what behaviour entitles licensees to retain or lose that license Reasons for: Legislations in place that provides strict guidelines regarding fiduciary duty of solicitors, real estate agents and travel agents Code of ethics are in place to ensure safe and honest practices by its members in accordance with their legal duty to the consumer Removes industry involvement Government responds to complaints No self-interest, Governments should always be in favour of protecting the public.

Fiduciary Duty is the legal obligations that must be fulfilled without regard to self-interest or the opportunity to make unauthorised profit from the position.

CONSUMER REDRESS AND REMEDIES AWARENESS AND SELF-HELP


Consumer awareness and self-help avenues are useful as it empowers consumers to take their own action in redress and remedies. It is resource-efficient and easily carried out. It also provides just outcomes without costly litigation. Ask questions about the product Request and keep receipts Keep all packaging, and try to keep it undamaged Be aware of refund conditions Approach the seller asap if there are problems If not the salesperson, speak to the manager

Consumer Redress Self-help is notifying the supplier or manufacturer of the problem First step in resolving a problem Helps when taking serious (legal) action if an attempt is made at resolving or mitigating their problems

Complaints to suppliers Under the law, consumers can seek redress in the form of repair, replacement, or refund. Statutory protections in place for consumers as well as fostering goodwill and customer loyalty

Complaints to manufacturers Under the ACL, manufacturers are legally obliged to stand by their warranties or guarantees and ensure a reasonable supply of spare parts and repair facilities for goods that cost less than $40 000 and are for personal or household use. Manufacturers must also meet the requirements for merchantable quality and fitness for purpose

Government Organisations NSW Office of Fair Trading Role to protect consumer rights and advise business and traders on fair and ethical practice Legislation that governs the organisation sets the rules for fairness in the daily transactions between consumers and traders Investigates unfair practices and administers the licensing of operators in a wide range of industries Provides consumers with information on their rights and responsibilities for resolution of disputes

Community Services Commission Statutory watchdog overseeing community services in NSW Deals with complaints relating to the NSW Department of Community Services and Department of Ageing, Disability and Home Care

NSW Legal Aid Independent statutory body providing legal advice and assistance to socially and economically disadvantaged people, including court representation if successfully means tested.

Federal Government Organisations Commonwealth Consumer Affairs Advisory Council (CCAAC) Provides independent advice to the Minister for Competition Policy and Consumer Affairs on consumer policy issues

The Australian Securities and Investments Commission (ASIC) Independent statutory body that regulates Australias corporate markets and financial services sectors and ensures that Australias financial markets are fair and transparent. Enforces consumer protection laws covering investments, superannuation, insurance and financial advice. Licenses financial services businesses Conducts public education initiatives for consumers Provides information to businesses to help them fulfil their obligations Monitors compliance through surveillance

Australian Competition and Consumer Commission (ACCC) Independent statutory body whose role is to promote competition and fair trade in the market place. Importance of competition in providing consumer benefits compared to monopolies. Ensuring businesses comply with federal laws on fair trading and consumer protection

Ministerial Council on Consumer Affairs (MCCA)

Consists of ministers responsible for fair trading, consumer protection and credit laws, along with the NZ ministers with those portfolios.

Industry Organisations Some specific industry groups have developed complaint handling and dispute resolution schemes designed to provide consumer remedies, enhance business reputation, and show that these industries are self-regulating Customer-focused corporate compliance programs Internal self-regulatory programs that aim to ensure that a business meets its legal obligations to consumers and to remedy any breach Often linked to strategic goals of companies

Industry-based Ombudsman Takes complaints from consumers about agencies, departments or providers and investigates those complaints to find a resolution that is fair for both sides

The Role of Courts and Tribunals Courts Last resort is litigation civil proceedings whereby disputing parties seek a binding remedy by a court Apply the law Interpret the law Ensure laws comply with the Australian constitution Review decisions of the executive Expensive in time and money

Consumer, Trader, Tenancy Tribunal (CTTT) NGOS Represent the interests of consumers Advocacy groups o Consumer Credit Legal Centre (NSW) Inc. specialises in issues related to financial services o Choice, researches and campaigns on behalf of consumers and publishes Choice magazine o Consumers Federation of Australia national peak body for Australian consumer groups. Members include legal centres, local organisations and public interest bodies Resolves disputes between tenants, landlords, traders and consumers in several areas Appeals against CTTT orders can be made to the District Court of NSW on any matter of law

The Media Provides consumer information on products Various programs address consumer complaints and interests Bias, but nonetheless provides information

Alternative Dispute Resolution Mediation and conciliation

Types of Remedies A remedy is something that fixes up a wrong action Refunds, repairs and replacements o No refund does not apply to defective goods o Courts and tribunals can order this remedy Rescission and modification of contract

o Can be ordered by a court and tribunals Damages o Restitution damages The plaintiff is given value for benefits he/she has provided to the defendant so far o Reliances damages The plaintiff is compensated so that he/she would be in the same position as before the contract was entered into o Expectation damages The plaintiff is compensated so that he/she is in the position he/she would have been in if the contract was fulfilled. o Injured feelings Additional damages awarded to compensate for mental trauma suffered because of the breach of contract. Contemporary issues concerning consumers Special order o Under the Competition and Consumers Act 2010 can do specific tasks Injunctions and specific performance o Injunction is an order for someone to do something or refrain from doing something that is in breach of a contract o Specific performance is a court order requiring a party to a contract to perform the obligations that he or she has agreed to do so in the contract Class action is where several people who have been affected take the case jointly to court Criminal prosecution o ACCC and Dept. of Fair Trading can initiate criminal prosecutions Trade Practices Act: fines up to $40 000 for persons, $200 000 for corporations

CREDIT
o o o o o o o o o o o A credit transaction is one where a consumer acquires an item for use immediately but does not pay for it immediately A borrower is a person who acquires goods and services using credit A credit provider is any business that provides finance to purchase goods and services Extra money paid is known as interest Security is any asset over which a credit provider has a claim if the borrower fails to pay his/her debt A mortgage is an agreement where property is provided as a security for a loan A guarantor is a person who agrees to pay the debts of another person if that person fails to pay the debt Debt is the amount of money that is owed Credit is the amount of money that is borrowed Debtor is the person who owes money to the creditor Creditor is the person who lends money to the debtor, eg, banks

Advantages of Credit Consumers can enjoy the use of an item before they are able to afford to pay for it It has allowed consumers to be able to buy high-ticket items whereas they would have needed to work for a long time to save the required money.

Disadvantages of Credit End up paying more with interest Many consumers lured into buying goods on credit that they are unable to pay for

IMPORTANT LEGISLATION Consumer Credit Act 1995 (NSW) o All information about the credit contract needs to be disclosed to the consumers National Consumer Credit Protection Act 2009 (Cth) o Consumer credit is now regulated by the ACCC under commonwealth laws Insurance contracts act 1984 (cth) o Obliges insurance suppliers to disclose information about insurance to consumers, including credit transactions

Anti-discrimination Act 1977 (NSW) o Prevents discrimination in the provision of credit on certain grounds Privacy Act 1988 (Cth) o Controls the extent to which credit providers can exchange or access information about consumers

Credit issues Risk of exploitation as lenders loan too readily, consumers cannot meet repayments Unfair contract terms Credit providers with inadequate procedures for handling complaints Time delays in the handling of complaints by credit providers Too many steps involved in the process of seeking legal redress and hence only the most sophisticated consumers will persevere.

Legal and non-legal responses In a meeting of the Council of Australian Governments in 2008, a consensus was made where consumer credit regulation powers should be transferred to the Commonwealth. This was achieved in the National Consumer Credit Protection Act 2009 (Cth) and the Trade Practices Amendment (Australian Consumer Law) Act 2009 (Cth) o Establishes a single, uniform national law for the regulation of consumer credit o Provides enhanced protection for consumers and the stability for the consumer credit sector

The standardisation has provided many benefits, Robust licensing scheme that only includes honourable and competent credit providers Greater integrity as it is monitored by the government, helps consumer confidence Rigorous entry requirements must be met before the provision of an Australian credit licence Credit providers must meet responsible lending standards when providing credit or credit assistance The credit market benefits from an assurance that consumers are well protected

The Uniform Consumer Credit Code (UCCC) Amendments to ASIC Act 2001 (Cth) strengthen the national Consumer Credit Code across Australia. Standardises across all Australian jurisdictions Presents credit information in a clear and easy-to-understand format Credit providers must o Inform consumers of their rights and obligations in any credit arrangement o Truthfully disclose all relevant information about the credit arrangement via written contract, including interest rates, fees, commissions and other information.

Advantages Transparency, obligations spelt out for consumers. Debtors know they are backed by national legislation. Consumer confidence up. Credit providers more freedom to organise fees and charges as long as theyre explicitly disclosed Civil penalties up to $500 000 and/or criminal charges Business checklist in plain english Must be in written contract Pre-contractual statement disclosing mandatory details about fees and charges

Non-legal NSW office of fair trading CJCs Financial Ombudsman Service Consumer Credit Legal Centre Redfern Legal Centre

Responsiveness of the legal system Appropriate measures, all Australian consumers are equal

UCCC guarantees standardisation More information disclosed to consumers Do not know how effective it is on large MNCs

PRODUCT CERTIFICATION
Product certification refers to the process of providing documented assurance that goods or services have passed performance and quality tests before they are marketed. Manufacturers have a duty of care towards customers and it is vital that all products/services meet certain minimum safety and performance standards before they can be put on the market. The concern with product certification is with globalisation. Products can be manufactured from all over the world; in countries that do not have the same level of quality assurance as Australia. It is imperative that these products meet certain minimum safety and performance standards before they can be sold in Australia. Legal Response Product Safety The ACCC enforces mandatory product safety through provisions under the Australian Consumer Law. Under Australian law, product suppliers and manufacturers have an obligation to ensure that only safe products are marketed, by: Providing clear instructions for use Meeting industry and mandatory standards Developing product recall plans Incorporating safety into product design Raising the level of safety standards through product improvement Quality assurance program Responding quickly to safety concerns that arise

Mandatory Product Standards A standard can be made mandatory by either a statutory regulation or a notice published in the Commonwealth Gazette. The notice will refer to a published Australian standard and may contain variations to that standard. There is a legal requirement that suppliers must refer to both the gazette notice and its Standards Australia benchmark In Australia, mandatory standards comes in o Safety standards: safety, labelling and design requirements when there is a clear risk to consumers o Information standards: prescribed information must be given to consumers when they purchase specified goods

Product Certification Certification of products indicates they have passed performance and quality assurance tests and builds consumer confidence. The greater the risk of injury to consumers, the more demanding the certification process will be for the manufacturer/supplier CE Five Ticks StandardsMark

Non-Legal Independent consumer groups advocate on behalf of consumers, lobby parliament and act as consumer watchdogs Media Responsiveness ACCC/Fair trading both have power to remove unsafe goods from safe from ACL.

Production certification = very good

MARKETING INNOVATIONS
Marketing is a process by which business creates a consumer interest in its products. E-commerce and global marketing technologies has posed several legal issues in Australia. Issues Fraudulent offers Scammers Pyramid selling schemes Overseas phone calls Phishing attacks Spam o Spam Act 2003 (Cth)

Legal Response ACL has provisions relating to marketing. Thus, the ACCC and Fair Trading can intervene. Non Legal Choice Magazine o Magazine may report on deceptive marketing practices SCAMwatch o Website run by the ACCC o Provides information to all consumers and small businesses regarding the recognition, avoidance and reporting of scams The Australian Communications and Media Authority (ACMA) o Government agency responsible for the regulation of broadcasting, the internet, radio communications and telecommunications o Consumers can make complaints about deceptive marketing and advertising practice here Print and electronic media o Spreads awareness

TECHNOLOGY
Technology is ubiquitous in our society and the interaction between consumers and sellers. Australian consumers may have dealings with foreign marketers. Problem is the global marketplace because Australian law does not apply internationally so it is difficult to prosecute when they do not follow Australian law. Legal Responses Freezing assets if information about the location of the markets assets is known. Absence of international treaties and foreign bank lays make it difficult to recover a consumers money. Arrest warrants can be made if an extradition treaty exists between the foreign country Governments have the power to remove fraudulent telemarketing sites Telecommunications Act 1997 (Cth) gives the ACCC the authority to administer the Rules of Conduct (contained in that Act) governing dealings with international telecommunications operators

Non-Legal ACMA ADMA o Australian Direct Marketing Association for direct marketing companies. Strongly committed to self-regulation. o Formulated eMarketing Code of Practice to supplement the Spam Act 2003 (Cth) Internet Industry Organisation o IIIA Spam Code of Practice to supplement the Spam Act 2003 (Cth)

The Australian Securities and Investments Commission in regards to financial services

Adequate protection through ACL and Telecommunications Act 1997, but international eCommerce presents problems. Multilateral/international solutions required

FAMILY LAW THE NATURE OF FAMILY LAW THE CONCEPT OF FAMILY LAW
Family law is a wide-ranging area of law governing behaviour in the context of the family. Protecting the rights of family members and ensuring that individuals meet their family obligations Families are the fundamental unit of society. The main function of the family is the care and protection of its members. The law governs family relationships as to ensure that people in family relationships are financially secure and that any children of that relationship are cared for. The more traditional family relationship is based on marriage, defined as the union of a man and a woman to the exclusion of all others, voluntarily entered into for life. As society has changed over time, the structure of families has also changed. There are now many acceptable and recognised family arrangements, including Aboriginal and Torres Strait Islander (ATSI) Single-parent families, customary marriages, Blended families, and De facto relationships, Extended families Same-sex relationships, Commonwealth Government has exclusive power to make laws governing marriage and divorce under s 51(xxi) of the Constitution. The Marriage Act 1961 (Cth) established the legal requirements of a valid marriage, while the Family Law Act 1975 (Cth) sets out the legal duties and obligations that a marriage creates. Main aim of the act was to reform the law governing the dissolution of a marriage. -

State Governments originally governed law on de facto relationships before referring their powers to the Commonwealth with respect to both parenting disputes and property disputes (in the context of a marriage or de facto relationship) Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) made property division and de facto spousal maintenance determined under the Family Law Act 1975 (Cth). Marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life. Certain unions are not marriages. A union solemnised in a foreign country between: (a) a man and another man; or (b) a woman and another woman; must not be recognised as a marriage in Australia.

LEGAL REQUIREMENTS OF MARRIAGE


The legal definition of a marriage In the case of Hyde v Hyde and Woodmansee (1866) LR 1 P&D 130, the judge stated that marriage is the voluntary union for life of one man and one woman, to the exclusion of all others, i.e. Marriage must be voluntarily entered into. If one party was coerced or deceived, the marriage is not legally binding. Marriage, by definition, is for life. However, a married couple do have the right to divorce. The parties to the marriage must be of different sexes To the exclusion of all others means it is the union of two people only. o Some cultures and societies allow polygamous relationships, i.e. allowing for more than one partner at the same time.

Requirements for a valid marriage

The requirements of a valid marriage are found in the Marriage Act 1961 (Cth) Gender o Marriage Amendment Act 2004 amended the Marriage Act with the addition of the definition of marriage, which it had not previously contained. o S 88EA states that a same-sex marriage solemnised in a foreign country will not be recognised Marriageable Age o 18 (s 11) o If either of the parties wanting to marry is 16-18, he/she must apply to a judge/magistrate for an order authorising the marriage (s 12) Will only be granted in circumstances that are sufficiently exceptional and unusual E.g., if the couples parents consent and/or the couple are shown to be mature and financially independent Pregnancy alone will not guarantee an order No person under 16 can marry Prohibited Relationships o Cannot marry anyone who is closely related by blood (consanguinity) or by marriage (affinity). Consanguinity Descendants, ancestor, brother or sister as well as half-siblings Marriage Adopted siblings, descendants and ancestors who are related to the person by marriage o Legal to marry her uncle or his aunt, his niece or her nephew, or a first cousin. Notice of Marriage o A couple intending to be married must give a completed Notice of Intended Marriage form to the authorised marriage celebrant (a person who is authorised to perform a civil or religious marriage ceremony) who will conduct the ceremony, between 18 months and 1 month and 1 day before it. o Notice must be in writing and be signed by both parties in the presence of a witness Approved witnesses include marriage celebrants, justices of the peace, police officers, solicitors and doctors o Parties who intend to marry must provide proof of age, usually their birth certificate. If either party had been married previously, he/she must provide evidence that the marriage has been dissolved, by death of the spouse or divorce.

Requirements for a valid marriage ceremony The marriage ceremony must satisfy the conditions in Parts IV and V of the Marriage Act 1961 to be valid An authorised marriage celebrant must perform the ceremony Two witnesses, both aged over 18

No formal requirements concerning the attire, the structure of the ceremony or the words of the ceremony Marriage certificate is issued after the ceremony is completed. This document is legal proof that the ceremony took place according to law. The celebrant usually provides three copies of the certificate. The celebrant, husband, wife and two witnesses must each sign all copies of the marriage certificate. One copy must be lodged at the state Registry of Births, Deaths and Marriages within fourteen days of the date of the marriage.

Void marriages A marriage can be declared void, or invalid, if it fails to meet the definition of marriage, or fails to meet the criteria for a valid marriage. If a marriage is found to be invalid, the court can nullify the marriage. The annulment means that the marriage is deemed to have never taken place because it was illegal. However, any children born during the marriage are considered to be the legitimate children of the marriage.

Di Mento v Visalli (1973) 1 ALR 352

Duress (by anyone) in forcing a party to a marriage to marry is invalid Di Mento was 14 and living in Sicily, Italy with her parents before being kidnapped by Visalli, a 20-year-old man. o Visalli repeatedly asked her to marry him, but she refused o Di Mento was eventually released; however her father threatened to shoot her if she did not marry Visalli The father argued that if she did not marry him the familys reputation would be ruined. Di Mento agreed and she married Visalli o Two years later, she gave birth to a child, and when the child was a month old Visalii left her, never to return Di Mento emigrated to Australia and sought to have the marriage annulled on the grounds that she did not voluntarily give her consent. Court held that the marriage was void because it was obtained by duress, and noted that the Act does not require that the duress exerted be that of the spouse; in this case, it was exerted by Di Mentos father.

LEGAL CONSEQUENCES AND RESPONSIBILITIES OF MARRIAGE


Mutual duties of husband and wife Generally, the expectation is that both parties will support each other financially and emotionally and remain faithful. o No laws exist to enforce these expectations, e.g. no laws against adultery nor is it now grounds for divorce o Nor is there an automatic right to sexual relations with ones spouse o Rape is a crime even if parties are married The law does not concern itself with how partners in a marriage carry out their duties and responsibilities, rather, it intervenes only in cases where the marriage has broken down, where one or both parties to the marriage have no fulfilled their responsibilities, or when spousal rights have been infringed.

Maintenance Financial payment made by one spouse to contribute to the care and welfare of the other spouse and/or children of the marriage Under s 72 of the Family Law Act 1975 (Cth), if someone is unable to support himself or herself, his or her spouse is obligated to provide maintenance. Examples of when this is required are: o The person has the care and control of a child of the marriage who is under 18 years old o The person is not able to be employed because of age or physical or mental incapacity Spousal maintenance is not automatic; the court considers the questions of need when deciding matters of maintenance. E.g. if the spouse seeking maintenance is financially independent: income, property or financial assets and whether the spouse from whom it is sought has the capacity to pay. o Factors set out in ss 75(2) and 79(4) with respect to both spouses o Usually sought only after the marriage has ended, and for a limited period, until the spouse gains the ability to be financially independent. o Both parties have a duty to maintain any child of their marriage

Property rights Marital home o When two people buy a house together, they can choose to own equal shares in the property (joint tenants), or in unequal shares (as tenants in common) o Joint tenancy is most common for married and de facto couples; if one partner dies, the surviving spouse will inherit the whole property o Tenancy in common may be preferred if the parties do not want their shares necessarily to go to each other Any property purchased by one spouse during the marriage remains the property of the spouse who paid for it Any property owned by a person prior to marriage still belongs to that person after marriage Marriage does not automatically change ownership of property. Courts recognise the length of marriage, financial and non-financial contributions, including any improvements made to the property, will alter ownership

Contract and agency Any individual (18+) can enter into a contract. Not altered by marriage

Wills -

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 arrangements. Spouses cannot be held liable for each others debt It is only in the breakdown of a marriage that the court may make orders altering property interests, under the Family law Act 1975 (Cth) s 79 Spouses have the right to sue each other in contract or tort (s 119)

A document that states how a person intends to have his or her property distributed after his or her death. o The executor must obtain a grant of 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: monies and/or assets can be released Intestacy is the situation in which a person dies without a legally valid will o A person who dies without leaving a will is referred to as intestate, or partially intestate if his or her will does not effectively dispose of all his or her property o Generally, entire property will go to the surviving spouse (payment for probate deducted), 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 o State laws determine how the property of the deceased is divided, under the Succession Act 2006 (NSW), as amended in 2008 by the Succession Amendment (Family Provision) Act 2008 (Cth) and in 2009 by the Succession Amendment (Intestacy) Act 2009 (NSW) s 58 allows certain family members (and anyone who was in a close personal relationship) can apply to the court for a family provision order. The act encourages disputing parties to enter into mediation rather than contesting the will s 12 states marriage automatically cancels any pre-existing will unless the person made the will in anticipation for marriage s 13 states divorcement or annulment cancels any provision in an existing will that favours the divorced spouse

ALTERNATIVE FAMILY ARRANGEMENTS


Aboriginal and Torres Strait Islander peoples customary law marriages Bound by traditions and enforced through customary law Typically do not need to fulfil requirements of a valid marriage under the Marriage Act 1961 (Cth) Not legally recorded or registered with the relevant authorities Under law, ATSI customary law marriages are not recognised and do not have any legal standing o Australian Law Reform Commission in 1986 reported on ATSI customary law and recognition by general Australian law. In regards to marriages, it recommended that traditional marriages of Indigenous Australians should be recognised and given legal status in order to: Ensure the legitimacy of the children of those relationships Ensure that any child of those relationships would be given the same protection as children of married couples under adoption and welfare laws Protect the right of inheritance of the surviving spouse if his or her partner dies intestate Allowing a surviving spouse to claim any compensation payments owing to his or her partner, including workers compensation Ensure that spouses in these relationships are covered by the same laws of evidence, in court proceedings, that apply to spouses married under general law Allow the couple to claim the same tax benefits as those that are currently available to de facto or married couples o Response in 1995 by the Commonwealth government suggested that most of the recommendations are more appropriate for implementation in state and territory law. Some exception, like the circumstances of Indigenous children which is specifically provided for in legislation such as the Family Law Act 1975 (Cth) State parliaments have addressed some of the recommendations since then, including recognition of traditional marriages for limited purposes

If an ATSI customary marriage does break down, the Family court will determine an appropriate parenting order, including maintenance arrangements and deciding which parent will be given care and control of the child. o The order is made in the best interest of the child, and the childs need to maintain a connection with the ATSI lifestyle, culture and traditions

Single parent families Growth of single-parent families Increase in number of divorces Changes in social attitudes (acceptance) Improved welfare system Greater financial independence of women

Census 2006-07, 14% (808 000) single parent families in Australia, 1 in 5 children live in single-parent families and in 2006, 87% of single-parent families with children under 15 years were headed by women. Social issues Difficulties accessing legal advice, pursuing their rights in court and obtaining adequate legal protection. o High costs of legal action may discourage single parents from actively pursuing the protection of their rights through the courts

Child Support Scheme introduced in 1988 to enforce maintenance orders on parents who do not reside with their dependent children. Ensures parents fulfil their responsibility towards their children by automatically deducting payments from the support parents wage. Child Support (Registration and Collection) Act 1988 (Cth) moved collection and enforcement from the courts to an administrative system Child Support (Assessment) Act 1989 (Cth) introduced a formula for the calculation of child support owed

Blended families Created when a parent remarries: when a parent and his/her children from a former marriage or relationship live with another parent and children in similar circumstances. o Family includes stepmother, stepfather and stepchildren Step-parents do not have the same legal responsibilities for the care and control of the child o Does not have the automatic right or duty to discipline his/her partners child, or o Make the day-to-day decisions concerning the health and welfare of the child. o Not responsible for the maintenance or support of a partners child The court may make an order requiring a step-parent to pay financial support if satisfied the step-parent has a duty to maintain the child (Family Law Act 1975 (Cth) ss 66D, 66M, 66N) A step parent may become financially responsible for his or her partners children if the family has existed for a long time and the natural parent is dead or cannot be found Step-parents intending to adopt must first apply to the Family Court (Family Law Act s 60G) o Then apply to the state Supreme Court for an adoption order o In NSW, the step-parent must have lived with the child and the childs 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). o If a step parent does adopt his or her partners 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 o In order to claim successfully against the estate of a step-parent, stepchildren must prove that they were financially dependent upon the step-parent. o In this situation, stepchildren may apply for a family provision order under s 58 of the Succession Act 2006 (NSW)

De facto relationships A de facto relationship is defined in s 4AA of the Family Law Act 1975 (Cth) as one in which: The partners are not legally married to each other

Neither is the parent, child, descendant or sibling of the other, and They have a relationship as a couple living together on a genuine domestic basis

Property settlements and maintenance orders for separating de facto couples governed by Family Law Act 1975 (Cth), as amended by the o Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) Federal legislation applies to couples whose relationship broke down on or after 1 March 2009 o Those whose relationship broke down before 1 March 2009 can choose to be bound by federal rather than state law in this matter Matters relating to the children of de facto relationships will be heard in the Family Court

Same-sex relationships State legislation The De Facto Relationships Act 1984 (NSW) was amended by the Property (Relationships) Legislation Amendment Act 1999 (NSW) and renamed the Property (Relationships) Act 1984 (NSW) Property (Relationships) Act 1984 (NSW) recognises same-sex relationships as having the same legal standing as heterosexual de facto relationships, and provides the same protection o Section 4 defines a de facto relationship as a relationship between two adult persons who live together as a couple, and who are not married to one another or related by family o Protection in property division, inheritance and decision-making in illness and after death Under the Succession Act 2008 (NSW) and the Succession Amendment (Intestacy) Act 2009 (NSW), same-sex partners have the same entitlements under those laws as if they were married in regards to making an application for family provision and to entitlements of the de facto partners of individuals who died intestate. Section 4AA(5) of the Family Law Act 1975 (Cth) de facto relationships can exist with same-sex couples and the act governs property settlements between separating same-sex couples Federal legislation Under s 18 of the Evidence Act 1995 (Cth) and s 18 of the NSW and Victorian Evidence Acts, a de facto partner cannot be compelled to give evidence against his/her partner in certain criminal proceedings. Australian Human Rights Commission report, Same-sex: Same entitlements led to the federal government amending 84 Commonwealth Acts in 2008 to remove discrimination of same-sex couples, in areas including o Tax o Workers compensation o Superannuation o Employment entitlements o Medicare o Family law o Aged care o Child support o Veterans entitlements Same-sex marriage Marriage Equality Amendment Bill 2009 was introduced by the Greens but defeated in the Senate in February 2010 o Tasmania is the first state to recognise same-sex marriages performed in countries where it is legal

Polygamous marriages When an individual marries more than one person Not legal in Australia However under s 6 of the Family Law Act 1975 (Cth), a polygamous marriage entered into overseas is deemed to be a marriage for the purpose of childrens matters, property settlements and other court proceedings under the Family Law Act. o 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

LEGAL RIGHTS AND OBLIGATIONS OF PARENTS AND CHILDREN


The rights of the child are paramount because they are the most vulnerable members of the family and require the greatest legal protection

Legislation concerning children in NSW

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

Parental Care Rights Derived from International Law United Nations Convention on the Rights of the Child (CROC) was adopted by the UN in 1989 and ratified in Australia in 1990. o Convention declares that persons under 18 years of age must be protected from violence, discrimination, exploitation and neglect Under the Human Rights and Equal Opportunity Act 1986 (Cth), the Australian Human Rights Commission can refer to it when hearing complaints of discrimination.

International instruments may be used by courts in interpreting statutes or developing the common law. However, as with the other human rights treaties to which Australia is a party, no federal legislation has been passed, rather leaving the implementation of CROC obligations up to the discretion of state governments. Elements of CROC that are reflected in state legislation include Article 3 - the childs best interests should be a of paramount consideration in decisions concerning children Article 12 A child has the right to express his/her opinions and be heard in proceedings affecting him/her, in a manner consistent with the procedural rules of the jurisdiction, and the childs views are to be given due weight in accordance with the childs age and maturity. o This is in legislation providing for childrens participation in decision-making Preamble Taking due account of the importance of the traditions and cultural values of each people for the protection and harmonious development of the child o Taking an Indigenous childs culture into account in decision making procedures, Children and Young persons (Care and Protection) Act 1998 (NSW) ss 11-13. 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 childs parents or family members. o As 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 childrens services such as education, medical care or dare care must have regard to the Anti-Discrimination Act 1977 (NSW).

Parental responsibility under the Family Law Act 1975 (Cth) Part VII best interests of the child Best interests as listed in s 60B of the Act, include:

The benefits of a meaningful involvement in their lives by both parents Protection from physical or psychological harm from abuse, neglect or violence Adequate and proper parenting to help the children achieve their full potential.

Section 60B also sets out the principles underlying these objects: Children have the right to know and be cared for by both parents Children have the right to spend time and communicate regularly with their parents, and others significant to their welfare, care and development e.g. grandparents Parents share responsibilities for their childs care and welfare Parents should agree about parenting matters Children have the right to enjoy their culture, including the right to enjoy it with other people who share it.

In August the NSW Ombudsman published KEEP THEM SAFE? a special report to Parliament under section 31 of the OMBUDSMAN ACT 1974 (NSW). It was tabled in Parliament on 6 September 2011, and examines the new approach to child protection arising from the Wood Inquiry into Child Protection. The State Governments Keep them Safe initiative was a direct response to the recommendations that came out of the Wood special inquiry. It is a five-year plan to change the way children and families are supported and protected, with the aim of improving the safety, welfare and well-being of all children and young people in New South Wales. The Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 is presently before the Federal Parliament. It seeks to amend the FAMILY LAW ACT 1975 with the aims of: prioritising the safety of children changing the meaning of family violence and abuse to better capture harmful behaviour strengthening the obligations of lawyers, family dispute resolution practitioners, family consultants and family counsellors to prioritise the safety of children ensuring courts have better access to evidence of family violence and abuse making it easier for state and territory child protection authorities to participate in family law proceedings where appropriate.

The emphasis on responsibilities shared equally by both parents was introduced in large part by the Family Law Reform Act 1995 (Cth) which made significant amendments to the Family Law Act 1975 (Cth) with respect to children. The Family Law Amendment (Shared Parental Responsibility) gave further emphasis to the childs right to meaningful family relationships and care, rather than either parents right to have the child live with him or her Family Law Reform Act 1995 (Cth) introduced parenting plans Written agreements voluntarily agreed and encouraged to be created by to by parents. o Plans can deal with any aspect of a childs care and welfare If the parents cannot agree, they will be issued with a parenting order, the court-imposed decision

The law allows parents to raise their children as they see fit, within general guidelines. Parental responsibilities are not specifically defined in this legislation, but would include Providing adequate access to education Providing access to education Consenting to medical treatment Providing discipline Protecting the child from harm and ensuring that he or she is not exposed to illegal activities Ensuring that others are not harmed by their child

Consequences of parental neglect under state law

Offences regarding parents who fail in their duty to the child are provided in state and territory legislation. Neglect is a criminal offence under both the Children and Young Persons (Care and Protection) Act 1998 (NSW) and the Crimes Act 1900 (NSW) (s 43A) o Defined as the continued failure of a parent to fulfil a childs basic needs for property development, including food, shelter, hygiene, medical and dental care, adequate supervision, emotional security o Carries fines of up to $22 000 and imprisonment of up to 5 years, respectively If suspected child abuse or neglect is reported, Community Services will send a caseworker to talk with the parents and other family members, and may follow up with practical help or counselling. o In some cases, Community Services will apply to the Childrens Court 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 cariying and controlling the child An alternative to foster care is for children to live in group homes under adult supervision i.e. youth workers and child counsellors o Parents may be held liable in tort for any damage or injury that their child causes and can be forced to pay the injured party compensation Children and Young Persons (Care and Protection) Act 1998 (NSW) addresses family problems in terms of the childs needs and care Children (Protection and Parental Responsibility) Act 1997 (NSW) and the Children (Criminal Proceedings) Act 1987 (NSW) deal with the prevention of juvenile crime and the criminal process appropriate to persons under 18.

Education Right to education is prescribed in the Education Act 1900 (NSW) and found in the CROC. Parents cannot refuse their child an education, but they do have the right to choose where their child will be educated. o Provisions for parents to home school or by distance education according to curricula approved by the state Board of Studies Failure to provide access to an education is a criminal offence In NSW, compulsory schooling from the age of 6 until the minimum school leaving age of 17 (amendments in 2009) or the completion of Tear 10 o Amendments also require every young person who has completed Year 10 to be in some form of education, training or employment until they reach the age of 17

Discipline Right to discipline child by using 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 under the Crimes Act 1900 (NSW) s 61AA) Defence of lawful correction in criminal proceedings against a parent or other person for assault will not be available if the physical force was not reasonable o reasonable is subjective

Medical Treatment Parents are responsible for ensuring that appropriate medical and dental care is available for their minor children Consent must be given before any doctor can perform any treatment o Understanding what is involved and agreement of the procedure and the risks For children under 14, the consent of a parent (or guardian) is required, and parents have the right to authorise any such treatment considered in the childs best interest For those between 14 and 16, either of the childs or parents consent is required Medical or dental treatment of young persons aged 16-17 requires the consent of the young person

These requirements are contained in the Minors (Property and Contracts Act 1970 (NSW) s 49 If the parents refuse medical or dental treatment (e.g. on religious grounds), a court can authorise the treatment

If the child is over 16 and is intellectually disabled, such that he or she does not understand the problem and the treatment, then the Guardianship Act 1987 (NSW) specifies a person responsible such as a parent, can give consent. Autonomy of children Law regarding childrens autonomy and rights are progressive with the childs age (i.e. maturity) 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 between 16 and 18 Area of responsibility Alcohol and cigarettes Arrest Civil law Contracts Criminal responsibility Driving Employment Explanation Illegal for a child under 18 to purchase, possess and/or consume alcohol and cigarettes (in most circumstances) Police can only question a child in the presence of an adult Children can be sued for any damage or injury they caused; in some circumstances, a parent may be held responsible A child can only enter into a contract if an adult acts as guarantor and must be for the benefit of the child See Crime Learners permit at 16, probationary license at 17 No minimum age for starting work in NSW. However, those under 16 who want to leave school and start work full-time work must seek permission from the DET. Otherwise, anyone who has completed Year 10 but is under 17 must enrol in a training education course or undertake an apprenticeship At any age if they understand the nature and consequences of the oath or affirmation No minimum age, but 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 See marriage 16 and consensual

Evidence Leaving home Marriage Sexual intercourse Ex-nuptial children

In the past ex-nuptial children had neither legal status nor rights. Legitimacy provided a child with certain rights, such as inheritance and maintenance, and existed automatically for a child if the child was: Born during marriage (a nuptial child) Ex-nuptial but the parents of the child later married Adopted

Children (Equality of Status) Act 1976 (NSW), later replaced by the Status of Children Act 1996 (NSW) gave ex-nuptial children the same rights as those born to parents who are married. 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 childs parentage, and evidence to be provided to a court to disprove the presumption. Parentage can be established through DNA or voluntary recognition of the child as his or hers. If a person making a will wants to exclude any of his or her children, it must be explicitly stated. 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.

ADOPTION
Adoption is the process of transferring parental rights and responsibilities from the biological parents to the adoptive parents. Aim of adoption law is to ensure that the best and most appropriate parents are found for the child. Adoption re-creates the legal relationship between the child and his or her parents

Legal requirements and process In NSW, adoption is governed by the Adoption Act 2000 (NSW) If the birth parents are married in a de facto relationship, both parents must give consent to give up the child

In the case of a single mother, only she needs to give consent: the father must have been notified to the adoption and given 14 days to respond Children aged over 12 must consent to their own adoption The birth mother cannot consent to adoption within three days of the childs birth Once the birth parent or parents have given consent, there is a 30-day cooling off period in which they can change their minds. If the childs parents cannot be found or are incapable of giving informed consent, the court can give consent Relinquishing parents, i.e. the parents who nominate their child for adoption, can nominate a relative to adopt their child, but all adoption criteria must be met and the adoption can only proceed if the court permits it. Parents who give up their child for adoption can nominate the desired religious upbringing for the child.

Guidelines to who can adopt Married couples and those in a long-term, stable de facto heterosexual relationship of more than three years Individuals who are not in a relationship can apply as a single applicants (no distinction between heterosexual and homosexual applicants) Between the ages of 21 and 51 The prospective male parent must be at least 18 years older than the child and the female parent must be at least 16 years older than the child The applicant must be a person of good repute, be a fit and proper parent, and be able to fulfil the responsibilities of a good and caring parent Where applicable, the childs culture, language and religion will be taken into account when determining an adoption order, as well as the principle that the childs given name, identity, language and cultural and religious ties should, as far as possible, be preserved

Prospective parents are put on a waiting list and decision as to who will adopt is based on what is in the best interests of the child and whether the childs overall welfare will improve by being adopted by the applicant(s) Technicalities Once birth parents agree to the adoption, court will make an adoption order following official notification from the relevant agency or department. The Registrar of Births, Deaths and Marriages will issue a new birth certificate in the childs adoptive name. o Details of adoptive parents Birth parents no longer have any rights or obligations concerning the child Adoptive childs rights of inheritance to the estate of his/her biological parents are removed (unless the child is mentioned specifically in a will) and the adopted child will have the automatic right to inherit from the estate of his/her adoptive parents

Overseas adoptions Inter-country adoptions are governed by the Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption, and by bilateral agreements between Australia and countries that have not ratified the convention In NSW, prospective parents must apply through Community Services where they will be allocated a child from the other country, and if the parents accept the offer they may lodge and adoption visa application, which is then forwarded to the appropriate overseas welfare agency. The child is subject to standard migration medical checks and once health requirements are satisfied, the adoption will either be finalised overseas in their country or the overseas welfare agency will authorise the child to leave so that the adoption can take place in Australia. 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 Department of Immigration and Citizenship can refuse to grant an entry visa for the child and the child must meet migration standards. Access to information Reunion and Information Register is maintained by Community Services in NSW and holds information of both parties if it was provided. Community Services, however, does not help parties to search for each other.

The Adoption Act 2000 (NSW) gives relinquishing parents and adopted children the right to request personal identifying information from Community Services, which they can then use to contact one another and other family members Adoptive children over 18 may apply to Community Services for a supply authority which contains identifying information of the birth parents. This document then allows them to obtain further information from adoption records o Parents who have given up their child for adoption can also ask for a supply authority allowing them to obtain a copy of their childs amended birth certificate Parents and children who do not want to be contacted by the other can lodge a contact veto Alternatively, the contact details of adopted children and relinquishing parents can be placed on the Advance Notice Register, which notifies them if any application for information is made Even though the relinquishing parents or the adopted child may not want to be contacted, their information will be released once the party seeking information has signed an undertaking not to make contact. A party who breaches a contact veto may be subject to a fine and or/imprisonment

RESPONSES TO PROBLEMS IN FAMILY RELATIONSHIPS


Divorce Divorce is the legal dissolution of a marriage. Under s 48 of the Family Law Act 1975 (Cth), the only grounds for divorce is the irretrievable breakdown of the marriage, i.e. little chance that the parties to a marriage wish to remain in that relationship. Prior to 1974, married couples intending to divorce had to apply under the Matrimonial Causes Act 1959 (Cth) on the ground of fault, i.e. one or both spouses admit to acting ina way that undermined their marriage. The grounds of divorce under the act included adultery, cruelty (family violence), insanity and desertion. The Family Law Act removed all other grounds for divorce and established the Family Court, which hears all matters related to marriage and divorce. To prove it has irretrievably broken down, the parties must have been living separately and apart for a period of 12 months, from when the party tells the other that they intend to leave the marriage. The parties can be held to be living separately and apart even if they are still sharing the same house. The Act allows for a one month period of reconciliation up to three months during the period of separation, under s 50 (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 has been married for less than two years, they must attend family counselling before they can divorce. 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 children have been solved. Once this has occurred, the court will order decree nisi, that is, a Family Court order that is made to signal the intended termination of a marriage A decree nisi becomes a decree absolute about one month later, where the marriage is legally dissolved o All matters relating to the care and support of the children must be made before the court will grant a divorce Parental responsibility, rather than parental rights is emphasised by the law. The presumption is that is in the best interests of the child for both parents to share the long-term care of their child equally o Parental responsibility ceases with a court order, the adoption of the child, the childs 18 th birthday, or the childs marriage o Parents encouraged to voluntarily agree to their own arrangements in relation to the care and responsibility of their children, rather than asking the court to do so Part VII of the Family Law Act 1975 (Cth) states any disputes concerning children must be decided in the best interests of the child o Right to maintain a meaningful relationship with both parents, and o Need to protect the child from harm o Additional considerations are set out in s 60CC Factors which affect the ability of parents to share the parenting of the child equally, such as

The views of the child The nature of the childs relationship with each parent, and Where the parent lives Presumption that equal shared parental responsibility is in the best interests of the child will not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child, or of any other child, or in family violence (s 61DA) Amendments to Part VII of the Family Law Act 1975 occurred in 2006 via the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) introduced shared parental responsibility and other provisions. o Criticisms that it does not adequately deal with family violence, as children who have been victims of parental abuse may be further abused o Order of costs against anyone making false allegations, suggest that allegations of violence are regarded with suspicion o Childs views are not given enough weight o No distinction between shared parental responsibility and share care some parents believe shared parental responsibility means 50-50 split in the custody of the children Separating parents are required to attend compulsory family dispute resolution and enter into a parenting plan o Parenting plans must consider the practicality of children having equal time with both parents, contact with other family members, and the day-to-day care of the child, and ensure that the child maintain their cultural link o If parents cannot agree, the court will make a parenting order under Section 64B of the Family Law Act that may deal with any matters relating to the care and welfare of a child, such as the parent with whom the child is to live, the time to be spent with the other parent, and maintenance Property Family Law Act 1975 (Cth) uses a broad definition for property. It 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 o If the division of property is fair and equitable, the court will then make a legally binding order. If in dispute with property allocation, the couple can choose to have the matter heard in the Family Court. o When determining property allocation under ss 75 and 79 of the Family Law Act (ss 90SF3 and 90SM4 for de facto spouses), the court will consider The financial and non-financial contribution to the property by both parties (including contributions made as home maker and carer for children) The effect of the subsequent property allocation order on the earning capacity of either party The age of both parties and the income, property and financial resources of both parties Whether each or either party has the care and control of a child of the marriage who is under 18 years of age Other contributions, such as any inheritance and the acquisition, conservation and improvement of any assets (including maintenance of the family home or working for the family business) o The court can order a mediated conference to determine a fair and equitable allocation of property and an agreeable settlement If unsuccessful, the Family Court can make an order about the allocation of matrimonial property, i.e. all property purchased or acquired during the marriage. Superannuation is included as a financial resource and the court takes into account the financial and non-financial contributions made by both parties to superannuation entitlements Since 2002, separating couples have been able to claim super that each spouse has accumulated during the marriage as part of the matrimonial property Financial agreements Financial agreements protect a persons property rights. It can include guidelines for the division of property, debt and other financial concerns in the event that the relationship ends. o Such agreements tend to diminish the combative nature of separation by removing two of the main sources of hostility between the parties: money and property o Pre-nuptial agreements is now known as financial agreements made prior to marriage o Financial agreements can be made prior, during, or at the end of the marriage o 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. o Can also include provisions as to whether, how and by whom spousal maintenance is to be paid o Amendments to the Family Law Act in 2000 recognises agreements as legally binding

A party can apply to the Family Court to have the agreement set aside, but this can be a costly and time-consuming process De facto couples can also have binding financial agreements for property settlements in the event that they separate. They can be made before, during or after the breakdown of a relationship

C and M [2006] FamCA 212 Division of property where both parties have debts, earning capacity and one with significant asset but short period of marriage The parties (both 29) married in Oct 2002 after a lengthy engagement but separated after 2 months During the engagement, the couple bought land on which they intended to build their home The land was purchased in the husbands name and he was responsible for paying the mortgage The couple had been using the wifes credit card and personal savings for day-to-day expenses and she was now in debt When the couple separated, the husband transferred the property to himself and his parents, preventing his wife from attempting to claim property During the period in 2002-2006 the husband continued to pay the mortgage and his parents provided him financial support to build a home on the land The Court in the first instance found that both parties have contributed equally to one anothers debt. The husband was ordered to pay half his wifes debt, but was awarded 92.5% of assets. No adjustment had been made under s 75(2) of the Family Law Act 1975 (Cth)for the husbands 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 wifes share of the asset land and house, should reflect her financial contributions to the mortgage repayments (assessed at 20%) However, taking into account the short length of the marriage (and hence financial contribution) and the lack of any restrictions on the wifes earning capacity, the court held that there would be no adjustment for the disparity of earning capacity

LEGAL RESPONSE TO DOMESTIC VIOLENCE


Assault occurring in the home is not a private matter, but one that concerns the community as a whole (an offence punishable by the state) A domestic violence offence is defined in s 11 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), effective in 2008 and replaced Part 15A of the Crimes Act 1900 (NSW) as a personal violence offence committed by a person against another person with whom the person who commits the offence has or has had a domestic relationship. Domestic relationships can include a marriage, de facto relationship or other close personal relationship (parent-child)

There are many reasons why families experience interpersonal problems: Psychological problems o Lack of self-esteem and poor self-image o Inability to express anger or frustration appropriately o Strong desire to control and dominate others o Cycle of violence: an abused child may become an abusing adult o Mental illness, including depression o Lack of positive male and female roles

Social problems o o o o o Drug dependency, including alcoholism and addiction to prescribed drugs or illegal substances Disputes over homework, other domestic duties Disputes over child discipline issues Lack of quality time spent with family members Cultural or geographic isolation

Financial problems

Lack of money (due to unemployment, low-paid work or part-time work), making it difficult to pay bills and mortgage or rent Disputes over how to spend a limited supply of money Expectation that the children will need to find employment to contribute to the familys finances Inadequate amount of money for child care

Violence between spouses Can take the form of physical, verbal, emotional, financial, psychological and/or sexual abuse, social isolation, or actual or threatened violence or harassment. Males tend to commit, while victims tend to be women and children o Nonetheless, men are also victims of domestic violence, and woman can also commit ABS o Number of female victims has risen from 236 in 1995 to 6607 per 100 000 in 2007 o Number of male victims has risen from 46 in 1995 to 266 per 100 000 in 2007 o 800 women charged with domestic violence in 1999; 2336 women in 2007 ABS Australian Social Trends, 2007 o Women are at greater risk of violence at the hands of someone they know: 82% o Women are more likely to experience violence in the context of the home (64%) than by a stranger or in a public place, and one-third of physical assaults were committed by the victims spouse or partner. Of all women assaulted, nearly have will experience repeated attacks Victims can apply to the Local Court for an ADVO: Apprehended Domestic Violence Order or alternatively an injunction from the Family Court for personal protection (more complex and less easily enforced by local police) o The issue of an ADVO does not mean the person is charged with a criminal offence, only when the order is breached If there is sufficient evidence available to support a conviction for this offence and any associated offence, police will arrest and charge the person with a breach of the ADVO, in addition to any other offence committed at that time Domestic violence offenders in breach of an ADVO may have their bail application denied under Section 9A of the Bail Act 1978 (NSW) which excludes domestic violence offenders Amended in 1993 in response to the murder of a woman by her estranged husband, who had been released on bail after he had been arrested for breaching and ADVO.

Violence involving children Violence against children o Article 19 of the UN Convention on the Rights of the Child (CROC) declares that no child should be subjected to violence and it is the responsibility of the state to protect them from all forms of physical or mental violence, 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 o The Children and Young Persons (Care and Protection) Act 1998 (NSW) covers abuse as well as neglect Section s 227 prohibits intentional acts resulting or likely to result in physical injury or sexual abuse, emotional or psychological harm, or harm to health or physical development o Children can be included on an adults ADVO application, or a separate application can be made for children Police officers are the only people who can apply for an ADVO for children under 16 years of age; those over 16 can apply on their own A court may grant an ADVO for protection of a child even if the application was not made by a police officer Applicant for an ADVO must inform the court if there is a parenting order in place that allows the offender access to the children, and their safety as at risk. o In NSW, certain professionals are required by law to report to Community Services if they suspect the child is at risk of harm. Professionals include teachers, doctors, school counsellors, and anyone who works with children. Community Services is legally required to investigate the case. Possible outcomes after notification include: If the notification concerns a threat of abuse or actual abuse, than an ADVO is made The police can charge the accused The family court can restrict contact by the offender with any children the court feels are at risk Community Services can apply for a variety of care and protection orders, including the removal of children from a violent environment

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 Violence by Children o UN Convention on the Rights of the Child all decisions relating to children should be in the best interests of the child Age of criminal liability Children (Criminal Proceedings) Act 1987 (NSW) s 5 states children under the age of 10 cannot be guilty of an offence Children between 10 and 14 are presumed to be incapable of committing a crime; prosecution must rebut the presumption by proving that the child did the act alleged and that he or she know that it was wrong Sentencing If a charge is laid the child or young person will usually face proceedings in the Childrens Court or under the Young Offenders Act 1997 (NSW) which provides court alternatives including the use of warnings and cautions and youth conferencing. o Court is the last resort, and the emphasis is on preventing the child from coming into contact with the justice system, employing a welfare approach through counselling and education, and to encourage young offenders to take responsibility for their actions, rather than to punish them. o Long term goal of preventing adult offending Effectiveness of the law in protecting victims of domestic violence Changing social attitude due to recent education programs have raised community awareness of domestic violence as an important social issue, and the understanding that domestic violence is no longer a private matter, no is it acceptable. Changes in the law 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 respect a societal responsibility ADVOs have been important in reducing the incidence of domestic violence Quick, inexpensive and accessible form of protection Criminal offence if breached

However, argued that the orders do little to deter individuals who are persistent offenders only effective if they are policed

Battered wife syndrome has extended to included battered partners in de facto relationships, including homosexual relationships Automatic presumption of bail removed after several women had been stalked and killed by their respective partners who had been released on bail Firearms Act 1996 (NSW) prohibits the issue of, or revoking, a gun license or permit if the individual has been subject to an ADVO Some claims that ADVOs are too easy to obtain and that women have falsely claimed to be victims of domestic violence when contesting parenting orders EBONY CASE

METHODS OF RESOLVING DISPUTES


Family dispute resolution Defined by the Family Law Act 1975 s 10F as a non-judicial process in which an independent practitioner helps people affected by a separation or divorce or resolve some of their disputes which each either

s 601 requires couples who have a dispute about matters than may be dealt with by a court order under Part VII of the Act (involving children) to make a genuine effort to resolve their dispute, before applying for an order o if there is a history of family violence then family dispute resolution may not be appropriate

Different forms of dispute resolution are provided by Family Relationship Centres; government-funded community centres that assist couples and families at all stages of relationships but private providers also exist. The Family Court and the Federal Magistrates Court (the Family Law Courts) can refer disputing parties to an extensive range of counselling services. Types of dispute resolution services include: Reconciliation counselling for separating couples who are attempting to reconcile Post-separation parenting programs for couples whose issues adversely affect their carrying out of parenting responsibilities. Mediation for separating couples who have made an application to the Family Court to help them identify issues, formulate options, consider alternatives and reach agreement

Involvement = compliance Improves communication skills which may minimise future conflicts Less time and money cost than court proceedings, and less stressful for all parties involved Individual counselling is available to any child whose parents are separating to help ensure the needs and welfare of the child are identified and met by any parenting order issued by the Family court. All matters relating to the children of the relationship must be finalised before the divorce is granted. Adjudication The determination of a matter by court judgement or ruling The Federal Magistrates Court and Family Court can make decisions regarding o Division of property o Maintenance, o Any decision that may affect children of the relationship Courts are final option, other counselling and dispute resolution services must be attempted first Once the court has made its decision, it will impose a legally binding order. Breaches may result in further court action, financial penalties or other criminal sanctions being imposed

THE ROLE OF THE COURTS IN FAMILY LAW MATTERS


The Family Court focuses more on reconciliation and encouraging compliance rather than on arbitration and the use of sanctions or coercion Family Court of Australia and Federal Magistrates Court A specialist court established under the Family Law Act 1975 (Cth) that hears matters relating to separation, divorce and other disputes related to marriage. Its jurisdiction is also limited by this Act. In late 1999 the Federal Magistrates Court was established to relieve some of the cost load of the Federal Court and the Family Court, and to reduce the cost and time required to deal with some federal matters o Similar jurisdiction to the Family Court in it can hear matters relating to divorce, the division of property and children o It cannot hear any matters relating to adoption, applications concerning nullity (of marriage) or validity of a marriage o Majority of divorce applications heard More complex issues involving multiple parents are heard in the Family Court, such as o The intention of a parent to move interstate or to emigrate o Serious allegations of family violence or child abuse (Magellan case) All other issues such as adoption, inheritance and wills must go to courts within the state court hierarchy Court has the power to make a particular parenting order, where the childs best interests are the paramount consideration

Only in 1986 when all the states (except WA) referred their power to make law regarding certain matters relating to children to the Commonwealth were ex-nuptial children covered in federal provisions. Any matter relating to the care and maintenance of a child will heard in the Family Court Both courts have the power to determine matters relating to the division of property and maintenance for both married and de facto couples

The Childrens Court See Young Offenders

THE ROLE OF NON-GOVERNMENT ORGANISATIONS


Number of NGOs provide support for families and individuals who may be struggling with personal relationships and other family issues Many of the notable organisations are operated by various religious groups such as the Salvation Army, or churches such as Anglicare o NGOs not affiliated with religious groups and provide similar services include Relationships Australia, and the Smith Family Services include mentoring, support for new parents, counselling and relationship advice, 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. Limited by funds, dependent on donations, government funding and volunteers

THE ROLE OF THE MEDIA


Medium to provide information about rights and obligations under family law, as well as additional support services Contact information publicised through the internet, brochures and forms, telephone and email Restricting how the media publish court proceedings to protect privacy of individuals

CONTEMPORARY ISSUES CONCERNING FAMILY LAW ISSUE 1: RECOGNITION OF SAME-SEX MARRIAGES


In Australia, the Commonwealth does not recognise same-sex marriages, reaffirmed with the Marriage Amendment Act in 2004 as it added the union of a man and woman to s 5(1) of the Marriage Act. In 2001, the Netherlands became the first country to recognise same-sex relationships, followed by Belgium, Spain and Canada Desire for legal recognition does not necessarily mean they want the right to be married, but the removal of institutionalised discrimination and the provision of adequate legal protections

Legal and non-legal responses Main issue is to protect the rights and mutual obligations that are created when two individuals form a relationship. There are numerous benefits in protecting any mutually supportive relationship including economic benefits of a two-income family. Legal Responses o Between 2000 and 2009, various states and territories introduced a number of law reforms recognising same-sex relationships in specific areas. o In 2008, the Australian Human Rights Commission Report Same-Sex: Same Entitlements, the Australian government introduced reforms with the aim of removing discrimination and providing same-sex couples the same entitlements as those presently enjoyed by heterosexual de facto couples. Same-Sex Relationships (Equal Treatment in Commonwealth Laws General Reform) Act removes areas of discrimination by amending and/or extending definitions such as de facto partner, child, parent, couple and family to include same-sex relationships E.g. 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.

Other amended areas include tax, social security, family law, superannuation, workers compensation and child support. Same-sex couples will be allowed 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. o Major change in state laws concerns the recognition of a same-sex partner as the parent of their partners child. Biological parents are regarded as having joint responsibility 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 ordered so Children conceived through donor insemination or assisted reproduction had only the mothers listed on their birth certificates. The Miscellaneous Acts Amendment (Same-Sex Relationships) Act 2008 (NSW) granted equal parenting rights for the female partners of mothers, and both are listed as mothers on the childs birth certificate. Children born into same-sex relationships have equal rights to inheritance from both parents and protects the rights of both mothers in matters involving the children if the relationship were to end. 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 definition of de facto is extended to include two people who are not married or related by blood who live together on a genuine basis. o The Act does not distinguish between a relationship between two people or of the same or opposite sex Non-legal responses Support o The Australian Human Rights Commission has made recommendations to the government regarding the removal of institutionalised discrimination and legislation which does not comply with UN human rights treaties. Same-Sex: Same Entitlements recommended amending federal laws that discriminated against samesex couples and their children in the area of financial and work-related entitlements and benefits o Lobby groups for the legal rights and social equality of gay and lesbian couples Australian Marriage Equality Argues for that marriage should not exclude these couples. Exclusion suggests that their relationships are recognised are of a lesser standard or character and that the people are second-class citizens Same-sex couples are at most only allowed to form civil unions Gay and Lesbian Rights Lobby Advocacy, lobbying government and the media to address discrimination, hosting consultations, educating the gay and lesbian community on their rights and providing referals to legal and welfare services. Opposition o Some sections of the media, such as in 2003 two radio program hosts made comments capable of inciting severe ridicule of homosexual men and therefore were held to have breached the vilification provisions of the Anti-Discrimination Act 1977 (NSW) In 2008, the hosts appeal was settled, with a public apology on air and a written apology in The Sydney Morning Herald o Most lobby groups that oppose equal rights for homosexual couples have a religious affiliation, such as the Australian Christian Lobby. Under the current discrimination 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 the individuals Responsiveness of the legal system o Courts have to be willing to act o A significant number of politicians must support legislative reform o Law reform bodies have the task of investigating and recommending changes

The Anti-Discrimination Board of NSW is part of the NSW Department of Justice and Attorney General. It administers the anti-discrimination laws of NSW. Handles complaints of discrimination Also informs the public of how individuals can prevent and deal with discrimination, through consultations, education programs, seminars, talks, community functions and publications Advises the government and makes recommendations It has made a number of submissions to both the state and federal governments concerning changes to current legislation that are necessary in order to provide same-sex couples the same legal rights and protections that are now enjoyed by married couples. o Rudd introduced legislative changes to de facto entitlements in 2008, but refused to amend the Marriage Act to permit same sex marriages. I fully accept the integrity of same-sex relationships but in terms of the policy, its a matter to which we have been committed for some time, High Court Justice Michael Kirby, Conference on Legal Recognition of Same-Sex Partnerships, 1999. As a people committed to equal justice for all under the law, I have confidence that the Australian legal system, and those who make laws in Australia, will, in due course, eradicate unfair discrimination 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.

ISSUE 2: THE CHANGING NATURE OF PARENTAL RESPONSIBILITY


Legal and non-legal responses 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. Parents have joint responsibility for the children (Family Law Act 1975 (Cth) ss61B and 61C). This applies equally to a child born within marriage (nuptial) and to a child born outside of marriage (ex-nuptial). This responsibility is not altered if the parents separate, marry or remarry, less 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 is also focused on ensuring that parents meet their responsibilities towards their children. There is perception that the idea 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. Financial or geographical constraints Social issues such as a parents alcohol abuse or poor health

In more than 60% 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% of his or her time with a male parent was concerned about abuse or family violence and entrenched conflict. For women it was concerns regarding their mental health, and issues surrounding transport or finances, as well as abuse. Shared parental responsibility (or shared responsibility for major decision making) is not the same as shared care (equal time with both parents). Family law reform reforms in 2006 aimed to encourage parents to share both responsibility and care more equally. However, some parents mistakenly believe they are entitled to 50-50 shared care of their children. Another is that the legislations emphasis on a childs right to a relationship with both parents has been given more weight than is warranted. Legal responses Reforms introduced by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) included two types of considerations to be taken into account by a court in respect to the best interests of the child (Family Law Act 1975 (Cth) s 60CC). The court will now take into account primary and additional considerations. o Primary considerations include The benefit of the child having a positive and meaningful relationship with both parents The need to protect the child from abuse and family violence o Additional considerations include The childs 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. o Where there are factors such as the risk of violence, or shared responsibility that is not in the childs best interests, whether the responsibility is equally shared is not an issue. When this is the case, the court will not have to consider whether the childs time is equally shared by the parents. Another change involved the notion of substantial 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 s65DAA). Some have argued that this provision has been sufficient to address parents misconception 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 childs 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 Relationships 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 helps parents to develop better parenting skills, but may also assist in recognising gender issues that affect relationships with children in negative ways

Resolving problematic issues about shared parenting and shared responsibility requires changes in societal attitudes, and these interact with legislative enactments and amendments. Successful shared care was occurring before the 2006 amendments, where the parent involved were willing to cooperate in the effort to achieve the best circumstances for their children. Non-legal mechanisms such as womens 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 furthering this aim. DadsLink is one example of a network that focuses on fathers and their relationships with their children, and is part of the YMCAs 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 behaviour, and sometimes they reflect these social changes. 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. 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 the mothers 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 have arisen since the 2006 reforms to the Family Law Act suggests that courts and society to distinguish between families in which shared care is desirable and those in which there are concerns that override this aim. The most obvious legal response would be to change the law to distinguish between equal responsibility and equal time. Conclusion The emphasis on childrens 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 the parents or caregivers are secondary. It is important to protect the childs right to maintain a quality relationship with both parents. But the law also needs to ensure that parental responsibility entails more than the child merely spending half of his or her time with each parent.

ISSUE 3: SURROGACY AND BIRTH TECHNOLOGIES


Birth technologies Surrogacy

Assisted-Reproduction Technologies (ART) such as In-vitro fertilisation (IVF) and surrogacy has raised many legal issues, including paternity, rights of inheritance and care and control over the children.

It allows infertile heterosexual couples, homosexual couples or single people to fulfil their dreams of having a family ART has also created several moral and ethical issues which have sparked legal debate: the destruction of redundant embryos, designer babies, rent-a-womb tourism in developing countries such as India and Thailand. The question of ART technologies for the social infertile (experienced by single or homosexual couples) also arises. The main types of ART include: In-vitro Fertilisation, (IVF), (Latin, In-glass fertilisation), where fertilisation between the parents (or donors) sperm and ovum occurs in a test tube or sterile dish to form an embryo and is then implanted into a womans uterus for pregnancy. Artificial Insemination, where donated sperm are artificially introduced into the vagina or uterus

Surrogacy, an agreement between a commissioning couple and a woman, that is, the surrogate mother to bear a child for the commissioning couple. The child is then adopted by the couple. Surrogacy is distinguished between gestational and traditional surrogacy Traditional surrogates are biologically related to the child: the male partner impregnates the surrogate mother by either natural or artificial insemination Gestational surrogates are not biologically related to the child: the embryo of the commissioning couple is implanted into the uterus of the surrogate mother

In legal terms, surrogacy is separated into commercial (surrogate is compensated for her services) or altruistic (No financial gain). In Australia, commercial surrogacy is illegal. There are many reasons why people choose to use new birth technologies to assist them to conceive. The main factor is infertility. Medical infertility refers to where a partner is infertile due to defects to their reproductive system (i.e., male partner cannot produce sperm or natural conception may risk passing on genetic diseases) or social infertility where lifestyle factors prevent them from conceiving naturally (i.e., single women, lesbian couples or career couples.) With surrogacy, there is a belief that perfectly fertile couples may prefer to use surrogacy in starting a family rather than naturally to minimise the disturbance on their lifestyle or career, (i.e., rumoured Sarah Jessica Parker and her partner choosing surrogacy because of her work commitments.) The advancement of ART has particularly challenged the long-established moral and legal conceptions of the family and parent. Under the Status of Children Act 1996 (NSW), maternal rights are given to the woman who gave birth to the child. Paternal rights are given to the man who acknowledges and accepts the responsibility of the child, or proven in court, regardless of whether the child is his biological progeny. The development of new birth technologies mean that it is no longer possible to presume the identity of the biological parents. Society has long attempted to ensure the legal father is also the biological father. For example, in the case of Re: Evelyn, two couples, the Qs, from Queensland and the Ss, from South Australia agree to an altruistic surrogacy procedure in South Australia. Mrs Q is infertile and Mrs S agreed to be a traditional surrogate using Mr Qs sperm. The baby, Evelyn was born, with Mrs S was recorded as the mother in the State of South Australia and Mr Q as the father. The Qs return to their home state, but Mrs S struggled with the repercussions of relinquishing the child and fought for custody. The judge found the custody of Evelyn in favour of Mrs S (biological mother) and her partner. Furthermore, in the case of B v J (1996), the partner of the childs mother born within the relationship refused to pay maintenance, claiming the child was not his, but of the sperm donor, whose name appeared on the childs birth certificate. The court rejected this argument as a sperm donor is automatically presumed not to have paternity of the child, even though his name appears on the birth certificate. The legal issue of property is also an issue. The recent case of Re: The Estate of the Late Mark Edwards, where the wife, Jocelyn Edwards, obtained consent from the SCNSW to extract sperm samples hours after he died in a workplace accident and stored, was given property rights to the samples. However under the Assisted Reproductive Act 2008 (NSW), written consent from Mr Edwards is necessary, meaning Mrs Edwards would need to travel interstate or overseas for the procedure. Would this child, conceived post-humorously, be entitled to inheritance?

Legal debate also arises in cases of destroying donor sperm. Nadya Suleman, a.k.a Octomum, of California had six remaining embryos after years of IVF treatment (and six previous childbirths). The six embryos were implanted simultaneously and led to octuplets she was now the single mother of 14 children. The doctor in charge of the procedure has been charged with negligence. There is also public complaint of Suleman being a burden to tax-payers being unemployed and unmarried. Other issues have also arisen, such as the right of the child to know biological parents: sperm donors/traditional surrogate mothers and who is responsible for any damage to the child as a result of ART? The Commonwealth Government of Australia does not have the exclusive power to legislate for reproductive technology practices. Therefore, each state and territory is responsible for implementing its own separate legislation. In New South Wales, there is no specific, comprehensive legislation regulating ART. A number of laws have been implemented to cover the development of new birth technologies. The Human Tissue Act 1983 (NSW) encompasses some aspects of reproductive technology (Regulates the supply, collection and use of donor semen). The Artificial Conception Act 1984 (NSW) to address artificial conception issues any man who produced semen used for the artificial insemination... shall, for all purposes, be presumed not to have caused the pregnancy and not to be the father of any child born as a result of the pregnancy. Sperm donors had no legal rights over, nor responsibility, of the child. The Act was replaced by the Status of Children Act 1996 (NSW) The Status of Children Act 1996 (NSW) provides the presumption of parentage i.e. from the many possible IVF outcomes, who is the legal mother or father. The Assisted Reproductive Technology Act 2007 (NSW) prevents commercialisation of human reproduction and protects the child born, the donor, and woman of the ART procedure The Surrogacy Act 2010 (NSW) recognises certain surrogacy arrangements, prohibits commercial surrogacy arrangements and provides for the status of children of surrogacy arrangements, and to make related amendments to other Acts. Cloning of human embryos is prohibited Prohibition under the Human Cloning Act 2002 (Cth) Some provisions of the Family Law Act 1975 (Cth) regard the presumption of parentage in surrogacy procedures and the Adoption Act 2000 (NSW) indirectly cover the adoption of surrogate children.

Many of these laws are a result of the New South Wales Law Reform Commission reports into ART, such as New South Wales Law Reform Commission, Artificial Conception In Vitro Fertilisation LRC 58 (1988) and the release of the NSW Department of Health, draft of the Assisted Reproductive Technology Bill 2003 (NSW). There remains a moral and ethical debate if the use of ART considers what is in the best interests of the child as paramount or the desire of adults. The main concern is consistency between State legislation and the verdicts of cases to achieve fairness, equality and hence justice.

SPERM DONOR LOSES BIRTH CERTIFICATE FIGHT


"I don't even know if I can call her my daughter, like father's day is in two weeks time. Am I now her father? What am I? "As far as I can see I'm nothing. I'm just a donor who donated sperm to make a child, not even my daughter. I can't even call her my daughter now. She's not my daughter as far as the law's concerned. "I have no legal rights whatsoever. The judge has totally ignored the rights of the child. The child does have a right to know their identity. The judge totally ignored that, so it's just a very bad day for fathers."

Legal and non-legal responses Legal responses Non-legal responses

Responsiveness of the legal system

ISSUE 4: CARE AND PROTECTION OF CHILDREN


Issues of family violence, child abuse and child neglect. The Children and Young Persons (Care and Protection) Act 1998 (NSW) is safeguarding 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 farm from family violence or abuse. The Family Law Act 1975 (Cth) was amended in 2006 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, requires the court to consider the childs best interests rather than parental interests. But the amendments have been criticised on the basis that there is 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 childs or young persons safety. In the following year, the number of reports increased by 19% to 286,002.

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) aims 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 childs contact with the offending parent is restricted or that the contact takes place within a controlled environment, such as with a social worker present. o 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 physical or sexual abuse, neglect or other criminal 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 time include Community Service 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 If the child is in immediate danger. If the 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 administrative work for a case worker. This reduces the call load on Helpline and allows caseworkers to focus on assessment. During 2008 Community Services Helpline received approx. 300 000 calls.

Non-legal responses Churches and organisations such as the salvation army o Traditionally provided extensive support and educational services to children in need. Child care centres

o o

o o

Counselling services (for example addiction and bereavement), and Emergency housing and youth support programs These groups have provided necessary help and support to children and families in crisis However, some groups have been heavily criticised for their lack of action in dealing with accusations of child abuse made against their own members Clergy members of various churches have been accused and found guilty of serious misconduct and child abuse. Some church organisations have been heavily criticised for their lack of support for victims of abuse at the hands of the clergy and some churches have been accused of protecting known child sex offenders within their ranks. The Anglican Church has established a Professional Standards Unit investigates complaints involving clergy and ancillary staff. In 2002 the Anglican Church made a staff and reaffirmed the churchs condemnation of such behaviours. In 1996, the Catholic Church established 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 been in contact with children and young people have established internal procedures for investigating abuse claims. 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: Child Abuse Prevention Service (CAPS) aims to alleviate child abuse by educating the community about child abuse issues and providing counselling and on-going support for victims and perpetrators (www.childabuseprevention.com.au) Child Protection and Family Crisis Service provides 24-hour telephone counselling The Benevolent Society (www.bensoc.org.au) offers programs supporting families to overcome 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 Parenting NSW a state government initiative which aims to make parenting easier by helping parents become better parents. 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 Childrens Commissioner was established to monitor state programs to eradicate child abuse and strengthen existing child protection. The review also proposed that a national protection should be established. The legal system has been accused of acting too slowly to protect child victims of abuse and that existing mechanisms to protect children are inadequate. 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 Australias Children 2009, more than 25 000 children were placed on care and protection orders, which represent an increase of 88% 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 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 abuse have on children.

Conclusion Children are considered to be vulnerable members of our society and therefore deserving of greater levels of protection. The legal system has responded 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.

THEMES AND CHALLENGES


The role of the law in encouraging cooperation and resolving conflict in regard to family An emphasis on mediation and counselling as primary dispute resolution processes has encouraged greater levels of cooperation between separating couples, and the vast majority of family disputes are now resolved without arbitration This has been enhanced by court provision of information via websites and do-it-yourself kits Disputing couples are required to attend compulsory family dispute resolution and family counselling sessions The Family Court has reviewed its own internal processes and made substantial changes to make them less complex

Issues of compliance and non-compliance The Family Law Council has recommended that an enforcement agency be established to oversee the enforcement of parenting orders and assist in bringing complaints before the court o Note: The Family Law Council is a statutory body established under s 115 of the Family Law Act 1975 (Cth)to advise the federal Attorney-General It is only when parties cannot reach an agreement that the dispute will be heard in the Family Court. Court intervention is seen as a last resort because individuals are more likely to comply with a decision that they negotiated and reached voluntarily. Enforcement of Family Court orders only comes into effect when there is a breach. The court will act to protect individual rights and enforce spousal or parental responsibilities An individual must apply to the court to enforce orders breached by another party. Once the court is satisfied that a breach has occurred, it can impose various sanctions depending on the type, magnitude and number of breaches. If the breach was of orders pertaining to children, the court has a range of actions available to it. Remedies available to the court include variation of parenting orders, compulsory attendance at parenting programs, community service orders and in extreme circumstances, imprisonment (Division 13A of Part VII of the Family Law Act 1975 (Cth)) Although ADVOs are designed to prove protection against harm, there are concerns about their effectiveness. Approximately 10% of individuals do not comply with protection orders. ADVOs depend on the named individuals voluntary compliance with the order, the active policing unit of the ADVO, and the victims willingness to report any breaches to the police.

Changes in family law as a response to changing values in the community The law reflects community values. Individuals are therefore more likely to obey the law if they believe the law is essentially enforcing and promoting right behaviours. Family law is concerned with managing human relationships, which is complicated by the multicultural nature of our society. The legal system must balance different cultures, ethical systems, religious values, social and family attitudes, and individual rights, in the effort to develop the best processes for a society as a whole. When children born in Australia to migrant parents adopt the cultural beliefs and practices of their new country, family conflict can result The first major change in family law was the introduction of a no-fault divorce. The declining influence of religion, an interest in removing the conflicts and difficulties resulting from blame, and the idea that marriage does not always last for life were social factors that influenced this change, reflected in the Family Law Act 1975 (Cth), as well as the introduction of the sole ground for divorce: the irretrievable breakdown of the marriage. 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. The concept of responsible parenthood with the respect to the care and financial support of a child is considered an important moral obligation that should be met by both parents. The Australian government has enacted legislation to encourage and enforce parental responsibility through the legal system Many of the changes in the law have revolved around protecting children. The emphasis on childrens rights reflects the idea that children are vulnerable members of our society and need greater protection. All decisions regarding children must be in the childrens best interests, and the interests of their parents or caregivers are secondary. This change can be seen in the emphasis on parenting plans and parental responsibility, in contrast to residence and custody. The legal systems aim is to protect the childs right to maintain a quality relationship with both parents

The role of law reform in achieving just outcomes for family members and society

Agencies of reform are not limited to parliaments 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 groups aims. 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. 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. One of the main criticisms of legislative reform is the recurring problem of time delays between proposing legislative change, drafting and enacting the change. Any unnecessary delay may have enormous consequences; however, passing legislation without due consideration can lead to an unjust outcome.

The effectiveness of legal and non-legal responses in achieving just outcomes for family members The legal system acts to protect the values that the whole community holds important. 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. 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 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 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, particular when considering the deaths of children identified to being at risk.

CASE STUDIES

LEGISLATION

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