Legal notes:

Topic 1: Crime
Definitions:
Any act or omission of duty that results in harm to society ad which is
punishable by the state
A legal wrong that can be followed by criminal proceedings which may result in
punishment
Sources of criminal law:
Generally criminal law in Australia is a state responsibility from 3 main sources:
- Common law:
o Judges create precedent in their decisions which must then be followed
by all lower courts. Deals with the facts of the case in the court room.1
o Common law is generally used only when there is a gap in the relevant
legislation and the judge must use their discretion and create a new
precedent
- Statute law:
o Laws made by parliament form the bulk of criminal law in NSW
o Crimes Act 1900 (NSW) describes most criminal offences
o The NSW Constitution Act (1902) (s5) grants the NSW State
Parliament the rights to make criminal laws (except when there is a
conflict with federal law)
o The NSW parliament has the right to make these laws for the
protection and wellbeing of the people of the State
- Constitutional law:
o Federal Government has limited power to make criminal law (granted
by s51- the External Affairs Power), due to the division of power
outlined in the constitution.
o The resultant lack of national uniformity in criminal law can cause
problems
o Eg. If a treaty is made with another nation, instantly the Fed.
Government is allowed to input the issues involved in the treaty as
domestic laws (eg. Treaty against torture- could be introduced to NSW
as a state law against torturing)
Types of Crime:
Crimes are categorised by the nature and seriousness of the offence. There are two types
of crime:
Indictable offences
Summary offences
These crimes include: offences against person, economic offences, offences
against the State, drug offence, public order offences, traffic offences, victimless
crime and preliminary crimes
Offences against persons:
Defined as acts that intend t cause harm or injury to another person. It is divided into 3
categories: homicide, assault and sexual assault.

Homicide:
- Defined as the unlawful killing of another person including both deliberate and
accidental acts of killing. Includes murder and manslaughter
- In a homicide case the judge must determine a casual relationship: when the
actions of the accused caused the death of the victim.
Murder:
- Defined as the deliberate killing of a person
- In order to prove in court to judge and jury that a killing was murder a lawyer
must be able to prove one of the following elements:
o The accused intended to deliberately kill the victim
o The accused set out to inflict serious bodily harm, which caused death
o The act was done with reckless indifference to another human life, that
is, the accused didnt care the act would end a human beings life this
is usually the hardest to prove
Manslaughter:
- The unlawful killing of a person where the accused did no intend to kill someone
- Similar to murder however the difference lies in the intent of the accused.
- A person is charged with manslaughter when it can be proved they didnt
intend to kill someone
- There are 3 types of crimes that fall under manslaughter:
o Involuntary manslaughter: killing of a person where the death
occurred because the accused acted in a negligent way. In DPP v.
Newbury 1977 the accused deliberately dropped a concrete slab from a
bridge killing a train guard but it was held to constitute involuntary, as
they had no intention of harming anyone.
o Voluntary manslaughter: killing where the person who caused the
death of another human intended to do so. For the crime to be passed
as voluntary there must be mitigating circumstances such as being
provoked or having diminished responsibility.
o Constructive manslaughter: killing of a person while the accused was
carrying out another crime. Also infanticide, a category of
manslaughter meaning the death of a baby under 12months at the
hands of its mother.
Assault:
- Defined as causing physical harm to threatening to cause physical harm to
another person
- Physical assault is a direct act that causes force to be applied to the victims
body unlawfully and without the victims consent
Sexual Assault:
- Defined a when someone is forced into a sexual act against their will and
without their consent
- A sexual act could include anal, oral or vaginal sex or sexual assault using
another object or implement.

Aggravated sexual assault:

- Defined as the assault of a person with an object rather than the assailants
own body.
- More severely punished then sexual assault especially when the use excessive
violence, the victim is under 16yrs or the victim has serious physical or
intellectual disability.
- It also includes attacking a police officer when the officer is carrying out their
duties
Economic offences:
Relate to a broad range of crimes that may result in a person/s losing sums of money or
property. It is the largest area of criminal law as it includes the most common crimes.
Economic offences fall under 2 categories:
Crimes against property
White collar crimes
Crimes against property:
Larceny:
- When one or more persons intentionally takes another persons property
without consent
- Break and enter is a form of larceny and occurs when a person enters a
building (eg. private residence) with the intention of committing an offence,
usually in order to steal. Initially a common law offence under burglary is
now a criminal offence.
Robbery:
- When property is taken directly from a victim, usually forcefully
- If a threat of violence is accompanied with the use of a weapon the crime is
called armed robbery.
White-collar crimes:
It is a type of economic offence that is usually associated with professionals of
businesspeople and include embezzlement, tax evasion, insider trading and computer
crime.
Embezzlement:
- When a person steals money from a business over a period of time while they
are employed at that workplace
- It can take the form of transferring funds or stealing money from the register
Tax evasion:
- Occurs when a person or company tries to avoid paying taxes to the
government
- It often involves filling out tax forms and claiming their income as lower than
it is in reality, therefore reducing total payable tax
Insider-trading:
- Related to buying and selling of company shares. Occurs when a person
(usually a stockbroker or company director) has inside information about the
company that will affect the share price

This info may disclose that a share price is about to significantly increase or
drop
- A highly publicised of a recent case is Rene Rivkin
Computer crime:
- When an individual breaks through the security firewall of a companys computer
and alters or steals data. Result in financial and personal data used unlawfully.
Offences against the State:
Treason:
- When an individual or group attempts to bring down the government, whether it
be through militaristic means, such as coup, or the ousting of the current
government in an unconstitutional manner
Sedition:
- When an individual or group promotes discontent, hatred or contempt against a
government or leader of the State through slanderous use of language.
- Many believe that the upholding of this law is in breach of the rights of the
individual to freedom of speech
Drug offences:
- Can take the form of supply, possession, use, intent to sell, or making or growing
of drugs
- Users often face rehabilitation and good behaviour whilst suppliers receive
harsher punishments
Public order offences:
- Are considered acts that society deems as inappropriate conduct or offensive
conduct
- Usually acts that we would consider to be antisocial such as nudity or offensive
language
- Certain public order offences (such as drunkenly disorder and soliciting
prostitutes) are also considered criminal offences.
Traffic offences:
- Often dealt with by the Traffic Act 1909 (NSW)
- Often these offences can be considered criminally negligent and punishments
range from loss of points to fines and even imprisonment.
Regulatory offences:
- Are minor crimes that dont necessarily bring harm to any person or society as a
whole
- They are breaches of law that are imposed on society and seek to protect the best
interests of the community for a specific time period or due to changing
circumstance. E.g. water restrictions
Victimless crimes:
- By definition a crime where there is no victim
- Drug use and abuse is often referred to as a victimless crime, however many
addicts steal from family members in order to feed their habit, therefore it can
be argued they are subjected to thefts as a result of drug use.
- Illegal gambling as it is by free will and own money

Preliminary crimes:
Preliminary offences fall into 2 main categories:
Attempt
Conspiracy
The crimes havent been carried out because the person intending to has been caught in
the planning stage or attempt to and has been thwarted.
- If an attempt has been made to commit an act it is still classed as a criminal
offence. In R. v. Whybrow a husband wired up a bath to electrocute his wife
but failed and was found guilty of attempted murder.
- Conspiracy is when two or more people plot to commit a crime together. Very
difficult to prove intent as no actual crime has taken place.
Summary and indictable offences:
Summary Offence
-

Less serious offence that is tried by a

magistrate in a Local Court
Judgement and punishment determined
by magistrate
Charge is usually laid by a police or
gov. officer
Punishment usually less severe, such as
fine or good behaviour bond

Indictable Offence
- More serious offence tried by judge and
jury
- Judgement determined by a judge,
punishment determined by jury
- Charge is brought by a public prosecutor
- Punishment will usually result in
incarceration or hefty fine

Elements of Crime:
Mens rea:
Latin term meaning guilty mind and refer to the mental state of the offender
The prosecution must prove that the accused was aware that their actions would
result in the probability of a crime being committed- that they intended to commit
a crime
Recklessness: is a form and means that the accused was aware that their action
could lead to a crime being committed but chose to take that course of action
anyway
Negligence: is another form and refers to the accused acting in a way that fails to
prevent the harm or death of a person
Actus rea:
Also called the act element and is the carrying out of the crime
It must be proven that the person did actually carry out the crime and not simply
think about it
In the act of negligence the actus rea would be referred to as an omission,
meaning that the accused failed to take a course of action that would prevent the
criminal act from occurring
Causation:
Prosecution must show that there is a substantial link between the act and the
crime (the case R. v. Blaue demonstrates the need for this link)
The accused persons actions must be what caused the crime

A strict liability offence is where it only needs to prove the element of actus rea
not mens rea or causation. These offences include traffic offences- where the
police dont have to prove that the person intended to break the speed limit only
that the person did so.
The Novus actus intervenieus is when new and unforeseeable events occur that
break the causal reaction (E.g. man assaults someone, leaves them in middle of
road and then an earthquake occurs causing the man to fall into crack and die
from head injuries. The earthquake was an unforeseeable event and broke the
causation for the incident and the man only is charged for aggravated assault)

Court Structure:
Each court is responsible fore various duties within the legal system. With the exception
of Coroners Court, each court has jurisdiction to hear both criminal and civil matters.
Local Court:
First point of call for most criminal matters in NSW
Court where public order and summary offences are heard
Deals with what is known as petty crimes
Cases tried solely in front of a magistrate- Your Honour-no jury present
In a case of summary offences the magistrate may hear offences such as drinkdriving, disorderly behaviour and public nuisance-the magistrate may decided that
the case has a more serious aspect and forward it onto the District Court
In criminal matters the Local Court is where an accused in a serious criminal matter
will attend their committal hearing (when the magistrate decides whether or not the
crime is an indictable offence)
AVOs can also be issued here.
Coroners Court:
- Specialised court that deals specifically with the cause and manner of a persons
death-regularly suspicious deaths
- The job of the Coroners Court is to conduct an inquiry into a persons death and
decide whether there is enough evidence available for a case to be made against a
possible suspect
Childrens Court:
Established in 1987 to deal with offences committed by a person under the age of
18yrs.
Also hears cases involving persons who are currently under the age of 21 and were
less then 18 when the crime was committed
It is a closed court meaning general public is prohibited to protect identity of youth
offenders.
Presided over by magistrate with no jury
The magistrates are able to sentences youth offenders to serve time in juvenile
detention centres, to order rehabilitation through counselling or to impose
community service orders upon them in hope that they dont become repeat
offenders.

District Court:
o Where most criminal cases are held and tried-jurisdiction over serious criminal
matters with the exception of rape and murder
o Presided over by a judge and the accused is tried by a jury chosen by the court
o Jurors are responsible for determining guilt or innocence based on evidence and
testimony delivered
o Types of trials heard in this court include armed robbery and driving offences
causing death
o Also hears appeals from Local Courts
o In a case where new evidence has come to light, the accused may appeal to have
their case retired with new evidence-known as appeal de novo- it is heard by a
single judge without a jury
Supreme Court:
Hears the most serious criminal cases fro e.g. serious sexual assault, murder,
kidnapping, treason
Presided over by a Chief Justice and several senior justices- (justices appointed to
their positions by Governor of NSW)
A single of justice and jury of 12 hear all criminal trials in the Supreme Court
It is able to hear appeals from both the Local and District
The only type of appeal able to be made from these two courts is that of a stated
case: when either the accused or prosecutor believes the magistrate has made a
mistake when interpreting the law
Court of Criminal Appeal:
Presided over by 3 Supreme Court Justices
A person found guilty in District or Supreme can make an appeal to this court
Prosecution can appeal if they believe the sentence given to a guilty is too lenient
however it is not able to appeal to this court if a person has been acquitted from a
crime due to the rule of double jeopardy
Double jeopardy protects the accused from being tried twice for the same crime
High Court:
In relation to criminal cases it hears appeals from the carious state Courts of
Criminal Appeals
Most civil cases relate to business and large companies
Before a civil case can be heard by the High Court it must me shown that the
case:
o Is related to a matter of public importance
o Must be heard in order that justice be served
o Needs to be heard because there is some confusion over an earlier ruling at
another court level
Criminal process and role of discretion:
Reporting crime:
Police rely on community to report crime as they are rarely present when crime is
committed
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Wide reporting of certain crimes such as car theft whilst crimes such as sexual
assault more frequently go unreported: embarrassing, unwilling to relive
experience

Investigation:
This may involve taking witness statements at scene of crime or crime scene
detectives looking at evidence left behind
These parts must happen quickly before witnesses forget or before evidence is
compromised
Arrest and Charge:
Arrest and charge of offender one of most important steps in criminal process
If proper procedure not followed the entire case may be thrown out of court and
the offender is never punished
Police arent allowed to detain a person of interest unless they have good reason
to do so
Power to arrest a person if they have a warrant for individual, witness perpetrator
carrying out crime or believe person has or about commit a crime.
By law police are allowed to use whatever force is necessary
Once arrested they are taken to the police station where formal charges are laid
and the suspect, photographed and interviewed
Interrogation:
As soon as police have suspect in custody they are brought in and questioned
known as interrogation
Suspects have rights under Criminal Law Act 1900 (NSW: right to remain silent
and any suspect under 18 has the right to have a responsible adult person present
Interview is recorded on video and audio- to ensure all policies and guidelines are
adhered and as a record for the court.
Summons:
Once arrested they will be issued with a summons
Summons: legal document that states when and where a person must appear in
court and, if they are the accused, the charge to which they must appear
Failure to attend could result in arrest or charge
Bail:
In more serious matters the accused is usually detained at police station and
remain in custody until court appearance
Up to magistrate to determine if they should be released on bail or remain in
custody- remain free is called conditional freedom
Bail takes many forms: upfront of monetary payment or recognisance, promises to
turn up, surety: someone else agrees
R v Wakefield (1969) outlined criteria in which bail is granted. Judge takes into
account:
o Nature of the crime- severity
o If defendant is likely to return for trial
o Strength of case against defendant
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o Danger of further breaching law

o Protection of society
Bail is used based on two factors:
o Presumption of innocence
o Resource efficiency

Plea:
The law requires the accused to enter a plea of either guilty or not guilty
A guilty plea will be dealt with quickly and doesnt require witness testimoniessentenced straight away
If pleas not guilty then further dates are set for trial
Plea bargaining: when the accused pleads guilty to a lesser charge f a deal is
agreed upon by their defence team and prosecution
Charge bargaining: when the accused agrees to plead guilty to some but not all the
charges
Both these bargainings are examples in which justice isnt fully served: lighter
term or charge for a serious crime on the basis of efficiency and reducing costs
ect.
Hearing:
An evidence presented in court must be rule as admissible by the judge-are
regulations regarding the type of evidence presented in court
Criminal case: presumption of innocence until proven guilty
During the hearing the prosecution must prove the defendant is guilty of the
actions and crime-burden of proof
Also must prove to a jury that the person is guilty beyond reasonable doubtstandard of proof
Australian citizens 18yrs + are called off electoral role for jury duty- jury unable
to make decision is called a hung jury is dismissed and the judicial process begins
again
Peremptory challenge: when the legal teams strikes a juror without needing a
specific reason
Challenge for cause: when the legal team strikes a juror because it is believed that
for some reason the juror will be prejudicial
Appeals:
If the accused is found guilty its their right to lodge an appeal if there are
reasonable grounds to do so
Can only be lodged on the basis that a legal error was made by someone on either
of the legal teams
The right of appeal is limited and more often than not the defendant is appealing
on the severity of their sentence
An appeal must be launched no more than 28 days after the court reaches a
decision
Jury:
Historically significant- represent the continuity of the criminal justice system
Vital part of criminal justice system:
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o It is an important check against arbitrary yielding of power

o Represent society/community standards and expectations of justice

Arguments for:
o Can provide objectivity and impartiality
o Involving people in the jury process educates community about process of
legal system
o Take into account individual circumstances and represent values and
judgement of community
Arguments against:
o No legal knowledge or training resulting in lack of expertise
o Not all members of community have mental capacity required to
participate effectively
o Prejudice and bias- more subjective to media- emotional responses
Unanimous vs. Majority: now it is majority for murder meaning allows for 1
dissenting person i.e. 12 jurors 11 vote guilty
Cases with jury issues:
o Said Morgan: niece sexually assaulted, feared for safety and shot the
abused. The jury returned verdict of not guilty in defiance of all legal
standings. This is a classic example of societies input into criminal justice
system and is a representation of community standards
o Bilal Skaf: leader of sexual assault gang and 2 members of jury visited
crime scene breaking judicial rules- he appealed and won. Example of jury
misconduct influencing justice process
o Joh Bjelke Peterson: Premier of Qld prosecuted for corruption- hung jury
due to member of nationalist who refused to convict him. Example of why
unanimous juries are unpopular.
Azaria Chamberlain: Complex evidence and public and media dislike- jury found her
guilty- retrial found poor evidence and corruption in justice system. Example of bias
jury due to subjectivity
Defences to criminal charges:
A defendant can use a range of defences but they must fall within certain boundaries
Complete defences:
o Complete or absolute defences are used to justify the defendants actions and it
successful will result in an acquittal
o Mental illness can only be used as a defence if the accused can prove that they
were mentally incapacitated when they committed the crime- must be proved on
the balance of probabilities
o The defence of insanity enable the accused to claim that they were not aware of,
or able to comprehend the nature of the consequences of their act at the time the
crime was carried out

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o MNaghtens (1843) is a case in which demonstrates continuity in the legal system

and created precedent in terms of mental illness.
o Self-defence or necessity is a self-explanatory defence: can be used if the person
carried out a crime in the act of defending themselves or another person or while
attempting to prevent a crime or in the defence of property
o Using this defence can be risky as what they deem as reasonable force and what
the jury deems may differ greatly (there are 4 tests- 2 objective, 2 subjective)
o In R v Zecevic (1987) it was held that the defendant must have reasonable grounds
to believe that their life was threatened and they must use proportionable and
reasonable force
o Duress: unlawful pressure that is applied by one person to induce another person
to do something against their own free will- therefore although they knowingly
carried out the crime they did so as their life or someone elses was under threat
o Consent is most often used as an absolute defence in sexual assault-not a valid
defence in criminal cases such as murder.
Partial defences to murder:
o When a murder has been committed the defendant may claim there were
mitigating circumstances that cause them to carry out the act
o It doesnt absolve the defendant of blame however may help to reduce the
sentence or even mean he defendant is acquitted
o Provocation: claims their action were a direct result of the other persons actions,
and caused them to lose control of their actions
o They must be able to prove that the victim caused that caused to act in a way, that
given the same circumstance, and ordinary person would have been provoked into
carrying out the crime
o In NSW the defence of provocation can only be used when attempting to have a
murder charge reduced to manslaughter
o Diminished responsibility: also known as substantial impairment of
responsibility, this defence is used when the accused is suffering from a mental
impairment that caused them to commit a crime
o Such abnormalities include: low IQ and mental retardation- this is used more
widely than insanity as it is easier to prove and the person may be completely
normal in every other aspect of mental capacity and health
o Substantial impairment cannot be used as an excuse when the accused was drunk
or under the influence of mind-altering drugs
Parties to a crime:
Any person who has been involved in a crime is known as a party to the crime. The
level of punishment that a court gives is relative to the crime and involvement. The
parties can be divided into 4 main categories:
1. Principal in 1st degree: actual perpetrator and are directly responsible for crime
being carried out
2. Principal in 2nd degree: person who was present at the crime or assisted in some
way
3. Accessory before the fact: person who helped plan the crime or knew of it

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4. Accessory after the fact: person who, knowing about the crime, helped the offender
afterwards.
Factors affecting criminal behaviour- Why do people commit crimes?
Social factors:
Such factors may include their family situation or personal relationships
People from abusive homes often have a negative attitude towards society they
believe has let them down
Type of people a person associates with
Attitude one develops to authority
Theory of differential association: raised in and regularly exposed to criminal
behaviour and more likely to develop similar behaviour
Anomie: Cult or gang sub-section of society have own laws and culture and les likely
to respect those of the rest of society
Economic factors:
People poorly educated and come from disadvantaged backgrounds are more
likely to commit crimes
Often these people are habitually unemployed and unskilled, otherwise the jobs
are often menial and poorly paid
Such is the reason that criminal acts that they benefit from financially are more
attractive
Genetic factors:
Discredited: Phrenology- used to determine whether there were any physical
characteristics that could allow scientists to pick potential criminals and the XXY
Recent studies have investigated and compared DNA of prisoners to see if there is
a common genetic marker however none of these studies have been conclusive
and therefore have not helped criminologists identify potential criminals.
Political factors:
Recent time many protesters have been arrested because their moral rights have
led them to act in a way that is illegal
Government decisions (such as refugee detention) can cause illegal behaviour
Self-interest/greed
White collar crimes are a good example of crimes being driven by self-interest
rather than economic or political factors-fraud or embezzlement
People are motivated by money and the power they derive from acquiring it
through surreptitious (secretive) means
Crime of passion also fall into this category
Role of Legal Aid:
- In the Aust. legal system the defendant has the right to a fair trial, yet there
is no automatic right to legal representation
- However as it is unlikely that a defendant will have a fair trial without
legal representation the NSW Govt. provides legal representations and
assistance to anyone for 15 mins

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To access this defendant needs to pass a means test: assess whether they
can afford representation
Merit test: determine whether the case is likely to be successful
Not all matters can be covered as it must fall within the jurisdiction

Types of international crime:

Crimes committed in the jurisdiction of another country
Transnational crimes
Crimes against international laws
Crime committed outside the jurisdiction of our country:
o If a crime is committed in another country: means if person is arrested the laws of
the country in which the crime was committed will prevail
o Eg. Schapelle Corby case and Bali Nine in Indonesia
o Some crimes committed outside of Australia that can be tried and sentenced in
Australia include:
Joining mercenary forces
Stealing or damaging cultural property
Hunting and killing whales
Engaging in child sex tourism
War crime
o These crimes fall under the jurisdiction of the Commonwealth Govt.
Transnational Crimes:
o Those that involve breaking the law in more than one country Eg. International
terrorism
o Transnational crime cases involve intense negotiations between countries and it
may take a long time for the case to go to trial,
o Cases include paedophilia and pornography
Crimes against the international community:
o 2002 International Criminal Court was inaugurated and was designed to
specifically deal with crimes that are recognized by the majority of countries in
the world and are ratified by agreements such as the Dec. of Human Rights
o It is now a forum to arbitrate and resolve crimes that have international
implicationso Aim: achieve justice, end impunity by punishing individuals rather than countries
and deter future war criminals
o ICC can impose sanctions and sentences but it doesnt have the capacity to
impose the death penalty
o The ICC has no retrospective power (USA has refused to sign)
Source of International Law:
The sources of International law are outlined in Article 38 of the Statute of the ICJ:
International conventions (treaties)

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 Customary international laws (laws widely accepted and have evolved over long
period of time)
General principles of law recognised by civilised nation states
Judicial decisions and teachings of those highly qualified
Most source however come from customary and treaties- majority of treaties
having their origins in customary law
There is no compulsion for countries to sign treaties meaning laws that affect the
international community do not bond countries who havent signed
Exception is genocide-this crime brings with it criminal charges even if being
committed in a country that is not a signatory o a treaty condemning the
practice

Two types of treaties:

Bilateral: signed by only 2 countries
Multilateral: one to which many countries are signatories and agree
to adhere.

Creating social order through education, regulation and coercion

Education:
People are educated about the law in a number of ways:
o Parents, teachers and other community members
Educations is a very important factor in peoples awareness of the law and aids
the Govt. in creating social order
Eg. Speed Kills Campaign (community education)
Regulation:
The purpose of law in any society is to regulate the actions and behaviour of its
constituents
Regulations are rules or orders for conduct that are made by statutory bodies to
direct the actions of members of a society
Many laws are regarded by people more as guidelines rather than binding laws
Eg. Road rules: people are not regarded as criminals who break them but these
offences are dealt with administratively and incur penalties.
Coercion:
Coercion refers to forcing or persuading someone to do something
In our society people are coerced into obeying the law through fear of the
consequences of not complying, peer pressure and it is what society expects of
them.
Crime Prevention:
Situational crime prevention:
o Situational crime prevention aims to make it more difficult for criminals to carry
out a crime

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o Eg. Bars on windows, alarm system, CCTV surveillance. Although they dont
necessarily prevent crimes being committed people will be deterred from
committing a crime where they know they are at risk of being impeded or caught.
o Decreasing the rewards of crimes is another form of situational crime prevention
o Eg. Colour tags in shops to know if someone didnt pay for it- if tag removed by
force it release blue dye over stolen item rendering it useless- also use magnetic
detectors
Social crime prevention:
o Social crime prevention attempts to change or at least alleviated the social factors
underlying the reasons why people commit crimes
o Unemployment, economic disadvantage an inadequate education, poor home
environments are all elements that contribute to reasons why crime is committed
o The Govt. spends millions in different areas trying to combat these social
problems- Youth programs

Enforcing law through punishment:

Purpose of punishment:
The purpose of punishment is to:
o Deter people from committing crimes in the first place
o Protect the community from those who break the law
o Incapacitate those who have committed a crime
o Retribution
o Reintegrative shaming
Rehabilitation (reform):
One of the most important elements of punishment- expected during time a person
is serving punishment they will deal with their issues and the problem that caused
them to commit the crime
Main aim is to avoid the trend of recidivism: habitual or repeated lapses into
crime by giving the offended skills needed to function in society
Rehab may include opportunity to attend counselling sessions and other
programs,
Repeat offenders are not offered rehabilitation over and over again.
Effectiveness: circumstances, crime and attitude of offender
Deterrence:
Two types:
o Specific: takes into account the past activities of an offender and aims to
deter the individual from carrying out any further criminal activity
(effectiveness depends on circumstances, type of crime and attitude of
offender)
o General: attempts to make an example of the criminal in order to send a
message to the rest of society that the law is serious about punishing
offenders (viewed as unfair as it is punishing an individual for crimes of

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future crimes of the society, however tends to be effective in educating

community)
Retribution:
When being sentenced a judge will take into account the effect of the crime upon
the victim and their family and see the punishment fits the crime
Retribution differs from revenge in the following ways:
o Society seeks retribution o behalf of the victim through the courts
o The punishment must be proportionate to the crime but not be violent or
harmful to the offender
Retribution seeks to rehabilitate and deter the offender from reoffending.
Incapacitation:
Is the most severe form of punishment and involves the offender being detained in
a correctional facility away from the rest of society.
Prevents offenders from committing crimes, protects society from offenders and
impinging on their freedom

Reintergrative shaming:
Has become a popular part of the rehabilitation process of the offender
Brings together the offending party and the victim of the crime so the offender
can see the harm and suffering they have inflicted
Offender has the opportunity to apologise to the victim and family and make
amends in whatever way possible.
Effectiveness: least desire purpose of punishment, not consistent with human
rights and basic dignity, resource efficiency, people feel excluded from society.
Purpose of sentencing:
Set out in s 3A of the Crimes (Sentencing Procedure) Act:
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 crimes
c) To protect community from offender
d) To promote rehabilitation of offender
e) To make offender accountable for his/her actions
f) To denounce the conduct of offender
g) To recognise the harm done to the victim of the crime and community
It has been held that this is largely a codification and elaboration of principle of
sentencing at common law: Regina v MA (2004)
The Sentencing process:
Hearing:
Once jury has determined guilt the second stage of the trial occurs in which the
judicial officer of the court - judge or judge will determine sentence imposed.
The trial judge will look at numerous factors including:

16

o Defendants state of mind

o Addictions defendant may have
o Defendants criminal record if any
o Whether the defendant has shown any remorse
Evidence:
Only evidence looked at during sentencing process is that which has been
presented at trial
At this time the judicial officer may take into account prior convictions but when
making decision cannot use charges that have been brought against the defendant
and then dropped.
Role of prosecutor:
Role is to present to the judicial officer all the relevant information from the case
as well as information about prior convictions and cases related to defendant
It is their role to ensure that the defendant received the highest possible sentence
In order to assist them in this they will also tender victim impact statements:
statement made to court by victim or family about the impact that the crime ahs
had upon their lives
Roles is to represent the vies of society and emphasis that the accused deserves to
be penalised in the most appropriate way- necessary for justice- victim and
society as a whole
Defence:
Roles is to represent the best interests of their client and to ensure that the
defendant receives a fair sentence
Often introduce character witnesses to vouch for the good nature of the defendant
Defence often use pre-sentence report to show the defendants life circumstance
which may have made them susceptible to crime
Victim:
Victim impact statements can provide a human side to the crime to counter the
legal system associated with procedural maters
Allows the victim or family to take part in the judicial process when they may not
have been required to testify

Factors affecting the decisions:

Circumstances of the offence: objective features:
Each crime has unique circumstances which means it must be treated distinctly
taking into account the objective features of the crime
The circumstances of the offence are the objective features
Objective features may include:
o Degree of planning or premeditation
o Motive for crime
o Use of weapon
o Use of threat or violence
o Whether there were aggravating factors-factors that made the situation
worse
o Whether the crime is becoming more prevalent in society

17

o Plea entered by defendant

Circumstance of the offender: Objective features:
Law gives discretionary power to make decisions based on the individual cases
and circumstances
They will take into account not only the circumstances of the actual crime itself
but those of the offender as well
The circumstance of the actual offender are the subjective features of the case
Subjective features may include:
Age of offender
Sex of offender
Prior convictions
Plea
Suffering from physical or mental disability
Cultural background
Level of co-operation shown by defendant in investigation
Aggravating and mitigating factors:
Aggravating factors include the age of the victim, level of violence and whether
the offender held a position of trust
Age is particularly important especially with children or elderly as they are
considered vulnerable
If there was a high level of gratuitous (excessive amount of violence carried
without reason or cause) making it even more horrible for a victim to endure- this
is a mitigating factor
Aggravated circumstances are more likely to result in severe sentences being
imposed.
Mitigating circumstances may work in the defendants favour, painting them as
victims in their own circumstances. They may include:
Relative inexperience or youth of offender
Easily led by others
Effects of drug or alcohol
Whether offender has experienced similar experience in their life
Socioeconomic status
Educational achievement
Show of remorse of contrition
Judicial discretion and limits on discretion:
Judicial sentencing guidelines are usually set by higher courts and must be
adhered by the judge

18

 Maximum penalties are set by the parliament and cannot be exceeded by any
judicial officer, however they can impose the highest sentence available to them
for that crime
Mandatory sentencing
Precedent
These limits help set uniformity across states for crime
Penalties:
Types of penalties:
Fines:
- Most common penalty imposed raging from minor indiscretions to breaches of
environment and corporate law.
- Often criticised as being nothing more then revenue-rising exercises that target
citizens who in general are law abiding
- Aim is to act as a deterrent
Bonds:
- Also known as recognisances
- Usually the defendant will be placed on a good behaviour bond which requires
them to comply with particular order for a period of time. Conditions could
include:
o Attending family counselling
o Attending anger management courses
o Drug or alcohol rehabilitation
o Refraining from articular activities
- If conditions are breached they may face further penalties such as fines or jail
- If the law is broken while on a bond their previous case will be reassessed and a
harsher penalty may be imposed
- Bonds are imposed on youth offenders too in hope they will learn their lesson
from appearing in court
Probation orders:
- Similar to bonds except the offender is placed under the supervision of a
probation officer for a period of time-usually 1 yr
- Under the terms of probation the individual usually has to adhere to strict
conditions as outlined in bonds
- In addition they need to maintain regular contact with a probation officer
appointed by the courts and are usually not entitled to leave the state during the
set period
- If the offender maintains a clean record during this period of time, no conviction
will be recorded.
Community Service orders:
- Were brought in as a means of rehabilitations and shaming the offender requiring
them to spend time in the community making amends
- Intention is to ensure that the activity is both cost-effective and beneficial to
community
- Effective way to ensure young offenders are kept out of prison and the criminal
cycles
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Home detention:
- 1996 the Home detention Act 1996 (NSW) was passed allowing courts to impose
on offenders a sentence of up to 18 months
- Aim of the program is to keep particular offenders out of the brutal jail system
whilst still severely restricting their lifestyle.
- Electronic device strapped onto leg which goes back to a monitoring base
- Not permitted to use drugs or alcohol
- Also required to work from home or participate in some sort of educational
correspondence program
- Program has a number of benefits:
o Keeps offenders out of prison system
o Allows a substantial amount of normal family activity to take place
o Provides more opportunity for rehabilitation
o Cost-effective- only cost is administration process
Periodic detention:
- More commonly known as weekend detention and allows offenders to serve their
sentence of a series of weekends rather than be incarcerated for one long period of
time
- Can carry out normal family and still have employment
- Required to appear at correctional facility by 7pm Friday and released on Sunday
at 4:30pm
- If offender fails to meet terms of detention they will carry out remainder of term
in full-time detentions
Imprisonment:
- Most severe and there are many types of prisons in NSW ranging from maximum
to low security
- Whatever level this form of punishment is specifically to restrict the lives of
prisoners
- When offender is sentenced the judge will set a non-parole period. Eg. Sentence is
25yrs and the non-parole period may be 18yrs meaning it is only after 18yrs they
have the chance to go before a parole board and be released
Penalties no longer available:
Capital punishment:
Death penalty is taking of offenders life. Typically offences that received this
were burglary, sexual assault, manslaughter and murder
Capital punishment has been abolished in Australia since 1973 under the Death
Abolition Act 19173 however the last state to abolish it was WA in 1984
In order to reintroduce capital punishment in Australia we would need to
withdraw from the international protocol that prohibits it as a form of punishment
Recent surveys from abolitionist countries fail to show that abolition has harmful
effects.
Corporal:
Is physical punishment applied to the body designed to inflict pain and suffering
Any physical abuse of prisoners is prohibited in the country
Corporal punishment was outlaw by the Crimes Act 1914 (Cwlth)
20

Penalties that infringe human rights laws:

Many forms of cruel and unusual punishment that are still exercise around the
word, various forms of torture continue to be practised by regimes
Australia is a signatory to the International Covenant on Civil and Political Rights
(1966). Also UN Convention Against Torture which forbids signatories from
carrying out executions
A person who is sentenced to a form of cruel and unusual punishment can make
an appeal to the UN only if there country is a signatory
Declaration of Human Rights: no-one shall be subjected to torture or to cruel
inhuman, degrading treatment or punishment
ICCPR: in particular, no one shall be subjected without his free consent to
medial or scientific experiment
Despite these great ideals, in practice subscribing to a treaty by a country is
voluntary and fulfilling terms is also voluntary due to lack of any enforcement
Post sentencing decisions:
Security classification:
o NSW a variety of correctional centres. When an offender is remanded in custody
they are given a security rating according to severity of crime
o Other factors taken into account are the offenders prospects for rehabilitation and
display of good character or behaviour
o Currently 30 correctional centres in NSW. 2005 NSW had over 9000 inmates, 600
of whom women.
o On average it costs between $50 000-$73 000 of taxpayers money per year per
prisoner
o Prison system in NSW is divided into 3 broad categories: minimum, medium and
maximum
Protective custody:
o Is provided by NSW jails to are vulnerable to attacks from other prisoners
o Offenders who are in jail for offences against children are considered to be the
worst type of offender by fellow prisoners- often place in protective custody from
prisoners who want to harm them
Parole:
o Parole refers to the conditional release of a prisoner form custody after the
completion of the minimum term of the sentence (non-parole period)
o Fundamental aim of parole is to provide the offender with an incentive for
rehabilitation through the prospect of early release.
o When released an offender is put under the direct supervision of a parole officer.
They must meet conditions of their release:
Good behaviour
Not reoffending during period
Gaining employment
Avoiding certain company or specific areas
Dealing with international crime:

21

As technology evolves and is more readily available international crime becomes

more complex and difficult to investigate
Ease of travel between countries makes it difficult for people to be apprehended
and prosecuted
Many treaties regarding extradition of criminals have been signed between
countries for international community to combat international crimes
Eg. Of crimes that affect international community are human and drug trafficking
The International Court of Criminal Justice tries war criminals on behalf of all
countries that denounce such violation of human right
International criminal courts:
In 1990s it became apparent that a permanent international criminal court was
needed to deal with the growing number of human rights violation cases out of
war-torn countries.
The International Criminal Courts was established by the Treaty of Rome in 1998
and began operation in 2002
It is the first permanent treaty based international criminal court
Extradition:
Extradition is the process of legal surrender of a fugitive to the jurisdiction of
another state, country or government for trial
It us used in situations where an offender is not residing in the state or country
where they have been accused of the criminal offence
A judicial officer in the place where the criminal is found sends the criminal to the
state or country where they committed the offence to be dealt with.
Exportation is different from deportation, which is concerned with the removal of
an individual from a national territory and sending them back to their country of
origin
It must be determined that the accused has a case to answer on prima-facie
evidence and the accused will receive a fair trial in that country
Also it must be determined that the offence is a crime in both the state/country
they have committed it in and the one they are residing in
Various types of international legal agreement pertain to extraditions: Bilateral
and multilateral
Interpol is an international organisation that specialise in cases in which criminals
are extradited from one international jurisdiction to another.
Extent to which aw reflects moral and ethical standards:
Morals and ethics are attained from?
Moral and ethical standards can be defined as those of the general community or
society
They are built on a Judeo-Christian moral foundation
International Law
Human Rights movement
Feminist Movement
To what extent?
To a large extent, in general, in most part our criminal justice system reflects
prevailing moral and ethical standards of our society

22

Why does it reflect them?

It is necessary in order to ensure compliance
Laws are constantly being updated to reflect societys changing morals and ethics.
Principle of democracy upholds them. We believe those we vote for will carry out
the law as a reflection of prevailing morals and ethics.
Example of ways in which the criminal justice system reflects these standards:
1. Sexual Assault laws
- The development over time is a representation of changing moral and ethical
standards
- The 1970s case DPP v. Morgan is an example which demonstrated that a
husband couldnt be charged of sexually assaulting his wife. This concept was
based on Judeo-Christian foundations and reflected the idea that a husband
owned his wife and she was to be subservient.
2. Capital Punishment
- Based on Lex Talionis (eye for an eye concept- Old testament)
- Whilst societys view on this matter often changes after a brutal crime (i.e.
they wish to reintroduce the law).
- However the law isnt always meant to reflect 100% ethics and morals of
society, there are other factors that the law is trying to achieve (i.e. human
rights, for the greater good of society). They must have mechanisms to
counter the fluctuating opinions of society.
3. Criminalisation of homosexuality
4. Abortion: in theory law reflects standards however in practice a legal loophole
exists that allows abortion to easily be carried out
5. Indecent exposure and swearing
6. Vandalism and littering
7. Gambling and prostitution
8. Sentencing: Anita Cobby case where a life sentence was given meaning 25 yrs
however society wasnt satisfied leading to a change in law to reflect this opinion
Truth in Sentencing Act 1989 where life-sentence was made literal
Example of ways in which the criminal justice system doesnt reflect these standards:
1. Capital Punishment: As mentioned above
2. Sentencing: Tries to reflect standards of morals and ethics but main outcome the
judges ensure is a just outcome:
a. Core Davis case
b. Said Morgan: jury against all evidence preferred a killer in society rather
than a paedophile. A good reflection of societies views coming through a
jury
c. Bilal Skaf: was given a 55yr sentence by a judge who attempted to reflect
general deterrence as well as society standards however on appeals
another judge reduced the sentence to 28yrs stating 55 was manifestly
excessive. This therefore wasnt a reflection of societies views but was
made to benefit society as a whole
d. R v Carroll- the double jeopardy rule prevented societys morals and ethic
being upheld despite new evidence and 2 guilty verdicts
Commitment to the law: issue of compliance and non-compliance:

23

- Generally for crime there is a high degree of compliance as most people respect the
criminal justice system as they are happy to receive the protection the law provides
- They know that retribution will be sought through legal means if someone commits
a wrong against them
- From an early age we are educated and conditioned to follow the law until
compliance is natural and becomes second nature
Factors causing non-compliance:
o Previous bad experience with the system
o Theory of differential association: brought up in a criminal environment they are
more likely to follow in the same direction
o Inability to comply with the law (mental illness)
o Disagree with the law (e.g. guns, domestic violence, women, drugs)
o Breach of law seen as insignificant (e.g. jaywalking, traffic offences)
o Lack of consequences or enforcement (e.g. traffic offences and white collar crimes)
High-rates of compliance:
- Crimes against person
- Crimes against property (Personal)
- Usually unpreventable as it is based on an emotional, immediate response to
situation
Low rates of compliance:
- Regulatory offences
o Traffic offences
o Water restrictions
- Victimless crimes
- Domestic violence
Ways of addressing compliance and non-compliance
- Increasing penalties
- Increased enforcement
- Education
- Change nature of penalties
Effectiveness of the law in achieving justice for individuals:
Protection of Individual Rights:
Rights of accused and victim
Often the balance of these rights can prevent a just outcome
Binary decision: who to favour more
Society favours the accused as the consequence of the crime ones freedom and
life are at stake
CIN: sacrificed a measure of individual rights no trial
Equality:
Equality before the law is the most fundamental and important aspect of our
judicial system
However many aspects of the adversarial system promote or create inequality
before the law- e.g. inequality in wealth with legal representation

24

Plea bargaining ensures accused will still be penalised for their crime but may
not receive as serious a punishment. Many view this as an obvious breach of the
law in regards to equality
Lady of Justice symbol, scales of equality and justice is blind
Judicial independence is meant to promote equality- not owned by parliament or
govt.
Sentencing allows judges more discretion and therefore inequality however it is
here we chose to ignore equality in favour of fairness
Accessibility:
Dependant on three main factors:
o Cost
o Access to information
o Time
The legal system can seen to be generally accessible as it is public and
transparent-well publicised and conducted therefore increasing accessibility.
Cost of legal representation is high, therefore accessibility dependant, however
Legal Aid does play a role in assisting with this (yet this brings up issue of
equality with legal ad not being as high a standard)
Knowledge or access to information about the judicial proceedings is a
determinant of the individuals ability to receive a fair trial
Many may be unaware of their rights or misinterpret legal proceedings
Language/Cultural barriers
Delays in cases being heard
Enforceability:
Difficult to enforce laws that members of community deem to be outdates or
irrelevant
If an offence is not witnessed and if members of public dont report the offence
than the law cannot be enforced-therefore to an extent it is dependant on
community participation in the law
Relies heavily on resources
Compliance
Protection and recognition of individual rights:
IN every procedural stage there are steps to ensure the protection of individuals
rights of both victim and accused
Very effective often to the extent where the rights for the accused may have a
determining factor on the outcome
Resource efficiency:
Criminal justice system makes determined efforts to redress issues surrounding
inequality by providing resources for those socioeconomically disadvantage
Ignorance of society: more money spent on education of system
Effectiveness of the law in achieving justice for society:
Resource efficiency:
An imbalance of resources available to the community is a criticism of the
judicial system

25

Thousands spent on law and order budget and increasingly these funds are being
channelled into anti-terrorism
Many argue that money should be spent on causes of crime and less on dealing
with offenders after these causes have led them to commit the crime
Imbalance on money spent on Legal Aid is also a concern
Bail is an example of resource efficiency
24 000 in prison system costing $240 per day/pp. many believe with the 60%
recidivist rate prison isnt effective in rehab therefore resources arent being used
well.
CIN: Criminal Infringement notice: good example of resource efficiency, reduces
time in courts for minor offences
Appeals and review:
Generally very effective
All people convicted of a crime have the right to an appeal or have their
conviction reviewed so that the courts may decide whether they received an unfair
trial or unreasonable sentence
Prosecution also able to apply for appeal
When there is breach of conduct or innocent person wrongly convicted a royal
commission may be set up
Balance of individual rights and community rights and values:
Many argue that some aspects of our legal system are unfair and should be
changes
E.g. previous offences being inadmissible at trial. Some believe if a person is a
repeat offender then the jury and courts should be able to hear that this person had
committed like offences in the past. Others argue that everyone deserves a fair
trial and if above was so the judgement may be biased.
E.g. perhaps if jury heard other children in the area had been attacked by dingoes
the Lindy Chamberlain case may have had a different outcome. However this
information was inadmissible
Overall legal system tip in favour of the rights of the community and society
Recent terrorism laws reflect community beliefs
Mandatory sentencing only affects a small proportion of the population but is
indirectly discriminatory towards that group and creates an imbalance in the rights
of individual and community.
Community may see mandatory sentencing as reasonable with high crime rates
and it may serve the greater good but can be detrimental towards marginalised
groups in the community
Law Reform
Law is constantly evolving and it needs to change to remain just. If it stays the same it
becomes inflexible and unjust. Mechanisms for reform are meant o respond to changes in
society and reflect these in changes in the law.
Agencies of reform:
Parliament (NSW and Federal)-law making body
Courts/Judiciary-through precedent and discretion

26

NSW and Australian Law Reform Commission- can initiate own review or be
asked to, long process, puts a recommendation into parliament
Conditions that give rise to the need for reform:
Changing social values and composition of society:
Australian society has seen rapid law reform in the past 20 yrs as a response to the
diversity of growing population, rapid changes in technology and demands of
international community to adhere to conventions
Criminalisation of homosexuality
Domestic violence and sexual assault
Corporal and capital punishment
Multiculturalism: restrictions on burials, choice to swear on bible or take an oath
of affirmation instead-both catered and reflected changing composition of society
New concepts of justice:
Increasing criticism by international bodies of the treatment of our indigenous
population has forced courts to look at alternate ways of dealing with Aboriginal
crime such as Circle Sentencing
Double Jeopardy
Failure of existing law:
Parliaments are responsible for deleting legislation that is redundant because it is
no longer applicable to modern society
Mental health, domestic violence, vagrancy
Aboriginal Law
Prison seen ineffective leading to fines, rehab and home detention-alternatives
International law and New technology:
Double jeopardy (DNA)
Treaties and Conventions- e.g. Declaration of Human Rights
Internet (copyright, pornography, hacking ect.)
RBT
Topic 2: Law and Society
Law and Justice
The essential influences of law:
Concept of rule of law:
Law is a set of recognised rules binding and enforceable on all members of
society
Over the last 200 years the concept of rule of law gradually developed in the
western democracies and had been regarded as an indispensable part of achieving
a healthy political climate
The concept of rule of law is:
o That no person or group in society stands above the law, and in theory, no
one may break it without punishment.
o Also central to the rule is that the individual is treated with respect and
dignity
o Legal powers shouldnt be exercised in any arbitrary manner

27

Some countries have experienced increased application of the rule of law: South
Africa it was more fully accepted after it abolished apartheid in 1994
The rule of law doesnt operate when there is anarchy: Eg. After the invasion in
2003, Iraq went from being under rule of arbitrary power to anarchy as occupying
powers attempt to create conditions for rule of law to function effectively
Certain principles are basic to the rule of law in Australias democratic system:
o Independent judiciary
o Natural justice (procedural fairness)
o Equality under the law regardless of status of position
o Protection against violence and anarchy
In Australia rule of law is guaranteed by:
o Separation of power contained in constitution
o Monitoring of police and procedures for investigation, arrest and detention
o Means of ensuring the govt. act according to law-through judicial review,
ombudsmen and legislation
o Informal means of challenging govt. decisions
o An informed public
Certain freedoms such as freedom of movement, speech, press, assembly, religion
and information are fundamental to societies with the rule of law
What are the specific features of Australias legal system which serve to establish
and maintain the rule of law?
o Law making process is independently reviewed by ombudsman, NSW
Law reform and external commission- helps to maintain flexibility of law
and ensure laws arent stagnating
o Enforcement: themselves are accountable to a higher authority:
Police Integrity Commission
ICAC
o Legislative body is elected democratically on regular basis with
limitations
o Judicial discretion, however restrictions are placed on this to avoid use of
arbitrary power through:
Precedent
Legislative guidelines
Judicial guidelines
o Independent Judiciary
o Implied rights in constitution
o Judicial review-members are also subject to the law
Jeff Shaw, drink driving
Patrick Powers DPP
o Parliamentary privilege-wont be subject to any legal sanctions as seen in
the Michael Kirby case-defamation
o Education- learns about basics of legal system, parliamentary system and
law making. This knowledge makes people less likely to be resistant to
anarchy and chaos

28

o Compulsory voting-encourage people to take part in nation

o Economic prosperity- helps people maintain rule of law
o Publicity and accessibility
Social, cultural, moral, political and economic influences:
Social influences:
Within each society there are a set of attitudes an beliefs that are shared by the
majority members of the society
Politicians become aware of societys views through media report, talkback,
protests and lobbying
Politicians are affected by such debates (as Cronulla riots in which laws were
passed to give police greater powers) and will often be influences to change
existing laws or make new ones.
Cultural influences:
Refers to the way of life or groups of people living in society
A societys dominant culture usually has strong bearing on types of laws that are
enacted by its lawmakers and less dominant cultures wont always be happy.
Eg. Australias dominant European culture has had a devastating impact on all
aspects of Indigenous Australian culture and society- they were subject to the
British legal system that didnt recognise customary law, traditions and ownership
of land
The multicultural nature of Australian society has also affected laws that are
made-eg. Racial Discrimination Act (1975) or policy of Mutliculturalism
Moral influences:
Morality is concerned with right or wrong conduct-every persons has a personal
moral code
An individuals moral code may be a result of upbringing, education and or
cultural and religious influences
A persons morality will be affected by their conscience as well as current laws:
sometimes issues may conflict with their moral views
Eg: conscription- conscientious objectors
AS a whole society has dominant moral views about certain issues yet are subject
to change over time: Eg: change in attitude towards adultery, abortion and
homosexual relationships greatly changed
Concerning issues Australian morality had tightened considerably- domestic
violence is no longer tolerated or ignored, sexual assault and abuse of children.
Sexual discrimination has been recognised as a major issue in international human
rights treaties. Racisms and genocide is universally condemned by opinion and
international law
How the law deals with breaches of the laws has also changed in response to
changing moral codes. Capital and corporal punishment, once accepted has now
been outlawed and condemned
It isnt always the dominant moral view in society that is reflected in the lawoften intense competition between lobby groups.
Political influences:

29

Each political party has a set of beliefs about how society should be run
sometimes the difference between parties is simply a matter of emphasis placed
on certain beliefs
Eg Liberal emphasise the individual, Labour social justice and Greens stress
environmental issues
Each political party seeks to introduce or alter laws to bring this about. Lobby
groups such as unions, business organisations and NGOs also attempt to exert
political pressure on govt. change.
Economic influences:
Individuals, corporations and elites that possess economic power seek to use their
power to influence the legal system to their own benefit by using contacts within
and donations to parties.
These people and organisations therefore have greater access to political decision
makers and can bring economic pressure to get changes they want
The financial market and stock exchange can also influence laws the govt. makes
International financial markets and global Transnational organisations as well as
World Trade Organisation can affect laws made in Australia
One of the most significant global issues in the 21st C is the increasing economic
power of transnational corporations
The economic power of mighty transnational corporations can make or break the
economy of a poor African or Asian country- they also exert enormous influence
on politicians in wealthy countries
Nature of Law:
Development of law as a reflection of past and present society:
Historical influences also affect the legal system and Australias legal system is to
a large degree a product of its colonial past.
The principles and functions of the parliamentary and court systems are therefore
very much a product of our British heritage. Eg: the basic doctrine of precedent
In addition names, language, roles and clothing of personnel in court originate
from these links and many of these principles and functions are resistant to
change
The legal system also however reflects present society- increasing attempts to
make the court system more accessible and less threatening, also alternative to the
courtrooms such as mediation and counselling.
Customary law, common law and civil law systems:
Customary Law:
- Customary law was the first type of law to develop in all societies and it consists
of principles and procedures that have developed through general usage according
to the customs of people and nation-states.
- Over time customs developed into rules and laws. Three areas in which customary
law had an impact on the Australian legal system are:
o Aboriginal and Torres Strait Islander customary law
o International customary law
o English customary law

30

Originally customary law was not written down but simply developed through
practice and common agreement. In many societies however customary law
eventually becomes transformed into written law in complex and formal legal
systems.
- Law is enforce and controlled by elders
Common law:
- Common law originates from England and is made through decisions in courts
and is therefore reliant on case law rather than parliament
- The main principle that has evolved form this is doctrine of precedent
- This system has developed to ensure consistency between rulings of judges and to
guarantee that similar cases are treated in a similar way
- Adversarial court process: with impartial judge
Civil law:
- Civil law is the legal system used in Europe, Japan and Latin America. Based on
ancient Roman law and 19th C Napoleonic Code
- In the civil law system judges have greater powers and play a more active role
than common law judges
- They can question witnesses- it is therefore also named the inquisitorial system
- Contrary to popular belief the civil law system is adversarial in nature meaning
(as with common law) in the courtroom there are two parties acting adverse to or
against each other.
- A characteristic of civil law is that it is made up of extensive codification and it
also uses more written submissions an there are no binding precedents on judges.
Doctrine of natural justice (procedural fairness)
o Is the concept that people should be equal before the law and that logical
reasoning should be applied to ensure fair processes are followed in both civil and
criminal proceedings
o Two basic principles are that defendants have the right to have their say and a
right to fair trial and impartial hearing
o Natural justice also implies that the defendant:
Is presumed innocent until proven guilty
Has the right to know what the charge is
Guaranteed freedom from bias
Opportunity to question and challenge any statement prejudicial to
their defence
Can hear everything the other side places before the decision
maker.
Purpose of different types of law
Due to increasing complexity of modern society law has branched out and developed into
many areas
Constitutional law:
Area of law governing powers and obligations of governments
Purpose: ordered society and to act as a check on the govts. Use of arbitrary
powers
International law:

31

Covers all matters that cross international borders and relationships between
nation-states.
Made through treaties, conventions, declarations, UN resolutions and case law
from international tribunals
Oldest form is customary law
Public law:
Law that affects everyone- deals with law-making capacity of govts. And with
disputes between State and citizen.
Includes Constitutional law and administrative law a
Private law:
Deals with disputes between private individuals and doesnt involve community
Regulating interaction between individuals
Consists of contract law, torts, family law and property law
Civil law:
Type of law under private
Dispute between private individuals and govt.
Regulating conduct of relationships and solving disputes
E.g. property, tort and contract
Criminal law:
Type of law
Governs actions or failures to act which are harmful to society and are punishable
by the state.
Purpose: Maintain order, regulate conduct, indiv. Rights (overlaps with purpose of
punishment)
Contract law:
Involves a fixed agreements between 2 parties
For a contract to be considered binding it must have:
o Offer
o Acceptance
o Consideration
Contracts can be oral or written
Tort law:
Is a civil action that causes another person harm or discomfort and could have
been predicted or avoided
Deal with disputes between people that do not involve contract
Aims to give compensation to the injured party usually in form of money and is
applied when someone is suing another
Eg. Trespassing on property or suing for assault
Aboriginal and Torres Strait Islanders customary law:
Has developed over thousands of years and has been passed down orally
Started to fade with the arrival of Europeans and their disruption of the Aboriginal
way of life. Incorporates tradition, kinship and ritual
There has been limited recognition in criminal law and in relation to land rights.

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Nature of justice
Justice is the principle of upholding generally accepted rights and enforcing
responsibilities- a just decision is one that is good and fair according to universal
principles
In a democratic system, in which the rule of law is respected and upheld, justice is
always the goal of the legal system, however it can only be as just as the society
from which it comes from.
Concepts of access, equity, fairness, equality and human rights
Aims to give people equal access:
The commitment to the idea of equality grew out of European and US historyfrom mid 1800s there was a movement working towards equality in society
Slavery which had been accepted for thousands of years was eventually abolished
and the idea of equality in voting led to female suffrage
Now idea of equality is accepted in many areas of life such as anti-discrimination
laws affirmative action access and safety nets in the area of health
Also just laws will aim to give people equal access to courts by making
procedures of a court appearance understandable and making it possible for those
of low incomes are able to afford representation
Provides reasonable access to court system:
Is a key feature of justice as every individual should have the opportunity to
defend themselves in a court case
However the legal system is influenced to a large extent by the high cost of legal
representation.
Follows the principles of equity:
Equity involves:
Judging each case on its merits
Ensuring that all parties carry out what they agreed to
Looking closely at the intent of parties involved in a dispute
Principles of equity developed in England in Middle Ages. King had right to overrule
decisions of courts and he delegated power to other courts. The rules of equity were
developed by these courts to correct any injustices in the application of common law.
Gradually principles of equity established.
Treat all people fairly:
Fairness is an integral characteristic of justice and it is the idea of treating people
equally and acting honestly with integrity
Treats all people equally:
In Australia the same law applies to everyone meaning they have the same
opportunity to receive the same legal outcome- called formal equality
However this isnt the same as achieving an equal outcome. Eg. If both a wealthy
person and unemployed person received a parking ticket of $200 the financial
burden would be quite severe for the unemployed
Respects human rights:
Rights that are believed to be basic to the wellbeing of human beings: Freedom of
speech, movement, assembly, association religion

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An essential element of justice is that these rights are protected as much as

possible
However these rights are not always expressed formally in domestic law. Any law
that seeks to overturn these basic human rights however would be considered
unjust
Human rights were first written and codified in the 1776 US Declaration of
Independence followed in 1789 by the Declaration of the Rights of a Man
Australia has no bill of rights but it does have some human rights guaranteed in
the Australian Constitution and in common law
The UN developed the Universal Declaration of Human Rights in 1948, yet being
a declaration rather than a treaty -countries cannot be forced to uphold these
rights. Rather they are encouraged to incorporate these principles into domestic
law.
Characteristics of a just law:
o Publicly known and enforced
o Consistently applied
o Accessible
o Keeps with ideas of fairness and equality
Key Questions/issues
Does formal equality before the law hide institutionalised equality?
Refers to forms of inequality that are so ingrained and accepted within our society
This means that the organisations and policies of one community not only do not
attempt to fix these inequalities, they serve to reinforce them and make them
permanent
Institutionalised inequalities occur within legal systems, govt. policies and social
standards
Institutionalised inequality is often masked by formal equality and therefore not
properly dealt with or even obvious
Examples:
Mandatory sentencing: whilst it seems to be equal as everyone commits a certain
crime receives the same sentence it id through this formal equality that the
Indigenous Australians are most targeted and are therefore subject to
institutionalised inequality
Family Law: Custody: in most custody cases 70-80% of the time the mother wins
custody. This is though to be the case due to the ingrained pattern of thought in
society that the mothers are better carers. Whilst on paper formal equality is
given to both parents social standards create institutionalised inequality
Legal representation: Everyone receives formal equality through the implied
right to a fair trial however the legal system as a whole reinforces the wealth
barrier and set up to favour the wealthy
Isolated communities: treatment of people living in isolate communities-dont
have same access due to geographical barriers

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Human Rights
Rights
Nature and development of concept of human rights:
Although definitions of human rights are often vague certain human rights are
commonly recognised today
The development of human rights is rooted in history and the term human rights
has only been in popular usage for the last 60 yrs.
Human rights have evolved into an essential ingredient of justice and now occupy
an important place in both domestic and international law
It is a concept that has developed gradually over hundreds of years and the
concept grew out of an older legal concept known as natural law (certain rules of
nature ordained by God)
State Sovereignty:
State sovereignty is the concept that a state has ultimate law-making power over
part of the earths surface.
This means that govts. Run their own affairs in their way and are not accountable
to any higher authority
Today there are 193 organisations that posses State Sovereignty (191 are member
of UN). Also known as nation-states
Nation: people that share a common heritage and common interests and
sometimes common race
It is possible for a nation-state to lose is Sovereignty such as in Iraq 2003
In common with human rights, state sovereignty is a fundamental principle that
emerged from natural law
From 1600s state sovereignty grew to overshadow and eventually erode natural
law. The modern legal concept of nation state is about 300 yrs old
It is dated back to the treaty of Westphalia of 1648

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The idea that nation states possess ultimate law-making power or sovereignty was
first proposed by English philosopher Thomas Hobbes- this broke the
philosophical link between God and the State
Argued that the true source of law s the consent of the people and that this consent
was given once only in a surrender of power to a strong sovereign or ruler.
This idea was further developed by John Locke who argued that the consent of the
people to be ruled by a sovereign was capable of being withdrawn if a
government acted poorly
1688 marked a shift in attitude with the revolution in England which terminated
James II and the idea of divine right to rule. This gave the parliament in England
ultimate law-making power
European thinkers looked to England as an example of a nation state in which
political liberty was guaranteed by parliament.
In Rousseaus (French) book in 1762 he proposed that the only valid basis for a
society was an agreement that combined freedom with a just government in the
interests of the majority
The American and French revolutions saw the notion of state sovereignty reach its
pinnacle giving it real legal force, however they balanced the idea that the
sovereign has the ultimate law-making power with the idea that all human beings
possess certain rights.
Natural Law Doctrine
The idea that every human being posses certain basic rights has its origins in
ancient history
Any law or code of systems implies certain rights Eg. 10 Commandments do not
steal implies people have right to personal property and do not murder implies
people have right to life
Treaties in the ancient world implied certain rights but only while the rulers who
made them were still alive
Ancient Romans developed the concept of jus gentium- idea that certain beliefs
about what is right or wrong are common to rational people in all civilizations.
Eg. All civilizations outlaw for murder, assault and sexual offences
In Middle Ages the idea that there are certain rules of nature was connected to the
belief that God ordained these rules. During this 1000yr period the notion of rules
of nature became known as natural law
With the rise of the nation-state and the demise of political authority of the
Catholic Church in Europe he concept of natural law diminished in importance, it
was soon replaced by positivism: notion there is no supernatural or religious
element in law-making.
Meaning laws are based purely on facts and are only made by the national
sovereign. It implied that rulers were no longer accountable to God. They were
free to make whatever laws they like within the boundaries of the nation state.
This became enshrined in the Treaty of Westphalia.

36

Today human rights form a highly developed area of law. A body of codified
human rights have evolved since Nuremburg so that govts. Are once again judge
by universal standards and held accountable to higher authorities.
Historical constitutional documents:
Most significant are:
Magna Carta (1215): document that certain noble forced King John of England to
sign limiting the kings power. King promised there would be no interference in
the life of the Church, no new taxes and no free man would be imprisoned without
a trial and towns could keep all the privileges they had built up over the years
Habeas Corpus Act 1679 (UK): declared the lawfulness of detention must be
tested quickly by the courts. This means that people could not be held indefinitely
without being charged or facing trials
English Bill of Rights (1688): part of an agreement for reinstating the monarchy
after the popular overthrow and expulsion of King James II. William and Mary
from Holland were invited to take over the thrown in return for a Bill of Rights.
This was to prevent a return to the anti-parliament policies of James II. It forbade
the king to raise an army or levy taxes without consent of parliament. Guaranteed
freedom of speech and no imprisonment without trial. This represented an
important transfer of power from the monarchy to parliament.
US Declaration of Independence (1776): really a declaration of war against the
repressive British govt. the most important statement within the document was
all men created equal/ the key aspect is the concept that rights are seen to exist
because we all think and feel them. We believe we have the right to be free and
not be oppressed- this we believe instinctively.
US Constitution (1789): Constitution created a federal union of the existing 13
states. Came into existence in 1789 and was called USA. Contained in the
document was the idea of separation of powers designed to prevent any branch of
govt. from becoming too powerful.
US Bill of Rights (1791): Also known as Amendments to the Constitution.
Originally 10 amendments now referred to as Bill of Rights. Due to concern that
the new constitution didnt provide safeguards against a future govt. violating the
rights of a citizen, it was amended. Included freedom of speech, religion, right to
have arms, abolition of slavery. Many of the rights enshrined in this Bill included
all the principles o the historic documents from Magan Carta onwards.
French Constitution (1791): After French revolution proclaimed Declaration of
Rights of Man- some of these rights were written into the French Constitution.
The ideas of the French document were spread to eh European nation states that
were conquered by the French during Bonapartes rule and served to inspire their
own political progress and sense of nationalism.
Treaty of Versailles (1919): the establishment after WW1 of a world body with
primary aim of preventing war: League of Nations. The focus on prevention of
war is now described as a collective right to peace. They were also focused on the
rights of nations states and people to be able to rule themselves free from threat of
oppression: self- determination. The only human rights treaty brought into force
by League of Nations was Slavery Convention of 1926. L.O.N dissolved in 1946

37

Universal Declaration of Human Rights (1948): formation of Un human rights

were important. This was the first declaration written by UN and became the high
point in the quest for recognition of human rights. NGOs had been fighting for
human rights for many yrs and many were included in the drafting of the
document. One failing said to be with the UDHR was that it failed to recognise
political rights (freedom of assembly and right to fair trial). Decided the
declaration shouldnt be binding-this allowed for the maximum nb of countries to
sign it. It has gained wide acceptance by international community and even
though it hasnt formally been made into a treaty it has become part of
international customary law.
Genocide Convention (1948): adopted by the UN General Assembly and came
into force in 1951. Motive: horrors of Nazi regime. First time in history that
genocide was officially made a crime. First piece of hard law drawn up by UNtheoretically can be enforced. Although effective in securing nearly universal
condemnation it failed to motivate politicians and diplomats to take concrete
measures to ensure it wouldnt be repeated again.
Twin Covenants (1966): UN produced a treaty based on UDHR and would oblige
nation-states to guarantee human rights in domestic legislation.. Cold War
tensions led to dispute on what rights should be included. Western nation states
wanted only civil and political rights covered whereas communist countries
wanted social and political rights covered. To resolve this it was split into two.
They are treaties and therefore are enforceable. The UDHR and these 2 covenants
are collectively known as the International Bill or Rights:
o International Covenant on Civil and Political Rights: covers rights such as
equality between men and women, right to fair trial, innocent until proven
guilty, freedom of though, religion and assembly. Torture and slavery
outlaws and guarantees right to vote and equal protection under the law.
o International Covenant on Economic, social and Cultural Rights:
Guarantees every person has right to just conditions and fair wages at
work. Right to adequate food and clothing, housing and health care. Right
of eduction.
Historic movements in recognition of Human Rights
Movement for the abolition of slavery:
Slavery had been accepted and widely used in the ancient world well into the
Middle- Ages. From the 1500s European govts. were engaged in enormous slave
trade involving the capture of people in Africa and their transportation to
America.
Brit govt. passed Emancipation Act in 1833 which outlawed slavery in British
Empire. Despite US Declaration of Independence slavery continued to exist
mainly due to the Souths economic dependence on slave labour.
By the end of the Civil War slavery was abolished. In 1890 the General Act of
Brussels was signed by European nation-states which put an end to African slave
trade.
Slavery Convention (1926) slavery was defined as status or condition of a person
over whom any or all of the powers attaching to the right of ownership are
exercised. Also banned under Article 4 of UDHR
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Despite good intentions slavery continues to exist today in form of human

trafficking, child labour, sweatshops, sexual slavery and forced labour.
Trade unionism:
First emerged during the Industrial Revolution in England and spread to US,
Australia and various nation states of Europe that were becoming industrialised.
They were a response to appalling conditions. Long hours and low wages.
Earliest trade unionists seen as revolutionaries and many were arrested and
sentenced.
First Trade Union Congress was set up in 1868 and Second in 1869. in 1871
British Govt. passed Trade Unions Act which secured legal statues of trade
unions.
In Australia a strong movement developed from 19th C, the unions formed their
own political party known as the Australian Labor Party.
Achievements included establishment of minimum wage, working conditions
equal pay, long service leave, maternity leave, public holidays, OH&S laws.
At end of WW1, the International Labour Organisation was formed through
negotiations at Paris Peace Conference. Aim: improving conditions for workers
around the world and was responsible for many conventions on working
conditions and rights
Many of the basic rights that the ILO championed are now enshrined in human
rights treaties.
Universal suffrage:
Relatively new concept: that everyone should be able to vote for the govt. of their
choice.
Initially the first countries to achieve democracy allowed only limited nb. of men
to vote and usually those who owned large amounts of property.
Demands for male suffrage were gradually met by 1914 where most men were
allowed the right to vote-took longer to extend this right to women. SA was the
first place to give women the right to vote in the world (1902)
Despite gradual advances of suffrage there were only a small nb. of democratic
countries in the first half of the 20th C.
The right to vote is recognised by the world community in Article 25 of the
ICCPR (1976). However since not all nation-states are democratic still many men
and women are denied the right to vote.
Universal Education:
Refers to the idea that all human beings have a right to an education- only reached
wide acceptance recently
Until the last 150yrs only children of the elite classes were given education. By
the mid 1800s the increasing demands of industrialisation and growing
competitiveness between nation states along with widening suffrage required a
literate and educated population.
European govts. began providing funding for schools and in 1870 Brit. Parliament
passed the Education Act and education was made compulsory for all children
below 12yrs old

39

By the second half of the 20th C free and compulsory education was regarded as
not only desirable but a gaol for all govts. to pursue, but was also seen as a basic
right
Article 26 in the UDHR states everyone has the right to education.
Laws of War:
Jus in bell- Latin for Laws of war. Define the conduct and responsibilities of
warring nation-states and neutrals in terms of treatment of non-combatants and
civilians during war time
Red Cross was on of the first global NGOs to be formed. Pioneered for
humanitarian work and it also championed the development of the rules of war,
which are referred today as International Humanitarian Law.
Further development of rules of law at the Hague Conferences of 1899 and 1902,
also further by numerous Geneva Conventions.

Distinguishing between moral, customary and legal rights

Moral Rights:
Moral rights are those that are based on a persons principles, beliefs or religious
convictions. Societys laws quite often reflect the moral views of the majority
Sometimes an individuals belief conflicts with the laws and policies of the govt.
Eg. War/conscription: Conscientious objectors
Customary Rights:
Rights that a community- local, national and international-has developed over a
period of time. Often these rights will eventually be incorporated into domestic or
international treaties.
From 1948 the UDHR has been part of international customary law. It was written
as a declaration rather then a treaty. The UDHR is now part of the accepted norms
of behaviour.
In theory all nation-states are bound to respect customary rights even though they
may not have signed any treaties regarding such rights.
Legal Rights:
In domestic jurisdiction a legal rights is any right tat is based on the constitution, a
bill of rights, legislation or common law.
In international law it is any right contained in hard law: treaty, convention or
covenant. To benefit from these they need to be ratified and integrated into the
nations statutory legislation.
Differences between domestic and international rights
Jurisdiction:
o Domestic law is only valid within the country in which it is made. International
law has global jurisdiction.
o Due to state sovereignty certain nation-states can block or ignore certain
international laws that they dont like- in such way state-sovereignty becomes a
barrier to international law
Enforcement:

40

o Domestic law is enforced by the enforcement agencies in each country. In a

healthy democracy this enforcement is carried out in a routine manner by police
and courts
o Enforcement of international law is far more complex. The bulk of IL exists due
to mutual benefit. There is no international police force and they therefore cannot
routinely carry out law enforcement
o The International Court of Justice (deals with disputes between nations) power is
not binding. They can only hope that the negative world opinion might shame the
noncompliant country into action
o Only recently has an International Criminal Court been established to deal with
violations of human rights. In theory the ICC gave force to all human rights
treaties. However US opposition places a question mark over the future
effectiveness of the international court
Identifying types of international Rights
Civil and political rights:
- Are enshrined in the International Covenant on Civil and Political Rights (1976)
- Aim: to encourage basic conditions necessary for healthy societies in which the
rule of law is a feature.
Economic, social and cultural rights:
- Are enshrined in the International Covenant on Economic, Political and Cultural
Rights
- Promotes worthy goals of ensuring peoples basic needs for food, shelter and
clothing.
- Education ect
The Twin Covenant represents a useful standard by which to judge the civil society of
any nation state. However whilst these are worthy and noble documents the
implementation of the list of human rights is dependant on the moral and political will of
the worlds leaders to enforce those rights.
Environmental rights:
- Environmental declarations and treaties have assumed a greater importance in
recent years with global warming.
- The Stockh9om Declaration (1972) the Rio Declaration (1992) and the Kyoto
Protocol (1998) represent attempts by international community to deal with
environmental problems
- One main problems in achieving progress in the failure to ensure all nation-sates
will commit to measure for the benefit of the global community when these
methods seem to be a disadvantage in the countries interest for the short-term
Peace rights:
- The UN passed a non-binding resolution in 1984 that asserted the right of all
peoples to peace.
- Numerous NGOs now exist to lobby govts. so seek peaceful solutions to conflict
- The multilateral Nuclear Non-Proliferation Treaty 1968 and bilateral arms
reduction treaties between USA and USSR have been quite ineffective in the
proliferation of such weapons
Collective right to self-determination:
- Means that a people of nation-state has the right to govern itself

41

This right is implicit in the recognition of the importance of state sovereignty in

world order- principle was central to the philosophical basis of the establishment
of the League of Nations, also a foundation for international law
- In ICECSR states all people have the right to self-determination. By virtue of
that right they freely determine their political status and freely pursue their
economic, social and cultural development
- This legislation furthers the principle of self-determination by taking up the cause
of Indigenous peoples.
- Article 1.3 also supports the rights of non-self-governing and trust territories
(territory that is administered by another country under UN supervisions). By
1994 all these territories had attained self-govt. or independence.
Recognition of Human Rights under Australian Law
Constitution:
Australia doesnt have a bill of rights rather a few rights are stated in and
protected by the Australian Constitution
These included the freedom of religion, right to vote, presumption of innocence,
right to trial by jury and the right to freedom of speech (implied right; Lange v
ABC 1997)
Common law:
Has evolved independently of the govt. and carries the power to protect many
human rights. Eg. Right to fair trial and presumption of innocence
Common law rights can be easily removed or changed by statute law.
International law can also directly affect common law.
The Mabo case (1992) over ownership of land and for the first time High Court
recognised native title.
Statute law:
In the last 50yrs a large body of statue law has grown up to protect human rights
This has been partly a legislative response to the increased volume of
international law.
When Australia signs a treaty the next step is for them to incorporate it into
domestic law Eg. UN Convention on Rights of Child (1989) which has now been
incorporated into family law.
Administrative law:
Provides another means by which individuals can protect themselves from unfair
exercise of State power.
Administrative tribunals exist in each Australian state to examine and even
overturn poor govt. decisions.
The power to reverse govt. decisions exists for courts in every jurisdiction under
common law.
Evolving human rights, including the possibility of a bill of rights:
o In Australia human rights have become incorporated into Australian common and
statue law. There is one further way in which human rights could influence the
Australian legal system: through a bill of rights

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o Such a document would explicitly state the basic rights tot which all Australians
are entitle to
o When the Constitution was written the writers were more concerned with
guaranteeing the rights of states than with human rights
o 1944 there was an attempt to change the constitution so it guarantees freedom of
expression, religious freedom and freedom from want and fear-limited proposal
was lost in referendum
o 1983 a Bill was drafted but never introduced.
o Bill of rights issue not revisited until the 1997 Constitutional Convention, which
focused only on a proposal to make Australia a Republic
o Many who oppose bill of rights argue that human rights are adequately protected
in the constitution, statute and common law. Also once established it becomes
inflexible and hard to change and problems arise (Eg US right to bear arms have
made gun control difficult)
o Those in favour argue Australian still doesnt adequately protect all people,
particularly the powerless in society and minority groups. It would also make it
more difficult for a govt. to interfere with basic human rights. It would also be
easier to inform and educate Australians if their basic rights were codified into a
Bill of Rights
o The last attempt to bring about a radical change to the Australian Constitution was
the 1999 Referendum on a Republic
Recognition and enforcement of rights:
All over the world, international human rights convention have been written into
domestic law by parliaments, used in common law and implemented into
domestic law by parliaments
Once human rights laws are incorporated into domestic law they are enforced in
the same way as other domestic law.
In international sphere enforcement is not so simple- it is often sporadic.
Enforcement of human rights on the global stage takes the moral and political will
of world leaders to give weight to human rights treaties
Contemporary struggles for human rights:
The recognition of human rights standards leaves anyone who commits atrocities
without an excuse for doing so
All NGOs working in the area of human rights can speak a common language
with govts. by referring to well known human rights treaties and declarations.
Improvements inhuman rights for humanity under dictators and corrupt govts.
depends on the willingness of wealthy democratic nations to advocate human
rights for the benefit of humanity
These are some example in which there is still systematic abuse of basic human
rights:
o Torture
o Violence against women
o Child soldiers
o Human trafficking
o Religious intolerance
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o Racial discrimination
o Arbitrary detention
Changing understanding of human rights:
During last 60yrs there has been a revolution in the understanding of human rights
In the 2 C leading up to WWII there had been a development of the concept of
human rights, but only in limited countries.
It was the blossoming NGOs in the 1940s and their involvement in the creation
of the UN that led to the placement of human rights at the heart of the vision for a
more just post-war order.
In hindsight it is evident that framing the UHR as a non-binding declaration was a
wise decisions. It made it easier to gain universal endorsement and to the first
time a standard of human rights that applies to all human beings
All subsequent human rights treaties have been built on the foundation of the
UDHR, however all except the UDHR are treaties meaning binding and
enforceable
Every one of these treaties are positive steps in the recognition and promotion of
human rights
International law has now become a major source of domestic legislation and a
large % concerns human rights
There has been a total change of mindset about human rights
Effectiveness of legal measure in addressing human rights:
- In comparison with international law, domestic law is far more effective in
addressing human rights issues
- The main problem with international is enforcement
- There are international courts (such as ICJ and ICC), but all nation-states,
especially powerful ones, can choose to ignore decisions
- International law can be very effective but only when it received strong backing
from the majority of nation-states
- The effectiveness of domestic law depends on whether a country is characterised
by the rule of law or by arbitrary power. A citizen in a country where there is rule
of law has many avenues through which to address human rights violations.
Non-legal methods for promoting and enforcing human rights:
o Non legal methods can be highly effective in promoting and enforcing human
rights
o The media can focus the worlds attention on a human rights issue and thus
encourage nations states to come to the aid of various groups suffering human
rights abuses: Eg with acts genocide Darfur province Sudan
o High profile individuals are able to play an effective role in ensuring human rights
issues addressed. Eg. 2006 Nicole Kidman became a UN Goodwill Ambassador
for women.
o Business groups can also have an impact; EG. 2006 the Global Plan to Stop
Tuberculosis was backed by 400 worldwide business organisations- Bill Gates
donated $600 million

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o Lobby groups such as Amnesty Internationals constantly lobby govts. to observe

human rights, often relying on the naming and shaming of govts. To ensure action
is taken on behalf of those suffering
o Sometime they focus on transnational groups and their abuse of human rights Eg:
Nike has been accused of exploiting and mistreating employees

45