Extensive Notes on Entire Topics (Crime, World Order & Family Law).pdf

HSC Legal Notes Definitions - Recidivism: the tendency of a convicted criminal to reoffend - Verdict: guilty/not guilty - Strict liability: not proving men’s rea, only actus reus - Incarceration: imprisonment - Litigatio...

HSC Legal Notes Definitions - Recidivism: the tendency of a convicted criminal to reoffend - Verdict: guilty/not guilty - Strict liability: not proving men’s rea, only actus reus - Incarceration: imprisonment - Litigation: suing - Doli incapax: deemed incapable of forming the intent to commit a crime - Control order: imprisonment CRIME Possible Essay paragraphs - Bail//remand - Police powers o Tasers o Identification o Sniffer dogs o Strip searches - Young offenders o Doli incapax o YJCs o Rehabilitation o Children’s court - Statutory and judicial guidelines - Alternative sentencing - Charge negotiation - Law reform - Legal aid - Post sentencing considerations o Parole o Sex offender registration o Protective custody - Complete and partial defences Themes and challenges - The role of discretion in the criminal justice system (discretion) o Having flexibility and choice around the charging of an offence - Issues of compliance and non-compliance in regard to criminal law (compliance/non) ® Parole ® Bail/remand ® Drug court/YJCs ® Post sentencing agreements o Regards moral and ethical standards o Complied with:  § Against people § Economic o Non-compliance: § Driving § Piracy/copyright - The extent to which laws reflects moral and ethical standards (morals and ethics) o Laws reflect society moral and ethical standards - The role of law reform in the criminal justice system (law reform) o Laws reflect society’s moral and ethical standards - The extent to which the law balances the rights of victims, offenders and society (balancing rights) o The balance to do the right thing by all involved - The effectiveness of legal and non-legal measures in achieving justice (legal and non-legal measures) Meaning of crime - A crime is an act or omission (something you’re not doing- eg not paying taxes) regarded by the state as sufficiently harmful to society to warrant the punishment of control of the offender through the process of the courts Elements of crime - Men’s rea (guilty mind) o The accused person intended to commit the crime understood what was happening when the act was committed; had a conscious and willing mind when performing the crime. The degree of intention required to prove a crime can differ between crimes. There are 3 main levels of men’s rea: § Intention: (did they have the intention to kill the person?) § Recklessness (knew risks, acted anyway) (eg drink driving) § Negligence (should’ve known the risks) (eg should’ve known to pay taxes) - Actus reus o Did they commit the act? Strict liabilities (no flexibility) - Don’t have to prove men’s rea, only actus reus. Eg: o Driving/traffic offences o Transport tickets o RSA (Responsible Service of Alcohol) Causation - The link between your actions and the outcome Category of crime - Against a person o Eg murder/assault  - Against sovereign o Eg treason (betrayal of the government) - Economic offences/white collar o Eg not paying taxes/theft o Financially motivated crimes committed by rich people/governments - Drug offences o Eg dealing, smuggling - Driving offences o Eg speeding, parking - Public order offences o Eg offensive conduct - Preliminary crimes o Eg attempts and conspiracy Summary and Indictable offences Summary (Less serious) Indictable (serious) - Local court - District/supreme court - No jury - Jury (12 people decide guilt) - Magistrate - Judge (with wigs and robes etc- - Max sentence: 2 years formality) - Short hearing - Max sentence: life - Prosecuted by a police - Trials can last for months prosecutor - Prosecuted by a crown prosecutor Different for efficiency, prioritise money and time. A jury doesn’t need to spend their time deciding if someone ran a red light, but in murder cases, there needs to be a series of un-biased opinions to give their input. Parties to a crime - Principle in the first degree o The person who committed the crime o They have the highest sentence o Eg john stabs joe. John is the principle in the first degree - Principle in the second degree o The person that was there and assisting, but didn’t commit the offence o Eg john’s friend, Bob kept a look out while john stabbed Joe - Accessory before the fact o Someone who assisted in the preparation of the crime o Eg bill bought a knife and gave it to john so he could use it to stab joe. - Accessory after the fact o Someone who assisted in the covering up/after events of the crime o Eg Tim helped John hide Joe’s body in Joe’s mum’s garage. Discretion - Flexibility and choice around the charging of an offence  Factors effecting criminal behaviour - Psychological: (eg mental illness) - Social: (family situation, upbringing) - Economic: (eg may need to steal basic things such as food for survival) - Genetic - Political: (eg terrorism) - Self-interest: (eg revenge, greed) Crime prevention - Situational (physical) o At the site o CCTV o Well-lit carparks o Alarm tags on clothes o Alarms o passwords - Social (programs) o Behavioural o Talks etc Police Powers - Community safety - Safety of police - Citizens’ rights - Community standards - Justce - Victims’ rights - Risks of limiting power: o Puts police at risk o Hard to protect public o Anarchy (lawlessness) o Easy to get away with crime - Risks of increasing power: o Lack of trust o Abused power/breech of authority o Lack of privacy - Law enforcement (powers and responsibilities) Act 2002 (NSW) o S19A: Require removal of face covering for identification purposes (Carnita Williams case (claimed police officer assaulted her when pulled over by police, couldn’t identify as she couldn’t take it off) o S21: Power to search a person and search without a warrant with reasonable suspicion o S99: To arrest without a warrant (if you’re a danger to yourself/the public. o S148: General drug detection with dogs by warrant (eg sporting arenas, licenced premises)  o S202: police are to provide information when exercising power (must always wear ID and badge to identify themselves o S230: use force generally by police officers (can use physical force if necessary Balancing Rights - Protect Infringe on rights - Corruption - Inadmissible evidence: evidence doesn’t count if obtained illegally Tasers - Ron Levy o Before tasers, police shot him to contain, he died - Roberto Curti o High and stole biscuits o Police chased and tasered him multiple times killing him o Coroner stated it was an ‘abuse of police powers’ - Law reform o Not to be used as force compliance o Should only be used if immediate threat to police/passers by - Enpwin Amon o Ran from police, fell, knocked unconscious, handcuffed and tasered multiple times, followed with taser pointed at him when he couldn’t walk (injured and handcuffed when tasered) Public safety order - Where the police can order you not to go to a specific place/see a specific person - Used for things like gang murders, terrorist groups and organised crime - For 3 days, issued by the police Serious crime prevention order - Similar to public safety order, can be for up to 5 years, issued by court - Can restrict phone use and computers etc Crime process Report Investigate Arrest Gather more evidence (includes DNA, mobile phones, dashcams, CCTV, interview witnesses, questioning- can only last 6 hours max, allowed right to silence) – must be legally obtained to be relevant to case  Charge Remand Bail (kept in jail cell until trial starts) (freedom whilst awaiting trial) - R vs Cowan case o 13-year-old Daniel Morcombe o Murdered by Brett Cowan o ‘Canadian technique’ o Police lured him in by creating a cake gang and asking about crime - Janelle Patton case o Body found on Norfolk Island o Treated internationally- passports used to get on the island o Had access to exactly who was on the island - Interrogation o Can be held for 6 hours o To get 6 more hours of interrogation, must go to court - Drug detection dogs pros and cons o Pros § Prevent drug deaths § Deterrent § Catch criminals o Cons § Privacy § Non-consensual § Animal welfare § Risks § Accuracy § Cost § Minor convictions only- won’t catch dealers etc § Targets young/vulnerable - The right to silence o you’re not obliged to say or do anything unless you wish to do so. But it may harm your defence if you do not mention when questioned something you rely on in court o changed in NSW recently to allow the use of silence to be brought into court - bail/remand o temporary release of an accused person awaiting trial Pros (for bail) Cons (for remand) § resource efficient § pose a threat to society  § trials can be long § could re-offend § protect rights § interfere with witnesses § innocent until proven guilty o things used on bail § ankle trackers § not allowing you in a certain area § report daily/weekly/monthly to the police station § money (give money to the court, get it back after trial) § hand in passport (get it back after trial) o in relation to bail: § discretion ® magistrate uses discretion to do the unacceptable risk test ® 2014 show cause reduces judicial discretion ® 2015 terrorism § compliance ® laws about guaranteeing compliance ® various conditions (eg ankle trackers and sureties) ® ‘unacceptable risk’ is about compliance ® Show cause ensures bail  § moral and ethical standards ® unethical to put people on remand unless necessary ® important morally to correct to protect community/victims and avoid outrage ® reversing presumption of innocence § law reform ® 1978- too complex, inaccessible, inconsistent, resource efficiency ® 2013- relatively effective ® Community outrage (eg Mick Hawi) ® 2014- stricter ‘knee jerk’ reaction, 40 days. Too hash ® 2015- Mans Monis Reporting crime - Police stations - Calling ‘000’ Warrants - Must have a warrant to: o Have an interrogation over 6 hours o Arrest someone of a crime being investigated o Enter/search any residential/business premises without consent o Obtain a phone tap (track phone activity) Criminal Trial Process Offender is charged Committal process Jury selection Crown opening submission Witness gives evidence Defence makes its case Crown gives closing submission Defence gives closing submission Jury announces verdict Sentencing hearing  Victim impact statement NSW court hierarchy High court federal court Court of criminal appeal Supreme superior state courts District court drug court intermediate state court Local, coroners, children’s lower state courts Summary investigate all children’s Suspicious cases (not Deaths murder or traffic) Committal hearings - A small trial in the local court to see if there’s enough evidence for a trial. NO longer exists Adversial system - Competition to win - Two competing sides - Oral evidence - Common law - Jury makes decision - Judge determines matters of law and sentence -neutral arbiter - Strict control over evidence - For: o Less biased o Both sides make a case o Less dependent on judge’s position o Balance values Inquisitorial system - Judge actively investigates - Search for truth  - Evidence can be written - Lawyers less important - For: o More focussed on justice o Less dependent on lawyers o Jury can be ignorant/prejudice o Loser rules of evidence o Resource efficient Legal personnel - Magistrate o No jury o They decide and sentence - Judge: o Has a jury o Only decides the sentence - Police prosecutor (summary) o Responsible for charging the offender initially - Director of public prosecution (indictable) o Initial charge of the offender - Public defenders o Legal aid lawyers - Barrister o More qualified, traditionally speaks in court - Solicitor o Traditionally behind the scenes Juries Pros Cons Allows for a wide range of opinions Can be biased to trial Reflects society’s values Can waste time as trials can be a year Reduces biases that may come from long judges Juries don’t know much about legal terms - Must refrain from researching case (lower their exposure to the media) - Majority verdict à 11 to 1 decision on innocence (controversial as the one disagreeing is reasonable doubt) Charge negotiation and pleas - Resource efficient - CAN achieve justice - 25% off before trial - Lowering sentence through pleading guilty - Nanette May case à ex boyf attempted murder with a knife, removed the knife and attempted murder, negotiated to change to grievous bodily harm  Legal aid - Can cost more for a lawyer than the charge - Under 18s and people under a certain economic status get a right to legal aid (and more serious cases) - Dietrich vs the queen 1992 à convicted of drug charges and not allowed legal aid. He appealed as he didn’t have a fair trial. Burden and standard of proof - Provided by prosecution - Must be proven beyond reasonable doubt (standard of proof - Inadmissible evidence: obtained illegally Defences to criminal charges - Complete defences o Automatism (when the offender couldn’t control their actions- involuntary) (must show the act was involuntary/couldn’t be controlled) you can’t be convicted of a crime if you don’t remember doing it(eg R vs Brown – she was attacked by a robber, took his gun and shot him. Suffered from post-traumatic automatism) (eg sleepwalking) o Necessity (must prove that it was vital to prevent something worse (eg r vs Dudley and Stephens 1884- 3 lost at sea, two killed and ate the third. Proven guilty as doesn’t count for murder. o Duress (forced into it. Against free will) eg Lucy dudko case; someone escape jail by having his girlfriend hold a gun to the helicopter pilot’s head.) o Mistake (eg hunting and shooting at movement thinking it’s an animal) o Self-defence (Jessica Silva, husband was strangling brother, she stabbed husband) o Mental illness (being unable to form men’s rea eg schizophrenic)(eg waterlow 2011 had delusions from paranoid schizophrenia and murdered 3 people- not guilty) - Partial defences o Diminished responsibility (mental impairment)(r v kain 2013 deteriorated brain from alcohol, killed his mum- manslaughter) o Self-defence: excessive (similar to self-defence, still a crime as it was over dramatic (eg gay panic) o Provocation (a reaction to someone pissing you off (eg wife telling husband she’s leaving him) SENTANCING AND PUNISHMENT Statutory and judicial guidelines - Assist in sentencing - Reviews past similar cases (judicial guidelines) - 75% minimum non parole period of 18.6 years - Crimes (sentencing and procedures) act 1999 - Aims- what are we trying to achieve? o Justice  o Fairness o Consistency o Discretion (structured) - Judicial guidelines: the previous cases that influence and structure sentencing - Statutory guidelines: the legislation that influences and structure sentencing the purposes of punishment: (why?) - deterrence (specific and general) o Specific: teaching someone a lesson, thinking I won’t do that again, jail sucks o General: sending a message to everyone in a society. Making others scared of the crime - Retribution o Fixing your own issue o Eg graffiti crimes on trains -> do community service cleaning sides of trains - Rehabilitation o Put in place to rehabilitate a person and help them to become a better person o Eg youth justice conferences - Incapacitation o To protect the community o Locking them up to keep everyone else safe. o Eg serial killer in jail for life factors affecting a sentencing decision: aggravating and mitigating circumstances Aggravating factors Mitigating factors o They’re likely to re-offend o Guilty plea o They have a criminal record o Remorse shown o Multiple victims o Not planned/organised o Abuse of authority/position of o Under duress trust o Provocation o Use of a weapon o Not likely to re-offend o Infront of someone under the 18 o No criminal record o Planned/organised crime o ‘out of character’ the role of the victim in sentencing - victim statement after verdict- isn’t allowed to influence jury’s decision of guilt - the victim is not the prosecutor, the state of NSW takes the offender to court, not the victim. Unless it’s a civil case, then it’s the two parties against each other - not up to the victim to choose if they’re in trouble or not. Can’t choose to ‘not press charges’ - victim’s rights/role o speak to media- can impact a fair trail o victim impact statement (after verdict) § gives victims a voice § gives victims justice  § when taken into consideration, makes the victim seem more important than those without victim statement. Two victims murdered under the same circumstances, if one doesn’t have any friends their murderer may receive a lower sentence because of a lack of victim impact statement. § law reform ® o allowed to give video/written evidence/victim statements o compensation money (eg assault victim can’t work for 6 months can apply for victims compensation) o charted of victim’s rights (eg kept informed) appeals - local - district - supreme - court of criminal appeal - high - Can be due to: o Severity (if the sentence was too harsh) o Rule of law broken (inadmissible evidence, unfair trial) o Leniency (if NSW thinks the sentence is too lenient) Types of penalties including (blue: since September 2018 no longer used as an individual sentence used as a part of a CRO (conditional release order), CCO (community corrections order), ICO (intensive corrections order)): - No conviction recorded o Section 10 o Guilty- but not punished - Caution - Fine o Monetary penalty o 28 days to pay/challenge in court o 1 penalty point = $110 in NSW - Bond o Most common form- ‘good behaviour bond’ o Eg going to counselling, refraining from gambling - Suspended sentence o Proven guilty, sentenced, but pushed sentence back, if well behaved - Probation o Some form of supervision (eg daily reporting to police station) - Criminal infringement notice o On the spot fines o No conviction is recorded if the offender accepts the notice. - Penalty units o Form of counting fines  o Eg fine of 10 penalty points: (1 penalty point in NSW is $110) 110 x 10 = $1100 - Community service orders - Home detention o Allowed to complete prison sentences at home (for up to 18 months) - Periodic detention (now ICO) o Like part time prison – eg weekends in prison o Now made specific to person eg every weekend community service - Forfeiture of assets o When money/property is criminally obtained, they may have to sell them - Imprisonment - Diversionary programs o Last resort o 75% re-offend Alternative methods of sentencing - Circle sentencing o Uses indigenous traditional sentencing o Includes discussion with victim, offender, police and elders talking about how the crime affected them - Restorative justice o Voluntary conference between the offender and the victim as well as any family and/or support persons who get together and deal with the aftermath of the offence o Provides an opportunity for the offender to take responsibility for actions and the impact they had on others, to show remorse etc. o (Youth justice conference is a type of restorative justice) - Youth justice conference o Discussion with victims reflecting on how the crime effected the victim o Only for under 18s Security classification - Protection of prisoners - Safety Protective custody - Protection of certain prisoners - Usually for: o Police officers o Sex offenders (specifically child sex offenders) (eg Robert Hughs) o Informants (people who snitch to the police) Parole - Early release from jail - Incentive to rehabilitate - Resource efficiency - Perceived as being soft on crime  Preventative detention - Putting someone in jail to prevent a future crime - Usually used for terrorism - Removing presumption of innocence - Public safety - Warrant required- balance rights Continued detention - Keeping someone in prison PAST their maximum sentence - Violates the separation of powers - Needs a court order Sex offender registration - Public safety - Can’t get a working with children check - Depends on the case, controversial as they have the title their whole lives regardless of the severity of the crime Deportation - Removed from Australia - Sent ‘home’ (back to country of citizenship) - Decision made by minister of immigration YOUNG OFFENDERS Age of criminal responsibility - Birth- 9 years: o Section 5 of the Children’s (criminal proceedings) Act 1987 (NSW) says “no child under the age of 10 years can be guilty of an offence” This means that under the age of 10, doli incapax (deemed incapable of forming the intent to commit a crime) is presumed (it’s assumed that the child didn’t have the criminal responsibility for the crime and didn’t understand it was wrong) - 10-13 years: o Children between the age of 10 and 13, it is presumed that they don’t know what they are doing is seriously wrong, but it IS rebuttable (it can be proven that they knew what they were doing was wrong in court) - 14-17 years: o once a child has turned 14, doli incapax is no longer assumed, therefore they can be criminally responsible for their actions and are considered capable of having criminal intent o the law still protects young people, in courts eg children’s court, youth justice conferences, privacy rules etc - 18+ years: o Full criminal responsibility the rights of children when questioned/arrested  - Identification, name and address o the police have the right to ask anyone to identify themselves (including name and address) when: § driving a car § involved in a car accident § when a suspect/witness of a serious crime § when on public transport § if suspected of being under 18 and carrying/consuming alcohol in a public place without adult supervision - Right to silence o Like everyone has the right to silent, children are allowed the right to silence even when questioned/arrested in the police station - Upon arrest/right to legal aid o Legal aid is provided to young offenders, regardless of their economic status o The Children (Criminal Proceedings) Act 1987 (NSW) creates the presumption that children should not be arrested or detained, unless the offence was serious or violent or there is a chance of further offences - Caution of rights o Children are allowed up to 3 formal cautions as a result of their punishment - Interview friend during questioning o Allowed a support person to be present during questioning etc (has to be over 18) - Forensic procedures, photos and searches o If under 14, fingerprints and photos can only be taken with a children’s court order o No DNA samples can be taken of a suspect under the age of 18 o Can’t strip search a child under 10, between 10 and 18, another adult must be present and over 14 must consent - Detention o can be detained for maximum 6 hours, and a further 6 hours if warrant granted children’s court- procedures and operation - either under 18s or under 18 when committed the offence (have to be charged by the time they turn 21) - closed court - no jury Punishments - Dismissal of charges - Issue caution (if it happens again, you’ll be properly punished- only 3 can be issued) - Fines (ineffective- parents pay it, or - Good behaviour bond (if you end up in court again, bigger punishment, more formal, conditions)  - Probation order (frequent check ins) - Community service order (making up for mistakes, expensive- people need to supervise, children don’t take it too seriously) - Control order (putting the child/young person in detention- basically going to jail- juvenile detention) Alternatives to court - Children should be kept out of jail as often as possible - Legislation o Young offenders act 1997 (NSW) - Evidence/cases o 64% of those who referred to a youth justice conference were referred back withing 12 months - For o Keeps younger people out of jail à preventing them from re-offending o Higher focus on rehabilitation o Resource efficient o Achieves justice for victim o Deters and rehabilitates from a life of crime - Against o Doesn’t reduce their chance of re-offending Juvenile detention - Legislation o Children’s criminal proceedings act - Evidence/cases o 75% end up re-offending o Blessington à still in jail 32 years later à First child under 16 to be sentenced to life imprisonment - For o Justice for victims o Protects community from dangerous individuals - Against o Ineffective – doesn’t rehabilitate o Surrounds the child by other criminals à a negative influence on the child Doli incapax - Legislation o Children’s criminal proceedings act - Evidence/cases o Jamie Bulger case à the boys knew that what they were doing was wrong o The case was premeditated o R vs LMW (the kid that threw the boy in the pool) à the jury said he was too young to understand what he was doing was wrong - For o Protects young children and their vulnerability o Can still be convicted if they knew what they were doing was wrong - Against  o Justice is hard to be achieved for victims o Criminal intent is hard to prove (mens rea) Children’s court - Legislation o Children’s court 1987 o Doesn’t include names - Evidence/cases o Rape case of private school boys o Received probation of 15 months - For o Magistrate doesn’t wear full uniform, less intimidating for younger children o Protects them for the future (doesn’t include names) - Against o No justice for victims Arrest and questioning rights - Legislation o Law enforcement (powers and responsibilities) act 2002 (NSW) o CROC - Evidence/cases o Money for assault/wrongful accusation o Charges dropped and compensation money - For o Opportunity to use legal aid o Support person à they don’t understand how the law works o Options for cautions/warnings à reduces their presence in courts and jail - Against o Rights aren’t commonly known when arrested à vulnerability can be abused by police FAMILY LAW Themes and challenges The role of the law in encouraging cooperation and resolving conflict in regard to family Issues of compliance/non-compliance Changes to family law as a response to changing values in the community The role of law reform in achieving just outcomes for family members and society The effectiveness of legal and non-legal responses in achieving just outcomes for family members Essay topics: - Domestic violence - ADVOs - Provocation defence - Surrogacy (legal/non legal responses)  - IVF - 2006 reforms (FDR) - Divorce reforms - Same sex marriage - Adoption The concept of family law - Family: a group of people binded together with intimate/domestic relationships, blood, marriage, adoption etc. It’s difficult to explain the definition of family as it has a different meaning to different people - Divorce: marriage is legally ended- legal termination of a marriage - De facto: non married couples - Annulled: marriage never existed (void) – legal recognition that it never legally Existed - Plebiscite: a vote on ‘a national question that does not affect the constitution’ – no legal force - State o De facto relationships o Domestic violence o IVF o Adoption o Child welfare o Surrogacy - Federal: o Marriage o Divorce Legal requirements of marriage - Must know each other for 30 days - Must be over 18 - Legal marriage ceremony- must have a legal celebrant and witnesses - Consensual marriage – voluntary (avoids arranged marriages) - To the exclusion of all others – doesn’t allow polygamy (more than one spouse at one time) (criminal offence, can be in jail for 5 years) - Can’t be close family relative (ancestor/descendant/sibling) – also applies to adoptive relationships - If you don’t follow laws about marriage, marriage is annulled - “A union between a man and a woman to the exclusion of all others, voluntarily entered into for life”- changed from man and a woman to “2 people” Alternative family relationships - ATSI customary marriages o Not all indigenous marriage, but those dictated by traditional culture (not recognised as marriage): § Girls often marry before 18 § May involve polygamy (more than 2 people) § May involve consanguinity § (closely related) § May not be entirely voluntary as girls are ‘promised’ to men § Marriage ceremony not done by legal celebrant § Oral traditions - doesn’t meet legal standards (no marriage certificate)  § Culture and law clashes § Celebrant isn’t recognised under Australian law § Recognised as de facto relationships Pros cons ® Consistent with anti ® Some practices conflict with discrimination policies criminal law ® Give legitimacy to children of ® Symbolic recognition on as a those relationships de facto relationship gives ® Give the protection of them the same protection. marriage laws - Single parent families o One parent with no resident partner (married or de facto) with at least one child aged less than 15 years o Can be due to death, separation/divorce or personal choice (eg IVF) o Due to changing social values (greater independence of women), it’s the fastest growing family type o 22% of families are single parents, of which 81% are single mums o Government has single parent pension ($973/fortnight) o Child support scheme – other parent has to pay to support child (can deduct from salary) - Blended families o Stepparents have different rights over the child than biological parents o Stepparent can adopt child to gain right s - Polygamous marriages o Married to more than one person o Illegal in Australia - De facto relationships o Blurry lines between when relationship started/ended o 70% of people live together before getting married o De facto relationships must: § Sexual relationships § Been together for 2 years § Joint bank accounts § Socialise together - Same sex relationships o 1972-1997: decriminalisation of homosexual crime o 2004: marriage amendment act 2004 (Cth) o 2008: equal status § Same sex relationships (equal treatment in commonwealth laws- general law reform act 2008 (Cth) (the 2008 same sex law reforms § To amend 84 commonwealth acts to remove discrimination against same sex couples § Family law amendment (de facto financial matters and other measures) act 2008 § Gave same sex couples o 2010: adoption o 2013: ACT acts alone; allowed same sex marriage -> turned down by federal government o 2017: same sex marriage made legal  o 15% of countries allow same sex couples to marry o 2004- amendment of the marriage act (Australian government) – step backwards in equality § Reaffirmed that marriage is between a man and a woman (made it clear to the general public that same sex marriage is still not legal) § Overseas same sex marriages aren’t recognised under Australian law o Federal government has the constitutional power to make laws about marriage (section 51) ® The constitution does not define marriage. Some legal confusion – could there be two types of marriage ® state ® federal Legal rights and obligations of parents and children Timeline: - Birth: o Human rights o A name by 30 days old - 4 years o Can start school - 5 years o No car seat needed - 6 years o Must be in school - < 10 years o Doli incapax - 10-13 years o Doli incapax rebuttal - 12 years o Decide where to live (mum/dad’s house) - 14 years o No doli incapax o Get a job o Get own medical attention - 15 years o Can watch a MA15+ movie - 16 years o Learners licence o Consent to sex - 17 years o Leave school o Driver’s licence - 18 years o Legally recognised adult o Pubs o R-rated movie o Bet o Alcohol - 21 years o Can access children’s court if they were under 19 when the crime occurred CROC (1989) - UN treaty on what rights children should have  - Most widely adopted treaty in the world (not in USA) which articulates and protects the rights of children - Covers wide spectrum- economic, social, civil and political rights - Focus on 3Ps 1. The right to provision (healthcare and education) 2. Protection (from violence and abuse) 3. Participation (right to express views and make/influence decision concerning them) - Everything is decided on what is in the best interest of the child- regardless on parents’ beliefs/opinions Parens Patriae - The government has the legal power to take over the parenting of a child. Education - Must go to school between 6 years old and 17 years old - Parents have an obligation to get children to school - School has an obligation to follow up on absences Discipline - Reasonable force (verbal or physical) applied in order to control behaviour - Must be reasonable and can’t be abusive o Below the neck o Open palm o Can’t leave a mark Care and protection of children Kid’s welfare = state court (eg child is abused) Relationship breakdown = Cth (family court) (parents arguing over custody) Legal responses: - 2007 ombudsman report o 100 children dying under the care of their parents in 2006 (only reported) o Highlighted the issue- didn’t solve it - Wood report o came up with policy called ‘keep them safe’ o lower reporting threshold o ‘falling through the cracks’ o FACS was overwhelmed with reports o ‘significant risk of harm’ o Wanted less reports so they didn’t lose track of the serious cases. Non legal responses: - Less serious cases are given to non-legal responses Care and protection of children - One child dies every 2 weeks from abuse and neglect – AIFS (quartered since 2006) (Australian Institute of family studies) FACS (family and communities services) -> DCJ (department of communities and justice) Keep them safe -> Their futures matter  MST (multi-systemic therapy): goes into the house and helps to avoid abuse/neglect and try to help the families as opposed to originally just taking the children FFT (functionally family therapy): similar to MST, in home care, therapy within the house. Adoption Rights of parents and children Children - Adopted children have access to information about their birth/biological parents in order to facilitate a sense of identity - An increased accessibility to information reflects the shift in community values towards the child and upholds the obligations under the CRC stating that children have a right by law to know both birth parents - A child’s best interests are taken into account which is stated in section 8 and section 9 as children between the age of 12 and 18, a child’s consent to the adoption is required - “It is important to remember that the CRC requires that the best interests of a child be the paramount consideration in adoption (Article 21) Parents - Defacto couples together more than two years including same sex couples since the adoption amendment (same sex couples) act 2010, married couples that have been together for at least two years and single applicants can be eligible and have the right if applicable to adopt in NSW according to the adoption act (NSW) - Post adoption - the non-biological couple/person (adoptive parents) then become the legal parent(s) of the child and take over the care, control, guardianship and maintenance of the adoptive child - The biological parent or parents legally renounce (surrender, permanently give up) their parental rights and responsibilities over a child to another person/couple - Adoption laws which arbitrarily exclude a couple on the grounds of sexuality will breach these rights because they fail to consider the best interests of a particular child” Parents and children can apply for a contact vetoenables a birth parent or an adopted person to prevent another party to the adoption from making contact with them Same sex adoption: - In 2010, the Adoption Amendment (Same Sex Couples) Act NSW extended the definition of couples to include same sex couples, so they have the same adoption rights as heterosexual couples. - This reform was a result of the 2007 report, ‘Same sex: Same entitlements’ by the Australian Human Rights Commission (AHRC) - Con: Same-sex adoption was illegal in NT, SA, and QLD, raising issues of consistency and equality throughout Australia until 2018 - Pro example William and Jane (2010) - the first two children in NSW to be adopted by a same-sex couple. Granted by Judge George Palmer. - Pro: Applicants judged by merits of their parenting abilities and not their sexual orientation - Con: Church based organisations are still allowed to refuse adoptions to same-sex couples (not anymore) Open adoption What is open adoption: - The adoption of fostered children - Allowing a child after adoption to revisit their biological parents - In 2013 18 000 children were in foster care, in which 78 were adopted into permanent homes - Foster care was estimated to cost $800 million each year - In 2014 there were changes made to the adoption act 2000 (NSW) and Children and Young Persons (Care and Protection) Act 1998 (NSW). They made adoption the preferred option over fostering making it easier and faster for long term foster carers to adopt children who cannot be returned to their birth parents. This is open adoption as it allows the child to maintain contact with their biological parents International adoption - 74% decline in the number of adoptions over the past 25 years - Options for adoption are very limited in Australia due to fewer children being available to adopt locally - Intercountry adoption is regulated by the Hague Convention on Intercountry adoption (1993) - Australia only has adoption arrangements with 13 countries : - despite the hague convention being contracted to 93 countries - The process for intercountry adoption takes up to 5 years - 3 years in taiwan and 8 years in china - There were 83 intercountry adoptions in 2014-2015 For intercountry intercountry adoption: - There are millions of orphaned children around the world who need loving parents - There are numerous Australian couples wanting to give those unfortunate children a home Arguments against intercountry adoption - Turns children into a marketable commodity which can result into child laundering - International adoptees are overrepresented in jails and psychiatric institutions - adoptive children may feel foreign in their new families - Adoptive children may feel a disconnection and loss of their culture Surrogacy - Rights of birth parents o Right to choose doctors and physicians etc o Right to make all decisions for her own health, including before, during and after the pregnancy o As the surrogate is the biological mother of the child, she is allowed to change her mind and keep the baby but not after legal parenthood is established - Exploitation of women, particularly in developing countries o Women specifically in developing countries are vulnerable and therefore can be easily exploited. They could be underpaid, etc and could be treated badly if surrogacy is not ‘approved’ of in their community. - Altruistic vs commercial surrogacy o Altruistic surrogacy: surrogacy where the surrogate mother is someone known to the commissioning parents (eg a family member/friend)  o Commercial surrogacy: surrogacy where the surrogate mother isn’t well known to the commissioning parent – paid - The complications of international surrogacy agreements o Health risks if the child is to be born in a developing country o If in a country that doesn’t allow same sex marriage- same sex parents may not be allowed to adopt the surrogate child o Surrogate rights vary in different countries- birth certificate may have surrogate mother’s name on the child’s birth certificate o Exploitation of women, specifically in developing countries- its likely that she will be in need of money, therefore easily exploited by parents looking for a surrogate. o Needs to get citizenship, as birth certificate will have surrogate mother/birth country as place of birth - Traditional surrogacy: when surrogate uses her own eggs to conceive and using the intended father or a doner. - Gestational surrogacy: where the surrogate is impregnated with an embryo created from the intended mother/egg doner. Surrogacy is an arrangement where a woman carries a child on behalf of a couple unable to have children either by artificial insemination from a man or implantation of an embryo from a woman. Surrogacy act 2010 (NSW) – allowed the intended parents of a child born through surrogacy to apply to the NSW supreme court for a parentage order 30 days after birth. Surrogate mother is legally entitled to have her expenses covered by the intended parents, including medical, legal and counselling bills - Birth mother must be 25 - All parties must have received legal advice and counselling - Must have given informed consent prior to conception - The child must be living with the intended parents at the time of application Case: application of MM and KF re FM (2012) - 2 men became the first same sex couple in NSW to be declared the parents of a baby that was born through a surrogate with the court ruling that it was in the child’s “best interest” IVF- In Vitro Fertilisation - A reproductive technology in which an egg is removed from a woman, joined with a sperm cell from a man in a test tube (In Vitro) - Assisted reproductive technology Act 2007 (NSW)  o Aims to prevent the commercialisation of human reproduction and to protect the interests of the following people: § A person born as a result of ART (assisted reproductive technology) § Person providing a gamete (organisms reproductive cell) for use in ART treatment or for research in connection with ART treatment § A woman undergoing ART treatment o Rules to protect: § gametes can only be used in a manner consistent with the gamete provider’s consent, so individuals retain control over the use of their own genetic material § anonymous donation of gametes is prohibited § ART providers are required to place information about doners on a central register which children born as a result of ART treatment can access once they turn 18 years old - Ethical issues o Gender selection is illegal throughout Australia on ethical grounds o But the national health and medical research council has provided guidelines that permit the process of sex selection to avoid the risk of transmitting a serious genetic condition (eg couples who carry genes for haemophilia and muscular dystrophy may legally investigate the possibility of sex selection to produce a female through IVF because those health conditions effect only males) B v J (1996) - The court held that the sperm donor was not the legal parent of the child in question and could not be liable for child support Legal responses to surrogacy 1 - Surrogacy act 2010; allowed the intended parents of a child born through surrogacy to apply to the NSW supreme court for a parentage order 30 days after birth. Surrogate mother is legally entitled to have her expenses covered by the intended parents, including medical, legal and counselling bills o Birth mother must be 25 o All parties must have received legal advice and counselling o Must have given informed consent prior to conception o The child must be living with the intended parents at the time of application - altruistic vs commercial surrogacy o Altruistic surrogacy: when the surrogate mother is someone known to the commissioning parents (eg a family member/friend) o Commercial surrogacy: surrogacy where the surrogate mother isn’t well known to the commissioning parent- paid (now illegal in Australia) Legal responses to surrogacy 2 - Protection of rights of birth parents: o 2014 baby gammy: Australian couple used surrogate mother from Thailand, one twin was born with down syndrome and the couple refused to take the twin, leaving the surrogate who could not financially support him, with the child  - Legal rights of birth parents o B v J (1996): The court held that the sperm donor was not the legal parent of the child in question and could not be liable for child support Non legal responses to surrogacy - Surrogacy Australia: organisation that supports, educates and advocates surrogates, couples using surrogacy and society about surrogacy Divorce - The termination of a marriage - Used to be o Fault divorce o Matrimonial causes act 1959 (Cth) o Until 1976, must have a cause/fault for the end of a marriage, including alcoholism, desertion, cruelty, adultery, imprisonment, insanity o Unfair as it was women were often very disadvantaged - Now is o no fault divorce o family law act 1975 replaced it o now only condition to divorce is the irretrievable breakdown of marriage, demonstrated by 12 months separation. (allows for a 3-month reconciliation period) o must have a plan for the children before divorce is approved o People said it would make marriage loose it’s importance if it was that easy to divorce. o Divorce rate spiked in 1976 when law was changed, halved since then as it settled. o Decree nisis: a family court order that is made to signal the intended termination of a marriage. o Decree absolute: a final decree of the dissolution of marriage - Includes the UN convention of the rights of the child 1989 o 3 ps § Provision (health, education) § Protection (safety) § Participation (have a say) o Changes in 1976 § Changes to divorce laws § Simplifying divorce; no fault divorce o Changes in 1995 § Croc introduced 1989 § After assassinators of family court judges, caused tension and a need for reform in the early 1980s § Determined to move away from winning/losing cases; changed terms from custody to residence, access to contact and from parent and guardian to parental responsibility.  § Under section 61B of the Family Law Act, parental responsibility is “In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” § Jean Lennon case o Changes in 2006 § Mandatory mediation (FDR-family dispute resolution) § Introduction FRCs (family relationship centres) § Family law amendment (shared parental responsibility act 2006 (Cth) § After significant lobbying by father’s groups (Dads in Distress) the term ‘presumption of shared parental responsibility’ was introduced – felt left out § The reforms introduced 2 primary considerations: a) The child’s right to maintain relationships with both parents b) The need to protect the child from physical or psychological harm § Friendly parent – undermining child’s relationship with the other parent § Vexatious complaint provision- parents who make allegations about the other (domestic violence) that couldn’t be proven, costs would be awarded against them o Changes in 2011 § Place greater priority on the safety of children § Removed the ‘friendly parent’ provision § Removed the vexatious complaint provision The role of FDR (family dispute resolution) and the courts and legal consequences of separation - FDR o If a couple cannot reach an agreement on their own, they need to attend family dispute resolution; a non-judicial process in which an independent  practitioner helps people affected by a separation or divorce to resolve some of their disputes with each other - Role of the courts o Family court of Australia § Established in 1975 by family law act 1975 § Specialised court for more complex cases (eg one parent moving overseas) (20% of cases) o Federal circuit court of Australia § Established in 1999 by federal circuit court of Australia act 1999 § Deals with less complex matters that are likely to be decided quickly and relives case load of federal and family courts § Processes most divorces (80% of cases) o Unique features § Less adversarial trials (not looking for a winner/loser) – more focused on what is best for the situation § Independent children’s lawyer (introducing a third lawyer to argue for the child- when the judge feels that the child’s interests in the case should be independently represented) § Counselling for children and family reports (interviews family members and collects information about the child’s relationship with significant people, child’s views personal history, family history- done so the judge has more relevant information) § Magellan program (when there are serious allegations of abuse, ensures that these cases are fast-tracked and prioritised in the court (within 6 months) - Children o Care and responsibility of children § Parents need to determine who the children will live with (residency), how often contact will be between the children and each parent and other specific matters related to the children (eg schooling, holidays, religious and cultural expectations etc) § Parenting plans: any voluntary agreement between parents reached in relation to the care and responsibility of children can be drafted in a parenting plan which is later registered in court. Once the court is satisfied, the plan is in the child’s best interests, it will issue a consent order which is legally binding and enforceable § Parenting orders: if parents cannot reach an agreement independently or with a mediator, they can apply to court for a parenting orders (after a certificate from an accredited FDR practitioner which states that the couple have made a genuine effort to resolve the dispute through FDR o Child maintenance (child support) - Property  o Parties try to reach an informal agreement about splitting property on their own terms – saves time, money and stress. Can make it legally binding by applying to the court for a consent order o The court can order for them to attend mediation to make an agreement o If unsuccessful, they can apply t to the courts for a financial order Domestic Violence Terms: ADVO: Apprehended Domestic violence order Stalking: - Physical - following somebody - watching/hanging out around a common place for the person (eg their school, gym, work, house etc) - contact through internet Intimidation: - Any approach that causes someone to feat their safety - Harassment - Any conduct that causes reasonable apprehension of injury Battered Spouse syndrome: killing/planning to kill someone (usually your spouse) as a result of years of domestic violence and abuse – lowers sentencing Provocation: being provoked to abuse/murder (‘she made me mad so in the spur of the moment I stabbed her’) Self-defence: killing somebody as a reflex/defence to protect your life Case studies Andrea Pickett: - husband breeched his ADVO 5 times – he was never arrested - police didn’t take the reports of the breech seriously - there was a lack of space for her in women’s shelters - stabbed her to death 14 times Saori Jones: - Killed by her husband - Autopsy was performed late as her body was left at his house for 12 days (decomposition) - unclear cause of death, therefore hard to prove he murdered her and lesser charges - 5 years of jail time – assault causing death, not murder - Failure of police to check the house Catherine Smith - Years of violence - She illegally bought a gun to hill her husband – she admitted attempting to murder him, said she had ‘no choice’ – had to protect her children - Charged for attempted murder - Claimed battered spouse syndrome - The jury took 25 minutes to decide her not guilty (record time) Ingrid Poulson - Following a divorce her ex-husband began acting violent towards her  - He called her within an hour of the ADVO being in place, he broke into her house, tied her up and raped her - She got an ADVO against him and it was broken, she went to the police to report it and when she arrived home, he had murdered her 2 kids and her father - The police put a lot of pressure on her, asking her what she wants to happen and what they should do - She wants domestic violence was to be more thoroughly looked at, and to no longer be seen as a ‘personal/private matter’ 60 minutes’ ‘stop the killing’ - Highlighted the misuse of the provocation defence - Chamanjot singh § Reduced sentence due to provocation § Killed his wife à 6 years jail time - Julie Ashton § Killed by husband, james ramage § Used provocation defence § 8 years jail - Sends a message that you can ‘lose control’ and kill a woman & its partially understandable/acceptable - If the law was removed, women that had killed/attempted to kill abusive husbands (eg Catherine Smith) would not be accepted Legal Responses to domestic violence: Role of police - If a law is in place, it is only helpful if those who break the law are punished - There’s no point in having a law to say you cannot steal a car if the police won’t get you in trouble for stealing it Criminal charges - Pros § Can remove the offender from the situation o Jail? § Acts as a deterrent o Offender o Society § Sets community standards § Justice for victim - Cons § Can inflame situation § Can criminalise the offender § Can affect family income § Doesn’t prevent violence à responds à reactive solution § Hard to prove in court (to prove beyond reasonable doubt) Apprehended domestic violence orders (ADVOs) - Like a restraining order from the local court  - Can be obtained over the phone/at police stations - restrict the behaviour of the defendant - very flexible to the case - tailored to fit certain people/families - inexpensive - offender doesn’t get a criminal record of they comply with the restrictions - not a shield of steel, will not prevent a determined offender from violence - 40,000 ADVOs in NSW every year- most are effective - Only as effective as police’s responses Battered spouse syndrome - killing/planning to kill someone (usually your spouse) as a result of years of domestic violence and abuse – lowers sentencing - Catherine Smith case Provocation defence - Using the excuse ‘I was provoked’ as a way to lessen the sentence from murder to manslaughter - Loss of self-control caused by the victim - Can be controversial as men can get off the hook after using the provocation defence when murdering their wives and walking free a number of years later – criminal intent is important - Vital to keep the defence as it is beneficial to domestic violence victims to provide justice from their long-term domestic violence situations (eg battered spouse syndrome) - Law reform made in June 2014- introduced crimes amendment (provocation) act 2014 NSW § Passed to make it no longer allowed to kill a partner out of jealous rage § Also applied to ‘gay panic’ defence - Pros: § Allows for domestic violence cases § Doesn’t see people that use murder as a last resort in domestic violence relationships as as bad people as if they were to murder for no reason - Cons: § Lessens guilty people’s sentences § Hard to prove in court § Sends a message that it’s ok to kill someone § Allows an excuse Non legal responses: TV ads and social media campaigns - Trying to avoid domestic violence by stopping it from the start - Educating young men and boys to treat women well and with respect - Government run - Spreading awareness about domestic violence Charities - Helps to fund emergency relocations – women fleeing their homes to escape a violent partner - Eg women’s shelters - Provides support to them  Domestic leave provisions - Companies allow 10 days of paid leave for those in domestic violence relationships Phone helpline numbers - Phone numbers to call for support - Non-traceable - Online service - 24-hour chat rooms - Able to talk to professionals WORLD ORDER The meaning of world order - Describes the balance of power among nations of the world - Level of peace in any given place and time The nature of conflict: inter-state and intra-state - Interstate: conflict BETWEEN states - Intrastate: conflict WITHIN states - The UN charter (1945) was not designed to deal with internal (intra-state) conflict, yet intra-state conflict is the main form of conflict in the world today - The international community has difficulty in dealing with internal conflict because acting on it can be seen as violating the sovereignty of that state - State sovereignty: the right of a nation to govern itself without interference - Effects of violent conflict: o in WWI, 90% of people who died were soldiers (fighting in the war) o in WWII, 50% of people who died were soldiers (fighting in the war), 50% were civilians o today, 90% of people who die are civilians, 10% are soldiers fighting in the war Access to resources as a source of conflict - As a result of diminishing resources, increase in industrial activity and population pressure over the last 70 years there are heaps of shortages (this means countries fight over them causing conflicts and even wars The role of the United Nations - To keep peace in the world - To help nations to work together and improve the lives of poor people, conquer hinger, disease etc. - Can only keep peace not make peace The role of state sovereignty - the power and authority of an independent government to govern its people, affairs, and national interests (the ability for a country to govern themselves) Pros Cons ® more people sign UN treaties ® refusal to sign treaties  ® gives power to the country ® disables UN from intervention ® cant enforce punishments The role of international instruments and rules regarding the conduct of hostilities (contemporary issues) - Treaties, declarations, customary law The role of courts and tribunals - International court of Justice (ICJ) o Part of UN o Un official court o Only deals with disputes between countries, not specific people o Hard to enforce because of state sovereignty o Central place to prevent conflict, violence, and wars o Can’t act on civil cases o Can’t deal with internal conflicts due to state sovereignty, although main sources of conflict is intrastate today - International criminal court o Prosecute the core international crimes (eg genocide, crimes against humanity etc) o Not run by united nations Pros cons ® International support ® Expensive ($301 million in 2 ® 120 states joined years- 2010/11)and doesn’t ® Achieves international criminal deal with many cases, few justice results ® Solves several cases at once ® 8 convictions in 20 years The role of intergovernmental organisations (IGO) - A group of states with mutual interest (eg defence, trade/economic) - Relies on other countries’ compliance - NATO: o UN’s biggest IGO o Military alliance performed during the cold war to protect eastern Europe from Communism o Examine risks and benefits in using force in this manner o End of WW2, they were worried Russia would try to re-invade (formation of a defence alliance) - Arab League: o 22 Arab States -> Syria currently suspended o Trying to negotiate peace agreements between Syrian government and rebel forces. - African Union: o 54 African states; had success in limiting conflict (which leads to human rights abuses) in places such as Somalia and Parfur - European Union: o Economic  o Doesn’t use force to resolve issues o Compliance o High human rights standards - Regional IGOs (eg African union) are more effective at responding to local conflict. Better understanding of; o Cultural differences o Ethnic differences o Tribal differences Veto power - 15 seats on UN security council- 5 permanent. The 5 permanent members have the power to turn down any mandate, peacekeeping mission or any decision made by the UN. The role of non-government organisations (NGOs) - Independent, non-profit groups without representation or funding from any government - Approximately 40,000 NGOs internationally - Eg International Committee of the Red Cross The role of Australia’s federal government - Participated in peace keeping missions in East Timor - Tensions with China - Current war crime allegations The role of the media - A free and unbiased media is an essential feature of the rule of law and plays an important role - Raises awareness by drawing attention to events, disasters or political crisis and can influence leaders to take action - Can be VERY biased Political negotiation, persuasion, and the use of force - Political negotiation: working with other states to resolve conflict Case studies - Rwandan Genocide (1994) o Considered United nations greatest failure o Post war nationalism (wanting their own countries), European countries left Africa, leaving lots of conflict o 800,000 deaths in 100 days o Ethnic tensions o Brought in a temporary court; International Criminal Tribunal for Rwanda (ICTR)- brought justice, making Rwanda one of the safest African countries today, however only 61 criminals were convicted. o UN sent 270 soldiers o Sparked when the president’s plane was shot down  o Instability o Build-up of years of ethnic tension o Countries were reluctant to get involved after the deaths of 18 American soldiers previously in Somalia, little economic advantage, lack of trade o No Africans on the UN security council o Was sent to keep peace when there was no peace to keep o Under resourced - Yemen Civil war (2014-ongoing) o World’s largest humanitarian crisis o Thousands killed; millions displaced o Been happening for years but escalated in March 2015, when the Saudi-led coalition got involved o After lots of dictators in the area were kicked out, Yemen wanted in o Yemen president had to give power away in 2011, but political transition failed; unemployment, food insecurity, suicide bombings- sparking war o Yemenis took sides, new gov. and old gov.- conflict grew o New president left, surrounding countries felt threatened by Yemenis, started military campaign o According to the United Nations, more than 10,000 people were killed since February 2014 o Cholera outbreak, not receiving international help for the sick etc o 2/3 of Yemenis don’t have access to clean water o 4 million forced to flee their homes o Huge dent in economy (effected hospital schools, houses etc) o State sovereignty- UN can’t do much about the war and violence o Pledged $120 million to UN appeal, feeding 240,000 of the mist vulnerable Yemenis every month and provide clean water for 1.6 mil people - South China Sea (2012-ongoing) o Rich in oil and gas o Lots of fish o Some of the busiest shipping areas in the world o China wants control of it, but other countries believe they have rights to it as well o America has 100s of billions of dollars’ worth of trade routes through it o US wants freedom of the seas; south china sea creates massive threat of that o CHINA WON’T LET OTHERS USE THE SOUTH CHINA SEA COS THEY WANT FULL CONTROL SO THAT THEY CAN TRADE TO FUEL THEIR ECONOMY o All countries surrounding it are trying to protect fishing grounds and resources, US is trying to make sure they can go through it for trade o Trying to avoid conflict with china o China probably won’t let the other countries compromise o 40% of the worlds liquified natural gas passes through o $3.37 trillion worth of trade travels through, 1/3 of the world’s total  o China knows that for them to reach the pacific, they have to pass many American allies and American weapons o China’s trying to take over islands in this area o USA is very passionate about the issue, trying to assert dominance by having the navy run through south china sea o In July, US and china held naval exercises in the south china sea- china accused US of escalating things o Everyone’s trying to get china to obey the law; mainly the UN convention of the law of the sea that establishes exclusive economic zones which are 200 nautical miles off the coastline of the country (mainland or otherwise) and china signed it in the 70s o Philippines took china to court; they ruled that china doesn’t have power over the sea. After losing, china decided to make a code on the use of the south china sea o Everyone’s too scared, meaning no one’s going to attempt to put china in its place, therefore the UN security council doesn’t have the numbers - East Timor (1999-2001) o Well resourced o 5500 Australian soldiers sent in - Libyan Civil war (2011) o First to use responsibility to protect because no one on the security council vetoed their decision o After years of dictatorship, Libyan protestors saw surrounding countries improvement and protested a change in government resulting in violence and then civil war o President was killed by rebels o Resolution 1973 ‘All necessary measures’ enforces no fly zone and shot down government planes -> not taking sides -> less risk - Syrian Civil war (2011-ongoing) o Proxy war; others backing a country/group o Used chemical weapons on civilians (chemical weapons are illegal under international law) o Syrian government winning, USA loss interest after the general defeat of ISIS o Syria’s not a member of the Rome Statute; can’t use ICC (not obliged to go there, can’t be sent there by involved countries) o Veto power from Russia means responsibility to protect cannot apply Responsibility to protect - Not a treaty -> a doctrine/set of principles - SS is a responsibility AND a right -> expanding to become the responsibility to protect human rights - Developed in 2005 global summit -> failures of international communities to respond to crisis in Rwanda, former Yugoslavia etc. - International community may intervene with force. Military intervention should be a last resort - State sovereignty vs human rights, human rights normally wins For Against ® Better resourced peacekeeping ® Veto power (eg Russia for Syria) ® international community has ® International community will/lack more power and enforceability of will to help ® held accountable ® Strategic and economic ® deterrent advantage/lack there of ® UN support ® Completely abandons state sovereignty