Legal HSC Notes PDF

CRIME The nature of crime- The meaning of crime Crime includes any conduct which violates the rights of the community at large, punishable by a recognised criminal sanction upon proof of guilt in a criminal proceeding initiated and presented by officers of the crown or its agencies. Many countries have different views on what crime is and how it is punished and this is influenced through their culture, beliefs, history, social attitudes, traditions and political systems. Criminal act is deemed to be an attack on society's ethics and moral standards, so it is the responsibility of all to punish those found guilty. New laws are often introduced and amended. It is essential in balancing the rights of the victim, society and the offender in order to keep a fair and just system. The elements of crime Before a crime is brought to a trial the prosecution needs to prove two elements were present in the crime, Actus reus and mens reus. Actus Reus Mens Reus ➔ That the accused person actually ➔ That the accused person sufficiently intended to commit the crime. committed the crime ➔ Latin term for ‘guilty mind’ ➔ Latin term meaning ‘guilty act’ ➔ Includes the state of mind and their knowledge of the facts that make their act ➔ Often easier to prove through criminal. physical evidence and witness ➔ Intention- clear, malicious or wilful intention testimonies ➔ Recklessness- intermediate level of intention where they were aware of the risk and did it anyway ➔ Criminal negligence- failed to foresee the risk resulting in harm or death. Strict liability offences A strict liability offence is one that the prosecution only has to prove one element of crime, Actus Reus. They lower the level of proof required to achieve criminal conviction and are generally restricted to minor offences such as speeding. This lessens the accused's rights during this process. Causation Proving that there is a sufficient causal link between the actions of the accused and the result. This will be relevant when proving the actus reus and requires the prosecution to link the act and the crime. Categories of crime There are many different types of crime that are categorised in many ways. In NSW, the Crimes Act 1900 (NSW) is divided in 16 parts relating to main offences, this is divided in hundreds of divisions, sections and subsections. This can influence the way a crime is investigated, prosecuted or punished. This includes- ➔ Type of offence ➔ Jurisdiction (NSW or Commonwealth) ➔ Seriousness (indictable or summary) ➔ Parties of a crime (principal in the first degree, principal in the second degree, accessory before the fact, accessory after the fact) Types of offences Examples Offences against the person- harm or injury to an individual Homicide, assault, sexual assault Offences against the sovereign- political offences against the Treason, sedition state or head of state Economic offences- Results in a person losing money or Property offences, white-collar crimes, computer offences property Drug offences- Acts involving prohibited or restricted drugs Trafficking, possession, use Driving offences- breaking the law in a vehicle Speeding, drink/drug driving, negligent driving Public order offences- Disturbance or inappropriate acts in Offensive conduct, Obstructing traffic, affray, bomb hoaxes public areas. Preliminary crimes- Crime that isn’t completed Attempts, conspiracy Regulatory offences- Delegated legislation that sets out Breach of water restrictions, fire restrictions or public transport rules standards, regulations or local laws. Summary and indictable offences- Two categories defining their severity Summary offences Indictable offences ➔ Less serious (offence conduct) ➔ More serious (assault, murder) ➔ Lower penalties ➔ Higher penalties ➔ Heard and sentenced in local court in front of a ➔ Heard by a judge (punishment) and jury (judgement) of magistrate (judgement and punishment) 12 people ➔ Penalties include, bond, fine, or imprisonment (2yrs or ➔ Penalties include imprisonment or hefty fine 5yrs if more than one crime) ➔ Charge brought by a public prosecutor working for the ➔ Charge brought by police prosecutor or government state officer ➔ Summary Offences Act 1988 (NSW) Parties to a crime- Anyone who is involved in a crime becomes a ‘party’ to the crime, the punishment is determined by the individual's involvement with the crime. Categories include- Principal in ➔ The primary offender (in an armed robbery he pointed the weapon and took the money. the first ➔ The person directly responsible for the criminal act occurring and will likely receive the highest sentence. degree Principal in ➔ Person who was present at the scene (he held the door open for the offender and kept looking out). the second ➔ The person who assisted or encouraged the principal offender to commit the act and will receive a lower degree sentence than the primary offender. Accessory ➔ Helped the principal offender before the crime was committed (helped plan the armed robbery). before the ➔ This includes helping plan or prepare for the crime. fact Accessory ➔ Someone who assisted the principal offender after the crime is committed (driving the getaway car or after the fact disposing of evidence). Factors affecting criminal behaviour- Many commit crimes for many different reasons and the patterns behind it, some of the factors affecting this can include- Physiological ➔ Mental state of the accused or their mental illnesses affecting their behaviour factors ➔ Physiological factors are essential in considering rehabilitation programs Social factors ➔ A person's attitude could include their family relationships or personal relationships ➔ A person's social group can influence their attitudes and behaviour Economic ➔ Offenders may commit economic offences in order for financial benefit factors ➔ People who are unemployed, from disadvantaged backgrounds, poor education, lack of skills or have a poorly paying job are increased to commit an economic offence. Political factors ➔ People are strong on political views, this can cause them to commit an act against the sovereign or participate in public order offences. Genetic factors ➔ Many studies have occurred from ‘phrenlogy’ to comparing DNA of prisoners and no genetic similarities (theories) have come out of this. Self-interest ➔ Individuals are often driven by greed and self-interest rather than other factors. factors ➔ For example, drug offences committed for profit and offences against a person for revenge. Crime prevention Social Situational ➔ Addresses the underlying social factors that may lead to ➔ Aims to make the crime more difficult to commit and criminal behaviour. therefore stops the crime being committed. ➔ Factors can include- poor home environment and ➔ Two elements, planning and architecture design and parenting, social and economic disadvantage, poor focused approaches. school attendance, early contact with police and ➔ Planning and architecture design- influence physical authorities. environments have on crime e.g security (alarm ➔ Examples can include youth programs, raising systems, passwords, bars). education levels, creating TAFE and private ➔ Focused approaches (strategies)- deters individuals organisations and parenting workshops. from committing crime and views offenders as actors who weigh up potential gains, risks and costs e.g avoiding crime hotspots, playing classical music, CCTV. Criminal investigation process (CIP)- Police powers- Laws would be ineffective if they were unable to be enforced. The responsibility of enforcing and ensuring they are adhered to lies with the police. They are responsible for the detection and prevention of crime and the maintenance of public order. Additionally to investigate crimes, make arrests, interrogate suspects and gain evidence, police then present this information on behalf of the state. LEPRA , Law Enforcement (powers and responsibilities) Act 2002 (NSW). NSW Police Force also follows a specific code of behaviour outlined in the Standards of Professional Conduct. Reporting crime Crimes are often reported by an individual who has knowledge of the crime or witnessed the crime occur. Some can become reluctant to reporting a crime due to- ➔ The time and burden ➔ Reluctant to become involved as a witness ➔ Fear of the consequences Often property offences are reported regularly in an attempt to gain back the property although offences such as SA and assault often go unreported due to shame and embarrassment. Investigating crime- Before investigating a crime police will determine whether to pursue the investigation based on the severity, likelihood of success and their available resources/priorities. Gathering ➔ Police role is to examine and find evidence quickly through physical evidence and witness statements. evidence ➔ Evidence is documented in SITU (in the place). ➔ Evidence contaminated cannot be used in court. Use of ➔ Technology is used in gaining evidence, although it needs to be reliable. technology ➔ Farah Jama 2010. Search and ➔ Police need to suspect on reasonable grounds or suspicion to conduct a personal search without a warrant, seizure this could be in relation to stolen goods, prohibited drugs, dangerous articles or anything used to commit an indictable offence. ➔ Police can seize or detain anything found. Use of ➔ Warrants are a legal document issued by magistrates and judges which authorise police officers to perform a warrants particular act when applying for warrants, substantial reasons must be given to justify the use. Arrest and ➔ The police are not allowed to arrest unless they have a good reason to do so. The powers are highlighted in charge LEPRA. In order for the process to be legal the police officer must state that they are under arrest and why they are under arrest. Once arrested they may only be held for a specific period of detention then released or charged with an offence. Bail- The temporary release of accused awaiting trial and is regulated under the Bail Act 2013 (NSW). Bail can be refused if there is unacceptable risk (not going to appear in court, serious offence, danger to society, risk of interfering with evidence or witnesses) and the risk cannot be mitigated by bail conditions. Bail conditions can include location restrictions, residing at one address, curfew, reporting to police surrendering passport etc. ‘Show cause’ also. Remand- If bail is denied they are held on remand which is the time period spent in custody awaiting the trial. Individuals are held in police custody at remand centres. Summons- A legal document that states when and where a person must appear in court CAN (court attendance notice), witnesses can be given a CAN called a subpoena. Failure to attend can result in serious consequences including arrest. Charge- At the end of the max detention period the police must either charge or release unconditionally. Detention and interrogation- LEPRA sets out the lawful conditions under which a suspect can be detained for questioning for the purpose of investigating. The suspect can only be detained for a maximum 6hrs by then they must either be charged or released. They may apply to a magistrate for a warrant to further extend this period for up to another 6hrs. During this the offender is held in a police cell or interviewing room. However there are many rest periods not included in the 6hrs of detention and interrogation, some including- ➔ Transport from arrest to police station ➔ Refreshment periods e.g bathroom, eating etc ➔ Awaiting a guardian or legal practitioner at police station ➔ Waiting for law enforcement to conduct the interview While in custody the suspect is questioned by the investigating officers this is called interrogation, the suspect has the right to silence, any suspect under 18 needs a responsible adult present and the interview is recorded on tape to ensure policies and guidelines are followed by police and as a record to be used in court proceedings. The police can detain an individual for a maximum of 14 days if they reasonably believe the suspect will engage in a terrorist act. A warrant is needed from the Supreme Court. Criminal trial process (CTP)- Court jurisdiction Once a charge has been laid against a person, a hearing or trial of the accused needs to be held in the most appropriate court. Judiciary Act 1903 (NSW) gives state and territory courts the power to hear what crimes in each court. There are many courts that have the jurisdiction to hear criminal matters. Factors depending on the court can include- ➔ Summary or indictable ➔ Nature of offence ➔ Whether it is a appellate or original jurisdiction ➔ Age of accused ➔ Type of hearing (bail, trial, committal) ➔ State or federal law The case will be held in the most appropriate court in the court hierarchy from the lower courts to intermediate and higher courts. Original jurisdiction- Authority for court to hear a matter for the first time. Appellate jurisdiction- Authority for court to hear matters on appeal from lower courts. Lower Courts ➔ Local court of NSW ➔ Coroners court ➔ Children's court Intermediate ➔ District court Courts Higher Courts ➔ Supreme court of NSW ➔ High court of Australia ➔ Court of criminal appeal ➔ Land and environmental court Each court has its own jurisdiction and authority to hear certain matters. Minor matters are often dealt with by the lower courts while indictable offences are dealt with by intermediate or higher courts. COURT? O or ACT? MAG, JUD, JURY? HEARD? FACTS? A? LOCAL O Local Court Y Minor criminal matters, Matters are heard faster, cost is Act 2007 N summary offences, lower, no appeals (NSW) N bail/committal hearings CORONERS O Coroners N Investigate disappearances, Coronial inquests, manner and Court Act N deaths cause of death investigation, 2009 (NSW) N autopsy results, can result in Corner is present changes to laws/regulations CHILDREN’S O, A Children’s Y Criminal matters Closed court- to protect young Court Act N concerning children, U18 individuals, U18 1987 (NSW) N offenders DISTRICT O, A District N Serious criminal matters, Longer process, greater cost, can Court Act Y civil disputes under include offences against the 1973 (NSW) Y $750,000, indictable person, property, drug or driving offences (not homicide) offences SUPREME O, A Supreme N Homicide, conspiracy, drug 12 jury members, expensive, Court Act Y related crimes, serious time consuming, highest 1970 (NSW) Y breaches of corporate law, formality, consequences are indictable offences greater CRIMINAL O, A Crimes Act N Appeals from convicted or Can challenged the severity of APPEAL 1900 (NSW) Y sentenced, also land and sentence, question of law, Y enviro appeals are heard question of fact, three supreme court judges with majority prevailing LAND, ENVIRO O, A Land and N Civil and administration No jury, has the same status as Environmen N disputes, illegal polluting, the Supreme court tal Act 1979 N dumping, enviro planning (NSW) NSW enviro protection authority present FEDERAL, O, A Judiciary N Drug importation, New legislation and changes HIGH Act 1903 Y laundering, corporate law, from commonwealth COURT (cth), N fraud, constitutional parliament, If wanting to appeal Section 71 of matters here you need to seek to Australian persuade the high court to Constitutio appeal, 7 judges n The adversary system Under the adversary system, both parties are afforded the right to seek a lawyer to represent them, and each side is provided with an equal opportunity to present their arguments and evidence in court – no verdict can be reached until both the Defence and Prosecution have rested their cases and the final arguments have been presented. Legal personnel- ➔ Magistrate- Magistrates are the judicial officers who preside over cases within the local courts. In criminal law, magistrates will hear summary offences. A magistrate will determine both the verdict and the sentence in the local court for the offender. ➔ Judges- Judges are the judicial officers who preside over cases within the intermediate and superior courts. A jury determines the judgement/verdict and if proven guilty the judge will then decide the sentence. In a judge-only trial the judge will determine both the verdict and sentence. Prosecutors in criminal trials represent the ‘State’ or the ‘Crown’ which brings action against the accused. The two types include- ➔ Police prosecutor- The police will often be required to give testimony at the trial to aid the prosecution's case. Police prosecutors will often deal with summary offences in the local court although more serious offences are dealt with by public prosecutors. ➔ Director of public prosecution- For indictable offences and some summary offences cases will be prosecuted by the DPP (Director of Public Prosecution). A DPP is an independent authority that prosecutes all serious offences on behalf of the NSW Government. Prosecutors employed by DPP are often barristers or solicitors with numerous years of experience, they present the evidence the police have gathered. ➔ Public defenders- When an accused cannot afford a barrister or solicitor, they may be granted access to a public defender. Public defenders are barristers who appear in serious criminal cases for an accused who has been granted legal aid. Pleas- After an accused is charged, they must enter a plea of either guilty or not guilty before a magistrate or judge. The plea entered by the accused will have a significant impact on how the charges are dealt with. For example a ‘guilty’ plea will be dealt with quickly and the individual will be sentenced. However, if a ‘not guilty’ plea is entered the case will be defended in court. The types of plea include- Not guilty plea Guilty plea No plea ➔ The defendant wants the ➔ The case goes straight to the sentencing stage, ➔ They take this to prosecution to prove that they this saves money and time. The defendants who mean you're really ARE NOT guilty, this can lead plead guilty get a ‘discount’ on their sentence. pleading not guilty. to a long and costly trial. E.g less time in jail Charge negotiation- Where the accused agrees with the prosecution to plead guilty to a particular charge or charges. It usually involves pleading guilty to a lesser charge in exchange for other higher charges to be withdrawn or pleading guilty for a lesser sentence. Advantages- Disadvantages- ➔ Decreases costs and time delays to free up the court ➔ Crimes may go unpunished system ➔ Admitted crime is insufficiently punished ➔ Conviction on a lesser charge is better than no ➔ It increases the rate of criminal convictions conviction ➔ An accused may plead guilty to a crime in which they are ➔ Spares the victim and witnesses the trauma of testifying innocent Legal representation- In the Australian legal system a defendant has the right to a fair trial and Australian courts have ruled that a trial will rarely be fair for the accused without adequate legal representation. This was recognised in Dietrich v the Queen 1992 in the High Court. The courts prefer people to be represented by a barrister or solicitor, so they receive a fair and just trial. Legal aid- In 1979, the NSW Government created the legal aid commission, under the Legal aid Commission Act 1979 (NSW). Legal assistance to people who are socially and economically disabled, this ensures they have an equal and fair trial. This is most commonly accessed by- disabled, women, ASTI background, unemployed or low income earners. The applicant must pass a means and merit test to determine whether they can afford legal representation and the likelihood of their case succeeding. Burden and standard of proof- Criminal Civil Burden of proof Prosecutor Plaintiff Party defending case Accused Defendant Standard of proof Beyond reasonable doubt (Hard to prove, e.g 95%>) Balance of probabilities (easier to prove, e.g 51%>) The burden of proof is the responsibility or onus of a party to prove their case. The prosecution bears the burden of proof. The standard of proof is the level of proof required for a party to succeed in court. Use of evidence- During a criminal investigation the police will gather evidence that will be used to prosecute the accused during a trial in court. The use of evidence is bound by the Evidence Act 1995 (NSW). For evidence to be admissible in court it needs to be relevant and legally obtained. Inadmissible evidence can include irrelevant, indirect, personal, illegally obtained and evidence influenced by threats or violence. Evidence types can include- Physical Documentary Witnesses ➔ Tangible ➔ Original documents gathered ➔ People called to testify in court ➔ DNA during the investigation process. ➔ People who saw the crime occur ➔ Photos/videos ➔ People who have knowledge ➔ Fingerprints (phycologist, BPA analyst) ➔ Weapons ➔ Clothing Witnesses can be subpoenaed, interviewed, have to take oath (truth), have testimony and answer certain questions. Defences to criminal charges- defences are the reasons/excuses for committing a crime that mean you don't have to get the full punishment. Complete defences Partial defences to murder ➔ Defendant is found NOT GUILTY ➔ The defendant is found GUILTY OF MANSLAUGHTER ➔ 1- mental illness- Person must have a mental illness, this ➔ Sometimes when a defence does not completely excuse illness prevented them from knowing what they were you from committing a crime but there is some reason doing was wrong, no mens rea. as to why you did it they can reduce your charge. ➔ 2-self-defence- This is when the defendant did what he ➔ 1- substantial impairment of responsibility- If the court thought was necessary to defend himself from himself accepts they had a 'substantial impairment because of or someone from a threat, force needs to be mental health impairment or cognitive impairment' ‘proportionate’ to the threat. when they committed the offence. ➔ 3-necessity- This can be used when the consequences of ➔ 2- provocation- When a person is considered to commit not committing the crime would be worse than a crime partly because of a preceding set of events that committing the crime, e.g someone sped to the hospital might cause an individual to lose self control. Less due to someone having a heart attack. morally culpable. ➔ 4- duress- If you do something under duress, you are doing it due to someone threatening you. ➔ 5-consent- Some things are only crimes if you don't consent to them ‘sex’, if you prove the fact the victim consented to the crime to defend yourself. The role of juries and verdicts- Juries are a central part of the adversary system of criminal law. They reflect the historic right of an accused person to be judged, impartially by a group of their peers, based on evidence presented. Jury Act 1977 (NSW). It consists of 12 citizens selected from a compiled list from the electoral roll and their job consists of determining a verdict (guilt or innocence). Accused then acquitted if found not guilty, if guilty the judge will pass the sentence. Could be easy or deliberate for days. If the jury is unable to reach a verdict it becomes a hung-jury, in this situation it is dismissed and a retrial will occur. Under section SSF of the Jury Amendment (verdicts) Act 2006 (NSW), a majority verdict is defined as agreed by 11 jurors out of 12 or verdict agreed by 10 jurors out of 11. Sentencing and punishment (SP)- Statutory and judicial guidelines- Parliament- statutory Previous court case (precedent)- judicial- The crimes (sentencing procedure) Act 1999 (NSW). This promotes consistency and transparency. 1- Maximum sentences for all crimes (statutory guidelines) -Crimes Act 1900 (NSW) 2- Standard non-parole periods for some crimes (statutory guidelines) 3- Guidelines judgement for some crimes (judicial guidelines) 4- Mandatory life sentences for some crimes (statutory guidelines) The purpose of punishment- The purposes for which a court can sentence an offender under NSW law are to- ensure that the offender is adequately punished for the offence. Prevent crime by preventing the offender and other persons from committing similar offences. Protect the community from the offender. Deterrence (S OR G) Retribution Rehabilitation Incapacitation ➔ Disencourage or is ➔ Punishment ➔ An objective of ➔ Making an offender intended to discourage considered to sentencing designed to incapable of someone from doing be morally reform the offender so committing further something. right. that they do not offences by restricting ➔ Specific- individual. commit offences in the freedom. ➔ General- community. future. Factors affecting a sentencing decision Aggravating Mitigating ➔ More severe ➔ Less severe ➔ Looks at crime ➔ Looks at offender ➔ E.g multiple victims, an especially serious physical or ➔ E.g a greater degree of provocation than normally psychological effect on the victim, even if unintended, a expected, mental illness or disability, youth or age, sustained assault or repeated assaults on the same where it affects the responsibility of the individual victim, victim is particularly vulnerable, location of the defendant, the fact that the offender played only a minor offence (for example, in an isolated place) role in the offence. The role of the victim in sentencing- Many crimes involve a victim who suffers some kind of harm as a result of the offender's actions. They can be involved in the criminal trial process in many ways from reporting, assisting police through to testifying at trial as a witness and submitting a victim statement. This can be fearful and confrontational. Appeals- A person convicted of an offence and sentenced will have the right to appeal their case - that is to a higher court for review of one or more decisions made in the lower court. The crown also has the right to appeal where e.g it believes the sentence is too lenient. The party appealing is called the appellant or the applicant. Two types can include- ➔ Appeal against conviction- argues that they did not commit the crime they were found guilty of. ➔ Sentence appeal- appeal against the severity of the sentence. Types of penalties- No conviction recorded- When an individual is found guilty, the judicial officer can either record the conviction against the offender, or pass the sentence with no conviction recorded. Caution- A caution is a formal warning and is used for certain less serious offences as a way to avoid the court system, in the hope that the offender has learnt a lesson and will not reoffend. Fine- A fine is a monetary penalty imposed on an offender and usually applies for less serious offences such as driving offences etc. Conditional release orders- A court may decide to issue a conditional release order, either by itself or in conjunction with another penalty, for up to two years, a bond was replaced by this. Probation-Probation is an order that is based on the needs of the community. The offender is released into the community, but there are certain restrictions that are imposed. The actual length of probation and parole may extend anywhere from months to years. Criminal infringement notice- Is issued by police. It allows police to issue on-the-spot fines for certain offences. E.g obstructing traffic. Community correction orders- A penalty that can be imposed by a court for a long period of time up to three years. This replaces community service orders and good behaviour bonds. Intensive correction order- An ICO is a custodial sentence of up to two years that the court decides can be served in the community. Community safety is the court's paramount consideration when making this decision. The old ICO has been overhauled. Unlike suspended sentences, supervision is mandatory. Forfeiture of assets- Where an offender has obtained money or property through their criminal activities, a court may order that the money or property be recovered. The court might order that the assets be recovered in addition to any form of punishment. Imprisonment- The most severe punishment. ‘A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate’ (Crimes (Sentencing Procedure) Act 1999 (NSW)). Diversionary programs- A court program set up to divert certain offenders from more traditional criminal processes in the hope that they can be rehabilitated and encouraged not to reoffend. Alternative methods of sentencing Circle sentencing Restorative justice ➔ Circle sentencing is an alternative court for sentencing ➔ Alternative to traditional sentencing methods adult indigenous australians. ➔ Involves bringing together the offender and the victim ➔ Introduced in Nowra Feb 2002 of the offence, this provides an opportunity for the ➔ Designed for repeat offenders and those who have offender to take responsibility for their actions and the committed more serious crimes. impact they have had on others. ➔ Based on indigenous customary law and more ➔ Moving forward and make amends traditional indigenous forms of dispute resolution. ➔ Can be confronting and difficult for both parties ➔ Involves community members and a magistrate sitting involved. in a circle to discuss the offender's crime and then tailor the most appropriate sentence. ➔ Has the full sentencing powers of a court. Post sentencing considerations- Security classification- Correctional centres are divided into three security classifications- maximum, medium and minimum. NSW has 41 centres. It is divided by the seriousness of the crime, prospects of rehabilitation or whether they have displayed good behaviour after previous sentences. Protective custody- Provided in correctional centres in NSW to offenders who are vulnerable to attack from other prisoners. Protects them from any physical violence. Parole- Parole if the conditional release of a prisoner from custody after the completion of the minimum term sentence. Preventative detention- involves imprisonment of a person for some type of future harm that they may commit. The person is detained in custody without being guilty of an offence. Ensures community safety. Continued detention- Where serious offenders who have served their full sentence continue to be detained. Includes high risk offenders who are likely to reoffend Sexual offenders registration- State and federal databases of offenders who have been convicted of certain sexual offences. Deportation- A migrant living in Australia who is not a citizen may be deported if they are tried and convicted of a criminal offence. Young offenders- Age of criminal responsibility- Outlined in the Children (Criminal Procedure) Act 1987. Doli incapax is the conclusive presumption that those 0-10 cannot be found guilty. Children do not have the necessary mens reus due to their limited life experience to determine right from wrong actions. ➔ 20% of alleged offenders are female ➔ More than half of the young people in detention across NSW were Aboriginal/Torres Strait islander people and this is increasing by each year. The rights of children when questioned or arrested- ➔ Children's rights vary from state to territory ➔ Children and young people require some special provisions when dealing with police that are not given to adults ➔ Law Enforcement (Powers and Responsibilities) Act 2002, LEPRA. Covers this. LEPRA classifies children as vulnerable people due to their limited intellectual functioning and so their rights differ when dealing with police. ➔ Strip searching- cannot be under 10, responsible adults present between 10-18. ➔ Obtained evidence- over 14 years for ID, police must destroy forensic evidence after the case. Questioning- Arrested- ➔ An adult representative needs to be ➔ Police require the ID of suspects when they are arrested. This can be OK present during questioning. if they are above 14 but if under they need to obtain an order from the ➔ Right to silence. childrens court. Children's court ➔ Childrens Court Act 1987 (NSW) ➔ Deals with criminal matters and care/protection of U18s ➔ Children's courts have much wider jurisdiction to hear and determine matters than local courts. Almost any offence can be heard. ➔ The process is prioritised to rehab the child by them accepting their actions and making reparations. ➔ Protection of the child, non-intimidating environment, closed court (prohibited publication of identities of victims/offenders ), specialised children's magistrate, no jury. Penalties for children- ➔ The penalty imposed on a child shall be no greater than that of an adult for the same offence ➔ Children should be assisted with reintegration into the community to sustain ties to their family and community ➔ Children should take responsibility for their acts and make reparation for them if possible ➔ The effect on the victim should be considered, although this must be subject to their principals. ➔ Types of penalties can include- dismissal, conviction, adjournment, bond, youth justice, fine, probation, community service order, suspended control order, control order. ➔ Children can receive cautions under the Young Offenders Act 1997 (NSW), this is recorded by court and isn't on history once you are 18. When you have three you go to court ➔ Youth justice conferencing- Similar to adult imprisonment although the maximum sentence is two years, they encourage rehabilitation and reintegration into the community. ➔ NGO’s- ABC’s four corners program, white lions mentor program, PCYC Alternatives to court- Alternatives to court can include warnings, cautions and youth justice conferences. International crime- International Crime- International crime refers to any crime punishable by a state that has international origins or consequences, recognized as punishable by the international community. One major obstacle in dealing with international crime is the concept of state sovereignty, which refers to the authority of an independent state to govern itself. This includes the power to impose taxes, make war or peace, and form treaties with foreign states. The principle of state sovereignty can make it difficult to prosecute offenders of international crimes, as some states may be unwilling or unable to take action, especially if the individuals hold positions of power or have fled to another jurisdiction. Categories of International Crime- Crimes Against the International Community- These are the most serious crimes, condemned universally by the international community. Crimes like genocide, war crimes, and acts such as the hijacking of aircraft and slave trading fall under this category. Some states may be unwilling or unable to prosecute offenders due to political reasons or jurisdictional challenges. Genocide- Genocide is defined as acts intended to exterminate all or part of a national, ethnic, racial, or religious group. The Rome Statute (Article 6) gives the International Criminal Court (ICC) jurisdiction over genocide, which can include killing members of a group, causing serious bodily harm, and other actions aimed at the destruction of a group. Genocide was first criminalized by the Convention on the Prevention of the Crime of Genocide in 1948. Proving genocide is often complex, requiring extensive documentation, evidence, and testimonies. Prior to the establishment of the ICC, genocide was prosecuted by specific tribunals such as the International Criminal Tribunal for the Former Yugoslavia (ICTY). Crimes Against Humanity- These crimes involve a systematic attack against civilian populations with knowledge of the attack. Crimes like murder, enslavement, torture, and rape fall under this category, as per Article 7 of the Rome Statute. These crimes are easier for the ICC to prosecute due to their broad definition and less stringent evidentiary requirements compared to genocide. War Crimes- War crimes are actions that violate international law during times of war, such as torture, willful killing, and directing attacks at civilian populations. The Geneva Conventions set standards for the humane treatment of war victims. Article 8 of the Rome Statute outlines activities that constitute war crimes. One notable case is the Prosecution of Sudanese President Omar Al-Bashir, where in 2008, the ICC filed charges against him for war crimes, genocide, and crimes against humanity, stemming from atrocities committed against tribal groups in Sudan. Transnational Crimes- Transnational crimes involve breaking the laws of more than one nation and are often difficult to prosecute due to jurisdictional challenges. Transnational crime includes human trafficking, international fraud, and terrorism. These crimes are typically prosecuted under domestic law, but international cooperation is crucial. An example is the Wonderland Club Prosecution, where simultaneous raids were carried out globally to arrest members of a child pornography ring. Dealing with International Crime- Domestic Measures- In Australia, crimes against the international community are addressed through domestic legislation, such as the War Crimes Act 1945 (Cth) and the Geneva Conventions Act 1957 (Cth). After ratifying the Rome Statute on December 9, 1998, Australia aligned its domestic laws with international obligations. The Australian Federal Police (AFP) plays a crucial role in combating transnational crime through international cooperation, including initiatives like the Jakarta Centre for Law Enforcement Cooperation. The Australian Crime Commission (ACC) investigates organised crime with an international dimension, such as money laundering, tax fraud, and human trafficking, working in collaboration with global law enforcement agencies. International Measures- Internationally, courts and tribunals were used to prosecute crimes before the establishment of the ICC in 2002. The International Court of Justice (ICJ) handles disputes between nations, while the ICC focuses on prosecuting individuals for the most serious crimes. However, the ICC only exercises jurisdiction when national courts are unable or unwilling to prosecute. INTERPOL, established in 1923, enhances international police cooperation on transnational crime, such as drug trafficking, human trafficking, and terrorism. Effectiveness of International Crime Prevention- The fight against international crime faces significant challenges, especially due to the ease of travel and technological developments, which make detecting and prosecuting such crimes more difficult. State sovereignty also complicates enforcement, limiting the jurisdiction of international bodies. For example, the USA ignored an ICJ ruling when found guilty of unlawfully invading Nicaragua's airspace. In terms of transnational crime, weaker states may lack the necessary skills and resources to combat complex crimes such as human trafficking. International cooperation, sharing resources, and intelligence are crucial but can be inconsistent, particularly in less developed regions. For crimes against the international community, the ICC has become a powerful tool. Its existence serves as a deterrent to powerful leaders, signalling that sovereignty does not provide immunity from prosecution. However, the ICC faces limitations. For instance, it only intervenes after atrocities have occurred, and the UN Security Council rarely calls upon it. The Rwandan genocide and the case against President Al-Bashir highlight the delayed response to mass atrocities, often occurring years after the events. The ICC is further hampered by a lack of participation from key global powers such as the United States, China, and India. War crime tribunals remain rare due to funding issues, limiting their capacity to deliver justice. Nonetheless, the ICC represents a step forward in improving international accountability for crimes against humanity. Limitations- International criminal law seeks to address the most serious offenses that concern the global community, such as genocide, crimes against humanity, war crimes, and the crime of aggression. However, the prosecution and prevention of these crimes face several significant challenges. Addressing these limitations necessitates a multifaceted approach, including strengthening international institutions, fostering greater state cooperation, and continuously adapting legal frameworks to effectively combat international crimes. State Sovereignty and Jurisdictional Limitations- State sovereignty—the authority of a state to govern itself—poses a substantial obstacle to international criminal proceedings. Many states are reluctant to cede jurisdiction to international bodies, viewing it as an infringement on their sovereignty. The International Criminal Court (ICC), for instance, operates on the principle of complementarity, meaning it can only prosecute cases when national courts are unwilling or unable to do so ( Cambridge). This deference to national sovereignty can limit the ICC's ability to intervene, especially in situations where states are capable of conducting their own prosecutions. Jurisdictional Constraints of the International Criminal Court- The ICC's jurisdiction is confined to specific crimes: genocide, crimes against humanity, war crimes, and the crime of aggression (International Criminal Court). While these categories cover grave offences, they do not encompass all forms of international crime, such as terrorism or human trafficking. Additionally, the ICC's jurisdiction is limited to crimes committed on the territory of its member states or by nationals of those states, unless a case is referred by the United Nations Security Council (United Nations Legal). This territorial and nationality limitation can hinder the Court's capacity to address crimes occurring in non-member states. Resource Constraints and Selectivity in Prosecution- The ICC and other international tribunals often face budgetary and resource limitations that affect their ability to investigate and prosecute cases effectively. This scarcity necessitates a selective approach to case selection, which can lead to perceptions of bias or uneven application of justice ( Oxford Academic). The focus on high-profile cases or those with significant political implications can result in lesser-known conflicts and crimes receiving inadequate attention. Political Considerations and International Cooperation- The effectiveness of international criminal law is heavily reliant on the cooperation of states. Political considerations, such as the interests of powerful nations or geopolitical dynamics, can influence the enforcement and development of international criminal norms. For example, the ICC's reliance on state cooperation for arrests and evidence gathering means that non-cooperative states can impede the Court's functions ( Human Rights Watch). Challenges in Defining and Proving International Crimes- Precisely defining international crimes and establishing the requisite intent can be complex. For instance, proving genocide requires demonstrating an intent to destroy, in whole or in part, a particular group, which can be challenging to substantiate (International Criminal Court). Additionally, the evolving nature of conflicts and the emergence of new forms of crime, such as cyber warfare, present ongoing challenges to the existing legal framework ( Inquiries Journal). HUMAN RIGHTS- The nature and development of human rights- Human rights- The universal declaration of human rights (UDHR) adopted by the United Nations in 1948. It lays on the fundamental purpose of human rights, ‘recognition of the inherent dignity and of equal and alienable rights of all members of the human family, is foundation of freedom, justice and peace in the world’. ➔ UNIVERSAL, INALIENABLE, INHERENT to all people. ➔ They PROTECT individuals from injustice, ALLOW people to achieve their full potential in society and PREVENT discrimination against any groups of people. ➔ Three groups- FIRST GEN- civil and political rights, UDHR and ICCPR. SECOND GEN- economical, cultural, social rights, ICCPR. THIRD GEN- international rights, global co-op Developing recognition of human rights- the abolition of slavery, trade unionism and labour rights, universal suffrage, universal education, self-determination, environmental rights and peace rights. (WORKSHEET IN BOOK IN DEPTH) Formal statements of human rights- UDHR, ICCPR, ICESCR Universal Declaration of Human Rights- ‘soft law’ The Universal Declaration of Human Rights is an international document adopted by the United Nations General Assembly that enshrines the rights and freedoms of all human beings. It declares that human rights are universal, to be enjoyed by all people, no matter who they are or where they live. The Universal Declaration includes civil and political rights, like the right to life, liberty, free speech and privacy. The UDHR is not legally binding, it can be seen as ‘soft law’. International Covenant on Civil and Political Rights- ‘hard law’ This covenant was adopted by the UN on 16th December 1966 and entered into force on the 23rd of March 1976. This further elaborates civil and political rights and freedoms in the UDHR. Under A1 of the covenant, the 147 states commit themselves to promote the right to self-determination and to respect that right. International Covenant on Economic, Social and Cultural Rights- ‘hard law’ To protect the basic needs/necessities for life which includes the rights to food and water, to have a roof over your head and to adequate healthcare. It was adopted by the General assembly on the 16th of December 1966 and entered into force on the 3rd of January 1976. In accordance with the UDHR the covenant recognises that ‘...The ideal of free human beings enjoying civil and political freedom and freedom from fear and what can be achieved only if conditions are created whereby everyone may enjoy civil and political rights, as well as economic, social and cultural rights.’ Enforcing international law- Step one- sign, rep of state signs treaty/agreement on behalf of gov Step two- ratify, state formally approves the terms of treaty Step three- enact/incorporate, state introduces domestic legislation which reflects the terms of the treaty (legally enforceable in the state) Promoting and enforcing human rights- In the international community- State sovereignty- The sovereignty of states is one of the most essential components of the international system. State sovereignty refers to the ultimate law-making power of a state- it’s independence and freedom from external interference in its affairs. Sovereignty is the source of a state's legal and political power to make laws over its own population and to enforce those laws. Nation- a group of people who share a common heritage, language or culture and sometimes race. State- a gov and the people it governs, a country. The roles of- The UN The UN is a vast organisation with substantial power, consisting of 193 member states, including almost every sovereign state in the world, and has the responsibility for almost every aspect of international affairs. It is the avenue through Which much of the world's international development takes place. The organs that deal with human rights are the UN General Assembly, Un Security Council, Economic and Social Council, UN Secretariat, International Court of Justice. IGO’s International institution made up of member states. Created by an agreement between states, and each has an international treaty that acts as a charter outlining their purpose and operations. Usually permanent and have a legal personality. The most important IGO is the Charter of the United Nations (1945), others include the World Trade Organisation, the International Monetary Fund and NATO. Courts, Courts and tribunals must interpret (or read and apply) the laws made by Parliament in a way that is compatible tribunals and with human rights. They can only do this in a way that is consistent with the purpose of the law they are independent interpreting. The main principle behind international courts and tribunals is the commitment to resolve disputes between states by peaceful means. There are a number of international courts and tribunals in the world, some statutory operate under the frameworks of the United Nations, whereas others operate independently. authorities NGO’s Organisations ensuring humanitarian protection and assistance. No representation from the government, usually non-profit and focused on humanitarian and social issues. Examples include The Red Cross and the Commonwealth of Nations. They promote and address issues regarding human rights and more and rely on a variety of sources of funding while collaborating with other organisations to maximise their impact. Media The role of a free and impartial media and individuals rights to information is recognised as a human right. The media's role is to expose abuse and ‘naming and shaming’ human right violations to bring change. CASE- Jamal Khashoggi. In Australia- The incorporation of human rights into domestic law- Australia does not have one set document, rights are recognised and drawn from sources such as International treaties, Aus constitution, common law, statute law of the CTH. Australia is a dualist system meaning a legal system that does not deem treaties enforceable domestically until they are incorporated into domestic law/pass similar legislation. Express rights- are rights included in a document. Clearly expressed or outlined rights in the text of the constitution. Clear/concrete and can only be removed with re-wording of the constitution. Implied rights- The political and civil freedoms that necessarily underlie the actual words of the constitution but are not themselves expressly stated directly in the constitution. The roles of- The Constitution- ➔ It lays down the system of Australian government through which human rights are recognised, division of including the separation of powers and the division of powers. It is the source of some specific powers/separation of human rights including express rights and implied rights. powers Statute law ➔ In recent years, the CTH, states and territories have enacted a large body of statute law to protect human rights in Australia Legislation includes the Anti Discrimination Act 1977 (Cth) and the Australian Human Rights Commission Act 1986 (Cth) Common law ➔ Examples of fundamental rights protected through common law include the presumption of innocence, the right to a fair trial and the burden of proof. However, rights within common law are not absolute and can be removed with legislation. Courts and tribunals ➔ Australian Human Rights Commission- an independent body established to deal mainly with issues relating to Australia’s human rights legislation, can receive and investigate complaints/breaches, can conduct public enquiries into human right issues and recommendations, advises parliament and govs on development of laws, policies, and programs consistent with human rights. ➔ High Court of Australia- Matters involving human rights might appear before any state or federal courts or tribunals, however, the high court has the power to set binding precedents and to overturn legislation incompatible with the Australian Constitution. NGO’s ➔ Australian NGOs can play an important role in protecting individuals rights, shaping public and political opinion and exposing violations of human rights. Some include the Law Council of Australia and The Red Cross. Media ➔ The media plays an indispensable role in ‘naming and shaming’ human right violations and can have a significant influence on the public opinion and government action. A Charter of Rights?- Human rights are protected internationally through various documents and sources however, the protection of rights in Australia is scattered and in many cases fragile. Arguably, a charter of rights would allow aus-citizens to gain the benefits of a human rights charter. There have been various attempts to introduce greater human rights protection but this has failed. Most notably in 2008. Where the Federal Attorney General Robert McCleland, announced an inquiry called the national human rights consultation, into whether Aus should adopt some form of a charter of rights. This sparked a nationwide debate about the status of rights and the need for protection. This became very successful and sparked positive feedback however, it was rejected in 2010. The government announced it would implement a human rights framework including various measures such as education initiatives and enhanced parliamentary processes. Advantages Disadvantages ➔ Extremely high community support ➔ Current HR legislation is adequate ➔ Fixing the short-coming of existing HR protections ➔ Easier to change laws instead of a charter which is ➔ Govs can consider human rights when creating harder to do laws/policies ➔ 12.6% of people oppose a charter ➔ People can take action /seek justice when HR are ➔ Common law already upholds decisions violated ➔ Society relies on edu and media to know about HR ➔ Ensures values, fairness, respect, dignity, compassion ➔ Demonstrate process, all the same process etc ➔ Judges are involved in making political decisions ➔ Individuals can directly know their rights and freedoms ➔ Aus is already an equal and ‘far ahead’ society ➔ Prevent rights from being scattered/fragile ➔ Action towards a fairer Australia ➔ Can compare with other states and their charters/bills of rights CASE- West Papua human right violations. Contemporary issues- Abuse of children, in-depth transcript and slides. FAMILY The nature of family law- The concept of family law- A family is defined as ‘Two or more people residing together by marriage, birth or adoption’. The main function of the family is the care and protection of its members. Social values develop and change over time to accept and develop new ideas such as adoption, same-sex relationships, divorce etc. Marriage Act 1961 (Cth) and Family Law Act 1975 (Cth) Under section 51 of the constitution the Federal Government has the power and authority to make laws governing marriage/divorce. Under the above laws they establish legal requirements, duties and obligations within a marriage. In the past, only the State government could pass legislation about marriage/divorce but State Governments have referred their powers to the Federal Government. Old definition New definition ➔ ‘The union of a man and a woman to the exclusion of all ➔ ‘The union of two people to the exclusion of all others, others voluntarily entered into for life’. voluntarily entered into for life’. ➔ Due to the Hyde v Hyde and Woodmansee (1866) case, ➔ In 2017 the old definition was changed to this new the Corbett v Corbett (1970) case, and the re Kevin case definition and this was passed through the Marriage (2001) case, shows the law reform in the change of the Amendment (Definition and Religious Freedoms) Act definition through the courts. 2017 (Cth). ➔ This definition was added in 2004 when the Federal Government amended the Marriage Act, while previously relying on the common law definition. ➔ The government added this definition in 2004 due to the fear of loopholes and same-sex marriage. Legal requirements of marriage- Marriage is a legal institution and individuals who intend to marry must take into the consideration the legal consequences of this union. Marriage Act 1961 (Cth) and Family Law Act 1975 (Cth) are the main legislations. Requirements- Marriage age May marry at 18. If between 16-18 the court must grant approval for the marriage. Anyone under the age of 16 cannot marry. Parental consent If a person is wanting to marry underage and the parents do not consent to their child's marriage, the court can grant permission for the marriage to take place. Only occurs in exceptional circumstances, each case is determined by its own merits. Parental consent can help in approval for marriage in some circumstances. Prohibited degree of A person cannot be married with anyone closely related to them by blood (consanguinity) or by marriage relationships (affinity). Cannot marry brothers/sisters, kids, cousins, steps and adopted family. Notice of marriage One month's notice must be given with intention to the NSW registry of Births, Deaths and Marriages. Written and signed by both parties with witnesses.Must provide proof of age, if either has been married previously and evidence that if so they legally can marry again. Valid marriage Must have an authorised marriage celebrant to perform the ceremony, two witnesses over 18, signed ceremony and marriage licence provided to both and have their marriage registered. marriage licence Void or invalid marriage occurs when it fails to meet the definition or the requirements of a marriage. If a marriage is found to be invalid or void, the court can nullify the marriage. This will mean that the marriage, in the eyes of the law, is deemed to have never taken place because it was illegal. Alternative family relationships- Indigenous families ➔ Relationships within Indigenous communities are bound by traditions and enforced through customary law. Due to this, they do not conform to the legal requirements of a marriage in Australia under the Marriage Act 1961 (Cth), they are not recorded or registered. ➔ In 1986 , the Australian Law Reform Commission tabled a report (Recognition of Aboriginal Customary Laws) focusing on children and marriage and how it should be recognised and given legal status. The response to the report suggested that the changes were more appropriate to state and territory law. De facto families ➔ De facto relationship is defined in Section 4AA of the Family Law Act 1975 (Cth). ➔ According to the ABS, in 2019 approx 75% of couples married had lived together prior to marriage. ➔ Questions regarding property division and the de facto spousal maintenance are now determined in the Family Law Act 1961 (Cth). Gives non-married couples the same rights as married couples. Single-parent ➔ Due to changing values in the community the growth of single-parent families and blended families families and is growing. blended families ➔ ABS says 6.7 million families and 14% were single-parent families. ➔ When two single-parent families unite this is considered to be a blended family, on the 2016 censes 6 million families blended in Australia, and numbers are increasing. ➔ Step parents do not have the same legal responsibility as the parent of the child, no right to duty or discipline. ➔ Step parents wanting to adopt must apply to the Family Court, regulations must be obliged by.under the Adoption Act 2000 (NSW) s 30. ➔ CASE- Falconio and Conchitta (2009). Same -sex ➔ In December 2017, the Federal Government responded to a postal survey and passed the Marriage marriages Amendment (Definition and Religious Freedoms) Act 2017 (Cth). ➔ Legalising same-sex marriage. ➔ According to the ABS there are currently 47,000 same sex couples living in Australia. Legal rights and obligations of parents and children- CROC (Convention On The Rights Of The Child)- signed and ratified by 194 states(Aus in 1990), states that children should be protected fr5om any form of violence, neglect, discrimination, exploitation and neglect. Important principle of the ‘best interests of the child’. ➔ In NSW laws govern the behaviour of parents regardless of their relationship. ➔ Federal law governs the behaviour of parents if they separate. Care and Young Persons (Care and Protection) Act 1998 (NSW)- If this is not followed and basic requirements below aren't given to the child. Criminal prosecution for neglect of the child may occur. Neglect is a criminal offence under the Crimes Act 1900 (NSW) (s 43A). Provide adequate - food and shelter Protect child from - abuse/neglect Provide access to ➔ Parents cannot refuse their child an education but have the right to choose where they are education educated. There are provisions for at home education. ➔ Education Act 1990 (NSW). ➔ Failure can result in fines or children can receive community service if over 15. Provide discipline ➔ Parents have the right to use physical force but must be ‘reasonable, regard to age, health, maturity etc’ under the Crimes Act 1990 (NSW). ➔ The Crimes Amendment (Child Protection- Physical Mistreatment) 2001 (NSW) amended under S61AA- states that any head or neck force or injury that results in bruising, marking or injury lasting longer than a short period. The UN recommends a ban on physical punishment (30 countries). Provide medical ➔ Parents are responsible for appropriate medical care and dental care. Consent from parents needs treatment to be considered. If 16-17 requires consent from the child. ➔ Minors (Property and Contracts) Act 1970 (NSW) (S49)- consent, acceptance of risks and what is involved is required and to be clarified. ➔ CASE- R v Thomas; R v Manju Sam (No. 18) NSWSC 1003. ➔ CASE- ‘Supreme court authorises blood transfusion treatment for young child despite parents’ refusal of consent. FACS (NSW Government Department of Family and Community Services)- responsible for implementing the laws. Can investigate and initiate a joint child protection response (JCPR)- collaboration between FACS NSW police and NSW health. Family Law Act 1975 (Cth)- section 60B includes the ‘best interests of the child’, includes parental care and protection and to have a meaningful relationship with both parents. However the last point has changed within the Family Law Amendment Act 2023 which commenced on the 4th of May 2024. The court makes decisions now based off how safe the child and people who care for them are, what the child wants, what the child needs to develop, how well each parent can look after the child, the value of the child having a relationship with their parents and family and anything else that is important to the child's situation. - https://www.ag.gov.au/sites/default/files/2024-05/family-law-amendment-act-2023-factsheet-for-family-law-parents-easy-read.PDF The child support scheme was introduced also to enforce maintenance orders on parents not residing with their child. The Child Support (Registration and Collection) Act 1988 (Cth) shifted the collection and enforcement of child support from courts to an administration system. This legislation introduced a formula of calculation of child support owed ensuring they fulfil their financial responsibility towards children and comply with the law. (resource efficient as this saves courts resources by being run through admin) (resource efficiency). Adoption- ESSAY IN BOOK AND LEGAL AND NON-LEGAL RESPONSES. ➔ Adoption Act 2000 (NSW)- aim is to provide the child with the best and most appropriate parents. Amended repeatedly in line with changing community values. Adoptive parents- Biological parents- ➔ Under the Adoption Amendment (Same sex couples) ➔ Both parents must give consent for adoption, there is a Act 2010 (NSW) it can be a married couples ot stable de 30 day revocation period where they can change their facto relationships including same sex couples, can be minds, single mother can give consent however the father must be notified prior and given 14 days to individuals not in a relationship, over 21 but under 51, 18 respond, birth mother cannot consent within 3 days of years older than the child, must be a good person (fit birth, children over 12 have to consent to adoption, court and proper parent, fulfil the responsibilities). can give consent, relinquishing parents can nominate a ➔ In 2014 the Child Protection Legislation Amendment relative, parents who give up a child for adoption must Act 2014 (NSW) (Repelled) was passed in response to also nominate a desired religious upbringing for their approx 18000 children being ‘foster cared’. child. Inter-country adoptions- Governed by the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (1993) and by bilateral agreements between Australia and countries that have ratified the convention. Responses to problems in family relationships- Divorce- the legal dissolution (termination) of a marriage, under section 48 of the Family Law Act 1975 (Cth), only one ground for divorce and that is ‘irretrievable breakdown’. Before 1975, married couples had to apply under the Matrimonial Causes Act 1959 (Cth) there were many reasons where divorce had to be a ‘ground of fault’ and there needed to be evidence required, it was hard to apply and end in divorce. Now the family court hears matters rather than the district court and the Act has removed all other grounds. For the divorce to be accepted all parties need to be separated and live separately for twelve months, separate finances and separate friend groups. Once divorce is applied for it encourages parties to seek an amicable solution through a three month reconciliation period which is included in the twelve month separation period. If the parties have been married for under two years they have to do two counselling under S50 and meditation before divorce under the Family Law Amendment (Shared parental responsibility) Act 2006 (Cth). ➔ The ABS said in 2017, 30% of marriages were likely to end in divorce, 97000 divorces annually. ➔ Divorce peaked during COVID-19 ➔ Guardian- ‘Obscenely high: how family court costs are destroying parents and their children’ - 2017 ➔ Legal consequences of separation- Decree nisi (process) and decree absolute (divorced ordered) Children Property ➔ No application for dissolution will be approved until the ➔ Includes homes, bank accounts, companies, shares, court is satisfied with the proper arrangements in place super and household goods. Factors such as age and for the care of the children. ‘Best interest of the child’. income are considered and there is no set formula on separating property. Family Law Act 1975 (Cth) includes Parents are encouraged to make their own definition. S90SF, S90SM consider factors. Case- arrangements. Family Law Act 1975 (Cth) S64B includes Hoffman v Hoffman (2014) FamCAFC 92.(can bind parenting plans. Family Law Amendment (Shared agreements through court, can be heard in court, parental responsibility) Act 2006 (Cth) states mediation and conference cannot make agreements, compulsory mediation. In 2019 approximately 5% of due to no set formula may be inconsistent). divorces did not reach agreement and went to family court. (resource efficient, high accessibility, law reform, consistency, decrease backlog in court). Dealing with domestic violence- Domestic violence as personal violence committed against someone with whom the offender has, or has had a ‘domestic relationship’ with. That is a marriage, a de facto or another close relationship e.g child. Domestic violence is the main social, judicial, political and economic issue in Australia. DV can include physical violence, sexual assault, economic abuse, threatening behaviours, social isolation, intentional damage or destruction to property, behaviours that coerces, controls or causes ‘fear’. ➔ One woman is killed weekly across the nation. (idea). ➔ Women are 4x likely to be attacked by a known person, 73% likely to be attacked again, 61% have children. ➔ In NSW over half of assaults reported are of domestic violence nature. ➔ Case- R v Majdalawi (1996) (NSWSC), Rose Batty 2015, Molly Tieshurst NSW responses Federal responses ➔ The Crimes (Domestic and Personal violence) Act 2007 ➔ Article 19 of CROC 1989 (Convention On The Rights Of (NSW). The Child) declares that no child shall be subject to ➔ Surveillance Devices Amendment (Police Body-Worn violence and it is the responsibility of the state to protect Video) Act 2014 (NSW). - film evidence when entering a the child from all forms of physical or mental violence, house etc. injury, abuse, neglect, maltreatment or exploitation, ➔ The Crimes Act was amended in 2018 to add harsher including sexual abuse. punishments. ➔ Major reviews have been completed (minimal ➔ Crimes Legislation Amendment (Coercive Control) Act effectiveness). 2022 NSW. From July 2024. ➔ Leaving domestic violence programs. ➔ NSW ankle monitors and bail crackdown (idea for new ➔ Domestic violence leave with work. legislation, article and response in book). ➔ Family Violence Act 2011 (Cth). ➔ NSW parliament states state that all forms of violence ➔ Articles in legal book. are unacceptable. ➔ Victims of domestic violence can apply for an Apprehended domestic violence order (ADVO). They list behaviours not allowed, ‘conditions’. ADVO is issued before court and if it is breached they are criminally liable for their actions - two years imprisonment. (resource efficient but lacks enforceability). The roles of- Courts and dispute The Family Court of Australia handles complex matters related to marriage, divorce, and children, offering resolution legally binding resolutions. However, its adversarial nature can intensify conflicts, so mediation is often used to resolve disputes, reducing court pressure and costs. Parenting plans and most divorces are resolved through mediation, although some find it inadequate. Various initiatives address domestic violence, including the NSW Domestic Violence Intervention Court Model and the Time for Action national plan to reduce violence against women. Legislative reforms like the Family Law Legislation Amendment (2011) and the Coroners Amendment (2010) aim to improve child protection and reduce domestic violence deaths. Despite cases like R v Mulvihill highlighting limitations in protection, legal responses are increasingly stringent. Media reports emphasise the prevalence of domestic violence and new safety technologies like SafeTCards, which aim to enhance police responsiveness. Over 90% of family law disputes, including 95% of divorces, are settled through alternative dispute resolution methods such as mediation, counselling, and conciliation. Methods Family law employs various methods to resolve disputes and support families, including alternative dispute resolution (ADR) techniques like mediation and counselling, which reduce the need for litigation. The Family Law Court uses technology to improve accessibility through online resources and the National Enquiry Centre. Legislative reforms, such as the Family Law Legislation Amendment (2011), address issues like domestic violence and child protection. Additionally, community organisations and government programs offer legal advice, counselling, and support services for families, aiming to protect individual rights, reduce conflict, and provide accessible legal solutions. Non-government Various organisations provide support services for families, including mentoring for new parents, counselling, organisations legal and relationship advice, conflict management, and assistance in dealing with violence. They also offer emotional support to children of separating parents, women’s refuges, mediation, and guidance on creating parenting plans. Religious groups like the Salvation Army and Anglicare, along with community-based groups such as Relationships Australia and The Smith Family, play key roles in these efforts. Additionally, lobby groups like the Domestic Violence Committee Coalition (DVCC) in 2006 helped create a united voice to push for reforms in family and domestic violence issues. The media The Family Law Court utilises technology to improve access to services, offering self-help guides, brochures, forms, and service links on their website. They also established the National Enquiry Centre, which provides telephone and email support on court procedures and referrals to legal services, enhancing public awareness of family issues. The media plays a role in raising awareness about protecting individuals' privacy during family breakdowns and preventing domestic violence. The court restricts media coverage of court proceedings to protect privacy and encourage cooperation. Media coverage of cases like Shellay Ward's starvation in 2007 has also influenced lobbying efforts, leading to the Domestic Violence Review Team and legislation aimed at protecting children's rights. Contemporary issues concerning family law Issues that must be studied- Surrogacy- Surrogacy is a reproductive arrangement where a woman(surrogate) agrees to carry/give birth to a child for another person or couple. Surrogacy arrangements are medically, emotionally, financially and legally complex. The laws surrounding surrogacy differ in many countries but most agree on commercial surrogacy being illegal. Altruistic surrogacy is where there is no monetary gain for the birth mother and it is a selfless act, this is legal in many countries including Australia. Traditional- Gestational- ➔ In a traditional surrogacy, the surrogate is the biological ➔ In a gestational surrogacy, the surrogate has no genetic mother of the child because her egg is used in the link to the child. An embryo (egg) is created through process. The surrogate is impregnated through artificial fertilisation (IVF) using the intended parents or genetic insemination using the intended fathers sperm or donor material (sperm and egg). The surrogate carries and sperm. This creates a genetic link with the father and delivers the child and has no biological relationship to not the mother. the child. Before 2010, specific legislation was enacted, surrogacy arrangements were largely unrelated, leading to various legal uncertainties and ethical concerns. This was due to the fact a surrogate could make money off an arrangement and not pass the baby over or the intended parents could take the child and not pay. Forced miscarriages, medical bills refused to be paid, intended parents might bail and it became of high risk. Due to this, the Surrogacy Act 2010 (NSW) No 102 was introduced to recognise certain surrogacy arrangements and to prohibit commercial surrogacy arrangements and to provide for the status of children in surrogacy acts. Features of the Surrogacy Act include- ➔ Decisions of surrogacy must be based on the ‘best interest of the child’ so that it is equal. ➔ Parentage orders are used to transfer parentage from the birth mother to the commissioning parents (replaced adoption process). ➔ A requirement of counselling and legal advice to both parties included prior to entering an agreement to protect, ensure emotional commitment and legal obligations. (before parenting order). ➔ Factors such as ‘the best interest of the child’, counselling and legal advice, parentage orders, eligibility requirements, altruistic surrogacy and surrogacy arrangements are the most significant and important within the Surrogacy Act 2010. This ensures ethical framework, protection and support and legal clarity however, the agreements are unenforceable, include interstate and international complications, access and eligibility is complicated and it is resource inefficient. Birth technologies- Artificial insemination- where donated sperm are artificially introduced into the uterus. IVF (in vitro fertilisation)- where fertilisation takes place outside the uterus using the sperm of a parent or donor and the ovum of a parent or donor and the resulting embryo is then implanted in a uterus. IVF Australia is a legally recognised body around IVF. The use of genetic manipulation- gene shearing or donated genetic material to alter a foetus in the uterus. Another example includes cloning which is governed by the Prohibition of Human cloning for Reproduction and the Regulation of Human Embryo Research Amendment Act 2006. It is illegal to buy or sell any human tissue, including sperm, eggs and embryos. Under the status of the Children's Act 1996 (NSW) these children have the same legal status as children conceived naturally. However, birth tech has many legal issues, rights of inheritance issues, and who has control over the child. This is apparent as the ‘natural father’ might not be classified as the actual father of the child as the partner of the impregnated individual can be classified as the father when it has no biological relation to the child. CASES- B v J 1996 and Massons v Parsons 2019 HCA. Surrogacy and birth technology essay in docs. Recognition of same-sex relationships- Same-sex marriage has been fought for since 1978 and was finally legalised in 2017. Same-sex couples were excluded from rights/obligations in the Family Law Act 1961 (Cth). 84 acts were amended by the government in 2008 to eliminate discrimination including tax, super, family law etc. Netherlands was the first to legalise same-sex marriage and this created a domino effect with other countries. The commonwealth reaffirmed the marriage definition to ‘one man and one women’ to completely exclude same-sex marriage. In 2017, there was a postal survey and majority voted in favour resulting in a change for same-sex marriage to become legalised. Legal responses Non-legal responses ➔ De Facto Relationships Act 1984 (NSW)- recognised ➔ Public opinion and advocacy- polls in 2013 (65%) and same-sex, equal protection. 2014 (72%). Australian Marriage equality and NSW Gay ➔ Property and Financial Matters Act 2008- handled by and Lesbian Rights Lobby. courts. ➔ Human Rights Commission Involvement- AHRC ➔ Veterans Entitlement Act 2009- war widow pensions. conducted a report in 2007. ➔ Adoption Rights Act 2010- ability to adopt children. ➔ Cultural and media influence- Macklemore's ➔ Parental rights Act 2010- listed as mothers on birth performance in 2017 at NRL grand final. certificate. ➔ Legislative and government actions- law reform and ➔ Marriage Equality Act 2017- legalising same-sex anti-discrimination commission to address laws. marriage ➔ Religious and opposition views- some oppose same-sex, existing laws allow religious organisations to discrimination. Two long responses to questions in my book. The changing nature of parental responsibility (refer to slides in book)- The courts are less concerned with parental rights and are now more concerned with parental responsibility. Parents have joint responsibility for the child under the Family Law Act 1975 (Cth) ss 61B, 61C. Reforms to parental responsibility were made in 2006 under the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) and more recently in 2024, the Family Law Amendment Act 2023 which was introduced regarding equal shared parental responsibility of children. Responsibility of a child is not altered if the parents separate, marry or remarry unless there is a court order. The reforms focus on maintaining positive and supportive family structures and ensuring parents meet their responsibility towards children. Children may spend a disproportionate amount of time with one parent regarding financial, geographic constraints or issues with the other parent. (60% with mothers). For males there could be concern with family violence, abuse or conflict. For females there could be concern with mental health, abuse or possibly finance or transport. Legal responses- Non-legal responses- ➔ Family Law Amendment (Shared Parental ➔ Community, church based institutions and nation-wide Responsibility) Act 2006 (Cth)- includes considerations organisations such as the Relationships Australia who in regards to ‘the best interests of the child’. Primary offer mediation and counselling for separating parents and help with parenting agreements. This can help considerations- protect the child and have a positive and separating parents negotiate their own parenting meaningful relationship with both parents. Additional agreements and can provide a range of info and considerations- the child's wishes, nature of the referrals. relationship, financial ability and the ability of the ➔ Women's resource centres, the National Council of parent to provide intellectual and emotional needs for Women of Dads in Distress Support Services- provide the child. support for men going through divorce/separation. ➔ Family Law Act 1975 (Cth) s 65DAA- involved spending Counselling, helpline, referrals and advocacy. ➔ Interrelate- provides ‘fathering program’ and aims to ‘substantial and significant time’ with each parent, help men build and maintain positive where equal time is not considered to be in the best relationships.Counseling and referrals. interests of the child. ➔ The Lone Fathers Association- provides counselling, ➔ The Family Law Legislation Amendment (Family legal support and advice for fathers. Violence and Other Measures) Act 2011 (Cth)- courts must take into consideration evidence of domestic violence in parenting matters, if there is reasonable suspicion then this overruled the presumption of shared parental responsibility. ➔ Family Law Amendment Act 2023- regards equal shared parental responsibility of children. Effectiveness- Non-legal support organisations and community programs play a crucial role in facilitating cooperating parentage and addressing individual family needs. Promotion rather than protection which enhances accessibility and promotes responsiveness to society in the legal system. Legal reforms have progressively emphasised child protection and balanced parental responsibility. However, issues remain in practical application, especially in cases involving family violence and entrenched conflict. This results in resource efficiency and enforceability in the courts. Ineffectiveness- Legal responses promote shared responsibility, real-world constraints and safety concerns often result in

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