CAMBRIDGE

LEGAL STUDIES
PRELIMINARY

SECOND EDITION

Paul Milgate
Kate Dally
Phil Webster
Daryl Le Cornu
Tim Kelly

9780521734699part_01_3pp.indd 1 2/9/09 8:31:02 PM

 CAMBRIDGE UNIVERSITY PRESS
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, So Paulo, Delhi

Cambridge University Press

477 Williamstown Road, Port Melbourne, VIC 3207, Australia

www.cambridge.edu.au
Information on this title: www.cambridge.org/9780521134699

Paul Milgate, Kate Dally, Phil Webster, Daryl Le Cornu, Tim Kelly 2010

First published 2006

Second edition 2010

Edited by L. Elaine Miller, Otmar Miller Consultancy Pty Ltd

Designed and typeset by Mason Design
Printed in China by Printplus

National Library of Australia Cataloguing in Publication data

Milgate, Paul.
Cambridge preliminary legal studies / Paul Milgate [et al.].
2nd ed.
9780521134699 (pbk.)
Includes index.
Bibliography.
For secondary school age.
LawAustraliaTextbooks.
LawExaminationStudy guides.
Higher School Certicate Examination (N.S.W.)Study guides.
Milgate, Paul
Dally, Kate.
Webster, Phil.
Le Cornu, Daryl.
Kelly, Tim.
349.94

ISBN 978-0-521-13469-9 paperback

Reproduction and Communication for educational purposes

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9780521734699part_01_3pp.indd 2 3/9/09 10:16:18 AM

 Contents

About the authors viii

Acknowledgements ix
Introduction x
Using Cambridge Legal Studies Preliminary xi
Glossary of key words xiv

Part I: The legal system 1

CHAPTER 1 BAS IC L EGAL C ON C EP TS 2

The meaning of law 4
Customs, rules and law 5
Values and ethics 7
Characteristics of just laws 8
The nature of justice 8
Procedural fairness and the principles of natural justice 9
The rule of law 10
Anarchy and tyranny 12
Chapter review 14

CHAPTER 2 S OUR C ES OF C ON T EM P O RA RY A U STRA L I A N L AW 16

Australias legal heritage 18
Common law 18
Court hierarchy: Jurisdiction of state and federal courts 22
Statute law 27
The Constitution 31
Aboriginal and Torres Strait Islander Peoples customary laws 43
International law 48
International organisations 51
Relevance of international law to Australian law 55
Chapter review 56

CHAPTER 3 C L AS S IF IC AT ION OF LAW 58

Public law and private law 60
Criminal and civil court procedures 65
The legal profession 70
Common and civil law systems 73
Chapter review 74

iii

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 C H APT ER 4 L AW R E FO RM 76
What is law reform? 78
Conditions that give rise to law reform 78
Agencies of reform 88
Mechanisms of law reform 92
Chapter review 94

C H APT ER 5 L AW R E FO RM I N A C TI O N 96

Topic 1: Law reform and native title 98

Conditions that lead to law reform on native title 98
Operation of the legal system in relation to native title 101
Effectiveness of law reform in relation to native title 109

Topic 2: Law reform and sport 110

Conditions that lead to law reform in sport 110
Agencies of law reform in sport 114
Mechanisms of law reform in sport 116
Effectiveness of law reform in the sporting world 117

Topic 3: Law reform and sexual assault 118

Conditions that lead to law reform relating to sexual assault 118
Agencies of law reform relating to sexual assault 120
Mechanisms of law reform relating to sexual assault 122
Effectiveness of law reform relating to sexual assault 124
Chapter review 125

Part II: The individual and the law 129

C H APT ER 6 Y OUR RI G H TS A ND RESP O NSI B I L I TI ES 130

What are rights and responsibilities? 132
The nature of individual rights 133
Individuals rights and responsibilities in relation to the state 136
International protection of rights 143
Chapter review 146

C H APT ER 7 R ES OLV I NG DI SPU TES 148

Introduction 150
Law enforcement agencies 150
Disputes between individuals 154
Disputes with the state 158
Chapter review 167

C H APT ER 8 C ON T EM PO RA RY I SSU ES: TH E I NDI V I DU A L A ND TE C H NO L O G Y 168

The scope of new technology 170
Legal issues in cyberspace 171
Privacy, safety and censorship 178
Rights in cyberspace 182

iv C a m b r i d g e L e g a l S tu d ie s Pre limin ary

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 Current status and sources of law in cyberspace 183
Future directions 185
Conclusion 188
Chapter review 189

Part III: Law in practice

AREA 1 : GR OUPS OR IN DIVIDUAL S SU FFE RI NG DI SA DVA NTA G E 192

CHAPTER 9 C H IL DR EN AN D Y OUNG P E O PL E 192

C o n tents
Introduction 194
Children, young people and the law 201
Mechanisms for protecting the rights of children and young people 201
Responsiveness of the law 205
Conclusion 209
Chapter review 210

CHAPTER 10 WOMEN 212

Introduction 214
Women and the law 214
Mechanisms for achieving justice for women 220
Responsiveness of the legal system to efforts to achieve justice for women 227
Conclusion 230
Chapter review 231

AREA 2 : EVEN T S WH IC H H IGH L IGH T L E G A L I SSU ES 234

CHAPTER 11 T H E BAL I BOMBIN GS 234

Introduction 236
9/11 and global terrorism 236
Mechanisms for achieving justice after the Bali bombings 240
Legal responses to terrorism 244
Conclusion 247
Chapter review 248

CHAPTER 12 T H E PORT ART H UR M A SSA C RE 250

Introduction 252
The Port Arthur massacre 252
Mechanisms for achieving justice after the Port Arthur massacre 258
Responsiveness of the legal system to the Port Arthur massacre 260
Conclusion 263
Chapter review 264

AREA 3 : IN DIVIDUAL S OR GR OUPS I N C O NFL I C T WI TH TH E STATE 266

CHAPTER 13 MOH AMED H AN EEF 266

A brief history of the Mohamed Haneef case 268
Mechanisms for achieving justice in the Mohamed Haneef case 274

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 Responsiveness of the law 279
The future for Australia 281
Chapter review 282

C H APT ER 14 OUT L AW M O TO RC YC L E G A NG S (O M C G s ) 284

Outlaw motorcycle gangs in Australia 286
Mechanisms for achieving justice in relation to OMCGs 293
Responsiveness of the law 301
Chapter review 302

AR EA 4: C R IMIN AL O R C I V I L C A SE S TH AT RA I SE I SSU ES
OF IN T ER ES T T O S T U DENTS 304

C H APT ER 15 F IL E SH A RI NG A ND DI G I TA L C O P YRI G H T 304

File sharing, digital copyright and the law 306
Mechanisms for achieving justice in relation to digital copyright 308
Responsiveness of the law 314
The future of digital copyright in Australia 316
Chapter review 318

C H APT ER 16 DR UG TE STI NG 320

Introduction 322
Mechanisms for achieving justice in drug testing 326
Responsiveness of the law 335
Conclusion 337
Chapter review 338

Answers to multiple-choice questions 340

Glossary 341
Index 348

Student CD Contents
Additional chapters

C H APT ER 17 GR OU PS O R I NDI VI DU A L S SU FFERI NG DI SA DVA NTA G E :

MIGR AN T S
Introduction
Migrants and the law
Mechanisms for achieving justice for migrants
Responsiveness of the legal system to migrants
Future directions
Chapter review

vi C a m b r i d g e L e g a l S tu d ie s Pre limin ary

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 CHAPTER 18 GR OUPS OR IN DIVID U A L S SU FFE RI NG DI SA DVA NTA G E:
AB ORIGIN AL AN D T OR R ES S T R AIT ISL A NDERS
Aboriginal and Torres Strait Islanders and the law
Mechanisms for achieving justice
Responsiveness of the law

Additional material for Student Book chapters

CHAPTER 8 C ON T EMPOR ARY IS S U E : TH E I NDI V I DU A L A ND TE C H NO L O G Y

CHAPTER 9 GR OUPS OR IN DIVIDU A L S SU FFERI NG DI SA DVA NTA G E :

C o n tents
CHILD REN AN D Y OUN G PEOPL E

CHAPTER 10 WOMEN : GR OUPS OR I NDI V I DU A L S SU FFE RI NG DI SA DVA NTA G E

CHAPTER 11 EVEN T S WH IC H H IGH L I G H T L E G A L I SSU ES:

THE B ALI BOMBIN GS

CHAPTER 12 EVEN T S WH IC H H IGH L I G H T L E G A L I SSU ES:

THE PORT ART H UR MAS S AC R E

vii

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 About the authors

Paul Milgate Kate Dally Daryl Le Cornu Tim Kelly

Paul Milgate DipTeach BEd
is Head of Legal Studies,
Business Studies/Commerce
and Economics at Xavier
Catholic College on the
north coast of NSW. He has
extensive experience in
Legal Studies, having taught
it since its inception. He was
a foundation member of the
North Coast Legal Studies
Teachers Association, which
conducts student seminar
days and provides funding for
professional development in
collaboration with Southern
Cross University Faculty of
Law and Justice.
Kate Dally BA DipEd is Head
Teacher of Social Sciences at
Birrong Girls High School in
Sydney. She has extensive
experience, having taught
Social Sciences for the past
17 years. Her experience also
covers HSC marking in both
Legal Studies and Business
Studies. She has also written
for Success One Business
Studies for a number of
years.
Dr Daryl Le Cornu BA (Hons)
DipEd PhD is currently HSIE
Head Teacher at Mount
Annan High School. He has
taught Legal Studies for
16 years and is also very
experienced in teaching
other senior humanities
courses. Daryl completed
a doctorate in 2005 on
the intellectual origins of
multilateral cooperation and
collective security in Britain
during World War I. He is an
experienced HSC marker for
Legal Studies and Modern
History. Daryl is also the
Education Program Ofcer
for the WCAA (World Citizens
Association of Australia)
and is a member of ACUNS
(Academic Council on the
United Nations System).
Tim Kelly BA DipEd DipLaw
obtained his BA DipEd
from the University of New
South Wales in 1984 and
completed his Diploma
in Law from the Legal
Practitioners Admissions
Board in 1996. He began
teaching Legal Studies in
1993 at St Marys Maitland.
Since 1998, Tim has been
the HSIE Coordinator at
St Marys in Casino. Tim
is also a tutor at Southern
Cross University in HSIE
Curriculum Specialisation
and is a current HSC marker
for Legal Studies.

Phil Webster
Phil Webster BA DipEd MEd
MACE is Head Teacher of Social
Scence at Mosman High. He
has over 20 years experience
in HSIE as a teacher of Legal
Studies, Society and Culture,
and Business Studies, with
a particular interest in the
changing role of law in society.
Phil is passionate about issues
of human rights, justice and
fairness in a rapidly changing
world a world in which the
balance of power between the
individual and state is constantly
brought into question.

viii C a m b r id g e L e g al S tu d ie s Pre limin ary

9780521734699part_01_3pp.indd 8 2/9/09 8:31:07 PM

 Acknowledgements
Thanks to my wife, Barbara, my daughter, Ebony, and
my son, Zach a great team!
PAUL MILGATE
Thanks to all of my family and friends who put up with
me as I wrote my chapters.
K ATE DALLY
To the boys at Hells Angels MC thanks for your assistance
with OMCGs. To Katie Wood at Amnesty huge thanks
for your support and research. To Abby, Frankie and
Kobe, Daddy is not on the computer tonight!
PHIL WEBSTER
I would like to dedicate this book to the Class of 2008
HSC Legal Studies students at Mount Annan High
School.
DARYL LE CORNU
To Amanda, Jack and Hannah thanks, innity times,
always.
TIM KELLY
The authors and publisher wish to thank the following
sources for permission to reproduce material:
Cover: iStockphoto/Anthony Brown.
Images: Shutterstock, pp. 1, 4, 5, 9, 10 left & right, 12 right, 13 top,
19, 21, 26, 28, 58, 59, 63, 64, 65, 69, 76, 77, 81, 85 bottom, 86, 90,
92, 96 left & right, 97, 110 left & centre, 113, 118, 119, 129, 130,
131, 134, 135, 141, 148, 149, 150, 153, 154, 158, 163, 168, 169,
170, 172 left & right, 173, 174 top & bottom, 178, 179, 180, 185,
187, 191, 192, 193, 194, 195, 197, 200, 201, 204, 206, 216, 221,
224 top, 226, 234, 235, 250, 251, 258, 272, 284, 285, 294 top left,
304, 305, 306, 307 left & right, 309, 313, 315 top right, 317, 320,
321, 323, 327, 328 left, 330, 332 left & right, 333, 337; iStockphoto/
Anthony Brown, pp. 2, 3; Wikimedia Commons/ Fir0002, p. 7 /
Infrogmation, p. 12 top left /Hanhil, p. 50 /David Shankbone, pp. 52,
291 top left /Thalan, p. 73 left /Jeremy, p. 78 /Yann Forget, pp. 93,
176 /Enoch Lau, p. 137 top /Schutz, p. 159 left /lkiwaner, p. 208 /
Fanny Schertzer, p. 253 left /Tirin, p. 225 /Francis Tyers, p. 269 top
/Simon Wedege Peterson, p. 269 bottom right /Manuel Gonzalez
Olaechea y Franco, p. 269 bottom left /Klaus Enslin, p. 288 top right
/Dori, p. 288 bottom right, These images are licensed and freely
available under the GNU Free Documentation License; Wikimedia
Commons/ Chris Metcalf, p. 12 bottom left /Wilson Afonso, p. 39 /
Patrick Gruban, p. 53 bottom /Chris Johnson, p. 144 /Joi Ito, pp. 171,
311 top /Library of Congress, p. 207 /Robert Scoble, p. 218 /Ruth
Elison, p. 243 bottom left, These images are licensed and freely
available under the Creative Commons Attribution 2.0 License;
Wikimedia Commons/Public domain, pp. 13 bottom left, 40, 54,
68, 73 centre & right, 84, 101, 137 bottom, 152, 202, 215, 243
bottom right, 244, 268 right, 288 top left, 294 top right; Wikimedia
Commons/ TwoWings, p. 13 bottom right /2002 Dustin M Ramsey,
p. 44 /Thomas Schoch, p. 139, These images are licensed and freely
available under the Creative Commons Attribution ShareAlike 2.5
License; Dreamstime/ Krystof, pp. 16, 17 /Alfonsodetomas, p. 166 /
Silviaantunes, pp. 212, 213 /Yellowcrest, p. 267 /Aspectimages,
p. 266; Photolibrary/ Mary Evans Picture Library, p. 20 /North Wind
Pictures Archives, p. 324. State Library of Queensland, Negative
Number 16964, p. 32 left; Gordon H Woodhouse, Unoccupied White
Australia, H15362/37, State Library of Victoria, p. 32 right; John D
Chesworth, p. 33; Ross Scott, Courtesy of the Tasmanian Wilderness
9780521734699part_01_3pp.indd 9
Society, p. 35; National Library of Australia/ Yes for Aborigines,
nla.aus-vn3116836-1x-v, p. 37 /Joseph Lycett, Aborigines using re to
hunt kangaroos, nla.pic-an2962715-s20-v, p. 47 top /Lyn McLeavy,
Land Council Meeting, Fitzroy Crossing, nla.pic-an23389398, p. 47
bottom /The Australian Constitution, 16211, p. 62 /Captain Cooks
landing at Botany, nla.pic-an7890396-m, p. 100 top; Ron Tandberg
for The Age, p. 42; Aboriginal Studies Press, AIATSIS and Auslig/
Sinclair, Knight, Merz, 1996, p. 46; Wikimedia Commons/Agencia
Brasil. This image is licensed and freely available under the Creative
Commons Attribution 2.5 Brazil License. p. 53 top; Wikimedia
Commons/ Bidgee, pp. 60, 151, 299 /Socrates2008, p. 140 /samh_78,
p. 159 right /John Erling Blad, p. 182 /author unknown, p. 214 /
Paul 1953, p. 325 top /Angelo Tsirekas, p. 326, These images are
licensed and freely available under the Creative Commons Attribution
ShareAlike 3.0 License; Getty Images/ Michael Kelley, p. 66 /Bernd
Opitz, p. 156 /Spencer Platt, p. 237 bottom; Corbis/ Epa, Peter Foley,
p. 72 /Penny Tweedie, p. 109 /Epa, Mast Irham, p. 142; Wikimedia
Commons/Dedda71. This image is licensed and freely available under
the Creative Commons Attribution 3.0 Unported License. p. 79;
Wikimedia Commons/ Richard Johnstone, p. 80 /Timeshift9 p. 132,
These images are licensed and freely available under the Creative
Commons Attribution ShareAlike 2.0 License; Wikimedia Commons/
Salim Fadhley. This material is licensed and freely available under
the Free Art License at <http://artlibre.org/licence/lal/en> p. 85
top; ActionAid Austalia (formerly Austcare), p. 91; Newspix/ News
Ltd, pp. 98, 104, 259, 295 /Kym Smith, pp. 110 right, 245 /James
Knowler, p. 115 /Braden Fastier, p. 157 /Nathan Edwards, p. 237 top
left /Sam Rosewarne, p. 256 /Jodie Richter, p. 275 /Craig Borrow,
p. 291 top left /Robert McKell, p. 315 bottom /Jeff Darmanin, p. 325
bottom; National Archives of Australia: A6180, 12/12/73/107, p. 100
bottom /A8598, AK6/5/80/11, p. 103; Fairfax Photos/ The Age, p. 102 /
Bruce Miller, p. 291 bottom /AMH/Penny Bradeld, p. 297; AAPImage/
Jonathan Ng, p. 111 /Alan Porritt, p. 164 /Itsuo Inouye, p. 237 top
right /AAPImage, pp. 237 bottom left, 239 left /Radar Bali, p. 238 /
Anwar Mustafa, p. 239 right /Dita Alangkara, p. 241 /Steve Holland,
p. 254 /Torsten Blackwood, p. 255 /Jenny Evans, p. 258 /Aijaz Rahi,
pp. 268 left, 277 left /Dave Hunt, p. 278 /Pool/Steven Siewert, p. 286
/Asahi Shimbun, p. 287 /Shannon Morris, p. 308; Jonas Liebschner/
JL Photography, p. 116; NSW Rape Crisis Centre, p. 121; Manly
Council, NSW, p. 123; ACTU, pp. 160, 224 bottom; Amnesty
International Australia, p. 166; Coca Cola, p. 177 left; Cadbury,
p. 177 right; Facebook is a registered trademark of Facebook Inc.
p. 178 left; Sheila Smart/Sheila Smart Photography, p. 219; UN
Photo/Ryan Brown, p. 228; National Security Department, p. 242;
Wikimedia Commons/Arnaud Gaillard, pp. 243 top left & right,
These images are licensed and freely available under the Creative
Commons Attribution ShareAlike 1.0 License;
Reuters/David Gray, p. 262; Inkcinct Cartoons, p. 277 right;
Wikimedia Commons/CC-BY-SA-2.0-DE. This image is licensed and
freely available under the Creative Commons Attribution ShareAlike
2.0 Germany License. p. 288 bottom left; F.R.E.E. Australia Party,
p. 301; Esther Dyson via Flickr, at <http://www.ickr.com/photos/
edyson/1742438> p. 311 bottom; AFACT, p. 315 top left;
Australian Defence Force, p. 328 right.
Text: Cigarette beach ban goes up in smoke in Sydney, The
Australian, January 11, 2009 <http://www.theaustralian.news.com.au/
story/0,25197,24895070-5006784,00.html> p. 11; Geoff Earle, NY
Post. p. 138; Extract from ABC News Channel Seven guilty in Corby
defamation case rst published by ABC Online, 29 May 2008, is
reproduced by permission of the Australian Broadcasting Corporation
and ABC Online. (c) 2008 ABC. All rights reserved. p. 142; Matthew
Benns, Courtesy of The Sun-Herald p. 155; Belinda Merhab, Courtesy
of The Australian, p. 164; Extract from ABC News Controversial bikie
laws pass NSW Parliament rst published by ABC Online, 3 April
2009, is reproduced by permission of the Australian Broadcasting
Corporation and ABC Online. (c) 2009 ABC. All rights reserved. p. 299;
Australian Institute of Health and Welfare, p. 322; Andrew West,
Courtesy of The Age. p. 329; Extract from ABC News School drugs
test a waste of money by Michael Turtle rst published by ABC
Online, 26 March 2008, is reproduced by permission of the Australian
Broadcasting Corporation and ABC Online. (c) 2008 ABC. All rights
reserved. p. 331.
Every effort has been made to trace and acknowledge copyright. The
publisher apologises for any accidental infringement and welcomes
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ix
2/9/09 8:31:09 PM
 Introduction
To the student
Congratulations on choosing Cambridge Legal
Studies Preliminary (Second Edition). This edition
has been completely updated to meet the require-
ments of the 2009 Stage 6 Legal Studies Syllabus
in New South Wales.
Legal Studies was rst introduced into the NSW
Curriculum in 1989. Since then, thousands of
students have nished their secondary schooling
better informed citizens, able to think more
critically about the processes and institutions that
shape their lives on a daily basis.
The rights people enjoy within democratic
societies have at times been eroded by governments
when electorates become apathetic about their
freedoms and liberties. Legal Studies will allow
you to explore the power vested in our democratic
institutions and wielded by our elected leaders. It
explores issues that will challenge the way you see
x C a m b r id g e L e g a l S tu d ie s Pre limin ary
9780521734699part_01_3pp.indd 10
the world and how you understand the concept of
achieving justice through the law.
Cambridge Legal Studies Preliminary (Second
Edition) is a comprehensive resource that intro-
duces you to a dynamic and challenging subject.
It brings the law to life for you, both inside and
outside the classroom.
You will discover a wealth of material that
introduces you to the Australian legal system, how
the individual interacts with and is affected by
the law, and gain insight into how the law works
in practice in a variety of contexts. You will be
engaged and stimulated by up-to-date case law
and recent legislative developments. Practically,
updated research and review activities will assist
to build your research skills and make sure that
you are ready for your exam.
We wish you luck and success.
2/9/09 8:31:10 PM
 Using Cambridge
Legal Studies Preliminary

The Cambridge Legal Studies Preliminary s legal research tips and information to help you
resource package consists of ve components: understand case citations.

1 Student Book 4 Teacher CD-ROM

The Student Book contains all topics in Part I, The Teacher CD-ROM contains a wide range
Part II (including additional topics under Law of material to support students and teachers,
Reform in Action), and a range of contemporary with course, lesson, assessment and homework
high-interest topics in Part III. preparation.

2 Student CD 5 Student and teacher website

The Student CD can be found at the back of the The Cambridge Legal Studies website is a free
Student Book. It contains: resource that presents additional activities, web-
s an electronic version of the Student Book links, teaching plans and curriculum documents
s two additional chapters for Part III Migrants to support students and teachers.
and Aboriginal and Torres Strait Islanders
s additional resources for Chapters 812
s all Review activities in electronic format.

3 Study Toolkit
The Study Toolkit packaged with the Student
Book contains a wide range of material to help
you succeed in Legal Studies, including:
s exam preparation and study tips
s additional multiple-choice, short-answer and
extended response questions for each part of
the course

GUID E T O IC ON S

This icon lets you know that there is some additional information or activities on the
Student CD at the back of the book.

This icon lets you know that you will need to access the internet in order to
complete an activity or research task.

xi

9780521734699part_01_3pp.indd 11 2/9/09 8:31:11 PM

 Key features of the Student Book

CHAPTER 2
Sources of contemporary
Australian law
Chapter openers

The lega l sy stem

Each chapter of Cambridge
Legal Studies Preliminary
begins with a chapter opener c h a p te r o b j e cti v e s re le v a n t la w o d d l aw

that contains: In this chapter, students will:

s identify and apply legal concepts and terminology
s describe the key features and operation of the
IMPORTA NT LEG ISLAT ION
Commonwealth of Australia Constitution Act
1900 (UK)
In DPP v Darby [2002] NSWSC 1157, the
government prosecutor appealed the decision
of a magistrate that the actions of a police
Australian and international legal systems Australia Act 1986 (Cth) sniffer dog named Rocky, who put his nose on
s #HAPTEROBJECTIVES s discuss the effectiveness of the legal system in
dealing with relevant issues
Administrative Decisions (Judicial Review) Act
1977 (Cth)
the defendants trouser pocket, constituted an
illegal search. The Supreme Court of New South
s explain the relationship between the legal system Wales held that Rockys action was not a search,

s +EYTERMS and society

s describe the role of the law in conict resolution and
SIG NIFICA NT CA SES
Gutnick v Dow Jones & Co. Inc [2001] VSC 305
but the search that the police ofcers did carry
out (which found prohibited drugs) was legal
its ability to respond to and initiate change Commonwealth v Tasmania [1983] HCA 21 because they had formed the opinion necessary

s 2ELEVANTLAWINCLUDING s locate, select and organise legal information from a

variety of sources
s communicate legal information by using well-
South Australia v Commonwealth [1942] HCA 14
Murphyores v The Commonwealth [1976]
HCA 20
for its legality and that opinion resulted from
information conveyed by the actions of Rocky.

structured responses. R v Brislan; Ex parte Williams [1935] HCA 78

important legislation and Osland v R [1998] HCA 75
Roper v Simmons, 543 US 551 (2005)

signicant cases)
k e y te r m s/v o c a b u l a ry

adversarial system exclusive powers precedent

s /DDLAWIN#HAPTERSn 
appeal ex parte ratify
appellate jurisdiction external affairs power ratio decidendi
bicameral federation referendum
bill indictable offences residual powers
committal hearing inquisitorial system sanction
common law jurisdiction stare decisis
concurrent powers legislative powers summary offences
customary law mediation statute law
defamation natural justice terra nullius
delegated legislation obiter dicta treaty
domestic law opinio juris ultra vires
equity original jurisdiction

16 C a m br i dge L ega l St udi es P re lim in a r y C h a p t e r 2 : S o u rc e s o f c o n t e m p o r a r y A u s t r a l i a n l a w 17

Statutory bodies R EVI EW 7 . 5

m e dia c lip

were sent to gaol as a result of the NSW Royal

The individual and the law

NSW Ombudsman calls for freeze Mr Scipione said there was a training Statutory bodies are authorities created by Commission). However, it has been argued 1 Explain the process
Media clip on Taser guns manual for the use of Tasers, and ofcers had
to get an 80 per cent pass rate in a written
statute for a public purpose. The following
statutory bodies can investigate complaints
that the inquiry into Aboriginal deaths in
custody has failed to produce signicant
of internal review of a
government agencys
By Belinda Merhab exam before they were accredited to use the
and disputes of certain types. improvements in the conditions leading to

A number of current media The Australian, 20 November 2008 decision. What are the
weapon.
these deaths. potential problems with
Mr Scipione said Tasers had been drawn,
THE NSW Ombudsman has recommended a A NTI-D ISCRIMINAT ION BOA RD OF internal review?
but not necessarily used, 70 times since last
two-year freeze on further roll-outs of Taser NSW ( A D B) IND EPEND ENT COMMISSION

articles are provided to help

guns, saying police standards for their use are
inadequate, and the health risks are unknown.
Bruce Barbour told state parliament yesterday
you understand how the that general-duties police, who were issued
the stun guns last month, were using Tasers at
a higher rate than special operations police,
who began using them in 2002.
law operates in real-world
It is clear the number of incidents where
Tasers will be used in the future will increase
signicantly, Mr Barbour said.
months roll-out of the weapons. He said
there had not been related injuries to police
or citizens.
Every Taser use was recorded by an inbuilt
camera and was then downloaded and
reviewed by Deputy Police Commissioner
Dave Owens, he said.
But Mr Barbour said general-duties police
were inadequately trained and informed on
Tasers and the associated dangers.
They do not give adequate guidance
2 Explain the function of
The Anti-Discrimination Board of NSW A G A INST CORRU PTION ( ICA C) freedom of information
is part of the NSW Attorney Generals While the Ombudsman has the power to legislation.
Department and was established under investigate complaints made by the public,
the Anti-Discrimination Act 1977 (NSW). Its
role is to promote principles and policies
the Independent Commission
Corruption (ICAC) has greater power. The
Against
3 Describe the role
administrative and other
tribunals play in settling
of equal opportunity throughout NSW, ICAC Act 1988 (NSW) created the ICAC as an legal disputes. Give an
to ensure that people are protected from independent statutory body to investigate example.
discrimination on the basis of characteristics alleged corruption in government. ICAC 4 Outline the ways in

situations.
There is already evidence of this. Tasers
have been used on people on ve occasions in
the rst two weeks of general-duties use. This
compares with only 48 incidents over a ve-
year period by special unit ofcers.
The Ombudsmans investigation found
ofcers from special units had predominantly
about situations where they shouldnt be
used, the Ombudsman said. It must be
remembered that Tasers are not a non-lethal
weapon, they are just a less lethal weapon.
Mr Barbour recommended a two-year
review into Taser use, and said the standards
such as disability, age, race and sex. It
advises the government and also provides
an inquiry service to inform people about
their rights and responsibilities under
anti-discrimination laws. The Board will
investigate and conciliate complaints when
attempts to protect the interests of the pub- which peoples privacy is
lic, prevent breaches of public trust, and protected in NSW.
inuence the behaviour of public ofcials. 5 What is judicial review?
Some examples of corrupt behaviour How does it differ from
include bribery, fraud and theft. ICAC has review of the merits of a
the power to investigate the activities of pri- decision?

Activities
that deemed Tasers safe applied only to action is necessary. It has the power to vate citizens if such behaviour affects the
used Tasers from a distance, but in the rst two 6 Outline the role of an
healthy people. issue nes for behaviour that violates anti- proper administration of public ofces.
weeks of use by general-duties ofcers, in four ombudsman. How is an
out of the ve incidents the Tasers were used discrimination laws. ICAC has the authority to ask the police ombudsman limited in

Review and Research in drive-stun mode, where the gun is applied

directly to skin or clothing.
The use of Tasers, which stun a victim by
COMMISSIONS OF INQU IRY
service to assist in its investigations, and
is therefore able to search for and seize
solving disputes?
7 Explain the importance of
Commissions of inquiry are set up to evidence where it sees t. It does not have natural justice as the state
emitting a 50 000-volt electric shock, have
Throughout each chapter you been linked to heart complications and death.
Queensland police last week Tasered a
investigate serious matters at both state
and federal level. They are not judicial
the power to prosecute offenders (that is the
job of the Director of Public Prosecutions).
attempts to enforce laws.

16-year-old girl who had ignored police proceedings, but fact-nding exercises. At the end of an investigation it can report

will nd a number of different instructions to move on, because she was

waiting with a sick friend for an ambulance to
Royal Commissions are commissions of
inquiry with particularly strong powers
arrive. with respect to calling witnesses. In the
to parliament that corrupt behaviour has
occurred, who committed it, and what
R ES EA R C H 7 . 2
1 Visit the ADB website:
further action should be taken. If a citizen http://www.lawlink.nsw.

activities. Review activities In another case, a 56-year-old NSW man who

had threatened police with a frying pan died
12 days after receiving three Taser shocks.
past, such inquiries have investigated
issues such as Aboriginal deaths in custody
feels that he or she has been wrongfully
accused of corruption, he or she may seek
gov.au/ADB
2 Choose Resources and links
(Commonwealth, 1987) and corruption in judicial review in the New South Wales from the left-hand menu
According to his death certicate, the

are designed to help you man, who had heart disease, hepatitis C and
schizophrenia, died of a heart attack.
Figure 7.13 The use of Taser guns by the police
is a controversial issue.
the NSW police service (NSW, 1995).
Commissions of inquiry do not have the
Supreme Court.
In 2005, ICAC investigated a claim that a
and follow the link to Legal
cases from Equal Time.
Mr Barbour was unable to say whether the power to prosecute offenders. At the end private tutoring rm was assisting English 3 Discuss two cases and

test your knowledge of key Taser played a role in the mans death.
NSW Police Commissioner Andrew Scipione
said he was only made aware of the mans
of an inquiry, the commission will produce
a report containing recommendations,
Extension II students with work that was
ultimately submitted as part of their HSC
evaluate the effectiveness
of the ADB in bringing
which may include recommending criminal assessment. Although ICAC did not prove about just outcomes. You
death through the Ombudsmans report on
concepts and skills. Research the case. prosecution of individuals. The government
may decide to act on the commissions rec-
that students had been assisted, it raised
serious concerns about assessment tasks in
should include a case that
has been dismissed by the
ommendations: a number of police ofcers the HSC that are of a take-home nature. ADB.

activities are designed to

164 C a m br i dge L ega l St udie s P re lim in a r y Chapter 7 Resolving disputes 165
extend your knowledge by
researching relevant cases or
issues using source material.

xii C a m b r i d g e L e g a l S tu d ie s Pre limin ary

9780521734699part_01_3pp.indd 12 2/9/09 8:31:15 PM

 Us i n g C a m b rid g e L e g al Stud ie s P re lim inary
Case space
A number of relevant legal
cases appear throughout the
A clean feed?
text. Each case allows you
ca se sp a ce

Although the federal Privacy Act is only 20 years old, it groups that held this view was an advocacy organi-

The indiv idua l a nd the la w

Donoghue v was
Stevenson (1932)
beforeAC
the562
to apply your knowledge
introduced advent of supercomputers, sation called the Electronic Frontier Foundation Similar concerns about offensive and obscene
the Internet, mobile phones, digital cameras, (EFF), an international non-prot group based in content have been raised in Australia more
e-commerce, sophisticated surveillance devices and suppliers with whom they didnt the US and particularly concerned with preserving recently. The idea of clean feed legislation origi-
social networking websites all of which challenge
our capacity to safeguard our sensitive personal
have a contract. As May Donoghue
did not actually buy the ginger
freedom of speech in the context of the internet.
John Perry Barlow, mentioned above, was a
nated during the Howard federal government and
involved the establishment of a ltering scheme of the legal system to real-
information. The Privacy Act has worked pretty well to beer and thus had no contractual founding member of the EFF and the CDA was the that would be imposed on all Internet Service Internet Service
Providers (ISPs)
date, but it now needs a host of renements to help
us navigate the Information Superhighway. These days,
relationship with the manufacturer,
in normal circumstances she would
stimulus for his Declaration of the Independence
of Cyberspace.
Providers (ISPs).
The Labor government that was elected in
companies that offer
customers access to
world situations. Many cases
information privacy touches almost every aspect of our not have been able to sue. Following a federal courts ruling that the CDA 2007 continued to consider the proposal. The the internet

daily lives, including our medical records and health

status, our nances
Figure 3.4 A decomposing snailand creditworthiness,
found in ginger alethe personal
formed the basis
Figure 8.13 Does digitalv security
Donoghue Stevensonexist?
became
a landmark decision and formed
violated the First Amendment, the US government
appealed to the Supreme Court. A broad coalition
$70 million plan would block web pages listed in
a blacklist maintained by ACMA. It was argued
World Wide Web
a system of documents
that are accessible
are followed by a range of
of litigaton. details collected and stored on a multiplicity of public the basis of the tort of negligence of individuals and groups had joined the American that not only would this prevent internet users on the internet and
and corporate databases, and even the ability to control
This case was the
an appeal
display by
andMay
distribution of from getting
our own into ginger beer
images.
worldwide, not only because of
Protecting children
the judgment relating to non-
Civil Liberties Union (ACLU) as plaintiffs in the
original case, including not only the EFF, but also
from seeing unwanted and inappropriate material,
but would combat child pornography itself. Two
that are connected to
each other through
hyperlinks on which
questions to help you test
Donoghue, the plaintiff in the ALRC President
David Weisbrot, bottles, and ALRC, 11
(Media release, One of thecontractual
most signicant concerns
duty of care, butabout
also cyber- organisations and trade unions of editors and potential types of lter were canvassed. Either the user can click to
August
original decision. The
appeal had succeeded; Mrs
2008), www.alrc.gov.au/media/2008/mr1108.html
defendants space is the
s an efcient system of inspection
of the bottles before they from
need oftoLord
because protect
were inappropriate
children,
Atkins not only
neighbour
principle:content and online predators,
publishers, high school journalism teachers, and
Human Rights Watch. The Reno in the title of
all pornographic material would be blocked, or
an opt-in scheme would allow users to continue
be taken to another
location. The World
Wide Web is not the
what youve learnt.
Donoghue then appealed to the but from serious criminal offenders who victimise
sold to the consumer, including the case was Janet Reno, Attorney General of the receiving adult material. same thing as the
REVIEW 8.4 internet.
House of Lords. children.
clear bottles that would make it Child pornography
[T]here must be, is a is,
and legal and moral
some United States from 1993 to 2001. The mandatory proposal was much more
1 Mrs
HowDonoghue
are cyberbullying,
was boughtcyberstalking and cyber-racism
easier to inspect. problem that general
goes beyond the legality
conception of images or
of relations The Supreme Court, afrming the lower courts restrictive than the voluntary ISP lter schemes
different
some fromby
ginger beer their counterparts
a friend in in the
The physical
court heldworld?
that a text on the internet or other
giving rise media.
to a duty of care, of decision, held that the indecency provisions of the operating in some European countries, which
2 Should
the town oflaws
Therelate
gingertobeer
against
Paisley,
cyberspace,
these acts bemanufacturer
Scotland. specically drafted
or are existing
was in a dark laws
to the
is underto
adequate?
consumer
In the United
a legal duty whichStates,
children from
to take reasonable
laws drafted
the particular
inappropriate
in the books are butmaterial
to protect
cases found
instancesmust
... be
CDA were an unconstitutional restriction of free
speech. The court found that the terms offensive
block only child pornography. One version of the
scheme in Australia would include a wider range
Glossary terms
3 List
glass somewhich
bottle non-legal ways that could
prevented bethat
care used
thetoarticle will not cause
drafted in such
Thearule
way asyou
that notare
to to
violate the right
love your and indecent were vague, and the provisions of of material, some inappropriate for children but
Mrsprotect against
Donoghue
predators.
contents.
fromcyberbullying,
seeing the
SomeConsider
cyber-racism
the following agents
ginger beer
and online
injury to health.
in your
Lord Atkin, answer:
one
to freedom of
Amendment.must
of the presiding
expression
neighbour
Another
contained
becomes,
difculty
not injure
in law,inyou
yourisneighbour;
the First
that if a law is too
the CDA overly broad, concluding that the CDA
was not sufciently narrowly tailored to the goal
not necessarily involving pornographic or violent
content. Social themes upsetting to children
All of the key terms in each
parents
wasspoured into a glass for her, broad in the and
judges, referred to the precedent scope
theof what should
lawyers be Who
question: prohibited, of protecting minors from potentially harmful could include divorce and euthanasia.
s teachers
which she drank.and
s olderto
proceeded
Herschools
teenagers
friend then
(e.g.ofsiblings,
pour the rest the
case of Heaven v Pender (1883)
friends
QBD 503,or which
mentors of
established
it can
11 prohibit tooneighbour?
is my much including
is unlikely torestricted
that be accessed
receives content
reply.byYou
children
a that
or to have
must take
material. Moreover, there is no effective way to
determine the age of an internet user.
It has been pointed out that criminals
distributing child pornography seldom use sites
CHAPTERANDMORE ARE
gingeryounger
beer intochildren)
Mrs Donoghues under certain circumstances,anything
one to do with thecare
reasonable victimisation of children.
to avoid acts The courts view was that online communi- that are accessible on the World Wide Web.
glass software
s and it was companies
then that a
s internetsnail
decomposing service
cameproviders
out of
man may owe a duty to another,This and other
later in the discussion
even though there is no contract
issues will
or omissions
reasonablyofforesee
be you
which
the proposed
further
can examined
clean
would be likelyfeed
cation differs signicantly from broadcast media,
in that a user will seldom encounter content by
Increasingly, they are using less public methods
such as peer-to-peer networks, which allow single
dened for you in the margin
4 How
the might
bottle. This someones digital tattoo
made her feel posethem.
between problems legislation in to
He went further Australia.
injure your neighbour. Who, accident. The internet should therefore be subject computers to communicate with each other;
forill,him
quite
from
andorlater
scenarios,
her she
in the
alsofuture?
then outline ways
severe gastroenteritis.
List some
suffered
Mrs that you
hypothetical
than the narrow decision in Heaven,
can prevent
however, this dicta of
citing obiter Reno
v American
answer seems Civil
the
then, in law, is my neighbour? The
Liberties
to be persons who
to less regulation. encrypted networks, or smaller networks using
codes that only the members know; or other
and in the glossary at the
from happening
Donoghue with
sued David respect to your
Stevenson online judge,
dissenting activities. Union, 521
Brett MR, who US
are so 844
closely and(1997)
directly affected systems that prevent public access. Consequently,

end of the book. These

le ga l l i n k s

(the respondent), who was the Inof1996, due by

extended the notion of a duty
manufacturer of the ginger beer. passed a law
care to anyone in a position where
to have themas the Communications
le ga l lin k s
to my
public pressure,
act that I oughtthe US Congress
reasonably blocking websites is not an effective means of
For full text of the decision in Reno
known
in contemplation stopping the spread of child pornography.
v American Civil Liberties Union,

Mrs Donoghue alleged that failing to use care and skill inDecency
his Act of
as 1996
being(CDA). Two when
so affected provisions
I am of the Some internet service providers dislike the

care to provide:
For further information on digital
Stevenson had failed in his duty of conduct would cause danger
safety issues, see the Australian
injury.
CDAofprohibited the knowing
directing
internet of obscene
my mind transmission
or indecent
or omissions
to the acts on the
that aresexual communi-
called in
521 US 844 (1997) see http://
caselaw.lp.ndlaw.com/cgi-bin/
proposal because it is too easily bypassed by users,
and because enforcement would be too onerous.
denitions are designed to
governments Net Alert website: getcase.pl?court=us&navby=case
s a system of working his business Until Donoghue v Stevenson, cations or images to people under 18 years of age.
question. Another objection is the risk that the lter would
www.netalert.gov.au/
which would prevent snails individuals had no rights againstThis was seen by many as a violation of the
principle of freedom of expression. One of the
&vol=000&invol=96-511
block material that has nothing to do with the type
of content that the law aims to ght.
help you learn and revise key
terms from the syllabus.
16840 Cam
Camb rbi d
r igdeg eL eLgeal
g alS tSutduideise s P rel i mi m
P rel i na r yr y
i na C h a p t e r 8 T h e in d ivid u a l a n d t e ch n o lo g y 181

Legal links
In addition to the activities,
there are suggested links
to internet resources and
activities in each chapter.
These will help you extend
s The attacks on the World Trade Center and
the Pentagon on 11 September 2001 (9/11)
mark the beginning of terrorism as a global
your knowledge and stay up-
Ch ap te r su m m a r y t a sk s

L a w i n p r a ct i ce

phenomenon. s Non-legal responses include the establishment

s The Bali bombings was carried out by
Indonesian Islamic extremists on 12 October
of anti-terrorism media campaigns and the
establishment of memorials to the victims of
 Outline the situation regarding global
terrorism before the Bali bombings. to-date with changes in the
Ch ap te r su m m a r y

2002. Bombs were exploded at Paddys Bar
and the Sari Club, both popular with Australian
tourists.
s While no group took immediate responsibility
for the bombing, the radical Islamic
association, Jemaah Islamiyah, was suspected.
s Amrozi, Imam Samudra and Mukhlas stood
trial for the Bali bombings and were found
guilty. They were sentenced to death by ring
squad and executed in November 2008.
Mu lt i pl e -ch o i ce qu e s tio n s
the bombings.  What is the war on terror?
s The Bali bombings revived debate about the  What was known about Jemaah Islamiyah  Who were the main suspects arrested for the
death penalty.
s The Bali bombings saw the introduction of
before the Bali bombings?
 Explain the connection between Hambali and
Bali bombings?
 What was controversial about the trial of Abu
legal system.
Australian anti-terrorism legislation and the the Bali bombings. Bakar Bashir?
strengthening of the enforcement agencies  Who was Abu Bakar Bashir and why was he a  Why was the Australian governments policy
responsible for homeland security. suspect? towards the death penalty controversial?
s This legislation has come under criticism by  Why are good relations between Australia What key changes in anti-terrorism legislation
those who believe it jeopardises civil liberties and Indonesia important from the Australian have occurred in Australia since the Bali
and key legal rights. governments point of view? bombings?

To pi c re vi e w

 Which of the following is NOT true of
terrorism?
A It can be utilised by fundamentalist
religious groups or political groups.
B It can be constituted by a threat of violence
directed at a population in order to induce
a government to change its policies.
C It is intended to cause death, not fear.
D It was used prior to 2001.
 Jemaah Islamiyah was:
A a peaceful Islamic organisation
B a foreign terrorist organisation that
established a branch in Indonesia
C under suspicion from the CIA for having
links with Al Qaeda well before the Bali
bombings
D the name of the Indonesian
counterterrorism force
 Which of the following alleged suspects
responsible for the Bali bombings ended up
walking free?
A Iman Samudra
B Abu Bakar Bashir
C Amrozi
D Ali Ghufron
 Which of the following was not a result of
AustralianIndonesian cooperation since the
Bali bombings?
EXTEND ED RESPONSE
 Discuss the anti-terror legislation, with
reference to the arguments for and against a
Marking criteria for the extended response Chapter review
questions can be found at www.cambridge.
A Australian police involved in the bill of rights.
identication of victims of the Bali
bombings
 Outline how the Australian and Indonesian
governments have cooperated since the Bali
edu.au/education. Refer to these criteria
when planning and writing your response. At the end of each chapter,
B the establishment of the Australian Federal bombings.
Police
C the establishment of the Jakarta Regional
Cooperation Team
 Outline the key stages in the investigation of
the Bali bombings.
 Contrast the war on terror and the rule of
you will nd a summary of
D the establishment of the Jakarta Centre for law approaches taken in the ght against
Law Enforcement Cooperation
 Which of the following types of provision was
terrorism.
 Describe the Australian governments policy
the chapter, multiple-choice
contained in the anti-terrorism legislation towards the death penalty.
passed by the Commonwealth after the Bali
bombings?
A detention of persons suspected of
questions and chapter tasks.
terrorism offences for the purpose of
investigation
B detention of illegal immigrants from
In Part III you will also nd
countries known to harbour terrorists
C immunity of anti-terrorism legislation from
judicial review extended response activities.
D immunity of any Commonwealth employee
from prosecution

248 Cam b r i d g e L e g al S t u d i e s P rel i m i na r y C h a p t e r 1 1 T h e B a li b o m b in g s 249

xiii

9780521734699part_01_3pp.indd 13 2/9/09 8:31:17 PM

 Glossary of key words

Syllabus outcomes, objectives, performance bands
and examination questions have key words that
state what students are expected to be able to do.
A glossary of key words has been developed to
help provide a common language and consistent
meaning in the Higher School Certicate docu-
ments. Using this glossary will help students and
teachers understand what is expected in responses
to examinations and assessment tasks.

Account Critically (analyse/evaluate) Identify

account for: state reasons for, add a degree or level of recognise and name
report on; give an account of; accuracy, depth, knowledge and Interpret
narrate a series of events or understanding, logic, questioning, draw meaning from
transactions REmECTIONANDQUALITYTOANALYSE
evaluate) Investigate
Analyse plan, inquire into and draw
identify components and the Deduce conclusions about
relationship between them; draw draw conclusions
out and relate implications Justify
Dene support an argument or conclusion
Apply state meaning and identify
use, utilise, employ in a particular essential qualities Outline
situation sketch in general terms; indicate
Demonstrate the main features of
Appreciate show by example
MAKEAJUDGMENTABOUTTHEVALUE Predict
Describe
of suggest what may happen based
provide characteristics and features on available information
Assess Discuss
MAKEAJUDGMENTOFVALUEQUALITY Propose
identify issues and provide points
outcomes, results or size PUTFORWARDFOREXAMPLEAPOINTOF
FORANDORAGAINST view, idea, argument, suggestion)
Calculate
Distinguish for consideration or action
ascertain or determine from given recognise, note or indicate as
facts, gures or information Recall
being distinct or different from;
present remembered ideas, facts
Clarify note differences between
or experiences
make clear or plain Evaluate Recommend
Classify MAKEAJUDGMENTBASEDONCRITERIA provide reasons in favour
arrange or include in classes or determine the value of
categories Recount
Examine retell a series of events
Compare inquire into
show how things are similar or Summarise
Explain
different concisely express the relevant
relate cause and effect; make details
Construct the relationships between things
make; build; put together items or EVIDENTPROVIDEWHYANDORHOW Synthesise
arguments put together various elements to
Extract make a whole
Contrast CHOOSERELEVANTANDORAPPROPRIATE
show how things are different or details
opposite Extrapolate
infer from what is known

xiv C a m b r id g e L e g al S tu d ie s Pre limin ary

9780521734699part_01_3pp.indd 14 2/9/09 8:31:22 PM

 The leg al s y s tem
PART I
The legal system
The legal system 1 Basic legal concepts
s Meaning of law s .ATUREOFJUSTICEEQUALITY
s Customs, rules and law fairness and access
40% of course time s Values and ethics s Procedural fairness
s #HARACTERISTICSOFJUSTLAWS s Rule of law
s Anarchy and tyranny

2 Sources of contemporary Australian law

s Common law s Aboriginal and Torres Strait
s Statute law Islander customary law
s The Constitution s International law

3 Classication of law
s 0UBLICLAWEGCRIMINAL
law, administrative law,
constitutional law)
s 0RIVATELAWCIVILLAWEGCONTRACT
law, tort law, property law)
s Criminal and civil court
procedures including legal
personnel
s Common and civil law systems

4 Law reform
s Conditions that give rise to law parliamentary committees,
REFORMEGCHANGINGSOCIAL media)
VALUESNEWCONCEPTSOFJUSTICE s -ECHANISMSOFREFORMEG
new technology) courts, parliaments, United
s !GENCIESOFREFORMEG Nations, intergovernmental
law reform commissions, organisations)

5 Law reform in action

Native title Law reform and sexual assault
Law reform and sport

9780521734699part_01_3pp.indd 1 2/9/09 8:31:27 PM

 CHAPTER 1
Basic legal concepts
c hap ter o b j e cti ve s

In this chapter, students will: s DISCUSSTHENATUREOFJUSTICEINTERMSOFEQUALITY

s identify and apply legal concepts and terminology
s identify the changing nature of law
s describe the interrelationship between customs,
rules and laws
s explain the relationship between the legal system
and society
k e y t e r ms/ v ocab ul ary
fairness and access
s discuss the concept of procedural fairness and the
rule of law
s discuss the concepts of anarchy and tyranny
s communicate legal information by using well-
structured responses.

anarchy
customary law
customs
equality
ethics
fairness
JUSTICE
law
legal system
NATURALJUSTICE
procedural fairness
rule of law
rules
tyranny
values

2 Ca m b r i d g e L e g a l S tu d ie s Pre limin ary

9780521734699part_01_3pp.indd 2 2/9/09 8:31:28 PM

 The leg al s y s tem
odd l a w

In New South Wales under the Crimes Act 1900

SITISILLEGALTOTAKEMONEYTOHELPSOMEONE
lNDTHEIRMISSINGDOG3ECTIONOFTHE!CT
states the following:

Whosoever corruptly takes any money or reward,

directly or indirectly, under pretence, or upon
account, of aiding any person to recover any
dog which has been stolen, or which is in the
possession of any person other than its owner,
shall be liable to imprisonment for one year.

#HA PTER2ESPONSIVENESSOFTHELEGA L S YS TEMTOMI GRANTS 3

9780521734699part_01_3pp.indd 3 2/9/09 8:31:30 PM

 The mea n i n g of law
The law is a dynamic thing a complex mecha-
nism, evolving from hundreds of years of tradition,
culture and values.
In general terms, the law can be dened as
a set of enforceable rules of conduct which set
down guidelines for relationships between people
and organisations in a society. The law provides
methods for ensuring the impartial treatment
of people, and outlines punishments for
RE VIE W 1.1 those who do not follow the agreed rules
1 List the areas of law of conduct.
related to the images Despite the fact that it often seems to
provided below. be playing catch-up, the law attempts to
2 What other areas of law keep pace with our ever-changing society.
can you think of? List at To understand how these rules (known
least ve. in modern society as the law) came
about, we also need to understand why we live in
a society.
A society is a group of human beings who are
linked by mutual interests, relationships, shared
institutions and a common culture. In earliest
history, people usually banded together for basic
survival and would agree to live by rules that
protected their lives and their property.
This tradition has carried on throughout history.
As groups of people formed societies, and cultural
groups within these societies, they established and
enforced rules about the conduct of relationships.
Laws today are imposed by the administrative
institutions that govern a society; they cover all
members of society and there are consequences
that follow if they are breached.

law
a set of rules imposed
on all members of a
community which are
ofcially recognised,
binding and
enforceable by persons
or organisations such
ASTHEPOLICEANDOR
courts
values
principles, standards,
or qualities considered
worthwhile or desirable
within a society
rules
regulations or
principles governing
procedure or
controlling conduct

Figure 1.1 Laws regulate a wide variety of situations within society.

4 Ca m b r i d g e L e g a l S tu d ie s Pre limin ary

9780521734699part_01_3pp.indd 4 2/9/09 8:31:43 PM

 legal links
The NSW Bar Association provides
easy-to-read information about the
Australian legal system:
www.whyshouldi.com.au
Cu s toms, ru les a n d law
Customs
Put simply, customs are established patterns of
behaviour among people in a society or group.
Customs vary depending on the culture, religion
and history of a group of people, society or country.
For example, in Australia it is customary for men
to shake hands when greeting a friend, whereas in
Europe this greeting may be in the form of a kiss
on each cheek.
Where a custom is followed by most of the
population over time, it may become part of
the laws of that society. Because of differences
between societies, not all customs become law.
Customary law consists of established patterns
of behaviour that are accepted within a particular
social setting. These principles and procedures
develop through general usage according to the
customs of a people, nation-state or group of
nation-states. Customs arose to deal with problems
in the most harmonious ways. Over time, these
customs become accepted as legal requirements.
Three areas in which customary law has inuenced
the Australian legal system are:
s Aboriginal and Torres Strait Islander customary
law
s English customary law
s international customary law.
In many societies, most customary law is
never written down, as is the case with Indige-
nous Australian customary law. In other societies,
customary law eventually is recorded and trans-
ferred into written law in formal legal systems.
9780521734699part_01_3pp.indd 5
The State Library of NSW provides
information on the history of the legal
system in Australia: www.sl.nsw.gov.au/
discover_collections/history_
nation/justice/index.html
The leg al s y s tem
customs
collective habits or
traditions that have
Rules developed in a society
over a long period of
If you were to look in a dictionary or on the time
internet, you would nd many denitions of the customary law
principles and
word rules. Generally, rules refer to prescribed procedures that have
directions for conduct in certain situations. Rules developed according
to the customs of a
are generally made by groups and only affect
people or nation, or
people within those groups. These rules often groups of nations,
vary between groups and are not enforceable by and are treated as
obligatory
the state. For example, there are rules for playing
nation-state
games, behaviour in the classroom, and so on.
a politically
If these rules are broken, there is some form of independent country
punishment attached, enforce-
able by those involved in the
making of the rules (e.g. sus-
pension, detention). Rules can
also be altered by these people
in order to deal with changes in
situations. This usually happens
after consultation with the group
members involved.
In a legal sense, rules form the
basis of laws. However, rules can
be changed quite quickly with
the agreement of those involved.
Laws, as you will discover, are
much more difcult to change
and punishment is not always a
simple process.
Figure 1.2 There may not be a law
about wearing school uniform, but
there is often a rule.
#HA PTERn"AS I CL EGAL CONCEPTS 5
2/9/09 8:31:51 PM
 R EVIEW 1.2 and they might incur a ne. The consequences of
1 Complete the lists below by adding three breaking rules are comparatively minor, however
additional examples of rules. inconsiderate it may be to break them.
Laws allow and prohibit a whole variety of
H OUS EH OL D R UL ES
activities, from where rubbish should be placed to
a Always inform your parents when you are
how we should treat fellow human beings. Failure
going out.
to follow these regulations incurs penalties ranging
b from a ne to imprisonment.
c Laws have certain characteristics that make

d
them different from rules:
1 Laws are binding on the whole community.
S C H OOL R UL ES This means that they apply to all members of
a Students must always wear correct school society.
uniform on school grounds. 2 Laws can be enforced. This means that penalties
b apply if a law is broken.
c 3 Laws are ofcially recognised. This means that
governments and courts recognise laws and
d
enforce them.
S OC IAL ET IQUET T E 4 Laws are accessible (or discoverable). This
a Always cover your mouth and nose when means that people can nd out which law
sneezing in public. applies to a particular situation.
b 5 Laws relate to public interest. This means that

c laws exist for things that concern the whole

ethics
 RULESORSTANDARDS
governing the
conduct of a person
or the members of a
PROFESSION AMAJOR
branch of philosophy,
which investigates the
nature of values and
of right and wrong
conduct
d
Law
The law, as we know it, is made up of the formal
rules of society. These legal rules have been
agreed upon by the group and govern their
behaviour and activities.
Laws are different from rules. For example,
at the shopping centre, a sign on the escalator
requests that you stand to the left and do not take
strollers on it. These rules exist for the safety and
comfort of shoppers. However, they are just rules,
and that is why you will still see people standing
on the right and taking their prams on the
escalator. There are also signs telling you that you
cant smoke in shopping centres. This is a law and
if someone did light up, they would be asked to
leave the shopping centre by security or the police,
of society, and that interest is considered
to outweigh the costs or drawbacks of the
governments involvement in enforcing them.
6 Laws reect rights and duties. This means
that everyone in society has responsibilities to
others, such as the duty to drive safely, and that
everyone has the right to be treated in the same
way by others.
In Australia today, the laws of society are
mainly decided on by elected government ofcials
at local, state or federal government levels. Judges
also have the power to make laws in certain cases
when they set a precedent. This will be discussed
in greater detail in the following chapters.
It is expected by society that the law will look
after all members of the group, and therefore that
any laws made will be fair, just and equitable. It is
also expected that they will reect traditional and
current ethics and values. Although this represents
the ideal situation, what is actually attainable may
be another matter.

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 Table 1.1 Differences between laws and rules
Laws
s to be obeyed by all citizens of a society
s made by a law-making body
s enforced through the courts
s consequences of a breach results in a
prescribed sanction imposed by the courts
Relationship between customs, rules and laws
As people have joined together in communities,
a relationship has developed between rules, laws
and customs:
s Whenever people have lived together in groups,
they have developed rules to govern their
behaviour and thus maintain the smooth run-
ning of activities.
s These rules were based on the traditions,
customs and values of the group.
s These rules have penalties attached if members
of the group fail to follow them.
s Groups usually put someone, or a small group, in
charge to enforce these rules and the associated
penalties. In modern times, this became the
government.
Va l u es a n d e t h ic s
We all have values by which we try to live. Living
according to our ethics means that we do things
that we consider to be morally right.
Lawmakers try to incorporate these values
and ethics into laws. However, it is very difcult
to make rules, and thus laws, about everyones
values, especially as there are often groups in
society that have different standards of what is
morally right or wrong. For this reason laws will
only cover those ethical values that are common
to all. Over the past three decades many groups
have voiced their values and ethics in a public
manner in an attempt to inuence the law and the
9780521734699part_01_3pp.indd 7
Rules
s to be obeyed by specic individuals or groups
s made by individuals or groups
s enforced by leaders of a group
s consequences of a breach at the discretion of
The leg al s y s tem
the leader of a group
s Over time, these rules became formalised laws,
known in society as the law.
Figure 1.3 The House of Representatives Chamber in
Parliament House, Canberra
legal system. Two classic examples (with varying
degrees of success) are:
s The Mardi Gras (Sydney) an internationally
recognised annual event celebrating same-
sex relationships. It originally started off as a
protest march against the treatment of same-
sex couples by the legal system and the lack of
protection afforded to their relationships.
s The Mardi Grass (Nimbin, northern NSW) an
annual event that attempts to inuence the gov-
ernment to relax the laws relating to the use and
cultivation of marijuana. It includes events like
the Hemp Olympics and the Dope Pickers Ball.
#HA PTERn"AS I CL EGAL CONCEPTS 7
2/9/09 8:31:53 PM

justice
the legal principle
of upholding
generally accepted
rights and enforcing
responsibilities,
ensuring that equal
outcomes are achieved
for those involved
legal system
the system of courts,
prosecutors and police
in a country
equality
the state or quality of
being equal, that is, of
having the same rights
or status
fairness
free from bias,
Ch a ra c te ri s t ic s o f j u s t l aws
The concept of justice involves the fair and
impartial treatment of all persons, especially
under the law. In simple terms, justice can be
seen as the continued effort to do the right thing
by everyone. When it comes to making laws in
a democratic society, justice involves consulting
the people and carrying out the decisions of the
T h e n a t u r e o f j u s t i ce
The system of courts, prosecutors and police
in a country is often called the legal system. It
is the task of the legal system to ensure that all
citizens have equal access to the law and that
the law provides equality, fairness and justice to
all members of society. Equality, fairness and
justice are central concepts which allow us to
distinguish good law from bad law. However, if all
citizens do not have full and equal access to the
majority, while ensuring that the minority has the
opportunity to put their point of view. A just law is
one that allows everyone to receive fair treatment
and outcomes, and ensures that human rights are
recognised and respected. This is not always an
easy thing to do, as you will learn throughout the
Legal Studies course.
for them. For example, children under 10 years
of age cannot be held legally accountable for their
actions and therefore cannot be convicted of a
criminal offence. This presumption is known as
doli incapax. In the case of 1014-year-olds, the
court will make an assessment as to whether the
child can tell the difference between right and
wrong, and this will inuence the way in which
the matter is handled.
DISHONESTYORINJUSTICE
a concept commonly
related to everyday
activities
doli incapax
a Latin term meaning
incapable of wrong;
the presumption that
ACHILDUNDERYEARS Equality
of age cannot be held
legally responsible for
his or her actions and
cannot be guilty of a
criminal or civil offence
8 Ca m b r i d g e L e g a l S tu d ie s Pre limin ary
9780521734699part_01_3pp.indd 8
legal system, equality, fairness and justice are just
empty concepts. It is only by combining all of these
principles that a legal system will be seen to be
providing justiable and appropriate outcomes.
with each other. The difference is that the term
has more legal connotations. People may have
Equality means that all people in a society are treat-
ed in the same way with respect to political, social
and civil rights and opportunities; no one enjoys
unfair advantage or suffers unfair disadvantage.
Although we would like to think that equality
applies to everyone, our society tolerates many
types of equality and many forms of inequality. For
example, depending on the situation, a 10-year-old
child will be treated differently from a 17-year-old
teenager or a 40-year-old adult.
While the law strives for equality, it also takes
into account peoples different capacities, such as
maturity, recognises that some people are more
vulnerable than others, and provides protection
Fairness
Fairness and justice are usually associated
fairness applies to everyday life, whereas justice
different opinions about what is fair.
For example, suppose one team wins a sport
competition because all of its players, randomly
selected, happen to be taller than those on the
other team. If the rules of the competition do
not specify that both teams must have players of
the same size, it may seem unfair to the losing
team, but there is no fact of the matter. If Ann
places a bet on the team she knows has the taller
players, and none of the other people who placed
bets knows anything about the teams or how tall
the players are, Anns winning the bet may also
be regarded as unfair as a result of her having
knowledge the others lacked.
2/9/09 8:31:53 PM
 In other words, even if it is sometimes possible
for an opinion about what is fair to be justied or
mistaken, there is no single social mechanism for
deciding what is fair or ensuring fairness.
When rules are made, it is expected that they
will be fair to those covered by them. In the

The leg al s y s tem

same way, when a rule is translated into law, it
is expected that it will be fair to all members of
society. Justice is more specic than fairness, as
the term is applied to situations covered by the
law, which tries to ensure that everyone has the
same opportunities.

Access
The ultimate goal of the law is to protect the rights
of all citizens in a society; however, the legal Figure 1.4 Historically, Indigenous Australians have had limited access
system can only full this goal if all people have to the legal system in Australia.
equal access to the agencies and institutions of the
law. Access refers to the ability to obtain or make However, in reality, the legal system is not access
the right or
use of something. The concept of justice suggests accessible to everybody equally. Financially disad-
opportunity to make
that everyone who is covered by a legal system and vantaged people, disabled people, people from use of something
its laws should have equal access to that system. non-English speaking backgrounds, women,
This includes ensuring that citizens are aware of Aboriginal and Torres Strait Islander peoples, and
the laws that affect them, and understand their those who are institutionalised may experience
rights and responsibilities under these laws. particular difculties.

Procedu ra l fa i rness a n d t he
p ri nc ip les o f n a t u ra l j u s t ice
Procedural fairness refers to the idea that there The assertion that justice should not only procedural fairness /
natural justice
must be fairness in the processes that resolve be done, but should be seen to be done comes
the body of principles
disputes. It is closely linked to the concept of from the English case R v Sussex Justices; Ex parte used to ensure the
natural justice; the two terms are often used McCarthy [1924] 1 KB 256. It was discovered that in FAIRNESSANDJUSTICEOF
the decision-making
interchangeably. a criminal trial in which McCarthy was convicted of
procedures of courts;
Natural justice refers to the fact that everyone dangerous driving, a clerk to the magistrates was in Australia it generally
should be treated fairly in legal situations. There are also a solicitor who had represented the person refers to the right to
present your case,
two main principles of natural justice. These are: suing McCarthy in a separate civil case arising
the right to freedom
s the right to be heard this includes the right to out of the accident. Although the magistrates did from bias by decision-
a fair hearing not consult the clerk for his opinion, and the clerk makers, and the right
to a decision based
s the right to have a decision made by an unbiased gave them no advice on the matter, McCarthys on logically relevant
decision-maker even an appearance of bias is conviction was overturned on the basis of the evidence
enough to constitute a breach of natural justice. possibility of bias.

#HA PTERn"AS I CL EGAL CONCEPTS 9

9780521734699part_01_3pp.indd 9 2/9/09 8:31:55 PM


rule of law
the principle that
no one is above
the law; the most
important application
of the rule of law is
that governmental
authority is exercised
in accordance with
written, publicly
disclosed laws that are
adopted and enforced
in accordance with
established procedural
STEPSDUEPROCESS Obvious breaches of the rule of law occur when
sanction
a penalty imposed on
those who break the
law, usually in the form
of a ne or punishment
10 C a m b r id g e L e g al S tu d ie s Pre limin ary
9780521734699part_01_3pp.indd 10
T h e r u l e o f l aw
The principle of the rule of law is that no one
is above the law, including those who make the
law. This means that the groups and individuals
who are involved in the legal system, such as the
legislators and judges who make, administer and
interpret the laws, the police who enforce the law
and the lawyers who represent and advise people
on the law, are all answerable to the same laws
as every other citizen. Thus the rule of law means
that everyone is subject to the same laws.
ofcials make favourable decisions for relatives
and friends but apply the law fully for everyone
else.
Why do people obey the
law?
In general terms, people within a society like to
have rules and laws because they create order.
Laws help each person to feel a sense of security
the law is clear about what is expected of them
as citizens and what they can expect from others.
As the law is based on customs, it also helps to
reinforce the values of most members of society.
In principle, the law embodies the concept that
Figure 1.5 People sometimes disobey laws if they do not consider the penalty to be sufciently harsh.
what each individual believes is important has the
same importance to the larger group.
Laws also function to protect all members of
society. They tell society what actions are and
are not permitted. Laws apply sanctions to those
found guilty of a crime, and may act as a deterrent
to those who might otherwise commit a crime.
Laws enable people to resolve disputes, as they
empower the police force and the courts to enforce
and administer the law.
People will not follow rules if they do not
agree with them or feel that the rules have no
connection to them. This is especially so if the
penalty attached to the rule is seen as inadequate.
For example, think about the penalties attached to
riding your bike or skateboard in areas where it is
not permitted, or talking on a mobile phone when
driving. While many people obey these rules and
laws, others do not, as they do not consider the
penalty (e.g. a ne or demerit points) to be enough
of a deterrent.
As would be expected, however, laws against
more serious offences carry a range of stricter
penalties, which are intended to make people
think seriously about the consequences before
breaking the law.
2/9/09 8:31:59 PM
 REVIEW 1.3

m e d i a cl i p
1 Why do we need laws? For
Cigarette beach ban goes up in smoke
what reasons do members
in Sydney
of society obey the law?
The Sunday Telegraph*ANUARY
2 Dene the following
basic legal notions. You
Councils responsible for Sydneys popular beaches have

The leg al s y s tem

can choose to use words, not ned one smoker, four years after the bans were
pictures or cartoons to introduced.
dene them: Smokers at Bondi, Australias busiest beach, are ignoring
a custom Waverley Council signs that clearly prohibit the habit.
They are also lighting up without fear of nes on
b rules
7AVERLEYSOTHERMAJORBEACHES"RONTEAND4AMARAMA
c law
although anti-smoking regulations have been in effect
d fairness SINCE$ECEMBER
e equality Warringah Council, responsible for northern beaches
f justice including Collaroy and Dee Why, is also yet to issue a ne.
g values Nor has Manly Council.
h ethics A Waverley spokeswoman said the smoking ban was
more about education and self-regulation than nes.
3 Write an explanation of
Rangers and lifeguards tell smokers nicely to move away
why you chose to dene
from the sand, she said.
the terms above using the Most people are happy to go to the promenade when
format you did. told they cannot smoke on the beach. Its not about
money, its more about the environment.
A Manly Council spokeswoman said smokers were
constantly warned against lighting up through public
broadcast over microphones at Manly, North Steyne and
REVIEW 1.4
Queenscliff beaches.
1 In your own words, describe The only council to have utilised its power to ne is
what the article to the right
is about.
2 Explain why the council has
not actually prosecuted
-OSMANWHICHLASTYEARlNEDTHREEPEOPLEFOR
smoking on the foreshore reserve at Balmoral beach.
Action on Smoking and Health Australia CEO Anne
*ONESSAIDCOUNCILS@HAVEABLINDSPOTONTHISISSUE
It does make a mockery of laws if there is no intention to
anyone. ENFORCETHEM-S*ONESSAID
3 Why do you think people Waverley needs to be more proactive given that Bondi
may not obey this law? is such a popular beach.
4 Does society need a Clean Up Australia lists cigarette butts as one of the
stronger type of legislation? most common items littering our beaches. It can be a
health issue when beaches are crowded with families and
Write two paragraphs,
small children can put cigarette butts in their mouths, Ms
one arguing in favour of
*ONESSAID
the legislation, the other Randwick Council is considering introducing smoking
arguing against it. lNESAFTER
YEAR
OLD!DAM&AHY
-AJEEDSTARTEDA
community campaign to ban the habit on Coogee beach
last year.

#HA PTERn"AS I CL EGAL CONCEPTS 11

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 A n a rc hy a n d t y ra n ny
anarchy The rules and laws that have evolved for different
the absence of laws societies are based on the customs, values and
and government
ethics that are part of these traditions. Most people
want and accept rules as a necessary part of
everyday life due to the belief that all people should
be treated equally and with fairness. Rules are
needed to ensure that our behaviour is regulated
to meet the common expectations of society. The
absence of laws, the inability to enforce laws or the
unfair and unequal application of laws can result
in states of anarchy or tyranny.
Anarchy
When people believe that the law has let them
down in some way, they may declare, We live in
a state of anarchy! What exactly do they mean
by this?
The word anarchy comes from the Greek word
anarchia, which means without a ruler. Anarchy,
therefore, is a term used to describe a state of
chaos and disorder resulting from the absence of
rules and laws.
A state of anarchy may break out during a
revolution or after a natural disaster, because the
law enforcement agencies no longer exist or are
unable to enforce the laws of a society. Violence
and widespread looting are two early indicators
that a society or group is on the verge of anarchy.
In August 2005, in the aftermath of Hurricane
Katrina in New Orleans, USA, violence and looting
became widespread, with residents forced to
protect themselves and their properties from
looters and criminals. In order to avoid a full-blown
state of anarchy, thousands of National Guard and
federal troops were sent to secure the area and
enforce the law.
While the majority of people believe that an
absence of rules and laws leads to a disorganised,
chaotic society, certain philosophers, theorists and
anarchist movements believe that anarchy does
not imply chaos, but rather a ruler-free society
with voluntary social harmony.

Figure 1.6 !FTER(URRICANE+ATRINAINPARTSOF.EW Figure 1.7 The Circle-A is the most widely
Orleans slipped into a brief state of anarchy. recognised symbol for anarchy.

12 C a m b r id g e L e g al S tu d ie s Pre limin ary

9780521734699part_01_3pp.indd 12 2/9/09 8:32:12 PM

 The leg al s y s tem
Figure 1.8 Modern-day anarchist groups protest against the dominant power of governments and large corporations.

RES EARCH 1.1 Tyranny tyranny

rule by a single
Prepare a report on anarchy and modern-day leader holding
If anarchy is the absence of laws and law enforce-
anarchist organisations. In your report include absolute power in a
ment agencies, then tyranny is the opposite. By
nation-state
the following:
denition, a tyrant is a single leader who has
s a denition
unlimited power over the people in a country or
s a history
state. Generally, tyrannical power involves severe
s information on two anarchist organisations
punishment for any infringements of the law.
and their beliefs
Some modern-day examples of tyrannical power
s modern-day anarchists and their activities.
in action include Saddam Husseins rule in Iraq
To help you with your research, the following
prior to his arrest in 2003 and Robert Mugabes
websites may provide a starting point.
control of power in Zimbabwe.
Alternatively, you may prefer to choose your
own group to research.
s www.anarchy.org.au (web portal for
anarchist groups in Australia)
s go.to/classwar (anarchist group based in
Auckland, New Zealand)
s www.wombles.org.uk (UK-based activists)
s ag.blackened.net/af/links.html (UK
Anarchist Federation website has an
enormous list of links to anarchist groups
worldwide)
These groups often protest at:
s G8 summits
s European Union meetings
s World Trade Organization Figure 1.9 Zimbabwe tyrant Robert Mugabe
meetings. and an example of a protest against him.

#HA PTERn"AS I CL EGAL CONCEPTS 13

9780521734699part_01_3pp.indd 13 2/9/09 8:32:19 PM

 Ch a p te r s u m m a ry

s The law is based on the notions of fairness,

s The law of a country has developed from the
rules of the dominant community.
s These rules are based on the customs, values
and ethics of that community.
s Rules and laws have different characteristics.
s The term for the absence of government is
anarchy.
M ul ti p l e- c hoi ce q ues ti o n s
EQUALITYANDJUSTICE
s The law covers all members of society and has
penalties attached for infringements of the
law.
s People follow the law because it provides
them with protection against wrongful
behaviour.

1 Which of these statements about the c The police ofcer has not treated all
difference between a rule and a law is true? pedestrians equally.
a Rules are not binding on the whole of the d You should be allowed to cross the road
community. wherever you want.
b Rules do not involve rights and 5 What is the purpose of the law?
responsibilities. a to divide power among all of the different
c Rules are not enforceable. groups in society
d Rules have nothing to do with ethics. b to provide stability for the ruling
2 What is anarchy? government
a constant violence and disorder c to maintain order in society
b the absence of law d to make people do things that no one
c wearing black clothes to break the rules wants to do
d rebellion against the government
3 What are ethics?
a allowing people to be different
b a mix of equality and fairness
c the principles that help us make decisions
about right and wrong behaviour
d different peoples perceptions of the law
4 A police ofcer charges a man for crossing
the road against the lights, but does not book
a woman doing the same thing. Why is this
UNJUST
a The police ofcer should concentrate on
serious crimes.
b Studies show that women are better at
crossing roads.

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9780521734699part_01_3pp.indd 14 2/9/09 8:32:19 PM

 Ch a p te r s u m m a ry ta s k s
1 Describe the difference between anarchy and
the law.
2 Explain how anarchy and a structured system
of law are not compatible.
3 Account for the relationship between rules,
laws and custom.
9780521734699part_01_3pp.indd 15
The leg al s y s tem
4 Compare and contrast rules and laws.
5 What is the relationship between fairness,
EQUALITYANDJUSTICE
6 )SLAWNECESSARY*USTIFYYOURANSWER
7 Why do people have different perceptions
about the law?
#HA PTERn"AS I CL EGAL CONCEPTS 15
2/9/09 8:32:19 PM
 CHAPTER 2
Sources of contemporary
Australian law
c hap ter ob j e cti ve s

In this chapter, students will:

s identify and apply legal concepts and terminology
s describe the key features and operation of the
Australian and international legal systems
s discuss the effectiveness of the legal system in
dealing with relevant issues
s explain the relationship between the legal system
and society
s describe the role of the law in conict resolution and
its ability to respond to and initiate change
s locate, select and organise legal information from a
variety of sources
s communicate legal information by using well-
structured responses.
ke y t e r m s/ v o c a b ul ar y

adversarial system exclusive powers precedent

appeal ex parte ratify
APPELLATEJURISDICTION external affairs power ratio decidendi
bicameral federation referendum
bill indictable offences residual powers
committal hearing inquisitorial system sanction
common law JURISDICTION stare decisis
concurrent powers legislative powers summary offences
customary law mediation statute law
defamation NATURALJUSTICE terra nullius
delegated legislation obiter dicta treaty
domestic law OPINIOJURIS ultra vires
equity ORIGINALJURISDICTION

16 C a m b r id g e L e g al S tu d ie s Pre limin ary

9780521734699part_01_3pp.indd 16 2/9/09 8:32:24 PM

 T he leg al s y s tem
rel ev ant l aw odd l a w

IM PORTA N T L EGIS L AT ION In DPP v Darby ;=.373#THE

Commonwealth of Australia Constitution Act government prosecutor appealed the decision
1900 5+ of a magistrate that the actions of a police
Australia Act 1986 #TH sniffer dog named Rocky, who put his nose on
Administrative Decisions (Judicial Review) Act the defendants trouser pocket, constituted an
1977 #TH illegal search. The Supreme Court of New South
Wales held that Rockys action was not a search,
SIGNIFIC AN T C AS ES but the search that the police ofcers did carry
Gutnick v Dow Jones & Co. Inc;=63# OUTWHICHFOUNDPROHIBITEDDRUGS WASLEGAL
Commonwealth v Tasmania;=(#! because they had formed the opinion necessary
South Australia v Commonwealth;=(#! for its legality and that opinion resulted from
Murphyores v The Commonwealth;= information conveyed by the actions of Rocky.
(#!
R v Brislan; Ex parte Williams;=(#!
Osland v R ;=(#!
Roper v Simmons53

#HA PTER3OURCESOFCONTEMPOR ARY! US TRAL I ANL AW 17

9780521734699part_01_3pp.indd 17 2/9/09 8:32:25 PM


common law
law made by courts;
historically, law
common to England
statute law
law made by
parliament
adversarial system
a system of resolving
legal conicts, used in
common law countries
such as England
and Australia, that
relies on the skill of
representatives for
EACHSIDEEGDEFENSE
and prosecution
lawyers) who present
their cases to an
impartial decision-
maker
inquisitorial system
a legal system
where the court or
a part of the court
EGTHEJUDGE IS
actively involved in
conducting the trial
and determining what
questions to ask; used
in some countries with
civil legal systems as
opposed to common
law systems
courts of equity
historically, courts
whose decisions were
more discretionary
and based on moral
principles, and which
served as an antidote
to the inexibility of the
common law
18 C a m b r id g e L e g al S tu d ie s Pre limin ary
9780521734699part_01_3pp.indd 18
Au s t ra lias lega l herita ge
Legal processes and practices used in Australia
today are based on the model developed in England.
When the British came to Australia in 1788, they
brought with them the law that applied in Britain,
known as common law. Contemporary Australian
law has evolved from both common law and statute
law. Common law refers to laws created in court
that is, decisions made by judges. Statute law refers
to laws made by parliament. These concepts are
discussed in further detail below.
The adversarial system of court is to act as an impartial referee.
trial
The English system of law has heavily inuenced
Australian law and practice, including the way
in which court cases are conducted. As a result,
Australia uses the adversarial system as part of
both criminal and civil court proceedings. The word
adversary means opponent. In a trial the two criminal trials. This means that the judges will
sides of the case try to prove their version of the
facts and disprove the version of the other side. The
defendant in a criminal trial does not have to prove
anything, as he or she is assumed to be innocent
until proven guilty. However, most people accused
of a crime will retain the services of a legal team to
show how the prosecutions case is awed.
Co m m o n l aw
The term common law has many different uses,
as you would nd if you were to put the term into
a search engine on the internet. Common law in
Australia today includes elements of the following:
s court-made law (as opposed to laws made by
parliament)
s law developed by the courts of common law, as
distinct from the courts of equity
s the system of court-based law used in the United
Kingdom and many of its former colonies,
An impartial judge (and sometimes a jury) will
listen to the evidence presented by both parties and
make a decision as to which side has proved their
case, and thus disproved the other sides case.
The inquisitorial system
In an inquisitorial system, the court is actively
involved in determining the way in which the
competing claims are presented. It is different
from the adversarial system, where the role of the
The inquisitorial system derives from the
Roman and Napoleonic codes. It is found in
Europe, as well as Japan and some other countries.
In this system, called the civil law system, a judge
or group of judges have the task of investigating
the case before them.
Indonesia uses an inquisitorial system for
conduct an inquiry into the truth of what occurred:
that is, the facts behind the legal issues in dispute.
They are able to admit evidence that might not
be admitted in an Australian court. Judges are
empowered to decide which witnesses will be
called, and could even call for outside testimony
that had not been requested by either side.
including Australia, New Zealand, Canada and
the USA.
Development of the
common law
The British legal system itself developed from a
number of sources. In Anglo-Saxon England, for
example, questions about rights and obligations
were decided on the basis of local custom and
2/9/09 8:32:27 PM

Figure 2.1 Australian common law is based on the English system. Shown here are the Houses of Parliament in London.
disputes were resolved by local courts. After the
Normans invaded England in the 11th century,
they began a system of travelling judges who
applied a common set of laws to all areas of
England. Petitions from people who felt that the
local courts had been unjust were dealt with on
the premise that similar cases should be treated
in a similar way. The decisions made by the judges
provided the precedents for later cases, and the
laws they applied became the basis of the British
legal system.
This system was the one brought over to
Australia with the First Fleet, but gradually
Australia has developed its own legal system
based on its statute law and common law. Many
British legal principles have been retained in the
Australian system. These include the principles of
natural justice.
From about the sixth to the 11th century, the
law was enforced by local administrative bodies.
The kings appointees, the church, and local
landlords all had a role in court resolution of legal
matters. Crimes were treated as wrongs for which
the offender had to compensate the victim.
If the court accepted a case, both the person
against whom the illegal act was allegedly
committed (the plaintiff) and the person who was
9780521734699part_01_3pp.indd 19
The leg al s y s tem
said to have committed it (the defendant) had to
swear an oath. The defendant might have the help
of oath-helpers people willing to swear to his
innocence. If the court found the defendants oath
believable, he or she could simply walk away. If,
however, the plaintiff could bring witnesses who
would swear that the defendant had committed
the act, the defendant might be required to parti-
cipate in a trial by ordeal.
Before the ordeal, the defendant had to fast for
three days and attend a special mass. He was then
given a painful task to complete or to bear, such
as carrying a red-hot iron bar a certain distance in
his bare hands, retrieving a stone from a cauldron
of boiling water, putting his hand into a ame, or
being thrown into a river or pond. If the defendant
completed the task without injury or death, if the
wound healed within a prescribed period, or if the
defendant sank, he or she was considered innocent
and set free; if not, execution usually followed.
Trial by ordeal continued after the Norman
conquest, though there were new requirements
imposed by the church, for example that no one
could be made to undergo an ordeal without the
bishops permission. It was eventually condemned
by the church in 1215 and abolished by royal
decree in 1219.
#HA PTERn3OURCESOFCONTEMPOR ARY! US TRAL I ANL AW 19
2/9/09 8:32:29 PM

equity
the body of law that
supplements the
common law and
CORRECTSINJUSTICESBY
JUDGINGEACHCASEON
its merits and applying
principles of fairness
20 C a m b r id g e L e g al S tu d ie s Pre limin ary
9780521734699part_01_3pp.indd 20
Figure 2.2 An example of a water ordeal:
the guilty would oat, the innocent sink.
In order to consolidate his hold on the country,
William the Conqueror sent judges (or justices)
around the country with three main tasks to
carry out:
1 administer a common set of laws throughout the
country
2 report on any threats to the throne
3 assess the wealth of the country so that tax
could be levied.
When the next ruler, Henry II, came to the
throne in 1154, there was a well-established
practice of sending royal justices throughout the
countryside to listen to disputes, work out solutions
and apply punishments, and ensure that common
rulings were made overall. These judges also had
authority to make decisions when they heard new
cases. In this way, a set of uniform laws developed
throughout England. Thus common law as we know
it today has evolved from judicial decisions that
were based in tradition, custom and precedent.
Development of equity
The procedure for bringing a case before the court
was rigidly formal. In Anglo-Saxon times, if a party
failed to follow the prescribed steps, he could lose
his case. Even later, the common law would hold
that a person was bound by a contract, even if he
had made a mistake or been tricked into signing it.
By the 15th century, people were bringing petitions
to the king claiming that the common law courts
had made unjust decisions. It became the job of
the Chancellor to deal with these petitions.
For many years, the Chancellor was a priest,
as well as a judge. Chancellors did not base their
judgments on precedent and form; instead, they
were inuenced by Christian principles. This body
of law, which developed to deal with the injustices
that had crept into the common law and was set up
to hear these petitions, became known as equity.
As a court of equity, the Court of Chancery
looked at the features of each case to decide what
was fair or just in the particular circumstances.
The moral principles on which equitable decisions
were based were called the rules (or maxims) of
equity, and are still used today.
The systems of common law and equity co-
existed, but not always peacefully. In the early
17th century, a dispute between the Chancellor
and the Chief Justice of the Kings Bench was
resolved through the personal intervention of
the king, James I, who called a conference of
judges. They concluded that in the case of conict
between the common law and equity, equity
should prevail. As a result, rules of equity always
override common law.
There are equitable remedies for wrongs not
recognised by the common law. Some of these
remedies are non-nancial: for example, the court
may order someone to do what he or she promised
but then failed to do, or may set aside an unfair
contract.
In the 1870s, the British parliament passed
legislation merging the courts of common law
and the courts of equity, allowing judges to apply
the rules of common law or equity (or both) in a
particular case. The Australian colonies followed
suit with similar legislation.
The doctrine of
precedent
As stated above, the common law, or case law, is
the law developed by judges when deciding cases.
Not only are there rules about the presentation of
2/9/09 8:32:30 PM
 evidence and the running of the case, but judges decidendi of a higher court will set a binding precedent
AJUDGMENTTHATIS
must resolve disputes on the basis of decisions precedent on lower courts;
authority for a legal
made in similar cases. A judgment that is followed s obiter dicta other remarks made by the principle, and that
is called a precedent, and it provides the authority judge regarding the conduct of the trial, for serves to provide
guidance for deciding
for the legal principle contained in the decision. example about the credibility of a witness.
cases that have
The doctrine of precedent is also known as stare These remarks do not form part of the decision similar facts

The leg al s y s tem

decisis Latin for the decision stands. and thus do not set a precedent. stare decisis
The purpose of precedent is to ensure that a Latin term meaning
the decision stands;
people are treated fairly, and that the law develops WH EN PRE C E DENT DO E S NO T H AVE TO
the doctrine that a
in a consistent and coherent fashion. It means that B E FO L L O WED decision must be
old cases retain authority and their decisions can If the facts or relevant points of law are signicantly followed by all lower
courts
be used as the basis for decisions in modern court different from a previous case, the case may be
ratio decidendi
cases. Thus the doctrine of precedent works to distinguished from the earlier one and its ratio ,ATIN THELEGAL
limit a judges ability to be creative when it comes decidendi does not have to be followed. REASONFORAJUDGES
decision
to making a decision. When a higher court upholds an appeal of a
obiter dicta
lower courts decision, the decision of the lower
,ATIN COMMENTS
Making and following precedent courts is reversed. FROMAJUDGEINACASE
When there has been no previous decision to A court may refuse to follow a decision of that are not directly
relevant to the
provide guidance for deciding a case, a court must another court which is at a lower or equal level in
case, and therefore
use principles of the existing common law and the hierarchy. This refusal is called overruling the not legally binding
statute law to make its decision. The judges will also decision of the lower court. SINGULAROBITER
dictum)
pay attention to social developments and common
sense. Their new decision creates a precedent.
Rules of precedent
Another way in which precedents are created
is in the interpretation of legislation. Where there B I NDI NG P REC EDE NT
is a dispute about the meaning or application of a Lower courts are bound to follow decisions of
section of an Act, or about the meaning of a word, superior courts, regardless of whether the judge
a court may have to resolve the question. For believes a decision of the higher court is correct.
example, if a statute requires that the local council This is known as binding
must approve the removal of trees from any land, precedent. For example,
a developer might not agree that the term trees the New South Wales
includes dead trees. Judicial interpretation of the Local Courts and District
legislation might be needed to determine whether Court must follow the deci-
council approval must be sought for the removal of sions of the New South
dead trees just as for live ones. Wales Supreme Court. All
While courts are not bound to follow other state and federal courts in
courts interpretations of statutes, they are usually Australia are bound by the
expected to do so. This is because if a court decision decisions of the High Court
has not resulted in parliament changing the of Australia. Only the ratio
wording of legislation, it suggests that parliament decidendi of the superior
is satised with the courts interpretation. court is binding.
When a judge gives a decision in a case, it The High Court is not
usually is made up of two parts: strictly bound by its own
s the ratio decidendi the legal reason why decisions, though it usually Figure 2.3 4HEJUDGEACTSASAN
a judge came to a particular decision. A ratio follows them. umpire in a court case.

#HA PTERn3OURCESOFCONTEMPOR ARY! US TRAL I ANL AW 21

9780521734699part_01_3pp.indd 21 2/9/09 8:32:33 PM

 jurisdiction PER S UAS IVE PR EC ED E NT Decisions made in other Australian states or
the powers of a court,
Superior courts do not have to follow decisions other common law countries, such as the United
depending on its
geographic area, the made in lower courts. They may, however, use them States or the United Kingdom, may inuence an
type of matters that to help make a decision. This is called persuasive Australian judgment. The higher the court in its
can be decided, and
precedent.Persuasive precedent may also include own jurisdictions hierarchy, the more persuasive
the type of remedies
that can be sought obiter dicta of a judge in a higher court. the precedent will be.
ca s e s p a ce

The law of defamation and the internet

Gutnick v Dow Jones & Co. Inc. [2001] VSC 305

In this case, the plaintiff argued
that he had been defamed over
the internet. The defendant,
Dow Jones, publishes an online
news magazine. An article
in that magazine discussed
the business dealings of the
plaintiff, a prominent Melbourne
businessman, and alleged
that he was involved in money
laundering and fraud. Even
though the article originated
in New York, USA, the plaintiff
successfully argued that he had
been defamed in his own city
because more than 300 people
had accessed the report in
Melbourne. The Supreme Court
of Victoria held that publication
occurs when an article is
downloaded, and that a plaintiff
can bring proceedings in any
jurisdiction where the offending
statements can be accessed.
This was one of the rst legal
cases to look at the internet as
a source of defamation. It set
a precedent for defamation
claims being brought across
jurisdictional boundaries, and
sparked international interest.
The decision shows that
internet communication is no
different from other forms of
communication, and is subject
to the same laws.

defamation
the act of making
statements or
suggestions that harm
someones reputation
in the community
appeal
an application to
have a higher court
reconsider a lower
courts decision, on the
basis of an error of law
Cou r t h ie ra rc hy : j u ri sdic t io n
of s t ate a n d fede ra l cou r t s
Australia has two levels of law: state and federal.
As a result, there are separate state and federal
jurisdictions, each of which has its own court
structure.
All courts have the power to hear a case for
the rst time. Some courts can also hear appeals
from lower courts. This means they can reconsider
the decision of a lower court, where the losing
party believes there has been an error in the
lower courts legal reasoning. Figure 2.4 shows the
structure of state courts in New South Wales, and
federal courts in Australia. The arrows show the
specic courts that can hear appeals from each of
the lower courts.
State and territory courts
The state court system in New South Wales
operates under the following hierarchy:
1 Lower courts
2 Intermediate courts
3 Superior courts.
The Australian Capital Territory does not have
the intermediate level, but is otherwise similar.
Each court has its own jurisdiction, or area over
which it has authority. Minor matters are dealt with
lower in the court hierarchy, whereas the higher
courts are reserved for more serious matters and
appeals from the lower courts.

22 C a m b r id g e L e g al S tu d ie s Pre limin ary

9780521734699part_01_3pp.indd 22 2/9/09 8:32:34 PM

 HIGH COURT OF AUSTRALIA

Federal superior courts Federal superior courts

&EDERAL#OURTOF!USTRALIA Supreme Court of the ACT Supreme Court of NSW

The leg al s y s tem

Federal specialist courts State intermediate courts

&AMILY#OURTOF!USTRALIA District Court of NSW

Non-family Family law

law matters matters

Federal lower courts Territory lower courts State lower courts

&EDERAL-AGISTRATES Magistrates Court of the ACT Local Court of NSW

Court of Australia
Coroners Court of the ACT Coroners Court of NSW

Childrens Court of the ACT Childrens Court of NSW

Land and Environment

Court of NSW

Figure 2.4 3TATETERRITORYANDFEDERALCOURTHIERARCHY

In criminal cases, minor offences such as loit- Territory, the court that has this role is called the summary offences
ering and obstructing trafc are called summary Magistrates Court. criminal offences that
can be dealt with by a
offences these are dealt with in the lower courts. Most criminal matters are heard in the Local SINGLEJUDGEWITHOUT
More serious criminal offences, such as assault or Magistrates Court, as only very serious crimes AJURYANDDONOT
require a preliminary
and murder, are called indictable offences are referred to the District or Supreme Courts. In
hearing
these are dealt with in the higher courts. the case of indictable offences, the magistrate will
indictable offences
listen to an outline of the evidence to determine serious criminal
whether the prosecution has a strong enough case offences that require
Lower courts ANINDICTMENTA
to be able to try the defendant in the District Court
formal, written charge)
LOCAL COURT AND MAGISTRATES COURT or Supreme Court. This preliminary hearing is and a preliminary
In New South Wales, the Local Court deals with called a committal hearing. hearing; they are
typically tried before a
minor criminal matters and minor civil disputes. The Local Court in New South Wales has
JUDGEANDJURYANDARE
In this court a magistrate will hear and decide jurisdiction to deal with the following areas: SUBJECTTOAGREATER
the case, and will set the punishment for criminal s minor criminal and summary offences penalty

offences. The Local Court is also known as the s civil matters with a monetary value of $5000
Magistrates Court, and in the Australian Capital to $60 000

#HA PTERn3OURCESOFCONTEMPOR ARY! US TRAL I ANL AW 23

9780521734699part_01_3pp.indd 23 2/9/09 8:32:34 PM

 committal hearings
inquiries held in the
Local or Magistrates
Court to determine
whether there is
enough evidence
against the defendant
to warrant a trial in a
HIGHERCOURTTHISIS
called establishing a
prima facie case)
coronial inquests
investigations into
deaths that have
occurred in unusual
circumstances, held in
the Coroners Court
and overseen by a
magistrate called the
Coroner
larceny
taking another persons
property with intent to
permanently deprive
the owner of the
property; also known as
stealing
appellate jurisdiction
the ability or power of
a court to hear appeals
of the decisions of
lower courts and to
s committal hearings
s a limited range of family law matters, such as
property settlements and residence orders for
children. In this area, the Local Court has federal
jurisdiction and in these matters is essentially
part of the Federal Court hierarchy.
The Magistrates Court of the Australian Capital
Territory has similar jurisdiction, although it can
hear and decide civil matters with a maximum
monetary value of $50 000.
C OR ON ER S C OURT
In New South Wales and in the Australian Capital
Territory, the role of the Coroners Court is to
ensure that unexplained or suspicious deaths
(or suspected deaths), res and explosions are
properly investigated. If necessary, coronial
inquests are carried out and cases are handed to
a higher court for trial.
C H IL DR EN S C OURT
In New South Wales and in the Australian Capital
Territory, the Childrens Court deals with civil
matters related to the care and protection of
serious charges like manslaughter, sexual assault
and large-scale drug importation. The only
charges with which the District Court cannot deal
are murder, treason, and piracy, which must be
dealt with by the Supreme Court.
A judge and sometimes a jury will hear cases
tried in a District Court.
The District Court deals with criminal offences
such as:
s manslaughter, malicious wounding, and danger-
ous driving
s assaults
s sexual assaults
s offences relating to property, including
robbery, breaking and entering, larceny and
embezzlement
s importing, supplying or possessing prohibited
drugs
s offences involving fraud, including passing
valueless cheques, obtaining money by decep-
tion, and forgery.
The District Court has an unlimited jurisdiction
in claims for damages for personal injuries arising
out of a motor vehicle accident. It also handles
REJECTAFlRMORMODIFY
those decisions
corporations law
legislation that
regulates corporations
and the securities
and futures industry
in Australia; it is
administered by the
Australian Securities
and Investments
#OMMISSION!3)# everything from charges of larceny to more
24 C a m b r id g e L e g al S tu d ie s Pre limin ary
9780521734699part_01_3pp.indd 24
children and young people. It also deals with
criminal cases involving persons under the age
of 18 at the time of the offence, or (in New South
Wales) under the age of 21 when charged with a
crime they committed while under the age of 18.
L AN D AN D EN VIR ONM ENT C O U RT
The Land and Environment Court is a specialist court
responsible for interpreting and enforcing environ-
mental law in the state of New South Wales. It has a
wide jurisdiction and deals with matters related to
environmental planning (e.g. zoning of park lands),
environmental offences (e.g. illegal polluting or
dumping) and appeals to local council rulings.
Intermediate courts
THE DISTRICT COURT OF NEW SOUTH WALES
The District Court of New South Wales deals with
more serious criminal matters. These include
cases are heard before a judge and jury.
civil cases where the amount claimed is between
$60 000 and $750 000. If both parties agree, the
court can deal with cases where larger amounts
are involved. It also has appellate jurisdiction.
Superior courts
TH E SU P REM E C O U RT
The Supreme Court is the highest court in the
state or territory hierarchy. It deals with the most
serious criminal matters and civil cases involving
large sums of money (there are no monetary limits
on its civil jurisdiction). It also deals with appeals
from the lower courts in that state or territory.
The Supreme Court has criminal jurisdiction
over the most serious indictable offences such
as murder and manslaughter, attempted murder,
kidnapping, major conspiracy and drug-related
charges, and Commonwealth prosecutions for
serious breaches of the corporations law. All
2/9/09 8:32:35 PM
 In civil matters, there is no upper limit to
monetary damages in the Supreme Court. It
hears matters on claims for damages for personal
injury, breach of contract, professional negligence,
possession of land, and defamation. Most civil
matters are dealt with by a judge alone, although a
jury is used in some circumstances.
The Supreme Court also hears appeals. The
Court of Appeal is the highest court in each state
and territory, for both civil and criminal matters.
Three judges hear most appeals, but some are
heard by two, and, in special cases, they may be
heard by more than three. If the judges cannot
agree, the majority view prevails. To appeal to
the High Court from the Court of Appeal, special
permission must be granted by the High Court.
Federal courts
The federal court system has a hierarchy in much
the same way as the state court system does.
These include:
The Federal Magistrates Court
of Australia
The Federal Magistrates Court of Australia was
established by the Commonwealth Parliament
towards the end of 1999 and conducted its rst
sittings in July 2000.
The Federal Magistrates Court was established
to relieve some of the case load of the Federal
and Family Courts and reduce the cost and time
required to deal with more minor federal matters.
The jurisdiction of the Federal Magistrates
Court includes family law and child support,
administrative law, bankruptcy, human rights,
consumer protection and trade practices, privacy,
migration, copyright, and industrial law. It does
not deal with criminal matters. It shares its original
jurisdiction with the Family Court of Australia and
the Federal Court of Australia; matters can be
transferred between these courts, depending on
the complexity of the legal issues.
In November 2008, the federal government
decided that the Federal Magistrates Court would
9780521734699part_01_3pp.indd 25
be dissolved, with jurisdiction for family law
matters returning to the Family Court and for all
other matters returning to the Federal Court. The
reasons given for the restructure were to reduce
the nancial costs of operating an additional court,
conict over resources, and individuals confusion
T he leg al s y s tem
about which court has the appropriate jurisdiction
to hear their particular case. Some of the savings
expected to result from the restructure would be
used to provide non-adversarial dispute resolution
services in the area of family law.
The Federal Court of Australia
The Federal Court of Australia was established by
an Act of Parliament in 1976. It assumed some of
the jurisdiction formerly exercised by the High
Court of Australia and all of the jurisdiction of two
courts that had dealt with industrial matters and
bankruptcy. It deals with civil disputes governed
by federal law (except for family law matters),
as well as some summary criminal offences.
The Federal Courts position in the federal court
hierarchy is equivalent to that of the Supreme
Courts in the states and territories. In relation to
the other courts in the federal hierarchy, it is equal
to the Family Court of Australia, and superior to
the Federal Magistrates Court.
The Family Court of Australia
The Family Court of Australia is a superior federal
court which deals with the most complex family
law matters. It was established by the Australian
Parliament in 1975. Its main function is to rule on
cases related to specialised areas in family law,
such as divorce, parenting orders, the division of
property and spousal maintenance. In its appellate
jurisdiction, it can hear appeals from a decision of a
federal magistrate or a single Family Court judge.
The High Court of Australia
The High Court of Australia is the highest court in
the Australian judicial system. It was established
in 1901 under section 71 of the Australian Consti-
tution. The High Court deals with appeals from
the Federal Court of Australia, the Family Court
#HA PTERn3OURCESOFCONTEMPOR ARY! US TRAL I ANL AW 25
2/9/09 8:32:35 PM
 Figure 2.5 The High Court of Australia is located in Canberra.
of Australia, and the state and territory Supreme
Courts. It also deals with cases concerning the
l eg al l i nks
Legal Access Services is a site that
was set up to provide legal advice
to ordinary Australians. It provides
information on the Australian legal
system. The following pages provide
information on the court system:
www.legalaccess.com.au/content.
aspx?Id=AuInfJudicial
Lawlink, hosted by the NSW
Attorney Generals Ofce, has
information about the courts of NSW
and Australia: www.lawlink.nsw.gov.
au/Lawlink/Corporate/ll_corporate.
nsf/pages/LL_courts_tribunals_index
The ACT government provides
information on that territorys courts
and tribunals: www.courts.act.gov.au/
The Australian Government
Attorney-Generals website has
information about the federal legal
system and courts:
www.ag.gov.au/www/agd/agd.
nsf/Page/Legalsystemand
justice_TheCourts
26 C a m b r id g e L e g al S tu d ie s Pre limin ary
9780521734699part_01_3pp.indd 26
interpretation of the Australian Constitution and
the constitutional validity of laws.
R EVI EW 2 . 1
1 Why do we need courts?
2 Explain the meaning of court hierarchy.
3 Which court is the highest in Australia?
4 Outline the types of matters that are
heard in the local court. Who hears these
matters?
5 Indicate the types of cases that are dealt
with in the District Court of New South
Wales. Who decides these cases?
6 Describe the role of the Supreme Court.
7 Explain the importance of the High Court.
8 In which court would the following matters
most likely be heard?
a a murder trial
b an appeal from the NSW Supreme Court
c a hearing for the offence of using
offensive language in public
d an investigation into a suspicious death
e an armed robbery trial
f the preliminary hearing for a kidnapping
case
g a civil dispute between business
partners involving $100 million
h a case dealing with an aspect
of the Australian Constitution
2/9/09 8:32:40 PM
 PARLIAMENT OF AUSTRALIA

4HE1UEENREPRESENTEDBYTHE
Governor-General)

The leg al s y s tem

Government
members of
parliament
Executive
members of
parliament
Non-government
members of
parliament

House of Representatives Senate

Figure 2.6 Parliament of Australia

St a t u te l aw
Statute law is the law made by parliament. It is
also known as legislation or Acts of Parliament.
In Australia, any parliament has the power to
make statute law. This means that state, territory
and federal governments all have the right to
make laws. The Australian Constitution sets out
the powers of the state and federal parliaments
with respect to making law.
and the territories, all state parliaments and the bicameral
containing two
federal parliament are bicameral. This means
chambers or houses of
that they have two houses, an upper house and parliament
a lower house. The Australian Capital Territorys
parliament is unicameral: it only has a lower
house, called the Legislative Assembly. In New
South Wales, the lower house is known as the
Legislative Assembly and the upper house is called
the Legislative Council.

The role and structure of
parliament
A parliament is a body of elected representatives.
It debates proposed legislation, passes or rejects
it, and amends legislation. Apart from Queensland
In federal parliament, the two houses are the
Senate (the upper house) and the House of Repre-
sentatives (the lower house). The government is
formed by the political party that has the majority
of seats in the lower house. Sometimes parties
will unite to form a government (such as the

#HA PTERn3OURCESOFCONTEMPOR ARY! US TRAL I ANL AW 27

9780521734699part_01_3pp.indd 27 2/9/09 8:32:41 PM

 bill
a drafted law that has
not yet been passed by
parliament
delegated legislation
laws made by
authorities other than
parliament, who are
delegated the power
to do this by an Act of
Parliament
28 C a m b r id g e L e g al S tu d ie s Pre limin ary
9780521734699part_01_3pp.indd 28
LiberalNational Coalition). The prime minister is
the leader of the government. The political party or
parties who have the remaining seats in the lower
house form the opposition. Ministers are those
members of the government who have a special
responsibility for particular departments, e.g.
Minister for Education, Minister for the Environ-
ment. Some or all of the ministers form the Cabinet.
Cabinet makes decisions on policy and laws to be
drafted for consideration by parliament.
legal links
For information on the
Commonwealth Parliament
go to www.aph.gov.au
Figure 2.7 Parliament House, Canberra
The Executive Council is made up of the
Governor or Governor-General and selected mini-
sters. It is the body that enables legislation to be
put into operation. The British monarchy still plays
a role in parliament in Australia.
The Queen must assent to laws. She is repre-
sented in Australia by the Governor-General at
federal level and governors at the state level.
The legislative process
Passing legislation
One of the most important functions of parlia ment
is the passing of laws. Most laws are introduced by
the party that holds government. A proposed new
law is known as a bill. The making of a law can be
time-consuming and difcult. The process is open
2/9/09 8:32:47 PM
 to public scrutiny, and as a result, well-
organised pressure groups and members
of electorates can inuence parliamentar-
ians opinions. Bills are usually introduced
by ministers, who are responsible for their
preparation. Any member of parliament
can introduce a bill; however, if a bill
is introduced by a member who is not a
minister (called a backbencher), the bill is
known as a private members bill.
As members of parliament are subject
to elections every few years, they are well
aware of the consequences of passing un-
popular legislation. This means that pro-
posed legislation often undergoes much
discussion in parliament and may be
redrafted many times.
Before a bill passes and becomes federal
law, it requires the approval of both houses
of parliament and the Governor-General.
It then becomes an Act of Parliament.
The process for passing laws through
the New South Wales Parliament (as well
as other states with bicameral parliaments)
is generally the same as passing laws
through Federal Parliament. This process
is outlined in Figure 2.8.
The process for passing laws in the
Legislative Assembly of the Australian
Table 2.1 The advantages and disadvantages of delegated legislation
Advantages
s The people making the legislation
are usually experts in that eld.
s Delegation of minor legislation
frees up parliamentary time for very
serious issues.
s It is easier to amend delegated
legislation and thus it is more
exible.
9780521734699part_01_3pp.indd 29
Capital Territory has fewer steps, as there R EVI EW 2 . 2
is only one legislative chamber. Bills of 1 Explain how common law
the ACT are not given royal assent by the originated.
Governor-General, and this territory has 2 Describe how people were
no Governor or Administrator. tried for crimes in medieval
England. What were the
The leg al s y s tem
Delegated legislation problems with this system?
Delegated legislation is legislation made 3 Dene equity law and
by non-parliamentary bodies. It involves explain how it differs from
less impor tant laws that parliament does the common law.
not have time to draft, consider and pass, 4 Explain why Australian law
and so delegates the responsibility to is based on common law
subordinate bodies, such as government principles.
departments or local councils. The Act 5 Identify the differences
that authorises a body to make delegated between court-made law
legislation is called an enabling Act. and statute law.
Types of delegated legislation include: 6 How is the principle of
1 regulations laws made by the precedent used in court
Governor-General, state Governors or decisions?
members of the Executive Council 7 Evaluate the importance of
2 ordinances laws made for Australian the Gutnick v Dow Jones &
territories (e.g. Norfolk Island and the Co. Inc case.
Australian Antarctic Territory) 8 Devise a way to explain to
3 rules legislation made for government the public how an Act of
departments, usually by the department Parliament is made. You
involved may wish to use a series of
4 by-laws laws made by local councils cartoons or a storyboard.
which are restricted to the area 9 Dene delegated
governed by that council. legislation. Demonstrate
your knowledge with
appropriate examples.
Disadvantages
s Members of parliament do not have Act of Parliament
the time or expertise to fully check Statute law, resulting
from a bill successfully
the delegated legislation.
passing through
s With many different bodies involved
parliament and gaining
in making delegated legislation, royal assent
there can be inconsistencies.
s Little publicity surrounds the
delegated legislation and thus the
public usually cannot voice their
views.
#HA PTERn3OURCESOFCONTEMPOR ARY! US TRAL I ANL AW 29
2/9/09 8:32:47 PM
 THE PROCESS OF PASSING A BILL THROUGH PARLIAMENT

Need for Inuences on governments to make

new law is laws come from many and varied
identified sources. These include:
s COMMUNITYINTERESTLOBBYGROUPS
s electoral mandate
s the need to continue or enhance
existing laws
s party policy
s NATIONALINTERNATIONALEVENTS
s proposals put forward during
election campaigns.

Draft bill Cabinet approves the drafting of a

bill.
The proposed bill is drafted by
parliamentary clerks and timetabled
for its rst reading in the Lower
House. The bill is presented by the
minister, ready for its rst reading.

First The rst formal reading of the
reading bill takes place by the Clerk of the
Parliament who reads out the title
of the bill. Each member receives a
copy of the proposed Act.
Upper In the Upper House, the process
House is repeated. If the bill does not
pass in the Upper House is may be
returned to the Lower House for
AMENDMENTSORMAYBEREJECTED

Second The minister then speaks about the

reading proposed Act, elaborating on its
general aims. Debate over the bill
takes place. This stage is completed
by the Clerk reading the title of the
bill for the second time.

Committee The bill is examined and debated

stage INDETAILANDCHANGESKNOWNAS
amendments) are made if necessary.

Third During the third reading a vote is
reading taken on the bill. If the bill passes, it
moves to the Upper House.
Royal If the bill is passed in the Upper
assent House, it is presented to the
'OVERNORINTHECASEOF.37
legislation) or Governor-General
INTHECASEOFFEDERALLEGISLATION
for formal approval. The bill now
becomes an Act of Parliament
and is law as of the date
specied in the Act.

Figure 2.8 The passage of a bill through parliament

30 C a m b r id g e L e g al S tu d ie s Pre limin ary

9780521734699part_01_3pp.indd 30 2/9/09 8:32:48 PM

 T h e Co n s t i t u t io n
A constitution is a set of rules that may apply to six colonies amalgamated into one nation under
a social club, a large-scale organisation or even one centralised government. An emotional and
a nation. On 1 January 1901, Australia gained a sometimes bitter debate raged for two decades

The leg al s y s tem

Commonwealth Constitution, which outlined the until federation was achieved. federation
the process of uniting
legal framework and rules that apply to the gover- It is important to look at the arguments for
several states to form
nance of Australia. and against federation in Australia because a single national
Prior to the Australian Constitution coming into these different considerations shaped the government

force, Australia consisted of six colonies, which content of the nal constitution document. As referendum
the referral of a
were independent of each other with the right to with any democratic process, politicians have to
particular issue to the
govern within their own borders. These six colonies persuade the public to vote for their proposals, electorate for a vote
were not answerable to any authority in Australia, and sometimes they have to make trade-offs to rail gauge
but rather to the British government. By the 1880s gain voter condence. This was essential to get the distance between
the inner sides of the
various groups and individuals began to promote the necessary votes in the each of the federation
two rails of a train
the concept that Australia would be better off if the referendums. line
White Australia
Policy
the government
Table 2.2 !RGUMENTSFORANDAGAINSTFEDERATIONIN
policy of allowing
only Europeans and
Arguments for federation Arguments against federation
English-speaking
Economics: the removal of trade barriers Trade: tariffs could be used to protect people to immigrate
between the colonies would promote a more industries in certain colonies from competition to Australia
efcient economy in other colonies tariff
a tax that must be
Transport: a national rail network would Fear: smaller states believed that the more
paid on imports or
overcome problems caused by the colonies populous and richer states would simply exports
having different rail gauges override their interests
Defence: as the colonies were far from Britain Apathy: many people felt that federation
and thus from Britains ability to assist in the was irrelevant to their daily lives; this was
event of attack, a unied military force would compounded by the severe economic
reduce vulnerability DEPRESSIONOFTHES
Nationalism: there was a desire to foster a Expense: federation would be expensive to
unique Australian identity and culture distinct achieve and a national government would be
FROMTHE@MOTHERCOUNTRY%NGLANDIN expensive to run
OF!USTRALIANSWEREOF"RITISHORIGIN
Racial purity: implementing national policies Cheap labour: Queensland was determined to
restricting immigration would keep Australia protect its sugar industry by allowing Pacic
WHITETHEWhite Australia Policy) )SLANDERSKANAKAS TOWORKONTHESUGAR
plantations

After a series of referendums in 1898, 1899 and ment was required. The Commonwealth of Australia
1900, the colonies eventually found a compromise Constitution Act 1900 (UK) was passed and Australia
position on a proposed constitution, but, before it came into existence as a nation on 1 January 1901.
could take effect, approval from the British Parlia- The key features of this British Act were:

#HA PTERn3OURCESOFCONTEMPOR ARY! US TRAL I ANL AW 31

9780521734699part_01_3pp.indd 31 2/9/09 8:32:48 PM

 Figure 2.9 Kanakas at work on the Queensland Figure 2.10 !POSTERFROMTHEEARLYSPROMOTINGTHEAIMSOFTHE
cane farms White Australia Policy
s Australia was a federated nation consisting of
six states (Western Australia joined shortly after
the other states). The Northern Territory gained
self-government in 1978 and the ACT in 1988.
s There was a bicameral federal parliament
(House of Representatives and Senate).
s A High Court of Australia was established to
oversee any other courts and provide nal
and conclusive judgments upon any appeals it
s hears (s 73 of the Australian Constitution).
abbreviation for
s It outlined both the division of power and the
section of any
legislation; ss is separation of powers as they would apply in
the abbreviation for Australia.
@SECTIONSPLURAL
s It enabled the Constitution to be altered by a ref-
erendum (s 128 of the Australian Constitution).
The Constitution itself is s 9 of the Common-
wealth of Australia Constitution Act. Although
the Constitution came into force through an Act
of the British parliament, the Act brought the
Commonwealth of Australia into existence as a
nation, and the Constitution can be changed only
by a referendum of Australian voters.
The Australian Constitution contains certain
checks and balances as a result of debate and
discussion during the federation process:
32 C a m b r id g e L e g al S tu d ie s Pre limin ary
9780521734699part_01_3pp.indd 32
s The Senate provides a check (restraint) on
the power of the House of Representatives.
The Senate is sometimes called the states
house, since all states have the same number
of senators (12) regardless of population. Each
territory has two senators.
s Section 128, which covers the process for alter-
ing the Constitution, species that a majority
of states need to vote yes on a proposal for
it to succeed that is, four out of six states.
In addition, an absolute majority of voters
Australia-wide must vote yes that is, 50 per
cent of voters plus one. It should be noted that
this strict requirement has made constitutional
change very difcult: no referendum has suc-
ceeded since 1977.
s The division of power outlined in s 51 ensures
that the states have control over the residual
powers, that is, those not listed in s 51. This will
be examined in detail later in this chapter.
Division of power
After all the controversy and discussions leading
up to the formalisation of the Australian Consti-
2/9/09 8:32:55 PM
 tution, the fundamental concern of what powers
the states would retain and what powers the
federal government would have was resolved in
Chapter I, Part V of the Constitution, in sections
51 to 60. Quite simply, the Constitution divided up
the powers between the federal government and

The leg al s y s tem

the states.
Section 51 of the Constitution species the
legislative powers of the federal parliament. The
federal parliament has the power to make laws with
respect to all of the matters listed in s 51. These
are sometimes referred to as the enumerated
powers. It is important to realise that the states
can also make laws in many of the areas listed in
s 51, namely, those areas over which the federal
and state governments have concurrent powers.
Section 52 outlines the exclusive powers of the
federal government that is, those areas in which
only the Commonwealth (federal) parliament can
legislate:
i the seat of government of the Commonwealth,
and all places acquired by the Commonwealth
for public purposes
ii matters relating to any department of the public Figure 2.11 The states different rail gauges were a legacy of
service controlled by the Commonwealth, the colonial system of Australia. The Constitution refers to this
ISSUEINSXXXII XXXIII ANDXXXIV 2AILGAUGESFORALLSTATES
according to the Constitution
are now standardised, allowing efcient interstate rail travel.
iii other matters declared by the Constitution to
be within the exclusive power of the Common-
wealth parliament. wealth make contradictory laws. This is found legislative powers
the legal power or
The exclusive powers of the federal government in s 109: When a law of a State is inconsistent
capacity to make laws
include the areas of trade and commerce with other with a law of the Commonwealth, the latter shall
concurrent powers
countries, foreign relations (external affairs), and prevail, and the former shall, to the extent of the existing at the same
national defence. While s 90, for example, states inconsistency, be invalid. This will be discussed time; powers held by
both state and federal
clearly that the federal government has exclusive later in this chapter.
parliaments
power over customs, and s 114 forbids the states Those powers which belong solely to the states
exclusive powers
from raising or maintaining any military force, are known as the residual powers. Each state powers that can be
determining how the Constitution applies to a has its own constitution, which enables the state exercised only by the
federal parliament
real-life question or dispute is not always clear-cut. to make laws in various areas, but excludes any
residual powers
Constitutional interpretation is the task of the High area directly denied to the states by the Australian those remaining
Court, and we will look at some important cases in Constitution. Chapter V of the Constitution outlines matters on which the
states can legislate,
which that court has claried the nature and scope some of these prohibitions. Some of the key residual
which are not referred
of the powers. powers are in the areas of de facto relationships (in to in the Constitution
Obviously there needs to be a conict resolution NSW this now includes same-sex relationships),
mechanism in place if a state and the Common- crime, hospitals and public transport.

#HA PTERn3OURCESOFCONTEMPOR ARY! US TRAL I ANL AW 33

9780521734699part_01_3pp.indd 33 2/9/09 8:32:56 PM

 l e g a l i n fo
Commonwealth Government legislative powers

The following extract from the Australian []

Constitution lists some of the legislative (xxvi) the people of any race, for whom
powers of the federal parliament. it is deemed necessary to make
special laws;
Section 51.
(xxvii) immigration and emigration;
The Parliament shall, subject to this (xxviii) the inux of criminals;
Constitution, have power to make laws for (xxix) external affairs;
the peace, order, and good government of []
the Commonwealth with respect to: (xxxi) the acquisition of property on just
terms from any State or person for
(i) trade and commerce with other
any purpose in respect of which
countries, and among the States;
the Parliament has power to make
(ii) taxation; but so as not to discriminate
laws;
between States or parts of States;
(xxxii) the control of railways with respect to
[]
transport for the naval and military
(v) postal, telegraphic, telephonic, and
purposes of the Commonwealth;
other like services;
(xxxiii) the acquisition, with the consent of
(vi) the naval and military defence of the
a State, of any railways of the State
Commonwealth and of the several
on terms arranged between the
States, and the control of the forces
Commonwealth and the State;
to execute and maintain the laws of
(xxxiv) railway construction and extension
the Commonwealth;
in any State with the consent of that
[]
State;
(xii) currency, coinage, and legal tender;
(xxxv) conciliation and arbitration for
[]
the prevention and settlement
(xv) weights and measures;
of industrial disputes extending
[]
beyond the limits of any one State;
(xix) naturalization and aliens;
[]
[]
(xxxvii) matters referred to the Parliament
(xxi) marriage;
of the Commonwealth by the
(xxii) divorce and matrimonial causes; and
Parliament or Parliaments of any
in relation thereto, parental rights,
State or States, but so that the law
and the custody and guardianship
shall extend only to States by whose
of infants;
Parliaments the matter is referred,
(xxiii) invalid and old-age pensions;
or which afterwards adopt the law;
(xxiiiA) the provision of maternity allow-
ances, widows pensions, child
endowment, unemployment, phar-
maceutical, sick ness and hospital
benets, medical and dental services
(but not so as to authorize any form
of civil conscription), benets to
students and family allowances;

34 C a m b r id g e L e g al S tu d ie s Pre limin ary

9780521734699part_01_3pp.indd 34 2/9/09 8:32:57 PM

 ca s e s p a ce
Commonwealth v Tasmania [1983] HCA 21 (Tasmanian Dam case)
If either the Commonwealth or a state
government passes a law that contravenes
the Australian Constitution, then that law
would be deemed unconstitutional and
thus be declared invalid.
Technically the government would be
said to be acting ultra vires. But what
happens if the state and Commonwealth
laws were both valid, as can often be the
case with a concurrent power? This
situation arose in Commonwealth v
Tasmania [1983] HCA 21, known more
commonly as the Tasmanian Dam case.
Tasmania wanted to build a
hydroelectric dam on the Franklin
and Gordon river system. A group of
environmentalists began a protest
campaign against this proposal and the
Wilderness Society and the Australian
Conservation Foundation got actively
involved. Nationwide protests were
organised under the No Dams slogan,
and a range of high-prole personalities
took up the cause.
Tasmania refused to budge. The
Tasmanian government argued that the
building of the dam was a residual power
and the protesters, while entitled to their
view, were not going to change Tasmanias
decision. In the lead-up to the 1983 federal
election, the leader of the Australian Labor
Party promised to stop the dam if elected.
Labor won the election, but Tasmania
continued to build the dam.
The federal government recognised
the Wild Rivers area as a region of special
signicance and it was listed under the
World Heritage Convention. The federal
government passed the World Heritage
(Property Conservation) Act 1983 (Cth),
which specied that such areas of special
signicance should be protected. The
9780521734699part_01_3pp.indd 35
Franklin was included as one such area. ultra vires
,ATIN BEYONDTHE
Now there was a state law allowing the
power or authority
construction of the dam and a federal law legally held by a
T he leg al s y s tem
which demanded that it be stopped. person, institution or
statute to perform
The case went to the High Court.
an act
There are seven judges on the full
external affairs
bench of the High Court. In a 43 power
decision, the court ruled that the federal the power of the
Commonwealth
government was validly using the
to legislate on
external affairs power of the Constitution international matters
(s 51(xxix)), which gives it the authority to involving Australia;
interpreted by
legislate on any matter of international the High Court to
concern. Although Tasmania had argued mean that when the
Commonwealth signs
that the construction of the dam and the
an international treaty
regulation of that area of the state were or convention it has
purely internal or domestic affairs, the the authority to enact
laws to give effect to
High Court held that the Commonwealth
this international law
had the power to make laws with respect within Australia
to international obligations that also
govern conduct within Australia. Under
s 109, the federal law would override the
state law. Section 109 states that when a
law of a State is inconsistent with a law of
the Commonwealth, the latter shall prevail,
and the former shall, to the extent of the
inconsistency, be invalid. The construction
of the dam was stopped and the Franklin
River was ultimately preserved for future
generations.
Figure 2.12 There were numerous street marches
PROTESTINGAGAINSTTHECONSTRUCTIONOFTHE&RANKLIN$AM
#HA PTERn3OURCESOFCONTEMPOR ARY! US TRAL I ANL AW 35
2/9/09 8:33:00 PM
 ca s e s tu d y

Amending the Australian Constitution

The law and the legal system must be
dynamic to be effective. Mechanisms must
be in place to change ineffective, obsolete
or unfair laws. Statutes (Acts of Parliament)
can be changed through the parliamentary
process. Common law can be changed
through the courts when a judge
sets a new precedent. The Australian
Constitution, while technically a statute,
has a unique alteration process contained
within it. This process is found in Chapter
VII, Alteration of the Constitution, s 128,
and is known as a referendum.
Of the 44 proposed amendments to
the constitution, only eight have been
successful. In some published copies
of the Australian Constitution, these
successful amendments are often shown
in bold type or by having deleted parts
ruled through (see s 51(xxvi)). The margin
notes also indicate alterations made
bipartisan to the Constitution after a successful
having the referendum. The specics of successfully
support of
THETWOMAJOR altering the Australian Constitution, as set
political parties out in s 128, are:
1 The proposed change must pass
both houses (Senate and House of
Representatives) with an absolute
majority.
2 The proposed change must be put to
the electors not less than two months
nor more than six months after going
through both houses.
3 There must be an absolute majority of
voters Australia-wide who approve the
change, that is, 50 per cent of voters
plus one.
4 There must be a majority of states that
approve the change, that is, four of the
six states must vote for the change.
5 The alteration must go to the Governor-
General for royal assent.
In 1967, one of the more popular
referendums altered s 51(xxvi) and deleted
s 127, which enabled the Commonwealth
government to pass laws in relation
to Aboriginal people and Torres Strait
Islanders. This ensured consistency of
laws, as some states had discriminatory
laws and were reluctant to change them.
Other successful referendums included
amending s 72 so that judges in the
High Court and the other federal courts
had to retire at age 70. This was the last
successful referendum; the next nine
proposals were all defeated. The last
referendum was held on 11 November
1999 and involved changing Australia to
a republic with a president appointed
by a two-thirds majority of both houses
of parliament, which would require
bipartisan support of the nomination. The
proposal was soundly defeated, but the
push to make Australia a fully independent
nation remains.

36 C a m b r id g e L e g al S tu d ie s Pre limin ary

9780521734699part_01_3pp.indd 36 2/9/09 8:33:00 PM

 The leg al s y s tem
Figure 2.13 )N!USTRALIAVOTED@YESTOALLOWTHEGOVERNMENTTOMAKELAWSCONCERNING)NDIGENOUSPEOPLE
REVIEW 2.3
1 Dene the term constitution.
2 Use examples to outline the constitutional division of
power. In your answer distinguish between:
a legislative powers
b enumerated powers
c concurrent powers
d exclusive powers
e residual powers.
3 Study the extract of s 51 and answer the following
questions:
a Under what section of the Constitution can the
federal government legislate with respect to
imports and exports? Explain your answer.
b With specic reference to s 51(xxi) and (xxii) outline
the grounds on which de facto relationships are
considered residual powers. Explain why these
relationships were not covered in the Constitution
by our founding fathers.
9780521734699part_01_3pp.indd 37
c Outline the process by which the federal
government could construct a rail line from Brisbane
to Melbourne. Refer to s 51(xxxii), (xxxiii) and
(xxxiv).
d What part of the Constitution reproduced here has
been altered by a referendum? Explain the impact
of this amendment.
e Explain s 51 (xxxvii) in your own words.
4 Write a summary of Commonwealth v Tasmania [1983]
HCA 21 using the following headings:
a facts
b issue
c judgment.
5 With specic reference to s 128, outline why it is so
difcult to alter the Australian Constitution, even if
more than 50 per cent of voters want the proposed
change.
#HA PTERn3OURCESOFCONTEMPOR ARY! US TRAL I ANL AW 37
2/9/09 8:33:03 PM

civil liberties
basic individual rights,
such as freedom of
speech and religion,
which are protected
by law
RE VIE W 2.4
1 Distinguish between the
three arms of government.
2 Explain how the separation of
powers operates in Australia.
3 Outline the signicance of the
separation of powers for the
functioning of a democracy.
R E SEA RC H 2.1
1 Investigate the concept
of mandatory sentencing
and discuss how this may
come into conict with
the independence of the
judiciary when determining
punishments.
2 Compare and contrast the
operation of the separation
of powers in Australia with its
operation in either France or
the United States of America.
38 C a m b r id g e L e g al S tu d ie s Pre limin ary
9780521734699part_01_3pp.indd 38
Separation of powers
The separation of powers doctrine was developed
by the 18th-century French political philosopher,
Charles de Secondat Montesquieu. He believed
that the civil liberties of the public were at risk if
the key organs of government were controlled by
one person or group.
Montesquieu identied these key organs of
government as:
s the legislature the law-makers (in Australia this
is the parliament: the House of Representatives
and the Senate)
s the executive the ministers and government
departments who administer the laws made by
parliament (in Australia the Governor-General,
the Prime Minister and Cabinet are members
of the executive)
s the judiciary the courts which interpret and
apply the law.
If one person or group controls all three organs
or arms of government, then he, she or it has
unfettered power and the risk of
dictatorship is very real. If the three
arms are independent, each acts as
a check on the others, ensuring that
no branch abuses its power and
that civil liberties are protected.
Australias founders certainly
wanted the doctrine of the separ-
ation of powers to apply upon
federation. The rst three chapters
of the Constitution are set out in
accordance with the doctrine:
s Chapter I The Parliament
(sections 1 to 60)
s Chapter II The Executive
(sections 61 to 70)
s Chapter III The Judicature
(sections 71 to 80)
In theory Australia has adopted
the doctrine of the separation of
powers. However, because some
members of the executive are
members of the legislature that
is, the ministers and the prime minister are
members of both the executive and the legislature
the separation of powers does not exist in its
pure form in Australia.
The key feature of the separation of powers in
Australia is that there is a clear distinction between
the judiciary and the other arms of government.
For a true democracy to operate, and in the
interests of justice, it is imperative that there be
no overlap between the judicial and non-judicial
arms of government. Protecting the independence
of the judiciary is one of the cornerstones of our
democracy. This becomes evident when a court
makes a decision that is not in accordance with
government policy.
Role of the High Court
Chapter III of the Australian Constitution is titled
The Judicature and it is within this chapter that the
judicial system of the Commonwealth is created.
Section 71 creates the High Court of Australia and
species that it must contain one Chief Justice
and at least two other judges. In September 2008,
Robert Shenton French was appointed the 12th
Chief Justice of the High Court.
The rst sitting of the High Court was on
6 October 1903, with three judges. In 1906 the
number of judges was increased to ve and in
1912 the number of judges was further increased
to its current number, seven.
Section 71 also allows the Commonwealth
Parliament to create other courts. Over time,
parliament has created the Federal Court, the
Family Court and the Federal Magistrates Court,
which all come under federal jurisdiction.
Section 72 outlines how High Court judges are
appointed, and as a result of a successful refer-
endum in 1977, species that they must retire
when they reach the age of 70. Most High Court
judges come from the bench of the state Supreme
Courts or the Federal Court. They are chosen by the
Governor-General in Council, which essentially
means they are chosen by the government of the
2/9/09 8:33:03 PM
 day. While most sittings are in Canberra, cases
can be heard in the other capital cities and even
by video link if it is warranted.
High Court jurisdiction
The High Court has both original and appellate
way in which the law maintains its relevance and
effectiveness.
When a case concerning the interpretation of
the Constitution comes before the High Court,
all seven judges hear and decide the matter. This
ensures a nal decision, even though decisions

The leg al s y s tem

jurisdiction. The original jurisdiction of the High need not be unanimous. The High Court is the original jurisdiction
Court is outlined in ss 75 and 76: highest court in the Australian judicial system, and the ability or power of
a court to hear a case
since 1986, there are no other avenues of appeal in the rst instance
Section 75
available. The Australia Act 1986 (Cth) severed mandamus
In all matters
the judicial link with England; appeals from the a court order
(i) arising under any treaty; compelling a
Australian judicial system no longer go to the Privy
(ii) affecting consuls or other representatives of government ofcial
Council in England for nal determination. or organisation to
other countries;
perform a particular
(iii) in which the Commonwealth, or a person suing task
or being sued on behalf of the Commonwealth, The impact of the prohibition
a court order that
is a party;
High Court: Interpreting forbids a lower level
(iv) between States, or between residents of differ-
ent States, or between a State and a resident of
the Constitution court from hearing or
taking further action in
another State; Invariably, the High Courts interpretation of the a case or matter

(v) in which a writ of mandamus or prohibition Constitution involves stipulating what areas the injunction
a court order stopping
or an injunction is sought against an ofcer of Commonwealth can legislate on and what areas an individual or
the Commonwealth; belong to the states. In association with such organisation from
performing a particular
the High Court shall have original jurisdiction. decisions, the High Court makes statements on
action
how each level of government can use its powers
Section 76
The Parliament may make laws conferring original
jurisdiction on the High Court in any matter
(i) arising under this Constitution, or involving its
interpretation;
(ii) arising under any laws made by the
Parliament;
(iii) of Admiralty and maritime jurisdiction;
(iv) relating to the same subject matter claimed
under the laws of different States.

Cases which come under original jurisdiction

begin in the High Court itself. Matters relating to
the interpretation of the Constitution fall under
s 76(i) and this role of the High Court has at times
had an enormous inuence on determining the
division of power between the states and the
Commonwealth.
As community conditions, standards and Figure 2.14 The High Court makes statements on how each level
attitudes evolve, they should be reected in the of government can use its powers, and outlines any limits on these
views expressed by the judiciary. This is another powers.

#HA PTERn3OURCESOFCONTEMPOR ARY! US TRAL I ANL AW 39

9780521734699part_01_3pp.indd 39 2/9/09 8:33:05 PM

 and outlines any limits on such powers. For
example, in the Tasmanian Dam case, the High
Court said in obiter dicta that the Commonwealth
can only use the external affairs power when
entering legitimate international treaties or con-
ventions. In other words, the Commonwealth
Government could not enter a treaty with another
country simply to gain legitimacy to override a
state law that it disagreed with. Initially High Court
decisions favoured the states, but over time a
broader approach to interpreting the Constitution
has seen a shift in the legislative balance between
the states and the Commonwealth. The following
cases are examples of the High Court exercising its
scal original jurisdiction to interpret the Constitution.
relating to government
nancial matters
South Australia v Commonwealth
(the First Uniform Tax case)
[1942] HCA 14
Section 51(ii) of the Constitution clearly gives the
Commonwealth the legislative power to collect
taxes. This was considered a concurrent power,
so both the Commonwealth and the states were
collecting income taxes until 1942. As a wartime
emergency measure, federal laws were introduced
which effectively made the Commonwealth the
only level of government able to collect income
taxes. In return, the Commonwealth agreed to
return to the states a grant of money about equal to
what they could no longer collect as income tax.
These grants are under s 96, which states that
the Parliament may grant nancial assistance
to any state on such terms and conditions as the
Parliament thinks t. The states believed the new
law would not only deny them nancial inde-
pendence, but would allow the Commonwealth to
dictate how they spent these grants.
The states did not like this proposal, as it would
make them reliant on the Commonwealth for the
bulk of their revenue. The states went to the High
Court, claiming the new law was aimed primarily
at denying them the right to collect income tax and
thus reducing their scal independence. The High
Court ruled that this was irrelevant; the proposed
law was constitutional and therefore valid.
Murphyores v The
Commonwealth (Fraser Island
case) [1976] HCA 20
Murphyores extracted certain minerals from sands
on Fraser Island under a lease granted by the
Queensland government. Such a lease was certain-
ly constitutionally valid, and the environmental
consequences were also a state concern.

Figure 2.15 &RASER)SLANDSITUATEDOFFTHESOUTH EASTCOASTOF1UEENSLANDISNOW7ORLD(ERITAGELISTED

40 C a m b r id g e L e g al S tu d ie s Pre limin ary

9780521734699part_01_3pp.indd 40 2/9/09 8:33:06 PM

 The Commonwealth government disagreed
with the project, partly on environmental grounds,
but had no constitutional power to simply shut
down the operations on Fraser Island. Instead it
relied on one of its legislative powers specically
s 51(i), over trade and commerce to prohibit
R ESEAR CH 2 . 2
1 Go to www.austlii.edu.au/au/cases/cth/HCA/ Write a
report on any two cases dealing with the Constitution,
outlining:
a the facts of the case
b which section of the Constitution the case refers to

The leg al s y s tem

export of the minerals. Murphyores relied on those c the High Courts decision
exports for its nancial viability, but under s 112 d the signicance of the decision.
of the Customs Act 1901 (Cth), the Commonwealth 2 Go to www.hcourt.gov.au/justices.html and list the
could prohibit the export of any goods from current members of the High Court.
Australia, either absolutely or unless certain con- 3 Go to www.hcourt.gov.au/about_06.html and
ditions were complied with. undertake a virtual tour of the High Court.
Murphyores went to the High Court, arguing that
the Commonwealth had acted outside its consti-
tutional power, but the High Court noted that, while
Appeals to the High
the effect of the use of s 51 may well be to override
a traditional state power, the Commonwealth
Court from lower courts
was within its rights to prohibit the exports of the Section 73 outlines the appellate jurisdiction of the
minerals. The motivation for the Commonwealths High Court. It stipulates that the High Court has
use of the power such as concern about the jurisdiction to hear and determine all judgments
R
environmental effects was irrelevant. from any cases emanating from: R at the beginning
s the High Court exercising its original of a case name
R v Brislan; Ex parte Williams jurisdiction refers to Regina
,ATINFOR@1UEEN 
[1935] HCA 78 s any Federal Court exercising federal Since Australia is
Dulcie Williams was convicted of operating an jurisdiction a constitutional
appliance for the purpose of receiving messages by s the Supreme Court of any state. monarchy this refers
to our head of state
wireless telegraphy without proper authorisation. Section 73 also states that the judgment of on whose behalf the
What she was maintaining was an ordinary the High Court in all such cases shall be nal prosecution case is
run. When the head
radio wireless broadcasting receiving set (that and conclusive. Currently, all appeal cases must
of state is a male, as
is, a radio). In the appeal, it was claimed that be granted special leave before the case will be WASTHECASEIN
the Commonwealth had acted ultra vires when heard by the High Court. Chapter 4 of the High the R stands for
Rex, which is Latin for
charging her under the Wireless Telegraphy Act Court Rules 2004, which became effective on
King.
1905, as the section under which she was charged 1 January 2005, deals with the practice and
ex parte
does not extend to radio sets and if it did, it was procedure of the High Court in its appellate ,ATIN @FROMONESIDE
invalid, because s 51(v) of the Constitution covers jurisdiction. in a case this means
the other side is absent
postal, telegraphic, telephonic and other like Generally, appeals relate to questions of
or unrepresented
services, but not broadcasting. law, or a matter that is of such signicance as
special leave
The High Court ruled that upon its true to warrant the attention of the High Court, or a where the High Court
interpretation the Commonwealth is able to dispute between the opinions of various courts grants approval for the
case to go before it on
legislate in respect of any such broadcasting that requires a nal adjudication. The workload of APPELLATEJURISDICTION
services. Consequently, it has been accepted that the High Court has built up over the decades and questions of law
the Commonwealth has the constitutional power there are numerous examples of the High Court a disputed legal
to make laws with respect to new developments deciding matters in its appellate jurisdiction. One contention that is left
FORTHEJUDGETODECIDE
in communications technology, such as television of the more famous cases is Osland v R, a 1998 EGWHETHERCERTAIN
and the internet. appeal from the Victorian Supreme Court. evidence is admissible)

#HA PTERn3OURCESOFCONTEMPOR ARY! US TRAL I ANL AW 41

9780521734699part_01_3pp.indd 41 2/9/09 8:33:07 PM

 ca s e s p a ce
Osland v R [1998] HCA 75
On 30 July 1991 Heather Osland
and her son David Albion planned
to get Frank Osland (Heathers
husband and Davids stepfather)
out of their lives. They rst dug
a grave, then drugged Frank
by putting sedatives in his
evening meal to induce sleep.
David Albion carried the plan
to nality after Frank went to
bed by fatally hitting him over
the head with an iron pipe in the
presence of Heather. Later, David
and Heather buried Frank in the
grave they had earlier prepared.
David and Heather did not
deny digging the hole (as they
called it) or giving Frank the
sedatives. They also did not deny
that David delivered the fatal
blow or that they buried Frank
in the hole. Heather reported
Frank as a missing person. It
wasnt until January 1995 that the
pair were charged with murder.
Both David and Heather
of grounds including the conduct sought a formal pardon from
of the trial, criminal complicity, the Governor of Victoria, in
evidence issues and causation an attempt to clear her name.
issues. When the pardon was refused,
The High Court also dealt with she sought access to documents
the issue of battered woman outlining the reasons why. In
syndrome (BWS) for the rst 2008, Heather Osland stated:
time in Australia. The High Court Domestic violence is a big issue
conrmed its admissibility into today, but in my day it was locked
evidence if it related to the in a cupboard.
particular facts of the case. The
High Court specied that BWS
was not a new discrete defence
but was applicable in Australia
where expert evidence is
received to describe common
features of the conduct in
abusive relationships and where
provocation and self defence are
put in issue.
The point was made, obiter
dictum, that abusive relationships
are not gender-specic. Figure 2.16 Changing social
As a result of this ruling, attitudes should be reected in
battered partner syndrome High Court rulings. Domestic
was accepted into the fabric of violence is no longer a hidden
relied on self-defence and
provocation to account for
their actions. The defence
provided detailed evidence of
extreme violent behaviour by
Frank over the years, and its
escalation in the days preceding
his death. David and Heather
believed there would be dire
consequences for them if Frank
realised he had been drugged.
Initially David was acquitted
and Heather was convicted of
murder and sentenced to 14
years imprisonment. Heather
appealed this decision on a range
42 C a m b r id g e L e g al S tu d ie s Pre limin ary
9780521734699part_01_3pp.indd 42
the criminal justice system; that
is, victims in such relationships
could use it where the facts did
not allow them to rely solely on
provocation or self-defence.
Ironically, the High Court ruled
that it did not apply in Oslands
case.
Justice Kirby noted that the
raising of battered partner
syndrome does not raise a
protective cloak over an accused
charged with murder.
Heather Osland spent nine-
and-a-half years in prison. She
was released in July 2005 but
CRIMEANDMOREJUSTOUTCOMES
are now possible, depending on
the facts of the case.
R ESEAR CH 2 . 3
1 Read Heather Oslands
story, in her own words,
at http://home.vicnet.net.
au/~rhog/story.htm
2 Conduct research using
the internet, then
compare and contrast
Said Morgans case
with Heather Oslands.
2/9/09 8:33:09 PM
 Judicial review
The system of judicial review involves review of
the actions of a government ofcial or department,
by a court of law. Generally the system of judicial
review involves investigating the legality of a
decision or action. The High Court exercises
judicial review whenever it makes a decision about
whether a particular law is constitutionally valid or
not. It has almost unlimited jurisdiction to review
Commonwealth administrative decisions.
The Federal Court undertakes most judicial
reviews by applying the Administrative Decisions
(Judicial Review) Act 1977 (Cth). It is important
to understand that this Act applies strict rules
and does not give the Federal Court the power to
Aborigi na l a n d To rres St ra it
I s l a n de r Peop l es c u s t o m a r y l aw s
The Indigenous cultures of Australia are the oldest
living cultures in the world. Over time, they have
been inuenced by other peoples, both those who
came to Australia to stay and those who visited
Australia for trade or other reasons, but did not stay.
Indigenous peoples also traded among themselves
and exchanged ideas, songs and dances. These
exchanges often took place at large ceremonial
gatherings where many people collected together.
The gatherings often occurred at a time and place
when there were plenty of particular foods.
Like all cultures, Indigenous Australian
cultures have changed and developed over time.
Colonisation of Australia brought rapid changes to
Indigenous society and dramatically affected the
land and the way people lived.
Prior to European settlement, only Indigenous
people populated Australia. When the First Fleet
sailed into Sydney Harbour in 1788, Aboriginal
people inhabited the whole of Australia and Torres
Strait Islanders lived on the islands between
Australia and what is now Papua New Guinea.
Australia had many different Aboriginal and
9780521734699part_01_3pp.indd 43
review a decision on its merits. Appeals can go to merits review
analysis of the facts
the High Court, by leave.
presented in a case,
A far more effective and efcient way for indi- and often the policy
viduals to appeal the decision of a government choices that led to the
decision
ofcial or body is through non-judicial review
natural justice
of administrative action in the Administrative
The leg al s y s tem
the body of principles
Appeals Tribunal, which has jurisdiction to review used to ensure the
the merits. Courts other than federal courts may FAIRNESSANDJUSTICEOF
the decision-making
also review decisions on the merits, if they have
procedures of courts;
statutory authority to do so. in Australia it generally
Generally, judicial review involves the court refers to the right to
present your case,
with appropriate jurisdiction investigating whether the right to freedom
a government ofcial or department has acted from bias by decision-
makers, and the right
ultra vires, or whether he, she or it has followed
to a decision based
the rules of natural justice (procedural fairness). on logically relevant
These concepts are covered in the HSC course. evidence
Torres Strait Islander communities, speaking
different languages and with various cultural
beliefs, practices and traditions. It was very
much a hunter-gatherer lifestyle, and one in
which gender played a role: men hunted the large
animals such as kangaroos, emus and turtles, and
the women and children hunted smaller animals
and collected fruits, berries and other plants.
On the coast, people relied on catching sh and
many types of shellsh. Not all Indigenous peoples
were nomadic; in many cases, groups would
stay in an area only for a certain period of time
because of seasonal variations and the availability
of food.
There is no single system of Aboriginal and
Torres Strait Islander law. The separate Indigenous
nations developed their own laws, but there were customary law
also common aspects among groups. All of these principles and
procedures that have
laws are spiritually based and closely linked to the
developed through
land. Aboriginal and Torres Strait Islander law is general usage
based on tradition, ritual and socially acceptable according to the
customs of a people
conduct. For this reason it is known as customary or nation, or groups of
law. nations
#HA PTERn3OURCESOFCONTEMPOR ARY! US TRAL I ANL AW 43
2/9/09 8:33:10 PM

terra nullius
,ATIN @LANDBELONGING
to no-one; the idea
that when the rst
Europeans came to
Australia the land was
owned by no-one
and thus was open to
settlement. It has been
JUDGEDLEGALLYINVALID
Dreamtime
also known as the
Dreaming, the
source of Indigenous
Australian customary
law
44 C a m b r id g e L e g al S tu d ie s Pre limin ary
9780521734699part_01_3pp.indd 44
A main difference between Aboriginal and
Torres Strait Islander customary law and the British
legal tradition can be seen in the area of land
ownership. The right to possess property is a key
principle of English and European law. However, to
many Aboriginal and Torres Strait Islander peoples,
land is sacred and cannot be owned. Instead people
are custodians of the land, looking after it for
future generations. This collective guardianship is
a key feature of customary law. However, the lack
of tangible ownership is the reason why the British
people felt that they could settle and impose British
property law in Australia. The British considered
Australia to be an unoccupied land, as they could
not see any signs of ownership, such as fences and
signs. The term that they used for this is terra
nullius, a Latin expression meaning empty land.
Although federal and state legislation and the
common law govern Australia, many Indigenous
people still follow their own customary law as
well.
Figure 2.17 Aboriginal rock paintings
The spiritual nature of
Indigenous customary law
The Dreaming is the basis of much Aboriginal
and Torres Strait Islander law. The Dreaming, also
known as the Dreamtime, is the history of Abori-
ginal and Torres Strait Islander peoples. It explains
how the land, animals, plants and sky were created
and has a very strong religious element.
Due to the secrecy that covers many of the
traditional laws and the cultural role played by
oral history, in contrast to written documentation,
it is hard to describe these laws and their links to
the Dreamtime. In addition, laws will differ from
community to community.
However, it can be agreed that law and religion
are very closely related, and that many laws have
evolved from the Dreamtime and are concerned
with the treatment of the land and those who live
on it.
Since 1788, many Indigenous people have lived
under two legal systems, the common law system
deriving from Britain and Indigenous customary
law. As more than two-thirds of Aboriginal and
Torres Strait Islanders live in remote areas, they
are more likely to use customary law to settle a
dispute.
Diversity of Indigenous
societies
Aboriginal and Torres Strait Islander law is tribal
and different tribes have their own variations of
customary law. Australia is a large land mass,
and as a result, different languages and modes of
conduct developed. However, the similarities in
customary law outweigh the differences.
For example, under traditional law, the majority
of Indigenous communities will generally see that
disputes are not restricted to individuals. The
resolution of the dispute, involving negotiation,
mediation and conciliation, will involve everyone
in the community. There are also offences that
2/9/09 8:33:11 PM
 are not recognised by non-customary law but are would be held during ceremonial times. Elders kinship
family relationships,
punishable under traditional law. Examples include and inuential members of the tribe might meet
including all extended
insulting an elder and the singing of sacred songs with the people in conict and use discussion and family relationships;
in public. These offences are common to most dialogue in an attempt to settle the dispute. an important part of
Indigenous cultures
Indigenous societies regardless of where they are Relationships and their maintenance are very
and values, which
located in Australia. important in Aboriginal and Torres Strait Islander dictate how all people

The leg al s y s tem

communities. It is through these relationships that in the group behave
toward each other
Ritual and oral traditions people are able to pass on and follow traditional
elders
laws. As a result, mediation has an important role
within Indigenous in dispute resolution.
older men and women
of recognised wisdom
societies and authority, who
are the keepers of
Aboriginal and Torres Strait Islander law is part Enforcement and traditional knowledge
within Indigenous
of everyday life. The law is an integral part of the
sanction within communities; they are
values, customs and ethics of Indigenous peoples
and has developed over many thousands of
Indigenous societies responsible for such
things as initiations
years. Most laws relate to marriage, child-rearing, It is expected that everyone in the community and the handing down
of punishments when
religion, family and kinship. Customary laws have will follow and reinforce the traditional laws. In community laws are
been passed from generation to generation by traditional societies, order is maintained through broken
word of mouth and through ritual. Stories, songs self-regulation and consensus among family mediation
a process in which two
and dances are used to help people remember the heads. Elders play an important role in guiding
parties are brought
laws of their group. Different people in the tribe decisions related to enforcing the law, intervening together for the
know different laws. For example, women have as necessary. purpose of discussing
and resolving a conict
knowledge of some laws that they pass on to girls Offences under traditional law may be breaches
sanction
at a certain age. of sacred law or offences against other persons or
a penalty or
During ceremonial meetings at communal property. The boundary between these categories punishment imposed
gathering places, laws are passed on by and is not always clear. Where sacred law has been for breaking the law

to the appropriate people and reinforced often
through dance and storytelling. Many of these
ceremonies are sacred and people from outside
the community are not permitted to participate
or watch. The stories have been handed down for
thousands of years and explain things such as the
creation of all things, why things happen, tribal
boundaries, family relationships, cultural practices
and forbidden acts.
broken, elders are often directly involved in
applying sanctions.
Sanctions vary from place to place. The relatives
of the wronged party, ceremonial leaders, or both
may be involved in the punishment, the form of
which may be determined through negotiations
and/or kinship relationships. For the most serious
offences, elders may need to ensure that the
punishment is appropriately carried out and
restraint is exercised.

Dispute resolution within Punishments range from ridicule and shaming

Indigenous societies
When customary laws are broken or disputes arise
within traditional Indigenous societies, the family
and the community are involved. Discussions or
meetings, rather than formal judicial processes,
to exile, spearing or death. Punishment by death
is much less frequent today than in the past,
possibly because of conict with Australian law.
The justication for physical punishments such as
spearings or beatings is sometimes expressed as to
restore balance for the parties and their families.

#HA PTERn3OURCESOFCONTEMPOR ARY! US TRAL I ANL AW 45

9780521734699part_01_3pp.indd 45 2/9/09 8:33:12 PM

 Figure 2.18 4HISMAPISJUSTONEREPRESENTATIONOFMANYOTHERMAPSOURCESTHATAREAVAILABLEFOR!BORIGINAL!USTRALIA5SING
PUBLISHEDRESOURCESAVAILABLEBETWEENnTHISMAPATTEMPTSTOREPRESENTALLTHELANGUAGEORTRIBALORNATIONGROUPS
of the Indigenous people of Australia. It indicates only the general location of larger groupings of people which may include
smaller groups such as clans, dialects or individual languages in a group. Boundaries are not intended to be exact. This map is
./435)4!",%&/253%)..!4)6%4)4,%!.$/4(%2,!.$#,!)-3$AVID2(ORTONCREATOR!BORIGINAL3TUDIES0RESS
!)!43)3AND!USLIG3INCLAIR+NIGHT-ERZ
mitigation
making the severity
The significance of land
of an offence or a and bodies of water to
sentence milder or less
severe
Indigenous societies
The idea of individual land ownership is alien to
Aboriginal and Torres Strait Islander thought. Being
a member of a tribe means that a person is able
to live on and use the resources of certain lands.
Thus, the land belongs to the group and loss of this
land means losing the tribes culture and history.
In the same way, Aboriginal and Torres Strait
46 C a m b r id g e L e g al S tu d ie s Pre limin ary
9780521734699part_01_3pp.indd 46
Islander people have links with the sea, lakes,
rivers and all bodies of water. These are not owned
by individuals, but are cared for by the group under
customary law.
Each group has distinct responsibilities govern-
ing the way that they look after their land and
bodies of water. These responsibilities are tied into
their traditional laws and the stories and rituals that
pass on these laws and responsibilities. Failure to
follow the traditional laws can be seen as a failure to
show respect for the land and traditional values.
2/9/09 8:33:18 PM
 The relevance of
customary law today
In the past twenty years there has been greater legal
recognition of Aboriginal and Torres Strait Islanders
rights as the traditional landholders of Australia.

The leg al s y s tem

Many aspects of customary law can be seen em-
bodied in Australian law today. The practice of
sustainable development, for example, is the basis
for current environmental laws. Conciliation and
mediation are increasingly used to resolve disputes
in criminal, consumer and employment law.
Customary laws are also sometimes taken
into account when an Aboriginal or Torres Strait
Islander is charged with a crime. For example,
where an act has been done because Aboriginal
customary law requires it, but the act amounts
to an offence under Australian law, this may be
raised in mitigation of the offence. Evidence that Figure 2.19 In Indigenous societies, land belongs to a group and not
a criminal offence was provoked by the victims to individuals.
breaking customary law may also be a mitigating
factor, and evidence that an offender is to receive
traditional punishment may be submitted in R EV I EW 2 . 5 R ESEAR C H 2 . 4
mitigation of a sentence. 1 Describe the importance Visit the website
In some places where there are a large number of tradition in Aboriginal www.dreamtime.net.au/
of people living a traditional lifestyle, elders will and Torres Strait Islander Go to Stories of the Dreaming
be consulted by those involved in maintaining and customary law. and complete the following
enforcing the law. 2 Explain the different activities:
However, there is much debate about the role relationships that 1 Explain the importance of the
of customary law in prosecuting, defending and Europeans and Aboriginal Dreaming to Aboriginal and
punishing offenders, and those in the legal system and Torres Strait Islanders Torres Strait Islander peoples.
are always wary of being accused of unfairness if have with the land. 2 Identify how Dreaming
everyone is not treated equally by the law. As a 3 Why is it not possible stories are passed on through
result legislatures have been reluctant to formally to refer to a uniform generations.
incorporate customary laws into Australian law. Aboriginal and Torres 3 Who has custody of these
Strait Islander customary stories?
law? 4 Discuss why many of these
4 What do the laws of stories are called sacred and
Indigenous Australian secret.
peoples have in common? 5 Look at the list of stories
5 Identify some ways in and their summaries and
which customary law is distinguish the common
relevant to the Australian themes of many of these
contemporary legal stories.
Figure 2.20 Land Council meeting of the elders, system. 6 Choose a story and briey tell
&ITZROY#ROSSING7!/CTOBER what it is about.

#HA PTERn3OURCESOFCONTEMPOR ARY! US TRAL I ANL AW 47

9780521734699part_01_3pp.indd 47 2/9/09 8:33:24 PM


domestic law
the law of a nation
opinio juris sive
necessitatis
,ATIN @OPINIONTHATAN
act is necessary by rule
of law: the principle
that for the practice of
a state to be customary
international law, the
state must believe
that international law
requires it
48 C a m b r id g e L e g al S tu d ie s Pre limin ary
9780521734699part_01_3pp.indd 48
International law
States and sovereignty:
The differences
between domestic and
international law
Each country has laws for its own people, known
as domestic law. A country can do this because
it is an autonomous (independent) state which has
sovereignty.
A state, in the legal sense, is an independent
entity that is recognised by other states on an
international basis. In order to be a state, a place
must have:
s a dened territory
s a permanent population
s an effective government
s the capacity to enter into international
negotiations.
Sovereignty means that the state has the
authority to make rules for its population and the
power to enforce these rules. The term state can
refer to a political division within a federation,
such as New South Wales or Tasmania, or (in an
international context) to an autonomous nation-
state.
International law governs the relationships
between nation-states. International law enables
nations to participate in trade and commerce
and provides mechanisms for the maintenance of
peace and security and the reduction of conict.
International law also covers fundamental human
rights, making it illegal to do such things as torture
political prisoners or commit genocide.
One of the main criticisms of international
law is that it lacks enforcement. There are many
examples around the world of nation-states
breaching international law as result of state
sovereignty, especially in the area of human rights.
International law could not prevent genocide in
Rwanda in the 1990s and has not prevented crimes
against humanity committed in the Darfur region
of Sudan since 2003.
In this sense, international law is different from
domestic law. Nation-states are powerful entities
and to force a nation-state to take a particular
course of action can have far-reaching implications
for the international community. As a result
international law relies on countries consenting to
cooperate in the enforcement of these laws.
A further point of difference is that law is
adhered to not simply because it can be enforced,
but because it is generally accepted by the whole
community. As the world is made up of diverse
cultures with different values, not all countries will
agree with all international laws and may ignore
a law if they feel that it is not in their national
interest to do so.
However, nation-states are interdependent
in many ways, and the recognition of this world
community provides one of the motivations for
following international law.
Sources of international
law
The main sources of international law are customs,
treaties, legal decisions and legal writings.
Customary international law
Customary international law is not contained
within a written document. Instead it is based on
long-established traditions or common practices
followed by many nations to the point that they are
accepted as being fair and right by the international
community. For example, customary international
law regulating war had been in existence for a long
time before the Hague and Geneva Conventions
explicitly outlined rules governing the conduct of
nations when in conict, such as the manner in
which prisoners of war and civilians were to be
treated.
This form of international law develops over
time, as it requires constant and uniform practice
of states in order to be accepted as law. It should
2/9/09 8:33:24 PM

be noted that even if there is constant and uniform
practice, it is still not considered law unless the
nation-states accept that the practice is binding
upon them. This principle is termed opinio juris
sive necessitatis (shortened to opinio juris).
Critics of customary international law point out
that it can be difcult to establish that it exists,
and the time lag involved in its being accepted as
law has rendered it secondary to treaties and con-
ventions as a source of international obligations.
The number of nations in existence since the end
of the First World War has also grown considerably
and hence getting consensus has become more
problematic. In addition, the rate of change in the
world today is rapid and at times requires a more
immediate response. For example, what is the
most effective means of limiting damage from the
economic crisis of 2008? Would customary law or
treaties be the more appropriate way of regulating
global nancial markets?
Most of the laws prohibiting crimes against
humanity originated as customary international
law. Important examples include the condem-
nation of slavery and genocide.
Treaties and declarations
Treaties are the most commonly used source
of international law. According to the Vienna
Convention on the Law of Treaties (1969), a
treaty is an international agreement concluded
between states in written form and governed by
the guidelines of international law. Another way
of looking at it is that a treaty is an agreement
between legal equals and may cover any sphere of
international relations between the parties.
Treaties can be either:
s bilateral between two nations, for example
the Agreement between the Republic of Indonesia
and Australia on the Framework for Security
Cooperation (the Lombok Treaty), concerning
their common security and respective national
security; or
s multilateral between many nations, for
example the Charter of the United Nations,
which established the United Nations (UN) and
9780521734699part_01_3pp.indd 49
ca s e s tu d y
Child executions
There are still a handful of countries in the world today
that execute offenders for crimes committed when
they were under the age of 18.
The leg al s y s tem
It is evident that child executions breach
international treaties. Article 6 of the International
Covenant on Civil and Political Rights (ICCPR) states
that sentence of death shall not be imposed for crimes
committed by persons below eighteen years of age.
Article 37 of the Convention on the Rights of the Child
(CROC) provides that neither capital punishment nor
life imprisonment without possibility of release shall
be imposed for offences committed by persons below
eighteen years of age.
In Roper v Simmons, 543 US 551 (2005), the US
Supreme Court held that executing offenders who
were minors when they committed the crime violates
the Eighth Amendment, which prohibits cruel and
unusual punishments. The court found that standards
of decency had evolved since 1989, when it had ruled
that the execution of 16- and 17-year-old offenders was
constitutional. There was now a national consensus that
death is disproportionate punishment for juveniles. In
addition to state legislation and practice, the court had
also considered international trends.
Bodies including the Inter-American Commission on
Human Rights and Amnesty International believe that
the exclusion of child offenders from the death penalty
is now so widely accepted in law and practice that it
has become a rule of customary international law.
its organs and agencies. Each country that is a
signatory to this treaty has a seat in the General
Assembly and participates in UN processes. treaty
an international
The more nations that sign a treaty, the more
agreement concluded
powerful that treaty will be. Treaties are used to between states
make specic laws and to control conduct and in written form
and governed by
cooperation between and within nations. A treaty
the guidelines of
may also establish an international organisation, international law;
as for example the Rome Statute of the International treaties may also
be referred to as
Criminal Court. There is no set way of making a conventions or
treaty, but most treaties are made through direct covenants.
#HA PTERn3OURCESOFCONTEMPOR ARY! US TRAL I ANL AW 49
2/9/09 8:33:25 PM

Figure 2.21 The International Criminal Court in
The Hague, The Netherlands
ratify
to formally conrm that
the country intends to
be bound by the treaty
declarations
formal statements
of a partys position
on a particular issue.
Declarations are not
legally binding under
international law.
United Nations
a world organisation
dedicated to world
peace and the
sovereignty and equality
of all its members
50 C a m b r id g e L e g al S tu d ie s Pre limin ary
9780521734699part_01_3pp.indd 50
negotiations between nations. If all parties involved
agree, the treaty will be signed. A document will
only become a treaty if all parties have the intention
of being bound by its provisions and obligations
at the time of signing. The treaty only becomes
binding on a nation when that nation raties it
that is, conrms that it intends to be bound.
For some countries, such as France, treaties
which that country has ratied automatically
become part of the domestic law. Other countries
require domestic legislation to be passed in order
for the treaty to be implemented into their law.
In other cases, whether domestic legislation is
required will depend on the type of treaty.
Declarations are also international instru-
ments, but they differ from treaties. Declarations
state and clarify the parties position on particular
issues, but do not impose legally binding pro-
visions that must be followed. A famous example
is the Universal Declaration of Human Rights. The
United Nations Commission on Human Rights
was established, following the Second World War
and the Holocaust, to draft the declaration the
rst universal statement on the basic principles
of human rights. Among its chief purposes was
to dene the meaning of the words fundamental
freedoms and human rights, which appear in the
UN Charter.
In 1948 the declaration was ratied by a procla-
mation by the United Nations General Assembly.
Forty-eight countries voted in favour of it, with
none voting against it and only eight abstaining.
The declaration is the foundation for two binding
UN human rights covenants: the International
Covenant on Civil and Political Rights (ICCPR) and
the International Covenant on Economic, Social
and Cultural Rights (ICESCR). Its principles are
contained in other treaties as well.
Legal decisions
The International Court of Justice (ICJ), which is
part of the United Nations, is the judicial body
that deals with disputes between states. Many
treaties designate the ICJ as the means of resolving
disputes that arise under the treaty.
Stare decisis does not apply to decisions of the
ICJ. According to Article 59 of the Statute of the
International Court of Justice, a decision of this court
only binds the parties to the particular dispute.
However, the court considers past rulings in its
decisions, and ICJ decisions may help to shape the
content of treaties.
There are other international courts and tribu-
nals whose judgments contribute to establishing
international law. The International Criminal Court
(ICC) and the European Court of Human Rights
(ECHR) are two examples. The ICC was set up
to prosecute the most serious crimes concerning
the worldwide community; the ECHR is a regional
2/9/09 8:33:29 PM
 court that rules on violations of the European
Convention on Human Rights. Specialised courts
have also been set up for particular purposes and
time-frames, such as war crimes arising from a
specic conict. Examples of this type of court are
the International Criminal Tribunal for the Former
Yugoslavia and the International Criminal Tribunal
for Rwanda.
Legal writings
Due to the changing international political land-
scape and the developing nature of international
law, the writings of respected international law-
yers, judges and academics have an important
part to play in guiding decision-making and treaty
formation. Along with judicial decisions, scholarly
writings are mentioned in Article 38(1)(d) of the
Statute of the ICJ as a means of determining the
I n t e r n a t i o n a l o r g a n i s a t io n s
The United Nations
The United Nations is the chief organisation
involved in international law. It was established
in 1945 by the Charter of the United Nations. At
its rst meetings, fty-one countries were repre-
sented; by 2009, there were 192 members. Its
main objectives are to maintain global peace
and security; to develop friendly relations among
nations based on respect for equal rights and
each nations right to govern its own political,
economic and social development; and to promote
cooperation in solving international problems. The
UN has been central to the protection of human
rights and to developing a legal framework to
address terrorism, drug trafcking, the clearing
of landmines, and protection of the environment.
It has also been active in concrete efforts to ght
disease, reduce poverty, provide emergency relief
in natural disasters, and many other humanitarian
operations.
9780521734699part_01_3pp.indd 51
rules of international law. Scholarly legal writings
may be drawn upon for the purpose of interpreting
treaties or determining their application in
international disputes.
Governments may also seek the advice of
experts on matters of international law. For
The leg al s y s tem
example, in 2007 the Sydney Panel of Independent
International Legal Experts provided advice to the
Australian government on whether the legality
of Japans scientic whaling program could be
challenged under the Antarctic Treaty System,
the International Convention for the Regulation of
Whaling (1946) and two other treaties. Although
commercial whaling has been prohibited since
1986 for all members of the International Whaling
Commission, Japan has relied on an exemption in
the whaling treaty that permits killing whales for
scientic research.
The UNs International Law Commission is
the body primarily responsible for codifying and
developing international law. The UN General
Assemblys Legal Committee (Sixth Committee)
receives the Commissions reports and considers
its recommendations. It may then organise a con-
ference to draw up a convention based on those
recommendations, that the member countries
vote upon.
Critics of the United Nations believe that reform
is necessary for its continued relevance. State
sovereignty often poses a challenge to the authority
of the UN, especially in situations involving peace
and security. It has also been suggested that the
structure of the Security Council should be re-
examined (this will be discussed later). As the UN has
no powers to make countries enact its resolutions
into domestic law or to follow a particular course of
action, it effectiveness is very much dependent on
the political will of nation-states.
The main organs of the UN are discussed below.
#HA PTERn3OURCESOFCONTEMPOR ARY! US TRAL I ANL AW 51
2/9/09 8:33:30 PM

Figure 2.22 The United Nations Headquarters in New York
General Assembly
the main body of the
United Nations, made
up of all of the member
nations
Security Council
the arm of the United
Nations responsible
for maintaining world
peace and security
52 C a m b r id g e L e g al S tu d ie s Pre limin ary
9780521734699part_01_3pp.indd 52
The General Assembly
The General Assembly is made up of repre-
sentatives from all member nations and is the
main forum for multilateral discussion on all
international matters covered by the UN Charter.
It discusses and makes recommendations on the
operation of the UN, on conicts between nations,
and on practical questions regarding political
cooperation, human rights and international law.
It appoints the non-permanent members of the
Security Council and oversees the UN budget. It has
established a number of committees, commissions
and working groups for particular purposes.
The General Assembly meets every year and
can meet more often if required.
The Security Council
The Security Council is the most powerful part
of the UN. It is the executive of the United Nations
and has the nal say about the security and
peacekeeping activities of the General Assembly.
The Security Council consists of ve permanent
members: the United Kingdom, the United States
of America, Russia, China and France (countries
that were victorious in the Second World War).
There are also ten non-permanent members who
serve for two years each. Australia has been a
member of the Security Council four times since
1945.
Under the Charter of the United Nations, it is the
Security Council that has primary responsibility
for maintaining international peace and security.
As such it is able to investigate disputes that could
lead to conict. It can issue economic sanctions
against nation-states to persuade them to change
their policies, or to prevent or stop aggression. It
can also send peacekeeping troops from member
states into areas where there is conict, to separate
opposing forces and to reduce tension. It may also
authorise collective military action.
Security Council Resolutions require a unan-
imous vote of all ve permanent members of the
Security Council. If one of the permanent members
votes against the resolution then it is not carried.
This is called the veto power and is considered
one of the fundamental weaknesses of the current
structure of the Security Council. For example,
in 2004, the Security Council held continuing
discussions to address the humanitarian crisis in
the Darfur region of Sudan. There, Arab militias
with Sudanese government backing were engaged
in a horric campaign of forcible relocation of
certain groups (ethnic cleansing) involving rape,
murder and torture. China and Russia, which
had signicant oil interests in Sudan, threatened
to veto any Security Council resolution involving
economic sanctions. Resolution 1564, passed
2/9/09 8:33:34 PM
 The leg al s y s tem
Figure 2.23 The UN General Assembly

in September, disappointed many human rights
groups due to the absence of stronger measures
such as an immediate oil embargo and targeted
sanctions against government ofcials.
A further criticism of the Security Council is
The other main organs of the United Nations are
the Economic and Social Council, the Trusteeship
Council, the Secretariat and the International
Court of Justice (discussed below).
l eg al l i nks

that having been set up over sixty years ago it does

not reect a broad spectrum of cultural values For more information on these
evident in the world today. For example, it could bodies go to www.un.org
be argued that the inclusion of a Muslim nation
as a permanent member would make it a more
representative body.

Figure 2.24 The UN Security Council controls the UN peacekeeping corps.

#HA PTERn3OURCESOFCONTEMPOR ARY! US TRAL I ANL AW 53

9780521734699part_01_3pp.indd 53 2/9/09 8:33:39 PM


jurisdiction
the power of a court to
rule on a question
Figure 2.25 The symbol of the
Red Cross
54 C a m b r id g e L e g al S tu d ie s Pre limin ary
9780521734699part_01_3pp.indd 54
The International Court of
Justice
The International Court of Justice (ICJ) is the
principal judicial organ of the United Nations. It
was established in 1945 and its main functions
are to settle disputes submitted to it by states
and to give advisory opinions on legal questions
submitted by the General Assembly, the Security
Council, or other bodies as permitted by the
General Assembly. The ICJ can only hear disputes
if the nations involved accept the jurisdiction of
the court.
There are two distinct types of cases upon
which the court may rule. The rst type is legal
disputes (contentious issues) between states,
on which the court produces
binding rulings. The second
type is advisory proceedings,
in which the General Assembly
or the Security Council
requests the courts opinion on
any legal question. Other UN
organs may request advisory
opinions, but only with
respect to their own activities.
Although advisory opinions do
not have to concern particular
controversies between states,
they often do.
Intergovernmental
organisations
Intergovernmental organisations (IGOs) are
organised groups of nation-states, established
to pursue mutual interests in a wide variety of
le g al li nk s
Go to www.libsci.sc.edu/bob/
IGOs.htm. This site lists all IGOs
in the world alphabetically,
with website addresses.
areas. Many IGOs are subsidiary agencies of the
UN; others have been formed to make collective
decisions about international issues such as
refugees, tariffs or wealth. The International
Labour Organization is a UN agency whose aim is
to ensure the safe and fair treatment of workers.
Regional organisations also play an impor-
tant role in international decision-making. For
example, the European Union is an economic
and political partnership of European nations that
have agreed to cooperate for the common good.
It has regulatory powers covering areas such as
human rights, the environment, economic policies
and trade.
Non-government
organisations
Non-government organisations (NGOs) are
associations based on common interests and aims,
which have no connection with any government.
They make contributions in a wide range of
areas, from world peace, disaster relief, and
environmental protection to promoting education
and alleviating poverty. They do this by informing
the public and lobbying governments to take action
on issues of concern. Examples of international
NGOs include the Red Cross, Greenpeace and
World Vision.
A well-known human rights NGO is Amnesty
International. It has an estimated 2.2 million mem-
bers and subscribers throughout the world. It is
independent of any national government: that is, it
does not rely on funding from any national govern-
ments. According to its ofcial site (www.amnesty.
org), Amnesty International takes action to:
s stop violence against women
s defend the rights and dignity of those trapped
in poverty
s abolish the death penalty
s oppose torture and combat terror with justice
s free prisoners of conscience
s protect the rights of refugees and migrants
s regulate the global arms trade.
2/9/09 8:33:41 PM
 Re l eva nce o f i nternat iona l law
to Au s t ra l ia n l aw
As discussed earlier, in some countries ratication treaties regulating the exploration and use of outer

The leg al s y s tem

of a treaty automatically makes it part of that
countrys domestic law. This is not the case in
Australia.
For some treaties, new legislation may be re-
quired to implement it in Australian law. For others,
existing federal or state/territory legislation is
sufcient (in other words, the terms of the conven-
tion are already being satised by domestic law).
To pass new legislation implementing a treaty,
the federal government may rely on the external
affairs power in s 51(xxix) of the Constitution. It
may also rely on other powers, for example the
trade and commerce power in s 51(i) if the subject
matter involves shipping.
International law does not dictate the way in
which Australia implements the obligations it has
under treaties. The preferred method of giving
effect to most treaty obligations is by incorporating
the actual text of the treaty provisions into domestic
legislation. For example, the Space Activities Act
1998 (Cth) contains provisions from several UN
space.
Treaties also inuence Australian law in the
development of the common law, in judicial review
of decisions, and in the judicial interpretation of
statutes.
Examples of human rights treaties that have
some of their provisions reected in state or
territory and/or federal legislation include:
s International Covenant on Civil and Political
Rights (ICCPR) see for example Human Rights
Act 2004 (ACT); Charter of Human Rights and
Responsibilities Act 2006 (Vic)
s Convention on the Rights of the Child (CROC)
see for example Family Law Act 1975 (Cth), in
particular s 67ZC
s Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW) Sex
Discrimination Act 1984 (Cth)
s Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment
(CAT) Crimes (Torture) Act 1988 (Cth).

REVIEW 2.6 R ESEAR CH 2 . 5 R ESEAR CH 2 . 6

1 Explain two different ways that the term
state can be used.
2 Identify what is meant by the term
international law. Outline the different
ways in which international law is made.
3 Why was the United Nations established?
4 Discuss the limitations of international law.
5 Describe the functions of the UN General
Assembly.
6 Explain the importance of the UN Security
Council.
7 Outline the role of the International Court
of Justice. Discuss its limitations.
8 Identify some organisations that inuence
international law.
1 Go to the United Nations
website: www.un.org.
Choose one of the issues that
the United Nations covers
(for example human rights).
2 Write a report about some of
the recent initiatives taken by
the UN in this area.
3 Outline any problems that
you see the UN facing as it
undertakes these initiatives.
Investigate adversarial and
inquisitorial legal systems. Write
a report that looks at the origins
and workings of adversarial
and inquisitorial legal systems.
Include a comparison of
the systems, looking at the
advantages and disadvantages
of each system. You might like
to look at Indonesia and recent
trials that have taken place with
respect to terrorist activity and
drug smuggling. Come to a
conclusion about which system
you think is better for Australia.

#HA PTERn3OURCESOFCONTEMPOR ARY! US TRAL I ANL AW 55

9780521734699part_01_3pp.indd 55 2/9/09 8:33:42 PM


s The Australian Constitution took shape during
the process of federation.
s The constitutional division of powers outlines
the responsibilities of the Commonwealth
and the states by reference to concurrent,
exclusive and residual powers.
s The High Court has the ultimate responsibility
for interpreting the Constitution.
s The High Court is the nal court of appeal
s Customary law still has relevance in
Australia today and elements of it have
been incorporated into dispute resolution
procedures.
s Contemporary Australian law is based on
English common law and adapted over time
to suit modern Australian society.
s The Australian Constitution sets out
the fundamental rules of Australian law.
Parliament has the power to make changes to
these laws as long as the correct processes
IN!USTRALIAITSAPPELLATEJURISDICTION BUTIT are followed. The government in power at the
ALSOHASORIGINALJURISDICTIONFORSOMEMATTERS time will inuence changes to the law.
notably constitutional law.
s The Constitution indicates how the separation
C hap te r s u m m a ry
of powers operates in Australia. It is
IMPORTANTTONOTETHATONLYTHEJUDICIARYIS
truly independent in Australia.
s The separation of powers ensures that
individual rights and the democratic system
are protected.
s The law in Australia, prior to European
settlement, was customary law based
on Aboriginal and Torres Strait Islander
traditions, rituals and acceptable conduct.
M ul t i p l e -c ho i c e q ues ti ons
s The doctrine of precedent is an element of
COMMONLAWWHICHREQUIRESJUDGESTOFOLLOW
rulings made in previous court cases, unless
they are inconsistent with a higher courts
decision or wrong in law.
s Australia is recognised internationally as a
sovereign state with the authority to make its
own laws.
s Australia also takes part in international
lawmaking through its membership of the
United Nations and by being a signatory of
international treaties.

1 Which section of the Constitution outlines
the legislative powers of the Commonwealth
Government?
a S
b S
c S
d S
2 On what grounds would it be unconstitutional
FORACURRENT$ISTRICT#OURTJUDGETOBE
elected to the House of Representatives?
a it offends the division of powers
b it offends the separation of powers
c it would be ultra vires
d it is not allowed under the referendum
PROVISIONSOFS
3 Australia does not follow the doctrine of
the separation of powers in its pure form
because:
a Australia does not have a president
b members of the executive and the
legislature are completely separate
c some members of the executive are also
members of the legislature
d Australia is still a monarchy
56 C a m b r id g e L e g al S tu d ie s Pre limin ary
9780521734699part_01_3pp.indd 56
4 2EFERRINGTOSWHICHOFTHEFOLLOWING
statements is true?
a Victoria would be able to produce its own
notes and coins.
b Queensland is able to pass laws to
allow migrants into the state to work in
agriculture.
c New South Wales is able to legislate to
legalise same-sex marriages.
d South Australia can build a rail line along
its southern coastline.
5 How would the High Court decide a case
where a state and the Commonwealth
exercising a concurrent power come into
conict?
a it would rule in favour of the state as its law
was passed rst
b ITWOULDAPPLYSANDRULEINFAVOUROF
the state
c ITWOULDAPPLYSANDRULEINFAVOUROF
the Commonwealth
d it would rule in favour of the
Commonwealth because it must act in
accordance with the Prime Ministers wishes
2/9/09 8:33:43 PM

MADELAW
C ha p t er s um m ary tasks
9780521734699part_01_3pp.indd 57
6 What is common law?
a parliament-made law
b JUDGE
9 Which of these statements about the
c the legal principles developed in England
and followed in Australia
d law that resolves disputes between two
individuals
7 When is a binding precedent set?
a when it is established by a higher court
b WHENAJUDGEHASDETERMINEDTHATTHEFACTS
of a case are similar to another case
c WHENAJUDGEACCEPTSTHEADVICEFROMA 10 Which of these features does the adversary
JUDGEINAHIGHERCOURT
d when parliament passes a law about a case
8 What is the main purpose of equity?
a TOACHIEVEJUSTICE
b to achieve fairness
c to achieve equality
d to achieve damages
1 %XPLAINANDJUSTIFYTHEDIFFERENT@CHECKS 7 Discuss the relationship between the
and balances provided by the Australian
Constitution.
2 Explain the difference between the division
of power and the separation of powers
under the Constitution.
3 Use examples to describe the various roles of
the High Court.
4 Class debate: If the Constitution were
to be rewritten today, what current state
government powers should go directly to the
federal government?
5 Explain the difference between common law
and statute law. Analyse their relationship.
6 Describe the distinguishing features of
Indigenous Australian law.
The leg al s y s tem
Security Council is true?
a ITISOPENFORALLCOUNTRIESTOJOIN
b it has the authority to send armed forces
into countries
c it must take the advice of the General
Assembly on matters involving
peacekeeping
d it has limited powers
system involve?
a THEUSEOFAJURYINALLCOURTCASES
b the payment of damages to the victim of
a crime
c JUDGESCOLLECTINGEVIDENCE
d each side presenting its case and testing
the oppositions evidence
government and the whole parliament when
it comes to making new laws or amending
current laws.
8 Evaluate the inuence of international law
on domestic law.
9 %XPLAINTHEJURISDICTIONOFEACHOFTHECOURTS
in New South Wales or the Australian Capital
Territory.
10 Critically analyse the ways that Indigenous
Australian law has been, and can be,
incorporated into the contemporary
Australian legal system.
#HA PTERn3OURCESOFCONTEMPOR ARY! US TRAL I ANL AW 57
2/9/09 8:33:43 PM
 CHAPTER 3
Classication of law
c hap ter ob j e cti ve s

In this chapter, students will:

s identify and apply legal concepts and terminology
s describe the key features and operation of the
Australian and international legal systems
s discuss the effectiveness of the legal system in
dealing with relevant issues
s explain the relationship between the legal system
and society
s describe the role of the law in conict resolution and
its ability to respond to and initiate change
s locate, select and organise legal information from a
variety of sources
s communicate legal information by using well-
structured responses.
k ey t er m s / v o c ab u l a r y

balance of probabilities plaintiff

beyond reasonable doubt pleadings
burden of proof prima facie
CIVILJURISDICTION private law
credibility prosecutor
cross-examination public law
damages specic performance
defendant standard of proof
examination in chief the state
INJUNCTION
intellectual property
JURY

58 C a m b r id g e L e g al S tu d ie s Pre limin ary

9780521734699part_01_3pp.indd 58 2/9/09 8:33:45 PM

 The leg al s y s tem
rel ev ant l aw odd l a w

IM PORTA N T L EGIS L AT ION 5NDERS!OFTHECrimes Act 1900.37 

Australian Constitution it is an offence to steal rocks, stones or similar
Crimes Act 1900 .37 material. This section states:
Crimes Act 1900 !#4
Stealing of rock, stone etc.
Criminal Code 2002 !#4
Whosoever steals:
Judiciary Act 1903 #TH
A ANYROCKORROCKS
B ANYSTONEORSTONESOR
SIGNIFIC AN T C AS ES C ANYGRAVELSOILSANDORCLAY
Donoghue v Stevenson !#
Roach v Electoral Commissioner;=(#! that is or are in, on or under, or forms or form
part of any land shall, on conviction by a Local
#OURTBELIABLETOIMPRISONMENTFORMONTHS
ORTOPAYAlNEOFPENALTYUNITSORBOTH

#HA PTERn#L AS S I FI CATI ONOFL AW 59

9780521734699part_01_3pp.indd 59 2/9/09 8:33:46 PM


public law
the body of law
governing relationships
between individuals
and the state, and the
structure and operation
of government
Pub l i c l a w a n d p r i va t e l a w
There are many different ways of classifying law.
One is to separate it into two main categories:
public law and private law.
Public law is the body of law dealing with
relationships between individuals and the state,
and with the structure and operation of the
government.
Criminal law
Criminal law is the body of rules under which
certain acts or omissions are punished by the
state. Its function is to maintain public safety and
order for the whole of society. The state has this
responsibility because an offence is seen as being
against the whole community even if only one
ITSELFEGCRIMINAL Private law is the body of law governing rela- individual is affected. This is because the offence
administrative, and tionships between individuals that is, individual is seen to damage the moral order of society.
constitutional law)
citizens but also organisations and companies. In Australia, criminal law is the responsibility
private law
Private law is also referred to as civil law. of each state. The common law plays a signicant
the body of law
governing relationships role in Australian jurisdictions including New South
between individuals Wales and the ACT, but each state and territory also
EGCONTRACTLAWTORTS Public law has its own legislation to cover criminal behaviour.
family law and property
law) Public law deals with the powers and obligations
of government and citizens, and the relationships
between persons and the state. Three main areas
of public law are criminal, administrative, and
constitutional law.
Figure 3.1 The Supreme Court of New South Wales
l e ga l l i nk s
Go the following web pages to view the
Crimes Act 1900 (NSW), the Crimes Act
1900 (ACT) and the Criminal Code 2002
(ACT) in full:
60 C a m b r id g e L e g al S tu d ie s Pre limin ary
9780521734699part_01_3pp.indd 60
The actions and punishments covered by these
laws are the same, or similar, in all states and terri-
tories as it would be too confusing for everyone
involved if what was a major crime in one state
was not in another. The criminal justice systems of
the states and territories are also similar.
In New South Wales, the main criminal statute
is the Crimes Act 1900 (NSW). The ACT has both its
own Crimes Act 1900 (ACT) and the Criminal Code
2002 (ACT). The Code is the result of the ACTs
adoption of provisions of the Model Criminal Code, a
cooperative project between the Commonwealth,
state and territory governments to develop more
uniform legislation.
Parts of these Acts have been reviewed
and changed to reect changes in society. For
example, the Crimes Acts have been amended to
cover automobile and computer crimes. As with
www.austlii.edu.au/au/legis/nsw/consol_
act/ca190082/
www.austlii.edu.au/au/legis/act/
consol_act/ca190082/
www.austlii.edu.au/au/legis/act/
consol_act/cc200294/
2/9/09 8:33:48 PM
 all areas of law, sections of Acts will always lag
behind changes in society due to the speed of
change and the procedures and processes involved
in changing laws.
Administrative law
Administrative law is the area of law that deals with
government powers and decisions made by gov-
ernment bodies. It is based on the English model.
Administrative law exists to ensure the account-
ability of the administrative actions and decisions
made by the government and its departments.
Administrative law cannot be used to challenge
all government dealings, for example policy deci-
sions and the giving of advice. An example of a
decision that cannot be challenged is an increase
in taxes. However, the actions of the departments
that are set up to administer these policy decisions
can be challenged under administrative law. In
this way, a taxpayer could challenge his or her tax
assessment under administrative law, on certain
specic grounds.
In Australia, administrative law is complicated
by the different levels of government. An individual
must be aware of which government body was
responsible for the action before he or she can
challenge it.
There are three ways in which a person can
seek a review of a decision made by a government
agency. The avenue taken depends upon the
nature of the complaint and whether the complaint
is made against a federal or state decision. These
avenues are:
s Internal review occurs when a decision made
by a member or ofcer of an agency is reviewed
by another person in the agency. It can be
sought by requesting the reconsideration of a
decision or by following set procedures where
more formal mechanisms exist.
s External review is review of a decision by a
person or body outside the agency that made
the decision. This is a more formal system which
provides review of the merits of a decision.
s Judicial review of administrative decisions can
be provided only by courts, and their role is
9780521734699part_01_3pp.indd 61
limited to deciding whether or not the decision
was lawfully, fairly and rationally made. At the
federal level, the Australian Constitution gives
the High Court jurisdiction to give specied
remedies against unlawful action by federal
government ofcers. The parliament has con-
The leg al s y s tem
ferred a similar jurisdiction on the Federal Court
under section 39B of the Judiciary Act 1903
(Cth).
Government departments have information
about appealing against decisions on their websites.
In NSW, appeals against government decisions are
heard by the Administrative Decisions Tribunal
(ADT), and in the ACT, by the ACT Civil and
Administrative Tribunal.
l eg al l i nk s
Information on the NSW
Administrative Decisions Tribunal
is at:
www.lawlink.nsw.gov.au/lawlink/
adt/ll_adt.nsf/pages/adt_index
Information on the ACT Civil and
Administrative Tribunal is at:
www.acat.act.gov.au/
category.php?id=20
Constitutional law
Constitutional law is the branch of public law that
focuses on the rules governing the executive,
legislative and judicial functions of government
that is, the Constitution. The Australian
Constitution divides legislative power between
the Commonwealth and the states by conferring
on the Commonwealth Parliament the power to
make laws with respect to particular topics. It
also species that when there are inconsistencies
between state and Commonwealth legislation, the
Commonwealth will prevail.
If a law violates the rules contained in the
Australian Constitution, the case must go to the
High Court of Australia. The High Court has the role
of deciding cases of special federal signicance,
#HA PTERn#L AS S I FI CATI ONOFL AW 61
2/9/09 8:33:49 PM
 including challenges to the constitutional validity
of laws. Procedures in this court are similar to
those of other courts in the sense that they are
very formal and the two sides argue their cases,
usually represented by highly respected barristers.
However, they differ in the following ways:
s Cases are heard by one or more judges (called
Justices). Cases involving interpretation of the
Constitution and those of great public impor-
tance are heard by all seven Justices.
s Decisions are not given at the end of the
hearing; they are only delivered after much
deliberation.
s Each justice makes his or her own decision on
cases. When a decision is not unanimous, the
majority decision will prevail.
s Decisions of the High Court are binding on all
courts in Australia.
A recent case that challenged the constitu-
tionality of a statute was that of Roach v Electoral
civil jurisdiction
the power of a court to
hear matters involving
disputes between
private individuals, and
to award civil remedies
damages
monetary
compensation for harm
or loss suffered
Figure 3.2 The Australian Constitution
62 C a m b r id g e L e g al S tu d ie s Pre limin ary
9780521734699part_01_3pp.indd 62
Commissioner [2007] HCA 43. It concerned
the disqualication of full-time prisoners from
voting in Commonwealth elections. The history
behind this case was that prior to amendment
of the Commonwealth Electoral Act 1918 in 2006,
prisoners serving a sentence of less than three
years were entitled to vote in elections. The 2006
amendments took away the right to vote of any
prisoner serving a sentence.
Vickie Lee Roach, a serving prisoner, took the
case to the High Court on the ground that the
Act as amended was unconstitutional. Her team
of lawyers argued that the new law breached
her implied constitutional freedoms of political
participation and political communication. After
hearing the case, the majority of the court found
the amended law to be invalid, but accepted
the validity of the previous law, which banned
prisoners from voting if they were serving a term
of three years or more.
Private law
The aim of private law is to regulate relationships
between individual persons, companies and
organisations. Private rights are protected by both
statute and common law. When an individual
brings a court action against another individual for
infringement of his or her private rights, it must
be in a court exercising civil jurisdiction and the
action is known as a civil proceeding. Three major
areas of civil law are contract law, tort law and
property law.
Contract law
A contract is an agreement, or promise, between
two or more parties that is recognised by law.
Contract law is concerned with the recognition of
this agreement and the actions taken to enforce it.
When one of the parties to a contract believes
that all or part of the contract has been breached,
he or she can bring a legal action in a civil court.
Damages are usually the common law remedy
available for breach of contract. Damages are
viewed as a substitute for performance of the
2/9/09 8:33:58 PM
 contract that is, for the other party doing what he
or she agreed to do by signing the contract. Thus
they are designed to put the plaintiff in the posi-
tion he or she would have been in if the contract
had been performed properly, that is, to compen-
sate him or her. The amount of compensatory

The leg al s y s tem

damages is intended simply to provide the plaintiff
with the benets that he or she would have had
if the defendant had kept the agreement, not to
punish the defendant.
The plaintiff may also seek one of the following
remedies:
s An injunction this is an order usually direct-
ing a party not to do something, e.g. ordering
the defendant to cease the conduct breaching
the contract. In some cases, an injunction may
require the party to do something, e.g. requiring
a telephone customer to remove wiring that he
or she installed, and that was not authorised by
the telephone company.
s Specic performance this is an order Figure 3.3 A mortgage contract being signed
directing the breaching party to perform the
contract in the way specied by the court. It will
only be ordered if the amount of damages does plaintiff to the position he or she was in before the plaintiff
the person who
not provide adequate compensation. wrong was committed.
initiates a civil action
In each instance, civil court case procedures All torts entitle the alleged victim to take legal
injunction
are followed, where the offended party must argue action against the alleged perpetrator in a civil a court order requiring
that a breach of contract has occurred. The level of court and claim compensation. However, court an individual or
organisation to
court where the case is heard depends on the level action can be expensive, in terms of both time and
PERFORMORMORE
of damages sought. money, so it is important that plaintiffs take this commonly) not to
into account when deciding whether the wrong- perform a particular
action
Tort law doing is worth bringing a case.
specic performance
Torts are civil wrongs. The word tort comes There are many different types of torts, all of an order requiring the
from the French word meaning wrong. Tort cases which are regulated by statute as well as common defendant to perform
deal with situations in which someone has done law. They arise from different types of activity and the acts that the
contract obliged him or
something to interfere with the rights of someone include: her to perform
else. Another way of putting it is that a tort occurs s negligence
when someone breaches or fails to full a duty s nuisance public and private
that he or she owes to someone. s trespass to land
Breach of contract is also a civil wrong, but the s false imprisonment
difference between tort and agreements is that s defamation.
with agreements there is already a legal relation- The case that established the modern tort of
ship between the parties at the time of the wrong, negligence and that clearly shows the difference
whereas in torts there is no legal relationship prior between tort law and contract law is the snail in
to the wrong. The law of torts tries to restore the the bottle case.

#HA PTERn#L AS S I FI CATI ONOFL AW 63

9780521734699part_01_3pp.indd 63 2/9/09 8:34:02 PM

 ca s e s p a ce
Donoghue v Stevenson (1932) AC 562
Figure 3.4 A decomposing snail found in ginger ale formed the basis
of litigaton.
This case was an appeal by May
Donoghue, the plaintiff in the
original decision. The defendants
appeal had succeeded; Mrs
Donoghue then appealed to the
House of Lords.
Mrs Donoghue was bought
some ginger beer by a friend in
the town of Paisley, Scotland.
The ginger beer was in a dark
glass bottle which prevented
Mrs Donoghue from seeing the
contents. Some ginger beer
was poured into a glass for her,
which she drank. Her friend then
proceeded to pour the rest of the
ginger beer into Mrs Donoghues
glass and it was then that a
decomposing snail came out of
the bottle. This made her feel
quite ill, and later she also suffered
from severe gastroenteritis. Mrs
Donoghue sued David Stevenson
(the respondent), who was the
manufacturer of the ginger beer.
Mrs Donoghue alleged that
Stevenson had failed in his duty of
care to provide:
s a system of working his business
which would prevent snails
64 C a m b r id g e L e g al S tu d ie s Pre limin ary
9780521734699part_01_3pp.indd 64
from getting into ginger beer
bottles, and
s an efcient system of inspection
of the bottles before they were
sold to the consumer, including
clear bottles that would make it
easier to inspect.
The court held that a
manufacturer is under a legal duty
to the consumer to take reasonable
care that the article will not cause
injury to health.
Lord Atkin, one of the presiding
judges, referred to the precedent
case of Heaven v Pender (1883) 11
QBD 503, which established that
under certain circumstances, one
man may owe a duty to another,
even though there is no contract
between them. He went further
than the narrow decision in Heaven,
however, citing obiter dicta of the
dissenting judge, Brett MR, who
extended the notion of a duty of
care to anyone in a position where
failing to use care and skill in his
conduct would cause danger of
injury.
Until Donoghue v Stevenson,
individuals had no rights against
suppliers with whom they didnt
have a contract. As May Donoghue
did not actually buy the ginger
beer and thus had no contractual
relationship with the manufacturer,
in normal circumstances she would
not have been able to sue.
Donoghue v Stevenson became
a landmark decision and formed
the basis of the tort of negligence
worldwide, not only because of
the judgment relating to non-
contractual duty of care, but also
because of Lord Atkins neighbour
principle:
[T]here must be, and is, some
general conception of relations
giving rise to a duty of care, of
which the particular cases found
in the books are but instances ...
The rule that you are to love your
neighbour becomes, in law, you
must not injure your neighbour;
and the lawyers question: Who
is my neighbour? receives a
restricted reply. You must take
reasonable care to avoid acts
or omissions which you can
reasonably foresee would be likely
to injure your neighbour. Who,
then, in law, is my neighbour? The
answer seems to be persons who
are so closely and directly affected
by my act that I ought reasonably
to have them in contemplation
as being so affected when I am
directing my mind to the acts
or omissions that are called in
question.
2/9/09 8:34:06 PM
 intellectual property
intangible property
that has commercial
value and can be
protected by law,
e.g. text, images,
designs, inventions and

The leg al s y s tem

computer programs
prosecutor
the person formally
Figure 3.5 One of the most important types of property dealt with under property law is real
conducting legal
property, that is, the actual land and anything attached to that land. proceedings against
someone accused of
a criminal offence; the
Property law One of the most important types of property prosecutor acts on
Property law is a wide area of law that governs dealt with under property law is real property. Real behalf of the state or
the Crown
relations involving things and interests that can property is the actual land and anything attached
defendant
be owned and that have a commercial value. to that land, as opposed to personal property,
the person who is
These include objects capable of being possessed which includes everything else. accused of a crime
physically, but also less tangible interests, such Property rights are legal rights to possess, use or or a civil wrong; in
a criminal case, the
as shares in a company. The products of creative benet from something. A violation of such rights defendant is also
effort, including text, images, designs, inventions, often involves breaking the terms of a contract. referred to as the
accused
computer programs and other intangible objects, Legal action for breaches of property law can take
the state
are protected by statute and common law place in either the criminal court or civil court,
a term that is used
governing intellectual property. depending on the offending action. to refer to the
government and the
people that it governs
onus
the burden or duty of
C r i m i n a l a n d c i v i l cou r t proving the case to the
court
p rocedu res standard of proof
the degree or level
of proof required in
There are many differences between criminal and necessary to be familiar with some of these key order for the plaintiff
INACIVILCASE OR
civil law court cases. Before discussing criminal differences and relevant terminology.
THEPROSECUTIONINA
and civil court procedures in more depth, it is criminal case) to prove
their case
beyond reasonable
Key differences between criminal and civil court proceedings doubt
s Criminal cases feature a prosecutor and a s Civil cases feature a plaintiff and a the standard of proof
required in a criminal
defendant. defendant.
case in order for the
s In criminal cases, the state brings the case s In civil cases, an individual or organisation PROSECUTIONTHESTATE
to court. brings the case to court. to obtain a conviction
against the accused
s In criminal cases, the onus is on the s In civil cases, the onus is on the plaintiff to
balance of
prosecutor to prove the case. prove the case.
probabilities
s In criminal cases, the standard of proof s In civil cases, the standard of proof a the standard of proof
that applies is that the prosecutor must plaintiff must meet is the balance of required in a civil case
probabilities4HISISALOWERSTANDARDOF in order for a plaintiff
prove the case beyond reasonable doubt.
to succeed in proving
4HISISAHIGHERSTANDARDOFPROOFTHANIS proof than is needed in criminal cases.)
the case against the
required in civil cases.) defendant

#HA PTERn#L AS S I FI CATI ONOFL AW 65

9780521734699part_01_3pp.indd 65 2/9/09 8:34:09 PM


jury
a group of people
who listen to all of the
evidence in a court
case and decide on the
verdict
Figure 3.6 *URORSSITINTHECOURTROOMSJURYBOX
66 C a m b r id g e L e g al S tu d ie s Pre limin ary
9780521734699part_01_3pp.indd 66
Criminal and civil law can overlap. The victim
of a crime whose case has been heard in criminal
court may also wish to take the case to civil court
to obtain compensation for injuries suffered as a
result of the defendants conduct. In both cases,
however, the legal outcome will be decided accord-
ing to the adversarial system of trial. This means
a judge, and sometimes a jury, hears both sides
of the case as put forward by representatives of
the parties involved. The judge considers the
evidence and makes a decision in favour of one
of the parties.
REVIEW 3.1
1 Distinguish between public and private law.
2 Outline the differences and similarities
between civil and criminal court cases.
3 Outline the role of administrative law.
How can an administrative decision of a
government body be challenged?
4 Which courts can decide questions of
constitutional law? What types of questions
are in this category?
5 What types of remedies can be sought by
the plaintiff if a contract is breached?
6 What is meant by tort law?
7 What is property and what is property law
concerned with?
has committed an indictable offence.
Criminal procedure
Criminal law proceedings are the legal processes
in which a person accused of a crime is prosecuted
to secure a conviction and punishment, such as
a ne or imprisonment. The two main types of
criminal hearings are summary hearings and
trial by jury. The type of hearing depends upon
the seriousness of the offence that the accused is
alleged to have committed, that is, whether it is a
summary or indictable offence.
Summary offences are relatively minor and
include certain trafc offences and offensive
behaviour. They are heard and decided by a magis-
trate or judge without a jury.
An indictable offence is a serious criminal
offence and may be heard by a judge and a jury.
Crimes in this category include murder, sexual
assault and malicious wounding.
Legislation has been passed to allow some some
indictable offences to be prosecuted summarily
(that is, as summary proceedings) in the Local
Court (NSW) or Magistrates Court (ACT).
For summary matters in New South Wales, the
police themselves may prosecute the case in the
Local Court. Not only do the police investigate
crimes and arrest suspects, a specially trained
police ofcer called the police prosecutor repre-
sents the state in court. More serious crimes
are prosecuted by the Ofce of the Director of
Public Prosecutions (DPP). In the ACT, the DPP is
responsible for prosecuting all criminal matters in
both the Magistrates Court and Supreme Court.
The accused, known as the defendant, will
usually employ a lawyer to represent him or her.
Some people may choose to represent themselves,
depending on the seriousness of the charges. The
case that the accused puts forward is called the
defence.
Before an accused person can be tried for an
indictable offence, there must be a committal
hearing. To have the matter put before a jury the
prosecutor must convince the magistrate that
there is a sufciently strong case that the accused
2/9/09 8:34:11 PM
 Trials of indictable matters take place in the
District or Supreme Court in NSW, depending on
the seriousness of the offence, and in the Supreme
Court in the ACT. Criminal trials are heard before a
jury of twelve people, unless the accused elects to
have his or her case heard before a judge alone.
The jurys job is to consider whether there is
enough evidence to convict the accused. The judge
advises the jury and deals with questions of law.
The jury will consider the evidence provided in a
court case and decide on issues of fact on the basis
of this evidence. In both NSW and the ACT, the
jury must come to a unanimous verdict that is,
they must all agree.
Criminal trial process
At the start of the trial, the indictment is read to
the accused, who may plead guilty or not guilty.
The prosecution begins with an opening
address, setting out the facts of the case and
the evidence that will be presented to prove the
defendants guilt.
Each side then calls witnesses and examines
them by asking them questions. This is called
examination in chief. Its purpose, for the
prosecution, is to establish facts to prove the case.
For the defence, its purpose is to disprove the
prosecutions case.
Cross-examination allows each side to
examine the witnesses of its opponent, in order
to call into question the opponents version of the
facts, or a witnesss credibility.
After all of the evidence has been given, each
side gives a closing address to the jury. This nal
speech draws together the evidence and provides
an argument for that sides position. It may also
answer arguments that could be made by the
other side. The judge will then sum up the case
and instruct the jury on how to go about the task
of reaching a verdict. The jury goes to another
room to deliberate until a verdict is reached. If the
jury returns a verdict of guilty, sentencing occurs
either at that time, or at a later date determined
by the court.
9780521734699part_01_3pp.indd 67
Burden and standard of proof in examination in chief
questioning a witness,
criminal cases by the barrister who
In criminal cases, the defendant is presumed to be called that witness
innocent until proven guilty. The burden of proof cross-examination
(the onus) rests on the prosecution, which must questioning a witness
called by the other
prove beyond reasonable doubt that the accused
The leg al s y s tem
side, to produce
has committed the offence with which he or she information relevant
is charged. The prosecution needs to convince to ones case or to
call the witnesss
the jury that the crime was committed by the credibility into
defendant for the defendant to be found guilty. It is question
the job of the defence to disprove the prosecutions credibility
trustworthiness,
case and provide evidence to show the innocence
reliability, believability
of their client.
burden of proof
The standard of proof refers to the level of the responsibility of a
proof required in order for the party that has the party to prove a case
in court
burden of proof to succeed. In a criminal case, the
standard of proof
standard is beyond reasonable doubt. This means
the level of proof
that to return a guilty verdict, no jury member can required in order the
have any doubt that the crime was committed by party that has the
burden of proof to
the accused.
succeed
Hearings in the different courts
L O C A L A ND M A G I STRATE S C O U RTS
Most criminal cases are dealt with by the Local
or Magistrates Court. These courts do not make
use of juries and judges. Rather, a magistrate
makes the decision. Matters are generally handled
quickly, efciently and cost-effectively.
In the Local and Magistrates Courts, the law-
yers and magistrates do not wear traditional
robes and solicitors carry out most legal work.
The proceedings are less formal than the higher
courts. Many defendants choose to represent
themselves and so argue their case without the
help of a lawyer.
C O RO NI A L I NQU ESTS
A coronial inquest will occur when there is
an unnatural death or an unexplained re or
explosion. The proceedings are more inquisitorial
than normal court proceedings, as the coroners
ofce will gather all of the evidence. If there is
evidence that a serious crime has been committed,
the coroner will recommend that an indictment be
#HA PTERn#L AS S I FI CATI ONOFL AW 67
2/9/09 8:34:11 PM

Figure 3.7 The Childrens Court on Lonsdale Street
in Melbourne, Victoria
REVIEW 3.2
1 Explain the differences
between an indictable offence
and a summary offence.
2 What is the task of the
prosecution in a criminal trial?
How does it go about this
task?
3 Compare and contrast the
roles of the prosecution and
the defence in a criminal trial.
4 Describe the role played by a
jury. How are they selected?
5 What is a coronial inquest?
6 Outline the ways in which
children charged with a crime
are protected. Account for
this protection. Do you think
this is reasonable?
68 C a m b r id g e L e g al S tu d ie s Pre limin ary
9780521734699part_01_3pp.indd 68
RESEAR CH 3 . 1
1 Go to the following site: www.
lawlink.nsw.gov.au
2 Who hosts this site? Why was
it set up?
3 Go to Courts and Tribunals.
Imagine that you are doing
work experience at the local
primary school and have
to teach Year 6 about the
Local Court. Develop an
internet activity based on the
information on the website.
issued and the accused will be tried in a court of
law in the usual way.
C H I L DRENS C O U RT H E A RI NG S
Children charged with a crime are treated differ-
ently by the court system, as immature persons are
regarded as having a different degree of respon-
sibility from adults. Conviction by a Childrens
Court, even for a serious crime, has less severe
consequences than conviction in an ordinary
criminal court. Most charges against people under
18 years of age are heard in a special Childrens
Court hearing. They are usually heard before a
magistrate who specialises in childrens cases and
takes reasonable measures to ensure that the child
understands the proceedings.
The case is heard in a closed court and the public
is not allowed to attend. If journalists are present,
they are not permitted to publish the identity of
the offender. In New South Wales, if the child is
under 16 years of age, no conviction is recorded.
Civil procedure
Civil proceedings are court actions that are the
result of disputes between individuals. Unlike crim-
inal proceedings, they are initiated by individuals
or organisations, rather than the state, and they
deal with such matters as breach of contract,
property disputes and negligence. The person who
initiates the civil action, called the plaintiff, will
start proceedings by issuing a statement of claim
or a summons (in the ACT, called an originating
application) to the party who has committed the
breach or the wrong. This party is called the defen-
dant and may be an individual or an organisation.
The process in a civil claim
The statement of claim outlines the facts of the
dispute and the parties involved in the dispute.
There are rules for the way in which it must be
served on the defendant, which must be followed
strictly. As discussed in Chapter 2, the court that
has jurisdiction to decide a civil matter will depend
on the type of claim and the monetary amount
involved.
2/9/09 8:34:13 PM
 The documents that the defendant and plaintiff
will exchange and le with the court, which set
out the issues that are to be decided by the court,
are called pleadings. The statement of claim or
originating application will therefore be the rst
pleading in the sequence of the case. There may be
many pleadings, alternating between the parties,
over the course of the case.
The defendant responds with a statement of
defence. This statement may deny or challenge
the plaintiffs allegations, or admit them but plead
additional facts to counter the effect of admitting
them. A defendant may also le a counterclaim
against the plaintiff.
At this stage, the parties are able to obtain
more information about each others arguments
through a process called discovery. This process
allows each party to obtain information to assist
them in responding to the other partys claims and
allegations. Interrogatories are written questions
submitted to the other party, which must be
answered. They must be relevant to a matter in
question. At this point, many civil disputes are
resolved. In most cases legal practitioners prepare
the documents, as they have an understanding of
the processes and can give appropriate and timely
advice on legal matters.
If the dispute cannot be settled, the matter will
be referred to trial. During the trial, each side has
the right to produce evidence, call witnesses and
carry out cross-examinations. When both sides
have presented all evidence, the judge or jury will
Figure 3.8 $OESSMOKINGMARIJUANAINVOLVECRIMINALLAWORCIVILLAW
9780521734699part_01_3pp.indd 69
make a ruling. If the plaintiff is successful, the pleadings
written statements
judge will make a decision about the amount of
of the parties to a
relief (or compensation) to be given to the plaintiff civil dispute that set
by the defendant. This compensation usually out the issues to be
decided by the court
takes the form of damages in a monetary form,
or an injunction, which is a court order prohibiting
The leg al s y s tem
specied activities.
R EVI EW 3 . 3
Burden and
1 Draw a ow diagram showing the
standard of proof
steps taken in civil legal action.
in civil cases
2 How would you decide in which
The burden of proof in a civil
court to bring a personal injury
case is on the injured party
claim for negligence that resulted
(the plaintiff) to prove his
in medical bills of $100 000?
or her allegations. The rules
3 What sorts of facts might be
of civil procedure give the
sought in discovery in a case
defendant the opportunity
involving a debt that was not
to submit evidence to rebut
paid?
the plaintiffs case. To rebut
4 Decide whether the following
generally means to disprove
cases involve criminal law or civil
a statement or evidence pre-
law.
sented by another.
a You are held up at knifepoint
In civil cases, the standard
and your mobile phone is
of proof is on the balance
stolen.
of probabilities. This means
b A man trips over a box on the
that the plaintiff, who has
supermarket oor and breaks
the burden of proof, must
an ankle.
prove that it was more prob-
c A woman is convicted of
able than not that he or she
driving with a blood alcohol
suffered injury or loss as a
level of 0.08.
result of the actions of the
d Your friend is caught with
defendant.
marijuana.
e You nd a cockroach in a
salad you just ordered in a
restaurant.
f A neighbours music at 3 a.m.
every night wakes you up
constantly.
5 Is it more difcult to prove a case
in criminal law or civil law? Why?
6 With a classmate, make a poster
(either by drawing or cutting out
pictures) showing as many civil
wrongs and criminal acts as you
can. Draw up a table to list these.

#HA PTERn#L AS S I FI CATI ONOFL AW 69
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 Understanding criminal
and civil cases
There are a number of ways in which you can gain a
better understanding and appreciation of the oper-
ation of criminal and civil law. This can be done
by:
1 Compiling a media le
Keeping a record of specic cases that are reported
in the media is an excellent method for building a
sound understanding of criminal and civil cases.
In order to help you record and summarise your
ndings, a Media File pro forma is provided for
you on the Student CD. Its recommended that
you print a number of copies of this pro forma,
make notes specic to each case and attach them
to each article you collect.
The lega l profession
Court cases involve a number of participants. Some
of these people play an ofcial legal role in the
court proceedings, while others play an unofcial
5 6
4 4
Figure 3.9 Court cases involve a number of participants.
70 C a m b r id g e L e g al S tu d ie s Pre limin ary
9780521734699part_01_3pp.indd 70
2 Reading about cases online
Accessing cases online is one of the most time-
efcient ways of collecting information about
criminal and civil cases. Two reliable sites to visit
are www.legalaid.nsw.gov.au (look under Links)
and www.lawlink.nsw.gov.au (under Legal
resources). Both of these sites have information
about rulings on a wide variety of court cases.
3 Observation
Observing a court case in action is an important
way of reinforcing and extending your knowledge
of criminal and civil law. The Lawlink NSW website
(www.lawlink.nsw.gov.au) lists all courts in NSW,
and information about ACT courts can be found
at www.courts.act.gov.au. Students are able to
visit most courts that are open to the general
public. However, if a school group is thinking about
attending a court, it is important to contact the
court to ensure that correct protocols and etiquette
can be followed.
role. The ofcial and unofcial participants of most
court cases are outlined below. The red numbers in
the text correspond to the numbers in Figure 3.9.
1 3
7 2
4 4
2/9/09 8:34:18 PM
 Legal professionals
1 Judges and magistrates
Judges and magistrates preside over court cases.
They are seen as the umpires of court cases,
making sure that the rules are followed and that
a fair trial is carried out. They are legally qualied
professionals who have considerable experience in
the law.
Judges sit in intermediate and superior courts
(District and Supreme courts). The role of the
judge is to adjudicate in cases: the judge makes
decisions about points of law and gives instructions
to the jury to make sure that they understand the
proceedings and evidence presented. The judge is
required to hand down sentences and rulings. In
civil cases, particularly civil cases, the judge will
sit without a jury and therefore is responsible for
the nal decision.
A magistrate is in charge of a lower court. After
hearing both sides of the case, the magistrate will
decide whether a person is guilty or innocent.
The magistrate will decide on the punishment in
criminal cases, and the amount of money awarded
in civil cases.
Magistrates will refer very serious criminal
offences to the District Court (in NSW) or to the
Supreme Court (in the ACT). The magistrate
will hear some indictable matters to determine
whether such a matter should go to trial. If there is
enough evidence to establish a prima facie case,
and thus justify the expense of a trial, it will be
referred to a higher court.
2 Judges associate
The judges associate is a condential secretary to
the judge and is a clerk of the court in which the
judge is presiding. He or she generally has a law
degree.
3 Tipstaff
A tipstaff supports the judge in procedural and
organisational matters when court is in session.
When court is not in session, the tipstaff may
provide research and administrative support.
9780521734699part_01_3pp.indd 71
4 Barristers and solicitors
People seeking legal advice will usually contact a
solicitor rst. Solicitors give legal advice to people
on a wide range of legal issues. They have completed
a recognised law course and carried out relevant
work experience to achieve their qualication.
The leg al s y s tem
Solicitors may work in any of a number of
practice areas. Some of the major areas of employ-
ment are family law, conveyancing for real estate
transactions, and the preparation of wills and con-
tracts. Traditionally, only barristers could represent
parties in court. Solicitors will most often prepare
a brief for a barrister when a case must go before a
court, as well as doing research and providing legal
advice. In the Local or Magistrates Court, however,
it is more common to see solicitors appearing
on behalf of clients. For each state and territory,
there are separate associations for solicitors and
barristers, and in NSW, barristers and solicitors are
issued different practising certicates.
Barristers often specialise in one area of law
(e.g. family law), which allows them to develop a
depth of knowledge and expertise in the area.
Solicitors will generally approach a barrister
on behalf of their client. The barrister will then
represent the client in either a criminal or civil
court proceeding. Barristers have two main roles
in court proceedings:
s To provide legal advice on the likely outcome
of a court case, based on the facts provided to
them by their client. This allows the client to prima facie
,ATIN @ONTHEFACE
decide which course of action is best.
at rst sight: having
s To present their clients case in court. sufcient evidence
established against a
defendant to warrant
5 Witness a trial in a higher court
A witness gives evidence to support the case in of law
court. Both parties can call witnesses. A witness
must stay outside the courtroom until his or her
name is called. When they are called they must
take the witness stand and swear an oath or make
an afrmation to tell the truth.
6 Court officer
The court ofcer organises the court lists and calls
witnesses into the courtroom. He or she administers
#HA PTERn#L AS S I FI CATI ONOFL AW 71
2/9/09 8:34:19 PM
 the oath or afrmation, ensures that the public
are seated in the right areas, and announces the
arrival and departure of the judge or judges. The
court ofcer communicates questions from jurors
to the judge and passes documents from the bar
table to the associate, who passes them to the
judge, jury or witnesses. He or she also advises
the judges associate when the jury is ready to
return a verdict, operates audiovisual equipment
where necessary, gives instructions to the jury and
answers questions from jurors, and looks after the
jury room and the comfort of the jurors.
7 Court reporter
All court proceedings are recorded, either in short-
hand or using a shorthand machine, or in audio and/
or visual form. A transcript of the proceedings is an
accurate written record of what has been said.
Other participants
Corrective services officer
A corrective services ofcer is required to guard
the accused in a criminal case and escort that
person to and from the courtroom.
Jury
A jury is a panel of citizens, selected at random,
who consider the evidence and decide on questions
raised in the case. Their job can be described as
fact-nding, and their decision is called a verdict.
Before a court case begins, they are sworn in.
In most cases, a criminal trial
involves a jury of 12 people. Civil
RE VIE W 3.4 cases may be heard by a judge
1 Outline the role of a judge alone or (in NSW) with a jury of
or magistrate in court four people.
proceedings. The members of a jury are
2 What forms of legal ordinary citizens selected at ran-
representation are available to dom from the jury list, which is
a person who is having legal compiled from the electoral roll.
problems? In a criminal trial, both the
3 Compare and contrast the prosecution and the defence have
roles of the judge and the jury. the right to challenge either the
72 C a m b r id g e L e g al S tu d ie s Pre limin ary
9780521734699part_01_3pp.indd 72
Figure 3.10 The media, following a high prole
court case
selection of the entire panel of jurors, or individual
jurors. Challenges for cause are based on the
person not being qualied to serve on a jury,
being ineligible or disqualied, or being suspected
of bias. Both sides can also exercise a certain
number of peremptory challenges of prospective
jurors, without having to give a reason. However,
challenging the selection of a juror can be difcult:
neither side knows anything about them in
advance apart from their names, and peremptory
challenges are usually based on nothing more
than name or appearance (e.g. age, gender, race,
clothing, physique).
Plaintiffs and defendants
The person who brings a civil action against some-
one else is called the plaintiff, while the person
who must defend his or her actions is called the
defendant. In a criminal trial, the defendant is
the person accused of the crime, and there is no
plaintiff.
Media
The media often attend high-prole court cases in
order to report on them. Generally, representatives
from the media sit in the media gallery or wait
outside the court in order to interview people.
2/9/09 8:34:22 PM
 Co m m o n a n d c i v i l l a w s ys te m s
Most countries throughout the world use a system law governing relationships between private
of law based on the common and civil principles of individuals, in contrast to the criminal law.
law or a combination of both.

The leg al s y s tem

Civil law has its origins in Roman law. It is a
codied system that uses a set of rules (known as
the code of law) that are applied and interpreted
by judges. This form of legal system is still used in
many countries of the world.
Common law, on the other hand, was developed
by custom. It began long before there were any
written laws but continued to be applied by courts
long after written laws came into use.
The main difference between the two systems is
that in civil law, judges apply the rules in the code
of law to the various cases before them, whereas
in common law, the rules are derived in part from
specic court rulings.
In countries that have a legal system based
on common law, civil law refers to the area of
Civil law systems in
other countries
The term civil law sometimes causes confusion.
In the Australian legal system it refers to private
law (i.e. disputes between individuals). However,
the term civil law also describes the legal systems
of those countries that have developed from the
Roman law system instead of the English common
law system.
Today, countries such as France, Germany and
Italy are civil law countries. Civil law countries
usually have an inquisitorial system of trial as
opposed to the common law adversarial system.
In an inquisitorial system of trial, the judge collects
the evidence for both sides in a dispute, and is
actively involved in the fact-nding task.

Figure 3.11 The ruins of the Figure 3.12 Common law in Australia has
Forum Romanum2OMAN its origins in customary law developed in
&ORUM England. This image shows Queen Elizabeth I
in the Court of Kings Bench the highest
COMMONLAWCOURTIN%NGLANDUNTIL
Figure 3.13 The Palazzo della Consulta,
seat of the Italian Constitutional Court,
DESIGNEDBY&ERDINANDO&UGA

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9780521734699part_01_3pp.indd 73 2/9/09 8:34:28 PM


s The law is divided into public and private
law. There are differences in the ways that
infringements of public and private law are
dealt with by the courts.
s Public law governs relationships between
Ch a p te r s u m m a ry
individuals and the state and includes
criminal, administrative and constitutional law.
s The Australian Constitution sets out the
foundational rules of Australian government.
Constitutional law governs any changes made
to these laws.
s Private law governs relationships between
individuals or between them and
organisations or companies. It includes
contract, tort and property law.
M ul ti p l e- c hoi ce q ues ti ons
1 Why is criminal law prosecuted by the state
rather than by individual citizens?
a Victims of crime are usually unable to
afford legal representation.
b Crime is considered a wrong against us all
and thus a matter of public law.
c Crime is often due to government
decisions or policy and the state must take
responsibility for it.
d It is a matter of organisation and thus is a
subset of administrative law.
2 What is the main purpose of administrative
law?
a TOACHIEVEJUSTICEINCIVILCASES
b to ensure fairness in government decisions
c to allow people to bring criminal charges
against government departments
d to allow people to receive damages in civil
cases
3 What is the High Courts role in relation to the
laws made by parliament?
a to decide whether they are consistent with
the Australian Constitution
b to exercise veto power if necessary, when a
bill comes before parliament
c to ensure that they are consistent with
international treaties that Australia has
signed
d to advise the minor parties on how they
can get laws passed
74 C a m b r id g e L e g al S tu d ie s Pre limin ary
9780521734699part_01_3pp.indd 74
s The court where the case is heard will depend
on such things as the severity of the crime in
criminal cases and the amount of damages
sought in civil cases.
s Criminal and civil court procedures are
different in a number of ways. In a criminal
trial, the prosecution has the burden of proof.
In a civil matter, the plaintiff has the burden
of proof.
s The standard of proof in a criminal trial is
beyond reasonable doubt. In a civil hearing, it
is on the balance of probabilities.
s Contemporary Australian law is based on
English common law. Many other countries
use the civil law system, which is based on a
statutory code rather than on precedent.
4 What can a plaintiff expect from a successful
tort claim?
a compensation from the defendant in the
form of damages
b compensation from the state
c ANINJUNCTIONTOPREVENTTHEDEFENDANT
from approaching the plaintiffs solicitor
d an order of specic performance
5 Which of these statements about the burden
and standard of proof is true?
a The defence in a criminal trial must prove
that the defendant is innocent, beyond
reasonable doubt.
b The defendant in a civil trial must prove
that the plaintiffs case is awed, on the
balance of probabilities.
c The plaintiff in a civil trial must prove his or
her case on the balance of probabilities.
d The plaintiff in a civil trial must prove that
the defendant is guilty beyond reasonable
doubt.
2/9/09 8:34:28 PM
 1 Outline the main ways that a person can seek
Ch a p te r s u m m a ry ta s k s

a remedy if a government decision is unfair.

$OYOUTHINKMANYPEOPLESEEKJUSTICEINTHIS
WAY*USTIFYYOURANSWER

The leg al s y s tem

2 What remedies are available when you have a
contract for services and the other party fails
to do what they agreed to do?
3 What is tort law? Discuss the idea that tort
law has turned us into a society that sues each
other when things go wrong.
4 Explain the roles of prosecution and defence
in a criminal case.
5 Compare and contrast the features of criminal
and civil law.

#HA PTERn#L AS S I FI CATI ONOFL AW 75

9780521734699part_01_3pp.indd 75 2/9/09 8:34:28 PM

 CHAPTER 4
Law reform
c hap ter ob j e cti ve s

In this chapter, students will:

s discuss legal concepts and terminology with respect
to law reform
s debate the legal systems ability to address issues in
society that may contribute to law reform
s discuss the relationship that exists between the
legal system and the society in which it operates
s discuss the place of the law in addressing and
responding to change
s identify and assess the conditions in society that
contribute to law reform
s describe and evaluate the role and operation of
agencies and agents involved in law reform.
ke y t e r m s/ v o c a b ul ar y

Apprehended Domestic identity theft

6IOLENCE/RDER!$6/ precedent
balance of power public morality
capital punishment social values
de facto relationship terms of reference
forensic 9OUTH*USTICE#ONFERENCES
fraud
Hansard
HUNGJURY

76 C a m b r id g e L e g al S tu d ie s Pre limin ary

9780521734699part_01_3pp.indd 76 2/9/09 8:34:30 PM

 The leg al s y s tem
rel ev ant l aw odd l a w

IM PORTA N T L EGIS L AT ION The Commonwealth and all states and territories
Marriage Act 1961 #TH except the ACT, which is land-locked, have
Property (Relationships) Act 1984 .37 passed similar statutes, each of which is titled
Crimes (Forensic Procedures) !CT.37 the Crimes at Sea Act. These Acts allow
Crimes Act 1900.37 the federal and state governments to enter
Young Offenders Act 1997.37 into a cooperative agreement to divide up
Crimes (Domestic and Personal Violence) Act responsibility for enforcing the law relating to
.37 CRIMESCOMMITTEDATSEA*URISDICTIONDEPENDS
Australian Law Reform Commission Act 1996 on the part of the sea where the crime was
#TH committed. Although some states have passed
Law Reform Commission Act 1967 .37 laws allowing a defendant to be convicted
Jury Act 1977 .37 ONTHEBASISOFAMAJORITYJURYVERDICTTHISIS
Family Law Act 1975 #TH not permitted in any areas of the sea where
THE#OMMONWEALTHHASJURISDICTIONBECAUSE
only unanimous verdicts are constitutionally
permitted where the offence is against federal
law: Cheatle v R ;=(#!

#HA PTERn , AWREFORM 77

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 W h a t i s l aw r e f o r m?
Australian society is constantly evolving and
changing. Given the speed at which social values
change, the law can sometimes seem anachron-
istic, or slow to respond. The saying often quoted is
Society moves ahead and the law limps behind.
As suggested in previous chapters, the law
needs to be similarly dynamic in order for the
community to respect and follow it. But mere
change is not enough to constitute reform. As the
Hon Justice Michael Kirby, a former member of the
High Court Bench, wrote:
In our language, the word reform tends to con-
note an improvement, an advance: not just for
change, a change for the better.
M.D. Kirby, Reform the Law:
Essays on the renewal of the Australian legal system /XFORD
Changes to laws should not only recognise
the changes taking place in society, but should
reect those changes which have produced better
circumstances for signicant portions of society,
as well as providing protections against harm.
However, law reform is not always smooth or
easy, as not all members of society may agree with
particular changes to the law or see the need for
them. The extent of disagreement often depends
on the conditions that gave rise to law reform: in
other words, on what is driving the need to reform
the law.
This chapter examines the conditions that give
rise to law reform, and the agents and mechanisms
that can bring it about once the reform needed has
been identied.
5NIVERSITY0RESS-ELBOURNE P

Co n d i t i o n s t h a t g i ve r i s e t o l aw
reform
Changing social values
Social values are standards or principles that
guide people in their thinking about aspects of
their society and that are underpinned by beliefs
about right and wrong. Social values are not
necessarily the same as individual values, but they
both inuence and are inuenced by individuals
judgment. Both individual and social values and
ethics are shaped by various cultural factors, often
including religion.
When the majority of people within a society
hold similar views about an issue, the views can
be said to reect public morality. The law must
reect the social values of the majority of the
community if it is to stay relevant and be assured
Figure 4.1 Historically, social values in Australia have been heavily of a high rate of compliance. As Australia is a
inuenced by the Christian faith. diverse multicultural society, it can sometimes be

78 C a m b r id g e L e g al S tu d ie s Pre limin ary

9780521734699part_01_3pp.indd 78 2/9/09 8:34:32 PM

 difcult to gauge the mood of the community, if
indeed there is anything approaching consensus
on an issue.
The problem for lawmakers is that public
morality is not static; it continues to evolve. These
changing social values are an impetus for law
reform. There are many examples of legislation
that has been introduced, repealed or amended
after courts have handed down decisions. Judicial
decisions are one way in which legislators and
others recognise that the existing law no longer
reects the communitys social values. In most
cases, as indicated above, the law usually lags
behind changes in social values. This is not always
a negative feature of the law, as deliberate and
well-thought-out changes to our laws take time.
The following example demonstrates how law
reform has been a direct response to changing
social values.
Changing social values regarding
same-sex relationships
Many of Australias social values have been
inuenced by its Christian traditions, including the
belief that the family is one of the cornerstones of
a stable society. Part of the traditional belief has
been the understanding that a family must have a
mother and a father in a heterosexual relationship
recognised formally by religious ceremony and
legally by marriage legislation currently the
Marriage Act 1961 (Cth).
Over the past 40 years, the idea of what con-
stitutes a family has evolved to the point where
the denition above no longer reects the social
values of a signicant number of Australians.
Moreover, many Australians in same-sex rela-
tionships were living together without the legal
protections afforded to people living in hetero-
sexual relationships. This meant that they had
few rights especially property rights if the
relationship ended.
In 1984, the New South Wales government
passed the De Facto Relationships Act 1984 (NSW),
which established certain rights for people living
9780521734699part_01_3pp.indd 79
in de facto relationships. At this time there social values
ethical standards that
were calls to recognise same-sex couples in the
guide people in their
same way. After some impassioned speeches thinking about aspects
in both houses of the NSW Parliament, the De of their society
Facto Relationships Act was amended to include public morality
standards of behaviour
same-sex couples and was renamed the Property
The leg al s y s tem
generally agreed upon
(Relationships) Act 1984 (NSW). by the community
Under this Act, factors for a court to consider de facto relationship
when determining whether a couple are in a de FROMTHE,ATINTERM
meaning existing in
facto relationship include the duration of the
fact): a relationship
relationship, how long they have lived together, between two adults
whether it is a sexual relationship, and their who are not married
but are living together
nancial dependence or interdependence. Impor- as a couple
tantly, these factors also include the degree of
mutual commitment to a shared bond and whether
they are publicly recognised as a couple. While
this Act gave couples in these relationships certain
property rights, it also recognised the legitimacy
and value of their relationship.
Figure 4.2 Part of a protest for same-sex couples
Further legislative change occurred with the
Property (Relationships) Legislation Amendment
Act 1999 (NSW), which amended 25 other Acts
whose provisions excluded same-sex couples.
For example, it amended the Wills, Probate and
Administration Act 1898 (NSW) to give a de facto
spouse of a person who died without a will the
#HA PTERn , AWREFORM 79
2/9/09 8:34:33 PM
 estate same rights as a husband or wife with respect to An interesting question to ponder given the legi-
all of the property that the deceased persons estate. slative changes at state level is why is there little or
a person leaves upon
death It is estimated that there are approximately no talk in politics of amending the Marriage Act

capital punishment
the practice of
sentencing a person
TODEATHBYJUDICIAL
process; also referred to
as the death penalty
ca s e s tu d y
100 federal Acts that discriminate against same-
sex couples. The Rudd government has indicated
an intention to pass legislation to remove discri-
minatory legislative provisions. This will mean
that same sex-couples will have the same status
as heterosexual de facto couples at both state and
federal levels.
to allow same-sex marriages. The federal govern-
ment has consistently refused to consider this
reform. It seems that marriage is one area where
members of government do not believe that the
public has shifted far enough in their thinking to
warrant legislative reform.

Whose social values should prevail?

In California, same sex-marriages were Same-Sex Marriage, the BBC reported:

recognised when the Supreme Court
of that state ruled in May 2008 that
legislation banning these marriages was
discriminatory and violated the state
constitution. Since then there have been
many couples who have legitimised their
relationships in the eyes of the law through
marriage.
In November 2008, voters overturned
the court ruling by agreeing through
referendum to change the states
constitution in a ballot called Proposition
8. In an article titled California Bans
The referendum called for the California
constitution to be amended by adding
the phrase: Only marriage between a
man and a woman is valid or recognised in
California.
The states Attorney General has stated
that those marriages conducted after the
court ruling will remain valid.
Public morality is not clear-cut on this
issue in California. With legal challenges
expected to follow the referendum result,
it may be some time before there is
certainty in this area.

R EV I EW 4 . 1
1 Outline the sequence of events that led
to the Property (Relationships) Legislation
Amendment Act 1999 (NSW). What did that
Act accomplish?
2 What are some other types of social
changes that might lead to law reform?
How might the reform be accomplished?

Figure 4.3 !MERICANSPROTESTINGFOR0ROPOSITIONONGAYMARRIAGE

80 C a m b r id g e L e g al S tu d ie s Pre limin ary

9780521734699part_01_3pp.indd 80 2/9/09 8:34:36 PM

 New concepts of
justice Youth Justice
Conferences
When the law is unable to deliver just meetings of all the
people who may be
outcomes to individuals and the commu-
affected by a crime
nity, there may be a need for law reform. committed by a young

The leg al s y s tem

For example, if the criminal law is failing offender; used to
help them to accept
victims, the community and/or the Figure 4.4 Capital punishment, now abolished in responsibility for their
accused, new concepts of justice may need Australia, was once seen as a way of dealing with the actions while avoiding
to be formulated. most heinous of crimes. the court system

In the past, capital punishment for

particular murder offences was seen as the
most effective way of dealing with the most
heinous crimes. It was a case of society
delivering pure retribution for a crime: a
life for a life. It was also suggested that
it provided a strong deterrent to those
disposed to commit murder. In fact, in
a signicant number of homicides the
offender and the victim knew each other,
and many involved extreme breakdown of
family relationships. Many murderers could
be described as one-time killers unlikely
to reoffend. When capital punishment
was abolished in each of the Australian
states, the murder rate remained relatively
unchanged, suggesting that as a form of
punishment it had little deterrent value.
It was also recognised that, whatever
the chances of a criminals rehabilitation,
executing him or her extinguishes the
possibility completely. There are very
strong arguments that capital punishment
violates prohibitions of cruel, inhuman and
degrading punishments in international
human rights treaties, and that where it
exists, it is imposed more often on poor,
uneducated and otherwise vulnerable
persons. In addition, there is the risk of
killing an innocent person.
As a result of these moral arguments and
practical considerations, social attitudes
with respect to capital punishment shifted
and no Australian jurisdiction now permits
it. Because the concept of what justice
requires shifted from pure retribution to
a greater emphasis on rehabilitation, and
because deterrence clearly was not being
achieved, capital punishment no longer
served the communitys purposes.
Another notable example of changes in
the way the law punishes offenders can be
seen in Youth Justice Conferences estab-
lished under the Young Offenders Act 1997
(NSW). This is discussed in more detail in
Chapter 9. Youth Justice Conferences are an
attempt to divert young rst-time offend-
ers away from the court system and hence
a criminal record. Their aim is to act as a
circuit breaker in a young persons behav-
iour trajectory. A conference may involve
members of the community, the offenders
family, the victim and his or her family, and
professionals such as a social worker. Youth
Justice Conferencing has enjoyed support
from the community, as it has achieved posi-
tive results for young rst-time offenders.
Some have argued that it should be used for
a wider range of offences, including serious
offences, because it obliges the young
person to consider the consequences of his
or her actions, in particular the harm caused
to the victim.
Other law reform initiatives to address
new concepts of justice include circle
sentencing for Indigenous offenders, the
NSW Drug Court and the enforcement
of parenting orders in the Family Court,
to name a few. All of these reforms are
attempts to deal with issues that the current
laws were clearly failing to address.
R ESEA RC H 4 . 1
Go the following websites to
research law reform in the
areas outlined.
Identify how the initiatives
work and assess whether they
are an improvement on the
previous ways in which the law
dealt with these issues.
C I RC L E SE N T E N C IN G
www.aic.gov.au/topics/
indigenous/interventions/
alternatives/circle.html
www.austlii.edu.au/au/
journals/AILR/2004/16.html
www.abc.net.au/news/
stories/2008/07/16/2305266.
htm
NSW DRU G C O U RT
www.lawlink.nsw.gov.au/
drugcrt
www.aic.gov.au/conferences/
evaluation/freeman.pdf
E NFO RC EM E N T O F
PA RE NTI NG O R D E R S
www.spig.clara.net/reform/au-
n-99.htm
www.legalaid.nsw.gov.au/
data/portal/00000005/public/
09409001091593851562.doc

#HA PTERn , AWREFORM 81

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 ca s e s tu d y
New concepts of justice to combat domestic violence
Domestic violence is different from violence
perpetrated on the street, in schools or in the
workplace. The Womens Action Alliance denes
domestic violence as violence occurring within a
household or between family members. Its most
common form is violence by a husband against
a wife (legal or de facto) but it can also include
violence by wife against a husband or child
against parent. Violence by parent against child
is more commonly referred to as child abuse.
Domestic violence can be manifested
sexually, physically or verbally and in most cases
causes psychological harm to the victim. Victims
of domestic violence are usually isolated socially
and they often stay in these relationships for
many reasons, including fear of reprisal.
In the past, victims of domestic violence had
to report an incident to the local police. In many
cases the victim was told that this was a private
matter more appropriately sorted out within
the family. Research has indicated that the initial
response of the police to a victims report of
domestic violence will determine whether that
victim proceeds further with the complaint.
The victim also had to rely on assault
provisions under the relevant criminal
legislation. Not only were there often delays in
bringing the matter to court, but the necessity
of proving the charge beyond reasonable doubt
could be a high hurdle when the evidence was
essentially one persons word against anothers.
Victims of domestic violence incidents had
inadequate protection under the law and it was
clear that the legislation was not sufcient.
LEGISLATION
In New South Wales, the Crimes (Domestic
Violence) Amendment Act 1982 (NSW) inserted
new provisions into the Crimes Act 1900 (NSW),
82 C a m b r id g e L e g al S tu d ie s Pre limin ary
9780521734699part_01_3pp.indd 82
introducing the concept of an Apprehended
Domestic Violence Order (ADVO). ADVOs
could be obtained by victims through the Local
Court or the police. The court must be satised
on the balance of probabilities that the person
has reasonable grounds for fear a lower
standard of proof than beyond reasonable
doubt. An ADVO can be tailored to suit the
victims situation; for example it can forbid
the accused from coming close to the victims
children, residence, place of work, or another
specied place that the victim frequents. It is a
criminal offence to breach an ADVO.
As more became understood about the
perpetrators and circumstances of domestic
violence, signicant law reform continued to
unfold. Some of these developments have
included:
s The Crimes (Domestic Violence) Amendment
Act 1993 (NSW) allowed police to apply
for interim ADVOs after hours by telephone,
as well as making it an offence to stalk or
intimidate a person.
s The Crimes Amendment (Apprehended
Violence) Act 1999 (NSW) distinguished
between orders taken out for domestic
violence and those relating to personal
violence in other situations, such as disputes
between neighbours. In addition, the police
must record in writing why they did not
proceed with criminal charges for a breach of
an ADVO.
s Amendments to the Bail Act 1978 (NSW)
removed the presumption that bail will
be granted in relation to domestic violence
offences or breaching an ADVO, where the
defendant has a history of violence.
s Amendments to the Firearms Act 1989 (NSW)
allowed police to seize any rearms present
2/9/09 8:34:40 PM
 when called to the scene of a domestic
violence incident.
After 30 years of amendments to various
legislation, especially the Crimes Act, it was felt
that the crime of domestic violence deserved
a stand-alone Act of Parliament. Hence the
Crimes (Domestic and Personal Violence) Act
2007 (NSW) was passed and took effect in 2008.
This Act repealed Part 15A of the Crimes
Act, which dealt with apprehended violence
orders, and re-enacted those provisions as a
new Act, with some modications and additional
provisions. It was also felt that domestic
violence was treated as a lesser crime, hidden
in the Crimes Act. Under the new Act a person
may be charged with a domestic violence
offence. While the acts constituting such an
offence are not new, being charged with the
criminal acts under the new name has signicant
implications for bail, the offenders criminal
record and any future convictions.
Under s 38, an ADVO made to protect an
adult must automatically include any children
living with that adult, unless sufcient reasons
are given are to why they should be left off.
ADDITIONAL DOMESTIC VIOLENCE
INITIATIVES IN NEW SOUTH WALES
The NSW government has recognised that
there is still room for improvement, with respect
to both the protection of victims and the
prevention of domestic violence in the future.
The Domestic Violence Intervention Court
Model (DVICM) involves a coordinated
response to domestic violence by the police and
government agencies in an attempt to support
victims and break the cycle of violence.
Once a report is made the police will make
an immediate request for an ADVO. They can
also initiate an arrest warrant with strict bail
9780521734699part_01_3pp.indd 83
conditions and begin targeted case management Apprehended
Domestic Violence
processes focusing on protection. Upon arriving
Order (ADVO)
at the scene of an incident, they can, with the a court order used
consent of the victim, use video and still-image for the protection
T he leg al s y s tem
of a person involved
cameras to photograph the scene and any
in an intimate,
injuries, and record any witness statements. spousal or de facto
Thereafter, weekly meetings with repre- relationship
sentatives from welfare agencies, the Local
Court, the Department of Community Services
and the police are scheduled, to assist the victim
and ensure that his or her needs are met. The
Ofce of the Director of Public Prosecutions will
also provide a prosecutor specically trained
in the legal and social issues associated with
domestic violence cases, who will handle the case
from start to nish. Each cases is to be nalised
within 12 weeks, in an effort to minimise the
stress and trauma on the victim and any children.
The DVICM also offers support to offenders
to assist with their own psychological and social
difculties. Police and correction ofcers are
involved in the process.
The photographic evidence has been
credited with an increase in guilty pleas by
offenders, from 50% in 2004 to approximately
63% by 2006.
While an increase in nancial resources, as
well as political will, is necessary to ensure the
ongoing effectiveness of programs such as the
DVICM, its positive results to date indicate that
such costs would go towards breaking the cycle
of violence and protecting individuals in their
own homes.
le g al li nk s
Go to the following website to
read more about the law relating
to domestic violence: www.liac.
sl.nsw.gov.au/hot/pdf/domestic_
violence_66.pdf
#HA PTERn , AWREFORM 83
2/9/09 8:34:40 PM
 New technology
Advances in technology always put the law under
pressure to remain current. New technology
contributes to changes that may be either radical
and sweeping or subtle and incremental. For
instance, the invention of the petrol-powered motor
vehicle changed the way people in industrialised
countries lived over the course of the twentieth
century, and required the introduction of new
laws for safety, ownership and licensing, and
(eventually) environmental protection.
Figure 4.5 The invention of the motor car resulted in enormous social
change, including changes to legal systems around the world.
The development of life support devices and
treatments since the 1960s has meant that the
legal denition of death had to be changed. Rather
than referring to the cessation of respiration and
heartbeat, most jurisdictions now require the
forensic irreversible cessation of all functions of the entire
relating to the
brain, as it is now possible to keep a persons heart
detection and
investigation of crime and lungs operating for a signicant period of time,
but with no brain function.
84 C a m b r id g e L e g al S tu d ie s Pre limin ary
9780521734699part_01_3pp.indd 84
More recently the progress made in birth
technologies has also seen changes to laws at
both state and federal level to resolve issues about
parentage, inheritance, and nancial mainten-
ance. As children can now be conceived from
donated biological material, the law had to clarify
and differentiate biological rights and obligations
from social rights and obligations deriving from
the family roles and relationships in which people
actually live.
The use of DNA evidence in criminal matters
has led to convictions where previously, without
other physical evidence, there would have been
no conviction. As technology has improved, so
have the chances of solving previous cold cases.
In NSW, there are more than 400 unsolved
homicides, dating back as far as 1975. Because
DNA is very stable and can last for a signicant
period of time, biological material collected can
still be used, decades later, to create DNA proles
for analysis. In 2008 some of these unsolved cases
were reopened for police investigation, with DNA
analysis a key tool.
The Crimes (Forensic Procedures) Act 2000
(NSW) was introduced to set guidelines for the
DNA testing of criminal suspects. The Act sets
out who may be tested and who may order the
test, as well as detailed requirements for how the
procedures may be conducted. The manner in
which a DNA sample is obtained can determine its
admissibility in court.
In 2007, several amendments to the Act took
place. Among other changes, s 11 was revised to
allow DNA samples to be collected from suspects
in an increased range of offences, which include
some indictable offences as well as a number of
summary offences.
Another major change concerned the period of
time that a suspects DNA material could be kept
for forensic use. Under the Act prior to the 2007
amendments, DNA material had to be destroyed
after 12 months if the criminal case against the
person did not proceed. However, under the
2/9/09 8:34:42 PM
 amended s 88(2)(c), where DNA has been collected
from a suspect who ends up being convicted of a
different crime as a result of an investigation of
the same acts, the DNA material does not have to
be destroyed.
Such provisions are intended to increase

The leg al s y s tem

conviction rates. Some have argued, however, that
without sufcient legislative protections relating to
the use of this technology, there can be an erosion
of the rights of accused persons. For example,
the wait time for the results of a DNA test can be
up to 180 days. This raises serious issues if the
prosecution case is dependent on that evidence,
especially if the accused has been refused bail.
In order to speed up the process, the NSW
government decided in 2008 to outsource some of
its testing to private laboratories. Such delegation
of responsibility will generally require further
safeguards to ensure privacy, condentiality, and Figure 4.6 Advances in medical technology, such
integrity of the testing procedures. AS)6&ARECREATINGNEWCHALLENGESFORTHELAW

R EV I EW 4 . 2
1 What are the factors that
have to be balanced when
introducing new legislation
or amendments that use
scientic advances to
increase police investigative
powers?
2 What are some other
scientic advances that have
led or may lead to legislative
changes? List some of the
considerations that need to
be considered or balanced
when making changes.

Figure 4.7 DNA testing holds great potential for law enforcement agencies, but
brings with it a range of legal and ethical issues.

#HA PTERn , AWREFORM 85

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 ca s e s tu d y
Identity theft
Over the past ten years there has been an
increase in what is known as identity theft or
identity fraud. With the development of more
sophisticated computers, scanning devices and
software applications, this type of crime has
become easier. It is also attractive, as it can
yield signicant rewards with a high probability
of not being caught.
Identity theft has the potential to cause
immediate nancial loss as well as damage to
a victims credit rating and reputation. It can
also be psychologically distressing to know that
someone else is using your identity to engage in
serious criminal activities. Those activities could
include using credit card numbers; fraudulently
Figure 4.8 The advent of digital technology has made identity theft easier to commit and more
DIFlCULTTOPROSECUTEBECAUSEOFFENCESARECOMMITTEDACROSSJURISDICTIONALBORDERS
86 C a m b r id g e L e g al S tu d ie s Pre limin ary
9780521734699part_01_3pp.indd 86
obtaining loans, government benets or
employment benets; evading the payment
of taxes; money laundering; drug smuggling;
people smuggling; or stalking or intimidating
someone.
The theft or assumption of another persons
identity, or the use of his or her personal
information, was not itself a criminal offence
in most Australian jurisdictions until recently.
(The rst states to enact legislation specically
criminalising identity theft were South
Australia and Queensland, in 2003 and 2007
respectively.) Rather, it was what was done with
the stolen identity. Because assuming another
persons identity was a preparatory step in
2/9/09 8:34:54 PM
 the commission of offences such as fraud or
theft, such offences could be used to prosecute
the identity theft. However, that requires the
prosecution to prove the associated offence.
in respect of such act, or pretence, under any
other enactment or at Common Law.
Other sections in the Crimes Act that could identity theft

The leg al s y s tem

obtaining or using the
be used to prosecute identity crime include:
It can be difcult to adapt specic theft, identity of another
s Personating owner of stock or property person in order to
fraud and forgery offences to t the facts
(s 184A) commit a range of
of identity crime. Much existing legislation, fraudulent activities,
s Fraudulent misappropriation (s 178A)
including the provisions in the Model Criminal usually to obtain
s Obtaining money etc. by deception (s 178BA) nancial gain
Code referred to in Chapter 3, requires at least
s Obtaining money by false or misleading fraud
proof that the accused had the intent to use the
statements (s 178BB) a dishonest act, done
information in his or her possession to obtain intentionally in order
s Obtaining credit by fraud (s 178C)
a nancial benet. However, identities can be to deceive
s Obtaining property by false pretences or
assumed for other reasons, for example to cross
wilfully false statements with intent to defraud
national borders for the purposes of organised
(s 179)
crime or terrorism.
Unauthorised access to and modication
Law reform in this area could include the
of computer data are covered in Part 6 of the
enactment of state and federal legislation
Act, and these also might be used to prosecute
creating one or more general identity crime
identity crime.
offences. In 2008, this was the recommendation
of the Model Criminal Law Ofcers Committee
of the Standing Committee of Attorneys-
General. The model offences would include
making, supplying or using information about a
person that is capable of being used to identify R ESEAR CH 4 . 2
him or her; possessing such information with Go to www.aic.gov.au/conferences/other/smith_
intent to commit or facilitate an indictable russell/2002-07-fraud.pdf and research the types of
offence; and possessing equipment to create criminal activities that can be carried out under the
such information. following categories:
s Terrorism
LEGISLATIVE PROVISIONS FOR IDENTIT Y s Unlawful immigration
THEFT IN NSW s Fraud involving e-mail and the Internet
Section 184 of the Crimes Act 1900 (NSW) is s Dissemination of obscene materials electronically
the provision most directly relevant to Identity s Funds transfer fraud
theft. It states: s Health benets fraud
s Social security fraud
Whosoever falsely personates, or pretends to
be, some other person, with intent fraudulently
to obtain any property, shall be liable to
imprisonment for seven years. Nothing in this
section shall prevent any person so personating,
or pretending, from being proceeded against

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terms of reference
a set of guidelines
used to dene the
purpose and scope of
an inquiry
harmonisation
agreement among
the laws of different
JURISDICTIONS
sedition
words or acts said or
done with the intention
of urging others to
use force against the
government
hung jury
AJURYTHATISUNABLETO
reach agreement
88 C a m b r id g e L e g al S tu d ie s Pre limin ary
9780521734699part_01_3pp.indd 88
Agencies of reform
As discussed above, there are various reasons as to
why the law may become dated or no longer able
to regulate society in a fair and just manner. The
extent to which the law may need to be reformed
is usually investigated and reported upon by one
or more of the following organisations or groups.
Law reform commissions
Law reform commissions have been established by
various parliaments within their own jurisdictions
to report on matters referred to them under what
is called the terms of reference for a particular
inquiry. The reports may contain recommend-
ations for ways to modernise or simplify the law,
or to eliminate defects.
An essential feature of law reform commissions
is that they are independent of the parliament
that established them. This is important because
political interference in the research and reporting
process can skew the ndings. It has also been
said that when a government provides the terms of
reference for an inquiry into an area of law reform,
it should not already know the answer. In other
words, the government should not know what the
end result or recommendations will be.
For the purposes of our area of study, the two
law reform commissions to be examined are the
Australian Law Reform Commission and the NSW
Law Reform Commission.
The Australian Law Reform
Commission
The Australian Law Reform Commission (ALRC)
was established in 1975 and operates under the
Australian Law Reform Commission Act 1996 (Cth).
It is an independent statutory (set up by a statute)
body.
The main role of the Commission is to review
Commonwealth laws relevant to matters referred
to it by the Attorney-General, to conduct inquiries
into areas of law reform in these areas, and to
advise the government on how the law can be
changed to meet current needs. It also works to
bring about harmonisation of Commonwealth,
state and territory laws where possible. It must
ensure that laws, proposals and recommendations
do not trespass on personal rights and are con-
sistent with Australias international obligations,
particularly in the area of human rights.
An inquiry involves a process of research and
consultation. Once the ALRC has completed an
inquiry and report, it will make recommendations
to the federal government through the Attorney-
General. The government can accept all or some
of the recommendations or can ignore the report
altogether. Sometimes the political climate at the
time may determine whether the commissions
recommendations become enacted into law.
In its annual reports, the ALRC publishes a
summary of the implementation status of its re-
commendations. More than 80 per cent of ALRCs
recommendations have been either substantially
or partially implemented by the government.
Some of the more recent areas of law reform
examined by the ALRC are the federal sedition
laws, privacy laws, and freedom of information
legislation.
The NSW Law Reform Commission
This commission was set up under the Law Reform
Commission Act 1967 (NSW). It was the rst of its
kind in Australia. It has a similar role to the ALRC,
but at the state level: to consider the laws of NSW
with a view to eliminating aspects of the law
that are out of date, unnecessary, too complex,
or defective. Its role also includes consolidating
overlapping legislation, hence simplifying the law.
The NSW government will refer issues to the
Commission for investigation as to what, if any,
law reform is necessary. In its research it will
generally consult with the public.
A report released by the Commission in
2005 was on majority verdicts in criminal trials.
2/9/09 8:34:55 PM
 The proposal was to investigate changing from
unanimous verdicts to majority verdicts of 11 or
10 jurors.
Prior to this inquiry, research by the NSW
Bureau of Crime Statistics and Research in 2002
showed that 8 per cent of trials in the District
Court between 1998 and 2001 resulted in a hung
jury. It also showed that in over 90 per cent of
these hung juries the vote was 75 or 84. Given
these statistics, there did not appear to be a strong
basis for changing the system. There werent
many cases in which a jury was unable to return a
verdict because of one recalcitrant juror.
Other arguments for majority verdicts were that
it would make verdicts quicker and easier, would
create less pressure on jurors, and would be consis-
tent with most other Australian jurisdictions.
Arguments for retaining unanimity included:
s It accords with the principle of beyond reason-
able doubt. Arguably, if one or two jurors are
not condent that the accused is guilty, that is
enough to constitute reasonable doubt.
s It allows for greater deliberation of the issues.
s Juries may disagree for good reasons.
s It promotes community condence in the
justice system.
s It is consistent with the requirement of unanim-
ity in trials for Commonwealth offences.
s The number of hung juries is relatively small.
In its conclusions the Commission stated:
We believe that until a comprehensive study is
conducted in NSW to determine the existing prac-
tices in NSW jury trials, and what improvements
need to be made, no major overhaul of the jury
system should be attempted The facts are
that we simply do not know enough about how
actual juries really deliberate and why they reach
the decisions they do ... Until more information
is uncovered as to the problems that need to be
addressed, the introduction of majority verdicts
would be of limited value.
Despite this advice, the NSW government
passed the Jury Amendment (Verdicts) Act 2006. It
amends the Jury Act 1977 (NSW) to allow majority
verdicts of 111 or 101 after a reasonable time
9780521734699part_01_3pp.indd 89
for deliberation has passed (not less R ES E A RC H 4 . 3
than eight hours) and where the court Go to www.austlii.edu.
is satised that it is unlikely the jury will au/au/other/nswlrc/
reach a unanimous verdict. and select from one of
It appears that the changes may have the NSW Law Reform
been politically motivated, rather than Commissions completed
The leg al s y s tem
to reform a law that was not working. reports dating from
An appeal to the law and order vote has 2005. Provide a brief
been a common feature of the political outline of the following:
landscape since the late 1980s in NSW. s the purpose of the
A reason given for the introduction of report
the law was to protect the victims of s the ndings of the
crime from the anguish of a lengthy report.
retrial. The extent to which this law will Ask your teacher for
compromise the right of the accused to some assistance as you
a trial with the highest standard of proof review the report you
remains to be seen. have chosen.
Parliamentary
committees
Parliamentary committees can be established by
both houses of parliament. For example, at the
federal level the House of Representatives and/or
the Senate may not have sufcient time in parlia-
mentary sitting sessions to discuss issues that arise
from a particular piece of legislation. There may be
aws in the effectiveness of a law or the legislation
may be particularly complex, requiring greater
scrutiny. Committees scrutinise government acti-
vity, including policy and administrative decisions,
and oversee the expenditure of public money.
A vote is usually taken to take something to
committee. A committee may involve only Senators
or Members of the House of Representatives. A joint
committee will have both Members and Senators.
A standing committee is a committee that
is permanent during the life of the body that
appointed it. Standing committees inquire into and
report on matters referred to them by the Senate
or House of Representatives, including estimates
of expenditure, bills, and the performance of dep-
artments allocated to them. An example of such a
committee is the Senate Standing Committee on
Finance and Public Administration.
#HA PTERn , AWREFORM 89
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 terms of reference Select committees are small committees the media can be a powerful vehicle for holding
a set of guidelines
appointed for a particular purpose, or a once-only governments accountable.
used to dene the
purpose and scope task. The effectiveness of non-legal mechanisms in
of an inquiry into law Once a committee has been asked to undertake inuencing law reform can depend on the politics
reform
an inquiry, the terms of reference are drawn up. of the day. For example, an issue that affects voters
Hansard
Members of the public as well as experts in a eld in a hotly contested electorate, or an electorate
a full account of what is
said in parliament or in may be asked to give submissions. The committee that is part of the governments key support base,
parliamentary inquiries; will hear witnesses, examine evidence, and is more likely to be addressed than one that affects
named for English
formulate conclusions. The media usually attend voters in a safe seat. If votes in an electorate do not
printer T. C. Hansard
n WHOlRST
printed a parliamentary
transcript
table
to place on the table
for discussion
Figure 4.9 Current affairs programs
on television are able to inuence
popular opinion and apply public
pressure on issues of social and
legal importance.
and report on committee proceedings.
As the hearings are conducted in public, every
submission is recorded in Hansard and avail-
able on the Internet. At the end of the inquiry
the committee will write and table a report in
parliament.
The media
One of the hallmarks of a sound
working democracy is a free
and fair press. This means that
the government is not able to
inuence what is reported and
how it is reported, so stories
that reach the public are an
accurate account of what is really
happening. Another essential
feature of a working democracy
is diversity of media ownership to
dilute the inuence of individuals
or media companies who may
have a particular ideological view
to push.
Because of their large audience
and geographical reach, current
affairs programs like the ABCs
7.30 Report are able to interview
important political gures, such
as the prime minister, state
premiers and cabinet ministers,
about contentious issues. Keeping
citizens informed allows them to
apply public pressure on governments to address
injustices, incompetence or corruption. Thus
pose a threat to seats in parliament, then the issue
may be ignored in the hope that it will eventually
fade from public attention.
The modern media can promote law reform
simply by reporting the stories of individuals who
may suffer discrimination, persecution or nancial
loss due to a poorly framed law. For example, the
plight of victims of sexual assault has received
signicant attention by all forms of mass media
over the past few years. The resulting law reform
recognised that sexual assault is a special crime
which cannot be treated as all other crimes and
requires additional legal responses. This will be
examined in greater detail in Chapter 5.
Non-government
organisations
Non-government organisations (NGOs) are organi-
sations that are independent of governments.
They are under no obligation to conform to any
government policy and therefore can be a source
of objective information about various issues
around the world. This is particularly important
for people who live in countries with repressive
governments that restrict freedom of speech.
The common characteristics of NGOs have been
identied as follows:
s They are formed voluntarily by individuals.
s They are independent of government.
s They are not for private personal gain or prot.
Money generated goes towards the goals of the
organisation, though it may also be used to
produce information and for expenses such as
utilities, publications, and paid employees.

90 C a m b r id g e L e g al S tu d ie s Pre limin ary

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 s Their aim is to improve peoples circumstances
and prospects, within the scope of their
mission.

C. Ball and L. Dunn, Non-Governmental Organisations in the Figure 4.10 !CTION!ID!USTRALIAFORMERLY!USTCARE

Commonwealth: Guidelines for Good Policy and Practice 4HE is part of an international anti-poverty agency active in
OVERCOUNTRIES

The leg al s y s tem

#OMMONWEALTH&OUNDATION,ONDON

NGOs can work with governments where there public as well as governmental inquiries. They may
are shared goals. The Australian governments do this by writing letters, requesting a meeting
overseas aid program has the aim of reducing with a representative or senator, or making policy
poverty in developing countries. The program submissions, or by writing letters to the editor or
is managed by the Australian Agency for Inter- calling talkback radio. A lobby group may also be
national Development (AusAID). Among other an NGO, an industry group or other interest group.
tasks, AusAID provides funding for NGOs within The Lone Fathers Association of Australia has
Australia that have this particular mission and that been a strong advocate for shared equal parent-
undergo an accreditation process to ensure that ing. Amendments to the Family Law Act 1975
they have strong community support. (Cth) in 2006 were intended to encourage the
As a mechanism for law reform the effectiveness use of non-court-based services for dealing with
of NGOs can vary. Some NGOs such as Amnesty relationship difculties and separation, and to
International, discussed in Chapter 2, and Green- ensure that children have meaningful relationships
peace have developed a formidable reputation in with both parents after a separation or divorce. A
their pursuit of goals such as human rights and number of organisations including the Womens
combating environmental threats. Consequently, Refuge Resource Centre, the Family Law Director
they now have the resources and the tactics, devel- of NSW Legal Aid, and Womens
oped over many years, to put pressure on nations. Legal Services NSW made sub-
Due to NGOs independent status, however, missions to a state inquiry into R EVI EW 4 . 3
governments and other institutions can ignore the impact of the amendments, 1 Compare and contrast the
them and continue to carry out practices that are expressing concern that they not aims and methods of the
contrary to the NGOs goals. The Royal Society for only subordinate childrens best following agencies of law
the Prevention of Cruelty to Animals (RSPCA) has interests to the interests of the reform:
campaigned for an end to live animal exports to parents, but also offer reduced a Law Reform Commissions
other countries, while the Australian government protections for victims of family and lobby groups
is reluctant to stop this protable trade. violence. Former Chief Justice of b Parliamentary committees
the Family Court Alistair Nicholson and Law Reform
commented that the amendments Commissions
Lobby groups were ill-researched, unduly inu- c Lobby groups and the
A lobby group is an organised group of people who enced by fathers groups and did media
try to inuence government ministers or other little to reform family law. d Lobby groups and NGOs
members of parliament to advance their social or Lobby groups can be important 2 What are some of the ways
political agenda. The goal may be to change the agents of law reform as long as some individuals can contribute
law, to keep a particular law that already exists, or groups interests are not favoured to an inquiry by a law
to introduce new laws. over others simply because they reform commission or a
Lobby groups target members of parliament, are better organised and can more parliamentary committee on
parliamentary committees, the media and the effectively articulate their views. an issue that concerns them?

#HA PTERn , AWREFORM 91

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precedent
AJUDGMENTTHATIS
authority for a legal
principle, and that
serves to provide
guidance for deciding
cases that have similar
facts
balance of power
the power held by
the political party
whose vote is needed
to pass legislation;
usually determined in
the upper house of
parliament under the
Westminster system of
government
Figure 4.11 The Australian Senate chamber
92 C a m b r id g e L e g al S tu d ie s Pre limin ary
9780521734699part_01_3pp.indd 92
Mec h a n i s m s o f l aw r e f o r m
The mechanisms of law reform are the machinery
that actually brings about changes. These include
judicial and legislative branches of government, as
well as international organisations.
Courts
The manner in which courts make law through
precedent, as outlined in Chapter 2, can be con-
sidered a means of law reform. Precedents made
in higher courts clarify what the law should be,
in cases where the law is in an early stage of
development or where there is a need to clarify
the meaning of words contained in legislation.
Sometimes, matters come before a court
before they have been considered by parliament.
However, courts do not consciously set out to
reform the law. The role of judges is to deal with
the matter before them, and as such law reform in
the courts comes about in an ad hoc or piecemeal
way. Although changes to the law do occur as a
result of judicial decisions, they do so over an
extended time frame.
Even so, it is well recognised that courts,
especially the High Court of Australia, have deli-
vered and will continue to deliver decisions that
revolutionise the legal landscape in Australia. An
obvious example is the 1992 Mabo decision
declaring that native title still existed within
Australia and that the concept of terra nullius
was a legal lie perpet u-
ated by the British at the
time of settlement.
Parliaments
Parliaments today are
the institution where most
law reform is realised.
The process of changing
the law occurs through
the passage of all bills.
The impetus for this type of change, however,
usually comes from other sources: namely the
conditions that lead to law reform and the agents
of reform. Detailed knowledge of the subject
matter is often required to report and comment
accurately on areas where reform is needed,
and parliamentarians expertise does not always
extend to this level.
The parliament is still a place, though, where
proposed laws are debated. This can be a rigorous
and intense process, especially if a proposed law
is controversial or is a radical departure from
previous laws. If a political party holds government,
it obviously has a greater chance of its bills being
passed. A bills fate, however, may depend on
which party or parties hold the balance of power
in the Senate.
Political parties present their policies to the
voters prior to each election, and if voted into
power they are expected to full these promises.
For example, the Labor Party under Kevin Rudd
campaigned in 2007 with the promise of repealing
John Howards Work Choices legislation. By the
end of 2008, the Rudd government had introduced
new workplace relations legislation that abolished
some of the harsher elements found in Work
Choices.
As parliament is the branch of government
that makes law, it will continue to be the main
mechanism by which major law reform will be
carried out.
The United Nations
The United Nations is the chief organisation
involved in international law. The role of the United
Nations in the development and implementation of
international treaties was outlined in Chapter 2. As
such it is the primary mechanism in the evolution
and reform of the law governing nation-states.
The effectiveness of the UN in promoting peace
and security around the world via international
2/9/09 8:35:02 PM
 l e g a l i n fo
Amending Acts

When parliament wants to amend an Act, they are no longer needed. They must contain
it has to pass another Act to accomplish a provision to guard against their purpose
this. For example, the Crimes (Forensic being undone when they are repealed,

The leg al s y s tem

Procedures) Amendment Act 2007 (NSW),
which changed several sections of the Crimes
(Forensic Procedures) Act 2000 (NSW), was
enacted and came into force through normal
parliamentary procedures. However, you
will not nd it in the current statutes of NSW,
because it has been repealed. Indeed, s 4(1)
of the Act states that this Act is repealed
on the day following the day on which all of
the provisions of this Act have commenced.
Whats going on?
Amending Acts are passed for a very
specic purpose: to amend another piece of
legislation. They are often very short-lived,
and once they have accomplished their task,
however. Section 4(2) of the Crimes (Forensic
Procedures) Amendment Act 2007 states that
the repeal of this Act does not affect any
amendment made by this Act.
The function of an amending Act is just
that: to amend. The Act that it amends is
called the principal Act.
You may be able to view amending Acts,
and previous versions of principal Acts,
in some online legislation databases by
choosing History or Acts (Point-in-Time).
Consolidated Acts and In Force Legislation
will usually contain only Acts that are
currently in force i.e. Acts that have not
been repealed.

law is discussed in more detail in Chapter 2. Law

reform may take place when Australia implements
a treaty by passing domestic legislation that takes
account of the international obligations.

Intergovernmental
organisations
As mentioned in Chapter 2, many intergovern-
mental organisations (IGOs) are subsidiaries of
the UN. These bodies are established to meet and
decide upon certain international issues such as
refugees, tariffs and wealth. To this extent they
contribute to international law reform on a global Figure 4.12 The United Nations, Geneva
as well a regional scale through the promotion and
development of multilateral and bilateral treaties. Royal Commissions www.ag.gov.au/www/agd/
agd.nsf/Page/Consultationsreformsandreviews_
Royalcommissions
Other agencies The NSW Coroner www.lawlink.nsw.gov.au/
Other agencies of law reform also exist. Go to the CORONERS
websites below to research the role they perform The Ofce of the NSW Ombudsman www.
in contributing to law reform in Australia. ombo.nsw.gov.au/

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 s Law reform is the process of changing the
law to make it more current, correct defects, s Parliamentary committees are established
SIMPLIFYITANDREMEDYINJUSTICE by both houses of parliament to examine
s The conditions that give rise to law reform are ways of addressing aws in legislation or
changing social conditions, new concepts of simplifying the effectiveness of a law or
JUSTICEANDNEWTECHNOLOGY
s The law must reect social values if it is to
stay relevant and to ensure a high rate of
compliance.
s 7HENTHELAWFAILSTODELIVERJUSTOUTCOMESTO legislature and therefore a committee is set
individuals or groups within the community,
ITMAYMEANTHATNEWCONCEPTSOFJUSTICEARE s The media inuence law reform by keeping
needed.
s The rate of technological change in the
C hap ter s u m m a ry
world today has put the law under signicant
pressure to stay current. The law must change
to accommodate new possibilities.
s Law reform commissions have been
established by various parliaments within
THEIROWNJURISDICTIONSTOREPORTONMATTERS s The primary mechanisms of law reform are
referred to them. They are independent of
government and submit recommendations
that the government can implement fully,
partially or not at all.
M u lt i p le - c ho i c e q ues ti ons
1 Which of the following statements is the most
correct way to describe public morality?
a a shared set of religious beliefs
b crimes committed against the community
c similar values and beliefs held by the
MAJORITYOFTHECOMMUNITYATAPARTICULAR b terms of reference
point in time
d the shared set of beliefs held by the
Australian Parliament
2 Law reform is necessary at times because
technology advances at a rate faster than
the law. Which of the following is not an area
in which the law has had to change due to
technological change?
a identity theft
b same-sex relationships
c )6&PROCEDURES
d collection of DNA evidence
94 C a m b r id g e L e g al S tu d ie s Pre limin ary
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the legislation may be particularly complex
which may require greater scrutiny. It could
also be the case that developments within
society warrant greater attention before the
up.
citizens informed and holding governments
accountable.
s .ONGOVERNMENTALORGANISATIONS.'/S
are organisations that are independent
of governments. Their aim is to inuence
governments to make changes that will
improve peoples conditions.
the courts and parliaments. The United
Nations can be a mechanism of law reform in
Australia through the countrys participation
in international treaties.
3 Law reform commissions have been set up by
parliaments to investigate areas of potential
law reform. Which of the following determines
the scope of their investigation?
a ministers directions to the Commission
c public opinion
d media commentary
4 Which of the following is not an agent of law
reform?
a unions
b the Queen
c superior courts
d lobby groups
5 What could citizens do about a federal law
that explicitly discriminates against naturalised
citizens who were born overseas?
a &ORMA,AW2EFORM#OMMISSIONATLOCAL
level.
b Bring defamation proceedings against TV or
radio stations that run programs on that law.
c Call talkback radio stations and form a
lobby group to pressure parliament.
d Lobby the state Supreme Court.
2/9/09 8:35:03 PM

C hap ter s u m m a ry ta s k s
1 Explain what is meant by law reform.
2 Explain why changing social conditions
contribute to the need for law reform.
3 Explain, using examples, how the law has
lagged behind technology.
4 Discuss the reasons why Australia no longer
imposes capital punishment for murder.
5 Describe to what extent the law has improved
its response to domestic violence.
6 Outline some of the problems that have
arisen with the advent of DNA evidence.
7 Explain why identity crime can be difcult to
prosecute.
9780521734699part_01_3pp.indd 95
The leg al s y s tem
8 Explain to what extent Law Reform
Commissions are an effective instrument for
changing the law.
9 Explain how the United Nations can be a
vehicle for law reform in Australia.
10 Outline the strengths and weaknesses of
the courts and Parliament as vehicles for law
reform.
#HA PTERn , AWREFORM 95
2/9/09 8:35:03 PM
 CHAPTER 5
Law reform in action
c hap ter ob j e cti ve s

In this chapter, students will:

s identify and apply legal concepts and terminology
s discuss the effectiveness of the legal system in
addressing issues
s investigate the interrelationship between the legal
system and society
s discuss the role of law in encouraging cooperation
and resolving conict
s discuss the role of law in initiating and responding to
change
s locate, select and organise legal information from a
variety of sources including legislation, cases, media
reports, international instruments and documents
s account for differing perspectives and
interpretations of legal information and issues
s communicate legal information using well-structured
responses
k e y t er m s/ v oc ab u la r y
Topic 1: Law reform and native title
I M P O RTA NT L EG I SL ATI O N
Racial Discrimination Act 1975 #TH
Aboriginal Land Rights (Northern Territory)
Act 1976 #TH
Aboriginal and Torres Strait Islander Heritage
Protection Act 1984#TH
Native Title Act 1993#TH
Native Title Amendment Act 1998 #TH
Native Title Amendment Act 2007#TH
Native Title Amendment Act (Technical
Amendments) Act 2007#TH
National Parks and Wildlife Act 1974.37
Aboriginal Land Rights Act 1983.37
SI G NI FI C A NT C A SES
Mabo v Queensland;=(#!
Mabo and Others v State of Queensland (No.
2);=(#!

Topic 1: Law reform and contempt of court Milirrpum v Nabalco Pty Ltd
native title express consent  &,2
dispossession indictable offence Wik Peoples v Queensland ;=(#!
martial law sponsorship Members of the Yorta Yorta Aboriginal
native title tort law Community v Victoria;=(#!
nomadic trespass to the person
pastoralists vicarious liability Topic 2: Law reform and sport
terra nullius
Topic 3: Law reform and I M P O RTA NT L EG I SL ATI O N
Topic 2: Law reform and sexual assault Racial Discrimination Act 1975 #TH
sport complainant Anti-Discrimination Act 1977 .37
assault consent Sex Discrimination Act 1984 #TH
civil litigation in camera Australian Sports Commission Act 1989 #TH
conciliation sexual assault Disability Discrimination Act 1992 #TH

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 The leg al s y s tem
Topic 1 Law reform and native title
Topic 2 Law reform and sport
Topic 3 Law reform and sexual assault

relev ant l aw od d l a w

SIGNIFIC AN T C AS ES In the state of Louisiana, USA, a person could land in

Gardner v AANA Ltd ;=&-#! JAILFORUPTOTENYEARSFORSTEALINGANALLIGATOR
Rogers v Bugden and Canterbury-Bankstown
,OUISIANA2EVISED3TATUTES23
 !42 
Theft of an alligator
Taylor v Moorabbin Saints Junior Football
League and Football Victoria Ltd ;=6#!4 A. Theft of an alligator is the misappropriation or
 taking of an alligator, an alligators skin, or a part
of an alligator, whether dead or alive, belonging
Topic 3: Law reform and sexual assault to another, either without the consent of the other
to the misappropriation or taking, or by means of
IM PORTA N T L EGIS L AT ION fradulent conduct, practices, or representations.
Criminal Procedure Act 1986 .37 An intent to deprive the other permanently of the
Criminal Procedure Amendment (Sexual Offence alligator, the alligators skin, or a part of the alligator
Case Management) Act 2005 .37 is essential.
Criminal Procedure Amendment (Evidence) Act
2005 .37 " ;7=HENTHEMISAPPROPRIATIONORTAKING
Criminal Procedure Further Amendment amounts to a value of ve hundred dollars or more
(Evidence) Act 2005 .37 shall be imprisoned, with or without hard labor, for
Crimes Amendment (Consent Sexual Assault not more than ten years, or may be ned not more
Offences) Act 2007.37 than three thousand dollars, or both.

 7HENTHEMISAPPROPRIATIONORTAKINGAMOUNTSTO
SIGNIFIC AN T C AS ES
a value of three hundred dollars or more, but less
R v Anon 'ANGRAPECASE
than ve hundred dollars, the offender shall be
R v MM
imprisoned, with or without hard labor, for not more
R v Mc
than two years or may be ned not more than two
R v Mak and others
thousand dollars, or both.
R v BS and MS 'ANGRAPETRIAL
 7HENTHEMISAPPROPRIATIONORTAKINGAMOUNTS
to less than a value of three hundred dollars, the
offender shall be imprisoned for not more than six
months or may be ned not more than ve hundred
dollars, or both.

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native title
the right of Indigenous
people to their
traditional lands
nomadic
a term used to
describe people who
tend to travel and
change settlements
frequently
dispossession
the removal or
expulsion of people
from their traditional
lands
martial law
military government
and laws imposed on
civilian society, which
overrides civil law
Figure 5.1 Eddie Mabo outside the High Court, with his legal team
98 C a m b r id g e L e g al S tu d ie s Pre limin ary
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To p i c 1: L aw r e f o r m a n d n a t i ve t i t l e
Co n d i t i o n s t h a t l ea d t o l aw
r e f o r m o n n a t i ve t i t le
In basic terms, native title refers to the right
to land by the original inhabitants. In Australia
it has a legal signicance and it is a right to an
area of land, claimed by peoples whose ancestors
were the original inhabitants before European
settlement and who can prove that they have had
a continuous association with that land.
In fact, the term has such signicance that it is
the name given by the High Court to Indigenous
property rights as recognised by the Court in Mabo
and Others v State of Queensland (No. 2) [1992]
HCA 23. The Mabo decision was the rst legal
recognition that the Indigenous people of Australia
had a system of law and ownership of their lands
that existed long before European occupation and
settlement. This recognition overthrew the idea
of terra nullius and subsequent cases have led to
efforts to enshrine native title in legislation.
History of government
policy
Aboriginals, as they were called by past
generations, are more appropriately referred to as
Indigenous Australians, as this term encompasses
both Aboriginal and Torres Strait Islander peoples.
Torres Strait Islanders are of Melanesian origin.
One of the most famous Torres Strait Islanders
is the late Eddie Mabo, who was born on Murray
Island (Mer) and belongs to the Meriam people. We
will refer to Eddie Mabo and his legal battles later
in this chapter.
Indigenous people have inhabited the Austra-
lian continent for the past 50 000 years, living a
mostly nomadic lifestyle. Although they did not
use legal documents or written laws, it is un-
disputed that Aboriginal and Torres Strait Islander
peoples used oral law, customs and traditions to
maintain order and control behaviour. Tribal
elders employed negotiation, discussion, rulings
and sanctions when it came to unacceptable
behaviour, and traditional Indigenous society was
and is rule-governed.
It is clear from the map on page 46 that
Indigenous people lived in distinct tribal and
language groups, and it is not accurate to
categorise Indigenous people as belonging to a
single cultural group. In 1788, when the First Fleet
arrived, the belief at the time was that Aboriginal
and Torres Strait Islander people were savages,
with no concept of land ownership. There were
no fences, landlords, tenants or farms to speak
of, and therefore the British government declared
the land terra nullius (land belonging to no one, or
uninhabited land).
2/9/09 8:35:20 PM
 The colonial laws and policies relating to Some examples of these laws and policies can be
Indigenous people did not serve their interests. seen in Table 5.1.

Table 5.1 Government policies and their effects on Indigenous Australians

Policy/law Effect

The leg al s y s tem

Dispossession/dispersal (17881800s)
Since Indigenous people were not recognised Massive reduction in Indigenous population.
as citizens, it was not a criminal offence to hunt, Traditional Indigenous areas were converted to farming lands.
shoot and kill them. The general belief was that
Indigenous people would eventually die out.
Martial lawIN.37 Aboriginal people could be shot on sight if armed with spears, or
even if they were unarmed and within a certain distance of houses or
settlements.
n-ARTIALLAWIN4ASMANIA Settlers were authorised to shoot Aboriginal people.
Protection (18691909)
Aboriginal Protection Act 18696IC These Acts gave wide powers to the Board for the Protection of
Aborigines, which governed where Aboriginal people could live
ANDWORKWHATJOBSTHEYCOULDDOANDWHOMTHEYCOULDMARRYAND
associate with.
Aborigines Protection Act 1909.37 The powers of the Board under the NSW Act were similarly wide, and
included the power to remove children from homes to be placed in
missions.
Assimilation and integration (19001967)
By this time, Indigenous populations n4HE%UROPEANMAJORITYATTEMPTEDTOTEACHTHE)NDIGENOUS
were a long way from dying out, and the population to be white. This was met with both submission and
policy was to Europeanise them so that resistance.
they would leave behind their language,
culture, artefacts and traditions, become
similar to white people, and integrate into
mainstream society.
Nationality and Citizenship Act 1948 #TH n!BORIGINALPEOPLEBECAME!USTRALIANCITIZENSASDISTINCTFROM
British), along with everyone else, but not all states gave them full
rights, such as the right to vote in Commonwealth elections
nS@%XEMPTIONCERTIlCATESOR@#ITIZENSHIP Effectively, these certicates meant the holders were not Aboriginal.
certicates were given to some Aboriginal They certicates had strict conditions such as requiring a European
people by some states. lifestyle, and could be revoked without warning.
nAMENDMENTSTOTHECommonwealth The amendments gave the right to vote in Commonwealth elections
Electoral Act 1918 #TH to all Indigenous people in states that had not already provided for
this right.
nREFERENDUMAMENDINGTHE#ONSTITUTION The phrase other than the Aboriginal race in any State was removed
FROMSXXVI GIVINGTHE#OMMONWEALTHTHEPOWERTOMAKELAWS
SPECIlCALLYFORTHEBENElTOF!BORIGINALPEOPLE3ECTIONWHICH
provided that Aboriginal people were not counted as part of the
population for census purposes, was deleted.

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 To p i c 1: L a w r e f o r m a n d n a t i v e t i t l e

Figure 5.2 4HE&IRST&LEETARRIVESAT@.EW,AND

R EV I EW 5 . 1
1 Describe the legal system of Indigenous
Australians prior to 1788.
2 Identify the Latin term meaning land
belonging to no one.
3 Describe the three main policies of
Australian governments in relation to
Indigenous people from 1788 to 1967.
List one effect of each policy.

Figure 5.3 Under the policy of protectionism,

Aboriginal people were forced to live on
reserves often under terrible conditions.

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 O p era t io n o f t he lega l s ys tem i n
re l a t io n to n a t i ve t i t le
Part of the rich and diverse cultural heritage of nearly as far west as the current border of Western

The leg al s y s tem

Aboriginal and Torres Strait Islander peoples was
a well-developed structure of laws that governed
their relations with one another and with the land.
All of this changed with European settlement.
It was to take 200 years before this system was
formally recognised.
Australia belonged to the Crown, not to the
Indigenous people.
The concept of terra nullius has had a vast
impact on the Indigenous population. Their treat-
ment by the colonists, loss of land, loss of culture
and dispersal have led to considerable social
problems. This will be discussed in more detail

The doctrine of terra later in the course. By the 1840s, for example,
most Aboriginal people in Tasmania had either
nullius in Australia been killed, died from introduced diseases, or

The term terra nullius means land belonging to been forcibly relocated. terra nullius
The concept of terra nullius has also had an ,ATIN @LANDBELONGING
no one. As a common law concept, it refers not
to no one; the idea
only to uninhabited territory, but also to territory enormous impact on native title claims. Any
and legal concept
that has no recognisable system of law, or social Aboriginal or Torres Strait Islander community that when the rst
that has tried to claim native title has had to prove Europeans came to
or political organisation. Under the doctrine of
Australia the land
reception, when uninhabited land was colonised that they are the traditional owners of the land and
was owned by no one
by Britain and no other system of law was apparent, have an ongoing connection with it. As the land and thus was open to
was considered empty prior to British settlement, settlement
then English law would dominate.
Over the course of a few decades, the perception it also meant that the settlers could possess most

that the country had very few inhabitants, and arable land with government approval which

that they had no political or legal organisation entailed driving off anyone else who might be

and thus no sovereignty, led to the legal ction

justifying British possession and the imposition of
British law. Although Governor Arthur Phillip was
under orders to establish friendly relations with
the native people, and did make serious efforts
in this area, language and cultural barriers meant
that negotiations had limited success. Terra nullius
as a justication for British policy was clearly
evident by 1835, when businessman and explorer
John Batman attempted to lease land from the
Indigenous people in the area around the Yarra
River in what is now Victoria. Batman negotiated
a treaty for the transfer of the land in exchange
for tools, weapons, food and blankets. Shortly
thereafter Governor Richard Bourke declared the
treaty null and void, on the basis that New South
Wales which extended from Cape York in the
north to Wilsons Promontory in the south and Figure 5.4 Indigenous Australians have a strong bond with the land.

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 To p i c 1: L a w r e f o r m a n d n a t i v e t i t l e
living on this land at the time. If the traditional
owners of the land have been forced off their land
(in some cases 200 years ago), how then do they
prove a continuing connection with this land under
Aboriginal law and custom?
The legal status of
Indigenous Australians
up to 1967
The doctrine of terra nullius meant that in the
eyes of the law Indigenous Australians did not
exist as citizens. The criminal laws did not protect
Indigenous people, and throughout the rst half
Figure 5.5 Bill Onus, President of the Victorian Aborigines
Advancement League, was the only Aboriginal to take part in the
of the 19th century, government policies tended
to condone violence. One of the most signicant
and tragic events of the 1800s occurred in New
South Wales at Myall Creek, near Bingara. In June
1838, a group of Indigenous people who had set
up camp on a cattle station were brutally attacked
and killed by a group of white men (11 convicts
and 1 free man), who claimed they were acting
in retaliation for the theft of cattle. Twenty-eight
men, women and children were slaughtered.
The Governor of New South Wales, Sir George
Gipps, ordered a police investigation into the
massacre. This was the rst time that the British
colonial administration had taken a decision to
apply the criminal law on behalf of the Indigenous
people. Initially, the 11 convicts were found not
guilty of the crime. However, a subsequent retrial
sent seven men to their death by hanging. As a
result of this event, any further massacres of
Aboriginal people went unreported.
Up until the 1967 referendum, there were two
references to Aboriginal people in the Constitution:
sections 51(xxvi) and 127. Section 127 excluded
Aboriginal people from the census. Section 51(xxvi)
gave the responsibility for Aboriginal affairs to
state governments. Since there were no federal
laws governing the welfare of Indigenous people,
different states interpreted their rights and legal
status in various ways, resulting in inconsistencies
and inhumanity.
The 1967 referendum did not give Indigenous
Australians the right to vote. The right to vote
in Commonwealth elections had already been
extended to all Indigenous Australians who did
not already have this right under the laws of their
state namely, those in Western Australia and
Queensland by amendments in 1962 to the
Commonwealth Electoral Act 1918 (Cth). The right
to vote in state elections had been achieved in all
states by 1965.
Nor did the referendum grant citizenship to
Aboriginal and Torres Strait Islander people: most
of the federal and state laws discriminating against
MARCHFOR!BORIGINAL2IGHTSREFERENDUM-AY them had been repealed by 1967. However, the

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 referendum became a symbol of the public recog-
nition of the rights of Indigenous Australians, and
its success reects this change in attitudes and
beliefs that was taking place in the 1960s. Over 90
per cent of the population voted yes on the
amendments to the Constitution. Section 51 (xxvi)

The leg al s y s tem

was amended to allow the federal government to
legislate for Indigenous people and to override any
discriminatory state laws. Section 127 was deleted.
From this point on, Aboriginal affairs became a
federal issue, and Aboriginal and Torres Strait
Islander people were counted in the census.

The development of
native title
Native title claims in the
Northern Territory
In 1963, Yolngu people from the Gove Peninsula,
in eastern Arnhem Land, sent a bark petition to
the Commonwealth government protesting the
removal of some 300 hectares of land for bauxite
mining without their permission. The petition
failed to move the federal government to recognise
the rights of the Yolngu people and hence the
Gove land rights case (Milirrpum v Nabalco Pty Ltd
(1971) 17 FLR 141) commenced in the Northern
Territory Supreme Court in 1971. In his ruling,
Justice Blackburn stated that if the Yolngu people
did have any type of native title rights, they would
have been extinguished under common law. Thus,
the doctrine of terra nullius prevailed and they
could not prevent mining on the land.
Three years after the unsuccessful Yolngu
petition, members of the Gurindji people walked
off the job at two cattle stations in the Northern
Territory, protesting against poor working con-
ditions and pay. Their action was also a protest
against dispossession of their traditional lands by
pastoralists.
In 1972, the Australian Labor Party, led by
Gough Whitlam, was elected after 23 years in
opposition. That year, the government established
the Department of Aboriginal Affairs in response
9780521734699part_01_3pp.indd 103
Figure 5.6 0RIME-INISTER'OUGH7HITLAMIN
WITH6INCENT,INGIARIOFTHE'URINDJIPEOPLE
to the failure of the Gove land rights case. A
royal commission into Aboriginal land rights was
established, under Justice Edward Woodward,
who as a barrister had acted for the Yolngu people
in the case. The ndings of the commission led
to the drafting of the Aboriginal Land Rights
(Northern Territory) Act 1976 (Cth). This was the
rst legislation in Australia to establish a land
claim process by which traditional owners could
claim various parcels of land that were listed as
available for claim.
In response to the Gurindji land claim, the
government negotiated with the owners of the
stations to return part of the land to the traditional
owners. The photo above depicts Prime Minister
Gough Whitlam symbolically handing native title
back to the Gurindji people in 1975.
The Mabo cases
Between 1985 and 1992, Eddie Mabo and four other
men from the Murray Islands (the island known
as Mer) challenged the Queensland government in
two cases in the High Court of Australia: Mabo v pastoralists
farmers raising sheep
Queensland [1988] HCA 69 and Mabo v Queensland
or cattle, usually on
(No. 2) [1992] HCA 23. large areas of land
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The rst case questioned the validity of a
state law that attempted to abolish native title by
asserting state ownership of the islands off the
coast of Queensland. The High Court held that the
Queensland Act was inconsistent with the Racial
Discrimination Act 1975 (Cth), because under it,
the Meriam peoples right to own property would
be limited to a greater extent than that of other
members of the community. Where federal and
state laws conict, federal law prevails.
The second case, now known as the Mabo case,
concerned the Meriam peoples rights to occupy
and control Murray Island (Mer). Although Eddie
Mabo and one of his fellow plaintiffs died during
this time, in May 1992, the High Court ruled (by six
judges to one) that Australia was not terra nullius
and that the Meriam people clearly held native title
to their land.
The decision of the High Court in the Mabo
case introduced the legal doctrine of native title
into Australian law. In recognising the traditional
rights of the Meriam people to their islands in the
eastern Torres Strait, the court also held that native
title existed for all Indigenous people in Australia
prior to European contact. To make clearer the
Figure 5.7 Eddie Mabo took his challenge to the High Court and won.
104 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_01_3pp.indd 104
legal position of landholders and the processes that
must be followed in claiming native title, the federal
government passed the Native Title Act 1993 (Cth).
The Mabo case and the ensuing legislation
signicantly changed the legal status of Indigenous
people in relation to native title and gave some
people access to parcels of land throughout
Australia to practise their traditional way of life.
It did not allow Indigenous people to own land,
thereby restricting access to current owners. In
December 1993, during the passage of the Native
Title Bill through parliament, Prime Minister Paul
Keating said:
[T]oday, as a nation, we take a major step
towards a new and better relationship between
Aboriginal and non-Aboriginal Australians. We
give the Indigenous people of Australia, at last, the
standing they are owed as the original occupants
of this continent, the standing they are owed
as seminal contributors to our national life and
culture: as workers, soldiers, explorers, artists,
sportsmen and women as a dening element
in the character of this nation and the standing
they are owed as victims of grave injustices, as
people who have survived the loss of their land
and the shattering of their culture.
R EV I EW 5 . 2
1 Describe the changing legal status of
Aboriginal and Torres Strait Islander
people prior to 1967 and up to 1993. Why
do you think laws have changed?
2 How was the Yolngu peoples native title
claim resolved in court? What was the
newly elected Whitlam governments
response to this decision?
3 Explain the importance of the 1992 Mabo
decision for the legal status of Indigenous
people.
4 Evaluate the statement made by Prime
Minister Paul Keating in 1993 on the
passing of the Native Title Act.
2/9/09 8:35:35 PM
 Growing recognition
of native title in some
countries
Native title means the right of indigenous people to
live on their land and use it for traditional purposes.
Throughout the world there has been growing
recognition of the rights of indigenous peoples to
their own lands. Hunting and shing rights and
land ownership rights have been returned to many
indigenous groups in different countries.
There has also been a move to give greater
self-determination to indigenous groups. Self-
determination means the rights of indigenous
peoples to control the use of their traditional lands,
as well as the local economy and social policy.
Maoris in New Zealand, Inuits in Greenland and
Canada, and Aboriginal and Torres Strait Islanders
are three indigenous groups who have been given
greater recognition in terms of native title and self-
determination in their own countries.
l eg al l i nks
The Native Title Research Unit
(NTRU) provides independent
research on native title. Information
relating to with native title can be
found at its website: http://ntru.
aiatsis.gov.au/index.html
Agencies of law reform
on native title
When claiming traditional ownership of land,
Aboriginal and Torres Strait Islander groups must
have their claims legally validated. The only courts
that can make this determination in Australia are
the Federal Court and the High Court. Initial claims
are brought to the National Native Title Tribunal
but this body cannot make legal decisions about
native title; it can only carry out research and
make recommendations.
9780521734699part_01_3pp.indd 105
Claimants may obtain one of three types of
determination:
s unopposed determination (if the application is
uncontested)
s consented determination (if the parties involved
reach an agreement through mediation)
The leg al s y s tem
s litigated determination (the application is
contested in a court of law, and a judge makes
a decision).
The role of the High Court
With respect to native title claims, the High Court
of Australia has the same role as it does with any
other legal case: as a court that hears appeals
about decisions made in other courts of Australia. It
cannot show sympathy or favouritism or be swayed
by public opinion when hearing these cases.
Initial claims of native title are brought before the
National Native Title Tribunal, which investigates
and mediates claims made by Aboriginal and
Torres Strait Islander peoples. The Federal Court of
Australia will make the determination on whether
native title exists. Any appeal against a determi-
nation is made to a full sitting of the Federal Court
and then to the High Court of Australia. Thus, the
High Court acts as a court of last resort in deter-
mining whether native title exists in claims made
about certain geographical places in Australia.
The role of Parliament
Parliaments role in recognising native title is
enacting legislation to protect the property rights
of Aboriginal and Torres Strait Islander peoples.
Public pressure and lobbying by interested
parties have seen new laws regarding native title
introduced in Australia. As mentioned above, the
Native Title Act 1993 (Cth) was enacted in response
to lobbying by the Indigenous community for
statutory law reecting the Mabo decision, but
also lobbying by the mining and pastoral sectors
concerned about potential claims of native title on
their land.
Members of parliament, as representatives
of their constituents, also have a role to play in
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introducing and encouraging discussion and
debate about issues that concern all Australians.
In this way parliament is able to address issues of
equity and justice.
In 2008, Prime Minister Kevin Rudd apologised
to Indigenous Australians for past injustices inic-
ted on them. Speaking in the House of Repre-
sentatives in Canberra on 13 February 2008, Mr
Rudd said the Parliament apologised for laws and
policies which had inicted profound grief, suffer-
ing and loss on these our fellow Australians. Actions
such as these by politicians and parliament are a
way of bringing about social, if not legal, change.
Major High Court
decisions on native title
and subsequent legal
developments
Native title was not recognised in Australia until
1992, when the High Court, in the Mabo decision,
overturned the doctrine of terra nullius.
The Mabo case
The Mabo case is important because it led to the
introduction of native title legislation. It is also
signicant because it gave recognition to the
Indigenous inhabitants of Australia.
In this case, the High Court recognised the
existence of native title for a group of Murray
Islanders in the Torres Strait. Eddie Mabo argued
that they could prove uninterrupted occupancy
of traditional lands, and that the state legislation
annexing the islands did not extinguish their pre-
existing rights to it.
The case required the High Court to consider
the legality of the declaration of terra nullius. The
court ruled that the islanders were the traditional
owners of the land and that they had the right
to possess and occupy the islands and enjoy use
of their traditional lands. The High Court also
established guidelines for future claims of native
title. These guidelines included the provision of
compensation where the native title rights were
taken back by the federal government.
106 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_01_3pp.indd 106
As a result of the Mabo decision, the federal
government enacted the Native Title Act 1993 (Cth).
The purpose of this Act is to:
s provide for the recognition and protection of
native title
s establish ways in which future dealings that
affect native title may proceed and set stan-
dards for these dealings
s establish a mechanism for determining native
title claims
s provide for the validation of past grants of
property interests that may be thrown into
doubt because of the recognition of native title.
The Act stopped short of dening native title
and created the Native Title Tribunal to determine
the validity of native title claims. If native title
holders are unable to reclaim their lands and thus
exercise their rights, the tribunal determines the
compensation to be paid.
The Wik case
The Mabo decision and the Native Title Act resulted
in other Aboriginal groups attempting to reclaim
land. The Wik and the Thayorre people launched
a case against the Queensland government in
1996 (Wik Peoples v Queensland [1996] HCA 40),
claiming native title rights to land that was being
used by pastoralists, under pastoral leases. Under
a pastoral lease, the government owns the land
but the farmers have exclusive right to use it. The
Federal Court ruled that the existence of pastoral
leases extinguished the right to native title. This
decision was appealed to the High Court, which
ruled that the Wik and Thayorre people were
entitled to their traditional lands. The court found
that pastoral leases and native title could coexist,
but that when conict arose the pastoral leases
would prevail.
While the Wik decision did not grant automatic
title over Crown land, it caused concern among
pastoralists and mining companies that they
would have to enter into lengthy negotiations with
Indigenous people over access to and use of land.
In response to this concern in rural Australia,
the federal government enacted the Native Title
2/9/09 8:35:37 PM
 Amendment Act 1998 (Cth), which amended the
Native Title Act 1993 (Cth) but also introduced
some changes on its own. There was much debate
in parliament over this Act before it was passed.
While the government had a large majority in the
House of Representatives, it did not enjoy as much
support in the Senate.
The main provisions of the Act are as follows:
s It extinguished native title over any land that
was considered privately owned prior to
1 January 1994.
s When native title exists alongside a pastoral
lease, the pastoralist is allowed to use the
land for primary production without having to
consult people who have native title interests.
s Tough tests were imposed to determine right
to native title. At least one member of the
claimants must prove a continuous link with
the traditional lands.
The Yorta Yorta native title case
The Yorta Yorta people are Indigenous Australians
whose traditional lands are located in north-east
Victoria. They applied to the Native Title Tribunal
for determination of native title in respect of public
land and water in February 1994. The Yorta Yorta
Aboriginal community claimed that some areas of
state forests and waterways in northern Victoria and
southern New South Wales were their traditional
lands. The Native Title Registrar, who assesses
claimants applications to the Tribunal, accepted
their application in May 1994 and it was subject to
mediation from September 1994 until May 1995. It
was then referred to the Federal Court.
The claim was dismissed by the Federal Court.
Justice Olney concluded that the evidence did
not support the claim, as the Yorta Yorta people
had stopped occupying their traditional lands in
the 19th century. He said: The tide of history has
indeed washed away any real acknowledgment of
their traditional laws and any real observance of
their traditional customs.
The Yorta Yorta people appealed this decision
but the Full Court of the Federal Court upheld
Justice Olneys ndings.
9780521734699part_01_3pp.indd 107
The Yorta Yorta then R EVI EW 5 . 3
appealed to the High Court 1 Dene native title and
(Members of the Yorta Yorta self-determination. Which
Aboriginal Community v Victoria Indigenous groups have
[2002] HCA 58). They claimed gained greater recognition in
that the trial judge and the these areas?
The leg al s y s tem
majority of the Full Court had 2 Assess the signicance of the
been wrong in requiring them to Mabo decision.
prove continuous observance of 3 What was the impact of the
traditional laws and customs in Wik case?
relation to land. The High Court 4 Explain how a government
handed down its decision in might respond to the
December 2002 and upheld the following. Give examples.
decision of the Federal Court by a a court decision whose
a majority of ve to two. outcomes or likely
In its decision, the High consequences the
Court considered the meaning government supports
of the phrase traditional laws b a court decision whose
and customs and what was consequences are as yet
required for proving continuous unclear
observance of these laws and c the concerns of groups
customs. In its decision, which within society about a court
was to inuence future native decision
title claims, the court held that in 5 Identify the native title claim
order to prove native title, claim- of the Yorta Yorta community.
ants must establish there has 6 Outline the legal history of
been an acknowledgment and their claim to native title.
observance of laws and customs 7 Explain the reasons their claim
on a substantially uninterrupted was denied.
basis since the arrival of British 8 How does this decision affect
sovereignty. The fact that these other native title claims?
laws and customs have been
passed down orally is not suf-
cient; claimants must show that their way of life
is inuenced by these traditions. In this way, the
High Court decision claried the law with respect
to the evidence required to prove native title.
The National Native Title
Tribunal
The National Native Title Tribunal is a federal
government agency set up under the Native Title
Act 1993 (Cth). It mediates native title claims under
the direction of the Federal Court of Australia.
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The aim of the Native Title Tribunal is to help
to resolve native title issues. The tribunal plays a
variety of roles; for example, it acts as an arbitrator
in some situations where the people involved cannot
reach agreement about proposed developments. It
also assists people who want to negotiate other sorts
of agreements, such as Indigenous land use agree-
ments. If requested, the tribunal will assist people in
negotiations about proposed developments (future
acts), such as mining. It is not a court and does not
decide whether or not native title exists.
Native title legislation
State legislation
As discussed, the Mabo and Wik decisions led to
Commonwealth legislation in the area of native
title and self-determination for Aboriginal people
and Torres Strait Islanders. State legislation has
also been enacted to give rights to and protect the
interests of Indigenous Australians.
The National Parks and Wildlife Act 1974 (NSW)
provides for the protection of places and relics
which are of signicance to Aboriginal culture.
Under this Act, it is an offence knowingly to
destroy, disturb or remove these objects or to
destroy, deface or damage these places.
The Aboriginal Land Rights Act 1983 (NSW)
recognises that:
s land was traditionally owned and occupied by
Aboriginal people
s land has spiritual, social, cultural and economic
signicance to Aboriginal people
s it is appropriate to acknowledge the importance
of land to Aboriginal people
s government decisions made in the past have had
a negative effect on Aboriginal land ownership.
l eg a l l in k s
The Federal Court of Australias
website provides information about
the processes in claiming native
title: www.fedcourt.gov.au/litigants/
native/litigants_nt_what.html
108 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_01_3pp.indd 108
This Act established a system of land councils.
The NSW Aboriginal Land Council has the power
to make claims on Crown land, approve or reject
agreements to allow mining on Aboriginal land,
conciliate disputes, and advise the state government
on land rights. The Act provided for the ownership
of reserve land to be transferred to the Aboriginal
people, through a local or the state Land Council, but
in fact only a small percentage of land has been so
transferred. Section 28 of the Act provided for 7.5%
of land tax in NSW to be paid to the state Aboriginal
Land Council to meet administrative costs and to
nance land purchases and future development,
but this ceased in 1998 due to a sunset clause in
the Act, and s 28 was repealed in 2001.
The Act also permits local Land Councils to
negotiate agreements with the owners of land to
give Aborigines access to the land for the purpose
of hunting, shing or gathering.
Federal legislation
Federal parliament has enacted legislation to pro-
tect all parties involved in and affected by native
title claims. As discussed above, the Native Title
Act 1993 (Cth) was the Australian governments
response to the High Courts Mabo decision. The
Act provides for the recognition of native title and
the integration of this form of property right into
the land title system.
The Howard federal government responded
to the High Courts Wik decision with the Native
Title Amendment Act 1998 (Cth). The amendments
incorporated the High Courts decision that native
title rights could coexist on land held by pastoral
leaseholders. The same government amended the
legislation by the Native Title Amendment Act 2007
(Cth) and the Native Title Amendment (Technical
Amendments) Act 2007 (Cth). The 2007 changes
were intended to improve the overall efciency of
the processes involved in claiming native title.
Commonwealth legislation has also been
enacted to provide some Indigenous rights over
bodies of water. The Aboriginal and Torres Strait
Islander Heritage Protection Act 1984 (Cth) is used
to protect areas of water and of land that have
cultural signicance for Indigenous people.
2/9/09 8:35:38 PM
 Native title as a
collective right
A collective right is one that is claimed and
shared by a group of people. Native title is a
collective right as it cannot be claimed by an

The leg al s y s tem

individual, only by a group (for example the
Wik people). All members of the group share
the rights that are gained.
However, despite native title being a
collective right, an individual can bring a
claim before the courts, as seen in the Mabo
case. As the individual is acting on behalf of
the group, all members of the community
Figure 5.8 An Aboriginal boy shes in Manbalbirrlarri billabong
that he or she represents will share the rights
AT$JUKALAJARRANG!RNHEM,AND4HISISAVERYSPECIALPLACEFORTHE
gained.
Ganalbingu clan with important rock art, burial caves, secret and
sacred sites.
Ef fec t iveness of law reform i n
re l a t io n to n a t i ve t i t le
As we have seen, there has been progress in the
area of law reform relating to native title. However,
this progress has been relatively slow. Due to the
very nature of the law, all those involved in native
title claims must be considered when proposing
and enacting new legislation, and as such, the
Native Title Act 1993 (Cth) and its amendments
recognise not only the rights of the traditional
owners, but also those of current landholders.
Although one of the biggest legal steps forward
was the overturning of the concept of terra nullius
in the Mabo case, the initial use of terra nullius by
the British has continued to be a major stumbling
block by those communities making native title
claims. Consider the Yorta Yorta peoples claim for
their traditional lands in Victoria. The court cases
took eight years and the claim was eventually
denied. The basis of the High Courts determination
was that the Yorta Yorta could not prove a recent
history of traditional ownership of this land. The
main reason that they could not prove this history
of ownership was because when the British took
9780521734699part_01_3pp.indd 109
over this land they excluded the Yorta Yorta
community. This is a problem faced by other
Aboriginal and Torres Strait Islander communities
in claiming traditional ownership.
It is undeniable that major
steps have been taken with R EV I EW 5 . 4
respect to native title, by both the 1 Draw a timeline showing the
judicial and legislative branches recognition of native title
of government. However, those rights and self-determination
interested in reform are also faced for Aboriginal and Torres
with the fact that the law protects Strait Islanders in Australia
the property rights of people and in New South Wales.
who themselves had nothing to 2 Outline the major legislation
do with colonial dispossession, governing native title at the
but whose interests are at odds federal and state levels.
with native title claims. Future 3 Outline the major federal and
progress is likely to depend on state legislation protecting
the articulation and maintenance places and objects of cultural
of new concepts of justice, and signicance for Indigenous
sustained public commitment to people.
electing governments that will 4 In what way is native title a
legislate for those aims. collective right?
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sponsorship
the support of an
individual, event, or
organisation nancially
or through the
provision of products
or services
To p i c 2 : L aw r e f o r m a n d s p o r t
Co n d i t i o n s t h a t l ea d t o l aw
ref o rm i n s por t
Australia and sport are terms that are almost the sponsor to gain exposure to millions of viewers.
synonymous. Sport is a part of Australian culture
and Australians have performed incredibly well
on the world stage for many years. Winning
world championships is a matter of great pride,
particularly in swimming, rugby union, netball
and womens basketball. In addition, Australian
sport has become big business. The rise of full-
time or professional sport means that athletes such
as Darren Lockyer (NRL), Kieren Jack (AFL) and
Mortlock Stirling (Super 14) are at work when we
watch them playing live or on a television screen.
These athletes are considered employees and their
teams or organisations are their employers.
Large corporations now favour associating
themselves with a team or competition through
sponsorship deals that provide material support
in exchange for advertising. The names and logos
of national and multinational companies can be
seen on football players jumpers and prominently
displayed around the grounds; a major sponsor of
Cricket Australia has been a fried chicken chain.
These multimillion-dollar sponsorship deals enable
The standards to which players and coaches are
held go beyond the ordinary expectations of
etiquette owed to the team and to competitors, as
not only the club but the sporting code and the
sponsoring companies are brought under scrutiny
by antisocial behaviour.
Athletes movements off the eld are just as
closely scrutinised by the public and fans as their
on-eld performance. The media are not hesitant
about reporting behaviour that is not appropriate
for a role model, and some players such as Todd
Carney of the NRL and Ben Cousins of the AFL have
incurred suspensions from their sporting bodies
for drink-driving and drug use, respectively.
Government has also taken a greater role in
sport over the past three decades. The Australian
Institute of Sport (AIS) was established in 1981
after more than eight years of government-
commissioned studies of sports institutes in
Europe. The purpose of the AIS is to develop the
highest quality of sport by providing facilities and
funding to athletes and organisations.

Figure 5.9 -ICHAEL#LARKE3ERENA7ILLIAMS!&,FOOTBALLERS*ASON!KERMANIS"ULLDOGS AND

+IEREN*ACK3YDNEY3WANS

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 SPORT LAW

Discrimination
Contracts
Criminal offences laws
(e.g. Sonny Bill Torts
(e.g. drug use) (e.g. Trudy
Williams)

The leg al s y s tem

Gardner case)

e.g. Trespass
e.g. Negligence
against person
Richard Vowles
assault/battery

Figure 5.10 Sport law spans a number of different areas of law.

In addition to changes in the way sport is seen,
there have been broader social changes that affect
the ways in which sport and the law interact.
Greater willingness to hold others accountable
for harm and to seek civil remedies for real or
perceived wrongdoing has affected both amateur
and professional sport.
Sport law ranges over the areas of contract law, his decision.
tort law, and the criminal law, and encompasses
efforts to promote safety in sport, to provide
remedies for those injured, to regulate behaviour on
$450 000 per year by the Canterbury Bulldogs in
the NRL. Although contracts are broken from time
to time in many areas of business, often leading
to civil litigation, it came to most fans as a huge tort law
the body of law that
surprise when Williams broke his contract in 2008
deals with civil wrongs
by leaving Australia to play rugby union in France, including negligence,
without even telling the club or his team-mates of defamation, trespass
and nuisance
civil litigation
Many sporting contracts contain get-out clauses
court action brought
for both parties so that if players are injured or to remedy a wrong or
playing poorly, clubs may release them from their breach of contract

and off the eld, and to ensure equal opportunity

and fair treatment for individuals and groups who
engage in sport. As social attitudes change, the law
must develop accordingly. We will look at some of
the areas in which it has had to accommodate new
patterns and demands.
As discussed in Chapter 4, law reform can be
prompted by the recommendations of specialised
law reform bodies or various other agencies or
agents, and it can be brought about directly by
court decisions or legislation.

Civil law: breach of

contract
Professional athletes are required to sign contracts
that legally bind their playing services to a club Figure 5.11 Sonny Bill Williams lost a large sum of money when he
and a competition. Sonny Bill Williams was paid breached his contract with the NRL Bulldogs.

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 To p i c 2 : L a w r e f o r m a n d s p o r t
contempt of court
words or actions that
show a disregard for
the authority of the
court or interfere with
its powers
express consent
consent given directly,
either oral or written
REVIEW 5.5
1 Dene the term sport law.
2 What are some of the
consequences of sport being
big business?
3 What mechanisms for
resolving a contract dispute
were attempted in the Sonny
Bill Williams case? What was
the nal outcome?
indictable offence
a serious criminal
offence that requires
playing lists. However, in this case, there was no
get-out clause; Williams sought a release from his
contract to play for another team for a far greater
salary.
The chief executive ofcer of the NRL called on
the International Rugby Board, the governing and
lawmaking body for rugby union, to stop Williams
from switching codes. The board said it had no
jurisdiction over individual clubs contracts.
The Bulldogs and the NRL obtained a temporary
injunction preventing Williams from playing for
the French club, Toulon, and initiated proceedings
in the NSW Supreme Court. The consequences
of breaching the injunction could have been
contempt of court proceedings against Williams,
or the Bulldogs may have been able to seize his
assets. As Williams is an outstanding player who
draws many fans, and the Bulldogs had invested
much time and money in his training
and development, his breach of
contract could have entitled them to
damages.
A settlement was eventually
reached between the parties, with
Williams being ordered to pay
$750 000 to the Bulldogs, and agree-
ing not to play in the NRL before
2013. His contract with the Bulldogs
would have expired in 2012.
Harm suffered in sport
There is a long-standing adage in sport that what
happens on the eld stays on the eld. It means
the safety of players. In rugby union, eight players
pushing against each other creates a dangerous
situation and refeeres must follow certain proce-
dures before they allow a scrum to begin.
Amateur and professional players give express
consent to acts that would constitute the basis for
the criminal offence of assault an indictable
offence when done in a non-sporting context.
When players participate in various sports, they
accept the risk of harms that can occur within
the course of the game. In contact sports such as
rugby league, rugby union and Australian Rules
football, players can break bones, be rendered
unconscious and in extreme cases, be injured to
the point of quadriplegia. For example, grabbing a
person and slamming him to the ground would be
the basis of an assault charge if inicted without
consent. However, players give express consent to
tackles in rugby. They do not give express consent
to behaviour that is prohibited by the rules.
In 2001, John Hopoate, an NRL player for the
Sydney-based Wests Tigers, was brought before
the NRL Judiciary for inserting his nger between
opposing players buttocks after they had been
tackled. Hopoate was caught on video clearly
carrying out the offences and was found guilty of
unsportsmanlike interference. He maintained that
he had done nothing wrong and stated, Im a great
believer in what happens on the eld should stay
there. He was suspended from play for 12 weeks.
Avenues for justice: civil or
criminal?
Interference with another person outside the
ANINDICTMENTAFORMAL that if there is an altercation or disagreement
written charge) and a between players during a competitive match, it
preliminary hearing;
is to be forgotten when the full-time siren sounds
indictable offences are
typically tried before and complaints are not to be made to referees,
AJUDGEANDJURYAND sporting administrators or indeed police.
ARESUBJECTTOAGREATER
Rules of games or sports are different from laws.
penalty
However, when made by sporting bodies, they
are often referred to as codes of conduct that all
players are required to follow. Such rules may also
include specic rules in contact sports that concern
rules of sport, or threats that cause a person to
apprehend immediate and unlawful violence, can
constitute assault, leading to criminal charges.
However, those involved in sport often choose to
use the professional judicial mechanisms, such as
league tribunals, to enforce codes of behaviour
and impose sanctions.
Others have chosen to sue other players or clubs
for damages and loss of wages through the civil law
system. As discussed in Chapter 3, the standard

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 of proof required of the prosecution in a criminal
case is beyond reasonable doubt. In a civil case,
the plaintiff need only prove the defendants
liability on the balance of probabilities. This just
means that it is more probable than not that the
defendant is responsible for the wrong suffered

The leg al s y s tem

an easier requirement to satisfy.
In addition, while there are criminal
compensation schemes for victims, maintained
and administered by the state, the sums involved
are generally much lower than the amount of
nancial compensation that a successful plaintiff
could receive in damages. The maximum
compensation available in NSW for a victim of
a violent crime is $50 000. Since professional
athletes can earn hundreds of thousands of
dollars a year, victims compensation is seen as
inadequate. When pursued as a civil case, direct
contact with a persons body without the persons Figure 5.12 Tackles in many contact sports are
consent is one of the intentional torts of trespass fairly common.
to the person.
Another avenue that may be taken in the civil rugby league in NSW. Kennedy sued both Pender trespass to the
person
law is negligence, where a club, league or other and the Narooma Rugby League Football Club for
a tort involving direct
agency involved in sport has failed to full its $40 000 in medical bills. The clubs lawyers argued contact with a persons
duty of care to the participants. In a high-prole that because the players were volunteers, the club body without that
persons consent
NSW case (Rogers v Bugden and Canterbury- could not be responsible for their conduct.
vicarious liability
Bankstown (1993) ATR 81-246), Steve Rogers sued The NSW District Court held that although
the legal liability
Mark Bugden after a high tackle from Bugden in players were not paid to play, the benets that imposed on one
a 1985 rugby league match broke his jaw. Rogers they derived from the relationship were signicant person or agent
EGANEMPLOYER
experienced dental problems, surgery, pain and enough to form a relationship of employment, and
for the wrongful acts
distress. Compensatory damages of more than Pender was doing what the club expected him of another, when
$68 000 were awarded and the court held that to do. those acts were done
within the scope of
Bugdens club bore vicarious liability for the the legal relationship
assault because Bugdens actions were done in the between them, such as
course of his employment as a player. His contract R EVI EW 5 . 6 employment

authorised the use of force when tackling.
Other professional athletes have
damages for loss of wages, in addition to medical
expenses, pain and suffering.
Even in the non-professionalised world of
amateur sport, material loss may be considered in
the decision as to the quantum of damages awarded.
In 1997, Darren Kennedys jaw was broken by a
high tackle by Gary Pender in an amateur game of
1 Consider the idea that what happens on
sought the eld, stays on the eld. Is it ever an
appropriate approach to behaviour in
sport? Discuss, with illustrations.
2 Explain why athletes would rather pursue
action in civil law courts rather than
through the criminal justice system.
3 Explain what it means for a club to be
vicariously liable for the acts of its players.

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 To p i c 2 : L a w r e f o r m a n d s p o r t

Equal opportunity in the average boy has greater lean body mass

sport than the average girl, and there is an appreciable

difference in their performance in sports. The
In 2003, a junior Australian Rules Football league
judges task was to determine at what age there
in Victoria banned a 13-year-old from playing in its
is a lawful reason to separate the boys from the
competition because of her sex. The player, Helen
girls. He concluded that the differences are not
Taylor, along with two other girls aged 14 and 15,
sufciently great in the under-14 age group, but
challenged the ban.
they are sufciently signicant in the under-15 age
While both the number of girls and women
group. So excluding Helen Taylor was unlawful,
involved in sport and the range of sports open
though not the exclusion of the other two girls. The
to female players have increased dramatically
judge added that it would be preferable if Football
over the past few decades, there are still some
Victoria would, instead of excluding girls, give
challenges to be addressed,
them the choice of whether to participate.
RES E A RCH 5.1 socially and legally.
While the decision was a victory for Helen
Go to www.austlii.edu.au/au/legis/ Taylors case, in the Victorian
Taylor, questions remain about its application
nsw/consol_act/aa1977204/ and Civil and Administrative Tribunal
to other sports, and how great the differences
look at the Anti-Discrimination Act (Taylor v Moorabbin Saints Junior
between boys and girls physical attributes would
1977 (NSW). Football League and Football
have to be in other sports in order to justify an
1 Discrimination on the basis Victoria Ltd [2004] VCAT 158),
exception to the relevant legislation.
of sex is explicitly prohibited questioned the exclusion of
There are also differences in the legislation
by this Act. What other all girls aged 12 or over from
of the various states and territories. In NSW, the
characteristics of persons competing alongside boys in
exception to the prohibition of sex discrimination
besides their sex do not justify the junior competitions. Despite
is much less specic, and allows female (or male)
discrimination, according to the anti-discrimination legislation in
players to be excluded in any circumstances.
Act? the various states and territories
Section 38 of the Anti-Discrimination Act 1977
2 Are any of these characteristics and at federal level, all Australian
(NSW), headed Sport, states:
relevant to discrimination jurisdictions contain exceptions
within sport? Can you imagine allowing exclusions on the basis Nothing in this Part renders unlawful the exclusion
situations in which they might be of sex. The Equal Opportunity of persons of the one sex from participation in
relevant? Discuss. Act 1995 (Vic) permits the any sporting activity not being the coaching of
3 Is a persons sex different exclusion of one sex from a persons engaged in any sporting activity, the
in any way from these other sport if strength, stamina or administration of any sporting activity or any
characteristics? Why or why not? size is relevant. Post-puberty, prescribed sporting activity.

Agencies of law reform i n spor t

The Australian Human
Rights Commission
The Australian Human Rights Commission is an
independent statutory organisation, established in
1986. It was called the Human Rights and Equal
Opportunity Commission (HREOC) prior to 2008.
It investigates and reports to federal parliament
about issues of human rights compliance; resolves
discrimination complaints and breaches of human
rights; holds public inquiries; provides advice
and submissions to parliament; and conducts

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 research into human rights and discrimination
issues. These issues cover a broad range of areas,
including employment, education, the provision of
goods and services, and sport.
The Human Rights Commission can investigate
complaints of discrimination and assist in reach-
ing agreement between a complainant and the
organisation or company against which the com-
plaint is made. It does this through conciliation,
in which it acts as an impartial referee while the
parties talk through their concerns and look for
solutions.
In 2001, the All Australia Netball Association
(AANA) issued a ban to prevent pregnant women
from playing in the Trophy competition. This
included the captain of the Adelaide Ravens, Trudy
Gardner, who was 15 weeks pregnant at the time.
Gardner lodged a complaint with HREOC,
claiming discrimination on the grounds of her
pregnancy under the Sex Discrimination Act 1984
(Cth). Gardner and AANA were unable to resolve
the disagreement in that forum and she took the
them to court, seeking an injunction to allow her
to continue to play pending the outcome of her
complaint. She missed three games due to the
ban, but the Federal Magistrates Court granted
the interim injunction. As a result of missing those
three games, Gardner lost match payments and
sponsorship.
Gardner successfully sued the Netball Asso-
ciation in 2003 (Gardner v AANA Ltd [2003] FMCA
81), seeking damages for distress, pain and suf-
fering, as well as the loss of the match payments
and sponsorship money. The Federal Magistrates
Court found that the prohibition had breached ss 7
and 22 of the Sex Discrimination Act.
The Australian Sports
Commission
The Australian Sports Commission (ASC) is a
statutory authority of the Australian government.
Established through the Australian Sports Com-
mission Act 1989 (Cth), the ASC plays a role in the
development and operation of sport at all levels.
9780521734699part_01_3pp.indd 115
It provides advice to the government and funding conciliation
a method of legal
to national sporting organisations. The Australian
dispute resolution
Institute for Sport (AIS), mentioned above, is one involving a third party
of its divisions. who helps the parties
to reach agreement
As a result of the netball ban, the ASC was asked
to investigate the issues surrounding pregnant
The leg al s y s tem
athletes. It hosted the National Forum on Preg-
nancy in Sport in August 2001, with participants
from government, industry and non-government
organisations. The conclusions formed the basis
for a set of guidelines for the Australian sporting
industry on pregnancy in sport.
In addition to clearing the way
R ESEARC H 5 . 2
for pregnant women to continue
Go to www.humanrights.gov.au
to play sport, the guidelines offer
and research other areas dealt
information and advice to protect
with by the Australian Human
sporting clubs. As employers,
Rights Commission in relation
clubs are concerned to avoid
to sport. You might rst try
being sued for negligence if a
searching the site using the
player suffers foreseeable harm
word sport.
to herself or her foetus while
engaging in sport.
Figure 5.13 Netballer Trudy Gardner, who lodged a complaint with
HREOC, claiming discrimination on the grounds of her pregnancy
#HA PTERn,A WREFORMI NACTI ON 115
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 To p i c 2 : L a w r e f o r m a n d s p o r t
Mec h a n i s m s o f l aw r e f o r m
i n spo r t
The courts
As discussed in Chapter 4, the courts role in
interpreting legislation as applied to a particular
Figure 5.14 Nick DArcy was
convicted of inicting bodily
harm and subsequently dropped
from the Olympic Swim Team.
RE VIE W 5.7
1 How could it be argued
that the law as it relates to
pregnant athletes should be
different from ordinary laws
protecting equal opportunity
for women athletes?
2 What types of matters
are heard by the Court of
Arbitration for Sport?
3 Is a ght on a football eld in
a close match different from
a ght on a street corner and
if so, should penalties for
ghts on the sporting ground
be less than for assaults
committed on the street?
116 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_01_3pp.indd 116
case is to clarify its meaning. Where
a higher court sets a precedent, it
is making a statement about the
purpose of the legislation and the
way the law should be applied in the
future. A courts consideration of a
situation and the arguments for and
against a claim can reveal unfairness
or injustice in the legislation itself.
The Federal Sex Discrimination
Commissioner in 2003, Pru Goward,
commented on Gardners case,
saying that it was good to see the
courts developing case law around
the Sex Discrimination Act. The
circumstances of pregnant women
continuing to pursue sport at high
levels constituted a new appliation of
the anti-discrimination legislation.
The Court of Arbitration
for Sport
The Court of Arbitration for Sport
(CAS) was established in 1984 as part
of the International Olympic Commit-
tee. It is an international arbitration
body set up to settle disputes related
to sport. It is based in Lausanne,
Switzerland, and has courts in New
York City and Sydney, as well as ad
hoc, temporary courts in Olympics
host cities. The CAS settles disputes
through arbitration, where the parties
have agreed to its jurisdiction, and its
decisions are binding. It hears two
types of dispute:
s commercial, including contract disputes,
sponsorship, and television rights, as well as
civilliability claims, such as athletes accidental
injuries during competition
s disciplinary, including drug-related problems,
violence on the eld, and abuse of referees.
Disciplinary cases are generally rst dealt with
by the competent sports authorities, for example
the Australian Olympic Committee. Appeals then
may go to the CAS.
Many of the disputes brought before the CAS are
quite serious. A recent case is that of Nick DArcy, a
swimmer chosen for the Australian Olympic team
in 2008. At a celebration party on the night he was
chosen, DArcy was involved in an argument over
alcohol with a fellow swimmer. DArcy punched
Simon Cowley, breaking his nose, eye socket and
jaw, and was subsequently convicted in the NSW
Local Court of recklessly inicting grievous bodily
harm. The Australian Olympic Committee dropped
him from the Olympic team for bringing the team
into disrepute. DArcy unsuccessfully appealed to
the Court of Arbitration for a place on the 2008
Olympic team. No precedent was set in this case.
After discussions with Swimming Australia, the
sports governing body, DArcy agreed that he
would not swim competitively until August 2009.
Parliaments
As we have seen, matters sometimes come before
a court before they have been considered by
parliament. When a legal decision reects new
social patterns or attitudes, parliaments may
enact, amend or repeal legislation to ensure that
the statute law stays current and credible. This
often happens after extensive consultation with
bodies such as law reform commissions, human
rights commissions, or in the case of sport law
the Australian Sports Commission.
2/9/09 8:36:12 PM
 Ef fec t iveness of law reform
i n t he s p o r t i n g wo r l d
Contract
Breaches of contract in the sporting world
may have different particulars from breaches
of contract in other areas of business, but the
mechanisms and remedies are not markedly
different. The Sonny Bill Williams case examined
above illustrates the increasingly global nature of
commercial sport, and may be interesting because
it crossed jurisdictional boundaries: two countries
and two different rugby codes. However, it is not
clear that there is a signicant need for law reform
in this area.
Harm suffered in sport
A greater readiness to sue and the professional-
isation of sport are two social factors contributing
to players preference for civil remedies rather
than the criminal law. While the sums of money
involved are relatively large in professional sport,
the purpose of tort law remains the same: to
compensate people for losses or damage suffered
as a result of wrongs done to them.
Clubs, teams and referees are under a duty of
care to safeguard their players health and welfare,
especially with respect to reducing the risk of
injury. In 1998, a rugby union player, Richard
Vowles, successfully sued the Welsh Rugby Union
for damages after he became a quadriplegic
in a scrum that collapsed, breaking his neck.
According to the rules, the referee should not have
allowed that scrum if he considered that it would
be dangerous to continue.
One consequence of widespread recourse to the
civil law is fear of lawsuits. For example, schools
may decide to phase out contact sports such as
rugby if claims by students injured while playing
become a common occurrence. Another concern
is that players who are seriously hurt in situations
9780521734699part_01_3pp.indd 117
where no one is at fault for example where a
The leg al s y s tem
tackle is perfectly within the rules of the game
are just as much in need of nancial assistance as
those awarded damages, yet insurance coverage
may be inadequate to their needs. While these
are legitimate concerns, it is hard to see how
law reform would be the appropriate means of
addressing them.
Equal opportunity
in sport
Local, national and international interest in
ensuring womens equality with men in all areas,
including participation in sport, has prompted
legislation at both state and federal level. Australia
is a signatory to the United Nations Convention on
the Elimination of All Forms of Discrimination
Against Women, and domestic legislation imple-
menting this treaty makes discrimination on the
basis of sex unlawful.
In addition, legislation such as the Racial
Discrimination Act 1975 (Cth) and the Disability
Discrimination Act 1992 (Cth) protects other groups
that have historically been disadvantaged. The
work of statutory bodies such as the Australian
Human Rights Commission
is vital in addressing issues of
equal opportunity, and court R ESEAR C H 5 . 3
cases such as Trudy Gardners Go to www.sportslaw-uk.co.uk/
have provided further factors Richard%20Vowles%20report.
for parliaments to think about pdf and review the details and
when drafting legislation. In the comments on the Richard Vowles
course of law reform, parlia- case.
ments must balance concerns 1 Explain why the referee was
about negligence claims against held liable for Vowles injury.
the need for fairness. 2 What is contributory
negligence, and why was it
relevant in this case?
#HA PTERn,A WREFORMI NACTI ON 117
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 To p i c 3 : L aw r e f o r m a n d s ex u a l a s s a u l t

Co n d i t i o n s t h a t l ea d t o
l aw r e f o r m r e l a t i n g t o s exu a l
a ss a u l t

One of the central aims of the criminal justice Crisis Centre in that year. According to Australian
system is to prosecute criminal offenders on behalf Bureau of Statistics (ABS) gures, only 1520% of
of the victims and the community. Throughout sexual assaults are reported so the real rate could
this process there is a tension between the rights be around 50 000 to 60 000 incidents a year.
of the accused and the interests of individuals and
the community, and getting this balance right is a
Table 5.2 Reports to the NSW Rape Crisis
constant challenge for the state. #ENTRE*ULYTO*UNE
There has been signicant law reform in relation
Callers
sexual assault to sexual assault offences over the past decade.
a general term for
This has been motivated by perceptions that the New callers 
criminal offences Repeat callers 
involving unwanted criminal justice system was failing to deliver just
Total callers 
sexual contact; acts outcomes for victims and the community.
Telephone 
include unwanted
Sexual offences are the least reported crimes in Online 
touching or groping,
indecent acts of other NSW and have the lowest conviction rates. This is E-mail 
kinds, and rape compounded by delays in cases, contributing to a Presenting issues
low rate of satisfaction on the (new callers)
part of victims. Sexual assault 
In 200405 most of the Childhood sexual assault 
major categories of crime Gang rape 
experienced declines. For Drugged and assaulted 
Supporters professional and other 
example, the number of break-
Other 
ins fell 11%, armed robbery
When the assault occurred 
without a weapon fell 18.2%,
(new callers)
and stealing from a person fell
,ASTDAYS 
21.4%. These declines are in
DAYSTOMONTHS 
stark contrast to the gures
-ORETHANMONTHS 
for sexual offences.
Age (new callers)
According to the NSW
Bureau of Crime Statistics, TO 
n 
there were around 9200 recor-
n 
ded criminal incidents of
n 
various sexual offences in NSW n 
in the year ending September  
Figure 5.15 Sexual assaults are the 2004. There were another New South Wales Rape Crisis Centre www.nswrapecrisis.
least reported crimes in NSW. 3352 calls made to the Rape COMAU,ATEST.EWS3TATISTICS3TATISTICS*ULY *UNEHTM

118 C a m b r i d g e L e g al S tu d ie s Pre limin ary

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 This is an extremely low rate of reporting.
According to the SBS television program Insight
on 25 October 2005, it can be attributed to the
following factors. A lot of victims do not report
because they do not believe they are going to win,
they believe it will be too much trouble, or they

The leg al s y s tem

cannot face it emotionally. Compounding this is
the fact that in 70 per cent of cases, the offender is
known to the victim, making proof more difcult.
The results of a statewide survey of victims and
service providers, conducted by the NSW Criminal
Justice Sexual Offences Taskforce in 2005,
revealed that victims were ill-served by the legal
system in terms of their practical needs. There was
no established system for addressing the multiple
needs of some victims, including translation,
Figure 5.16 The lack of doctors specialising in
mental health support, accommodation and
sexual assault has the potential to reduce the
counselling. They had insufcient or inaccurate
LIKELIHOODOFJUSTOUTCOMESFORVICTIMSOFSEXUAL
information about processes for getting help. assault.
Moreover, only 2 per cent of accused sex attackers
were convicted in 2004.
The Director of Public Prosecutions (DPP) will examiners have training in clinical practice and
generally prosecute if there are prospects of a forensic assessments and routinely give evidence
conviction and it is in the public interest. Where in court, this initiative was seen by some as a
the victim knows the attacker the vast majority resource efciency measure.
of reported cases much of the case will rely on As a result of these and other factors, most
one persons word against that of another unless formal complaints of sexual offences do not result
there is convincing physical evidence. Advocates in formal investigations and most investigations
for victims argue that cases likely to proceed do not lead to trials. The 2005 national Personal
involve a stranger, because it is easier to establish Safety Survey reported that only 19 per cent of
that the sex was not consensual, the assaults are women who had experienced sexual violence by a
often of a more severe nature, and there is more male offender had reported this to the police.
likely to be strong physical evidence.
Physical evidence often poses another major In NSW in 2004 the number of sexual offences

obstacle. Victims of sexual assault will generally reported to police exceeded the number of proven

need to be physically examined and questioned charges by about ten to one. [A]pproximately

in detail in order to obtain evidence that can be 8% of sexual offences committed against children

used in court. and 10% of recorded sexual offences against adults

In addition, there has been a real lack of state reported to police are ultimately proven at court.

resources provided to doctors who work in sexual *ACQUELINE&ITZGERALD@4HE!TTRITIONOF3EXUAL/FFENCES

assault services. Beginning in 2004, the NSW FROMTHE.EW3OUTH7ALES#RIMINAL*USTICE3YSTEM

Contemporary Issues in Crime and Justice *ANUARY 
Department of Health introduced training for
NSW Bureau of Crime Statistics and Research
Sexual Assault Nurse Examiners of sexual assault
victims, instead of doctors. Although the nurse See Figure 5.17 on the following page.

#HA PTERn,A WREFORMI NACTI ON 119

9780521734699part_01_3pp.indd 119 2/9/09 8:36:20 PM

 To p i c 3 : L a w r e f o r m a n d s e c x u a l a s s a u l t

)NCIDENTSCHARGES Given the estimates of the number of unreported

incidents, this conviction rate represents a small

proportion of incidents that are occurring. It is

 worth asking why this is the case, especially when

compared to all other categories of crime.


 R EV I EW 5 . 8
1 Give some reasons for the low percentage

of sexual crimes that are actually reported
 to police.
          2 What are some of the difculties in proving

Recorded incidents Proven charges a sexual assault case when the victim knows
the attacker?
HTTPWWWAGDNSWGOVAULAWLINKBOCSARLL?BOCSARNSFVW&ILES#*"PDFlLE#*"PDF
3 Why is specic training important for
Figure 5.17 Number of recorded incidents and proven charges for doctors and nurses dealing with sexual
SEXUALANDINDECENTASSAULTSIN.37n
Age n c i es o f l aw r e f o r m r e l a t i n g
to sexua l a ss a u l t
The Criminal Justice
Sexual Offences Taskforce
The Criminal Justice Sexual Offences Taskforce was
established in 2004 by the NSW Attorney General
to investigate issues relating to sexual assault and
the prosecution of these crimes. Its task was to
advise the Attorney General on how the criminal
justice system could become more responsive to
victims of sexual assault without undermining the
right of the accused to receive a fair trial.
The Taskforce had input from a broad cross-
section of government and non-government organi-
sations, in an effort to obtain various viewpoints
on the criminal justice system. It produced 70
recommendations for implementation. As a result
of its report, new legislation was passed from
2005, some of which is discussed below.
In conjunction with the Taskforce investigation,
the NSW government also asked the Australian
Institute of Criminology (AIC) to investigate the
question of whether giving evidence via closed-
120 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_01_3pp.indd 120
assault victims?
circuit television altered the impact of the evidence
as it was received that is, whether it was likely
to reduce the empathy the jury might have for the
victim or the accused. The AIC found that there was
no real difference in jury responses. These ndings
went some way to convincing the government that
this could be a reliable mode of delivering evidence
for traumatised victims who did not want to be in
the same room as the accused.
New South Wales Rape
Crisis Centre
The NSW Rape Crisis Centre has been at the fore-
front of reforms to the way sexual assault matters
are dealt with by the NSW criminal justice system.
This organisation was started in the 1970s by a
group of women who voluntarily assisted victims of
sexual assault in NSW. In 1974, the Whitlam federal
government provided funding so that services
could be upgraded and made permanent, and the
workers paid. The centre runs 24 hours a day and
2/9/09 8:36:21 PM
 legal links
For more information on the NSW
Rape Crisis Centre go to www.
Figure 5.18 The NSW Rape Crisis Centre is a nswrapecrisis.com.au/

HOURTELEPHONEANDONLINECRISISSUPPORT
and referral service for anyone in NSW who has
experienced sexual violence.
provides support and counselling for anyone in
NSW who has experienced sexual violence.
The NSW Bar Association
The NSW Bar Association, the professional
organisation for barristers in the state, has rewritten
its own rules for the cross-examination of alleged
victims of sexual assault matters. Questions that
belittle, confuse or mislead victims are to be
banned. Attacks on the victim, it is hoped, will
now not be permitted in the courtroom.
The media
Criminal cases involving sexual assault have
received signicant media attention over the past
decade. In some cases this frenzied attention has
led to undesirable results, such as in 2004 when
the conviction of one of ve men accused of gang
rape, Tayyab Sheikh, was overturned in the NSW
Court of Criminal Appeal and a new trial ordered.
When sensationalistic coverage gives a jury access
to inadmissible material, the jurys ability to ignore
this information may be put into doubt and thus
the accused may not receive a fair trial. The judges
said this was regrettable but a conviction following
an unfair trial is a conviction obtained at too high
a price.
In other cases, the medias inuence on public
opinion, law organisations and governments has
resulted in changes that improve the treatment of
victims of serious sexual assault crimes in court.
Victims being forced to recount their experience
over and over, and defence counsel badgering
victims in cross-examination to call their credibility
into question, have been graphically portrayed
9780521734699part_01_3pp.indd 121
The leg al s y s tem
by the media and have horried the public and
many in the legal profession. Frequently, however,
the positive outcomes have been accompanied
by less desirable ones, such as the rights of the
accused being accorded a fairly low importance,
and a readiness to exploit the prejudices of some
segments of the public. In the 2004 Sydney gang
rape trials, an ugly racist theme surfaced in some
of the public rhetoric focusing on the ethnicity
of the rapists. The media can be an unreliable
instrument of justice.
R ESEAR CH 5 . 4
1 Obtain some or all of the following articles
from the archives of each newspaper or
using a search engine.
s Natasha Wallace, A daughters agony,
her familys suffering, Sydney Morning
Herald, 29 July 2004
s Paul Sheehan, Why sexual violence is
almost legal: Our inexible, forbidding
court system alienates many who deserve
justice, Sydney Morning Herald, 9 August
2004
s Paul Sheehan, Rough, slow justice for
rape victims, Sydney Morning Herald,
10 April 2006
s Kate Sikora, Standing up for victims,
The Daily Telegraph, 9 October 2006
s Janet Fife-Yeomans, Damning report
shows how we fail our sex case children,
The Daily Telegraph, 3 October 2008
2 Outline the criticisms made of the criminal
justice system in these articles. Could the
high prole of these cases have led to some
of the law reform measures outlined below?
Discuss.
#HA PTERn,A WREFORMI NACTI ON 121
2/9/09 8:36:24 PM
 To p i c 3 : L a w r e f o r m a n d s e c x u a l a s s a u l t
complainant
a person alleging
that a sexual assault
has been committed
against him or her
in camera
,ATIN PRIVATELYONLY
specied persons
SUCHASTHEJUDGECAN
be present during
the testimony or
proceeding
consent
free and voluntary
agreement to sexual
intercourse
122 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_01_3pp.indd 122
Mec h a n i s m s o f l aw r e f o r m
r e l a t i n g t o s exu a l a ss a u l t
Parliament
There have been many Acts passed by the NSW
Parliament over the past few years to usher in
reform in sexual assault matters. Some of the key
legislation has been:
s Criminal Procedure Amendment (Sexual Offence
Case Management) Act 2005 (NSW)
This Act amended the Criminal Procedure Act
1986 (NSW) to provide that a pre-trial order
made by a judge in proceedings relating to a
sexual offence is binding on whatever judge
presides at the trial. Rulings on the admissibility
of evidence by a judge other than the trial
judge need to be binding on the trial judge, so
that delays in the commencement of criminal
proceedings are minimised. The legislation was
designed to minimise the stress and trauma on
complainants giving evidence, who have to
prepare themselves to give evidence every time
a trial is scheduled and rescheduled.
s Criminal Procedure Amendment (Evidence) Act
2005 (NSW)
This Act amended the Criminal Procedure Act
1986 (NSW) to allow a transcript or recording
of a complainants evidence in any retrial. If
the evidence is admitted in a retrial, then the
complainant cannot be forced to give further
evidence unless she or he decides to do so.
s Criminal Procedure Further Amendment
(Evidence) Act 2005 (NSW)
Certain provisions of this Act were designed to
ensure that improper questions were not put
to complainants during cross examination. It
also provided for evidence to given in camera
(privately) and for support people to be close
to a complainant when giving evidence. The
Act also introduced a new section into the
Criminal Procedure Act 1986 to prevent an
unrepresented accused from cross-examining
the complainant.
s Crimes Amendment (Consent Sexual Assault
Offences) Act 2007 (NSW)
A persons lack of consent and knowledge
that the person is not consenting are elements
of sexual assault offences, such as rape. If
someone is under the inuence of alcohol or
drugs, there may be no capacity to give consent.
In court, an accused will be examined by the
prosecution on what steps he took to ensure
that there was consent. The Crimes Act 1900
(NSW) was amended to place the onus on the
defendant to prove there was consent; in the
past the prosecution had this responsibility.
The courts
While recommendations of the Criminal Justice
Sexual Offences Taskforce have changed the
manner in which judges and the courts deal with
matters of serious sexual assaults, these changes
have largely been brought about as a result of
legislation. Changes in social attitudes regarding
sex crimes will doubtless lead to future court
decisions rethinking the law or looking at criminal
law issues in the area of sexual assault in a way
that leads to law reform.
Judges in cases where a guilty verdict was
returned did hand down some severe penalties,
both to send a message of general deterrence
to the community and to reect the severity of
the offences. For example, Bilal Skaf, who was
convicted as the ringleader in a series of gang rapes
in Sydney in 2000, was sentenced to 55 years gaol
with a non-parole period of 40 years.
It has been suggested that specialist courts for
sexual offences would lessen the trauma suffered
2/9/09 8:36:24 PM
 by victims when giving evidence, and
would improve conviction rates. Some of
the features of such courts would include
appropriate technology, such as closed-
circuit television, and facilities such as
separate entrances for defendants and
victims. While the Taskforce did not go so
Figure 5.19 An effective poster produced as part of the Northern Beaches Men
Against Sexual Assault Campaign
9780521734699part_01_3pp.indd 123
far as to recommend a specialist court, its
recommendations included a specialised
case management process using specially
trained judges and prosecutors, screening
processes, technology and other features
of such a court.
#HA PTERn,A WREFORMI NACTI ON
R ESEA RC H 5 . 5
Choose one or more of the
following articles to read
carefully:
s Richard Ackland, New rape
trial is on a slim premise,
The leg al s y s tem
Sydney Morning Herald,
5 March 2004, www.smh.
com.au/articles/2004/03/04
/1078378906956.html
s Jocelynne Scutt, The
rights and wrongs of the
courtroom, Sydney Morning
Herald, 23 May 2005, www.
smh.com.au/news/Opinion/
The-rights-and-wrongs-of-
the-courtroom/2005/05/22/
1116700591974.html
s Clare Buttner, Justice
failing rape victims, Lawyers
Weekly, 29 May 2007,
http://www.lawyersweekly.
com.au/blogs/top_stories/
archive/2007/05/29/justice-
failing-rape-victims.aspx
1 What is the author arguing?
2 What support does he or
she offer for his or her
ideas?
3 Discuss.
123
2/9/09 8:36:31 PM
 To p i c 3 : L a w r e f o r m a n d s e c x u a l a s s a u l t
Ef fec t iveness of law reform
r e l a t i n g t o s exu a l a ss a u l t
As discussed, the low reporting rates for sexual
crimes, and consequently the low number of
offenders successfully prosecuted, were a serious
concern to the NSW government and to the com-
munity at large. The legislation passed from 2005
on has been an attempt to address this problem.
The chief task is to ensure that victims are not
further traumatised by the court process, while
protecting the right of an accused to a fair trial.
Changes to the law of consent in late 2007 may
prove to deliver a signicant shift in outcomes for
the complainant. In the vast majority of matters,
where the accused is known to the complainant,
a reversal of the onus of proof regarding consent
may make it more difcult for the accused to deny
criminal responsibility. It may in turn encourage
more victims to report offences.
As the new laws are applied in the courts, there
will be more information for assessing whether the
requirement of reasonable grounds for believing
that there was consent will unfairly prejudice juries
against a defendant.
At this stage it appears that the
REVIEW 5.9 reforms are having little practical
impact. Figures from the NSW
1 How has the NSW Parliament
Bureau of Crime Statistics show
addressed the need for reform
that police only arrested offenders
in the area of sexual assault
in 21 per cent of the sexual assault
crimes? Give examples.
cases that were reported in 2007.
2 What other agencies have
Further gures show the success
had a role in bringing about
rate of the police in solving sexual
changes to the way trials are
assaults has dropped dramatically.
conducted? Classify each of
Police were solving double the
these agencies with respect
to their function and purpose
within the legal system.
3 Outline some of the changes
that have taken place.
4 How could success in this area
be measured? Give examples.
124 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_01_3pp.indd 124
number of cases in 1995. The difculties of
prosecuting such cases still exist, including victims
reluctance to be grilled in the witness box.
The changes to the NSW Barristers Rules with
respect to the questioning of sexual assault victims
can only be a good thing. It is also a sign that the
publicity and pressure exerted by the various
agencies of law reform have prompted a rethink of
the way defence lawyers will conduct their cases
in the future.
In a speech to the NSW Rape Crisis Centre AGM
in 2007, the state Minister for Women, Verity Firth
MP, commented that at least two-thirds of the 70
recommendations of the Criminal Justice Sexual
Offences Taskforce had been implemented. In
addition to the legislative provisions, she stated
that some the following initiatives are also taking
place:
s Continuing efforts to address delays in sexual
assault matters. The District Court had
introduced mandatory timetables.
s Closing court when victims are giving
evidence.
s Complainants can use remote witness facilities
in 78 locations across the state.
s Judges are required to disallow improper cross-
examination questions.
Finally, continuing efforts to educate the public
are equally important. Sexual assault crimes
are crimes of violence, and certain beliefs about
gender in our society need to be articulated and
challenged if these crimes are to be properly
addressed by the criminal justice system.
2/9/09 8:36:31 PM
 To p i c 1: L aw r e f o r m a n d n a t i ve t i t l e
To p i c s u m m a ry
s Native title refers to Aboriginal and Torres
Strait Islander peoples right to an area of
land with which they have had an ongoing
association.
s The concept of terra nullius was used to
JUSTIFYTHEIMPLEMENTATIONOF"RITISHLAWAND court decisions have been instrumental in law
the dispossession of Indigenous peoples.
M ul ti p l e- c hoi ce q u e s ti o n s
1 British policies towards Indigenous Australians
were based on which of the following?
a colonial conquest, then attempts at
assimilation
b mediation
c native title
d implied rights contained in the Constitution
2 7HATWASTHEEFFECTOFTHEAMENDMENTS 4 The aim of the National Native Title Tribunal is:
to the Australian Constitution?
a They gave Indigenous people the right to
vote.
b They allowed the Commonwealth to
make laws for Indigenous Australians, and
allowed them to be counted in the census.
c They gave them native title.
d They gave Australian citizenship to all
Aboriginal people in NSW and Victoria.
3 Which of the following statements is true of
the Wik decision?
a It gave Indigenous people native title over
all pastoral land.
To p i c s um m ar y t a sks
1 In your own words, describe the Myall Creek
Massacre. Why do you think this massacre
occurred?
2 Create a timeline outlining the key stages of
Indigenous Australians right to vote in federal
elections.
3 In your own words, discuss the aims of
the Native Title Tribunal. Why was it
implemented?
9780521734699part_01_3pp.indd 125
s 4HEREFERENDUMAMENDEDTHE
Constitution to allow the Commonwealth to
legislate for Indigenous Australians, and to
allow them to be counted in the census.
s The Mabo case was a signicant High Court
decision that abolished terra nullius and led
The leg al s y s tem
the federal government to pass the Native
Title Act 1993#TH 
s &URTHERSTATEANDFEDERALLEGISLATIONAND
reform in the area of native title.
b The High Court held that pastoral leases
could coexist with native title, but where
there was a conict, the pastoral lease took
priority.
c It overturned Mabo.
d The High Court found that the Native Title
Act 1993 was unconstitutional.
a to assist with native title negotiations
b to determine whether a particular place is
terra nullius
c TOADVISETHE&EDERAL#OURTOF!USTRALIAON
native title
d to hear criminal cases involving Indigenous
Australians
5 Which of the following statements is true of
native title?
a It can be claimed by an individual.
b It is a collective right shared by a group.
c It is the modern term for terra nullius.
d )TISCONTAINEDINSOFTHE#ONSTITUTION
4 Who was Eddie Mabo? How did he change
Indigenous rights?
5 Describe the relationship between court
decisions and subsequent legislation, and
explain how law reform relating to native title
has taken place so far.
#HA PTERn,A WREFORMI NACTI ON 125
2/9/09 8:36:32 PM
 To p i c 2 : L aw r e f o r m a n d s p o r t

s Rules of the games, set down by governing

bodies, can be enforced through the court
s Sport law is a complex combination of tort, system, and players may face criminal charges
criminal, and contract law, and is based on or civil action for harm inicted.
To p i c s u m m a ry

both statute and common law. s Coaches, referees and administrators may be
s 3PORTHASCHANGEDDRAMATICALLYINTHELAST SUBJECTTOACLAIMINNEGLIGENCEFORBREACHING
YEARSITISBROADCASTNATIONWIDEANDMAJOR
companies spend vast sums of money to
sponsor teams and competitions.
s Athletes are held responsible for their
intentional actions both on and off the
sporting eld.
M ul ti p l e- c hoi ce q ues ti o n s
1 Sport law is:
a the rules of any particular sporting body
b the law made by the Australian Sports
Commission
c a combination of various statutes, common
LAWJUDGMENTSANDTORTLAW
d none of the above
2 Express consent is a term that means:
a Players may do whatever it takes to win a
game.
b What happens on the eld stays on the
eld.
c Players must give consent before they play
a game.
d Players accept the possibilities that can
occur within the course of the game.
3 Victims of assault on a sporting eld usually
take legal action through civil courts because:
a Criminal law does not apply on the
sporting eld.
To p i c su m ma r y t as ks
1 Outline the changes in attitudes to sport that
have occurred over the past few decades. List
some of the consequences of these changes.
2 Explain the importance of the law in
governing on-eld behaviour in contact
sports.
3 Explain how contract law relates to
professional athletes and clubs. What can
happen if a contract is breached?
126 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_01_3pp.indd 126
a duty of care.
s Agencies of law reform in sport include the
Australian Sports Commission with respect
to various matters, as well as the Australian
Human Rights Commission with respect to
discrimination.
b Victim compensation is inadequate for
professional athletes.
c There is usually not enough evidence.
d Witness statements from players cannot be
accepted in courts.
4 Vicarious liability refers to:
a referees and ofcials responsibility for the
enforcement of rules
b employers being held accountable for their
employees actions
c nancial liability of sporting bodies
d none of the above
5 The case of Trudy Gardner demonstrates:
a a conict between sporting rules and anti-
discrimination laws
b HOWSPORTINGBODIESARESUBJECTTOLEGAL
action
c the ability of individuals to challenge
decisions in courts
d all of the above.
4 Why do you think victims of violence on the
sporting eld dont report an offence to
police?
5 Discuss two ways in which womens
participation in sport has led to law reform.
2/9/09 8:36:32 PM
 To p i c 3 : L aw r e f o r m a n d s ex u a l a s s a u l t
s There has been signicant law reform relating
To p i c s u m m a ry
to sexual assault over the past decade,
PROMPTEDBYTHEFAILUREOFTHECRIMINALJUSTICE
SYSTEMTODELIVERJUSTOUTCOMESFORVICTIMS
s Sexual assault is a crime with one of the
lowest conviction rates in NSW due to
s Agencies of law reform relating to sexual
assault include parliamentary inquiries such
ASTHE#RIMINAL*USTICE3EXUAL/FFENCES
Taskforce, non-government organisations
The leg al s y s tem
such as the NSW Rape Crisis Centre, and
professional organisations.
s The media have been inuential in putting
pressure on governments to reform the laws
relating to sexual assault.
investigation failures, delays in cases, a lack of
resources and a lack of information provided
to victims.
M ul ti p l e- c hoi ce q ues ti o n s
1 Which of the following was not a reason to
reform the law in the area of sexual assault?
a low rate of reported sexual offences
b low rate of convictions
c poor level of service to victims in terms of
information and resources
d the media were insufciently interested in
sexual assault cases
2 4HE#RIMINAL*USTICE3EXUAL/FFENCES
4ASKFORCESETUPINHASBROUGHTABOUT
which of the following changes?
a legislation to improve procedures
regarding the giving of evidence
b LEGISLATIONREQUIRINGJUDGMENTSTOREmECT
public opinion about sexual offenders
c a greater number of sexual offences
reported
d a statutory requirement that the media
report cases with greater understanding of
the law
3 The NSW government asked the Australian
)NSTITUTEOF#RIMINOLOGY!)# TOINVESTIGATE
whether giving evidence via closed-circuit
television altered the way in which the
evidence was received, that is, whether it
AFFECTEDJURIESEMPATHYFORTHEVICTIMORTHE
accused. Which of the following best reects
those ndings?
a *URIESWEREMORELIKELYTOFAVOURTHE
accused.
b *URIESWEREMORELIKELYTOFAVOURTHEVICTIM
c 4HEREWASNODIFFERENCEINJURYRESPONSES
d Closed-circuit TV evidence was more likely
to permit the presentation of graphic
evidence.
9780521734699part_01_3pp.indd 127
s 3INCEVARIOUSLEGISLATIONHASBEEN
passed in NSW to improve criminal procedure
in relation to sexual assault cases.
4 The Crimes Amendment (Consent Sexual
Assault Offences) Act 2007.37 CHANGED
the Crimes Act with respect to consent.
Which of the following is correct?
a Documentary evidence is needed to
establish consent.
b The onus of proof of consent has been
reversed.
c Partial consent may be established.
d None of the above
5 The Criminal Procedure Further Amendment
(Evidence) Act 2005 .37 MADEWHICHOFTHE
following changes to the Criminal Procedure
Act 1986.37 
a Hearsay evidence can now be admitted to
prove that the complainant consented to
sexual intercourse.
b It prohibited the cross-examination of
victims by an accused person representing
himself.
c It allows a transcript or recording of a
complainants evidence in any retrial.
d It reafrmed the right of an unrepresented
accused to cross-examine the alleged
victim.
#HA PTERn,A WREFORMI NACTI ON 127
2/9/09 8:36:33 PM
 To p i c 3 : L aw r e f o r m a n d s ex u a l a s s a u l t
To p i c s u m m a ry ta s k s

1 Outline the main issues that prompted law

reform in the area of sexual assault.
2 Discuss the changes to the law of consent
from the perspective of the victim and the
accused. 4 Describe at least three legislative reforms to
3 Identify and describe the role of some non- the law relating to sexual assault.
legal measures in addressing the effectiveness 5 Assess the effectiveness of law reform in
of the law in dealing with sexual assault. addressing the issues around sexual assault.

128 C a m b r i d g e L e g al S tu d ie s Pre limin ary

9780521734699part_01_3pp.indd 128 2/9/09 8:36:33 PM


PART II
The individual
and the law
The individual 1 Your rights and responsibilities
s The nature of individual rights
and the law s The relationship between rights
and responsibilities
30% of course time
2 Enforcing rights
s Role of the federal and
state police and other law
enforcement agencies
s Disputes between individuals:
alternative dispute resolution
negotiation
mediation
arbitration
courts
s Disputes with the state:
informal methods:
media
members of parliament
trade unions
3 Contemporary issue: the individual and technology
s Scope of technology
s Effects of technology on the
individual
s Legal implications
9780521734699part_02_3pp.indd 129
The ind iv id ual and th e law
interest groups, including
non-government
organisations
formal methods:
internal review
external review:
administrative, judicial,
Ombudsman, statutory
bodies including: Australian
Human Rights Commission,
Independent Commission
against Corruption (ICAC),
Royal Commissions
s Difculties with enforcing rights
s Future directions: the role of law
reform
129
2/9/09 8:14:37 PM
 CHAPTER 6
Your rights and
responsibilities
c hap ter ob j e cti ve s

In this chapter, students will:

s investigate the effects of legal and non-legal
institutions on individuals
s explore the relationship between rights and
responsibilities in various contexts
s discuss the necessary balance between the rights of
individuals and the state
s evaluate the effectiveness of legal instruments for
achieving justice for both individuals and society
s identify and apply appropriate legal terms and
concepts
ke y t e r ms

bill of rights
implied rights
political autonomy
responsibilities
rights
self-determination
self-executing
tortious

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rel ev ant l aw
IM PORTA N T L EGIS L AT ION
Racial Discrimination Act 1975 (Cth)
Education Act 1990 (NSW)
Summary Offences Act 1988 (NSW)
World Youth Day Act 2006 (NSW)
SIGNIFIC AN T C AS ES
Progressive Mailing House Pty Ltd v Tabali Pty
Ltd [1985] HCA 14
Donoghue v Stevenson [1932] AC 562
Wilson v Tyneside Window Cleaning Co. [1958]
2 QB 110
Evans v State of NSW [2008] FCAFC 130
9780521734699part_02_3pp.indd 131
The ind iv id ual and th e law
odd l a w
In 1976, Reef Beach, NSW, was declared a
legally nude beach by the state premier. When
locals became distressed in the early 1990s by
immoral behaviour, Peter McDonald ran for the
seat of Manly in the NSW Parliament promising
to get rid of the nudists. The local council (Manly
Council) also attempted to use a 1919 law to
oust them. The nudists won in the Local Court
after charges were brought against them in 1993
for a nude protest swim, but McDonald then
used a private members bill to change the 1919
legislation. The court decision was reversed and
nude bathing became illegal.
Cha pter 6 Your rights a nd res pons i bi l i ti es 131
2/9/09 8:14:40 PM
 7 H A T A R E R I G H T S A N D
R ES P O N S I B I L I T IES
rights Rights are entitlements that people have by
legal or moral legal or moral authority. If you have a right to
entitlements or
permissions something, others are legally or morally prohibited
responsibilities from taking it away from you. A person has a
legal or moral right to do something or possess something as a
obligations to others
result of being in a particular group or a particular
tortious
legal class of persons. For example, only citizens
wrongful; constituting
a tort or breach of duty over the age of 18 have the legal right to vote in
to others Australia. Human rights are fundamental rights
that every person has on the basis of being a
human being, without regard to nationality, age,
sex, or other characteristics. Human beings is
a class of persons, just as persons over 18 or
Australian citizens is a class or group of persons.
Responsibilities are legal or moral obligations
that a person may have to another person, to a
group, or to the state, society, or other people gen-
erally. There are responsibilities to act in par ticular
ways, as well as responsibilities to refrain from
certain acts. For example, a parent has both legal
and moral responsibility for taking care of his or
Figure 6.1 Voting is compulsory for people over the age of 18.
But apart from being compulsory, it is also a right.
132 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_02_3pp.indd 132
her children, and all persons have a responsibility
not to commit criminal and tortious acts. States,
groups, organisations, corporations and societies
have responsibilities, just as individuals do.
Rights and responsibilities are interrelated.
Where someone has a responsibility to another
person, the other person has a corresponding right
to be treated in a particular way. Where citizens
have particular rights, the state has a responsibility
to protect those rights and ensure that they are
not violated by individuals, groups or the state
itself. Where the members of a group have a legal
responsibility to do something, the group has
a right to expect it. For example, members of a
trade union are responsible for paying their union
dues; everyone on the electoral roll in a state has
the responsibility to serve on a jury if randomly
chosen.
,EGALBASISOFRIGHTS
For a right to have a legal basis, it must be protected
by law and thus be enforceable. In Australia, legal
rights may be protected by statute or by common
law.
3TATUTE
An example of a right protected by statute is
the right not to be excluded or restricted on the
basis of race, colour or ethnic origin. This right
is contained in the Racial Discrimination Act 1975
(Cth) and is very broad, extending to peoples
treatment in political, economic, social, cultural,
or any other eld of public life (s 9). For example,
an employer would not be able to dismiss an
employee because he or she was from a certain
racial group. Nor would a political party be able to
refuse to allow someone to join because of his or
her ethnic origin.
2/9/09 8:14:40 PM
 #OMMONLAW
Other rights are protected by common law, par-
ticularly in contract law and tort law. For example,
if one party to a contract breaches a term of the
contract (that is, fails to do what he or she agreed
to do), and the term that has been breached is a
very important one, the other party has the right to
end the contract (Progressive Mailing House Pty Ltd
v Tabali Pty Ltd [1985] HCA 14). Or to take a very
general example that we have seen in the context
of tort law, if someone purchases a product, he or
she has a common law right to enjoy it without
being exposed to anything harmful or unpleasant
(Donoghue v Stevenson [1932] AC 562).
,EGALBASISOF
RESPONSIBILITIES
As stated above, where someone has a right,
someone else has a corresponding responsibility.
3TATUTE
Legal responsibilities are also called obligations
or duties. An example of a statutory obligation
4 H E N A T U RE O F I N D I V I D U A L R I G H T S
4HEDISTINCTIONBETWEEN
MORALANDLEGALRIGHTS
The main difference between legal rights and
moral rights is that people can argue from different
ethical viewpoints about whether a certain moral
right exists, whereas legal rights are contained in
statutes or in the body of decisions constituting
common law, and it cannot be disputed that these
are binding in the jurisdictions to which the statute
or the common law applies. Although people
might argue that a particular law or common law
principle is not just in other words, that it should
9780521734699part_02_3pp.indd 133
is parents duty to send their children to school.
The ind iv id ual and th e law
Another is the duty of the state to ensure that
every child has the best possible education, and to
provide public schools. These duties are contained
in Acts such as the Education Act 1990 (NSW), and
are based on the principle, stated in s 4 of the Act,
that every child has the right to an education.
#OMMONLAW
Other legal responsibilities are based on the
common law. For example, the duty of care is a
well-known common law duty. As expressed in
Donoghue v Stevenson, it is owed to all persons
who are likely to be closely and directly affected
by your acts. Other contexts in which there is a
duty of care include doctors duty to their patients,
airlines duty to passengers, and employers duty to
ensure that their employees have safe conditions in
which to do their work (Wilson v Tyneside Window negligence
Cleaning Co. [1958] 2 QB 110). Breach of the duty carelessness; a tort that
involves breach of a
of care, resulting in harm that could be foreseen,
duty of care resulting
entitles the person harmed to bring an action for in harm that could be
negligence. foreseen
not be the law if it is currently the law it cannot
be argued that it is not currently binding, whether
someone likes it or not.
While moral rights and responsibilities may
have binding force for everyone, only those who
believe that they are binding are likely to behave
accordingly and try to persuade others to do so.
In other words, moral rights and responsibilities
are not enforceable. While many laws have been
passed because they agree with the moral views
of most people in a community, and are complied
with for similar reasons, the law is sometimes slow
to change to reect changes in social attitudes
Cha pter 6 Your rights a nd res pons i bi l i ti es 133
2/9/09 8:14:41 PM
 Figure 6.2 A controversial moral right is the right to die.
bill of rights and public morality. As discussed in Chapter 4,
a statement of basic
this is why law reform is an important feature of
human rights and
privileges Australian law.
An example of a controversial moral right is the
right to die. Some people diagnosed with terminal
illnesses have argued that they have a right to die
if they choose, rather than suffering pain and loss
of dignity. However, euthanasia is not a legal right
in any Australian jurisdiction.
Another example is the right in NSW to engage
in sexual activity. Consensual heterosexual and
homosexual sex is legal for persons over the age
of 16. However, many religious and social leaders
in our community would argue that this age is
inappropriate. Hence, while persons over 16 have
a legal right to consensual sex, some would dispute
the existence of a moral right to it.
!BILLOFRIGHTS with respect to the government generally.
0ROTECTIONSPROVIDEDBYBILLSOF civil, democratic and human rights, including
RIGHTS
Countries including the United States of America,
the United Kingdom and New Zealand have a docu-
ment known as a bill of rights. Such a document
134 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_02_3pp.indd 134
sets out specically what individuals are entitled
to expect of their government. Australia is the only
western democracy that does not have one.
Although the UK has no single constitutional
document, the English Bill of Rights of 1689 sets
out a few fundamental rights and is still in force
today. However, it is limited in its scope and deals
mainly with succession to the throne and the
way in which English law was to be adopted in its
colonies (see p. 145 on the doctrine of reception).
As one of the 47 member countries of the Council
of Europe, the UK is a party to the European
Convention for the Protection of Human Rights and
Fundamental Freedoms (1953) and is bound by it.
In the USA, the Bill of Rights, ratied in 1791, con-
sists of the rst ten amendments to the Constitution
and contains fundamental rights of individuals in
private life, in the criminal justice process, and
New Zealands Bill of Rights Act 1990 contains
freedom from discrimination, and freedoms from
government intrusions into individuals lives.
Table 6.1 shows some examples of rights
contained in bills of rights.
2/9/09 8:14:43 PM
 Table 6.1 Examples of rights enshrined in a bill of rights T A
.EW:EALAND
"ILLOF2IGHTS!CT "ILLOF2IGHTS
The right not to be subjected to
torture or to cruel, degrading,
or disproportionately severe
treatment or punishment (s 9)
The right to freedom of thought,
conscience, religion, and belief,
including the right to adopt
and to hold opinions without
interference (s 13); freedom of
expression (s 14)
Everyone who is arrested shall
be informed of the reason;
shall have and be informed of:
the right: to consult a lawyer,
to be released if the arrest is
not lawful, to be charged and
brought to court promptly
or released, and not to be a
witness against himself (s 23).
Figure 6.3 The US Bill of Rights is part of the Constitution.
9780521734699part_02_3pp.indd 135
5NITED3TATESOF!MERICA %UROPEAN5NION
%UROPEAN#ONVENTIONFORTHE
The right not to be subjected to
excessive bail, excessive nes, or
cruel and unusual punishments
(Amendment VIII)
Congress shall make no law respecting
an establishment of religion, or
prohibiting the free exercise thereof;
or abridging the freedom of speech,
or of the press (Amendment I)
No person shall be held to answer
for a capital crime unless on a
presentment or indictment of a grand
jury, nor compelled in a criminal
case to be a witness against himself,
nor be deprived of life, liberty or
property without due process of law
(Amendment V)
The right to a speedy and public trial
by jury, to be informed of the nature
and reason for the accusation, to have
a lawyer (Amendment VI)
The ind iv id ual and th e law
0ROTECTIONOF(UMAN2IGHTSAND
&UNDAMENTAL&REEDOMS
The right not to be subjected
to torture or to inhuman
or degrading treatment or
punishment (Article 3)
The right to freedom of thought,
conscience, and religion (Article
9); freedom of expression,
including freedom to hold
opinions and to receive and
impart information and ideas
without interference (Article 10)
Everyone charged with a criminal
offence has the right to be
informed of the nature and
reason for the accusation, to have
adequate time and facilities to
prepare his defence, to have a
lawyer, to have witnesses on his
behalf under the same conditions
as witnesses against him, to have
a fair trial, and to be presumed
innocent until proved guilty
(Article 6)
2
%3%!2 #(   
Go to www.law.cornell.edu/constitution/
constitution.table.html#amendments
to view the United States Bill of Rights
(the rst 10 amendments to the US
Constitution).
1 Choose three rights that are contained
in the US Bill of Rights. Summarise
these rights in your own words.
2 For each of these rights, explain why it
was considered important enough to
be included in the US Bill of Rights.
3 Are these considerations still relevant
today? Why or why not?
You may need to do further research. Try
www.usconstitution.net/constquick.html
Cha pter 6 Your rights a nd res pons i bi l i ti es 135
2/9/09 8:14:46 PM
 !RGUMENTSFORANDAGAINSTAN
!USTRALIANBILLOFRIGHTS
In Australia, a bill of rights has never existed,
as the authors of our Constitution believed that
citizens rights would be protected by decisions of
the courts or by various statutes made as the need
arose. The Australian Constitution does set out a
number of rights, including the right to religious
freedom (s 116) and the right to trial by jury (s 80).
However, the debate over the need for explicit
constitutional protection for a broader range of
human rights has featured in Australian political
dialogue since the 1890s and continues today.
Some of the arguments for and against a bill of
rights are summarised in Table 6.2.

2%

6)% 7  Table 6.2 Arguments for and against a bill of rights in Australia

1 Make a list of ve rights and &OR !GAINST

corresponding responsibilities
2 Describe the difference
between legal and moral rights,
using examples.
3 Citizens have the right to
end their own lives if they are
terminally ill. Discuss the legal
and moral issues arising from
this idea.
4 What are some further
arguments for and against an
Australian bill of rights? Do we
need a bill of rights? Justify
your answer.
s Australian law gives insufcient protection
to fundamental freedoms, and a bill of
rights would enshrine those rights.
s A bill of rights would make our current laws
more cohesive and accessible, rather than
being locked up in past judgments and
statutes.
s We are becoming increasingly
internationalised and need to be aware of
international laws. A bill of rights would
bring Australia in line with other countries.
s A bill of rights would allow Australia to
meet its international obligations more
effectively.
s A bill of rights would protect the rights of
minorities.
s The High Courts interpretation of implied
rights in the Constitution is too limited: we
need a document explicitly setting out our
rights.
s Rights are already protected by
statutes and the common law.
s A bill of rights makes little
practical difference in the
protection of rights.
s Enabling judges to strike down
laws made by parliament that
are inconsistent with a bill of
rights would be undemocratic.
s Rights written in a bill of rights
can become outdated very
quickly in a rapidly changing
world.
s A bill of rights would actually
restrict rights, because once
dened, a right is limited by the
words in which it is expressed.
s The judiciary would become too
political if there were a bill of
rights.

) N D I V I D U A L S R I G H T S A N D
RES P O N S I B I L I T IES I N RE L A T I O N T O
T HE S T A T E
#ONFLICTSBETWEENRIGHTS the common law, they also have responsibilities.

ANDRESPONSIBILITIES At times the rights of individuals and their respon-

Australian citizens have certain expectations of
their local, state and federal government, and
understand that while citizens enjoy the rights
granted by the constitution, other statutes, and
sibilities to the local, state or national community
come into conict.
Over the past few years in New South Wales,
smoking cigarettes has been outlawed in more and
more places. Manly Council, which governs Manly

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9780521734699part_02_3pp.indd 136 2/9/09 8:14:46 PM

 Beach through delegated authority, introduced a

The ind iv id ual and th e law

no-cigarette policy for its beach in 2004. Council
rangers are now able to ne people smoking on the
beach up to $50. Individuals desire to smoke on
the beach clearly conicts not only with the desires
of non-smokers to have a smoke-free environment
in proximity to them, but also with the councils
interest in keeping the beach free of cigarette butts, Figure 6.4 A no-smoking sign on Manly Beach, Sydney
which create not only an ugly sight for tourists but
also hazards for marine life when they are washed
into the ocean. It could be argued that individuals
responsibility to assist overrides their right to
enjoy a cigarette on the beach. A newspaper article
outlining this case is presented on page 11.
Other conicts between individuals and the
state are seen as more serious. At times, govern-
ments have asked citizens to be willing to die in
wars that the citizens oppose. Throughout the
1960s and 1970s, the Australian government felt
obliged to assist in the United States effort to
defeat communism. Approximately 47 000 young Figure 6.5 Young men were selected randomly from birth records
men were conscripted to ght in the Vietnam to ght in the Vietnam War.
War between 1966 and 1972, through the enact-
ment of a law that permitted them to select young
men randomly from birth records. If an individual eat, the clothes they wear, the jobs they do and
refused to respond to a letter from the government, how many children they have. Laws based on
he was pursued and often gaoled for breaking the religious beliefs would violate constitutional pro-
law. Those who believed that violence or war was hibitions in Australia, the USA and many other
morally wrong, or that the Vietnam War was not a countries, and moral justications of laws dealing
just war, were known as conscientious objectors. with such individual matters would not last long
Individuals rights in relation to the state have in a multicultural society with diverse beliefs.
taken a new turn since 11 September 2001, when not Nonetheless, there are examples where govern-
only the United States but other countries including ments have tried to exert statutory authority
Australia began to enact legislation to protect its within these areas.
citizens from terrorism. We will look at some of the In Louisiana and Virginia, USA, in 2004 and
problems for individual rights in Chapter 13, which 2005, the state governments attempted to outlaw
deals with the case of Mohamed Haneef. Haneef, the wearing of trousers that reveal underpants a
an Indian-born Australian resident, was detained fashion among teenagers at the time, inspired by
without charge for 12 days in connection with a hip-hop artists who have displayed it at concerts
bombing that he had nothing to do with. and on album covers. The proposed legislation was
based on the view that such fashions were indecent
3TATEINTERFERENCEWITHPERSONAL and offensive to the rest of the community and on
LIBERTIES the criminal offence of indecent exposure. In the
In all Western democratic countries, individuals lead-up to the USA presidential elections of 2008,
can govern themselves in terms of the food they Barack Obama weighed into the debate.

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 m e d i a cl i p
Kick in Pants from O After Obamas underwear comments,
Brothers, stop sagging Calloway asked about people who get red
for tattoos or dreadlocks.
By Geoff Earle, Post Correspondent Calloway wears long dreadlocks, which
Jacksonville, Florida Barack Obama has a message Obama said looked tight.
for Americas youth: Pull up your pants! Its one thing if an employer discriminates
New York Post, 4 November 2008 on the basis of gender or sexual orientation
or obviously, race or ethnicity, Obama
In an interview with MTVs Sway Calloway, said, adding it was OK for employers to set
Obama elded a question from Eric, a standards.
Huntington Beach, California man who He noted that his daughter Malia wears
referenced a town ordinance that tried to twists in her hair.
outlaw a street fashion trend in which young To me, it looks great. Obviously, I would
men wear their baggy pants down well below be upset if she were discriminated against on
their underwear. that basis, Obama said.
Obama said such laws were a waste of
time, but didnt hold back on his own view on
the fad.
Having said that, brothers should pull up
their pants, he declared. You are walking
by your mother, your grandmother, your
underwear is showing. Whats wrong with that?
Come on.
Some people might not want to see your
underwear Im one of them, he added.
Here is my attitude. I think people passing
a law against people wearing sagging pants
is a waste of time. We should be focused on
creating jobs, improving our schools, health
care, dealing with the war in Iraq.
Any public ofcial who is worrying about
sagging pants probably needs to spend some
time focusing on real problems out there, he
said.
Although Obama doesnt usually cast himself
as the parenting police, he has gotten some
of his biggest applause at rallies by telling
parents to make their children turn off the TV.
Stressing responsibility is a page from
the playbook of Bill Clinton, who came out
for school uniforms. (Clinton also had a
famous MTV underwear moment in the 1992
campaign, when he was asked whether he
wore boxers or briefs.)
A Florida judge threw out a saggy-pants law
in Riviera Beach, Florida, in September after
a teen was arrested for showing four to ve Figure 6.6 Should governments have the right to
inches of his boxers. enforce codes of dress?

138 C a m b r i d g e L e g al S tu d ie s Pre limin ary

9780521734699part_02_3pp.indd 138 2/9/09 8:14:56 PM

 2%6)%7

The ind iv id ual and th e law

1 Discuss the rights of a local
council to ban:
s smoking on a beach
s the use of mobile phones
s topless sunbathing.
2 Read the article on page 138.
Outline the reasons why any
government is likely to be
unsuccessful in outlawing the
display of underpants. Are there
any countries that enforce the
wearing of certain clothing? Do
they have a right? You should
try to write at least one point or
argument for both sides of these
scenarios.
3 Discuss whether a police ofcer
in New South Wales could arrest
you for indecency or offensive
conduct under the Summary
Offences Act 1988 (NSW). (This
Figure 6.7 Tasmanian logging and woodchipping company
Act outlaws offensive, indecent Gunns brought civil action against individuals and
or antisocial behaviour.) environment groups for a number of alleged acts of protest
against its activities in logging natural growth forests.

)TSAFREEWORLD stated. In a series of cases, the court found that
&REEDOMOFEXPRESSION
As discussed above, the Australian Constitution
does not contain a bill of rights. It does expressly
protect a few rights of individuals. These are:
s s 80: the right to a trial by jury
s s 116: freedom of religion
s s 117: the right not to be discriminated against
on the basis of ones state of residence
s s 51(xxxi): the right to compensation if ones
property is compulsorily acquired for any
purpose in respect of which the Commonwealth
government has the power to make laws.
It was only in the early 1990s that the High
Court began to interpret the Constitution in such
a way as to nd rights for individuals that were
implied rights rather than expressly (explicitly)
implied rights
civil and political rights
laws limiting political advertising, prohibiting
that can be inferred
criticism of government authorities, and restricting from the Constitution,
the provision of information about migration rather than being
expressly stated
breached an implied constitutional right to political
communication. This right cannot be taken away
by a statute.
However, this implied right only protects
individuals from limits on a particular type of
communication (political), and the only limits from
which they are protected are limits imposed by the
government. A person cannot rely on the implied
right if another individual, an organisation or
corporation attempts to prevent his or her exercise
of free speech. For example, in 2004 the Tasmanian
logging and woodchipping company Gunns
brought civil action in the Victorian Supreme Court
against 20 individuals and environmental groups,

Cha pter 6 Your rights a nd res pons i bi l i ti es 139

9780521734699part_02_3pp.indd 139 2/9/09 8:14:58 PM

 for a number of alleged acts of protest against its
activities. The lawsuits alleged conspiracy to injure
Gunns and unlawful interference with its business.
Many commentators argued that the lawsuits were
intended to intimidate the protestors and tie them
up in an expensive, time-consuming process
effectively silencing them.
The issue of freedom of expression arose in
2008 when the Catholic Church and the NSW
government hosted World Youth Day in Sydney.
While celebrations and events ran for a week in
July, special powers were granted to police through
the World Youth Day Act 2006 (NSW) and World
Youth Day Regulation 2008. The Act prohibited
conduct that annoyed or inconvenienced the
participants, and police could issue nes of up
Figure 6.8 World Youth Day, Sydney, 2008
140 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_02_3pp.indd 140
to $5500 for the sale or distribution of a range of
items, including stickers, t-shirts and condoms. A
group called the NoToPope Coalition, protesting
the pronouncements of Pope Benedict XVI on
sex and condoms by handing out such items,
challenged the regulation in the Full Federal Court
as an intrusion on their freedom of expression.
The court struck down the part of one clause of
the regulation relating to annoying conduct, but
retaining the prohibitions on inconveniencing,
obstructing, or putting peoples safety at risk.
They held that it was not parliaments intention
that regulations would be made preventing the
exercise of free speech.
Some critics of this decision (Evans v State of NSW
[2008] FCAFC 130) have questioned the jurisdiction
2/9/09 8:15:00 PM
 of the Federal Court, arguing that only the High
Court has the power to interpret the Constitution.
The judgment could also be questioned on the
basis of its application of the implied right, given
the very narrow scope that the right was found to
have in the High Court cases of the 1990s.
Also in 2008, a British atheists group
paid to place large advertisements on London
buses, with messages such as Sleep in on
Sundays and Theres probably no God. Now stop
worrying and enjoy your life. When the Atheist
Foundation of Australia attempted to place
similar advertisements, they were unsuccessful.
Australias largest outdoor advertising company,
APN Outdoor, rejected the proposal for ads on
Australian public transport. The president of the
Atheist Foundation, David Nicholls, commented
that the experience highlighted Australias need
for legislation prohibiting such a refusal, and that
the laws of western Europe, the US and Britain
are far better than those of Australia with respect
to freedom of speech. On the other hand, it could
be argued that private companies are under no
obligation to do business or not do business with
anyone they choose, and that for the government
to impede that choice is inappropriate.
2%6)%7
1 Explain the difference between an
express right and an implied right.
2 What rights are expressly guaranteed by
the Constitution?
3 Do Australians have a right to free
speech? Justify your answer.
4 Consider the case of the ads on buses.
Should the government be able to
pass legislation requiring companies
to agree to purchase and display
the ads celebrating atheism? What
about advertisements for religious
organisations? Discuss with respect to
each of the following issues:
s freedom of expression
s s 116 of the Australian Constitution
9780521734699part_02_3pp.indd 141
The ind iv id ual and th e law
Figure 6.9 Defending free speech can be
very expensive if you are taken to court for
defamation.
&REEDOMOFEXPRESSIONAND
DEFAMATION
Another factor complicating the exercise of
freedom of expression is the risk of defamation. defamation
the act of making
To what extent can you criticise your teacher, friend
statements or
or boss, and possibly hurt his or her reputation? suggestions that harm
What legal rights and responsibilities do you have someones reputation
in the community
as the speaker or writer? And how well does the
law work to protect reputations on the one hand
and free speech on the other?
You are legally protected from being sued if:
s what you say is true, or
s it is your honest opinion, not a statement of
fact, on a matter of public interest, and the
facts on which the opinion is based are clearly
stated, or
s you have a legal, social or moral duty to com-
municate something to a person and the person
has a corresponding duty to hear or read it.
Even if you were taken to court and successfully
used one of the three defences listed above, it may
cost you a signicant sum in legal fees. Consider the
case of Jodie Power and Mercedes Corby below.
Cha pter 6 Your rights a nd res pons i bi l i ti es 141
2/9/09 8:15:02 PM
 m e d i a cl i p
Channel Seven guilty in Corby defamation case
ABC Online, 29 May 2008

A New South Wales Supreme Court jury has

found that Channel Seven defamed Mercedes
Corby in a series of news and current affairs
stories broadcast earlier this year.
Ms Corby sued Channel Seven over the
networks interviews with her former best friend,
Jodie Power, in February.
The sister of convicted drug smuggler
Schappelle Corby argued she was defamed by
false implications that she was a drug dealer and
smuggler.
Channel Seven mounted a defence of truth,
but was struck down on all but one point.
The jury found that Seven did establish that it
was true Mercedes Corby was guilty of the crime
of possession of marijuana, but not that she was
a smuggler or dealer.
I just want to say Im really happy, Ive still
got more to do but Im really happy with the
outcome, Ms Corby said outside the court.
Thanks to my great legal team.
Outside the court, Jodie Power expressed her
disappointment with the decision.
I can walk out of here and hold my head high
and know I have told the absolute truth and I
didnt have to invent any stories about myself,
she said.
The court is yet to decide on damages. Figure 6.10 Mercedes Corby

2 %6) %7   

Read the media clip and answer the
following questions:
1 Explain how Channel 7 could tell the
truth but still lose the case.
2 Outline how Mercedes Corby felt she
was defamed.
3 Evaluate the current laws on defamation.
What responsibilities do you have when
you talk about someone else?

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 ) N T E R N A T I O N A L P RO T E C T IO N

The ind iv id ual and th e law

OFRIGHT S
As discussed in Chapter 2, international law
can be made through the formation of treaties
between two or more nations. Treaties become
binding on the citizens of an individual nation
either automatically upon ratication, if the treaty
is self-executing, or once the nation has passed
domestic legislation to implement the treaty as
part of its own laws. In Australia, treaties must be
implemented through domestic legislation in order
to become binding.
Declarations are different from treaties in that
they simply state the parties intentions; they
l eg al i nfo
express the international communitys aspirations
with respect to an area of human rights. They are
generally developed through the United Nations or
other international organisations, such as subsid-
iary bodies of the UN, and while they are not legally
binding, they are morally binding and inuential in self-executing
(of a treaty)
setting standards for the protection of rights.
automatically
The Universal Declaration of Human Rights is becoming binding on
an important declaration of the rights to which a state party to the
treaty as soon as the
all humans are entitled. The following extract
treaty has been ratied
summarises what the UN is trying to achieve
internationally.

%XTRACTOF5NIVERSAL$ECLARATIONOF(UMAN2IGHTS

The full text of the Declaration can be viewed Article 11

at www.un.org/en/documents/udhr
Article 3. Everyone has the right to life,
liberty and security of person.
Article 4. No one shall be held in slavery or
servitude; slavery and the slave trade shall be
prohibited in all their forms.
Article 5. No one shall be subjected to torture
or to cruel, inhuman or degrading treatment
or punishment.
Article 9. No one shall be subjected to
arbitrary arrest, detention or exile.
(1). Everyone charged with a penal offence
has the right to be presumed innocent until
proved guilty according to law in a public
trial at which he has had all the guarantees
necessary for his defence.
(2) No one shall be held guilty of any penal
offence on account of any act or omission
which did not constitute a penal offence,
under national or international law, at the
time when it was committed. Nor shall a
heavier penalty be imposed than the one that
was applicable at the time the penal offence
was committed.

Article 10. Everyone is entitled in full Article 15.

equality to a fair and public hearing by an (1) Everyone has the right to a nationality.
independent and impartial tribunal, in the (2) No one shall be arbitrarily deprived of his
determination of his rights and obligations nationality nor denied the right to change his
and of any criminal charge against him. nationality.

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self-determination
the right to determine
ones own acts without
external inuence; the
freedom of the people
of a given territory
to determine their
own political status or
independence from
their current state
144 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_02_3pp.indd 144
,IMITATIONSOF
INTERNATIONALLAWIN
PROTECTINGRIGHTS
Parties to international law are nation-states,
not individuals, and international law requires
the full participation and cooperation of nation-
states in order to function effectively. Some states
may occasionally or frequently choose to ignore
declarations, treaties and UN resolutions, just
as some citizens choose to ignore the laws of
their state. The consequences for nation-states,
however, are seldom as immediate or certain as
they are for individuals who ignore the law.
Rights are something thought to be possessed
not only by individuals, but also by peoples or
nations. Self-determination is a key right of
peoples. It means the right of a group to deter-
Figure 6.11 People at a rally showing their concerns about the Indonesian occupation of East Timor.
mine their own political status (how they want
to be recognised), and to pursue their own
economic, social and cultural development. Self-
determination is enshrined in the United Nations
Charter, as well as in the International Covenant
on Civil and Political Rights, the International
Covenant on Economic, Social and Cultural Rights.
Article 15 of the Universal Declaration of Human
Rights (see above) expresses this right in terms of
all individuals right to a nationality.
The UN Charter, Chapter 1, Article 1, part 2
includes self-determination as one of the purposes
or goals of the UN:
To develop friendly relations among nations based
on respect for the principle of equal rights and
self-determination of peoples, and to take other
appropriate measures to strengthen universal
peace.
2/9/09 8:15:10 PM
 Self-determination is a constant theme in
international politics, for example the Basque
independence movement in Spain and that of the
Tamil Tigers in Sri Lanka. In some cases, the United
Nations has intervened. In other cases, sometimes
because of individual member states reluctance
to become involved in high-risk conicts where
their own interests are at stake, there has been no
UN action.
One place where the UN has intervened, with
some limited success, has been in East Timor
(now Timor-Leste). Indonesia, the former ruling
power of East Timor, opposed the indepen-
dence movement for many years, as East
Timor contained considerable resource wealth
and lay geographically within the Indonesian
archipelago. In 1999, the UN intervened and was
assisted by Australian troops to keep the peace
between pro- and anti-independence supporters
while a referendum was held. Although a large
majority of East Timorese voted for independence
from Indonesia, violence and internal conict
continued, with pro-Indonesian militias launching
attacks from within and outside East Timor,
and an assassination attempt on President Jos
Ramos-Horta in 2008.
4HERIGHTSOF)NDIGENOUS
PEOPLES
The question of whether peoples who want
independence from a colonial power have a right
to such independence may be addressed from
a general viewpoint but also considered in the
context of the particular historical facts of a place.
The United Nations declared a decade for
World Indigenous Rights from 1995 to 2004. The
UN hoped to promote the rights, languages and
cultures of all Indigenous peoples and to draft a
Charter of Indigenous Human Rights.
As we saw in Chapters 2 and 5, Australian
Indigenous people have faced serious challenges
to their political autonomy since European settle-
ment. Their laws were radically different from
9780521734699part_02_3pp.indd 145
British laws and were not considered to constitute political autonomy
The ind iv id ual and th e law
self-determination,
a system of law at all. The doctrine of reception
independence
mandated that uninhabited land colonised by
Britain would be subject to English law despite
the vastly different languages, cultures, beliefs
and traditions of the people who actually inhabited
the land.
One way in which self-determination is demon-
strated in Australian Indigenous communities is
through the use of tribal law rather
than the English common law.
2
%6) %7   
Circle sentencing is an example of
1 What are the purposes of
tribal law in practice.
the Universal Declaration of
Human Rights?
#IRCLESENTENCING
2 How are those rights
Circle sentencing courts have been
enforced? Suggest some
established in several locations
possible ways they could be
in NSW, the ACT and WA. Their
more effectively enforced.
introduction is based on Canadian
experience with Indigenous
communities and has the goal 2 %3%!2 # (   
of preventing crime, supporting Go to www.aic.gov.au/topics/
victims and giving Indigenous indigenous/interventions/
people greater involvement in the alternatives/circle.html and read
criminal justice system. Sentences the article by Brendan Thomas,
are more likely to be meaningful Circle sentencing : involving
for the offender if imposed by Aboriginal communities in the
authorities within his or her own sentencing process (2000).
culture. 1 What are the aims of circle
Circle sentencing works in the sentencing?
following way. When an accused 2 What are the benets?
person in a criminal trial has 3 What are the drawbacks?
pleaded guilty or been found guilty,
and is a member of an Indigenous
community, the magistrate travels
to the accuseds community for
the purpose of sentencing. The
magistrate and other persons sit
in a circle, discuss the matter and
arrive at an appropriate sentence.
The group will include the offender,
the victim and their families, as
well as respected members of the
local Indigenous community.
Cha pter 6 Your rights a nd res pons i bi l i ti es 145
2/9/09 8:15:10 PM
 s Rights and responsibilities are contained in
both statute and common law.
s Moral rights are not actually enforceable by
law and therefore cannot be upheld in a court
of law.
s Australia is the only Western democracy that
does not have a separate bill of rights.
s The rights and responsibilities of individuals
C hap ter s u m m a ry

and the state have varied over time and
extend from government interest in personal
dress to conscription in wartime to anti-
terrorism measures that go much farther in
limiting peoples rights.
s The Australian Constitution contains a few
express protections for individual rights,
and the High Court has recently dened
an implied right to freedom of political
communication.
M u lt i p le - c ho i c e q ues ti ons
s International efforts to articulate and protect
rights are contained in numerous conventions,
treaties and declarations. There are often
difculties in enforcement, as some states
do not recognise these agreements or have
not incorporated these rights in domestic
legislation.
s The right to self-determination is an
internationally recognised right of peoples.

 How are legal rights protected?  What sort of right is the right to euthanasia?
A by statute law A a common law right
B by common law B a legal right
C by both statute and common law C a moral right
D by ethics and religious customs D none of the above
 Which of these statements about moral rights  How is the right to freedom of speech
is true? protected?
A They have no legal basis. A by statute
B They can be enforced. B by common law
C They are the same as legal rights. C by both common and statute law
D None of the above D it is not protected by either statute or
 Which of these statements is true? common law
A Every state in the world has a bill of rights.
B A bill of rights can only be drafted by the
United Nations.
C A bill of rights is a document setting out
the rights of individual citizens.
D A bill of rights is part of Australias
Constitution.

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 Outline the arguments for and against a bill of
C hap ter s u m m a ry ta s k s
rights in Australia.
 List two examples of how rights are protected
by statute and common law in Australia.
 Describe the difference between moral and
legal rights, using examples.
 Give an example of a conict between the
rights of individuals and their responsibilities
to the state, and discuss how it might best be
resolved.
 Discuss the right of Indigenous people in
Australia to self-determination.
 Explain the concept of circle sentencing. Why
might it be effective?
9780521734699part_02_3pp.indd 147
The ind iv id ual and th e law
 Explain the reasons for constructing
declarations of rights. List some examples of
such declarations.
 What other rights are not expressly
contained in the Australian Constitution,
but enjoyed by Australians as a result of
statutory or common law? Discuss.
 How does defamation pose a threat to
individuals free expression? What defences
are available to someone who has critical
things to say about a political gure?
 How are internationally recognised rights
protected in Australia? Discuss.
Cha pter 6 Your rights a nd res pons i bi l i ti es 147
2/9/09 8:15:11 PM
 CHAPTER 7
Resolving disputes
c hap ter ob j e cti ve s

In this chapter, students will:

s investigate the roles of various law enforcement
agencies
s discuss various methods of dispute resolution
between individuals
s investigate formal and informal methods of dispute
resolution between individuals and the state
s assess the effectiveness of legal and non-legal
instruments in resolving disputes between
individuals and the state
s compare and contrast individuals disputes with
other individuals and with the state
s identify the difference between formal and informal
methods of challenging state power as the state
attempts to enforce rights
s identify and apply appropriate legal terms and
concepts.
k e y t er m s

alternative dispute resolution

apprehended violence orders (AVO)
arbitration
Australian Federal Police
conciliation
freedom of information (FOI)
law enforcement agencies
mediation
negotiation
state police

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rel ev ant l aw
IM PORTA N T L EGIS L AT ION
Crimes Act 1914 (Cth)
Criminal Code 1995 (Cth)
Crimes Act 1900 (NSW)
Family Law Act 1975 (Cth)
Income Tax Assessment Act 1936 (Cth)
Privacy Act 1988 (Cth)
Human Rights and Equal Opportunity
Commission Act 1986 (Cth)
Anti-Discrimination Act 1977 (NSW)
Freedom of Information Act 1989 (NSW)
SIGNIFIC AN T C AS ES
Toonen v Australia, Communication No.
488/1992, UN Doc CCPR/C/50/D/488/1992
(1994)
Croome v Tasmania [1997] HCA 5
9780521734699part_02_3pp.indd 149
The ind iv id ual and th e law
odd l a w
The Northern Territory National Emergency
Response Act 2007 (Cth) required people
buying more than $100 of alcohol to provide
photographic identication and to state where
they intended to drink it. In 2009, police
said it hadnt brought about any increase in
prosecutions for criminal offences of any type.
Bottle shop records indicate that drinkers often
mocked the law, with purchasers stating that
they intended to drink the alcohol in locations
such as at the prime ministers residence.
Cha pter 7 Res ol vi ng di s putes 149
2/9/09 8:15:13 PM
 law enforcement
agencies
those bodies that have
the role of enforcing the
law; they are created
by Acts of Parliament
and include the police
and some government
departments
apprehended violence
orders
court orders to protect
a person who fears
violence or harassment
from a particular
person. In NSW,
apprehended personal
violence orders prohibit
violence between
members of the public;
apprehended domestic
violence orders prohibit
violence in the context
of a family.
state police
law enforcement
agencies with statewide
jurisdiction
Figure 7.1 Vigilant police ofcers
150 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_02_3pp.indd 150
)NT RODUC T ION
This chapter will examine the nature of disputes
between individuals and how they can be resolved
in a variety of ways. It will also look at individuals
disputes with the state over issues such as wrongful
arrest or access to information, and methods of
, AWENFORCE MENTA GE NCIES
4HEPOLICE
3TATEPOLICE
Police do not make the laws; they only enforce
them. They try to see that law and order in a com-
munity are maintained by preventing unlawful
acts, investigating crimes and arresting offenders.
resolution. It will investigate the role of various law
enforcement agencies in upholding statutes at
both state and federal level, as well as some of the
legal restrictions placed on these agencies.
The police have rules that they must obey when
they perform these duties. To ensure that evidence
is collected correctly and thus is able to be used
by the prosecution in a court case, the police are
covered by a code of practice. This code covers:
s police powers to stop, search and detain
people
s police powers to enter and search premises and
seize property
s police powers to arrest, detain and question
suspects
s the way in which suspects and others are to be
treated by police.
Each state and territory in Australia has its own
police force. The New South Wales Police Force is
primarily concerned with enforcing criminal law,
particularly those offences contained in the Crimes
Act 1900 (NSW). Some of the most serious crimes
are clearly those against the person, such as
homicide, manslaughter and sexual assault. More
recently, new laws have been passed to combat
organised gangs and terrorist activities.
Other aspects of state policing include assisting
with mediation in family and neighbourhood
disputes, particularly those involving domestic
violence. The application and enforcement of
apprehended violence orders restricting the
movements of some individuals in relation to others
is another part of the job of the state police.
2/9/09 8:15:14 PM
 A current issue for state policing is the use of
taser or stun guns, also called Controlled Elec-
tronic Devices (CEDs), to subdue, apprehend and
disable suspects. These weapons deliver a strong
shock that disrupts the central nervous system.
In 1995, a mentally unstable man, Roni Levi,
threatened a number of people on Bondi beach
with a knife. Police shot him dead after he ignored
repeated warnings to drop his weapon. Advocates
of CEDs argue that Mr Levi might still be alive
today if police carried CEDs rather than rearms.
There was a renewed call for CEDs to be carried
by police in December 2008. This followed an
incident in which Tyler Cassidy, a 15-year-old
Victorian youth, was shot dead after brandishing a
knife and making threats towards police. However,
while healthy adults are unlikely to suffer lasting
damage from a CED, abnormal heartbeat may
be brought on in persons with existing heart
disease or other risk factors such as mental illness,
drug use or alcohol use, or high stress. A recent
Amnesty International report, Less than Lethal?,
documented the deaths of 334 people in the
United States after CEDs were used on them. In
more than 40 of the cases, coroners found that the
shocks had led to or contributed to the death.
Another problem with CEDs is that they are
open to abuse by police ofcers and there appear
to be few guidelines or restrictions on their use,
leaving suspects at the mercy of some overzealous
ofcers. Amnesty Internationals study found that
90 per cent of those who died after having a CED
used on them were unarmed and did not pose
a threat to the public. Information on the NSW
Ombudsmans special report to parliament on the
use of CEDs in NSW is found on page 164.
&EDERALPOLICE
The Australian Federal Police are responsible
for enforcing federal law and criminal law where
crimes cross state boundaries. The key role of
the Australian Federal Police is to prevent and
detect crimes against Commonwealth law within
Australia, and in certain circumstances, by
9780521734699part_02_3pp.indd 151
The ind iv id ual and th e law
Figure 7.2 The Australian Federal Police enforce
federal and criminal law across state boundaries.
Australians overseas. Crime legislation enforced
by the AFP includes the Crimes Act 1914 (Cth) and
the Criminal Code 1995 (Cth). Offences include
drug importation and distribution, and crimes
relating to Commonwealth entities (e.g. bribery of
Commonwealth public ofcials). The powers of the
AFP are set out in the Australian Federal Police Act
1979 (Cth).
Signicantly, the nature of the AFP, and what is
required of it, have changed since 11 September
2001. The AFP has reacted to a rapidly changing
environment, particularly in relation to terrorism
and terrorist organisations. There is now a greater
focus on international operations.
The new challenges the AFP faces include
terrorism, human trafcking and sexual slavery,
Australian Federal
cybercrime and family matters. The AFPs role
Police
in the family law process is to act upon specic the federal police
orders of the Family Court. Generally the AFP will agency of the
Commonwealth of
enforce a court order where there is an actual
Australia, set up to
fear that a child may be removed from Australia. enforce the federal
Sections 65Y and 65Z of the Family Law Act 1975 laws and to protect the
interests of Australia
(Cth) provide that a child who is subject to family both domestically and
law proceedings must not be removed from internationally
Cha pter 7 Res ol vi ng di s putes 151
2/9/09 8:15:15 PM
 the Commonwealth of Australia. A party who
removes or attempts to remove a child from the
Commonwealth of Australia may be sentenced up
to three years imprisonment.
Chapter 13 details the events of Mohamed
Haneef and the AFPs investigations into Haneefs
alleged role in a terrorist attack in Glasgow,
Scotland. It is not the most glowing of reports, as
the AFP spent $8 million investigating Dr Haneef,
only for him to be found to have been wrongfully
arrested.
!DDITIONALLAW
ENFORCEMENTAGENCIESIN
!USTRALIA
!USTRALIAN#USTOMSAND"ORDER
0ROTECTION3ERVICE
The Australian Customs Service was renamed
in late 2008 to recognise the importance of its
role in maintaining the security and integrity of
Australias borders. It was originally known as the
Department of Trade and Customs and was the
rst government department established in 1901.
Approximately 20 million passengers each year
Figure 7.3 Illegal drugs being intercepted by Australian Customs
and Border Protection Service.
152 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_02_3pp.indd 152
move through air- and seaports. Customs works
closely with the Australian Federal Police, as well
as with the Australian Quarantine and Inspection
Service, the Department of Immigration and
Citizenship and the Department of Defence, to
detect and discourage unlawful movement of
goods and people across the border.
The Australian Customs and Border Protection
Service (ACBPS) employs more than 5500 people
in Australia and overseas, has a eet of sea patrol
vessels, and uses two aerial surveillance planes for
surveillance of borders. The key areas of concern
for ACBPS are:
s Immigration ensuring that passengers are
moving legally across borders
s Quarantine monitoring and conscating
goods harmful to animal and human life
s Family law enforcing court orders and
preventing parents from illegally removing their
children from Australia
s Law enforcement.
Protecting the Australian community through
the interception of illegal drugs and rearms is
a high priority and sophisticated techniques are
used to target aircraft, vessels, cargo, postal items
and travellers considered a risk. The techniques
include intelligence analysis as well as the use of
detector dogs and computer technology.
In August 2008, the AFP seized 4.4 tonnes
of MDMA, also known as ecstasy. X-rays and
inspection of a suspicious shipping container that
had arrived in Melbourne in June revealed 3000
tomato tins, which actually contained ecstasy
tablets, not tomatoes. AFP commissioner Mick
Keelty commented that the successful operation
was a result of coordination between Customs,
local police and the AFP. Sixteen people were
arrested and drugs worth $440 million were
removed from illegal circulation.
!USTRALIAN#RIME#OMMISSION
(ACC)
The Australian Crime Commission (ACC) is a
Commonwealth statutory body working nationally
2/9/09 8:15:15 PM

Figure 7.4 Technology-enabled crime encompasses both crimes committed directly against
computers and computer systems and traditional crimes committed with the use of technology.
with other federal, state and territory agencies to
counter serious and organised crime. In NSW, the
Australian Crime Commission (New South Wales) Act
2003 (NSW) was passed to enable the full operation
of the ACC in NSW. Similar legislation was passed
in the other states and territories, effectively
bringing the Australian Crime Commission Act
2002 (Cth) into state or territory law. All arms of
intelligence gathering and law enforcement were
thereby brought together to unify the ght against
serious, organised criminal activity.
The ACC has both intelligence and investigative
functions and capabilities. To better enable
Australia to meet the threats posed by nationally
signicant crime, the ACC performs a number of
important functions, including:
s collecting and analysing criminal intelligence
data
s providing advice to the ACC Board on National
Criminal Intelligence Priorities (NCIPs)
s providing and maintaining effective and ef-
cient criminal intelligence systems including
the Australian Criminal Intelligence Database
s investigating federally relevant criminal activity
and forming task forces, for example, Strike
Force Tuno II, a homicide squad established to
investigate a string of possibly related murders,
attempted murders and suspected murders
over a 15-year period.
9780521734699part_02_3pp.indd 153
The ind iv id ual and th e law
!USTRALIAN(IGH4ECH#RIME
#ENTRE
The AHTCC is hosted by the AFP and attempts to
provide a national approach to technology crime.
Its brief is to combat serious and complex crimes
involving computer technology, such as online
fraud, mule recruitment, and offensive and pro- mule recruitment
the attempt to
hibited internet content. Technology-enabled
procure a person (the
crime encompasses both crimes committed mule) to receive and
directly against computers and computer systems deliver illegal funds
to criminals abroad
and traditional crimes committed with the use of
or at home without
technology. The rst category, detailed in Part 10.7 the knowledge of
of the Criminal Code 1995 (Cth), includes: the mule; this is
usually done through
s computer intrusions (gaining unauthorised a fake company and
access to data in a computer or computer may involve getting
system) an unsuspecting
employee to sign a
s unauthorised modication of data, including contract and transfer
destruction of data funds on behalf of
organised criminals
s denial-of-service attacks (the deliberate impair-
ment of service)
s the creation and distribution of malicious soft-
ware (e.g. viruses, worms, trojans).
Each state and territory in Australia has its own
legislation, similar to the Commonwealth legis-
lation, covering computer-related offences.
Another task of the AHTCC is to police and
remove inappropriate and illegal internet content,
such as child pornography and racially based hate
sites. Identity fraud is also a growing criminal
Cha pter 7 Res ol vi ng di s putes 153
2/9/09 8:15:18 PM

Figure 7.5 Phishing lures unsuspecting computer users to
provide nancial details over the internet.
activity, especially with the increasing use of social
networking sites such as MySpace and Facebook.
Identities are usually stolen through phishing,
whereby e-mail is used to lure unsuspecting
computer users to a fake website where they
provide their bank account details.
!USTRALIAN3ECURITY)NTELLIGENCE
/RGANISATION!3)/ panies in relation to tax offences.
The Australian Security Intelligence Organisation
(ASIO) is Australias national security service,
established under the ASIO Act 1979 (Cth). It
was initially established in 1949
2%6)%7
as Australias security service,
1 What is a law enforcement to guard against activities such
agency? Give an example as espionage (spying), sabotage,
of a government body that politically motivated violence, and
has enforcement powers and attacks on our nations defence
briey summarise its specic systems. ASIOs main role is to
aims. gather information that will help
2 Explain the role of the police in the federal government and other
the legal system. Comment on law enforcement agencies such
the importance of jurisdiction as the AFP to prevent and thwart
in law enforcement. attacks on Australia. ASIOs role is
$ I S P U T ES B E T WEE N I N D I V I D U A L S
Disputes between individuals are highly variable in
terms of their nature, complexity and seriousness.
One of the more common types of disputes
154 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_02_3pp.indd 154
expanding; it employs more than 1500 people and
plans to grow to over 1800. ASIOs information is
used by 75 government departments, police, and
senior decision-makers.
Chapter 13 outlines the role of ASIO in the arrest
and detention of terror suspect Mohamed Haneef,
in which ASIO correctly advised the AFP that Dr
Haneef was not a suspect in the 2007 Glasgow
Airport bombing and that there was virtually no
evidence linking Dr Haneef to this terrorist attack.
'OVERNMENTDEPARTMENTS
Some Commonwealth and state government
departments have the authority to enforce specic
laws. The Australian Tax Ofce (ATO) has the
power to enforce certain laws for the protection
and benet of society. For example, under the
Income Tax Assessment Act 1936 (Cth), the ATO
can investigate and prosecute individuals or com-
The main issues relating to income tax involve
either the avoidance of tax or the under-payment
of tax. In 2007, Glenn Wheatley, manager of the
singer John Farnham, was gaoled for three years
for defrauding the Commonwealth of $318 000.
Wheatley was using a so-called tax minimisation
scheme, sending income from the John Farnham
tour to another country without declaring it to
the ATO. Another ongoing tax case is that of Paul
Hogan, star of Crocodile Dundee, one of the worlds
highest grossing lms. Hogan is alleged to have
hidden some of his income from the ATO.
Other laws administered by the ATO include
those governing fringe benets tax (FBT), the Goods
and Services Tax (GST), and superannuation.
between individuals is that of neighbourhood
disputes.
2/9/09 8:15:22 PM
 m e d i a cl i p
The naked truth and the myth of
neighbourly love
by Matthew Benns
The Sun-Herald, 21 August 2005
Neighbours are more likely to argue with
each other about garden fences than any
other issue, new gures have revealed. In one
instance, two neighbours ended up in court 78
times their latest stoush involving claims of
genital exposure.
Almost one-third of all neighbour disputes
that go to mediation with the Community
Justice Centre Program involve fences. People
ght about everything to do with a fence
colour, height, paling or Colorbond, trellis or
not, Program director Deborah Sharp said.
But she suspected that, behind the ghts over
the garden fence, lay deeper issues that only
came to a head with a disagreement about
the fence. Fences can cause conict but quite
often they argue about the fence when its
really about lifestyle or cultural issues, Ms
Sharp said.
If mediation fails, neighbours turn to the
courts. At Warriewood, two neighbours have
taken each other to court 78 times, with the
latest conict being over an illegally constructed
fence one claims she put up to protect her from
her neighbours naked genitals.
After disputes about fences, the next big
cause of offence between neighbours is
invasion of privacy, which could be anything
from noise to arguing over a shared driveway.
Neighbours also rowed about each others
children, lifestyle and environmental factors
such as smoke or noise, visitors, parking and
plants, trees and shrubs in each others gardens.
The issue can seem quite small but because
people get very distressed by it they lose
perspective, Ms Sharp said. We dont make
a judgment on the issue. Quite a lot of
disputes start with the way children play in a
neighbourhood. There is a domino effect
people take their childrens sides and whole
streets get involved. Eventually somebody
rings us and we go to everybody involved
9780521734699part_02_3pp.indd 155
The ind iv id ual and th e law
in pre-mediation to nd out what the issues
are. A time is then set for a meeting. If the
parties do not agree to setting the time the
mediators know there is little hope of ever
reaching a settlement.
Sometimes the solution is as simple as
organising a barbecue and ensuring that
all the neighbours attend and get to know
each other. Social analyst David Chalke of
AustraliaSCAN said people felt their home,
their neighbourhood and local area had
become far more important in recent years.
In the 1980s and 90s we were cocooning
and fortressing and running away from the
world, Mr Chalke said. We have invested
a lot of money renovating our homes and
installing massive TVs [so] that home is
incredibly important to us. Before, it was just
a base we used to go out into the world.
Now home is our world. Also, because of the
turmoil we have been through in the past
decade, we are far less tolerant of people
whom we believe are breaking the rules. We
saw it over the Tampa episode where people
were saying it was OK for Australia to take
refugees, but they had to follow the rules. We
want the system to force people to stick to
the rules. We see on TV every night people
grizzling about councils and neighbours. We
see people getting compensation for wrongs
and they think, hey, I can do that too.
NSW has 3000 disputes a year that are medi-
ated by the government-funded Community
Justice Centre Program 1000 of those are
in Sydney. The Law and Justice Foundation
carried out a survey two years ago in Bega in
southern NSW and found that 12.7 per cent of
the population had taken some form of legal
action after a dispute with neighbours.
Cha pter 7 Res ol vi ng di s putes 155
2/9/09 8:15:27 PM
 alternative dispute
resolution
dispute resolution
processes, such as
mediation, arbitration
and conciliation, that
do not involve courts
negotiation
any dialogue intended
to resolve disputes
and/or produce an
agreement on further
courses of action
mediation
a form of alternative
dispute resolution
designed to help two
(or more) parties, in the
presence of a neutral
third party, to reach an
agreement
conciliation
a form of alternative
dispute resolution in
which the disputing
parties use the services
of a conciliator, who
takes an active role,
advising the parties,
suggesting alternatives
and encouraging
the parties to reach
agreement. The
conciliator does not
make the decision for
them
arbitration
a form of alternative
dispute resolution in
which the disputing
parties present their
cases before an
arbitrator, who makes a
decision that is binding
on the parties
156 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_02_3pp.indd 156
Figure 7.6 Alternative dispute resolution may be
as simple as two parties talking it through, or as
complex as court-ordered mediation or arbitration.
!LTERNATIVEDISPUTE
RESOLUTION!$2 their dispute that they both nd acceptable.
Going to court can be expensive in terms of both
money and time. There has been pressure to
provide alternatives to court processes for solving
legal disputes. It has been estimated that the
average civil case costs $30 00040 000, which
puts many average wage earners in a precarious
position should they lose. Logically, any claim
against another party for less than this amount
would seem useless, yet the nancial cost of loss or
damage below this amount may still be signicant
to the person who suffers it.
Alternative dispute resolution (ADR) uses a
variety of methods to resolve disputes between
parties without involving court processes. ADR
allows the participants not only to save time
and money, but also to have more control over
proceedings.
Alternative dispute resolution may be as simple
as two parties talking through their dispute, or as
complex as court-ordered mediation or arbitration.
Mediation involves a neutral third party who
attempts to help the parties come to an agreement.
In arbitration, the neutral third party will make a
decision that is binding on the parties involved in
the dispute. These are discussed below.
.EGOTIATION
Negotiation means discussion between two or
more parties with the aim of reaching a mutually
benecial outcome. It involves consideration of
the other partys views, and often some degree of
compromise. Many parents teach their children
negotiating skills and youd probably be surprised
at how often you negotiate with friends, teachers
and parents. In a legal sense, negotiation is fre-
quently the rst stage of resolving a dispute
between parties. Negotiation only involves the par-
ties involved and therefore is usually low in cost.
-EDIATIONANDCONCILIATION
Mediation and conciliation are similar processes
and are usually condential. Both processes involve
an independent and neutral third party who helps
the parties to negotiate and reach a decision about
The mediator does not provide advice on the
matters or impose a decision on the parties. The
mediator may have not particular expertise in the
subject area, but will be an expert in the process
of mediation. Through his or her negotiation and
listening skills, the mediator is able to assist the
parties in examining the issues, and the parties
will come up with their own solutions to settle the
dispute.
In conciliation, the third party also helps the
parties to identify the issues, consider alternative
options to solve the dispute, and reach an
agreement. In contrast to a mediator, the conciliator
may advise the parties, although he or she does
not make a decision for them. A conciliator may
be a legal practitioner or professionally qualied
in the subject matter of the dispute. He or she
will be responsible for managing the process,
explaining the rules and acting as an umpire. In
conciliation, the parties may also have their own
legal advisers.
!RBITRATION
Arbitration is a formal dispute resolution process
in which two or more parties refer their dispute
to an independent third person (the arbitrator)
for determination. It is useful when the subject
matter of the dispute requires an expert and/or
when a court-like procedure is desired, but with a
2/9/09 8:15:28 PM
 greater degree of condentiality. It is used when a
contract species arbitration for resolution of any
disputes arising, in industrial relations matters,
and in tenant and landlord disputes. It has become
the preferred procedure in Australia for disputes
involving commercial contracts.
The NSW teachers dispute with the Department
of Education and Training in 200809 provides an
example of how disputes can be resolved with a
combination of arbitration and negotiation.
During 2008, NSW teachers and their union,
the Teachers Federation, failed in their attempt to
negotiate with their employer, the Department of
Education and Training, over stafng and salaries.
A key point in their disagreement was that the
government had decided to drop an incentive
scheme that gave teachers who undertook work in
remote or disadvantaged areas a place at the top
of the list for transfer to more desirable schools
later in their careers.
The Teachers Federation decided to take the
case to the Industrial Relations Commission (IRC),
the statutory body with the power to conciliate and
arbitrate to resolve industrial disputes. However,
a date for the IRC to review the dispute was not
available until March 2009. The teachers decided
this was too long to wait and undertook strike action
in November. Finally, the dispute was resolved in
December 2008 through negotiation and the threat
of more strike action in 2009. Although there were
several areas of compromise, the government
withdrew the provision that schools would no
longer be obliged to accept service transfers; the
incentive transfer scheme was maintained; and the
teachers again had a legally enforceable collective
agreement and greater job security, rather than
individual contracts of limited duration.
#OMMUNITYJUSTICECENTRESAND
#ONFLICT2ESOLUTION3ERVICE
Community justice centres (CJCs) aim to resolve
disputes through mediation. There are six centres
throughout NSW, providing informal and impartial
dispute resolution services to all sections of the
community and government agencies. CJCs are
9780521734699part_02_3pp.indd 157
The ind iv id ual and th e law
Figure 7.7 Northern Beaches TAFE teachers protest about imposing
work conditions proposed by the State Government, 6 November 2008.
funded by the NSW government 2
%6) %7   
and provide their services free of 1 Distinguish between the
charge. processes of mediation,
Matters dealt with by CJCs conciliation, and arbitration.
include family disputes and youth Where does negotiation t in?
conict, workplace grievances, 2 Why might someone prefer
neighbourhood arguments and alternative dispute resolution
community disputes. rather than taking the other
CJCs are designed to resolve party to court? Give reasons.
disputes between members of
the same community. As these
people usually have an ongoing relationship, it is
important that a dispute over something like a
fence is resolved as quickly and economically as
possible with no long-lasting acrimony. A dispute
over an issue such as who is responsible for the
repair of a fence can be resolved at a CJC by the
parties talking through their dispute with a neutral
mediator. It will be more satisfactorily resolved here
than in a formal and confrontational courtroom.
In the Australian Capital Territory, the CRS has
existed since 1988 as a non-prot organisation
to help solve disputes between neighbours. One
of the main methods used to solve disputes is
mediation. According to the CRS website, 83 per
cent of mediated neighbourhood disputes are
solved by mutual agreement.
Cha pter 7 Res ol vi ng di s putes 157
2/9/09 8:15:31 PM
 4HE,ANDAND
%NVIRONMENT#OURT
The Land and Environment Court of New South
Wales (LEC) is a specialist court with a wide
jurisdiction. It has the same status in the court
hierarchy as the Supreme Court of NSW, and is
responsible for interpreting and enforcing environ-
mental law in NSW. Proceedings that can come
before the LEC include:
s Administrative or merits review: the court re-
hears a case that has been decided by a body
such as a local council
s Civil proceedings arising from a breach or
potential breach of the law
s Criminal proceedings for environmental offences.
The LECs jurisdiction is granted by more than
60 NSW Acts. It does not have the power to hear
matters outside that statutory jurisdiction. It deals
with environmental, development, building and
planning disputes, and certain types of native title
claims. Alternative dispute resolution is integrated
within its procedures.
Among the statutes granting the court jurisdiction
is the Trees (Disputes Between Neighbours) Act 2006
Figure 7.8 (NSW). This Act allows the court to make judgments
The court is able to on issues involving the removal or pruning of trees
make judgments on and who should pay.
issues involving the
removal or pruning
of trees and who
should pay.
$ISPUTESWITHTHESTATE
There are a number of methods by which state
power or government decisions and policies can
be challenged. Some of these are informal or non-
legal methods, and others involve formal legal
channels.
.ON
LEGALMETHODSOF in August 2005 as a result of media pressure. If
CHALLENGINGSTATEPOWER
4HEMEDIA
By writing a letter, sending e-mail or calling tele-
vision and radio stations, citizens are able to inform
158 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_02_3pp.indd 158
2
%3%!2 #(   
1 Go to www.lawlink.nsw.gov.au/lawlink/
lec/ll_lec.nsf/pages/LEC_tree_removal_
refusal and choose the case Bowan v
Glanville [2008] NSWLEC 10.
2 Summarise the dispute between
neighbours in relation to trees. Evaluate
the courts judgment. Why cant the
neighbours negotiate a settlement
without resorting to the Land and
Environment Court?
2 %6) %7   
1 Dene ADR. Outline some of the forms it
may take. Which one do you think would
have the most desirable results? Justify
your answer.
2 If you are having problems with your
neighbours, why should going to court be
the last step taken?
3 What options are there for settling a
dispute with your neighbour? Discuss,
with reference to the types of disputes
that might arise.
the media of a decision they think is unfair, unjust
or harsh. There have been many instances in
which major networks have taken on a story and
caused the government to overturn a decision.
For example, it could be argued that children
were released from migrant detention centres
individuals and pressure groups constantly appear
on television and radio, the government may
choose to listen and reverse a policy decision.
In this case, the Commonwealth Department of
Immigration and Multicultural Affairs, as it then
2/9/09 8:15:33 PM

Figure 7.9 The forbidding exterior of the Woomera
detention centre
was called, explained that it had softened its
stance on the detention of immigrants.
The internet is a source of information and a
means of communication. By means of common
interest websites, people can get together
physically, online or both to discuss situations
where public ofcers have allegedly acted unjustly.
One such site, entitled Whistleblowers Australia,
states:
The goal of Whistleblowers Australia (WBA) is
to help promote a society in which it is possible
to speak out without reprisal about corruption,
dangers to the public and other vital social issues,
and to help those who speak out in this way to
help themselves.
www.whistleblowers.org.au
-EMBERSOFPARLIAMENT
Members of state and federal parliament (MPs)
are elected by voters to represent a particular area
or electorate. For example, former Prime Minister
John Howard held the federal seat of Bennelong, in
Sydney, before being defeated by Maxine McKew
in the 2007 federal election.
All citizens within an electorate are able to
contact the ofce of their representative and speak
to their MP about an issue that may trouble them.
The MP may take this issue back to Parliament
House in Canberra and discuss it with other MPs
9780521734699part_02_3pp.indd 159
The ind iv id ual and th e law
Figure 7.10 Maxine McKew, who won former
Prime Minister Howards seat of Bennelong in 2007
or the party that is in power. Some voters would
argue that Mr Howard lost his seat because he was
not attending to the needs of his electorate. Ms
McKews campaign focused on issues within the
electorate.
Some electorates or regions are signicantly
more affected by certain issues than others. If the
Pacic Highway between Sydney and Brisbane
were to be widened, residents of towns along this
highway could be directly affected. An MP in an
affected area might be able to convince his or
her party to reconsider an executive or Cabinet
decision. However, this issue would clearly be
irrelevant to residents of Western Australia.
Members of the public can also contact their
federal or state member of parliament, or local
councillor, if they feel they have been wronged
by a government department or agency in that
jurisdiction. Local members and councillors can
help in resolving the dispute so that it does not
need to go to court or a tribunal. Local members
and councillors rely on being re-elected to their
position, so it is in their interest to help their
constituents resolve disputes quickly.
4RADEUNIONS
Groups of people in various industries unite to form
trade unions to protect their rights and conditions
of employment. Unions can help to negotiate
a workplace agreement containing important
Cha pter 7 Res ol vi ng di s putes 159
2/9/09 8:15:34 PM
 Figure 7.11 ACTU union campaign, Your Rights at Work: a multimillion-dollar campaign to ght
WorkChoices
provisions about workplace safety, wages and
conditions. They will also take action when an
employer proposes to change the conditions of
work in a way that is detrimental to employees.
In Australia, the legislative approach to industrial
relations was historically based on conciliation and
arbitration. Going on strike is a last resort.
In the early 1970s, one union, the Builders
the campaign, and asks supporters and union
members to join. Your Rights at Work continued
to exist after the 2007 federal election. Although
the new government enacted new legislation,
some people believe that unions need to maintain
pressure on any government to ensure that
workers rights are not eroded.
Labourers Federation, banned workers from
worksites so that various sites of heritage value
in Sydney were not demolished for the purpose
of potential property development. These green
bans were highly successful: a small park in
Hunters Hill and terrace houses in Victoria Street,
Potts Point, still exist today. The historic area of
Sydney known as The Rocks was
2%
6)% 7  also saved and protected by the
1 How would you go about actions of unions placing bans on
challenging the state if they work at the proposed demolition
refused to award you the sites.
Higher School Certicate? More recently the ACTU ran
What laws and means would an extensive and expensive cam-
you utilise to investigate why paign entitled Your Rights at
you did not receive your HSC? Work. The campaign included
2 Which of the informal methods billboard posters, television and
of challenging state power radio commercials to challenge
would be the most effective the federal workplace relations
and why? laws, known at the time as Work
3 Evaluate the effectiveness Choices. The Australian Council
of informal methods of of Trade Unions created a website
challenging state power. with information and updates on
160 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_02_3pp.indd 160
)NTERESTGROUPSINCLUDINGNON
GOVERNMENTORGANISATIONS
People can also form groups where they share
political values or aims, or have a specic goal
of challenging a state decision. Individuals can
choose to join these groups and engage in activity
of various types, or donate money to fund their
activities.
For example, Greenpeace, a non-government
organisation, was actively involved in the protest
and prevention of Japanese whaling in 2006. By
manoeuvring their boats to positions that were
directly in line with the whaling boat harpoons,
the activists prevented the whale hunters from
ring at whales.
Another example of a non-government
organisation is Amnesty International, which is
concerned solely with the protection of human
rights worldwide. To promote respect for human
rights, raise awareness of abuse and intervene
to protect people facing violations of their rights,
Amnesty publishes information, conducts research
and campaigns to raise money for its initiatives.
2/9/09 8:15:35 PM
 ,EGALMETHODSOF
CHALLENGINGPOWER
Challenges to decisions of government or govern-
ment bodies can also be made on a formal or legal
basis.
)NTERNALREVIEWS
In New South Wales, government departments
can review their own decisions, procedures or
behaviour. Such reviews are very cost-effective,
but can be ineffective in terms of practical out-
comes if the people conducting the review have
been involved with a decision that is not appro-
priate or incorrect.
A recent example is that of the Combined
Pensioners and Superannuants Association of
NSW (CPSA). The organisation promotes the
interests of pensioners and low-income retirees.
When a booking fee was introduced for country
train fares in 2006, the CPSA applied to RailCorp,
the state-owned passenger rail system, to see
documents related to community consultation.
The Minister for Transport claimed that there had
been extensive consultation and that it indicated
overwhelming community support for the book-
ing fee. Previously, pensioners were entitled to
four free rail trips per year.
The CPSAs application was made under the
Freedom of Information Act 1989 (NSW), which gives
people the right to obtain access to information
held by government authorities, ministers and
other public agencies. The legislation also gives
the right to request changes to personal records
that are inaccurate, incomplete or out of date, and
to seek review of a decision not to grant access
or to amend records. Other states and territories,
and the Commonwealth, have similar freedom of
information (FOI) legislation.
The application was denied, so the CPSA
requested an internal review. The review found
that there had been no community consultation
about the booking fee.
9780521734699part_02_3pp.indd 161
%XTERNALREVIEWS
The ind iv id ual and th e law
Reviews of government activities can also be
undertaken externally. There are a number of
avenues by which an external review can be
pursued. These include the following.
A DM I NI STRATI V E A ND O TH E R
TRI B U NA L S
Administrative and other quasi-judicial tribunals are
bodies that review specic administrative decisions
of government agencies. They offer a time-efcient,
low-cost means of resolving legal disputes and
problems. They are different from courts, as they
have narrow areas of jurisdiction, are less formal,
usually do not allow legal representation and are
not bound by rules of evidence and so can take into
account a variety of factors in nding a solution.
Some examples of tribunals in New South
Wales are the NSW Consumer, Trader and
Tenancy Tribunal, which deals with disputes
between consumers and businesses, and the
NSW Administrative Decisions Tribunal, which
hears cases involving allegations of discrimination
and professional misconduct, and reviews
administrative decisions of NSW government
bodies. For example, the Consumer, Trader and freedom of
information (FOI)
Tenancy Tribunals role is to resolve disputes
the principle that
between tenants, landlords, traders and consumers people should be
in a timely and effective manner. able to have access to
information relating
The Administrative Decisions Tribunal has to the administration
six divisions and an appeal panel. The divisions of government
will conduct reviews of decisions by government decision-making and
information held by
agencies in the following categories: the government. FOI
s the community services sector, including child legislation governs the
processes of obtaining
care and disability services
this information, at
s decisions of the Chief Commissioner of State state and federal level.
Revenue, many having to do with state taxation conveyancers
s professional conduct of legal practitioners and people who deal
professionally with
property conveyancers
the legal and practical
s equal opportunity claims referred to the matters involved in
Tribunal by the Anti-Discrimination Board the transfer of titles
to property when real
s retail tenancy and unconscionable conduct estate is sold and
claims against retail landlords purchased
Cha pter 7 Res ol vi ng di s putes 161
2/9/09 8:15:35 PM
 s decisions of government agencies under a wide
variety of laws (the General Division).
The most frequent applications for review heard
by the General Division of the Administrative
Decisions Tribunal have to do with freedom of
information applications, privacy, and licensing
matters relating to rearms, the security industry,
passenger transport and the building industry.
PR IVAC Y BODIES
All individuals have a right to privacy. Most people
would agree that that it is not a pleasant feeling to
know that somebody who is not close to you has
access to information about you.
In a broad sense, laws have been enacted at
both state and federal level to prevent information
about you from being released to companies,
government departments or other citizens. The
Privacy Act 1988 (Cth) gives you the right to make
a complaint if you think personal information
about you, including health information, has been
mishandled by a Commonwealth government
agency or a private sector organisation. There are
legal responsibilities that government departments
must carry out in the collection and storage of
personal information of individuals.
For example, if you have been convicted of
a criminal offence, there are limits on how long
information about this can be used. The Criminal
Records Act 1991 (NSW) provides that after a
person has been crime-free for a certain amount
of time, most minor offences are treated as
spent convictions. Once a conviction is spent, the
person does not have to disclose it to prospective
employers, insurance agents, banks, and so on.
Unauthorised release of information about a
persons spent conviction is subject to penalties.
At the state level in NSW, the chief Acts protect-
ing privacy are the Privacy and Personal Information
Protection Act 1998 (NSW) and the Health Records
and Information Privacy Act 2002 (NSW). Persons
who feel that their personal information has been
misused may either request an internal review or
complain to Privacy NSW, established under the
162 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_02_3pp.indd 162
state privacy legislation to help people to protect
their privacy.
TH E C O U RTS
Law courts at both state and federal level have
the power to review administrative decisions and
actions. As discussed in Chapter 2, the term judicial
review is used to describe a process whereby a
court with the relevant jurisdiction can review a
decision made by a government department only
on the basis of whether the decision was lawfully
made. Judicial review does not pronounce on the
merits of the decision: that is, whether or not it
was a good decision or the right decision in the
circumstances.
What is legal can vary depending on the circum-
stances of each case, but as general rule, decisions
are subject to the following requirements:
s Natural justice
s You will study this concept in greater detail
in the HSC course. In this context, natural
justice refers to the person affected having the
opportunity to be heard, and the decision being
unbiased.
s The decision must be authorised by the Act
under which it was made and must be based
only on relevant considerations.
s The decision-maker must have jurisdiction to
make the decision.
s The decision must be justied by appropriate
evidence.
s The decision-maker must have observed all pro-
cedures required by law in making the decision,
and there must have been no errors of law.
A person desiring judicial review must have
standing: that is, he or she must be directly
affected by the issue. There would be huge costs
associated with judicial reviews if they could be
ordered by any interested persons, whether they
were directly affected or not.
If judicial review nds a decision awed in one
or more ways, the remedies that courts can issue
will depend on the nature of the error that was
made by the decision-maker. They include:
2/9/09 8:15:35 PM

Figure 7.12 One of the main areas of complaint received by the Ofce of the Ombudsman involves
child abuse and neglect.
s prohibition an order that stops a decision from
being made or implemented
s certiorari an order that reverses a decision that
has already been made
s mandamus an order that compels the decision-
maker to perform certain types of public duties
that have not been performed
s injunction an order that prohibits the decision-
maker from implementing an invalid decision, or
compels the performance of a duty in decisions
where mandamus is not available.
THE OFFIC E OF T H E
OM B UD SMAN
In 1809, the Swedish Parliament created a new
ofcial known as the Justitieombudsmannen.
This loosely translates as citizens defender or
representative of the people. The Ofce of the
Ombudsman was created by statute in 1974 in New
South Wales, and federally in 1977.
The ofce acts as a formal external control,
with legal power to investigate complaints made by
citizens. Public sector agencies and some private
sector agencies providing public services can use
the ombudsmans ofce to deal with complaints
against them or their ofcers: for example, RailCorp,
9780521734699part_02_3pp.indd 163
The ind iv id ual and th e law
Junee Correctional Centre, government and non-
government schools, and agencies providing child
care and residential care. The ombudsman does
not have the power to impose any punishment or
ne on a government agency or department. He or
she can, however, make recommendations to the
department in question or to the New South Wales
Parliament.
Some of the main areas of complaint received
by the ofce involve:
s delivery of community services
s child abuse and neglect
s the operation of the police force.
Any citizen can make a complaint to the ombud-
sman, but it must be in writing. All complaints are
taken seriously, but are only followed through if a
prima facie case exists that is, if the complaint
would raise concern on rst view. Such concern
could only exist if there were witnesses to an
event or if a citizen had very strong and irrefutable
evidence.
If a complaint is made in writing, the ombuds-
mans ofce will investigate and assess whether
the complaint is justied. If it sees that the
complaint is justied, the ombudsman will make
recommendations for rectifying the problem.
Cha pter 7 Res ol vi ng di s putes 163
2/9/09 8:15:45 PM
 m e d i a cl i p
NSW Ombudsman calls for freeze Mr Scipione said there was a training
on Taser guns manual for the use of Tasers, and ofcers had
to get an 80 per cent pass rate in a written
By Belinda Merhab exam before they were accredited to use the
The Australian, 20 November 2008 weapon.
Mr Scipione said Tasers had been drawn,
THE NSW Ombudsman has recommended a but not necessarily used, 70 times since last
two-year freeze on further roll-outs of Taser months roll-out of the weapons. He said
guns, saying police standards for their use are there had not been related injuries to police
inadequate, and the health risks are unknown. or citizens.
Bruce Barbour told state parliament yesterday Every Taser use was recorded by an inbuilt
that general-duties police, who were issued camera and was then downloaded and
the stun guns last month, were using Tasers at reviewed by Deputy Police Commissioner
a higher rate than special operations police, Dave Owens, he said.
who began using them in 2002. But Mr Barbour said general-duties police
It is clear the number of incidents where were inadequately trained and informed on
Tasers will be used in the future will increase Tasers and the associated dangers.
signicantly, Mr Barbour said. They do not give adequate guidance
There is already evidence of this. Tasers about situations where they shouldnt be
have been used on people on ve occasions in used, the Ombudsman said. It must be
the rst two weeks of general-duties use. This remembered that Tasers are not a non-lethal
compares with only 48 incidents over a ve- weapon, they are just a less lethal weapon.
year period by special unit ofcers. Mr Barbour recommended a two-year
The Ombudsmans investigation found review into Taser use, and said the standards
ofcers from special units had predominantly that deemed Tasers safe applied only to
used Tasers from a distance, but in the rst two healthy people.
weeks of use by general-duties ofcers, in four
out of the ve incidents the Tasers were used
in drive-stun mode, where the gun is applied
directly to skin or clothing.
The use of Tasers, which stun a victim by
emitting a 50 000-volt electric shock, have
been linked to heart complications and death.
Queensland police last week Tasered a
16-year-old girl who had ignored police
instructions to move on, because she was
waiting with a sick friend for an ambulance to
arrive.
In another case, a 56-year-old NSW man who
had threatened police with a frying pan died
12 days after receiving three Taser shocks.
According to his death certicate, the
man, who had heart disease, hepatitis C and Figure 7.13 The use of Taser guns by the police
schizophrenia, died of a heart attack. is a controversial issue.
Mr Barbour was unable to say whether the
Taser played a role in the mans death.
NSW Police Commissioner Andrew Scipione
said he was only made aware of the mans
death through the Ombudsmans report on
the case.

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 3TATUTORYBODIES
Statutory bodies are authorities created by
statute for a public purpose. The following
statutory bodies can investigate complaints
and disputes of certain types.
ANTI- D ISC R IMIN AT ION BOAR D OF
NSW (ADB)
The Anti-Discrimination Board of NSW
is part of the NSW Attorney Generals
Department and was established under
the Anti-Discrimination Act 1977 (NSW). Its
role is to promote principles and policies
of equal opportunity throughout NSW,
to ensure that people are protected from
discrimination on the basis of characteristics
such as disability, age, race and sex. It
advises the government and also provides
an inquiry service to inform people about
their rights and responsibilities under
anti-discrimination laws. The Board will
investigate and conciliate complaints when
action is necessary. It has the power to
issue nes for behaviour that violates anti-
discrimination laws.
COM M ISSION S OF IN Q UIRY
Commissions of inquiry are set up to
investigate serious matters at both state
and federal level. They are not judicial
proceedings, but fact-nding exercises.
Royal Commissions are commissions of
inquiry with particularly strong powers
with respect to calling witnesses. In the
past, such inquiries have investigated
issues such as Aboriginal deaths in custody
(Commonwealth, 1987) and corruption in
the NSW police service (NSW, 1995).
Commissions of inquiry do not have the
power to prosecute offenders. At the end
of an inquiry, the commission will produce
a report containing recommendations,
which may include recommending criminal
prosecution of individuals. The government
may decide to act on the commissions rec-
ommendations: a number of police ofcers
9780521734699part_02_3pp.indd 165
were sent to gaol as a result of the NSW Royal 2 %6 ) %7   
The ind iv id ual and th e law
Commission). However, it has been argued 1 Explain the process
that the inquiry into Aboriginal deaths in of internal review of a
custody has failed to produce signicant government agencys
improvements in the conditions leading to decision. What are the
these deaths. potential problems with
internal review?
I NDEPENDE NT C O M M I SSI O N 2 Explain the function of
A G A I NST C O RRU PTI O N (I C A C ) freedom of information
While the Ombudsman has the power to legislation.
investigate complaints made by the public, 3 Describe the role
the Independent Commission Against administrative and other
Corruption (ICAC) has greater power. The tribunals play in settling
ICAC Act 1988 (NSW) created the ICAC as an legal disputes. Give an
independent statutory body to investigate example.
alleged corruption in government. ICAC 4 Outline the ways in
attempts to protect the interests of the pub- which peoples privacy is
lic, prevent breaches of public trust, and protected in NSW.
inuence the behaviour of public ofcials. 5 What is judicial review?
Some examples of corrupt behaviour How does it differ from
include bribery, fraud and theft. ICAC has review of the merits of a
the power to investigate the activities of pri- decision?
vate citizens if such behaviour affects the 6 Outline the role of an
proper administration of public ofces. ombudsman. How is an
ICAC has the authority to ask the police ombudsman limited in
service to assist in its investigations, and solving disputes?
is therefore able to search for and seize 7 Explain the importance of
evidence where it sees t. It does not have natural justice as the state
the power to prosecute offenders (that is the attempts to enforce laws.
job of the Director of Public Prosecutions).
At the end of an investigation it can report
to parliament that corrupt behaviour has 2 %3%! 2# (   
occurred, who committed it, and what 1 Visit the ADB website:
further action should be taken. If a citizen http://www.lawlink.nsw.
feels that he or she has been wrongfully gov.au/ADB
accused of corruption, he or she may seek 2 Choose Resources and links
judicial review in the New South Wales from the left-hand menu
Supreme Court. and follow the link to Legal
In 2005, ICAC investigated a claim that a cases from Equal Time.
private tutoring rm was assisting English 3 Discuss two cases and
Extension II students with work that was evaluate the effectiveness
ultimately submitted as part of their HSC of the ADB in bringing
assessment. Although ICAC did not prove about just outcomes. You
that students had been assisted, it raised should include a case that
serious concerns about assessment tasks in has been dismissed by the
the HSC that are of a take-home nature. ADB.
Cha pter 7 Res ol vi ng di s putes 165
2/9/09 8:15:53 PM
 s the Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW)
Rape s the Convention on the Elimination of All Forms of
Gay student
widespread Racial Discrimination (CERD)
bashed
during civil war
s the Universal Declaration of Human Rights
(EADLINES (UDHR).
FROMAROUND
THEGLOBEAND The last declaration is the most widely known and
ATHOME longest standing (1948) and aims to address some
Aussie faces Refugees sent of the issues raised in the following headlines.
execution to Nauru Human rights bodies under the umbrella of the
UN include the Commission on Human Rights,

Human Rights today-Amnesty International booklet.

now known as the Human Rights Council, whose
state members discuss and debate human rights
Figure 7.14 Headlines frequently carry breaches of human rights. concerns. There are also committees that monitor
each of the conventions listed above, and that
can rule on individual complaints relating only
AUSTRALIAN HUMAN RIGHTS COMMISSION to a single convention. The UN Human Rights
The Australian Human Rights Commission, Committee is one of these. It rules on individual
AHRC, is a national government body, formerly complaints pertaining only to the International
called the Human Rights and Equal Opportunity Covenant on Civil and Political Rights (ICCPR). State
Commission. It was established by an Act of the signatories to the First Optional Protocol to the
federal parliament, the Human Rights and Equal ICCPR have agreed that their citizens can seek an
Opportunity Commission Act 1986 (Cth). The Federal opinion from the Committee regarding breaches
Attorney-General is the minister responsible for of the ICCPR.
the Commission. In 1991, a Tasmanian man, Nicholas Toonen,
As detailed in Chapter 5, the Commission plays a complained to the Committee that certain
central role in contributing to the maintenance and sections of Tasmanias Criminal Code criminalised
improvement of a tolerant, equitable and demo- his sexual orientation. In the case, Toonen v
cratic society. It provides information through public Australia (1994), it was argued that the Tasmanian
education programs aimed at the community, legislation breached Articles 2, 17 and 26 of the
government and business sectors. It also holds International Covenant on Civil and Political Rights
public inquiries, advises parliament, (ICCPR): namely, the right to privacy and the right
2%3

% ! 2#(  conducts research and investigates dis- to equal treatment before the law. The Human
Go to www.hrweb.org/legal/ crimination complaints. Rights Committee ruled that the Tasmanian law
undocs.html constituted a violation of individuals privacy
1 Investigate the provisions 4HE5NITED.ATIONS under Article 17 and that Tasmania should amend
of the human rights treaties International treaties and declarations its criminal code.
listed on p 166. containing key principles of human The federal government responded by enacting
2 Briey summarise the rights include: the Human Rights (Sexual Conduct) Act 1994 (Cth)
purpose of each of these s the International Covenant on Civil to override the offending sections of the Criminal
treaties. and Political Rights (ICCPR) Code 1924 (Tas). Nonetheless, Tasmania was
3 Compare and contrast the s the International Covenant on reluctant to change its laws. It took a High Court
types of rights contained Economic, Social and Cultural Rights decision (Croome v Tasmania [1997] HCA 5), which
in the ICCPR and the types (ICESCR) held that Tasmanias law was inconsistent with the
of rights contained in the s the Convention on the Rights of the Commonwealth Act, to force an amendment to the
ICESCR. Child (CROC) Criminal Code.

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s Law enforcement agencies at local, state
and federal level have the task of enforcing
laws and rights within their jurisdiction.
These include state and federal police, ASIO,
Customs (ACBPS), the Australian Crime
To p i c s u m m a ry
Commission and the Australian High Tech
Crime Centre.
s The nature of policing has changed
dramatically since 2001 in response to
terrorism, cybercrime and border protection.
s Disputes between individuals can be resolved
using various legal (formal) and non-legal
(informal) methods.
M ul ti p l e- c hoi ce q ue s ti o n s
 State and federal police ofcers:
A make and enforce laws
B enforce laws
C investigate criminal laws in New South
Wales
D none of the above
 The AFPs role has
A changed dramatically since 2001
B remained unchanged since 1901
C been modied by NSW Police
D been seconded by ASIO
 When disputing parties present their cases to
an independent person who makes a decision
that is legally binding, the process is known
as:
A negotiation
B mediation
C arbitration
D all of the above
Top i c s um m ar y t a sks
 Outline the roles of the AHRC and the ADB
of NSW. Explain why individuals and the state
require such bodies.
 Describe the role of at least three law
enforcement agencies in NSW or Australia.
 Explain how the role of one law enforcement
agency has changed since 2001.
 Discuss the use of Taser guns by police forces
to subdue and detain criminal suspects.
9780521734699part_02_3pp.indd 167
T he ind iv id ual and th e law
s Disputes between individuals and the state
can also be resolved using formal and
informal methods. The state does not have
unlimited or arbitrary power.
s The Australian Human Rights Commission and
the Anti-Discrimination Board of NSW carry
out vital roles in enforcing legislation that
protects these rights.
s Cases such as Toonen v Australia and issues
such as the use of CEDs illustrate the ongoing
need for law reform in relation to human
rights and their enforcement.
 Informal methods of challenging state power
include:
A media, trade unions and external review
B trade unions, internal review, courts
C members of parliament, trade unions and
media
D internal and external review and media
 Statutory bodies include:
A the ADB, the AHRC and ICAC
B Amnesty International, ADB and ABC
C ADB, AFP and the media
D ABC, ADB and the ATO
 Identify and describe a recent dispute
between individuals that has been solved
through mediation, arbitration or negotiation.
 What is your opinion of the AHRC, the ADB
of NSW or ICAC? Do you think we need such
bodies?
Cha pter 7 Res ol vi ng di s putes 167
2/9/09 8:15:54 PM
 CHAPTER 8
Contemporary issue:
The individual
and technology
c hap ter ob j e cti ve s

In this chapter, students will:

s investigate the way in which the law has an impact
on the interrelationship between individuals and
technology in cyberspace
s identify the key features of the relationship between
the individual and technology in cyberspace
s describe how the individual relates in cyberspace
to other individuals, to institutions, organisations,
corporations and governments
s investigate the nature of the interrelationship
between the individual, the legal system and
cyberspace
s discuss the effectiveness of the legal system in
addressing issues that relate to the individual in
cyberspace.
k e y t e r ms

copyright patents
cyberbullying racial hatred
cyberspace terrorism
cyberstalking trademarks
digital dossier
disinhibition effect
extradition
Internet Service Providers (ISPs)
internet
laissez-faire
libertarians
online predators

168 C a m b r i d g e L e g al S tu d ie s Pre limin ary

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rel ev ant l aw
IM PORTA N T L EGIS L AT ION
Communications Decency Act of 1996, 47 USC
230
Copyright Act 1968 (Cth)
Crimes Act 1914 (Cth)
Crimes Act 1900 (NSW)
Crimes Amendment (Computer Offences) Act
2001 (NSW)
Criminal Code 1995 (Cth)
Cybercrime Act 2001 (Cth)
Privacy Act 1988 (Cth)
Racial Discrimination Act 1975 (Cth)
Racial Hatred Act 1995 (Cth)
Spam Act 2003 (Cth)
Trade Practices Act 1974 (Cth)
SIGNIFIC AN T C AS ES
Reno v American Civil Liberties Union, 521 US
844 (1997)
Australian Broadcasting Corporation v Lenah
Game Meats Pty Ltd [2001] HCA 63
United States of America v Ivanov, 175 F Supp
2d 367 (D Conn 2001)
Department of Internal Affairs v Atkinson
and Others (High Court of New Zealand,
19 December 2008)
9780521734699part_02_3pp.indd 169
The ind iv id ual and th e law
odd l a w
The Spam Act 2003 (Cth) makes it an offence
to send, or cause to be sent, unsolicited
commercial e-mail messages. Other countries,
including the USA and the UK, have similar
legislation. However, the global volume of
spam doubled in the year ending 30 June 2008,
according to research by UK online security
company Marshal. The report attributed the
quantity of spam to spam criminals controlling
networks of thousands of infected personal
computers, which allow them to send up to a
million spam messages for as little as $510.
The report also found that 29 per cent of
internet users have actually purchased goods
from the spam they receive.
Cha pter 8 T he individua l and technol ogy 169
2/9/09 8:16:02 PM

internet
a global network
of interconnected
computer networks
that allows users to
obtain and share
information in a
number of ways
cyberspace
the environment
in which electronic
communication occurs;
the culture of the
internet
libertarians
advocates of minimal
government control or
interference in the lives
of individuals
Figure 8.1 ATM transactions are now commonplace technology.
170 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_02_3pp.indd 170
4HESCOPEOFNEWTEC H NOLOGY
Governments face many challenges in trying to
make regulations and laws where technology is
concerned. The main difculty is that technology
is often on the cutting edge of development and
therefore often gives rise to issues that have
rarely or never been raised in political, legal and
community discussions.
As Australians, we are exposed to technology
every day from making EFTPOS transactions,
shopping on the internet, and e-mailing our
friends, to being involved in discussions about the
ethics of stem cell research, genetically modied
foods, and cloning of animals or humans.
An important area of technology is information
technology that is, the storage, sending and
retrieval of information through computer systems.
Information is a broad category encompassing 1982 story Burning Chrome, the internet has
data of all types. Information may be expressed in
mathematical form, as computer code, verbally, or
in some other type of language.
One of the most important and interesting
technological developments, particularly in terms
of the law, has been the creation of the internet.
Currently, there are well over 1.5 billion internet
users in the world and growth shows no sign
of slowing. As a result, cybertechnology and
cyberspace are major areas of interest for citizens
and lawmakers all over the world.
This chapter will focus on the individual in
cyberspace and explore some of the key issues and
legal implications of new technology for the ind-
ividual, as well as the evolution of law in response
to these issues and the challenges for law reform
in protecting individuals rights.
4HEJURISDICTIONOF
CYBERSPACE
Nearly three decades after the novelist William
Gibson coined the term cyberspace in his
become so widely available that it has forever
changed our lives. Today, people are spending
more and more of their time in cyberspace for
entertainment, leisure, business, communication,
education, research and even political activism.
New developments in technology have long been
the catalyst for great social, cultural and economic
changes. However, the changes now being brought
about by technological innovations relating to the
internet are affecting our lives with unprecedented
speed and in unpredictable ways.
Cyberspace is the global online virtual world
created by the interconnection of millions of
computers on the internet. By the beginning of the
21st century, cyberspace has emerged as a kind of
parallel universe in which people live a part of their
lives. We now speak of our online and our ofine
lives. Like any other new area of human activity,
there is a need for law applicable to cyberspace.
Currently, no government or court can claim
cyberspace as its exclusive jurisdiction. Its global
nature poses particular challenges for the law.
In 1996, the American writer and political acti-
vist John Perry Barlow published A Declaration
of the Independence of Cyberspace. This short
2/9/09 8:16:05 PM

Figure 8.2 John Perry Barlow, who wrote A Declaration of the Independence of Cyberspace in 1996
manifesto declared that government has no
legitimacy in cyberspace, and that those who
gather there have formed a democratic and
egalitarian social contract that has no need of
external controls.
Despite the optimism of anarchists and
libertarians, it has become painfully apparent
that cyberspace is no different from any other
area of human activity. There is the potential for
great good but also for great harm, and laws and
regulations are needed.
,EGA LISSUESI NC YBER SPACE
4HENATUREOFCYBERSPACE
There are at least three distinctive features of
cyberspace that pose unique challenges for legal
regulation.
s It facilitates anonymity. The internet has
made it much easier for persons to distribute
information and messages anonymously or
using a pseudonym. Web-based e-mail services
and many online discussion forums allow you
to create a user name and hide your identity
9780521734699part_02_3pp.indd 171
The ind iv id ual and th e law
2
% 3 % ! 2# (   
Refer to Chapter 8 on the Student
Go to www.
CD for information relating to:
internetworldstats.com/
s The history of the internet
top25.htm and list the
s The birth of the World Wide Web
top ten countries with
s Visions and visionaries of the
the highest internet
World Wide Web
penetration rate.
s Architecture of the internet
if you wish. While domain names are actually
identiers for computers on the internet, and the
IP number (physical address) of the computer
being used can usually be determined, there is
software that can be used to encrypt internet
activity or to hide identifying information
about where a website originated. This
feature of cyberspace has certain advantages
for individuals privacy, but it also provides
opportunities for cybercriminals.
Cha pter 8 T he individua l and technol ogy 171
2/9/09 8:16:09 PM

Figure 8.3 At work in cyberspace
s It facilitates creativity. The computers
connected to the internet do not just retrieve
information as a television receives programs
from a network; they also permit information
and services to be created and supplied
through the internet. They can be used to
create software programs that improve their
performance or enhance or change their role.
This feature makes the internet unlike any
other electrical device or network that has ever
been developed.
s It is global. The internet went from being a
collection of networks in the United States
to being a global system. Cyberspace lacks
national boundaries. Like-minded
people can communicate with each
2%
6)% 7  other and join online communities
1 List some of the positive regardless of where they live in the
aspects of the global nature of world. However, the negative side
cyberspace. to the lack of national boundaries is
2 List some of the drawbacks, that it is difcult for a nation-state
especially with respect to the to control what goes on within its
enactment and enforcement territorial borders, if those activities
of laws. are also taking place in cyberspace.
!REASOFLEGALCONCERN
RELATINGTOCYBERSPACE
Even in cases where jurisdiction is clear, there
are difculties with enforcement of the law in
cyberspace. Criminal and civil wrongs in cyber-
space can sometimes be classied into the
172 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_02_3pp.indd 172
Figure 8.4 The speed at which cyberspace grows
means that the law struggles to keep pace.
familiar categories, but they may also take on new
characteristics.
Some of the areas of law concerning cyber-
space are as follows.
#YBERCRIMES
H A C K I NG
Hacking is unathorised access to data held in
a computer or computer system, changing the
data, interfering with electronic communication
between computers, or impairing the security,
reliability or function of stored electronic data. A
person may engage in hacking out of curiosity, for
monetary gain, to alter data for some other reason,
or maliciously to spread a virus. Hacking also has
the potential to be used in an act of terrorism.
The Cybercrime Act 2001 (Cth) amended the
Criminal Code 1995 (Cth), as well as the Crimes Act
1914 (Cth) and several other Commonwealth Acts.
It created offences pertaining to computers, data
and the internet, now contained in the Criminal
Code 1995 (Cth). As these are federal offences,
there must be a Commonwealth connecting
factor: for example, the computers are owned or
operated by the federal government, the data is
held by the federal government, or the offenders
actions are carried out via a telecommunications
network which includes the internet.
A hacker may also be charged under state law.
For example, in 2001, a former employee of the
company that installed a computerised sewerage
2/9/09 8:16:14 PM
 system for Maroochy Shire Council, Queensland
hacked into the councils computers and caused
one million litres of raw sewage to run into public
parks and creeks in the Sunshine Coast area.
He was convicted on various charges stemming
from his breach of s 408D of the Criminal Code
1899 (Qld), which prohibits unauthorised use
of identication information for the purpose of
committing an indictable offence. The legislation
is not specically about computer hacking. He
appealed to the Queensland Supreme Court,
where convictions on two of the charges were set
aside but the sentence of two years imprisonment
was not changed (R v Boden [2002] QCA 164).
Refer to Chapter 8 on the Student CD
for information relating to United States
v Ivanov, 175 F Supp 2d 367
(D Conn 2001).
INTERNE T F R AUD
Fraud is intentional misrepresentation or conceal-
ment of information in order to deceive or mislead.
On the internet, fraud can be carried out in a
number of ways and can occur in conjunction with
hacking.
A scam is an attempt to obtain money through
deception. Many scams, unique to the internet,
have developed in recent years. They can function
through unsolicited e-mail, websites promoting
pyramid selling (where people are offered the right
to sell a product or service, as well as the right
to sell the scheme itself in the same way), and
unsolicited advertisements that come up when a
search is performed.
Perhaps the most well-known e-mail scams are
the ones in which e-mail promises the recipient
huge rewards for helping a government, a bank, an
organisation or a family in Nigeria (or some other
country) out of some legal or nancial difculty.
This assistance invariably involves transferring
money electronically or supplying bank account
details.
9780521734699part_02_3pp.indd 173
The ind iv id ual and th e law
Figure 8.5 Hackers are criminals.
Another type of scam is phishing, in which
the recipient of e-mail that appears to be from a
bank is asked to submit his or her account details.
The information is then used to steal the persons
money.
Fraud may also be perpetrated through the
use of fake websites. In Australian Competition
and Consumer Commission v Chen [2002] FCA
1248, the Australian Competition and Consumer
Commission (ACCC) sought declarations from
the Federal Court of Australia that a foreigner,
Richard Chen, had breached key provisions of the
Trade Practices Act 1974 (Cth) prohibiting conduct
likely to mislead or deceive consumers. Chen, an
American, did not live in Australia and all of his
activity was conducted from the United States.
He operated three websites that appeared to be
associated with the Sydney Opera House, and
purported to sell tickets to performances there.
The stated price for the tickets was twice the price
of genuine ones, and consumers who provided
their credit card details never received tickets.
The Federal Court granted the declarations, as
well as an injunction requiring Chen to remove
the websites, take steps to prevent Australian
residents from accessing them, and stop operating
misleading and deceptive websites.
Cha pter 8 T he individua l and technol ogy 173
2/9/09 8:16:17 PM
 legal links
For further information on internet
fraud see the AFP website: www.
afp.gov.au/national/major_
fraud/internet_scams
Figure 8.6 People can be betrayed by spam. Senders can elicit
money from gullible victims.
2%3 % ! 2#( 
S PAM
Spam is junk mail received
1 Go to these two websites and nd
electronically. Some spam
denitions for the scams listed
is harmless but much of it
below:
is malicious and potentially
s www.scamwatch.gov.au/content/
damaging to the recipient. Spam
index.phtml/tag/internetScams
s www.thebestscams.com/ is also known as unsolicited
Online auction and shopping bulk e-mail. In other words, this
scams is e-mail that the the recipient
Domain name renewal scams has not asked for or granted
Spam (junk mail) offers permission to have sent to
Free offers on the internet him or her. It is bulk because
Modem jacking it is sent to large numbers of
Spyware and key-loggers people, often through the use of
Ringtone scams mailing lists. It does not matter
Up-front payment scams what the content of the e-mail
2 Make a list of the other types of is; if it is unsolicited it is spam.
internet scams. Under the Spam Act 2003
(Cth), it is illegal to send, or
cause to be sent, unsolicited
174 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_02_3pp.indd 174
commercial electronic messages through e-mail,
instant message services (IM), telephone text
messages (Short Message Service, or SMS), or
multimedia message service (MMS). It does not
cover faxes, voice telephone calls or messages,
or unsolicited ads that pop up to be seen by an
internet user.
The Act was passed as a result of public concerns
about spam. As discussed above, e-mail can be
used for the purpose of fraud. The ways in which
peoples e-mail addresses and personal information
are collected and handled for the purpose of
spamming also raises privacy issues. Although
the Spam Act applies to any spam regardless of
content, a signicant portion of the unwanted
spam that people dislike contains advertisements
for pornography and other products related to
sex, illegal gambling schemes, pyramid selling,
and misleading or deceptive advertisements. Its
method of distribution means that inappropriate
material can be sent to minors.
The Spam (Consequential Amendments) Act 2003
(Cth) amended the Telecommunications Act 1997
(Cth) and the Australian Communications Authority
Act 1997 (Cth) to enable effective enforcement.
The Spam Act is enforced by the Australian
Communications and Media Authority (ACMA), a
Commonwealth statutory authority responsible for
the regulation of radio and television broadcasting,
telephone communications, and the internet.
Figure 8.7 Despite legislation against spam, it
still proliferates.
2/9/09 8:16:21 PM
 2%6)%7

legal links

The ind iv id ual and th e law

For further discussion of spam and
1 Name three types of crime committed by
what is being done internationally
means of the internet. Explain how each
to tackle it, visit some of the
of these can cause harm to people.
following websites:
2 What is fraud? How can it be committed
s www.platywebs.com.au/
by means of the internet? What are some
spamlaw.php
other ways fraud can be committed,
s www.accc.gov.au/content/index.
besides the internet?
phtml/itemId/54073
3 What is spam? Is it merely an annoyance,
s www.spamhaus.org/denition.
or does it raise serious legal issues?
html
Explain, using examples.
To see the current Australian
4 List legislation that has been passed
spam legislation, visit the following
specically to deal with cybercrime.
site and enter Spam Act 2003 into
What other legislation has been used
the Quick Search eld:
to prosecute crimes committed in
www.comlaw.gov.au/
cyberspace?

2%
3%!2#( 
1 Go to the ACMA website and nd out Refer to Chapter 8 on the Student CD
how to make complaints about spam: for information relating to Department
www.acma.gov.au/ of Internal Affairs v Atkinson and Others
2 Go to the ACMA website and outline (High Court of New Zealand,
the various ways in which spam is being 19 December 2008)
fought in Australia:
www.acma.gov.au/WEB/STANDARD/
pc=PC_310308

)NTELLECTUALPROPERTYIN
CYBERSPACE
The term intellectual property refers to crea-
tions of the mind that have commercial value.
These include inventions, literary works, artistic
works, music, software programs, databases,
plant varieties, trademarks and designs. Most of
these things can be created or published on the
internet.
Intellectual property is the exception when
it comes to international law and cyberspace.
In many areas of law, international treaties do
not distinguish between offences committed
in cyberspace and otherwise; however, there
are a number of treaties and
international organisations that
deal specically with intellectual
property issues on the internet.
Intellectual property law pro-
tects the legal rights arising from
a persons intellectual creations.
It applies not to the
themselves but to the expression
of these ideas. So the idea must
have developed into something
tangible for example a software
program or an essay to qualify
2 %3%!2# (   
Go to the website of the
World Intellectual Property
Organization (WIPO):
www.wipo.int/about-ip/en/
1 Locate WIPOs denition of
intellectual property.
ideas 2 Make a list of the treaties
regarding intellectual
property. They can be found
at www.wipo.int/treaties/en/

Cha pter 8 T he individua l and technol ogy 175

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Figure 8.8 WIPO Headquarters in Geneva, Switzerland
copyright
an exclusive right to
publish, copy, publicly
perform, broadcast, or
make an adaptation
of certain forms of
expression, namely
sounds, words or visual
images
176 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_02_3pp.indd 176
for protection. Three types of intellectual property
rights are copyright, trademarks, and patents.
l e ga l l i nk s
For further information, go to
the WTO site and read about
intellectual property treaties:
www.wto.org/
C O P YRI G H T
Copyright is the type of protection given to work
intended to convey information or enjoyment of
literary form, such as books, software, broadcasts,
lms and music. Material that has been produced
in Australia is protected by the Copyright Act
1968 (Cth) and also receives protection under
the laws of other countries that are signatories
to the international treaties of which Australia is
a signatory. The international conventions that
ensure that any protection given to Australian
creative works also apply globally are:
s Berne Convention for the Protection of Literary
and Artistic Works (1886)
s Universal Copyright Convention (1952)
s Rome Convention for the Protection of Performers,
Producers of Phonograms and Broadcasting
Organisations (1961)
s World Trade Organization Agreement on Trade-
Related Aspects of Intellectual Property Rights
(TRIPS) (1994)
s WIPO Copyright Treaty (1996)
s WIPO Performances and Phonograms Treaty
(1996)
New challenges for the law relating to copyright
have arisen as a result of digital technology that
is, information represented by discrete signals.
Computers are digital machines and cyberspace is
therefore a digital environment. Digital technology
has made it very easy to copy and share music
and lm, and the legal issues relating to this are
explored in Chapter 15.
Another major area of copyright violation
involves computer software that is copied and sold
without authorisation, causing losses of billions of
dollars to the companies that originally created
the programs. Such unauthorised production is
in breach of the World Trade Organization agree-
ments, negotiated and signed by most of the
worlds trading nations. If countries refuse to act
against intellectual property violations within their
borders, other countries whose companies are
suffering loss as a result can ask the WTO to take
action.
2/9/09 8:16:26 PM
 T he ind iv id ual and th e law
Figure 8.9 Trademarks of major companies make them readily identiable.

TRAD EM A R K S causes disadvantage to the people who produce trademarks

Trademarks are signs or symbols that give a person that art and information, some have argued that words, names,
symbols, devices or
or corporation the legal right to use, license or sell with the rapid development of cyberspace, we need any combination of
the product or service for which it is registered. A to rethink the concept of property and the laws that these, used to identify
and distinguish the
trademark distinguishes a persons or companys govern property of all types.
goods or services of
product from all others products. Some registered one company from
trademarks have become famous images that those of another

will forever be associated with certain brands Refer to Chapter 8 on the Student CD for patents
rights granted for any
of goods. information relating to: device, substance,
s cyber-warfare method or process
PATENTS which is new, inventive
s cyberterrorism
or useful
Patents are for the protection of intellectual prop-
erty in inventions. The aim of patent laws is to
encourage people to continue research or develop
l eg al l i nks

new products or technology. A patent gives the
owner the exclusive right to derive commercial
benet from the invention for the term of the patent,
within Australia and its territories. International
agreements regarding patents, such as the Patent
Cooperation Treaty (1970), give our trading partners
similar rights and ensure that the patent rights of
Australian inventors are upheld overseas.
Of these three types of rights copyright,
trademarks and patent copyright has the most 2 %6 ) %7   
relevance to cyberspace. Information technology
has greatly reduced the cost of reproduction of text,
images and multimedia products, and the internet
has similarly reduced the cost of transportation and
distribution. (Consider the difference between a
truckload of books and the same content published
electronically.) The culture of the internet has been
a further factor in problems relating to intellectual
property: many resources are freely shared in
cyberspace, with no or minimal commercial prot
expected. While the ease of obtaining information
and entertainment without paying for it clearly
For information on trademarks see
www.ipaustralia.gov.au/trademarks/
what_index.shtml
For further information on
patents see www.ipaustralia.
gov.au/patents/index.shtml
1 What is a property right?
(Refer to Chapter 3.) Explain the specic nature of intellectual
property rights, in contrast to other kinds of property.
2 What can be protected by each of the following? Explain how
each of these works.
s copyright
s trademark
s patent
3 How are intellectual property rights affected by the increasing
use of the internet? Discuss, with examples.
4 Outline some of the legal means of protecting intellectual
property in Australia and internationally.

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cyberbullying
harassment using
digital media such
as websites, e-mail,
chat rooms, social
networking pages or
instant messaging
cyberstalking
repeated harassment
using e-mail, text-
messaging or other
digital media with the
intention of causing
fear or intimidation
disinhibition effect
the tendency to
say and do things
in cyberspace that
the person wouldnt
ordinarily say or do in
the face-to-face world
online predators
people with malicious
intent, such as sex
offenders, pedophiles,
who give false and
misleading identities
with the aim of enticing
their victims into
harmful encounters
online or in real life
racial hatred
abuse or denigration of
a person because of his
or her race, or verbal
abuse or denigration of
a race generally
178 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_02_3pp.indd 178
0RI VA C Y S A F E T Y A N D CE N S O R S H I P
There are a number of ways in which individuals
are vulnerable in cyberspace. These include:
s cyberbullying
s cyberstalking
s racial hatred
s exposure to violent, disturbing and/or illegal
material including child pornography
s exposure to adult material inappropriate for
children
s intrusions into privacy.
In cyberspace, there are few barriers between
individuals and potentially harmful content. In
addition, people who have grown up with the
internet and are comfortable using it and other
forms of digital technology may be less cautious
than those who have adapted to it and adopted it
at a later point in their lives.
Online, people tend to loosen up and reveal
things that they would be less likely to divulge in
their ofine world. Psychologists call this feeling of
invincibility the disinhibition effect.
Social networking sites such as MySpace and
Facebook and online communication media such
as chat rooms require varying degrees of public
personal disclosure that is, information of a
personal nature is shared in what is essentially
a public forum. The impression that friends
are chatting in a controlled, private space is
an illusion. Other people can access this infor-
mation, either immediately or at some later
Figure 8.10 Facebook is an online social
networking site that requires personal
information.
stage, as online information remains indenitely
in cyberspace.
Another potential danger of revealing too
much about oneself is that false identities are
easily created, and the person with whom you are
communicating may not be genuine. Parents may
be justiably concerned about online predators,
who assume an identity in order to entice young
people into harmful encounters online or in the
physical world.
For others, the disinhibition effect may contri-
bute to behaviour such as rude language, harsh
personal criticism, or violent online games. At the
extreme end of the continuum, the disinhibited
behaviour may include threats, cyberbullying or
cyberstalking.
Racial hatred is illegal in Australia under the
Racial Discrimination Act 1975 (Cth). The Racial
Hatred Act 1995 (Cth) amended this Act to extend
its coverage, giving people a mechanism to com-
plain about racial hatred. In the ofine world
racial hatred may occur through speech, gestures,
images or written publications. This law applies
equally to cyberspace, at least for people under
the jurisdiction of Australian law. As with other
types of expression, it is relatively easy for anyone
to fan racial hatred in cyberspace. In late 2008,
there were calls in Australia to toughen laws on
cyber-racism after a spate of occurrences on social
networking sites.
Figure 8.11 In late 2008, there were calls to
toughen laws in Australia on cyber-racism that was
occurring, particularly on social networking sites.
2/9/09 8:16:29 PM
 The Privacy Act 1988 (Cth) contains Privacy

The ind iv id ual and th e law

Refer to Chapter 8 on the
Principles covering federal government agencies
Student CD for information
and relating to the handling of citizens personal
relating to cyber-racism. See
information such as social security, health
media clip, Call to overhaul
insurance and taxation. Amendments to the Act
cyber-racism laws.
in 2000 extended the privacy regime to parts
of the private sector, relating to how businesses
should collect, store, use and disclose personal
information. Some states and territories, including
2%3%!2#( 

NSW, have also enacted privacy legislation; others
Research the laws involving cyber-racism in
have privacy schemes for government agencies
Australia and evaluate their effectiveness.
based on the privacy principles contained in the
Start with the following website: www.
federal Act.
humanrights.gov.au/racial_discrimination/
There is currently no statutory tort for breach
cyberracism/index.html
of privacy. However, in Australian Broadcasting
Corporation v Lenah Game Meats Pty Ltd [2001]
HCA 63, the High Court held that there was nothing
0RIVACYCONCERNS
standing in the way of developing one. Since then,
The information that we present about ourselves there have been several cases heard in state courts
online, including photographs, forms our digital that point towards the recognition of such a tort. digital dossier
dossier. This digital dossier comprises all the In 2008, the Australian Law Reform Commission all the types of
information about a
information about a person, which is held in (ALRC) published a report titled For Your Infor- person that he or she
multiple locations. mation: Australian Privacy Law and Practice, in has deliberately or
unintentionally put
Governments and businesses have always which it recommended extensive changes to
onto the internet, held
collected information about individuals but now privacy laws and practices to take account of new in multiple locations
the speed of data collection practices has outpaced technology, as well as a way that individuals can
methods of protecting that data. bring a civil action for serious breach of privacy.
There has been a trend towards the use of
services and storage of les, documents, e-mail
and other personal information online, on sites
that the user does not own or control, and need not
have knowledge of or expertise in their creation
or maintenance. Individuals have little control
over how the most powerful search engines use
their information. Information, stories, photos and
anything else you may post on a website may be
removed later, but they have already been recorded
in an internet archive, as well as in a search engine
cache a snapshot that is taken of the page
as it originally appeared. Other people may also
copy your words or photos and post them on their
own websites or web pages. So your information
acts like a digital tattoo: even when its no longer Figure 8.12 Identity theft is one of the many
wanted for display, it is not easily removed. crimes that can be committed in cyberspace.

Cha pter 8 T he individua l and technol ogy 179

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 Although the federal Privacy Act is only 20 years old, it
was introduced before the advent of supercomputers,
the Internet, mobile phones, digital
e-commerce, sophisticated surveillance devices and
social networking websites all of which challenge
our capacity to safeguard our sensitive personal
information. The Privacy Act has worked pretty well to
date, but it now needs a host of renements to help
us navigate the Information Superhighway. These days,
information privacy touches almost every aspect of our
daily lives, including our medical records and health
status, our nances and creditworthiness, the personal
details collected and stored on a multiplicity of public
and corporate databases, and even the ability to control
the display and distribution of our own images.
David Weisbrot, ALRC President (Media release, ALRC, 11
August 2008), www.alrc.gov.au/media/2008/mr1108.html
2%6)%7
1 How are cyberbullying, cyberstalking and cyber-racism
different from their counterparts in the physical world?
2 Should laws against these acts be specically drafted to
relate to cyberspace, or are existing laws adequate?
3 List some non-legal ways that could be used to
protect against cyberbullying, cyber-racism and online
predators. Consider the following agents in your answer:
s parents
s teachers and schools
s older teenagers (e.g. siblings, friends or mentors of
younger children)
s software companies
s internet service providers
4 How might someones digital tattoo pose problems
for him or her in the future? List some hypothetical
scenarios, then outline ways that you can prevent this
cameras,
Figure 8.13 Does digital security exist?
0ROTECTINGCHILDREN
One of the most signicant concerns about cyber-
space is the need to protect children, not only
from inappropriate content and online predators,
but from serious criminal offenders who victimise
children. Child pornography is a legal and moral
problem that goes beyond the legality of images or
text on the internet or other media.
In the United States, laws drafted to protect
children from inappropriate material must be
drafted in such a way as not to violate the right
to freedom of expression contained in the First
Amendment. Another difculty is that if a law is too
broad in the scope of what should be prohibited,
it can prohibit too much including content that
is unlikely to be accessed by children or to have
anything to do with the victimisation of children.
This and other issues will be further examined
later in the discussion of the proposed clean feed
legislation in Australia.
Reno v American Civil Liberties
from happening with respect to your online activities. Union53
In 1996, due to public pressure, the US Congress
passed a law known as the Communications
l e g al l i nk s

Decency Act of 1996 (CDA). Two provisions of the

For further information on digital
CDA prohibited the knowing transmission on the
safety issues, see the Australian
internet of obscene or indecent sexual communi-
governments Net Alert website:
cations or images to people under 18 years of age.
www.netalert.gov.au/
This was seen by many as a violation of the
principle of freedom of expression. One of the

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 groups that held this view was an advocacy organi-
sation called the Electronic Frontier Foundation
(EFF), an international non-prot group based in
the US and particularly concerned with preserving
freedom of speech in the context of the internet.
John Perry Barlow, mentioned above, was a
founding member of the EFF and the CDA was the
stimulus for his Declaration of the Independence
of Cyberspace.
Following a federal courts ruling that the CDA
violated the First Amendment, the US government
appealed to the Supreme Court. A broad coalition
of individuals and groups had joined the American
Civil Liberties Union (ACLU) as plaintiffs in the
original case, including not only the EFF, but also
organisations and trade unions of editors and
publishers, high school journalism teachers, and
Human Rights Watch. The Reno in the title of
the case was Janet Reno, Attorney General of the
United States from 1993 to 2001.
The Supreme Court, afrming the lower courts
decision, held that the indecency provisions of the
CDA were an unconstitutional restriction of free
speech. The court found that the terms offensive
and indecent were vague, and the provisions of
the CDA overly broad, concluding that the CDA
was not sufciently narrowly tailored to the goal
of protecting minors from potentially harmful
material. Moreover, there is no effective way to
determine the age of an internet user.
The courts view was that online communi-
cation differs signicantly from broadcast media,
in that a user will seldom encounter content by
accident. The internet should therefore be subject
to less regulation.
l e ga l l i nk s
For full text of the decision in Reno
v American Civil Liberties Union,
521 US 844 (1997) see http://
caselaw.lp.ndlaw.com/cgi-bin/
getcase.pl?court=us&navby=case
&vol=000&invol=96-511
9780521734699part_02_3pp.indd 181
!CLEANFEED
The ind iv id ual and th e law
Similar concerns about offensive and obscene
content have been raised in Australia more
recently. The idea of clean feed legislation origi-
nated during the Howard federal government and
involved the establishment of a ltering scheme
that would be imposed on all Internet Service Internet Service
Providers (ISPs)
Providers (ISPs).
companies that offer
The Labor government that was elected in customers access to
2007 continued to consider the proposal. The the internet
$70 million plan would block web pages listed in World Wide Web
a system of documents
a blacklist maintained by ACMA. It was argued
that are accessible
that not only would this prevent internet users on the internet and
from seeing unwanted and inappropriate material, that are connected to
each other through
but would combat child pornography itself. Two
hyperlinks on which
potential types of lter were canvassed. Either the user can click to
all pornographic material would be blocked, or be taken to another
location. The World
an opt-in scheme would allow users to continue Wide Web is not the
receiving adult material. same thing as the
internet.
The mandatory proposal was much more
restrictive than the voluntary ISP lter schemes
operating in some European countries, which
block only child pornography. One version of the
scheme in Australia would include a wider range
of material, some inappropriate for children but
not necessarily involving pornographic or violent
content. Social themes upsetting to children
could include divorce and euthanasia.
It has been pointed out that criminals
distributing child pornography seldom use sites
that are accessible on the World Wide Web.
Increasingly, they are using less public methods
such as peer-to-peer networks, which allow single
computers to communicate with each other;
encrypted networks, or smaller networks using
codes that only the members know; or other
systems that prevent public access. Consequently,
blocking websites is not an effective means of
stopping the spread of child pornography.
Some internet service providers dislike the
proposal because it is too easily bypassed by users,
and because enforcement would be too onerous.
Another objection is the risk that the lter would
block material that has nothing to do with the type
of content that the law aims to ght.
Cha pter 8 T he individua l and technol ogy 181
2/9/09 8:16:35 PM
 Figure 8.14 On 5 May 2008, a seminar about internet censorship was held at the Nobel Peace Center in Oslo, Norway.
Debate continues around the world about governments rights to introduce mandatory ISP ltering.

2 I G H T S I N C Y B E R S P A CE
laissez-faire
a French word literally ,AISSEZ FAIREAPPROACHTO phenomena such as race hatred and pornography,
translated as allow to
do, used to describe
RIGHTS and to ensure reasonable quality overall. The

economic philosophies advocates do not trust the marketplace of ideas.

that government
should not intervene in
business; may also be
used in a broader sense
of minimal government
intervention in most
aspects of society
2% 3%! 2#( 
See Barlows A Declaration
of the Independence of
Cyberspace, of 8 February
1996, at http://homes.eff.org/
~barlow/Declaration-Final.html
1 What are the key points of
the speech?
2 Discuss Barlows assertion
that governments should
keep out of cyberspace.
Some internet commentators advocate a laissez-
faire approach to information, which means they
do not think it should be regulated in any way. They
argue that individuals are capable of determining
the quality of internet content and that govern-
ments should not intervene in the marketplace of
ideas. One of the organisations taking
this line is the Electronic Frontier
Foundation, which was founded
in 1990 with the primary goals of
defending free speech, privacy, and
consumer rights.
)NTERVENTIONIST
APPROACHTORIGHTS
Other commentators argue that an
appropriate role for governments is to
ensure that the law deals with online
They advocate a more active role for governments
in regulating quality on the internet. This approach
would involve:
s enacting legislation and or international treaties
s imposing obligations on ISPs to block certain
content
s strengthening enforcement agencies.
The Australian government has taken a more
interventionist approach in the debate about clean
feed regulation.
Other means of dealing with questionable
material in cyberspace have been suggested. Many
of these methods of improving the quality of infor-
mation rely on the active involvement of online
communities and of key actors and stakeholders,
both private and public. These include not only
governments, lawmakers, and law enforcement
agencies, but also parents, teachers, software com-

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 panies and other businesses. Governments would
need to take a leadership role, but would also need
to give the other agents considerable freedom and
scope. Some of the ideas include the establishment
of national or international bodies for the accredit-
ation of websites; greater use of reputation and
industry ratings systems, as used by YouTube, eBay
and iTunes; greater use of brands and labels (trust
marks); government funding of internet awareness
and digital media literacy skill classes in schools;
search engine ltering; and encouragement of
social norms, for example as Wikipedia has done
with respect to the requirement of a neutral point
of view in all of its content.
In most cases, the law can only set minimum
standards. Making laws in relation to cyberspace
is very difcult, as there is a dearth of inter-
national agreements. Most of the laws regarding
cyberspace are national laws which are tied to
local values. Limits on national law enforcement
remain despite the global nature of the internet.
#U RRENTS TAT U SA NDSOU RCESOF
LAWI NC YBER SPACE
The sources of law in relation to cyberspace are
as follows.
.ATIONAL
3TATUTES
Nation-states have produced numerous laws to
govern use of the Internet within their borders.
Many laws relating to cyberspace are contained
within more general statutes. For example, the
Crimes Act 1900 (NSW) contains sections 308 to
308I, which set out computer offences, including
hacking. These provisions were added in 2001
by means of the Crimes Amendment (Computer
Offences) Act 2001 (NSW).
9780521734699part_02_3pp.indd 183
2
%6 ) %7   
The ind iv id ual and th e law
1 How is the debate about government
regulation of internet content in the USA
different from the form that it takes in
Australia? How is it similar?
2 Do you think Reno v ACLU would be decided
in the same way today? Give reasons for
your answer. How likely is it that an internet
user might encounter content by accident?
Give examples.
3 What were the positions of the two sides in
the clean feed debate?
4 Outline at least one argument for each
side in the philosophical debate about how
governments should approach individual
rights regarding internet content. Be sure
to provide reasons (evidence) for the claims
that each side might make.
5 Think of at least one objection to the
argument for each sides view. Which view
is the more plausible? Justify your answer.
There are also Acts at federal and state level that
specically pertain to cyberspace activity, such as
the Spam Act 2003 (Cth).
#OURTDECISIONS
Superior courts can create precedents in relation
to the legalities of activities in cyberspace. As
we saw, the US Supreme Courts decision in
Reno v ACLU that the indecency provisions in the
Communications Decency Act of 1996 were uncon-
stitutional restrictions on free speech resulted
in those statutory provisions being struck down.
Although courts in one country are not bound
by decisions in another country (that is, foreign
decisions cannot serve as precedent), judges
Cha pter 8 T he individua l and technol ogy 183
2/9/09 8:16:37 PM
 sometimes refer to cases from other countries in
their decisions.
)NTERNATIONAL
Unlike other areas of law where issues cross
national boundaries, there are few specic inter-
national treaties that deal specically with cyber-
space. Given the exponential rise in internet use
since the 1990s, one would expect that there
would be many international treaties to deal with
common issues faced by all nation-states. This is
yet to occur, however.
Some international organisations and their
current roles with respect to governance in cyber-
space are listed below.
s The United Nations: The UN has little control
over the internet or what happens in cyberspace,
except in the area of intellectual property. There
are no UN-sponsored treaties or conventions
that are specically designed to govern cyber-
space. Intellectual property aspects of internet
use are looked after by WIPO.
s The World Intellectual Property Organization
(WIPO): WIPO is a specialised agency of the
United Nations concerned with intellectual prop-
erty. See www.wipo.int/portal/index.html.en
s European Union (EU): The EU is an economic
and political partnership of European nations
that has regulatory powers in various areas
of social and economic life. In 2003, the EU
reformulated its regulatory framework covering
communications, to cover all electronic com-
munication networks and services, and began
to review that framework in 2008 to ensure that
it stays current. The EU has made a number of
treaties relating to cyberspace. Parties to the
Council of Europe Convention on Cybercrime
(2001), for example, include 38 European
countries, Canada, Japan, Montenegro, South
Africa, and the USA. For more information on
the EU, see http://europa.eu/index_en.htm
s The World Trade Organization (WTO): The
WTO looks after trade matters between nations.
184 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_02_3pp.indd 184
This includes trade aspects of intellectual
property, which are dealt with via the TRIPS
agreement. See www.wto.org/english/tratop_e/
trips_e/trips_e.htm The WTO also deals with
E-commerce matters: see www.wto.org/english/
tratop_e/ecom_e/ecom_e.htm
s Internet Corporation for Assigned Names and
Numbers (ICANN): This non-prot corporation
was established in 1998 to coordinate the
naming system on the internet which is used
to identify all websites. It has international
representation but is very much under US
government control. ICANNs role is strictly
limited to the management of the domain
naming system. However, it has the potential
to become the most powerful organisation
overseeing the internet if in the future there
is a wider representation of the international
community. See www.icann.org/en/about/
s Internet Assigned Numbers Authority (IANA):
IANA is one of the oldest internationally organ-
ised institutions, having been established by
the US Defence Information Agency in 1972 for
the purpose of assigning unique addresses to all
computers connected in networks at that time.
In 1973 the addressing system known as the
Internet Protocol, or IP, became the accepted
way of connecting all networked computers. In
1984 a simpler way of naming internet address-
es was worked out with the establishment of
the name server. Up to this point every internet
address was known by a long number such as
121.255.098.4. Now, simpler names could be
assigned to these numbers to produce easy-
to-remember addresses. So, an IP address
like 121.255.098.4 could become an easy-to-
remember name like business.com. In 1985
this was formalised as Domain Name System,
or DNS, and the top-level domain names
such as .com, .net and .org were introduced.
In 1998 IANA became part of ICANN. Today
it manages over 20 million domain names,
with around 40 000 registered every day. See
www.iana.org/
2/9/09 8:16:38 PM
 &U T U REDI REC T IONS
7HYLAWSARENEEDED lawsuit by alleged victims of fraud. Without the
In order to combat cybercrime of all sorts, there
must be enforceable laws. Cyberspace is a new
and exciting development in society, but arguably
there is no reason to think people are any better
able to regulate social behaviour there than in any
other place, in the absence of external authority.
In 1995, when eBay was founded, the companys
owners did not believe that they needed to rely on
government or laws to make their online business
work. They had an online feedback forum where
buyers and sellers could post praise and complaints
about one another and their transactions, and
one customer support person who was paid
$100 a month to resolve disputes. However, with
the growth of the company, scams began to
proliferate. Goods were offered but not delivered,
hundreds of would-be buyers were affected, and
it was only a matter of time before eBay faced a
Figure 8.15 Cyborgs are the way of the future
9780521734699part_02_3pp.indd 185
The ind iv id ual and th e law
threat of prosecutions to limit the relatively small
number of dishonest users, cybercrime could ruin
an online business. Governments are needed,
to create an environment where the rule of law
prevails and where law enforcement mechanisms
will deter those who break the law.
Governments provide public goods that enable
individuals and businesses to use the internet
effectively. These public goods are:
s the cable network and communication laws
s criminal law
s laws governing property rights
s enforcement agencies.
Essentially, the smooth functioning of the
internet depends on governments preventing
harm and protecting rights. Countries whose
governments do a poor job of this are nding that
big companies are refusing to do business there.
Cha pter 8 T he individua l and technol ogy 185
2/9/09 8:16:39 PM

extradition
the handing over of
a person accused
of a crime by the
authorities of the
country where he or
she has taken refuge,
to the authorities of
the country where the
crime was committed
2%
3%! 2#( 
1 Go to the website of the
Commonwealth Department of
Broadband, Communications
and the Digital Economy and
locate the page discussing ISP
ltering: www.dbcde.gov.au/
communications_for_consumers/
funding_programs__and__
support/cybersafety_plan/
internet_service_provider_isp_
ltering
2 Choose Part 3: International
Survey Final and research
the ISP ltering schemes
implemented by the nine
European countries surveyed.
3 How do these schemes attempt
to protect innocent content
providers and internet users
while ltering out objectionable
material?
4 What are the types of
objectional material that they
target?
186 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_02_3pp.indd 186
3TRATEGIESFOR
GOVERNMENTS
In their efforts to exert control in cyberspace, gov-
ernments do not have to be completely effective
to be adequately effective. Achieving perfect legal
control is quite often just too expensive.
)NTERMEDIARIES
One way in which governments can exert control
over content is by enlisting local intermediaries
such as internet service providers and the com-
panies that control the physical internet connec-
tions. They can also inuence the policy of what
goes on the local portals for search engines. By
utilising nancial intermediaries, such as PayPal,
banks or credit card companies,
a government can wield huge
inuence over an industry
indeed, can cripple it without
going to court.
Needless to say, some
countries that have utilised these
methods are not known for
having a high regard for freedom
of expression or for corporate
independence from government.
0ROSECUTIONOF
INDIVIDUALCRIMINALS
Quite often the simplest way a
government can assert control
over cyberspace is by physically
arresting an individual suspected
of cybercrime. The difculty is
that the person must be within
the territorial borders of the
government that is seeking him
or her. Otherwise, extradition
treaties can be used to remove
the person from the country
where he or she has taken
refuge.
#HALLENGESTO
GOVERNMENTCONTROLOF
CYBERSPACE
One of the greatest challenges for governments is
that each new technological innovation tends to
make it easier for the law to be violated in some way.
Often there will be a race between people using
new technology to avoid the law, and authorities
using new technology against the lawbreakers. It
can be quite costly for governments to chase and
shut down illegal operations in cyberspace. Also,
only developed (rst world) countries have the
nancial and other resources to do this.
Another major difculty for governments
seeking to control content is the risk of censorship.
As we have seen, this is of particular concern to
countries with explicit protection for freedom
of expression. On the other hand, countries
that have no qualms about limiting free speech,
such as China and Saudi Arabia, have achieved
unprecedented control over internet content
within their jurisdictions.
As there are many different legislative regimes
in the world, what is illegal in one country may be
permitted in another. In the absence of effective
international conventions to deal with content
that has human rights implications, such as child
pornography, some nations have implemented
measures such as ISP ltering.
2
%6) %7   
1 Why are strategies involving the use of
intermediaries (such as ISPs, companies
that provide physical infrastructure, and
banks) problematic? List some of the
objections that could be made to these
strategies.
2 Name three problems for governments
seeking to make certain types of web
content illegal.
2/9/09 8:16:41 PM
 'LOBALLAWS
4HECHALLENGEOFTRANSNATIONAL
CYBERCRIME
Cybercrime is big business and it poses a challenge
for law enforcement agencies. Crimes such as data
theft, data tampering, and the creation of viruses
and worms are enormously damaging. Companies
also tend to under-report the effects of cybercrime
on their business because they do not want the
adverse publicity.
ISPs are not capable of blocking criminal
activity unless they have the specic details of
which user is involved. In combating cybercrime
the enforcement agencies have to work quickly
to deal with criminal acts because it is easy for
Figure 8.16 The laws that govern cybercrime have to constantly evolve in order to match the speed
and growth of cyberspace.
9780521734699part_02_3pp.indd 187
criminals to slip back into anonymity once they
The ind iv id ual and th e law
know they have been detected.
Another type of crime on the internet is
terrorism. Cyberterrorism is usually understood terrorism
to mean unlawful attacks or threats of attack violence or the threat
of violence, directed
on computer systems, with the intent to cause at an innocent group
harm or fear and to bring about some political or of people for the
purpose of coercing
ideological objective. For example, it might involve
another party, such as
the disruption of infrastructure, such as electrical a government, into a
systems or computer networks. course of action that
it would not otherwise
The only binding international treaty on
pursue
cybercrime to have been formed to date is the
Council of Europes Convention on Cybercrime
(2001), which entered into force in July 2004.
However, it has been difcult getting countries
to agree to sign the convention due to sensitivity
Cha pter 8 T he individua l and technol ogy 187
2/9/09 8:16:42 PM
 about sovereignty and authorising third parties
to do cross-border searches. Also, there are civil
liberties concerns that the treaty jeopardises free
speech and privacy rights. Forty-three nations
had signed the convention as of 2009, but only
about a third of these had ratied it. Though the
aims of the treaty are noble it has not yet made
a signicant contribution to ghting cybercrime.
Nations are still relying on unilateral action and
ad hoc cooperation with a few other like-minded
nations to ght cybercrime.
However, the Convention on Cybercrime (Draft
25), along with the recommendations of the Model
Criminal Code Ofcers Committee of the Standing
Committee of Attorneys-General, inuenced the
development of Australias Cybercrime Act 2001
(Cth), discussed earlier in the chapter.
l eg al l i nks
For further information about the
Convention on Cybercrime, see
www.coe.int/t/DGHL/cooperation/
economiccrime/cybercrime/
default_en.asp
)#!..SPOTENTIAL
One organisation that has enormous potential to
be the ultimate global authority on the internet is
the Internet Corporation for Assigned Names and
Numbers, or ICANN. This non-prot organisation
is responsible for the domain name system (DNS).
The founders of ICANN intended it to be the
ultimate authority for the internet. However, the US
government has had responsibility for its oversight,
under a memorandum of understanding between
ICANN and the US Department of Commerce, from
1998 to 2009. Representatives of other countries
and other observers have questioned why the US
should have primary authority, and argued that it
should be more independent and therefore more
international.
188 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_02_3pp.indd 188
Some of ICANNs achievements have included:
s decentralisation of the sale and distribution of
domain names, which led to a signicant drop
in the price of registering a domain name
s establishment of an effective method of
resolving trademark disputes
s reduction in the incidence of cybersquatting
that is, making a prot from the use of someone
elses domain name.
Most of all, ICANN has ensured the stability
of the internet so that individuals, businesses
and governments rarely worry about the internet
collapsing.
#O NC L U S IO N
Laws effectiveness in cyberspace has been
limited because the internet is a global medium
and laws are limited by national boundaries. The
tension between global and local interests, as well
as the cost of enforcing law with respect to the
internet, has been a hindrance. In addition, law
enforcement is tied to its area of jurisdiction, and
the anonymity possible on the internet has made
it difcult to trace offenders. Often, law must use
a case-by-case approach, and prioritise cases
according to which have the most reasonable
prospect of enforcement.
When drafting legislation and agreements, both
national governments and international organi-
sations must ensure that the new law or reform
can accommodate the rapid pace of technological
change, so that it is not made redundant or
irrelevant in a short time. They must also avoid
the unintended consequences of well-intentioned
laws, balancing the protection of people directly or
indirectly affected by activities in cyberspace with
individual rights and community good.
Given the international nature of cyberspace,
its effective regulation will require, at the very
least, cooperation among nation-states. A binding
and enforceable international regime will require
considerable effort, and quite possibly a voluntary
relinquishment of some national authority.
2/9/09 8:16:43 PM

s Cyberspace is an area in which the law is
playing an increasing but controversial role.
The characteristics of cyberspace include
C hap te r s u m m a ry
global coverage, easy anonymity for users,
and the facilitation of creative activity.
s Crimes specic to cyberspace include hacking
and spam.
s Fraud and violations of intellectual property
rights are not specic to cyberspace, but they
take on a distinctive character in that context.
s Privacy and safety issues are of concern
to many internet users, and particularly to
parents of young users.
M ul t i p l e- c h oi c e q ues ti ons
 Two distinct features of cyberspace that will
inuence laws relating to it are its:
A security and predictability
B anonymity and global character
C political progressivism and educational
value
D democracy and communitarianism
 It can be concluded from the US Supreme
Court decision in Reno v ACLU that:
A Cyberspace requires some degree of
government control.
B Laws that attempt to regulate internet
content may restrict free speech.
C Online communication is more like a
conference call than a private conversation.
D All of the above
 The international organisation concerned with
copyright law is:
A ICANN
B IANA
C the UN
D WIPO
9780521734699part_02_3pp.indd 189
The ind iv id ual and th e law
s The ALRC has recommended the
development of a statutory tort of breach of
privacy, and other reforms to take account of
new technology.
s Efforts to protect children from indecent or
inappropriate material on the internet can
conict with the protection of individual
rights to free expression. Combating serious
criminal activity that makes use of the internet
faces similar challenges, as well as the
difculty of enforcement.
s Philosophical approaches to rights in
cyberspace fall into two general camps:
laissez-faire and interventionist.
s While greater government control of
cyberspace has clear benets with respect to
ghting crime, democratic governments must
ensure that individuals civil rights are not
violated.
s International regulation of cyberspace is in its
infancy.
 Spam is:
A the unauthorised duplication of goods
protected by intellectual property law.
B an unsolicited commercial electronic
message.
C an attempt to gain money through some
sort of deception.
D the intentional misrepresentation or
concealment of information in order to
deceive or mislead.
 A digital tattoo is:
A a unique type of computer identier used
by some European countries.
B a software program unique to the
individual, which is stored online
somewhere in cyberspace.
C a type of internet scam.
D information placed on the internet that is
no longer wanted but that cannot be easily
removed.
Cha pter 8 T he individua l and technol ogy 189
2/9/09 8:16:43 PM
 C hap ter s u m m a ry ta s k s

 Identify the various sources of law in

cyberspace. Give examples.
 Describe the various types of criminal
offences that occur in cyberspace.
 List the various types of intellectual property
and explain how cyberspace may pose unique
problems for the law in relation to them.
 Describe the various ways in which privacy
can be violated in cyberspace.
 Explain how privacy is protected in Australia.
 List some of the problems arising from
the free and unrestricted transmission of
information in cyberspace.
Top i c revi ew
 List some of the problems arising from
government efforts to prevent the
transmission of some types of information in
cyberspace.
 Explain why government control of
cyberspace is constantly challenged.
 List the international organisations that
have some authority for the regulation of
cyberspace, and describe the function and
jurisdiction of each.
 Outline the reasons why law is not always
effective in cyberspace.

EX T EN DED R ES PON S E
 Evaluate the role of case law in shaping
the regulation of the internet. Refer to two
prominent cases in your answer.
 Describe the features of the internet and
explain the implications of these features on
lawmaking in cyberspace.
 In our world, whatever the human mind may
create can be reproduced and distributed
innitely at no cost. Assess the implications
of this aspect of John Perry Barlows 1992
vision of cyberspace.
 Evaluate the usefulness of international
treaties in governing cyberspace.
 Assess the effectiveness of government
efforts to ght crime in cyberspace.

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 L aw in p rac tic e
PART III
Law in practice
Law in practice AREA 1: GROUPS OR INDIVIDUALS SUFFERING DISADVANTAGE
Children and young people
Women
30% of course time

AREA 2: EVENTS WHICH HIGHLIGHT LEGAL ISSUES

The Bali bombings
The Port Arthur Massacre

AREA 3: INDIVIDUALS OR GROUPS IN CONFLICT WITH THE STATE

Mohamed Haneef
Outlaw motorcycle gangs (OMCGs)

AREA 4: CRIMINAL OR CIVIL CASES THAT RAISE ISSUES OF

INTEREST TO STUDENTS
File sharing and digital copyright
Drug testing

191

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 A r e a 1: G r o u p s o r i n d i v i d u a l s s u f fe r i n g d i s a d va nt a g e

CHAPTER 9
Children and young people
c hap ter ob j e cti ve s

In this chapter, students will: s investigate the role of the law in addressing and
s explore legal concepts and terminology relating to responding to change with respect to children and
children and young people young people
s investigate the main features of the Australian and s nd and use legal information from a range of
international legal systems in relation to children sources
and young people s develop the ability effectively to communicate legal
s analyse the legal systems effectiveness in delivering information and issues.
justice and addressing issues in society relating to
children and young people
s investigate the place of the law in encouraging
cooperation and resolving conict with regard to
children and young people
ke y t e r m s / vo c a b ul ar y

adoption order working with children check

cautions young person
children youth justice conferences
doli incapax
foundling
guarantor
indictable offence
juvenile
prohibited person
public space
sanction
summary offences
torts
warnings

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 L aw in p rac tic e
rel ev ant l aw

IM PORTA N T L EGIS L AT ION

Family Law Act 1975 (Cth)
Education Act 1990 (NSW)
Children and Young Persons (Care and
Protection) Act 1998 (NSW)
Births, Deaths and Marriages Registration Act
1995 (NSW)
Australian Citizenship Act 2007 (Cth)
Adoption Act 2000 (NSW)
Children (Criminal Proceedings) Act 1987 (NSW)
Young Offenders Act 1997 (NSW)
Children (Protection and Parental Responsibility)
Act 1997 (NSW)
Commission for Children and Young People Act
1998 (NSW)
Childrens Court Act 1987 (NSW)
Anti-Discrimination Act 1977 (NSW)

SIGNIFIC AN T C AS ES
Gillick v West Norfolk and Wisbech Health
Authority [1985] 3 All ER 402
Department of Health and Community Services
(NT) v JWB (Marions case) [1992] HCA 15
Re W (A Minor) [1993] Fam 64

Cha pter 9: Children a nd young peopl e 193

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 Int roduc t ion
children Children and young people represent the future This chapter will examine the disadvantages
generally persons aged that children and young people encounter, the
of society. The respect we afford them and the
15 years and younger,
depending on the legal way in which we support and nurture their social, legal and non-legal means adopted to address
context emotional and cognitive development are crucial those disadvantages, and the limitations of these
young people to the maintenance of a fair and just community. means.
in NSW, persons aged
1618 years

# H I L D R E N  YOU N G P E O P L E
A N DT HELAW
Figure 9.1 Under the law, a
person aged 15 or younger is
generally regarded as a child.
In NSW, a person between
the ages of 16 and 18 is
considered a young person.
194 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 194
(OWTHELAW !HISTORYOFTHESTATUS
DEFINES@CHILDHOOD OFCHILDRENANDYOUNG
AND@YOUNG PEOPLE
PERSON Historically, children had no legal rights until they
Traditionally, the legal age of adult-
hood was 21. In the past 20 to 30
years, most jurisdictions have lowered
this age to 18.
Article 1 of the Convention on the
Rights of the Child (CROC) states that
anyone under the age of 18 is a child
unless the national law species an
earlier age.
The Children and Young Persons
(Care and Protection) Act 1998 (NSW)
denes a young person as someone
aged between 16 and 18.
These denitions are important
because laws treat children and young
people differently from adults. These
laws are intended to:
s prevent them from being exploited
s protect them from the conse-
quences of making uninformed
decisions
s protect others from being dis-
advantaged by dealing with a
person who is a minor.
reached adulthood. It was not until the late 19th
century that concern about the working conditions
of children, and the broader effects that child
labour had on the quality of many childrens lives,
set in motion signicant changes.
Throughout the 19th century, children in poorer
families were constantly threatened by the spread
of disease. They lived in dirty, overcrowded housing
with very poor sanitation. It is estimated that
about half the funerals in London were for children
under the age of ten, many of whom had died from
preventable diseases. The infant mortality rate
was as high as 50 per cent for children in their rst
year. Many children also experienced violence on
a regular basis. For many, poverty and crime were
signicant inuences in their formative years.
Joining a gang, crime and prostitution were ways
of surviving until adulthood.
Children committing criminal acts were treated
in the same way as adult offenders. The concept
of an age before which a person could not be held
criminally responsible doli incapax did not
exist, and children as young as seven or eight were
convicted of serious criminal offences.
2/9/09 8:00:18 PM

Figure 9.2 The industrial era introduced young children to long work hours and dangerous machinery.
Children were forced to work from a young age.
The beginning of the industrial era saw the begin-
ning of child labour in factories, where they worked
long hours, usually with dangerous machinery, for
very low pay. They also experienced work-related
diseases due to hard physical labour or from work-
ing with industrial chemicals, unprotected.
The concept of public education did not exist.
The education children received depended on the
wealth of their family. Private tutors or governesses
who taught the children at home were one option
for the rich, or boys could be sent to exclusive
boarding schools.
In 1870, the Elementary Education Act was
passed in England, which introduced compulsory
universal education for children aged 513. The
9780521734699part_03_3pp.indd 195
L aw in p rac tic e
churches were heavily involved in education,
with many Anglican, Catholic and Jewish families
preferring to send their children to a religious
school. In Australia, the Church of England ini-
tially assumed responsibility for the education
of colonists. Following disagreements between
Anglicans, Presbyterians and Catholics as to which
religion had authority for this task, each colony
doli incapax
between 1872 and 1895 passed Education Acts
a Latin term meaning
making primary education a state responsibility incapable of wrong;
and stipulating that it would be free, compulsory the presumption that
a child under 10 years
and secular. Many parents of limited economic
of age cannot be held
means needed their children to be working, and legally responsible
it wasnt until the introduction of a minimum for his or her actions
and cannot be guilty
working age that children began to attend school of a criminal or civil
regularly. offence
Cha pter 9 Children a nd young peopl e 195
2/9/09 8:00:24 PM
 By the end of the 19th century, governments, have ones own name and identity, to be raised by
religious institutions and charities had become ones family and to have a relationship with both
aware that children required specic legislation to parents, even if the parents are separated.
protect them from violence and abuse, and to give CROC is the most widely ratied human rights
them greater opportunities to develop socially and treaty, with more than 193 countries having
emotionally. ratied it. The exceptions are the United States
and Somalia. It is monitored by the UN Committee
2ECOGNITIONOFCHILDRENSRIGHTS on the Rights of the Child, which assesses state
Two signicant events in the 1980s that parties performance, reports to the UN General
advanced the rights of children and young people Assembly, and makes recommendations. The
internationally and in common law countries were committee does not have the power to hear
the opening for signature of the United Nations individual complaints of violations of childrens
Convention on the Rights of the Child (CROC), and rights.
the Gillick case in England.
TH E G I L L I C K C A SE
C ON VEN T ION ON T H E RI G H TS O F TH E Gillick v West Norfolk and Wisbech Health Authority
C H IL D [1985] 3 All ER 402 was a House of Lords decision.
The UN Convention on the Rights of the Child (1989) The Department of Health and Social Security
sets out a comprehensive set of rights for all (DHSS) had distributed a yer advising doctors
children and young people. It covers civil, political, that they could lawfully provide contraception
economic, social and cultural rights, and requires and advice to persons under 16 years old without
that all state parties act in the best interests of their parents consent. The local health authority
the child. The Family Law Act 1975 (Cth) and other refused to promise Victoria Gillick, a mother of
Australian legislation endeavour to reect that ve daughters, that they would not provide advice
objective. The basic rights of a child, as set out in and contraception to her daughters without her
Articles 140 of CROC, include the right to life, to consent. Gillick brought an action against the
health authority and the DHSS, based on her belief
that a child under 16 was too young to make such
2%6)%7
2 %3 %!2 #(    a decision without parental consent. Justice Woolf
1 What challenges did children Go to the Ofce of the High in the rst instance held that Mrs Gillick was not
and young people experience Commissioner for Human entitled to declarations prohibiting the doctors
in the 19th century in Rights at www.unhchr.ch/html/ at the clinic from prescribing contraceptives or
England? Give examples. menu3/b/k2crc.htm. providing advice to her daughters. The Court
2 What is meant by doli 1 Write a one-page summary of Appeal allowed Mrs Gillicks appeal, and the
incapax? of CROC. Department of Health and Social Security, on
3 Outline how the law denes 2 What is the signicance behalf of the health authority, took the matter to the
children and young people. of CROC? Does it bear House of Lords, which afrmed the appeal on the
Use examples. any relation to the Gillick basis that a 16-year-old was capable of consent in
4 Read about the facts of the case? Give reasons for your medical matters, provided that she has sufcient
Gillick case at http://news. answers. understanding and intelligence to understand fully
bbc.co.uk/onthisday/hi/ what is proposed. In other words, children have
dates/stories/july/26/ and the right and the ability to make decisions to affect
comment on the implication their lives, and they can do so competently as
of the decision by the House long as they understand the implications of their
of Lords. decisions.

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 #IVILLAWINRELATION
TOCHILDRENANDYOUNG
PEOPLE
The Family Law Act 1975 (Cth) governs disputes
between married and de facto couples, including
disputes relating to children. The paramount

L aw in p rac tic e
consideration for orders relating to children
made under this Act must be the childrens best
interests.
Many other aspects of the law applying to
children come under state jurisdiction. In New
South Wales, these include the following matters.

2EGISTRATIONANDCITIZENSHIP
Parents have the responsibility to register the birth
of their child under the Births, Deaths and Marriages
Registration Act 1995 (NSW). The parents have
seven days after the birth to give notice of the birth,
Figure 9.3 A child with a member of his adopting family
and 60 days to complete the registration process.
This puts the existence of the child on the public
record and gives the child a legal name, that of If a child is a foundling, the person who foundling
the father or mother in most cases, and therefore a deserted infant
has been granted guardianship of the child is
whose parents identity
affords to the child all legal rights and protections. responsible for having the childs birth registered. is unknown
The parent or parents also assume responsibilities An adoption order made under the Adoption Act adoption order
under the law for the childs welfare. If a child is 2000 (NSW) must also be registered (Births, Deaths a court order that
stillborn, the state Registrar of Births, Deaths and establishes a new legal
and Marriages Act 1995 (NSW) s 23). A childs name
relationship between
Marriages must be notied within 48 hours. may be changed, and generally the child must potential adoptive
parents and a child
eligible for adoption.
It also severs the
legal relationship that
l eg a l i nf o

existed between the

The Australian Citizenship Acts#TH AND
The Australian Citizenship Act 2007
(Cth) replaced the Australian Citizen-
ship Act 1948 (Cth). It sets out how a
person becomes an Australian citizen,
the circumstances in which a person
may cease to be a citizen, and some
other matters related to citizenship.
Under the Act, any child born in
Australia is automatically an Austra-
lian citizen if at least one of the parents
adoptive child and his
or her natural or legally
is an Australian citizen. Children born recognised parents or
overseas to a parent who is an guardians prior to the
adoption process.
Australian citizen may apply for
registration as an Australian citizen by
descent, if they meet certain criteria.
A child who is a perma nent resident
and who has been legally adopted also
automatic ally acquires Australian
citizenship.

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 consent to this change (Adoption Act 2000 (NSW)
s 101; Births, Deaths and Marriages Act 1995 (NSW)
ss 28, 29).
%DUCATION
Children have the right to be educated, and it
is compulsory for children aged 615 to attend
school under the Education Act 1990 (NSW). Under
s 22 of this Act, parents must send their children
to a government school or a non-
government school registered
2%3 % ! 2#( 
with the NSW Board of Studies,
Go to www.youngpeopleatwork. or register them for home
nsw.gov.au/ and www.lawstuff. schooling. Section 4 of the Act
org.au to research other aspects asserts that it is the duty of the
of work for children and young state to ensure that every child
people. Summarise your ndings in receives an education of the
a few paragraphs. highest quality.
7ORK
Generally it is acknowledged that it is in the best
interests of children that they remain in school
and receive a formal primary and secondary
education. According to the Ofce of Industrial
Relations in NSW, there is no minimum legal age
limit for young workers. If, however, they are
under 15, they must receive authorisation from
the NSW Department of Education and Training
to leave school. Young people in the workplace are
covered by all of the relevant workplace and safety
legislation for workers in NSW.
The NSW Commission for Children and Young
People, in its 2005 report Children at Work,
surveyed 10 999 children and young people in
Years 710 living in NSW about their working
experiences. The report gave an interesting prole
of young workers throughout the state.
Although the survey found that the majority
of children could list both positive and negative
aspects of working, and that they especially
liked getting paid and gaining experience and
responsibility, the report also showed some trends
of concern:
198 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 198
s Children living in less disadvantaged areas were
more likely to work, and work decreased with
increased social disadvantage. Children with
greater household responsibilities had fewer
opportunities to work.
s Young workers were paid less than mature people
doing the same jobs, possibly because they often
work on an informal or casual basis and their
work is outside regulatory requirements.
s High levels of harassment and injury were
reported by the children surveyed.
-EDICALTREATMENT
In Department of Health and Community Services
(NT) v JWB (Marions case) [1992] HCA 15, the
High Court of Australia followed the decision in
the Gillick case, holding that once a person has
sufcient maturity and intelligence to understand
what is proposed, she or he is capable of consenting
to medical treatment.
This common law test is subject to s 49 of the
Minors (Property and Contracts) Act 1970 (NSW),
which protects a medical practitioner from liability
in tort for treating a young person, if the young
person has given consent to the medical or dental
treatment and is aged 14 or over.
Parents have the responsibility to seek proper
medical care for their children, even if they have
religious objections. The Children and Young
Persons (Care and Protection) Act 1998 (NSW) s 174
authorises a medical or dental practitioner to carry
le g al li nk s
To read the recommendations of
the NSW Commission for Children
and Young People responding to
the issues in the Children at Work
report, go to: www.kids.nsw.gov.
au/uploads/documents/
childwork_recs.pdf
2/9/09 8:00:29 PM
 out emergency treatment on a child or young guardian who acts as a guarantor to ensure that guarantor
a person who gives
person without parental consent the contractual obligations are fullled.
a formal promise
As legislation does not deal with a young The Supreme Court of NSW can confer the that someone elses
persons right to refuse medical treatment, this capacity to enter a legal contract upon a minor contract will be
fullled, often backed
issue is governed by the common law. If a child (s 26).
by some form of asset
under 16 refuses medical treatment, parents have that will stand as
Torts collateral to secure the

a right to insist that it be performed, despite the
Gillick test of competency (Re W (A Minor) [1993]
Fam 64). A court can override a young persons
refusal of medical treatment if the refusal is not in
his or her best interests.
$ISCRIMINATION
Children and young people are protected from dis-
crimination on the basis of age by Part 4G of the
Anti-Discrimination Act 1977 (NSW). This Act also
outlaws discrimination on the basis of sex, race,
sexuality and other characteristics, and applies
to discrimination in work, education and the pro-
vision of goods and services. There are a number
of exceptions, however, relating to superannuation,
insurance, credit applications, vehicle safety, and
sport, and the Act does not affect the operation of
laws relating to the legal capacity of children or of
laws specically designed to protect them.
Contracts
Under the Minors (Property and Contracts) Act 1970
(NSW), people under 18 are generally not bound
by a contract, lease or other transaction (ss 8, 17).
The courts will not enforce such contracts, even if
they do exist.
The exception to this, contained in s 19 of the
Act, is a situation where a young person enters an
agreement that is for his or her own benet and
is a necessity, such as accommodation or food.
For example, a young person who leaves home
at 16 to take an apprenticeship and has to sign a
rental lease for accommodation, or needs to buy a
car on nance for transport, will be bound by the
contract.
Some minors may be able to enter into certain
contractual arrangements if they have a parent or
L aw in p rac tic e
promise
There is no age restriction on taking legal action
torts
for a civil wrong. If a child is injured as a result civil wrongs involving
of someone elses negligence, is a victim of breach of a duty; torts
include negligence,
defamation, or suffers loss or damage as a result defamation, nuisance,
of some other wrongful behaviour, he or she is and trespass to the
person, goods or land
entitled to sue the wrongdoer.
A child is also personally responsible for his or
her own wrongful acts. The general rule is that
parents are not liable for torts
committed by their children.
2 %6 ) %7   
,EAVINGHOME 1 How does a child become an
Young people do not have the Australian citizen?
right to leave their parents home 2 List a childs or young persons
before the age of 18. However, legal rights and responsibilities
the law would not normally force in each of the following areas,
young people over the age of along with the statutory or
16 to stay at home against their common law source of each of
wishes. The following factors the rights and obligations:
would be considered: maturity, a education
accommodation, safe living b work
environment, and the parents c medical treatment
attitude. d entering a contract
Refer to Chapter 9 on the Student CD
for information relating to:
s family matters, including inheritance
and parentage
s care and control
s Children and Young Persons
(Care and Protection) Act
1998 (NSW)

Cha pter 9 Children a nd young peopl e 199

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 sanctions
penalties imposed on
those who break the
law, usually in the form
of a ne or punishment
juvenile
a child or young
person, generally
under 18 years of age,
although this may vary
depending on the
context
summary offences
criminal offences that
can be dealt with by a
single judge without a
jury and do not require
a preliminary hearing
indictable offences
serious criminal
offences that require
an indictment (a formal,
written charge) and a
preliminary hearing;
they are typically tried
before a judge and jury
and are subject to a
greater penalty
warnings
formal notices given
to a young offender,
usually for a rst minor
offence
cautions
formal notices given
to young offenders
where the offence is
more serious than one
appropriately dealt
with by a warning
youth justice
conferences
a measure to divert
young offenders from
the court system
through a conference
that addresses the
offenders behaviour in
a more holistic manner
200 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 200
#RIMINALLAWINRELATION
TOCHILDRENANDYOUNG
PEOPLE
Figure 9.4 Between the ages of 10 and 14 a
child may be found guilty of a criminal offence.
Section 5 of the Children (Criminal Proceedings)
Act 1987 (NSW) clearly states the principle of doli
incapax: It shall be conclusively presumed that no
child who is under the age of 10 years can be guilty
of an offence. This is the same in all jurisdictions
in Australia.
Between the ages of 10 and 14 a child may
be found guilty of a criminal offence, but the
prosecution must rebut the notion of doli incapax
and show that the child, at the time of the alleged
offence, could distinguish between right and
wrong. From the ages of 14 to 17, children and
young people are held fully responsible for their
actions. However, they are subject to a different
range of criminal sanctions than adults who have
committed the same offences. Detention is a last
resort for a juvenile offender in all states and
territories.
The Young Offenders Act 1997
.37
The Young Offenders Act 1997 (NSW) has the aim
of providing diversionary measures for young
offenders as alternatives to court appearances.
The Act only applies to summary offences and to
those indictable offences that can be dealt with
summarily. The principles of the Act are that:
s the least restrictive sanction should be applied
where possible
s children should be informed of their right to
seek legal advice
s criminal proceedings are not to be started if
there is an appropriate alternative for dealing
with a matter.
Under the Act, children and young offenders
who have committed an offence covered in the
Act may proceed through a three-tiered system
of diversionary processes, comprising warnings,
cautions and youth justice conferences.
A warning can be given by a police ofcer,
either at the place where the child was found
offending or anywhere else. The child must be told
of the nature, purpose and effect of the warning.
No conditions can be attached to the warning,
and no additional sanctions imposed. The police
ofcer must ensure that the child understands the
warning, and must notify the parents.
A caution is given by a police ofcer or a
specialist youth ofcer when the child admits
the offence. It is used where the offence is more
serious. The ofcer must determine whether a
matter is appropriately dealt with by caution by
considering the seriousness of the offence, the
degree of violence involved and harm caused to
the victim, and the number and nature of any
offences the child has committed. He or she must
ensure that the child understands the nature,
purpose and effect of the caution, and that he or
she is entitled to obtain legal advice and to choose
to have a court deal with the matter. A court may
also give a caution. Before a caution is given, the
offender must be given a written notice of it.
A youth justice conference may be used for
offences of the same gravity as those for which a
2/9/09 8:00:32 PM
 caution is imposed, or one that is more serious, such
as those involving harm to a victim. Conferences
are designed to encourage the offender to take
responsibility for his or her own actions, to provide
support services, to promote the rights of victims,
and to involve families and others in the justice

L aw in p rac tic e
process.
legal links

Go to www.policensw.com/info/
gen/y2.html for more information
on warnings, cautions and youth
justice conferences.

Refer to Chapter 9 on the Student CD

for information relating to:
s Crimes Legislation Amendment (Police
and Public Safety) Act 1998 (NSW)
s Children (Protection and
Parental Responsibility)
Act 1997 (NSW)
Figure 9.5 The Young Offenders Act aims to
divert young offenders from the court system.

-ECHANISMSFORPROTECTINGTHE
RIGHTSOFCHILDRENANDYOUNGPEOPLE
,EGALRESPONSES
4HEROLEOFTHE5NITED.ATIONS obligations.
The Convention on the Rights of the Child (CROC)
has been important in putting the rights of children
on the global agenda. Ratication usually means a
government passing domestic laws to give effect
to some or all of the principles of an international
treaty. Once a nation-state has signed and ratied
a treaty, the United Nations committee structure
monitors and reports on the extent to which
that nation is complying with its international
The Committee on the Rights of the Child meets
to examine reports from ratifying countries. The
18 committee members are independent experts
in the eld of human rights, who are elected by the
governments of ratifying countries. As mentioned
above, the committee has no coercive power.
Australia has a responsibility under the convention

Cha pter 9 Children a nd young peopl e 201

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 Figure 9.6 Child slavery and the use of children and young people as soldiers are continuing human rights challenges,
despite international instruments such as CROC.
working with children
check
a check by the NSW
Commission for Children
and Young People on
the appropriateness
of a person in NSW to
work in child-related
employment
prohibited person
a person prohibited
from working in child-
related employment
because of a conviction
of a serious sex offence,
murder of a child, or
an offence involving
violence toward a child
2%6)%7
1 Outline the main role of the
NSW Commission for Children
and Young People.
2 Describe what is meant by the
working with children check.
202 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 202
to report to the committee on the steps that it has
taken to give full effect to the contained rights.
4HEROLEOFPARLIAMENTANDTHE People is a statutory body set up in 1998 to promote
courts
Federal and state parliaments have passed
numerous Acts that protect children and young
people by restricting their activities and by placing
responsibilities on adults to ensure the welfare
of children and young people. Certain rights of
children have also been enshrined in legislation,
which in turn has created legal institutions and
processes that promote and protect these rights.
The courts have also played a role, through cases
that have afrmed the current
law or changed the law through
reinterpretation.
Some of the legal institutions
in NSW that have been set up
to protect children and young
people are as follows.
TH E NSW C O M M I SSI O N FO R C H ILD R E N
A ND YO U NG PEO P L E
The NSW Commission for Children and Young
respect for and understanding of the interests and
needs of children and young people.
The commission implements and monitors
the working with children check, the man-
datory employment screening by employers of
job applicants in child-related employment, as
outlined in the Children and Young Persons (Care
and Protection) Act 1998 (NSW). The Commission
for Children and Young People Act 1998 (NSW)
contains offences with penalties for employers
who employ a person in child-related employment
without sufcient scrutiny of the person, or who
knowingly employ a prohibited person in child-
related employment. These requirements on
employers reduce the likelihood of prohibited
persons having contact with children in the course
of their work.
2/9/09 8:00:42 PM
 CHILD REN S C OURT S
Across NSW, there are 13 childrens magistrates
sitting in seven specialist Childrens Courts. Five
of these courts are in metropolitan areas. There
are also ve childrens registrars appointed
under the Childrens Court Act 1987 (NSW) to
assist in the administration of matters before
the court. The court has a dual role: determining
matters of juvenile offenders that appear before
it, and also determining care and protection
matters concerning children referred to it by the
Department of Community Services (DOCS).
Under the Children and Young Persons (Care
and Protection) Act 1998 (NSW) ss 71 and 72, the
court may make care orders if it is satised on the
balance of probabilities that the child or young
person is in need of care or protection.
THE D EPA RT MEN T OF C OMMUN IT Y
SERVICES N S W ( DOC S )
The Department of Community Services (DOCS) is
responsible for the care and protection of children
in NSW. It carries out this role in cooperation with
non-government organisations and government
agencies. Its activities include the provision of
accommodation and support for children and
young people who need to live away from their
families, the regulation of child care through
licensing, and the funding and regulation of
adoption services.
LEGAL AID
Legal Aid NSW provides a range of services to
children and young people in NSW. It represents
children and young people in a variety of matters,
from welfare proceedings in the Childrens Court
to family law matters in the Family Court. Its
legal representatives will also appear for children
and young people facing criminal charges in the
Childrens Court.
THE NSW OMBUDS MAN
The main role of the NSW Ombudsman is to act
as an independent review body that deals with
9780521734699part_03_3pp.indd 203
individuals complaints about the administration of
government agencies or the agencies compliance
with specic legislation. Traditionally, the ofce
is seen as representing the peoples interests,
and its credibility comes from its reputation for
impartiality, independence from government and
L aw in p rac tic e
condentiality.
There have been calls for a specialist childrens
ombudsman that can take a more targeted
approach to issues facing children and young people
in their dealings with government agencies.
Another important role performed by the
ombudsmans ofce is investigating and reporting
on reviewable deaths of children in NSW. A
death is reviewable if the child or a sibling has
been reported to DOCS at any time and for any
matter in the three years prior to the childs death.
With the objective of preventing harm, abuse
and neglect of children, the ombudsmans ofce
assesses whether the child protection system
could have prevented some of these deaths. In
2007, 601 children died in NSW, and 156 of those
deaths (25.9%) were reviewable.
A DM I NI STRATI V E DEC I SI O NS TRI B U NA L
As discussed in Chapter 7, the Administrative Deci-
sions Tribunal reviews administrative decisions of
NSW government bodies. Its Community Services
Division deals with applications for review of
decisions made by DOCS. The division also hears
applications for declarations that a person seeking
to apply for a job working with children is not
a prohibited person under the Commission for
Children and Young People Act 1998 (NSW).
C O A G NATI O NA L FRA M E WO RK
In 2009 the Council of Australian Governments
(COAG), an intergovernmental forum made up of
the federal and all state and territory governments,
published its National Framework for Protecting
Australias Children 20092020. This initiative
has the aim of ghting child abuse and neglect
by preventing it in the rst place that is, by
protecting the safety and well-being of children.
Cha pter 9 Children a nd young peopl e 203
2/9/09 8:00:43 PM
 .ON
LEGALRESPONSES
As children and young people cannot vote, it is
difcult at times for their voices to be heard.
There are some very effective non-legal mecha-
nisms that keep the issues of children and young
people on the political agenda. They may be the
rst point of call, and can either provide valuable
information about a persons rights or refer the
person on to a relevant source.

4RADEUNIONS
Trade unions are organisations of workers who
act together to maintain their rights to good work-
ing conditions. The Australian Council of Trade
Unions (ACTU) provides information about pay and
conditions, health and safety issues, apprentice-
ships and training, and negotiating employment
contracts, for young people entering the workforce
for the rst time.

+IDS(ELPLINE
The Kids Helpline (www.kidshelp.com.au or 1800
551 800) is just one of many organisations from
which children and young people in crisis can seek
advice. It offers 24-hour free telephone and online
counselling and referral about issues including
family relationships, child abuse, mental health,
bullying, drugs and alcohol, eating and weight
issues, as well as specic issues faced by people
Figure 9.7 The ACTU provides information for children and young from Indigenous, non-English-speaking or rural
people entering the workforce. backgrounds.

3TOP#HILD!BUSE
Stop Child Abuse is a service provided by the
le g al li nk s

Australian Childhood Foundation to educate

The Worksite for Schools Website
the community about child abuse. It provides a
at www.worksite.actu.asn.au
directory of services in every state to provide help
provides fact sheets, case studies,
and support for people who have experienced
job proles and other information
child abuse, as well as parents and others who
about work, specically directed to
are concerned about their own situation or want
young people.
to report child abuse. Its web address is www.
stopchildabuse.com.au/

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9780521734699part_03_3pp.indd 204 2/9/09 8:00:45 PM

 2%6)%7
1 Describe the role of the NSW Ombudsman
in protecting the rights of children and
young people.
2 Outline the role the Administrative
Decisions Tribunal can play in protecting
the rights of children.
3 What are the strengths and weaknesses of
non-legal mechanisms with respect to the
rights of children?
2ESPONSIVENESSOFT HELAW
As they grow through adolescence and into adult-
hood, young people are more likely to take risks. At
the same time there are adults in society who abuse
and exploit children and young people. This means
that children and young people will sometimes be
at risk of harm, or at risk of harming others.
It is in this light that the legislation and mecha-
nisms in place to ensure justice for children and
young people will be evaluated.
#HILDRENANDYOUNG
PEOPLEANDTHECRIMINAL
JUSTICESYSTEM
If children and young people come into contact
with the criminal justice system, it is usually
through interaction with a police ofcer when
being arrested or questioned about some matter.
This experience can inuence their attitude to
authority and to the wider community in general.
9780521734699part_03_3pp.indd 205
2
%3%!2 #(   
Use the following websites to research the roles of the
institutions and organisations in protecting the interests of
children and young people. Prepare a fact sheet on two of
your choosing.
s Committee on the Rights of the Child:
L aw in p rac tic e
www.unhchr.ch/tbs/doc.nsf
s The NSW Commission for Children and Young People:
www.kids.nsw.gov.au/
s The NSW Childrens Court:
www.lawlink.nsw.gov.au/childrenscourt
s The Department of Community Services (DOCS):
www.community.nsw.gov.au/DOCS/HOMEPAGE/
pc=pc=HOME.HTML
s Legal Aid NSW: www.legalaid.nsw.gov.au/asp/index.asp
s The NSW Ombudsman: www.ombo.nsw.gov.au/
s The Australian Council of Trade Unions (ACTU):
www.actu.asn.au/
Seen and heard: Young people and the legal pro-
cess, a joint inquiry of the Human Rights and Equal
Opportunity Commission and the Australian Law
Reform Commission conducted in 1997, examined
the relationship of children and young people and
the legal process. Seventy-eight per cent of the 843
children and young people surveyed said that the
police rarely treated young people with sufcient
respect.
It could be argued that children and young
people on the whole do not have a good relationship
with the police.
Young people are frequently targeted for police
intervention for lacking respect, for being
rowdy, for being part of the rave culture, or
simply for being young and out in public.
Young People and Public Space conference workshop
presented by the Youth Justice Coalition and Youth Action and
Policy Association, 2002
Cha pter 9 Children a nd young peopl e 205
2/9/09 8:00:46 PM
 The Seen and heard inquiry also examined
how policing could become more consistent with
CROC provisions and recommended that national
standards should be implemented via legislation
or policy in certain areas of concern. Some of the
main areas are outlined below.
Refer to Chapter 9 on the Student CD
for information relating to young people
and public space.
Figure 9.8 Detention and other harsh sentencing options are
reported as being ineffective deterrants to reoffending.
206 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 206
!RRESTANDPOLICEINTERVIEW
In some jurisdictions it is alleged that police rely
heavily on arrest to gather evidence or to further
the interrogation of suspects. In other words,
arrest can be used as a method of investigation.
This is especially so for Indigenous youth.
Article 37(b) of CROC states that arrest should
be a last resort, not a routine practice, as it can
be a very negative experience for children and
young people. The Seen and heard report also
recommended that for children at risk, welfare
and health services may be the more appropriate
agencies to deal with the situation. This is not to
deny that arrest is appropriate when it is necessary
for a police ofcer to protect the community.
All suspects have the right to contact a lawyer
and to have him or her present during questioning,
as long as this does not interfere with the police
investigation. Persons under 18 can contact the
Legal Aid Youth Hotline if they have been arrested
and need legal advice. However, people do not
always exercise this opportunity because they are
not aware of their rights, sometimes exacerbated
by language difculties, cultural differences or
age. The Australian Law Reform Commission
and others have recommended greater efforts by
police to inform accused persons of their rights in
terms that they can understand and act on.
3ENTENCINGOFYOUNGOFFENDERS
Another area of concern at the time of the Seen
and heard report was the sentencing of juveniles.
Children and young people, more than any other
offenders, have the best chance of rehabilitation
and reintegration into society. As such, the sentence
that offenders receive should take into account the
age of the offender and the circumstances under
which the offence was committed. The report
noted that research has indicated that detention
and other harsh sentencing options are generally
ineffective as deterrents to reoffending.
Most jurisdictions do this. In New South Wales,
the courts follow guidelines under the Children
2/9/09 8:00:50 PM
 (Criminal Proceedings) Act 1987 (NSW) which
give special consideration to juvenile offenders. Refer to Chapter 9 on the Student CD
However, the report suggested that there was for information relating to:
room for improvement in this area and that [m] s Care and protection of children and
ore attention is needed to social factors such as young people
homelessness, family circumstances and so on s Children and young people
in the workplace

L aw in p rac tic e
in determining sentences for children and that
[s]entences should take into account the special
health and other requirements of children and
young people.
)NTERNATIONALISSUES
9OUTHCONFERENCING Children around the world are exploited and
While youth conferencing generally deals with abused where the laws of their countries fail to
matters that would be dealt with summarily, it can, offer protection to them. There are approximately
under the Young Offenders Act 1997 (NSW), be 250 million child labourers worldwide. In 2007
used for some indictable offences such as robbery it was estimated there were as many as 300 000
and aggravated break, enter and steal. One of the children and young people involved in armed
criticisms of well-intentioned laws like the Young conict, with up to 100 000 of these believed to
Offenders Act is that they are not being used for a be in Africa.
sufciently wide range of offences, and therefore In countries ravaged by war and famine, where
that some young offenders are missing out on the family structures have been destroyed, children
benets that conferencing offers. lack the protection normally afforded to them with-
The Shopfront Youth Legal Centre, in its sub- in the family. Very recently in Australia, children
mission in response to the NSW Law Reform sat in immigration detention centres, having
Commission paper on sentencing young offenders broken no laws, as a result of the previous federal
in 2003, argued that: governments punitive laws relating to asylum
seekers. In other countries minors are still being
Youth justice conferencing is suitable for a wide
executed for the crimes they have committed.
range of offences, even very serious ones. It is
not a soft option. Indeed, it could be said that
conferencing works best in the case of relatively
serious offences because the young offender is
obliged to consider the consequences of his or
her actions, in particular the harm caused to the
victim. In most cases, conferencing is a more
effective mechanism than court for achieving this.

A further criticism of the application of the

provisions of the Young Offenders Act is that police
discretion results in some matters that should be
referred to a conference not being so referred. One
way of ensuring that more matters are referred to Figure 9.9 Children gathering potatoes on a
conferencing would be to reduce police discretion large farm in Maine, USA. Schools do not open
by making some matters mandatory for referral. until the potatoes are harvested.

Cha pter 9 Children a nd young peopl e 207

9780521734699part_03_3pp.indd 207 2/9/09 8:00:51 PM

 Figure 9.10 Many products sold throughout the world are still made using forced child labour.

208 C a m b r i d g e L e g al S tu d ie s Pre limin ary

9780521734699part_03_3pp.indd 208 2/9/09 8:00:54 PM

 !USTRALIASOBLIGATIONSUNDER
THEConvention on the Rights
of the Child
As discussed earlier in this chapter, the Committee
on the Rights of the Child examines the reports of
parties to CROC and their compliance with their
obligations under it. The committee can report
and publish adverse ndings on countries that
have failed to enforce the rights of its children.
Sovereign nation-states can choose to ignore or
comply with such ndings.
Australia has been a strong supporter of CROC
from the very outset, and has an extensive body of
federal and state law in place designed to protect
and promote the welfare of children and young
people. At the same time, there are still areas
where Australia can do better.
The Joint Standing Committee on Treaties was
established to inquire into and report on matters
arising from treaties, proposed treaty actions,
any questions relating to a treaty referred to it by
either house of parliament or a minister, and other
matters referred to it by the Minister for Foreign
Affairs. For example, in 1998 its Report 17 looked
at domestic ramications of ratication; federal,
state and territory progress in complying with
CROC; the adequacy of programs and services
for childrens health, education and welfare; the
adequacy of legislation in addressing the needs of
children; and further action required. Nonetheless,
some have argued that the development of a pro-
Co nc l u s io n
The rights of children have come a long way.
Australian legislation has established processes
and institutions to recognise and protect the
important role that children and young people play
in our society. It is accepted that these individuals
have special needs because of their age, and
that their physical, intellectual, emotional and
social development depends on legal and social
mechanisms to allow them to ourish.
9780521734699part_03_3pp.indd 209
cess for scrutiny of draft legislation for compliance corporal punishment
the physical
with treaty principles should be a high priority.
punishment of people,
Other deciencies in Australian law regarding especially of children,
CROC include: by hitting them
s The defence of lawful correction is still available public space
areas set aside in
in all states and territories to parents who use
which members
corporal punishment on their children, except
L aw in p rac tic e
of the community
in NSW, where it has been limited by legislation can associate and
assemble
prohibiting force to the head or neck, and force
causing harm likely to last for
more than a short period. 2
%3%! 2# (   
s There are laws under which Research an international
police can deny children and human rights issue regarding
young people use of public children and young people.
space by asking them to leave Prepare a fact sheet outlining
or removing them: for example the issue. Issues could include
Part 3, Division 2 of the Child- child slavery, the use of
ren (Protection and Parental children as soldiers in conict
Responsibility) Act 1997 (NSW). or forced child labour. Use
s Children and young people are the website http://www.
paid less for doing the same work amnesty.org/library/Index/
as adults on junior rates of pay. ENGACT500152004 and that
s It is argued that the criminal age websites search function to
of responsibility of 10 is too low. get started.
Refer to Chapter 9 on the Student CD
for information relating to
child executions.
There is still cause for great concern about the
exploitation and abuse of children internationally.
The force of international law relies on the domestic
measures taken to implement the rights contained
in treaties such as CROC, and the pressure brought
to bear by the parties, not only by the treaty-based
human rights committees.
Cha pter 9 Children a nd young peopl e 209
2/9/09 8:00:56 PM

s Historically, children had no legal rights.
This began to change gradually in the
19th century, with the introduction of free
compulsory education and laws limiting
childrens labour.
s The Convention on the Rights of the Child
was an important development in promoting
the rights of children and young people. It is
the most signed of all international treaties.
s The law generally denes a child as a person
under the age of 16, and a young person as
one aged 16 to 18.
C hap t e r s u m m a ry
s The status and rights of children under the
law are contained mainly in legislation in the
areas of work, education, discrimination,
medical treatment, and contracts.
s All states in Australia have enacted care and
protection legislation over the last 30 years.
s Children and young people are given special
consideration in respect to criminal law, which
takes into account the age of the offender at
the time of the offence.
M u l t i p l e -c ho i ce q ues ti ons
 Which of the following is a feature of doli
incapax in NSW?
A Children and young people are responsible
for their crimes from the age of 14.
B There are certain crimes for which children
and young people are not responsible.
C Children and young people under the age
of 10 are not responsible for their crimes.
D People with mental disabilities are not
responsible for their crimes.
 Which of the following is the best denition
for young person?
A a person under the age of 16
B a person between the ages of 12 and 16
C a person aged between 16 and 18
D a person aged between 18 and 25
 Which of the following is not a reason for
the law to treat children and young people
differently?
A to prevent them from being exploited
B to protect them from the consequences of
making uninformed decisions
C to give them the best chance of nding
appropriate employment
210 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 210
s The Young Offenders Act 1997 (NSW)
provides diversionary measures for young
offenders who have committed summary
offences and some indictable offences.
s The United Nations Committee on the Rights
of the Child oversees the implementation of
the Convention on the Rights of the Child.
s The NSW Commission for Children and
Young People is an independent body that
conducts research related to children and
young people. It also conducts working with
children checks.
s The Childrens Court has a dual role with
respect to children and young people. It hears
criminal matters relating to young offenders
as well as care applications for children and
young people considered to be at risk of harm.
s The Department of Community Services
(DOCS) investigates reports of children
considered at risk of harm.
s Non-legal mechanisms for protecting the
rights of children and young people include
counselling services and other community
organisations.
D to protect others from being disadvantaged
by dealing with a person who is a minor
 Which of the following statements best
describes Australias obligations under the
Convention on the Rights of the Child (CROC)?
A Laws must be passed within Australia to
implement all of the provisions of CROC.
B Australia can pass whatever laws it chooses
to, as it is a sovereign nation.
C Australia can pass whatever laws it chooses
to, as it is a sovereign nation, but it is
obliged to pass laws to implement the
provisions contained in CROC.
D Australia will pass laws recommended by
the United Nations General Assembly.
 Which of the following bodies monitors the
mandatory screening of applicants for jobs in
child care?
A Australian Council of Trade Unions
B Department of Community Services NSW
C NSW Commission for Children and Young
People
D Committee on the Rights of the Child
2/9/09 8:00:56 PM
 L aw in p rac tic e
C hap t e r s u m m a ry ta s k s

 Comment on the extent to which the United

 Outline what changed in the treatment of
children and young people by the end of the
19th century. Explain why this occurred.
 In three paragraphs, dene child abuse and
explain some of the issues in relation to it.
 Provide examples of contexts where the
criminal justice system treats children and
young people differently from adults.
 Explain how the Young Offenders Act 1997
(NSW) is unique.
Top i c revi ew
Nations can regulate the implementation of
the Convention on the Rights of the Child
throughout Australia and the rest of the
world.
 Outline the roles of the NSW Commission for
Children and Young People.
 What challenges might confront DOCS in
performing its role effectively?
 Identify at least two non-legal mechanisms
that promote the rights of children and young
people.

EX T EN DED R ES PON S E
Critically evaluate how the legal system responds
to the issue of juvenile justice. Refer to strategies
for crime prevention, issues surrounding arrest
and detention, diversionary schemes and court
proceedings for young people.

Marking criteria for the extended response

question can be found at www.cambridge.
edu.au/education. Refer to these criteria
when planning and writing your response.

Cha pter 9 Children a nd young peopl e 211

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 A r e a 1: G r o u p s o r i n d i v i d u a l s s u f fe r i n g d i s a d va nt a g e

CHAPTER 10
Women
c hap ter ob j e cti ve s

In this chapter, students will: s nd and use legal information from a range of
s explore legal concepts and terminology with sources
respect to women s develop the ability effectively to communicate legal
s investigate the main features of the Australian and information and issues
international legal systems with respect to women
s analyse the effectiveness of the legal system to
deliver justice and adequately address issues in
society relating to women
s investigate the place of the law in encouraging
cooperation and resolving conict with regard to
women and the law
s investigate the role of the law in addressing and
responding to change with respect to women
k e y t er m s/ v oc ab u l a r y

direct discrimination
entered into force
feminism
gender segregation
glass ceiling
indirect discrimination
nation-state
opened for signature
optional protocol
poverty line
reservation
sexual harassment

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 L aw in p rac tic e
rel ev ant l aw

IM PORTA N T L EGIS L AT ION

Family Law Act 1975 (Cth)
Anti-Discrimination Act 1977 (NSW)
Sex Discrimination Act 1984 (Cth)
Human Rights and Equal Opportunity
Commission Act 1986 (Cth)
Equal Opportunity for Women in the Workplace
Act 1999 (Cth)
Womens Legal Status Act 1918 (NSW)

SIGNIFIC AN T C AS ES
OCallaghan v Loder [1984] EOC 92-023

Cha pter 10 Women 213

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 Int roduc t ion
For centuries, women have campaigned for change
in order to have their voices heard. Throughout
history men have held most of the political power
and owned most of the wealth in most societies.
Intended or not, policies and laws have favoured
7O MENA NDT HELAW
At both federal and state levels, there is a sub-
stantial body of legislation and policy specically
relating to the rights of women. In this unit of
study, the changing status of women in Australia
Figure 10.1 Historically, womens role was that of homemaker.
214 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 214
men in all facets of society. Gender should not be a
factor in determining the worth of an individuals
work, but women have been discriminated against
in many areas and denied equality of opportunity,
especially in the workplace.
today will be examined, as well as the legal and
non-legal mechanisms for achieving equality
(primarily in the workplace) and an evaluation of
the effectiveness of these responses.
Other issues relevant to the rights of women in
Australia today will be covered in the HSC course
in the unit on family law.
(ISTORICALROLESAND
attitudes
For many years, the attitude that women are
different from men and inferior in signicant
ways has been reected in the laws and policies
of Western societies. These attitudes meant that
women had only a short period of paid employment
if any until they married and took up the role
they were destined to full that of homemaker.
Men almost exclusively held all positions of power
and owned practically all property. It followed
that the position of women in society was one
of subservience and powerlessness. Womens
working lives involved domestic duties such as
rearing children, preparing food, sewing and
various other tasks in the home.
This position was strongly inuenced by bio-
logy. As most women were always bearing children
(no reliable and safe contraception was available),
they were left at home, dependent on their male
partners.
Views of womens essential nature extended
to various aspects of social life, and sometimes
2/9/09 8:01:01 PM
 attempts were made to explain or justify these
views. Much was written and said by men about
women, especially in Victorian England, from
reasons as to why they belong in the home bearing
children to analysis of their sexual desires.
There have been signature times throughout

L aw in p rac tic e
the last 120 years where womens restricted roles
were more prominently challenged. The two World
Wars saw women, through necessity, take on non-
traditional roles due to the shortage of men on the
home front.
This was especially so during the Second
World War. Women ran farms, worked in factor-
ies, and generally maintained productivity at
home. Although this work was at times hard and
challenging, it was also liberating for many women,
because for the rst time they understood their
full potential outside the traditional roles assigned
to them in society.
Women also began to question why many
areas of employment were denied to them, and
more importantly, why they did not receive equal
pay. In 1943, an Australian Womens Conference
for Victory in War and Victory in Peace was held
in Sydney. The participants drew up a program of
reforms for the government to incorporate into
postwar Australia. This document, the Australian Figure 10.2 During the Second World War
Womens Charter, contained 23 objectives such as women took on roles in factories and on farms feminism
to help with the war effort. the advocacy of rights
the establishment of a national network of child
for women on the
care centres, and equal pay. It is considered a basis of the equality
landmark manifesto of Australian feminism. of men and women;
there are many
For many women, though, the end of the war and the Sex Discrimination Act 1984 (Cth) were
varieties of feminist
meant room had to be made for the returning products of this era. ideas in political and
soldiers, and they resumed their domestic roles as In 1975 the United Nations social thought

wives, mothers and homemakers. proclaimed that year to be Inter-

The 1960s and 1970s was the next signicant
period of time when women questioned their
secondary status to men and why they did not
enjoy the same rights as men. The feminist
movement of this time challenged, for example,
discrimination in the workplace and liquor
licensing laws in some states that said women
couldnt be served in the public bar. Important
pieces of legislation such as the Family Law Act
1975 (Cth), the Anti-Discrimination Act 1977 (NSW)
national Womens Year to promote
issues relating to women around
the world.
Today in Australia there is a
signicant body of law that protects
the rights of women and promotes
equality of opportunity. Having
said this, the status of women in
society today is still affected by
particular issues and concerns.
2 %6) %7    
1 Describe the social attitudes
about women prior to the
20th century and give some
reasons why these attitudes
permeated society.
2 Prepare a detailed timeline
to outline the historical
development of the roles of
women in society.

Cha pter 10 Women 215

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 0ROGRESSANDCHALLENGES enter professions. Many women who had success-
FORWOMEN fully completed their degrees were able to do so,
and some were elected to parliament in the 1920s.
%DUCATIONTRAININGAND
WORKFORCEPARTICIPATION
A persons status in society is greatly inuenced
by opportunities to acquire skilled employment.
Historically, women who wanted to enter pro-
fessions had many barriers to overcome some
of which persist today. The formal education that
most young girls received was usually short in
duration and assumed a future as a homemaker.
In the 19th century, there seemed no pressing
reason for young women to complete their
secondary education, let alone go to university.
Those women who were able to attend university
to study courses such as law and medicine did so
in the knowledge that even if they passed their
exams, they were not given degrees and effectively
were barred from practising in their chosen eld.
This did not deter some women, whose thirst
for knowledge and a chance to use their talents
spurred them on anyway.
Passage of the Womens Legal Status Act 1918
(NSW) opened the way to recognition of the right to
Figure 10.3 Women have been and continue to be under-represented
in trade apprenticeships in NSW.
216 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 216
The proportion of young women aged 1519 in
NSW enrolled in secondary school increased from
46.7% in 1989 to 52.2% in 2004. The retention rate
in Years 11 and 12 nationally has also increased
steadily over the last 20 years, from 37% to
81% in 2005. Women also constituted over 50%
of people enrolled in higher education courses
and represented 49% of students in vocational
education. The number of women in NSW with
post-school qualications has also risen, from
38% in 1990 to 52% in 2005.
Women, however, have been under-represented
in trade apprenticeships in NSW. Of all persons
undertaking apprenticeships in 2006, only 13.5%
were women. This seems consistent with the level
of occupational segregation seen in NSW and
throughout Australia today, especially in the trades.
Occupational segregation will be examined later.
With respect to labour force participation,
women have made signicant gains. Women aged
over 15 made up 45% of the NSW labour force in
2005, and the median age of women in the labour
force was 38 years.
However, in 2005, of all the women in NSW who
were working, 42.9% were employed part-time and
they represented 70.8% of all part-time workers. In
2006, nationally, 58% of all women aged 1564
were in the workforce, with 45% of these working
part-time, while only 18% of men worked part-
time. Across Australia, women still constitute the
majority of part-time and casual workers, and
workers in these categories often lack job security
and other benets available to those in full-time
employment, such as parental leave and holiday
pay. These and other issues such as pay equity and
women in leadership roles will be discussed later.
Large proportions of all new apprenticeships
and traineeships for the 12 months to June 2006
were in the Intermediate Clerical, Sales and Service
Workers (31.7%) and Tradespersons and Related
Workers (28.4%) occupational groups (see Table
10.1). Most (85.9%) of the new apprentices and
2/9/09 8:01:08 PM
 trainees in the Tradespersons and Related Workers apprentices and trainees in the Intermediate
occupation group were men, whereas 70% of new Clerical, Sales and Service Workers were women.

Table 10.1 Apprentice and trainee commencements by occupation group and gender, 2 %6) % 7    

June 2006
1 Examine Table 10.1
/CCUPATIONGROUP -EN 7OMEN 4OTAL above and outline the

L aw in p rac tic e
Managers and administrators 1760 700 2460 occupation groups in
Professionals 1310 1290 2600 which women were well

Associate professionals 11 180 11 260 22 450 represented and under-

represented in 2006.
Tradespersons and related workers 65 290 10 680 75 970
2 Give some possible
Advanced clerical and service workers 1770 4500 6270
reasons for womens
Intermediate clerical, sales and service workers 25 450 59 330 84 780
under-representation
Intermediate production and transport workers 25 490 4340 29 830
in some areas of
Elementary clerical, sales and service workers 6860 10 620 17 480 apprenticeships and
Labourers and related workers 17 930 7480 25 410 trainee commencements.
Total 157 050 110 200 267 250
NCVER, National Apprentice and Trainee collection, September 2006 estimates, unpublished data

3OCIALSECURITY meets certain income tests. Separated parents can

In the early 20th century, the provision of welfare receive nancial assistance with the cost of child
payments to people who were unemployed or care through the Child Support Agency.
other wise experiencing difculty earning an Studies have shown that over the long term,
income was not seen as a responsibility of the women fare far worse nancially than men after
federal government. This changed with the Great a divorce. In addition, around 90% of lone-parent
Depression in the early 1930s, when it became families are headed by women. The responsibilities
apparent that at times people may be unemployed of child care present signicant barriers to entering
due to circumstances beyond their control. the workforce. While nancial support from the
Unemployment benets today are available government is therefore vital, most people who
to women as well as men. There are also family are dependent on welfare as their main source of
allowance payments to assist with the costs of income nevertheless live below the poverty line. poverty line
the minimum level
raising children, and low-income families may
of income needed to
also receive rental assistance to help with private meet basic necessities
rental accommodation. and below which a
household is dened
All people who have carers responsibilities, Refer to Chapter 10 on the Student CD
as poor; an adequate
for example for a disabled family member, can for information relating to: standard of living and
receive Carer Payment benets because their s marriage thus the poverty line
will be different for
responsibilities affect their ability to earn an s the right to own property
different countries
income. The majority of carers are women. Most s the ability to sue and enter
recipients of Parenting Payments are also women. contracts
A person, regardless of marital status, can qualify s the right to vote
for Parenting Payments if he or she has primary s jury service.
responsibility for one or more young children and

Cha pter 10 Women 217

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Figure 10.4 Migrant factory workers
7OMENFROMNON
%NGLISH
English-speaking backgrounds, it is even higher
SPEAKINGBACKGROUNDS
Migrant women throughout Australia experience
the same barriers as other women, but the prob-
lems are compounded by a language barrier,
especially in the workplace. There is a high con-
centration of migrant women in in blue-collar jobs
which are not known for exible working hours,
and generally have less condence in negotiating
job-sharing or part-time options with their
218 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 218
employers. Moreover, they are often less able to
afford to work only part-time.
Migrant women have been employed in fac-
tories in substandard conditions throughout
Australia. Because these women have little English,
they have not always been aware of their rights.
Some of these workplaces are characterised by
unsafe conditions, onerous shift work, bullying,
inadequate toilet and rest room facilities, little
attempt to have multilingual health and safety
signs, and pay that does not meet legal minimum
wage conditions. The trend towards contracting
with labour hire companies for casual workers has
exacerbated the problems, as companies thereby
avoid legal obligations that they would otherwise
have to employees.
A large number of migrant women also carry
out home-based work. While this work offers
exible hours and there is no need to pay for
child care, evidence suggests that many women
work long hours in poor conditions and are paid a
pittance on a piecework basis. In 1992, the federal
government Inquiry into Equal Opportunity and
Equal Status for Women in Australia reported on
this situation in its publication Half Way to Equal.
As documented in the submission of the Asian
Women at Work Action Group to the 2007 National
Industrial Relations Inquiry, and a July 2008 report
by the Human Rights and Equal Opportunity
Commission, as it then was known, the problems
are still very much in evidence.
It has also been noted that immigrant
women have an unemployment rate higher than
Australian-born people, and for those from non-
than for immigrants uent in English.
Even those migrant women with a high level of
educational qualications usually cannot work in
Australia without undertaking expensive bridging
courses, sometimes on top of a recognised lan-
guage course. As a result, many of these women
must take jobs that pay far less than the jobs they
would have had in their original countries, because
their qualications are not recognised.
2/9/09 8:01:14 PM
 2%6)%7
1 Explain some of the main
issues in the workplace facing
women from non- English-
speaking backgrounds.
2 Outline why women from non-
2
%3%!2 #(    
Asian Women at Work (www.awatw.org.au/) has a
membership of over 1300 migrant women workers. The
group works to educate and empower Asian women
workers in Australia.
1 Use a search engine to nd websites that discuss the

English-speaking backgrounds
are more likely to be exploited
in the workplace.
L aw in p rac tic e
activities of Asian Women at Work.
2 List the specic difculties that migrant women face at
work.
3 What recommendations does the group make for
tackling these difculties?
4 What agents would be involved in these efforts and what
are their roles?

)NDIGENOUSWOMEN
The impact of colonisation on Indigenous women
was devastating. In addition to disease and
massacre, it is generally accepted that there were
many examples of young girls and women being
victims of sexual assaults from the non-Indigenous
community. For the children of the stolen gener-
ation and their families, the consequences of the
practice of taking children from their parents were
great spiritual, physical and emotional suffering.
Today, compared to non-Indigenous women,
Aboriginal women fall behind on most indicators
of health and well-being. The life expectancy of
Indigenous women is 65 years compared to 83
years for non-Indigenous women.
Indigenous women are twice as likely to suffer
from cervical cancer and eight times more likely
Figure 10.5 Today, compared to non-Indigenous
to die from it than non-Indigenous women.
women, Aboriginal women fall behind on most
Diabetes resulting from dietary and lifestyle indicators of health and well-being.
issues is a major problem. Indigenous women
between the ages of 35 and 64 are 33 times more
likely to die from diabetes than non-Indigenous 34.2% for non-Indigenous women. 2

%6 ) %7    
women. With respect to higher education, 1 Outline some of the health
Their labour force participation rate was 43% only 3.5% of Indigenous women and well-being issues facing
compared to 52% participation for non-Indigenous held a degree, whereas 14% of non- Indigenous women today.
women in 2001. Retention rates to Year 11 and Indigenous women did so. Thus 2 Assess why some of the
12 were 24% for Indigenous women aged 15 and far, many government attempts to attempts to resolve these
over in NSW. Nationally only 16.3% of Indigenous overcome these entrenched disad- issues have failed. Suggest
women had a post-school qualication, compared to vantages have failed. possible reasons for this.

Cha pter 10 Women 219

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opened for signature
(of a treaty) having
negotiations concluded
and ready for parties
signatures. Many
treaties, especially
those convened by
the UN, will be open
for signature only
until a certain date;
others, such as the
Geneva Conventions,
are open for signature
indenitely
entered into force
(of a treaty) having
become binding upon
those states which have
consented to be bound
by it
nation-state
a politically
independent country
direct discrimination
a practice or policy of
treating a person or
group of people less
favourably than another
person or group in
the same position, on
the basis of sex, race,
national or ethnic
origin, age, sexuality or
other characteristic
indirect discrimination
practices or policies
that appear to be
neutral or fair because
they treat everyone
in the same way, but
which adversely affect
a higher proportion
of people from one
particular group
220 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 220
- E C H A N I S M S F O R A C H I EV I N G J U S T I CE
F O R WO M E N
Problems confronting women today include
political and economic inequality; unequal access
to education, training and development; difculty
in gaining promotion; unequal pay; and sexual
harassment.
,EGALRESPONSES
)NTERNATIONALLAW
The main treaty that addresses discrimination
against women around the world is the United
Nations Convention on the Elimination of All Forms
of Discrimination Against Women (CEDAW). It was
opened for signature in 1979 and entered into
force in 1981.
The preamble of CEDAW acknowledges that
the Charter of the United Nations and the Universal
Declaration of Human Rights afrm that all human
beings are born free and are equal in dignity and
rights. It also acknowledges that under human
rights treaties, nation-states have responsibilities
to ensure the equal rights of men and women
to enjoy all economic, social, cultural, civil and
political rights.
It afrms that, despite these various instruments,
discrimination against women continues to exist
around the world. The treaty states that this
discrimination
is an obstacle to the participation of women, on
equal terms with men, in the political, social,
economic and cultural life of their countries,
hampers the growth of the prosperity of society
and the family and makes more difcult the full
development of the potentialities of women in the
service of their countries and of humanity.
The Convention contains 30 articles. Articles
116 set out the main rights of women. Articles 17
22 outline the powers and responsibilities of the
Committee on the Elimination of Discrimination
against Women, the body set up to monitor the
implementation of the treaty. Articles 23 set out
the provisions governing the formal operation
of the treaty, for example the time frame for its
being open for signature and entering into force,
and how disputes about interpretation are to be
resolved.
As a signatory country, Australia has an
obligation to ensure that its laws and policies
protect the rights of all women and promote
equality of opportunity.
Refer to Chapter 10 on the Student CD
for:
s information relating to the role of the
United Nations in protecting the rights
of women
s an extract from the United Nations
Convention on the Elimination of All Forms
of Discrimination Against Women
$OMESTICLAW
Legislation protecting women from discrimination
exists at both state and federal levels in Australia.
Discrimination means treating someone unfairly
because of some characteristic. Discrimination
on the basis of sex may be considered to include
discrimination because of someones marital
status or because she is pregnant or likely to
become pregnant. There are two types of sex
discrimination: direct discrimination and
indirect discrimination. Direct discrimination is
a more blatant form and is more easily identied:
for example, where male employees are offered
rst choice for extra overtime ahead of female
employees.
2/9/09 8:01:26 PM

Figure 10.6 More women than men interrupt their working lives for a period of time when they
have children.
Indirect discrimination is usually harder to
detect. It occurs when there is a procedure, rule
or practice that on the face of it is the same for
everyone and not discriminatory, but when carried
out, actually discriminates against a particular
group of people. Indirect discrimination can occur
even when there is no intention to discriminate. An
example provided by the Australian Human Rights
Commission is a situation where a manager offers
a wage increase to all employees who have worked
for the company for a number of years without
interruption. On the face of it this may not seem
discriminatory; however, given the fact that many
more women than men interrupt their working
lives for a period of time when they have children,
this policy has the effect of treating women less
favourably than men.
SEX D ISCR IMIN AT ION AC T 1984 ( C TH )
Some but not all provisions of the Convention on
the Elimination of All Forms of Discrimination
Against Women were implemented in Australian
law through the Sex Discrimination Act 1984 (Cth).
The Act aims to eliminate discrimination on
the basis of sex, marital status or pregnancy
in a number of key areas such as employment,
education, the provision of goods, facilities and
services, accommodation and housing, insurance
and superannuation. The Act explicitly included
9780521734699part_03_3pp.indd 221
L aw in p rac tic e
sexual harassment as a form of discrimination sexual harassment
in employment and education and makes this any unwelcome sexual
behaviour, such as
behaviour illegal. sexual advances,
The other main aim of the Act is to promote suggestive comments,
unwanted touching,
community respect for the principle of the equality
written communication
of men and women. or gestures, especially
The Sex Discrimination Act makes it illegal to: in the workplace
s discriminate against someone on the basis of
sex, marital status or pregnancy
s dismiss someone from her or his job on the
basis of the persons family responsibilities
s sexually harass someone.
Sexual harassment is any unwelcome or un-
wanted sexual behaviour which makes a person
feel offended or humiliated and where that reac-
tion is reasonable in the circumstances. It has
nothing to do with mutual attraction or friendship.
It occurs when a woman is subject to unwelcome
behaviour from others because of her gender. It
can include behaviour such as unwanted sexual
advances, touching without consent, or making
jokes or suggestive comments that are gender-
oriented.
Often there is a power imbalance between the
harasser and the harassed; usually the harasser
occupies a higher position at the workplace. The
person being harassed may think that her (or his)
advancement, or indeed continued employment,
depends on accepting such sexual overtures. This
Cha pter 10 Women 221
2/9/09 8:01:27 PM
 can make it difcult to establish a case for the
harassment, even if the person decides later to
make a complaint. In OCallaghan v Loder [1984]
EOC 92-023, Loder, who was the Commissioner for
Main Roads, made sexual advances to an employee,
OCallaghan. While the NSW Equal Opportunity
Tribunal recognised the power imbalance and was
sympathetic to OCallaghan, it nevertheless held
that there is also an onus on the employee to make
it known to the employer if his conduct is unwel-
come. The tribunal was not satised that
OCallaghan had made it clear to Loder
that she was offended by his behaviour;
RE VIE W 10.5 therefore, if Loder was not aware that his
1 Describe the difference conduct amounted to sexual harassment,
between direct and he did not breach the law.
indirect discrimination. A person who has a complaint under the
2 Explain why indirect Sex Discrimination Act can take action
discrimination is difcult through the Australian Human Rights
to establish and then Commission, set up under the Human
prove. Rights and Equal Opportunity Commission
3 Outline the objectives of Act 1986 (Cth) and formerly called the
the Sex Discrimination Human Rights and Equal Opportunity
Act 1984 (Cth). Commission (HREOC). The Commission
4 Dene what is meant will investigate the complaint and organise
by sexual harassment. a conciliation conference to try to resolve
What needs to occur the complaint with the other party. If
before a complaint of conciliation fails, the complainant may
sexual harassment can make an application to the Federal Court to
be initiated? have the complaint heard.
Table 10.2 Sex Discrimination Act 1984 (Cth) complaints received by ground 200607
Sex Discrimination Act
Sex discrimination
Marital status
Pregnancy
Sexual harassment
Parental status/ family responsibility
Victimisation
Aiding, permitting, instructing another personto do the act
complained of (s 105)
Total
222 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 222
Refer to Chapter 10 on the Student CD
for information relating to:
U the Australian Human Rights
Commission
U a range of sex discrimination
cases from 2006 to 2007
A NTI -DI SC RI M I NATI O N A C T 1 9 77 ( N S W )
The broad-based Anti-Discrimination Act 1977
(NSW) outlaws discrimination on the basis of sex,
race, gender, marital status, disability, respon-
sibility as a carer, homosexuality, and age. It
also establishes the Anti-Discrimination Board,
which is part of the NSW Attorney Generals
Department, to oversee the implementation of
the Act. The Equal Opportunity Division of the
NSW Administrative Decisions Tribunal hears
complaints of discrimination.
Women who feel they have been discriminated
against can make a complaint to the Anti-
Discrimination Board, which will investigate the
complaint and try to help the parties to reach a
solution. If the board cannot resolve a complaint,
women can take their case to the Equal Oppor-
tunity Division of the Administrative Decisions
Tribunal, established under the Administrative
Decisions Tribunal Act 1997 (NSW), which can
make a decision like a court.
Total Percentages (%)
449 45
30 3
170 17
186 19
39 4
118 12
3
995 100
Australian Human Rights Commission, Annual Report 200607
3/9/09 11:02:05 AM
 Complainants generally must make their
complaint within 12 months of the alleged incident
and it must be in writing.
EQUAL OPPORT UN IT Y F OR WOMEN I N
THE W OR K PL AC E AC T 1999 ( C T H )
The principles of equal opportunity in the work-
place reect the right to equitable access to jobs,
career paths, training and staff development and
equitable conditions of employment.
In essence equal opportunity is about:
s treating people with dignity and respect
s unbiased management decisions
s ensuring equal access in all areas of employ-
ment including recruitment, training and
development, promotion, transfer, access to
information, supervision and management of
staff and conditions of employment, with all
selection based on merit (the best person for
the job)
s recognition and respect for the social and
cultural backgrounds of staff and customers.
In other words, diversity is valued.
The Equal Opportunity for Women in the
Workplace Act requires certain organisations to
establish workplace programs to remove the
barriers to women in the workplace, both when
they enter and as they advance. Under the Act, any
organisation that has 100 or more employees and
that is a higher education institution, a private sector
company, a non-prot or community organisation,
a private school, or a union must develop and
implement such a workplace program.
The Acts objectives reect the idea that in a just
and fair world there should be an equitable spread of
both sexes in management and support jobs across
all industries. At present this is not case. It is also
hoped that equal opportunity will provide much
needed role models in managerial positions so that
younger women will aspire to these positions. As
well, no woman can be considered for a particular
job for which she is not suitably qualied. The Act
is not about putting women in jobs ahead of men:
section 2A(a) clearly states that one of its objects
is to promote the principle that employment for
9780521734699part_03_3pp.indd 223
women should be dealt with on 2 %3%!2# (    
the basis of merit. This means 1 Go to www.lawlink.nsw.gov.
that matters such as selection and au/lawlink/caselaw/ll_caselaw.
promotion of employees should nsf/pages/cl_adt and research
be based solely on their quali- some decisions made by the
cations, experience and ability Equal Opportunity Division of
L aw in p rac tic e
to do the job. the Administrative Decisions
The Act also establishes the Tribunal in 2008.
Equal Opportunity for Women in 3 Go to the publications section
the Workplace Agency to oversee of the Anti-Discrimination
the implementation of the Act. Board website (www.lawlink.
nsw.gov.au/ADB), click on
'OVERNMENTAGENCIES publications and then fact
There are agencies at both federal sheets. Select a fact sheet
and state levels that provide that is relevant to women and
policy advice on womens issues. summarise womens rights in
The federal Ofce for Women this area.
(OfW) is part of the Department
of Families, Housing, Community
Services and Indigenous Affairs.
Its primary role is to provide policy
advice to the Minister for the Status of Women, and
to ensure that government and Cabinet decisions
about legislation, policy and budgetary matters are
made with a view to their effect on women. The
OfW also administers programs to combat issues
such as domestic violence and sexual assault,
represents the Australian government at national
and international forums on womens issues, and
has primary responsibility within the government
for Australias obligations under CEDAW.
At state level in NSW, the Ofce for Womens
Policy is part of the Policy Development Division of
the NSW Premiers Department. It advises the state
government and works with other government
agencies and non-government organisations to
develop programs and policies with positive
consequences for women. The ofce also has res-
ponsibility for a Violence Prevention Coordination
Unit, to lead and manage government policy relating
to the prevention of domestic and family violence.
It funds the Womens Information and Referral
Service, a condential telephone contact number
for information about organisations and services
for women in NSW.
Cha pter 10 Women 223
2/9/09 8:01:29 PM
 Figure 10.7 Some companies provide mentoring for high-achieving university graduates.

2

%6) %7    
Refer to Chapter 10 on the Student CD
1 Explain the role of the Ofce for Women
for information relating to the Equal
and the Ofce for Womens Policy.
Opportunity for Women Agency.
2 List and discuss some issues that
might be raised by these ofces in the
development of law and policy relating
to:
s requirements for businesses regarding
conditions of employment
s budget provisions regarding the
funding of health care

Figure 10.8 The ACTU has in recent times s programs in which business leaders
campaigned strongly for better rights for women provide mentoring for high-achieving
in the workplace. university graduates

224 C a m b r i d g e L e g al S tu d ie s Pre limin ary

9780521734699part_03_3pp.indd 224 2/9/09 8:01:35 PM

 .ON LEGALRESPONSES
Legal mechanisms have been put in place to
overcome the historical and cultural barriers
that women still face. There are also some very
effective informal measures that keep the issues
of women on the political agenda.

L aw in p rac tic e
2OLEOFTRADEUNIONS
In the early part of the 20th century, unions
were against womens full participation in the
workplace. As women were paid less than men,
unions did not want a situation where employers
were able to exploit this cheap labour and force
men out of jobs.
Today unions are strong advocates for the
rights of women in the workplace. The Australian
Council of Trade Unions (ACTU) lists the following
achievements to which the union movement has
contributed:
s the principle of equal pay for equal work
s parental leave for women
s improved child care
s universal superannuation
s anti-discrimination and afrmative action
legislation.
A fundamental challenge still facing the ACTU
itself is the fact that women are still under-
represented in the executive levels of the major
unions in Australia compared to their level of
union membership.
Most recently, the ACTU has campaigned
Figure 10.9 Workers protest against industrial
for paid maternity leave, which it believes is relations reforms in Melbourne.
a fundamental human right and a necessary
measure to address the discrimination and dis-
advantage suffered by women who choose to be to bond with and breastfeed their babies without
parents. At least 157 countries have had some nancial considerations necessitating an early
form of paid leave, and of the 30 member states return to work.
of the Organisation for Economic Co-operation In May 2009 the Commonwealth government
and Development (OECD), only Australia and the announced that 18 weeks paid parental leave
United States did not. Without paid maternity would be introduced, starting in 2011. The delayed
leave, women face a lack of job security and start date was due to the effects of the global
income loss if they take time off after bearing a nancial crisis on the budget. The scheme extends
child. Paid maternity leave gives mothers time paid leave to either parent of a newborn child if

Cha pter 10 Women 225

9780521734699part_03_3pp.indd 225 2/9/09 8:01:36 PM

 Now, just what
does this thing do
again?

Figure 10.10 Even today the Ofce for Women is collating data showing that women still do more housework than men.

2%3 % ! 2#( 

he or she is the primary carer and Electoral Lobby (WEL), founded in 1972.
earns less than $150 000 per year. The WEL is dedicated to creating a society
1 Visit the web page titled
decision was welcomed by parents, the where womens participation and
Engaging with womens
union movement, Sex Discrimination potential are unrestricted, acknow-
organisations on the Ofce for
Commissioner Elizabeth Broderick, ledged and respected, and where
Women website at www.fahcsia.
and commentators who have argued women and men share equally in
gov.au/sa/women/progserv/equal/
that law and policies making it easier societys responsibilities and rewards.
Pages/engaging_womens_org.
for fathers to take a greater role in child WEL is a self-funded, non-prot
aspx and research two national
care are necessary in order for women organisation, not afliated with any
womens organisations. Outline
truly to have choices. political party, that lobbies govern-
the main issues with which they are
ments, publishes research papers, parti-
concerned, and their objectives.
,OBBYGROUPS cipates in public debate, participates
2 Visit the WEL homepage at http://
There are non-government organisa- in legal cases where womens human
welnsw.org.au and research two
tions (NGOs) throughout Australia that rights are at issue, and conducts
policy positions of WEL. Write
promote issues important to women. A campaigns to raise awareness of these
a one-page report on what you
well-known NGO is the Womens issues.
discover.

226 C a m b r i d g e L e g al S tu d ie s Pre limin ary

9780521734699part_03_3pp.indd 226 2/9/09 8:01:38 PM

 2ESPONSIVENESSOFT HELEGA L
S YS TE M T O E F F O R T S T O A C H I EVE
J U S T I CE F O R WO M E N
As we have seen in previous chapters, the law is
constantly evolving through legislation and the
courts. It must reect the changing values of the
society it is meant to regulate. Over the past 30
years, women in Australia have seen landmark
legislation passed addressing the issues they face,
especially in the workplace.
In spite of the many improvements that women
have fought for and achieved, there are still
many areas that require constant vigilance and
persistence in order for change to occur. It is in
this light that the legislation and mechanisms for
achieving justice for women will be evaluated.
We will look at the responsiveness of the law in
relation to Australias international obligations
under CEDAW, discrimination, equality of oppor-
tunity (especially in the workplace), and issues
emanating from these such as pay equity, gender
segregation, sexual harassment and child care.
%FFECTIVENESSOF
INTERNATIONALRESPONSES
Women around the world are exploited and
abused as a result of their unequal position under
the laws of their countries. The UN Convention
on the Elimination of All Forms of Discrimination
Against Women (CEDAW) was a signicant step
forward in highlighting the issues and getting
nation-states to commit to ending discrimination
against women.
Sovereign states can choose to comply with or
ignore their international obligations and usually
act out of economic or political self-interest in
determining their course of action. CEDAW is
one of the treaties most ignored by nation-states.
Those nation-states that have signed the treaty
have included many reservations, which allow
9780521734699part_03_3pp.indd 227
them to refuse to comply with certain parts of the
L aw in p rac tic e
treaty. Hence the Committee on the Elimination
of Discrimination Against Women is not able to
declare a nation-state to be in violation of the
treaty where it has entered certain reservations.
The committee can only continue to encourage
nation-states to review their current reservations.
Upon ratication, the Australian government
entered a reservation with respect to paid mater-
nity leave. It also entered a reservation stating
that it does not accept the application of the
Convention in so far as it would require alteration
of Defence Force policy which excludes women
from combat duties. In 2000, the government
withdrew the latter reservation and stated that it
would be reviewing this policy to dene combat
and combat-related duties more closely. As of
2009, it is likely to withdraw the reservation as to gender segregation
the separation of
paid maternity leave, as well.
people according to
Due in large part to parties reservations, there their gender
are still many areas where women experience reservation
discrimination and violations of their human rights. a statement made by
It is believed that there are at least four million
a nation-state when
signing or ratifying
women and girls sold into sex slavery each year a treaty, that allows
and that approximately a quarter of all women it to exclude certain
provisions or modify
experience domestic violence. It is estimated
them as they apply to
that up to 130 million women are victims of geni- the nation-states own
tal mutilation. Literacy is still a major cause of practice
concern: two-thirds of all adults who are illiterate
are women. This is a consequence of poor edu-
cation opportunities for girls compared to boys,
especially in developing countries. Women are
also four times more likely to be infected with HIV/
AIDS than men, and up to 130 million women die
from this disease each year. Education about the
spread of AIDS and programs that address specic
health issues relating to women are not adequate
in many poorer countries.
Cha pter 10 Women 227
2/9/09 8:01:39 PM

optional protocol
an addendum to
a treaty, agreed
to by the parties
at a later date, to
create enforcement
provisions or to
interpret the treaty
in light of later
developments
228 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 228
Figure 10.11 The fty-fth session of the Commission on the Status of Women entitled
Women 2000: Gender Equality, Development and Peace for the twenty-rst century, at the UN
Headquarters in New York.
At the same time, 179 countries have ratied
CEDAW and have passed laws consistent with the
treaty. Millions more girls now receive a primary
school education and millions of women have
been able to take out loans or now have the right
to own or inherit property in their own right. The
issues listed above are now well established on the
global agenda, whereas prior to CEDAW they were
isolated issues in different countries, the extent of
which was not effectively monitored.
An optional protocol has been approved by
the UN General Assembly to provide an additional
enforcement mechanism, as exists with most
other human rights instruments. This would allow
individuals and groups to be able to make a direct
complaint to the CEDAW committee about alleged
breaches of the treaty. The optional protocol does
not add extra rights. Rather, it tries to improve the
enforceability of the existing instrument.
The Australian government has an opportunity
to sign the optional protocol and send a message
to the international community about its com-
mitment to the treaty. Australia has a good record
with respect to laws and policies in place for
women, compared to other countries in the world.
The Sex Discrimination Act 1984 (Cth) is one such
mechanism.
Critical assessments have suggested that there
are gaps in our laws with respect to women. For
example, the Human Rights and Equal Opportunity
Commissions 1999 report Pregnant and Productive
discussed the idea that it is a right, not a privilege,
to work while pregnant, and pointed out gaps in the
coverage of federal anti-discrimination legislation
regarding that issue. Other critics have noted that
the Sex Discrimination Act fails to take into account
the fact that gender may combine with other
characteristics of a person (e.g. race, disability or
sexuality), resulting in different forms of disadvan-
tage. In other words, it is not the case that discri-
mination is the same for all women, regardless of
their individual attributes. Moreover, its reliance
2/9/09 8:01:40 PM
 on complaints by individuals or groups directly There are other factors that limit 2 %6 ) % 7    

affected, rather than addressing discrimination at the effectiveness of the legislation in 1 Explain with examples
the systemic level, makes enforcement problematic redressing grievances. Even if a com- why there is a need
(see Beth Gaze, The Sex Discrimination Act after plainant wins the case and is awarded for treaties such as
Twenty Years: Achievements, Disappointments, damages, a woman may have to the Convention on the
Disillusionment and Alternatives, University of New return to a hostile work environment. Elimination of All Forms
South Wales Law Journal, 2004, p. 53).

L aw in p rac tic e
On top of this, the cost economic of Discrimination Against
HREOC (now the Australian Human Rights and emotional may be extensive. Women (CEDAW).
Commission) argues that Australias signing on Proving that an employer or other 2 What are reservations
to the optional protocol would provide the will to person has discriminated against a and how do they limit the
correct such deciencies, as individuals then would complainant can be difcult, and most effectiveness of CEDAW?
be able to complain directly to the committee, of the time not possible. At the same 3 Evaluate the extent to
putting added pressure on the Australian time, the Sex Discrimination Act has which the Australian
government. enabled some important cases to be government has
won. In 1994, a woman won $160 000 implemented the
%FFECTIVENESSOF after losing her career and a position provisions of CEDAW.
DOMESTICRESPONSES as a partner in a law rm. This was 4 Outline how the
the largest award under the Act at the signing of the optional
!NTI DISCRIMINATIONLEGISLATION time, but many would argue that this protocol for CEDAW
State and federal anti-discrimination Acts provide is a small amount for a career. For would strengthen the
far-reaching protection to women who experience people who win cases the damages enforcement of the
any form of discrimination in the workplace. awarded are usually under $10 000. treaty.
There are few restrictions placed on women as to The provisions of the Sex
what work they do. This is to some extent due to Discrimination Act regarding sexual
discrimination law. Women today have moved into harassment have been effective in that the only
the workforce in unprecedented numbers. requirement is to show that the unacceptable
The effectiveness of the legislation may, how- behaviour actually took place. Complaints of sexual
ever, still be limited by a lack of knowledge of harassment remain high, but this could also be
rights or reluctance to exercise those rights. This attributed to womens greater awareness of their
can be for many reasons, such as fear of dismissal, rights. A HREOC phone poll conducted in 2003 was
failure to recognise that there is a problem, or being used to gauge the prevalence of sexual harassment
unaware that such rights exist in the rst place. in Australia. The ndings revealed that 41% of
Most of the blatant forms of discrimination Australian women aged 1864 and 14% of men had
glass ceiling
have disappeared due to complaints made against experienced sexual harassment. Of these incidents,
an invisible barrier
employers and the educative effect of the laws. two-thirds occurred in the workplace and less than that prevents women
Discrimination today is usually more subtle and one-third of these were reported to employers or from rising in an
organisation through
covert. Generally these types of discrimination external authorities.
promotion; on the
involve systematic practices of disadvantage. If an HREOC also reviewed its own complaints data face of it, a company
employer has such a practice or policy that does and found that that up to 67% of those who made a may not directly
discriminate, but
disadvantage women, it is not illegal if the court complaint left their place of employment. Of these,
subtle practices may
believes it to be reasonable (s 7(b) of the Act). 72% stated the harassment started in the rst still discourage women
This may go part of the way towards explaining year of employment. Although unmeasured, the or prevent them from
being promoted to
the glass ceiling that women have described as economic cost to employers and the community more responsible and
an impediment to their career progress. as a result of this staff turnover is a poor use of better paid positions

Cha pter 10 Women 229

9780521734699part_03_3pp.indd 229 2/9/09 8:01:41 PM

 human resources. It also reects a residual lack of
respect for female colleagues in the workplace, as
most of the complainants are women.
In spite of some of the criticisms outlined above,
the Sex Discrimination Act has continued to evolve.
In 1992, the Act was amended to ban discrimination
on the basis of the occupation or identity of ones
husband or wife. The idea of reasonableness as a
defence for direct discrimination on the grounds of
pregnancy was also removed.
In indirect discrimination cases, the onus of
proof is on employers to provide a defence as to
why systems and policies alleged to be indirectly
discriminatory are reasonable and
necessary. The denition of sexual
2% 6)% 7 
harassment was strengthened, with
1 Draw up a table with two the complainant only having to show
columns headed strengths that she or he reasonably felt
and weaknesses, then list offended, humiliated or intimidated.
the strengths and weaknesses In 1994, amendments extended
of the Sex Discrimination Act the scope of protection under the
1984 (Cth). Act. One of these measures was to
Co nc l u s io n
Women have made substantial progress histor-
ically on many indicators. The law, however, is only
a part of the solution. It is not possible to legislate
attitudes, and rmly held beliefs sometimes can
never be changed. Hence improvement of womens
rights and status in society will be generational,
and the importance of educative programs cannot
be overstated.
Beth Gaze, in another article, argues that both
legal and social change are essential:
When women have equal access to economic
resources, many other changes in their lives will
follow. Girls and women in Australia are still in a
double bind. They are told that they have equality
and can pursue a career and the opportunities
offered by the world equally with boys, but when
230 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 230
simplify the denition of indirect discrimination.
The number of exemptions under the Act, such as
those relating to superannuation and insurance,
have also been recently reduced.
It should be noted that the dif ference between
the anti-discrimination and equal oppor tunity
laws is that discrimination legislation is complaint-
based, whereas the Equal Opportunity for Women
in the Workplace Act 1999 (Cth) is based on the
introduction of programs to eliminate discrimi-
nation at a systemic level.
Refer to Chapter 10 on the Student CD
for information relating to:
s pay equity
s gender segregation of the workforce
s patterns of employment
s equal opportunity in the workplace
they get into the workforce they nd they face un-
equal pay, discrimination in access to good jobs
and advancement in the workforce, and that they
are still assigned primary responsibility for child
care by a society that devalues both motherhood
and children, and is reluctant to provide adequate
public support for the care and education of all its
children.
Beth Gaze, Twenty Years of the Sex Discrimination Act:
Assessing its achievements, The Alternative Law Journal
30(1), February 2005
If we are to prosper as a nation, we cannot
continue to disenfranchise 50% of the population.
It is in everyones interest to make our society
more just and more fair.
2/9/09 8:01:41 PM
 s Two legal mechanisms that exist to
promote the rights and equality of women
are the federal Ofce for Women and the
NSW Ofce for Womens Policy. These
bodies attempt to inuence legislation
s Women historically were treated as

L aw in p rac tic e
and policy as it applies to women.
second-class citizens. They were explicitly
s The ACTU and the Womens Electoral
discriminated against in the areas of
Lobby are non-government groups that
marriage, property, the right to vote, the
campaign on issues concerning women,
ability to sue and enter contracts, and jury
especially in the workplace.
service.
s The effectiveness of CEDAW is limited by
s Today women enjoy the same rights
the many reservations by state parties.
C hap t e r s u m m a ry

as men in most of these areas, but still

CEDAWs strength is dependent on state
experience economic, legal and social
parties afrming its principles in domestic
disadvantage.
legislation.
s Women from non-English-speaking
s The effectiveness of the Sex
backgrounds and Indigenous women
Discrimination Act 1984 (Cth) is limited
face additional barriers to equality of
by factors such as lack of knowledge of
opportunity.
rights, reluctance to exercise them, and
s The UN Convention on the Elimination
the difculty of proving discrimination.
of All Forms of Discrimination Against
s The Sex Discrimination Act 1984 (Cth)
Women is the international treaty
has been strengthened by amendments
specically addressing the many areas in
that extend its scope, and remove
which women experience discrimination.
certain exemptions and defences. The
s In Australia, anti-discrimination and equal
only requirement in sexual harassment
opportunity legislation has been passed
cases is to prove that the offensive
at federal and state level. The chief Acts
behaviour actually took place. The onus
discussed in this chapter are the Sex
is on the employer to show why indirect
Discrimination Act 1984 (Cth), the Anti-
discrimination was reasonable.
Discrimination Act 1977 (NSW), and the
Equal Opportunity for Women in the
Workplace Act 1999 (Cth).
s The Australian Human Rights Commission
(formerly HREOC) is a statutory body set
up to administer the ve federal anti-
discrimination laws, one of which is the
Sex Discrimination Act 1984 (Cth).
s The Equality Opportunity for Women
Agency (EOWA) is a statutory body, one
of whose main functions is to oversee the
development of equality of opportunity
programs within organisations required to
report under the Act.

Cha pter 10 Women 231

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 Which of the following statements about
womens historical status is NOT true?
A Women have been seen as essentially
M ul ti pl e -ch o i ce q u e s ti o n s
different from men and therefore expected
to have different social roles.
B Womens jobs have been valued less and
paid less.
C Events such as wars, despite their
enormous social cost, have sometimes also
provided opportunities for women.
D Women have not always had the same
rights as men because in the past, most
women preferred the traditional social
roles.
 Which of the following statements relating to
womens workforce participation is true?
A Part-time and casual workers usually have
the same work conditions as full-time
workers, and they are paid the same,
proportional to hours worked.
B Workplace relations laws relating to pay
and conditions are enforced more strictly in
relation to labour hire rms and companies
contracting to outworkers.
C Many migrants to Australia have difculty
getting jobs suited to their qualications,
which may not be recognised, and they
may face the additional challenge of
making time to learn English.
D Indigenous and migrant women have
a lower unemployment rate than other
Australian women, but they often have
trouble getting part-time or casual work.
232 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 232
 The Convention on the Elimination of All
Forms of Discrimination Against Women
contains:
A anti-discrimination laws that can be
adapted to suit a countrys cultural
traditions
B provisions condemning discrimination
against women and setting out ways in
which the state parties are to combat and
prohibit it
C provisions that can be enforced by the UN
Security Council or the General Assembly
D a preamble stating that women are
biologically the same as men and therefore
not entitled to special treatment such as
safety precautions at work when pregnant
 The Sex Discrimination Act 1984 (Cth)
prohibits:
A unwanted touching and dirty jokes at work
B indirect discrimination at work unless it is
part of a reasonable policy
C discrimination against doctors wives
because of their husbands profession
D all of the above
 Australias signing the optional protocol for
the UN Convention on the Elimination of All
Forms of Discrimination against Women will
allow which of the following to happen?
A The federal government will be able to
pass legislation prohibiting discrimination.
B The Committee on the Elimination of
Discrimination Against Women will advise
nation-states on how best to implement
the treaty.
C The Committee on the Elimination of
Discrimination Against Women will
recommend trade sanctions against nation-
states in breach of the treaty.
D Individual Australians will be able to
complain directly to the Committee on
the Elimination of Discrimination Against
Women.
2/9/09 8:01:42 PM
  Explain why women were treated as inferior

L aw in p rac tic e
to men in early Australian society.
 Explain the particular barriers experienced by
Indigenous women and migrant women.
C hap t e r s u m m a ry ta s k s

 Describe the different types of discrimination

that women experience in Australian society.
 Dene the term equal opportunity and
outline how it is provided for in Australian law.
 Outline the role of the main international
mechanism that promotes the rights of
women around the world.
 How is the NSW Ofce for Womens
Policy different from its Commonwealth
counterpart?
 Assess the effectiveness of non-legal
mechanisms in improving the rights of women
in the workplace.
Top i c revi ew
 Explain the limitations that exist for a
more effective implementation of the UN
Convention on the Elimination of All Forms
of Discrimination Against Women (CEDAW).
 Discuss the strengths and weaknesses of
the Sex Discrimination Act 1984 (Cth).
What reforms have taken place through
amendments?
Discuss the effectiveness of the Equal
Opportunity for Women in the Workplace
Act 1999 (Cth) in removing barriers to equal
opportunity in the workplace.

EX T EN DED R ES PON S E C Suggest some legal and non-legal

 Evaluate the effectiveness of the legal system mechanisms for addressing these
in dealing with discrimination against women. consequences. Discuss.
 [The ideal worker] works full time and
overtime and takes little or no time off for
childbearing or child-rearing. Though this Marking criteria for the extended response
ideal worker norm does not dene all jobs questions can be found at www.cambridge.
today, it denes the good ones: full-time edu.au/education. Refer to these criteria
blue-collar jobs in the working-class context when planning and writing your responses.
and high-level executive and professional jobs
for the middle class and above. When work is
structured in this way, caregivers often cannot
perform as ideal workers. (Joan Williams,
Unbending Gender: Why Family and Work
Conict and What to Do About It (Oxford
University Press, New York, 1999), pp. 914)
A What consequences do these expectations
of the ideal worker have for women?
B Do these consequences also apply to men?
If your answer is no, would your answer
be different if more men took a more
active role in parenting?

Cha pter 10 Women 233

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 A r e a 2 : Eve n t s w h i c h h i g h l i g h t l e g a l i s s u e s

CHAPTER 11
The Bali bombings
c hap ter ob j e cti ve s

In this chapter, students will:

s describe the features of international law
enforcement
s describe the interaction between domestic legal
systems of Australia and Indonesia
s evaluate the effectiveness of using legal approaches
consistent with the rule of law
s evaluate the effectiveness of the law in achieving
justice for victims
s evaluate the effectiveness of legislation and other
measures introduced in response to terrorism
s locate quality information from authoritative sources
using the internet.
k ey t er m s / v oc ab u l a r y

9/11
Al Qaeda
rule of law
Osama bin Laden
Islamic extremists
superpower
Jemaah Islamiyah
Central Intelligence Agency
jihad
war on terror

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 L aw in p rac tic e
rel ev ant l aw

IM PORTA N T L EGIS L AT ION

Suppression of the Financing of Terrorism Act
2002 (Cth)
Border Security Legislation Amendment Act
2002 (Cth)
Telecommunications Interception Legislation
Amendment Act 2002 (Cth)
Australian Security Intelligence Organisation
Amendment (Terrorism) Act 2002 (Cth)
Criminal Code Amendment (Terrorism) Act 2003
(Cth)
Charter of the United Nations Amendment Act
2002 (Cth)
Anti-Terrorism Act 2004 (Cth)
Anti-Terrorism Act (No. 2) 2005 (Cth)

SIGNIFIC AN T C AS ES
R v Mallah [2005] NSWSC 358
R v Thomas [2006] VSCA 165
R v Lodhi [2006] NSWSC 691
R v Benbrika [2007] VSC 261

Cha pter 11 T h e B al i bombi ngs 235

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 Int roduc t ion
9/11 The Bali bombings were Australias 9/11. On enforcement agencies to tackle the terrorist threat
a term used to describe 12 October 2002, Australians were targeted by on their doorstep. When compared with the war
the terrorist attacks in
the United States on Islamic extremists in the most populous Muslim on terror approach that the United States pursued
11 September 2001; country in the world Indonesia. How Australia against Al Qaeda, the methods used by Australia
otherwise known as
responded to this global terrorist act had the and Indonesia, which were consistent with the rule
September 11
potential to damage its relationship with its of law, were successful. The perpetrators of the
war on terror
the term used in 2002 largest Asian neighbour a relationship already Bali bombings were caught, tried, and sentenced.
by US President George soured by Australias intervention in the conict In the US, however, after many painful and costly
W. Bush to refer to
in East Timor. Unlike the United States, Australia years of the war on terror, Osama bin Laden
his administrations
efforts to ght terrorism did not have the capacity to employ a war on remains at large and Al Qaeda is still a threat to
anywhere in the world terror approach against Indonesia. Instead, the global security. If a rule of law approach had been
using any means
Australian and Indonesian governments used the followed by the US, would this result have been
Al Qaeda
an international Islamic
full force of both their legal systems and their police different?
extremist group,
responsible for attacks
on military and civilian
targets in various
countries, the most
notable being the
A NDGLOBA LTERRORIS M
attacks on the US on
9/11
The Bali bombings occurred one year after the cells all around the world, prepared to strike at
rule of law
the principle that no September 11 terrorist attacks in the United any target. Their goals were to cause maximum
one is above the law; States. 9/11 has been seen as a wake-up call to terror and panic while gaining a worldwide forum
the most important
the Western world to the demands of Islamic to promote their cause.
application of the rule of
law is that governmental extremists and their ability to cause widespread In the face of increasing political and economic
authority is exercised in fear. The terrorists who captured the planes and instability throughout parts of the Muslim world,
accordance with written,
ew them into the World Trade Center and the terror organisations have provided a refuge for
publicly disclosed laws
adopted and enforced Pentagon belonged to Al Qaeda. Their goal was many young Muslim men who feel disenfranchised
in accordance with to strike at the heart of the worlds most powerful by what they view as anti-Arab and anti-Muslim
established procedural
nation. Al Qaedas leader, Osama bin Laden, saw US Western policies. Some have been motivated by bin
steps (due process)
involvement in the Middle East especially support Ladens September 11 attacks to carry out terror
Osama bin Laden
Saudi Arabian-born for Israel as an affront to Muslim interests, law acts of their own against the US and its allies. In
founder of the Al Qaeda and way of life. Bin Laden believed that Al Qaeda the eyes of many Islamic extremists in Indonesia,
terrorist organisation
would be victorious in battle against the worlds Australia was the most prominent American ally in
Islamic extremists
people who follow an last remaining superpower, the United States, the Asian region, and Australian and other tourists
extreme version of the just as it had been when it fought the former USSR on the popular island of Bali were a logical target
Islamic religion which
(the Union of Soviet Socialist Republics, dissolved for terrorism.
sanctions the use of
violence to achieve their at the end of the Cold War) in Afghanistan.
objectives From the 1970s, terrorist acts were often a front
page news item; however, they were acts conned
4HE"ALIBOMBINGS
to remote locations. The September 11 attacks In the tourist district of Kuta in Bali just after
changed all that. Terrorism became a global 11 p.m. on 12 October 2002, a small bomb was
phenomenon and terror organisations mobilised detonated in the backpack of a suicide bomber

236 C a m b r i d g e L e g al S tu d ie s Pre limin ary

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 L aw in p rac tic e
Figure 11.1 The Bali bombings destroyed the Sari Club and Paddys Bar, which were popular with
Australian tourists.

superpower
a country that has a
dominant role in world
politics and possesses
military power in
excess of other
nations. At the end of
the Second World War
(1945) the USA and
USSR were known as
superpowers because
Figure 11.2 Osama bin Laden Figure 11.3 On 11 September 2001 the world of their huge armies
and nuclear arsenals.
entered an age of global terrorism.
terrorism
violence or the threat
at Paddys Bar. As people ed, another more consulate in Bali; this was smaller and caused of violence, directed
powerful car bomb of about 1000 kilograms was only slight damage. A total of 88 of the 202 people at an innocent group
of people for the
detonated ten to fteen seconds later in a white killed were Australians. Another 209 people were
purpose of coercing
Mitsubishi van parked outside the Sari Club. This wounded, most suffering from horric burns. Balis another party, such as
bomb caused massive damage, leaving a one- local hospitals could not cope with the number of a government, into a
course of action that
metre-deep crater large enough for three cars. A injured and many burns victims of all nationalities it would not otherwise
third bomb was detonated outside the American were own to hospitals in Darwin by the RAAF. pursue

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 Figure 11.4 Chaos on the night of the Bali bombings
Jemaah Islamiyah
a radical Islamic
organisation that has
links with Al Qaeda
Central Intelligence
Agency
the spy agency of
the United States of
America, responsible
for gathering national
security intelligence
238 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 238
l eg al l i nks
For an eyewitness account of the
blast that night see the Sydney
Morning Herald article of 14
October 2002 at www.smh.com.au/
articles/2002/10/14/10342226842
62.html
A large collection of articles,
photo galleries and video reports
from 1320 October 2002 has
been compiled by the Sydney
Morning Herald webpage and can
be accessed at www.smh.com.au/
specials/Bali/
4HEREACTION
People from all around the world expressed anger
over the Bali bombings. The attack was seen by
many as a sign that full-scale terrorist activity had
reached Australias doorstep. The horric images
of suffering and the harrowing accounts of the
survivors were widely broadcast in the print, radio
and television news media. All the while, people
struggled to comprehend the perpetrators moti-
vations. At the government level there was
worldwide condemnation. Australian and Indo-
nesian leaders both condemned the terrorist acts
and vowed to track down those responsible using
every legal means available to them. It was imme-
diately clear that the Australian and Indonesian
police would work cooperatively to bring the per-
petrators of the Bali bombings to trial.
While no terrorist group took immediate res-
ponsibility for the Bali bombings, authorities around
the world believed it to be the work of the radical
Islamic association, Jemaah Islamiyah, known
as JI. Jemaah Islamiyahs spiritual leader, cleric
Abu Bakar Bashir, was already under suspicion
from the United States spy agency, the Central
Intelligence Agency (CIA). The US government
2/9/09 8:01:54 PM
 had earlier advised the Indonesian government
that Jemaah Islamiyah posed a serious terrorist
threat in the region. According to a New York Times
report on 13 August 2002, the Americans believed
there was new evidence of a direct link between
Al Qaeda and Jemaah Islamiyah. They identied
an Al Qaeda operative, Riduan Isamuddin, also
known as Hambali, who had links with Abu Bakar
Bashir. Requests to take action from the US, the
Philippines, Singapore and Malaysia, however, were
ignored. At this stage, the Indonesian government
was unwilling to publicly acknowledge that it had
citizens involved in organised terrorism. After the
Bali bombings, it had no choice but to act decisively
against the terrorist threat within its borders.
Refer to Chapter 11 on the Student CD
for additional activities relating
to the reactions to the
Bali bombings.
)NDONESIANAND!USTRALIAN
relations
The Bali bombings had the potential to destabilise
Australian and Indonesian relations. Relations
between the two nations have been difcult since
the Indonesian republic was founded in 1949.
Tensions were exacerbated in 1999 when Australia
sent troops into East Timor to support the United
Nations mission supervising the territorys
transition to independence from Indonesia. The
Bali bombings threatened to create a further
division between Australia and the worlds most
populous Muslim nation.
Indonesia had recently emerged from years
of dictatorship to become a democracy based on
the rule of law. As a result, in the wake of the Bali
bombings, they were keen to cooperate and behave
in a manner expected of a democratic nation. The
Indonesian and Australian governments were
9780521734699part_03_3pp.indd 239
2
%6) %7    
1 What other types of extremism are
there in the world today? Discuss, with
reference to the following factors:
s economic privilege
s oppression
L aw in p rac tic e
s political or cultural history
2 Why are the September 11 attacks on
the United States seen as a success by
Al Qaeda?
3 What is Jemaah Islamiyah?
Figure 11.5 Riduan Isamuddin, Figure 11.6 Abu Bakar Bashir is
also known as Hambali, was a key the spiritual leader of Jemaah
Al Qaeda operative who helped Islamiyah and a key gure in the
to mastermind the 9/11 attacks Bali bombings.
on the US and had links with Abu
Bakar Bashir.
able to cooperate in their efforts to track down
those responsible for the blast. Indonesia also had
economic motivations through its strong tourism
links with Australia, which it feared losing if it
did not act quickly and decisively. In addition,
Indonesia needed to restore its reputation after
the poor handling of the killing of ve Australian
newsmen at Balibo in East Timor in 1975. Those
responsible for the deaths of the Balibo Five have
still not been brought to justice.
Cha pter 11 T h e B al i bombi ngs 239
2/9/09 8:01:57 PM
 - E C H A N I S M S F O R A C H I EV I N G J U S T I CE
AFTERTHE"ALIBOMBINGS
,EGALRESPONSES
!USTRALIANn)NDONESIAN
ENFORCEMENTCOOPERATION
Within 24 hours of the Bali bombings, a team
of investigative and forensic ofcers from the
Australian Federal Police (AFP) arrived in Bali
to assist the Indonesian National Police. A
joint operation was launched and an effective
partnership was forged between the two enforce-
ment agencies. The AFP called the investigation
Operation Alliance and at its height over 120
police ofcers from state and federal Australian
police forces worked beside Indonesian and
international experts. ASIO ofcers were also
involved. One of the biggest tasks faced was victim
identication. This is an area in which the AFP
has particular expertise. AFP ofcers were also
involved in forensic investigation of the blast site
to determine the nature and origin of the bomb.
Refer to Chapter 11 on the Student CD
for additional activities relating to the
Australian Federal Police
and ASIOs responses to the
Bali bombings.
4HEARRESTOFTHE"ALIBOMBERS alleged crimes. In addition, the CIA held Hambali
After an extensive joint police investigation numer-
ous arrests were made, which eventually led to 33
convictions. On 18 October 2002, the 64-year-old
cleric and spiritual leader of Jemaah Islamiyah, Abu
Bakar Bashir, was taken in for questioning. Bashir
was an open admirer of bin Laden.
The second major arrest occurred in November
2002: a 40-year-old mechanic named Ali Amrozi
bin Haji Nurhasyim, also known as Amrozi. A
240 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 240
32-year-old university graduate, Imam Samudra,
was arrested after police traced his credit card
details from an ATM. The chief Indonesian investi-
gator, General I Made Mangku Pastika, stated that
Samudra was most likely the leader of the group in
both the planning and its execution. Apparently,
Samudra had stayed in Bali for days after the Bali
bombings to survey the destruction. Two other men
were later arrested, both Amrozis brothers: Ali
Imron and Ali Ghufron, also known as Mukhlas.
Indonesian authorities continued making
arrests of people implicated in the Bali bombings
as late as July 2003. In one week in early July
they arrested nine suspected Jemaah Islamiyah
militants and seized large quantities of bomb-
making chemicals, which indicated that more
attacks were planned.
In August 2002, Riduan Isamuddin, alias
Hambali, was arrested by the United States.
Hambali had been a close friend of Khalid Shaikh
Mohammed, who planned the September 11
attacks and was known as the Osama bin Laden
of south-east Asia. He was the most wanted terror
suspect in the region, representing an important
link between the Al Qaeda network and Jemaah
Islamiyah.
The US authorities did not, however, follow
the rule of law approach once they had Hambali
in custody. Hambali was declared to be guilty, by
public gures including the US president, before
sufcient evidence was found to substantiate his
in a secret location for three years where he is
widely believed to have been tortured. Further
calling into question the United States respect
for the rule of law in this case was Hambalis
detention in Guantnamo Bay, Cuba. Since the
commencement of the war on terror the United
States has held suspected terrorists there for years
without trial and outside the rules of the Geneva
Conventions.
2/9/09 8:01:58 PM

Figure 11.7 Ali Ghufron, also Figure 11.8 Imam Samudra
known as Mukhlas, was found guilty was the mastermind of the Bali
and sentenced to death. bombings and the only university
graduate among the bombers.
How the US handled Hambali had
negative consequences for the prosecution
of the Bali bombers. First, the Americans
refused investigators access to Hambali
to question him over the Bali bombings. It
is widely believed that Hambalis evidence
could have effectively convicted
Bakar Bashir by linking him to the attack.
Relatives of the victims of the Bali bombings
remain angry that the Unites States has not
brought Hambali to trial. The possibility
of a trial is further complicated by the fact
of his illegal treatment in the aftermath
of his arrest. In 2009, the new American
president, Barack Obama, announced that
Guantnamo Bay would close within a
year of his taking ofce. What will happen
to Hambali? One possible answer to this
question is that he could be released into the
custody of the Indonesian government and
tried there.
4HETRIALS
Abu Bakar Bashir faced trial a number of
times for various charges related to the Bali
bombings. He was, however, acquitted of the
most serious terrorism-related charges and
was sentenced to four years for sedition.
He appealed this charge and further trials
followed. Bashir was eventually charged with
conspiracy and sentenced to two-and-a-half
9780521734699part_03_3pp.indd 241
L aw in p rac tic e
Figure 11.9 Amrozi the smiling
assassin who did not show
remorse during his trial
years. He was freed on 14 June 2006 and his 2
%3% ! 2# (    
conviction was overturned by Indonesias Access the internet to
Supreme Court in December of the same search for the article
year. The most important information Hambali and the
missing from the prosecutions case against Guantnamo Problem
Bashir was information that could have by Joe Boyle. It provides
Abu been obtained from Hambali that would a point of view on the
have connected him to Jemaah Islamiyah. difcult question of what
The Americans withheld considerable to do with Hambali once
intelligence information about Hambali from the detention camp is
other nations intelligence agencies. This was closed down.
in stark contrast to the intelligence sharing 1 Read the article and
between the AFP and the Indonesian police. summarise the key
The trials of the Bali bombers attracted points.
worldwide publicity. The image that stands 2 Identify the reasons why
out from this period is of Amrozi repeatedly releasing Hambali to the
smiling during his trial, which led to his being Indonesian authorities
called The Smiling Assassin. Amrozi was may not occur.
charged with buying the explosives and the 3 Write a one-page report
van used in the bombing. On 8 August 2003, on what you think should
he was found guilty in the Bali court and be done with Hambali
executed on 9 November 2008. once Guantnamo Bay
Imam Samudra was portrayed as the eld is closed down. Provide
commander of the Bali bombings. He was reasons for your opinion.
put on trial, found guilty on 8 August 2003
and executed on 9 November 2008. Samudra
jihad
thanked prosecutors for giving him the death
in Islam, a term meaning
sentence because, he said, it would bring struggle; used without
him closer to God. In his evidence, Samudra any qualiers it is generally
understood in the West to
said that the Bali bombings bombing was
refer to a holy war on behalf
part of jihad. of Islam
Cha pter 11 T h e B al i bombi ngs 241
2/9/09 8:02:00 PM
 2%3%!2#( 
Access the internet to nd the article Long Trail of Clues that Led to a
Bali Suspect, by Jane Perlez. It details the steps taken to track down and
arrest Amrozi.
1 Read the article and make a list of the clues that led to Amrozis arrest.
2 Use the internet to locate information about how the law enforcement
authorities were able to track down and arrest Samudra and the other
Bali bombers, Ali Imron and Ali Ghufron.
3 In different cultures, facial expressions and gestures can mean different
things. Locate some evidence that may suggest Amrozis smile means
something other than what we in Australia may take it to mean.
.ON
LEGALRESPONSES signicant non-legal responses to the bombings
!USTRALIANANTI
TERRORISM all Australians that an attack could happen here.
CAMPAIGNS
The Bali bombings alerted the Australian govern-
ment to the possibility that a terrorist attack could
occur close to or on Australian soil. One of the most
Figure 11.10 Every detail helps: the third
phase of the National Security Public Information
Campaign, launched in August 2007
242 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 242
2
%6) %7    
1 In pairs, discuss why you think
tensions increased between
Australia and Indonesia over
East Timor in 1999.
2 Identify who the Australian
Federal Police worked with in
Operation Alliance.
3 Evaluate the reasons why a
conviction against Abu Bakar
Bashir was difcult to secure.
highlighted the need for awareness on the part of
The Commonwealth government, through its
National Security ofce (www.nationalsecurity.
gov.au), launched a public information campaign
and a National Security Hotline in response to the
Bali bombings. The goal of the campaign, the rst
phase of which commenced in December 2002,
the second in September 2004 and the third in
August 2007, is to ensure that the Australian
people are alert and on the lookout for any possible
warning signs of a terrorist attack. Some criticised
this campaign for causing unnecessary fear and
creating a culture of suspicion in which people
were encouraged to spy on and dob in their
neighbours. Muslim Australians reported feeling
discriminated against in their day-to-day lives.
In 2005, arrests were made in Sydney and
Melbourne after raids by ASIO and the AFP, foiling
a plot to carry out a terror attack on Australian soil.
While a direct link has not been drawn between
the public information campaign and these arrests,
the campaign has contributed to a new awareness
by Australians that they live in an age of terror.
-EMORIALSANDVICTIMSUPPORT
One of the most important non-legal responses to
the Bali bombings was the collective grief expressed
by the Australian and Indonesian people. With
88 Australians killed and many others seriously
2/9/09 8:02:04 PM
 injured, many people knew someone, or
knew someone who knew someone, who
had been involved in the bombings. Public
memorials act as a tribute to victims and a
way to show support for victims and their
families.
Beach), Canberra, Melbourne and Perth.
In addition, Prince Charles opened a
memorial globe with 202 doves carved
into it (representing the 202 people killed)
in London. The Sydney memorial is made
up of three interlocking bronze shapes
R EVI EW 1 1 . 3
1 Identify the benets of the
Commonwealth governments
National Security Campaign.
2 Identify any negative features
of the Commonwealth

Permanent public memorials
been erected in Bali, on the former sites
of both the Sari Club and Paddys Bar,
and in Australia, in Sydney (at Coogee
L aw in p rac tic e
have that represent gures offering each other governments National
support. The Melbourne memorial incor- Security campaigns.
porates a fountain and reecting pool that
incorporates 202 individual waterspouts.

Figure 11.11 Peace Park Memorial at the former site Figure 11.12 Bali Memorial at the former site
of the Sari Club of Paddys Bar

Figure 11.13 Bali Memorial, Sydney Figure 11.14 The names of the 202 people killed by the Bali bombers

Cha pter 11 T h e B al i bombi ngs 243

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 ,EGA LRESPONSESTOTERRORIS M
4HEDEATHPENALTY
The Bali bombings prompted much discussion of
legal responses to terrorism generally. One con-
troversial issue that regained attention was the
morality and appropriateness of the death penalty
as a means of achieving justice. The Australian
federal government abolished the
death penalty in 1973 and had taken
2% 3%! 2#( 

a national and international stance
Using the United Nations
against it, in line with United Nations
website (www.un.org) as a
policies.
starting point, investigate
Some individual members of the
the UNs position on capital
Australian Labor Party (ALP) took
punishment (the death penalty).
their partys stated opposition to the Figure 11.15 Labor Prime Minister Kevin Rudd
1 Locate the Universal was silent on the issue of the death penalty
death penalty very seriously. Robert
Declaration of Human during the execution of the Bali bombers.
McClelland, Attorney-General in the
Rights. In what ways can
Rudd Labor government, expressed
this document be said to be
his opposition to the use of the death
against the death penalty?
penalty to deal with the Bali bombers.
2 Identify the role of the UN
The Australian government, however, Refer to Chapter 11 on the Student CD
Human Rights Council on this
was silent on the issue when the Bali for additional activities relating to the
issue. (The Human Rights
bombers were sentenced to death. death penalty.
Council replaced the UN
Surveys showed that well over 50 per
Commission on Human Rights
cent of Australians were in favour of
in 2006.)
the Bali bombers receiving the death
3 Using both the UN website
and a more general internet
penalty. )NTERNATIONALCOOPERATION
search, research the names of
What repercussions does this have
TOCOMBATGLOBAL
for Australians convicted of capital
the countries yet to abolish
offences in other countries? The Bali
TERRORISM
the death penalty. What
Nine, on death row in Indonesia for In an international context, the cooperative
reasons have these countries
drug trafcking, would seem to have approach taken by the Australian and Indonesian
offered for not doing so?
little reason to believe their govern- police force and governments was highly effective.
4 Write a one-page report on
ment would take a stand on a human While the American-instigated war on terror had
whether you think Australias
rights issue that directly affected failed to destroy Al Qaeda or apprehend Osama bin
inconsistent position on the
them. However, after Amrozi and his Laden, the AustralianIndonesian effort to bring
death penalty in relation
brothers were executed on 9 Nov- the Bali bombers to justice was a success. The
to the Bali bombers and
ember 2008, the Rudd government one area in which this international cooperation
the Bali Nine will harm our
returned to publicly opposing the may be considered a failure was in the attempts
international reputation on
death penalty. Human rights advo- to convict Abu Bakar Bashir of a major role in
this issue.
cates, including outspoken Julian the bombings. As noted, this failure was largely
Burnside QC, have accused the gov- due to the United States reluctance to share CIA
ernment of hypocrisy on the issue. intelligence gained from Hambali.

244 C a m b r i d g e L e g al S tu d ie s Pre limin ary

9780521734699part_03_3pp.indd 244 2/9/09 8:02:11 PM

 There has also been substantial long-
term reform in the relationship between
Australian and Indonesian enforcement
agencies. With a view to longer-term
measures, the AFP has invested heavily in
Indonesia its Jakarta ofce constitutes
Keelty explained that together Australia
and Indonesia were dedicated to making
the region safer by addressing the threat
of terrorism wherever it occurred. Austra-
lia was committed to providing the INP
with assistance in the areas of counter-
2 %3%!2 # (    
Visit the website for the Jakarta
Centre for Law Enforcement
Cooperation (JCLEC) at www.
jclec.com.
1 What activities are undertaken

the second largest deployment of AFP
ofcers in a foreign country. From here,
AFP agents can be deployed to any trouble
spot in the region. The AFP established
the Jakarta Regional Cooperation Team
(JRCT) to assist the Indonesian National
Police in their investigations into the Bali
bombings and the later bombing of the
Australian embassy in 2004. The AFP has
also helped develop the Jakarta Centre for
Law Enforcement Cooperation (JCLEC) to
augment the Indonesian law enforcement
agencies ability to deal with terrorism,
drug trafcking and people smuggling.
Over 2000 Indonesian police have now
completed programs offered by JCLEC.
The cooperation between the Indo-
nesian National Police (INP) and the AFP
culminated in the signing of a memor-
andum of understanding in 2002 and a
visit to Australia by the Head of the INP
in March 2003. AFP Commissioner Mick
L aw in p rac tic e
terrorism, intelligence and forensics. by the Centre?
2 Go to the Australian section
of the Useful links web page.
What information can be
Refer to Chapter 11 on the
accessed from here?
Student CD for additional
3 Discuss how the Centres
activities relating to international
activities assist in the ght
cooperation in the aftermath of
against terrorism in our region.
the Bali bombings.
2
%6) %7    
1 Why do you think the Australian federal government
was silent on the issue of the death penalty when it
came to the Bali bombers?
2 What was the accusation of Julian Burnside, QC,
against the federal government? Why?
3 Identify the ways in which the Australian Federal
Police has cooperated with Indonesian law
enforcement authorities.

Figure 11.16 Australian Federal Police Commissioner Mick Keelty was in charge of the AFP at the
time of the Bali bombings.

Cha pter 11 T h e B al i bombi ngs 245

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 !NTI
TERRORISMMEASURES with Security Council decisions relating to
IN!USTRALIA
A major initiative that resulted from September 11
and the Bali bombings was the implementation
of anti-terrorism legislation in Australia and a
strengthening of the enforcement agencies respon-
sible for homeland security. A number of terrorism-
related statutes were enacted by the Australian
government to deal with the perceived threat of a
terrorist attack on Australian soil.
A few of the key legislative changes were
contained in the following enactments:
s Suppression of the Financing of Terrorism Act
2002 (Cth)
s Border Security Legislation Amendment Act 2002
(Cth)
This Act amended legislation including the
Customs Act 1901 (Cth) with respect to restricted
areas; passengers, goods and mail in transit
through Australia; airlines and other matters.
s Telecommunications (Interception) Legislation
Amendment Act 2002 (Cth)
This Act amended the Telecommunications
(Interception) Act 1979 (Cth) and the Australian
Security Intelligence Organisation Act 1979 (Cth)
(ASIO Act).
s Australian Security Intelligence Organisation
Legislation Amendment (Terrorism) Act 2003 (Cth)
This Act amended the ASIO Act 1979 (Cth), the
Intelligence Services Act 2001 (Cth), and the
Telecommunications (Interception) Act 1979 (Cth).
s Criminal Code Amendment (Terrorism) Act 2003
(Cth)
This Act amended the Criminal Code 1995 (Cth)
and other legislation.
s Charter of the United Nations Amendment Act
2002 (Cth)
This Act amended the Charter of the United Nations
Act 1945 (Cth), which approved the Charter of
the United Nations and enabled Australia to
apply sanctions giving effect to certain decisions
of the UN Security Council. (See Chapter 2 for
information about the UN and the Security
Council.) In particular, this amending Act deals
246 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 246
terrorism and the Commonwealths ability to
freeze the assets of certain parties.
s Anti-Terrorism Act 2004 (Cth)
s Anti-Terrorism Act (No. 2) 2005 (Cth).
Australia had already been a signatory to a
number of international treaties that deal with
terrorism. Some key treaties are:
s International Convention for the Suppression of
Terrorist Bombings (1997)
s International Convention for the Suppression of
Financing of Terrorism (1999)
More recently, Australia has signed the
International Convention for the Suppression of Acts
of Terrorism (2005).
Since the Bali bombings, law enforcement
authorities have been on high alert to counter any
attempted terrorist attack on Australian soil. As of
2009 there has been no successful terrorist attack
on Australian soil. However, there have been a
number of high-prole arrests and cases arising
out of terrorism-related charges. These include:
s Zaky Mallah was the rst person charged under
the 2002 legislation. In the NSW Supreme
Court in 2005 he was found not guilty on two
charges of preparing for a terrorist act when
a jury found he had not planned to kill ASIO
ofcers in a suicide mission: R v Mallah [2005]
NSWSC 358. He pleaded guilty to a charge of
threatening to kill a Commonwealth ofcer and
was jailed for two-and-a-half years: R v Mallah
[2005] NSWSC 317.
s Joseph Terrence Thomas, nicknamed Jihad
Jack by the media, was arrested in 2004. In
R v Thomas [2006] VSCA 165, his appeal was
heard by the Victorian Supreme Court, Court of
Appeal. Thomas had been found guilty in the
Supreme Court of Victoria of receiving funds
from a terrorist organisation and possessing
a falsied Australian passport (which he had
altered to hide the length of time he spent in
Pakistan, allegedly in contact with Al Qaeda).
His counsel argued that confessions made out
of court are not admissible unless voluntarily
made, and that Thomass statements to the
2/9/09 8:02:16 PM
 AFP, without a lawyer present, should have
been excluded. The Court of Appeal quashed
the convictions and ordered a later retrial.
s Faheem Khalid Lodhi, arrested in 2006, was
the rst person to be convicted of preparing
for a terrorist act. He was also found guilty on
two other charges and sentenced to 20 years
imprisonment, with a 15-year non-parole
period: R v Lodhi [2006] NSWSC 691.
s Abdul Nacer Benbrika was arrested in 2006,
with 21 other people in NSW and Victoria. In his
trial before the Supreme Court of Victoria, he
was found guilty of the charge of being a leader
of a terrorist cell: R v Benbrika [2007] VSC 261.
#RITICISMS
Some of the legislation passed by Australia,
like that of some other countries including the
UK and the US, has been criticised as giving
powers to the executive government that are far
too great. In particular, sections 23CA, 23CB and
23CD of the Crimes Act 1914 (Cth) introduced by
the Anti-Terrorism Act 2004 (Cth) have increased
individuals risk of being detained or imprisoned
without evidence of their guilt being presented
or proved in court. Laws permitting detention
without charge conict with Article 9(1) of the
International Covenant on Civil and Political Rights.
The ASIO Amendment (Terrorism) Act 2003 (Cth)
introduced new offences relating to involvement
with terrorist organisations. The denition of
terrorist act is extremely wide, resulting in many
innocent organisations potentially being classed
as terrorist: for example, a group that supports
people who participate in political protests
where the police are . It also places the onus on a
defendant to show that he or she was not reckless
about whether an organisation was one of those
banned by the legislation.
The Anti-Terrorism Act 2005 (Cth) alarmed
the Australian journalists union, the Media,
Entertainment and Arts Alliance. Schedule 6 of
this Act gave AFP ofcers the power to request
in writing that a person produce documents, if
the ofcer considers that the documents are rele-
9780521734699part_03_3pp.indd 247
vant to the investigation of a serious terrorism
offence. The union expressed concern that these
powers could be used to demand any condential
information obtained for the purpose of articles or
broadcasts, including sources names and details,
and could thus undermine journalists ability to do
L aw in p rac tic e
their job properly.
Because of such provisions, some have argued
that the anti-terror laws point to the need for an
Australian bill of rights. As discussed in Chapter 6,
one argument against a bill of rights is that it is
not needed in Australia because rights are already
protected by existing statutes, and these statutes
have been passed by a responsible legislature
that has the best interests of the nation in mind.
Another argument against a bill of rights is that it
would lead to the courts becoming too political
in their efforts to uphold individual rights. But if
parliament cant be trusted to preserve individual
freedoms in the laws it enacts, then not only
does review of statutes by courts become more
urgent, but it might also be necessary to enshrine
those freedoms in a bill of rights that cannot be
overridden by legislation.
Co nc l u s io n
The Bali bombings showed Australia that they are
not immune to global terrorism. Unlike the war
on terror waged by the United States, the joint
IndonesianAustralian response to the 2002 terror-
ist attack has seen the conviction of those tried
and found responsible. Furthermore, Australia has
gained a willing partner in the region with which to
combat terrorism and illegal drug trade.
Domestically, the Bali attack has led to the intro-
duction of anti-terrorism legislation giving Austra-
lian law enforcement agencies greater powers to
deal with the threat of a terrorist attack on Austra-
lian soil. The new legislation has attracted heavy
criticism from legal scholars and others, who have
argued that it undermines key legal rights. It has
prompted much debate about how best to protect
Australia from terrorism outside and inside our
borders, while preserving fundamental freedoms.
Cha pter 11 T h e B al i bombi ngs 247
2/9/09 8:02:16 PM
 s The attacks on the World Trade Center and
the Pentagon on 11 September 2001 (9/11)
mark the beginning of terrorism as a global
phenomenon.
s The Bali bombings was carried out by
Indonesian Islamic extremists on 12 October
Ch a p te r s u m m a ry
2002. Bombs were exploded at Paddys Bar
and the Sari Club, both popular with Australian
tourists.
s While no group took immediate responsibility
for the bombing, the radical Islamic
association, Jemaah Islamiyah, was suspected.
s Amrozi, Imam Samudra and Mukhlas stood
trial for the Bali bombings and were found
guilty. They were sentenced to death by ring
squad and executed in November 2008.
M u lt i p le - c hoi ce q ues ti ons
 Which of the following is NOT true of
terrorism?
A It can be utilised by fundamentalist
religious groups or political groups.
B It can be constituted by a threat of violence
directed at a population in order to induce
a government to change its policies.
C It is intended to cause death, not fear.
D It was used prior to 2001.
 Jemaah Islamiyah was:
A a peaceful Islamic organisation
B a foreign terrorist organisation that
established a branch in Indonesia
C under suspicion from the CIA for having
links with Al Qaeda well before the Bali
bombings
D the name of the Indonesian
counterterrorism force
 Which of the following alleged suspects
responsible for the Bali bombings ended up
walking free?
A Iman Samudra
B Abu Bakar Bashir
C Amrozi
D Ali Ghufron
248 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 248
s Non-legal responses include the establishment
of anti-terrorism media campaigns and the
establishment of memorials to the victims of
the bombings.
s The Bali bombings revived debate about the
death penalty.
s The Bali bombings saw the introduction of
Australian anti-terrorism legislation and the
strengthening of the enforcement agencies
responsible for homeland security.
s This legislation has come under criticism by
those who believe it jeopardises civil liberties
and key legal rights.
 Which of the following was not a result of
AustralianIndonesian cooperation since the
Bali bombings?
A Australian police involved in the
identication of victims of the Bali
bombings
B the establishment of the Australian Federal
Police
C the establishment of the Jakarta Regional
Cooperation Team
D the establishment of the Jakarta Centre for
Law Enforcement Cooperation
 Which of the following types of provision was
contained in the anti-terrorism legislation
passed by the Commonwealth after the Bali
bombings?
A detention of persons suspected of
terrorism offences for the purpose of
investigation
B detention of illegal immigrants from
countries known to harbour terrorists
C immunity of anti-terrorism legislation from
judicial review
D immunity of any Commonwealth employee
from prosecution
2/9/09 8:02:17 PM
 Ch a p te r s u m m a ry ta s k s

 Outline the situation regarding global
terrorism before the Bali bombings.
 What is the war on terror?
 What was known about Jemaah Islamiyah
before the Bali bombings?
 Explain the connection between Hambali and
the Bali bombings.
 Who was Abu Bakar Bashir and why was he a
suspect?
 Why are good relations between Australia
and Indonesia important from the Australian
governments point of view?
Top i c revi ew
L aw in p rac tic e
 Who were the main suspects arrested for the
Bali bombings?
 What was controversial about the trial of Abu
Bakar Bashir?
 Why was the Australian governments policy
towards the death penalty controversial?
What key changes in anti-terrorism legislation
have occurred in Australia since the Bali
bombings?

EX T EN DED R ES PON S E
 Discuss the anti-terror legislation, with
Marking criteria for the extended response
reference to the arguments for and against a
questions can be found at www.cambridge.
bill of rights.
edu.au/education. Refer to these criteria
 Outline how the Australian and Indonesian
when planning and writing your response.
governments have cooperated since the Bali
bombings.
 Outline the key stages in the investigation of
the Bali bombings.
 Contrast the war on terror and the rule of
law approaches taken in the ght against
terrorism.
 Describe the Australian governments policy
towards the death penalty.

Cha pter 11 T h e B al i bombi ngs 249

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 A r e a 2 : Eve n t s w h i c h h i g h l i g h t l e g a l i s s u e s

CHAPTER 12
The Port Arthur massacre
c hap ter ob j e cti ve s

In this chapter, students will:

s describe the key features of Australias courts and
parliaments
s identify the relevant legal terminology in
investigating and discussing case and statute law
s evaluate the effectiveness of Australias legal system
in achieving reform of the gun laws
s investigate the relationship between society and the
legal system
s recognise differing perspectives on issues related to
the reform of gun laws
s locate quality information from authoritative sources
using the internet.
k ey t er m s / v oc ab u l a r y

conspiracy theories
homicide
indictment
massacre
on remand
suicide

250 C a m b r i d g e L e g al S tu d ie s Pre limin ary

9780521734699part_03_3pp.indd 250 2/9/09 8:02:19 PM

 L aw in p rac tic e
rel ev ant l aw

SIGNIFIC AN T C AS ES
R v Bryant (Supreme Court of Tasmania, Cox CJ,
22 Nov 1996)

Cha pter 12 T he Port A rthur mas s acre 251

9780521734699part_03_3pp.indd 251 2/9/09 8:02:20 PM

 Int roduc t ion
On Sunday, 28 April 1996, a young Tasmanian
man called Martin Bryant ate a meal on the deck
of the Broad Arrow Caf located at the Port Arthur
historical site. When he was nished he entered
the caf, took a rie from his bag and started
indiscriminately shooting. He then moved to the
gift shop and then on to the car park, where he
pulled out an automatic weapon, ring at the
people there. Driving up the road, he continued
shooting. By the time he was nished he had killed
35 people.
massacre The horric massacre at Port Arthur sent
the intentional killing
shock waves around the nation. Mass murder on
of a large number of
people such a scale was something Australians had never
experienced before. The Port Arthur massacre also
set in motion a chain of events that eventually led
to a complete reform of Australias gun laws. This
reform revealed a signicant division in Australian
society between those for and against gun control.
Not everyone agreed with the reforms, or saw gun
control as a solution to the incidence of violence
4 H E 0O R T ! R T H U R M A SS A C RE
4HEEVENTS
The facts of the Port Arthur massacre reveal the
deliberate and intentional nature of Martin Bryants
crimes. On the morning of the massacre Martin
Bryant left his home in Hobart and drove to Port
Arthur, approximately one hours drive to the east.
Port Arthur is one of Australias most signicant
historic sites, as it was the site of one of Australias
most notorious convict settlements in the early
1800s. As was common, on the day in question
Port Arthur was overowing with tourists.
On his drive to Port Arthur that day Martin
Bryant stopped off at a guesthouse called Seascape
Cottage, where he entered and killed the owners,
David and Noelene Martin. Bryant then drove to
252 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 252
in society. Other critics even suggested that a
conspiracy was in play and that the massacre had
been orchestrated as a catalyst for law reform.
The swift response of the Australian legal system
to the problem of automatic weapons engendered
enormous international interest, winning both
praise and condemnation. In the United States,
anti-gun coalitions took heart and redoubled their
efforts towards reform of gun laws, while leaders
in the gun lobby thundered out warnings that the
United States government might try to do the
same as Australia.
The effectiveness of gun law reform in Australia
in the wake of the Port Arthur massacre stands in
stark contrast to the failure thus far in the United
States. In an international context, it also contrasts
with the failure to achieve an international
agreement on controlling the trade in small arms.
Most of the small arms available around the world
to every armed group, militia or criminal are used
to maim, injure or kill innocent civilians.
Port Arthur, arriving at about 1.10 p.m. He parked
his car and entered the Broad Arrow Caf, where
he purchased a meal and ate it on the deck. After
eating, Bryant returned the tray and returned to
his table where he pulled an AR-15 semi-automatic
rie from his bag. Entering the caf, he began
systematically shooting people at close range.
He moved into the gift shop and did the same.
Returning to his bag for additional ammunition,
he reloaded and returned to shoot the people in
the gift shop who had taken cover behind tables
and furniture. In the rst 90 seconds, 20 people
had been killed and 12 were injured.
Bryant continued into the car park behind the
caf. People could hear the commotion and had
taken cover behind the buses. He shot and killed
2/9/09 8:02:20 PM

Figure 12.1 The Penitentiary at Port Arthur, near where Bryant went on his killing rampage
another four people, wounding others. Bryant
continued shooting people on the grounds of the
historic site, then got into his car and drove past
the toll booth and onto the main road. Before
exiting, he had killed seven more people, including
Nanette Mikac and her two young daughters,
Madeline and Alannah, aged three and six. Bryant
chased Alannah behind a tree in order to kill her.
Bryant then drove up the main road to a service
station located at a General Store. He used the
BMW he was driving having killed the driver
and passenger and stolen it to block a Toyota
Corolla from leaving the pump area. He forced the
male occupant into the boot of the BMW, shot the
female occupant of the Corolla, dragged her body
out of the car. got into the drivers seat of the BMW
and took off down the road with the male hostage
locked in the boot. A police ofcer arrived soon
after and went in chase of Bryant a few minutes
later.
Bryant returned to the Seascape guesthouse
where he had begun his murderous killing spree
earlier that morning. At the house he took a hostage
inside and set re to the stolen BMW. At around
2 p.m. police ofcers arrived but were forced to
take shelter for a few hours in a ditch while Bryant
red on them with an automatic weapon. At 9 p.m.
a Special Operations police team arrived from
9780521734699part_03_3pp.indd 253
L aw in p rac tic e
Hobart. An 18-hour stand-off ensued because
Bryant claimed he had hostages. The following day,
Bryant set re to the house, taunting the police to
come in and get him. Eventually, Bryant ran from
the house with his clothes alight and was captured
by police. He was arrested and taken to hospital
under police guard.
During the initial period of his police question-
ing, Bryant admitted to hijacking the BMW car but
denied having shot anyone. He also stated that
he had not visited Port Arthur that day. Bryant
also claimed that the guns found by police were
not his. On 20 April, during a bedside hearing in
hospital where he was being held because of his
burns from the re, Bryant was charged with just
one murder. Police said additional charges would
follow. On 22 May, Bryant appeared via a video
link from Risdon Prison to the Magistrates Court
for a remand hearing.
During the following weeks, the police inves-
tigated all the events of the day, which resulted
in the nal charges being laid against him: 35
counts of murder, 20 of attempted murder, four
of aggravated assault, eight of wounding, three of
causing grievous bodily harm, one of arson and
one of unlawfully setting re to property.
Because of the magnitude of the killings, in a
place popular with Australian and international
Cha pter 12 T he Port A rthur mas s acre 253
2/9/09 8:02:21 PM
 Figure 12.2 People gather to pay tribute to the victims who died in the Broad Arrow Caf during the
Port Arthur massacre.
tourists alike, the Port Arthur massacre attracted
considerable media attention and debate. There
was interest also in Bryant himself. What kind
of person would do this? Was he of sound mind?
Those who knew Bryant were questioned by
journalists eager to paint a picture for the public
of who Martin Bryant was. A number of conicting
stories emerged. Distant relatives provided an
album full of photographs. Two of Bryants ex-
girlfriends provided some more. On 30 April the
rst photos of Bryant appeared on the front pages
of the nations press. The Australian newspaper
enhanced a photograph of Bryant that exaggerated
the whiteness of his eyes to give him an eerie,
spaced-out look. Debate about Bryants early life,
history of gun use, state of mind and motivations
remain today, as does curiosity about his life in
prison.
254 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 254
)NDICTMENTAND
SENTENCING
On 5 July 1996, a total of 72 criminal charges were
led against Martin Bryant in the Supreme Court
of Tasmania, in Hobart. Bryant did not enter a plea
to any of these charges.
The police obtained 551 statements from
witnesses in their investigations into the events of
that day in Port Arthur. In September 1996, Bryants
lawyer convinced him to plead guilty, and Bryant
was convicted on 13 November 1996 of an un-
precedented list of crimes. The judge commented
that he found it difcult to imagine a more chilling
catalogue of crimes that were carried out in a
coldly premeditated way, yet whose victims were
selected randomly. The judge remarked on the
continuing effects of the killings on survivors, the
2/9/09 8:02:23 PM
 families and friends of those whom he had killed,
the eyewitnesses, and the Port Arthur workers,
ambulance ofcers and police ofcers who had to
cope with the injured and dead.
On 22 November 1996, Bryant received 35
sentences of life imprisonment without parole for
the murders, plus 21 years for each of the other
counts in the indictment.
Refer to Chapter 12 on the Student CD
for information relating to R v Bryant
(Supreme Court of
Tasmania, Cox CJ, 22 Nov 1996).
)MPRISONMENT
After his arrest, Bryant was held in hospital under
police guard while he was treated for his burns.
While on remand for seven months until the
conclusion of his trial, Bryant was held in near-
solitary connement in a specially built cell at the
medium- to maximum-security Risdon Prison.
In 1997 Martin Bryant began his formal prison
sentence at the old Risdon prison hospital and
became one of its most notorious inmates. He
spent most of his time up to 2006 alone in his cell.
Though the prison authorities did not consider
Bryant to be mentally ill, they held the view that
the prison hospital was the safest place for him
because he was the most hated prisoner among
the inmates. Apparently, he had been the target of
a number of assaults and many of the inmates had
made death threats against him.
In 2006, the Tasmanian government moved
Bryant into the newly constructed Wilfred Lopes
Centre, a mental health facility a few hundred
metres from the prison. There are no guards
inside the 35-bed unit, only nurses, doctors and
support staff, and most inmates are not conned
to cells but free to wander around the complex.
The centre was substantially a hospital with a
therapeutic environment.
9780521734699part_03_3pp.indd 255
2 %3%!2 #(    
Read the sentencing report in R v Bryant and write a
report that addresses the following questions.
1 What comments did the judge make about Martin
Bryants intellectual ability and mental health?
2 Evaluate whether the judges observations about
L aw in p rac tic e
Bryants upbringing, his social isolation, his intellectual
ability and his mental health had any effect on the
sentence.
3 What comment did the judge make about remorse on
the part of Bryant?
4 What comment did the judge make about Bryant
having pleaded guilty?
Did this affect Bryants sentence?
5 What comments did the judge make in weighing up
Bryants crime with the mitigating factors such as his
upbringing, social isolation, intellectual capacity and
mental state?
6 What was the nal sentence?
indictment
information presented
for the prosecution of
one or more criminal
offences; a formal
written charge
on remand
(of an accused) in
custody pending and/
or during his or her
trial
Figure 12.3 Who is Martin Bryant?
Some relatives and friends of the slain Port
Arthur victims were outraged that Bryant would
be serving his sentence in such a facility. First,
they objected because they felt they should have
been told of the move prior to its occurrence.
Secondly, they believed that it was inappro-
priate for someone who had not been declared
insane at the time of conviction to be hospitalised.
The previous year, the states chief forensic
Cha pter 12 T he Port A rthur mas s acre 255
2/9/09 8:02:24 PM
 Figure 12.4 Bryants move from maximum security at Risdon Prison (above) to a mental health facility
angered survivors and family members of the victims of the Port Arthur massacre.
psychiatrist, Dr John Crawshaw, had stated that
Bryant did not meet the criteria for admission to
the Wilfred Lopes Centre.
Their biggest objection, however, was the idea
that Bryant would be free to move around hospital
freely when they believed that he should be
conned to a prison cell for the rest of his life.
In a leaked letter from Tasmanias Director
of Prisons, Graeme Barber, to Dr Crawshaw, the
reasons for transferring Bryant to the Wilfred
Lopes Centre were stated as concerns for Bryants
health, well-being and safety, and the need to
protect other inmates. Those opposed to the move
questioned the validity of these concerns, given
the recent $90 million redevelopment of Risdon
256 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 256
Prison. Bryant has been transferred back to
maximum security Risdon Prison on at least one
occasion, in response to the public outcry about
his being housed in the Wilfred Lopes Centre,
Bryant has attempted suicide a number of
times during his incarceration. As of May 2009, he
was being held at the Wilfred Lopes Centre, but in
isolation.
Motive
Since the day of the Port Arthur massacre there
has been speculation about Bryants motivation
for the killing spree, focusing in large part on his
childhood and his sanity. In 2006, Bryants lawyer,
2/9/09 8:02:28 PM
 John Avery, was reported to be writing a book
about his former client. Extracts were published
in the Bulletin magazine, along with transcripts of
conversations between Bryant and Avery, school
reports, and psychiatric assessments. Averys
behaviour and the magazines publication of the
material were condemned by the legal community
and many in the media as both professionally
questionable and inconsiderate of the feelings of
victims and their families. In 2009, journalists
Robert Wainwright and Paola Totaro published
Born or bred?: Martin Bryant, the making of a mass
murderer, again delving into his past.
One of the ideas about Bryants motives, put
forward by the defence psychiatrist, Paul Mullen,
was that Bryant was inspired by a lone gunmans
massacre of 16 children and one adult on 13 March
2006 in the Scottish town of Dunblane. Other
speculation has focused on Bryants below-normal
intellect and resulting social isolation and anger,
desire for attention, and a long-term grudge against
his rst victims, who had bought the Seascape
property that he had wanted to buy.
#ONSPIRACYCLAIMS
From the beginning, conspiracy theories have
surrounded the Port Arthur massacre. These
suggest that the massacre was actually carried out
by special operatives who framed Bryant. According
to some of the proponents of conspiracy theories,
particularly those that are strong opponents of
gun control, the purpose of the massacre was to
provide a platform for the federal government to
bring about gun control law reform.
A more recent conspiracy theory is that the Port
Arthur massacre was a plot to make it easier for
terrorists to take over Australia if all of our guns
have been conscated.
These theories do not enjoy any credibility in
legal or scholarly circles. Their merit may be at least
partly determined by noting which organisations
hold them. For instance, the Holocaust-denying
Australian-based Adelaide Institute continues to
peddle the conspiracy line.
9780521734699part_03_3pp.indd 257
2
%6 ) %7    
1 From the information above create a
timeline of events on the day of the Port
Arthur massacre until Bryants arrest.
2 Do you think people will ever know why
Martin Bryant did what he did? Why are a
L aw in p rac tic e
murderers motives a continuing source
of fascination?
3 What are the arguments for and against
Bryant serving part of his sentence in a
mental health facility rather than a prison?
What facts does the answer depend on?
Discuss in small groups.
4 If a convicted murderer is found to be sane,
what are the aims of the criminal sentence
imposed? Justify your answer.
2
%6 ) %7    
1 Identify the various conspiracy claims that
have surrounded the Port Arthur massacre.
2 How valid do you think these claims are?
3 In what ways do these claims dishonour the
memory of those who died in the massacre?
conspiracy theories
2 %3%!2 #(    
speculation that
The articles Bryant is an Overweight Zombie there is a cover-up
of the information
and Inside the Mind of a Mass Murderer both
surrounding a
attempt to provide some insight into who signicant event by
Martin Bryant is and explain his motivations. government or other
authorities
Answer the questions below.
1 How does Bryants mother describe her
sons imprisonment at Risdon Prison?
2 Do the comments made by the psychologist
and defence lawyer shed any light on what
motivated Bryant?
3 Is there any way to assess whether Bryant
feels any guilt for his actions from the
information in these articles?
4 Why is Bryants decision to enter a guilty
plea considered a controversial one?
5 Does speculation about a murderers
motivations serve any useful purpose?
Discuss.
Cha pter 12 T he Port A rthur mas s acre 257
2/9/09 8:02:29 PM
 - E C H A N I S M S F O R A C H I EV I N G J U S T I CE
A F T E R T H E 0O R T ! R T H U R M A SS A C RE
,EGALRESPONSES
'UNLAWREFORMIN!USTRALIA who legally owned guns. The most well-known of
BEFORE
By the 1980s there were approximately four
million privately owned guns in Australia and
about 700 gun deaths each year. These guns were
owned primarily for hunting and by farmers, who
used them to kill pests such as rabbits and feral
animals. The majority of gun deaths occurred due
to misuse of rie-type guns rather than handguns.
The gun laws were fairly weak and varied greatly
among the states and territories.
The gun debate in Australia started in Victoria
after two separate incidents in which 14-year-old
girls were accidentally killed by sporting shooters.
As a result, the Victorian government introduced
a shooters licence, which, while fairly weak by
todays standards, was nevertheless the rst
serious attempt to place some control on guns.
Then in 1987, Australia experienced six gun
massacres over the course of the year that resulted
Figure 12.5 The Sporting Shooters Association of Australia
opposed gun reforms.
258 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 258
in a total of 32 deaths. Each of these incidents was
premeditated and all were carried out by people
these occurred in Melbourne: the Hoddle Street
Massacre and the Queen Street Massacre. The
Victorian government acted swiftly to introduce
tougher gun laws. This action was opposed by
the Sporting Shooters Association of Australia,
an organisation formed to promote sports such
as target shooting and hunting, and which also
represents the interests of gun owners. The Asso-
ciation organised a protest march by 27 000 of
its members through the streets of Melbourne.
However, public sentiment against weak gun laws
meant that the Victorian government persevered
with its reforms.
These state reforms were complemented at the
federal level by the Hawke governments estab-
lishment of the National Committee on Violence,
which produced a report in 1990 containing 30
recommendations. Among these recommen-
dations was registration of high-powered ries.
The reforms that followed represented a signi-
cant step towards gun control in Australia.
In 1991, a gunman shot six people in a shopping
mall at Stratheld, NSW with an ex-military
semi-automatic rie that he had easily obtained.
Widespread outrage and debate followed. In 1992,
the New South Wales government introduced
tougher gun laws. Many pro-gun groups bitterly
opposed these laws, particularly since prior to the
Stratheld massacre the NSW Liberal government
had been ready to introduce softer laws. The
tougher gun laws led to the formation of the
Shooters Party in NSW. The Shooters Party has
had a seat in the NSW upper house since then.
Also in reaction to the tougher laws, the Sporting
Shooters Association of Australia (SSAA) began
looking to the National Rie Association (NRA) in
the United States for ideas on how to counter the
2/9/09 8:02:33 PM
 tougher legal regime for guns that was taking root
in Australia. The NRA is a powerful lobby group
with the goal of promoting rearm ownership
rights, relying on a broad interpretation of the
Second Amendment of the US Constitution, which
gives people the right to keep and bear arms.
Overall, the effect of the gun massacres that
occurred in Australia between 1987 and 1991 was
the development of public concern about guns,
which coincided with leaders who were willing to
enact the necessary legal reforms to put the nation
on the path of a sensible gun control regime.
'UNLAWREFORMAFTERTHE0ORT
!RTHURMASSACRE
By the 1990s, Tasmania was the odd state out in
terms of gun law reform. This made it quite easy
for Martin Bryant to purchase the guns that he
used to kill 35 people. In response to the public
outcry about gun control after the massacre,
Prime Minister John Howard initiated a discussion
LEGAL 2
on tougher gun law reforms. He was backed by
Deputy Prime Minister Tim Fisher. By the end of
1997, the state governments and federal govern-
ment signed the National Agreement on Gun Laws.
This agreement stated that:
s gun ownership is a privilege and not a right
s semi-automatic weapons must be strictly
controlled
s all guns must be registered
s guns must be stored securely
s there must be a 28-day cooling-off period when
buying guns.
Such proposals seemed sensible to the average
Australian; however, some National Party parlia-
mentarians and pro-gun lobby groups, such as
the SSAA, were horried and did everything they
could to stop the proposed new laws. It was in this
context that conspiracy theories about the Port
Arthur massacre sprouted. Some gun enthusiasts
began to argue that the Port Arthur massacre was
a government conspiracy and that Martin Bryant
was set up, all with the aim of using it as an excuse
to take guns away from all the law-abiding gun
owners in the country.
9780521734699part_03_3pp.indd 259
L aw in p rac tic e
Figure 12.6 When John Howard spoke to a hostile rally of pro-gun
enthusiasts he was wearing a bullet-proof vest.
.ON
%6 ) %7    
RESPONSES 1 Make a list of Australian
gun law reforms from 1980
!LANNAHAND-ADELINE to 1997.
Foundation 2 Investigate the gun
The deaths of 35 people at the massacres that occurred in
hands of Martin Bryant shocked Australia in 1987.
Austra lians. Of the stories that 3 Evaluate the effectiveness
emerged from that day, the murder of the governments
of Nanette Mikac and her two young response to public concern
daughters, Alannah and Madeline, about gun use.
aged 6 and 3 respectively, were
particularly devastating. Australians
were reminded of the fragile nature of human life
and the destructive potential of guns.
Walter Mikac lost his wife and daughters. These
events had a profound effect on another Australian
father of two young girls, Phil West, who along with
a small group of volunteers established the Alannah
and Madeline Foundation. The Foundations goal
is to keep children safe from violence. It does
not receive government funding, but relies on
fund-raising events, private grants and individual
donations to continue its work. The Foundation
runs programs to assist with the recovery of
Cha pter 12 T he Port A rthur mas s acre 259
2/9/09 8:02:34 PM

suicide
the intentional taking
of ones own life
homicide
the act of killing
another human being
260 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 260
children who have witnessed or experienced
violence, and to prevent violence and bullying in
schools. It also acts as a childrens advocate before
2ESPONSIVENESSOFTHELEGALSYSTEM
TOTHE0ORT!RTHURMASSACRE
'UNLAWREFORMIN year from suicides, unintentional killings and
Australia
From 1998, Australia experienced a marked
decrease in gun deaths when compared to the
1970s and 1980s. Handguns, however, appeared
as a new menace in 2002. In a shooting that
occurred at Monash University in Victoria that
year, two people were killed and ve injured
when a student, who was a licensed pistol shooter,
red handguns in an econometrics class, killing
two students and injuring four students and a
lecturer.
After the Monash shootings the Australian Crime
Commission was formed. It is a statutory body
that, in partnership with other law enforcement
agencies, develops strategies for dealing with
serious and organised crime. One of the rst things
on its agenda was illegal trafcking in handguns. It
had become apparent that there was an increase
in illegal handgun use.
While handguns were emerging as the new
threat in crime, the total number of deaths per
l eg a l l i n ks
A paper written in 2000, titled Australias
New Gun Control Philosophy: Public
Health Paramount, by Rebecca Peters
and Roland Browne in The Drawing Board:
An Australian Review of Public Affairs,
argued that Australia took a public health
approach to gun law reform instead of
a criminal justice approach. The authors
federal, state and local governments. HRH Crown
Princess Mary of Denmark is the International
Patron of the Alannah and Madeline Foundation.
homicides had dropped dramatically. In the
1980s the deaths per year from gun-related causes
averaged 700. By 1999 they were around 300 and
by 2003, gun-related deaths had dropped to 290
per year. This trend has continued since.
While Australia has directly addressed the
problem of gun deaths, other countries, such as
the United States, have not been as effective in
meeting this challenge. Political leaders in the
US have not been successful in countering the
strong pro-gun culture supported by the extremely
effective lobbying of the NRA. Gun massacres
remain a feature of life in the US, and the sale of
rearms continues to grow every year.
Refer to Chapter 12 on the Student CD
for information relating to death tolls
of the worlds worst shootings.
argued that this led to a more rational
philosophy of gun control, which is more
effective in reducing the number of
rearm-related deaths.
This can be downloaded from
the following web address: www.
australianreview.net/journal/v1/n2/
peters_browne.html
2/9/09 8:02:35 PM
 700

600

500

400 Total
T

L aw in p rac tic e
Suicide
S
300
Homicide
H
200
A
Accident
100 Other
O

0
1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001

Figure 12.7 Firearm related deaths in Australia, 19912001

2%3 % ! 2#(  2 %3%!2 #(    

2

%3%!2 # (    
Read the article Death tolls of the worlds 1 View the 2002 documentary Go to the Australian Institute of
worst shootings. Despite Australias Port Bowling for Columbine. What Criminology website, read the
Arthur massacre holding the number one are the main points it makes abstract for Firearm related
spot for the worlds worst single non- about guns in the United deaths in Australia, 19912001,
wartime shooting, the United States can be States? www.aic.gov.au/publications/
said to have the most frequent occurrence 2 For further information tandi2/tandi269.html, and
of shootings. about the lm and about answer the following questions:
1 Draw up a table showing country, the issue of guns in the 1 What has been the
gunman, location, weapons, killed and United States, go to the percentage decrease in
wounded. website for the lm: www. rearm-related deaths in the
2 How does Port Arthur compare with bowlingforcolumbine.com/ period 19912001?
other similar massacres? 3 For further information 2 What proportion of deaths
3 Identify similarities in location, about the issue of guns in involved males?
motivation of the killer, and the the United States, go to the 3 What age group has the
availability of weapons. website of the Brady Center highest risk?
4 Investigate the Second Amendment to to Prevent Gun Violence (an 4 What was the most common
the Constitution of the United States. NGO) at www.bradycenter. weapon used?
Why do you think gun law reform might org/ 5 What other weapon has seen
be more difcult to achieve in the US in 4 Research other media increased use?
light of this clause? reports and academic 6 Which accounted for the
5 Visit the website of the National Rie reports about the gun issue most deaths: homicide,
Association (NRA) at www.nra.org/. See in the United States. What accident or suicide? What
what information you can nd about how arguments and tactics are are the implications of
the NRA can continue to oppose gun law being used by those groups this nding for health
reform even in the face of a massacre like arguing for gun law reform? professionals?
the one at Columbine High School.

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 in particular, semi-automatic ries and shotguns.
Approximately 640 000 guns were collected under
the scheme. Victoria was the state to hand in the
greatest proportion of its registered weapons that
were on the prohibited list.
The long-term effectiveness of this scheme has
been closely monitored, with conicting reports
emerging. Some have indicated that because
Australia has not had a mass gun-related shooting
since Port Arthur, the buy-back scheme was a
success. Other reports have indicated that the
scheme has had no real effect on overall murder
rates. The only area where the National Firearms
Agreement the collective name for federal and
state gun reforms may have had some impact is
in suicide rates. Part of the difculty in measuring
the success of the buy-back scheme and its impact
on crime rates is that 90 per cent of homicides are
committed with unregistered rearms.

Figure 12.8 Guns handed in during the buyback scheme in 1997 were
destroyed at scrap-metal yards.
4HEGOVERNMENT
BUY
BACKSCHEME for Recent Reports on Australian Gun
As part of the reform of gun laws and culture in
Australia, a buy-back scheme and amnesty were
introduced by the Howard government in the
aftermath of the Port Arthur massacre. Money was
given to people who willingly handed over guns
that appeared on a list of prohibited weapons
2
%3%!2 #(    
The following newspaper articles from the
Sydney Morning Herald in 2006 give two
different perspectives on the effectiveness
of the guns buy-back scheme since 1996.
Locate the following articles at www.smh.
com.au and answer the questions below:
s Matthew Moore, Buyback has no effect on
murder rate, 24 October 2006
s Don Weatherburn, Study no excuse to
shoot down the law, 26 October 2006
1 Read the two articles listed above and
summarise their key points.
2 Find the commentary of the Gun Control
Australia on this debate by searching
Laws (Wednesday 10 January 2007) on
the Gun Control Australia website (www.
guncontrol.org.au).
3 Write a one-page report discussing
the effectiveness of the guns buy-back
scheme.

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 2%
3%!2#( 
Search the internet to nd the following
articles about a tragic shooting:
s Michelle Fenech and Rebecca Senescall,
Boy, 14, charged with murder over
friends shooting, Camden Advertiser,
8 December 2008
s Man charged after Josef Cruickshanks
shooting death, The Australian,
9 December 2008
1 What are the implications of this shooting
for gun laws, the policing of those laws
and the education of young people?
2 What has been the outcome of this
case? Locate the outcome by searching
for further media reports and court
transcripts.
3 Go to the Australian Institute of
Criminology website (www.aic.gov.au)
and nd out how many people die from
accidental discharge of a rearm each year.
4 Evaluate the implications for the legal
system in dealing with accidental death
from rearms. Suggest legal and non-
legal ways that this type of tragedy could
be minimised. For instance, is it a case
of further reform of the relevant laws,
greater police powers, education, or some
other means?
Co nc l u s io n
It can be argued that Australias legal system
has been effective in dealing with the issue of
deaths from rearms since tough measures were
introduced in the aftermath of the Port Arthur
massacre in 1996. The dangers posed by both
legal and illegal guns, however, are something
that we can never become complacent about.
Tragic accidents and suicides will continue to
occur and there will still be homicides committed
with rearms. Since 2002, the proliferation of
9780521734699part_03_3pp.indd 263
2 %3%!2 #(    
The problem of guns, or small arms as they are
known in international law, is one that plagues
the whole world. The main problem is that too
many guns are sold (both legally and illegally)
to people in poor countries characterised
L aw in p rac tic e
by civil unrest and poverty. Many of the
thousand people killed by rearms each day
are innocent women and children. There is an
attempt to establish an effective UN treaty
on small arms, but without the United States
backing, there is little chance of success.
1 Research the issue of the gun violence
around the world by going to the website
of the International Action Network on
Small Arms (an NGO) at www.iansa.org and
download its report titled Gun Violence:
The Global Crisis.
2 Go to the United Nations website (www.
un.org) and nd out about progress on the
small arms treaty.
handguns, both legal and illegal, has gained the
attention of our nations lawmakers. It seems that
gun-related issues are never far from resurfacing.
Our gun laws and enforcement measures need
to be constantly revisited to ensure they stay
abreast of changing trends in the use of rearms,
both nationally and internationally. This is an
issue in which there is always room for further law
reform.
Cha pter 12 T he Port A rthur mas s acre 263
2/9/09 8:02:38 PM
 s The Port Arthur massacre on 28 April 1996 is
the worst massacre in Australian history.
s The Port Arthur massacre set in motion a chain
of events that led to gun reform in Australia at
both state and federal levels.
s The Australian government when compared
to the governments of other countries,
Ch a p te r s u m m a ry
especially the United States can be said to
have acted quickly and decisively to enact gun
law reform.
s Media coverage of the Port Arthur massacre
was concerned with Martin Bryants motives
and trying to understand how and why he
would indiscriminately kill 35 people.
s On 22 November 1996, Bryant was sentenced
to 35 life sentences without the possibility of
parole.
M u lt i p le - c hoi ce q ues ti ons
 The high-powered semi-automatic weapons
that Martin Bryant used on 28 April 1996
were:
A imported from the United States
B bought legally in Tasmania
C acquired illegally
D illegal under existing Commonwealth
legislation
 Martin Bryants motive for his crime:
A was that he had been bullied and abused
as a child
B was that he had a hatred of foreign tourists
C was that he was insane and did not really
know what he was doing
D is not known for sure
 The most probable reason for the growth of
conspiracy theories about the Port Arthur
massacre is:
A Australian political leaders have refused to
speak publicly about the massacre.
B Martin Bryant was denied natural justice.
C pro-gun groups here and overseas oppose
attempts by governments in Australia to
toughen the laws on guns.
D Martin Bryant was not capable of using a
gun.
264 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 264
s Before 1996, gun laws varied greatly among
the states and territories. The Victorian
government introduced tougher laws after the
Hoddle Street and Queen Street massacres.
These reforms were opposed by the Sporting
Shooters Association of Australia.
s After the Port Arthur massacre, a National
Agreement on Gun Laws was signed by state
and federal governments at the end of 1997.
s From 1998, Australian has experienced a
decrease in gun deaths. Despite this decrease,
it is difcult effectively to measure the success
of the gun buy-back scheme.
 The toughening of gun laws in Australia since
1996 has led to:
A no change in the number of deaths from
rearms each year
B a doubling of the number of deaths from
rearms each year
C a decrease of the number of deaths from
rearms each year
D the elimination of all deaths from acts of
homicide using a gun
 Achieving reforms of the gun laws in the
United States is extremely difcult because:
A many politicians are against making
tougher laws
B the NRA has enormous cultural power and
political clout
C arms manufacturers successfully lobby
politicians against tougher laws
D all of the above
2/9/09 8:02:39 PM
 Ch a p te r s u m m a ry ta s k s
 Summarise the events on the day of 28 April
1996 in your own words.
 How was Martin Bryant brought to justice?
 Explain why Martin Bryant has been the
subject of controversy since his imprisonment.
 Explain why the Port Arthur massacre has
generated claims of a conspiracy.
Top i c revi ew
EX T EN DED R ES PON S E
 Describe the massacre at Port Arthur in 1996
and outline the responses of the police, the
courts and the political leaders.
 Discuss the controversies surrounding Martin
Bryants sentencing and his imprisonment.
 Evaluate the effectiveness of the Australian
legal system in dealing with the problem of
gun-related deaths.
 Explain the difculty of achieving reform on
laws related to small arms on the global level.
9780521734699part_03_3pp.indd 265
L aw in p rac tic e
 Outline some of the events that prompted
gun law reform in Australia before 1996.
 Outline the legal responses to gun-related
deaths in Australia before 1996.
 What was Tasmanias attitude to gun law
reform before 1996?
 What was the National Agreement on Guns
and how did it propose to toughen up the
gun laws in Australia?
 If gun law reform since 1996 has seen positive
results in Australia, why has the United States
been unable to do the same with its gun laws?
Marking criteria for the extended response
questions can be found at www.cambridge.
edu.au/education. Refer to these criteria
when planning and writing your response.
Cha pter 12 T he Port A rthur mas s acre 265
2/9/09 8:02:39 PM
 A r e a 3 : I n d i v i d u a l s o r g r o u p s i n c o n f l i c t w i t h t h e s t a te

CHAPTER 13
Mohamed Haneef
c hap ter ob j e cti ve s

In this chapter, students will:

s explore legal concepts and terminology with respect
to Mohamed Haneef and the law
s investigate the legal systems ability to address
issues relating to Mohamed Haneef
s explore the differences in the laws in relation to
Mohamed Haneef
s investigate the role of the law in addressing and
responding to change in relation to terrorist threats
s describe the legal and non-legal responses to
Mohamed Haneefs case
s evaluate the effectiveness of legal and non-legal
responses in achieving justice for Mohamed Haneef.
ke y t e r ms

Australian Federal Police (AFP)

Commonwealth Director of Public
Prosecutions (CDPP)
guilt by association
ministerial discretion
pro bono
reckless
separation of powers
surety
terrorism

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 L aw in p rac tic e
rel ev ant l aw

IM PORTA N T L EGIS L AT ION

Anti-Terrorism Act 2004 (Cth)
Anti-Terrorism Act (No. 2) 2005 (Cth)
Criminal Code 1995 (Cth)
Crimes Act 1914 (Cth)
Migration Act 1958 (Cth)
Terrorism (Police Powers) Act 2002 (NSW)
Crimes Legislation Amendment (Terrorism) Act
2004 (NSW)

SIGNIFIC AN T C AS ES
Haneef v Minister for Immigration and
Citizenship [2007] FCA 1273
Minister for Immigration and Citizenship v
Haneef [2007] FCAFC 203

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 ! B R I E F H I S TO R Y O F T H E - O H A ME D
(A NEEFC A SE
The case of Dr Mohamed Haneef is one of the
most highly publicised and politicised incidents
in recent Australian legal history. The facts of the
case and the context in which it took place are
not only interesting from a social and political
perspective, but also raise a number of important
legal issues for Australia relating to the separation
of powers, the presumption of innocence, and
guilt by association.
Dr Haneef, a medical doctor from India, rst
arrived in Australia in 2006 on a temporary skilled
working visa and was employed at the Gold Coast
Hospital in Southport, Queensland for almost a
year before his case became international news.
Dr Haneefs arrest and detention on 2 July 2007
on suspicion of terror-related activity (specically
in relation to the Glasgow International Airport
Figure 13.1 Mohamed Haneef Figure 13.2 The attacks on 11 September 2001 caused widespread fear and
fuelled the War on Terror.
268 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 268
attack) caused a great deal of controversy in
Australia and India. He was the rst person
arrested and detained under the Anti-Terrorism
Act (No. 2) 2005 (Cth) and the rst to have his
detention extended to twelve days under the Act
without being charged with a crime.
This chapter will explore the events that led
to Mohamed Haneefs arrest and detention and
analyse the legal responses to his case. In order to
understand these events, it is necessary to place
them in the broader social and political context:
a post-September 11 context characterised by
pervasive fear of further terrorist attacks against
Western democracies. This public anxiety
motivated governments to use the full force of
their legal systems and law enforcement agencies
to tackle the terrorist threat on their doorstep.
2/9/09 8:02:45 PM
 L aw in p rac tic e
Figure 13.3 Terrorist attacks in London, Madrid and Bali in the wake of the September 11 attacks
fuelled a climate of fear around the world.

4ERRORISM killing innocent civilians, they are intended to terrorism

Terrorist attacks are nothing new. Throughout
history, individuals, political and religious organi-
sations have committed terrorist attacks in an
attempt to achieve certain political and social objec-
tives. The word terrorism is often politically and
emotionally charged. Terrorist acts are designed to
coerce or intimidate a government or other group
into taking a course of action it would not otherwise
take. These acts are considered particularly heinous
because in addition to the crime of harming or
inuence political events. Most people believe that violence or the threat
of violence, directed
political change, on either a national or international at an innocent group
level, should take place as a result of discussion, of people for the
purpose of coercing
argument and negotiation, not violence.
another party, such as
As we saw in Chapter 11, terrorism has become a government, into a
a global phenomenon. The brief list of major course of action that
it would not otherwise
terrorist attacks below gives some idea of the
pursue
frequency and severity of attacks in the wake of
11 September 2001. Not only did these events kill
and injure thousands of innocent people, they also
fuelled a climate of fear around the world.

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 s 12 October 2002 Bali bombings
This attack took place in the tourist district of
Kuta on the Indonesian island of Bali, killing 202
people. Various members of Jemaah Islamiyah,
a radical Islamist group, were convicted in
relation to the bombings.
s 11 March 2004 Madrid bombings
This attack took place aboard four commuter
trains in Madrid, Spain, killing 191 people and
wounding a further 1800. In total, 10 separate
explosions were recorded. A loose group of
Moroccan, Syrian, and Algerian Muslims was
suspected of having carried out the attacks. As
of May 2009, 21 people, most from north Africa,
had been convicted in Spain for taking part in
the attacks, and more were still being arrested.
s 7 July 2005 and 21 July 2005 London
bombings
The 7 July attacks were a series of coordinated
suicide bombings on Londons public tran-
sport system. The bombings killed 52 people
and injured a further 700. A group of British
Muslims unhappy with Britains involvement in
the Iraq war was later identied as having been
responsible for the attacks.
The 21 July attacks were a second series of
four explosions on the London Underground
and on a bus. Fortunately, the main explosive
charges failed to detonate during this attack
and no casualties were recorded.
s 1 October 2005 second Bali bombings
These attacks occurred at two sites, Jimbaran
and Kuta, on the island of Bali. Twenty people
were killed and 129 people were injured by
three suicide bombers. As with the bombings
in 2002, Jemaah Islamiyah are believed to be
responsible for the attacks.
'LASGOW)NTERNATIONAL
!IRPORTATTACK
Following the spate of international terrorist attacks
described above, there was an attempted bombing
270 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 270
at Glasgow International Airport in Scotland, in the
afternoon of Saturday, 30 June 2007.
The incident involved a Jeep Cherokee, loaded
with canisters containing explosive propane gas,
which was driven into glass doors at the airport
terminal entrance. The propane canisters failed
to explode; however, the car was set ablaze. The
car was prevented from entering the terminal by
security bollards that had been installed outside
the entrance. Although nobody was killed at the
scene, the cars driver suffered severe burns
to 90 per cent of his body and later died, and a
number of injuries were sustained by members
of the public, including those who helped police
detain the cars occupants.
The attack was said to be the rst such terrorist
attack to target Scotland and was linked to a failed
attack in London the previous day. The London
attempt had involved two separate car bombs in
the centre of the city, which were detected and
disabled before they could explode. The Glasgow
attack occurred only three days after Gordon
Brown, a Scottish-born MP from Glasgow, was
appointed Prime Minister of the United Kingdom.
Within three days, eight people suspected of
involvement in the Glasgow and London incidents
had been taken into custody. The two men in the
car at Glasgow International Airport, arrested at the
scene, were identied as passenger Bilal Abdullah,
a British-born medical doctor of Iraqi descent, and
driver Kafeel (Khalid) Ahmed, an engineer who
was born in Bangalore, India, raised in Saudi Arabia,
and was studying for a PhD at Cambridge Univer-
sity in the UK. A suicide note left behind indicated
that the two had intended to die in the attack.
On 2 August 2007, Kafeel Ahmed died of the
third-degree burns he sustained, while Bilal
Abdullah was later found guilty in the UK of
conspiracy to commit murder and was sentenced
to 32 years in prison. Kafeels brother, Dr Sabeel
Ahmed, was also later sentenced in the UK to
18 months jail after pleading guilty to failing to
disclose information that could have prevented
2/9/09 8:02:49 PM
 an act of terrorism. Sabeel had received an e-mail
message from Kafeel and details of his will before
the attack, but was later cleared of having any
actual knowledge of the bombings.
-OHAMED(ANEEF
On 2 July 2007, two days after the attack, a 27-year-
old junior medical doctor, Dr Mohamed Haneef,
was arrested by the Australian Federal Police
(AFP) at Brisbane Airport, on suspicion of a link to
the Glasgow International Airport attack.
Dr Haneef was the rst person detained in
Australia under newly introduced anti-terrorism
laws. His detention without charge by police
became the longest in Australias recent history
and the case became a cause for controversy in
both Australia and India. Dr Haneef was eventually
released and all charges withdrawn, but the case
brought to light important questions about the
law and its application by both police and the
Australian government, and its implications for
Australian law will continue into the future.
"ACKGROUND
Mohamed Haneef was born in 1979 and raised
in Mudigere, a small town surrounded by coffee
plantations in the state of Karnataka, India.
Following his fathers death in a motor vehicle
accident when Mohamed was 18 years old, his
family moved to Bangalore, the state capital,
where he completed his education and eventually
attained a medical degree with rst-class honours
in 2002 from Dr B. R. Ambedkar Medical College.
After graduation, Haneef completed his intern-
ship in India, then moved to the United Kingdom,
where he worked in a hospital at Runcorn,
Cheshire in north-west England. After seeing an
advertisement in the British Medical Journal, he
applied to work in Australia under Australias
temporary skilled worker scheme and obtained a
job as a medical doctor at Queenslands Gold
Coast Hospital.
9780521734699part_03_3pp.indd 271
Dr Haneef arrived in Australia with his wife on
11 September 2006 and commenced work at the
Gold Coast Hospital on 18 September, moving into
a nearby apartment in Southport. His wife, Firdous
Arshiya, later became pregnant and in March 2007
she returned to India for family support during
L aw in p rac tic e
the nal months of her pregnancy. Dr Haneef
continued working at the hospital in Australia
and on 26 June 2007 their daughter was born in
Bangalore. Shortly afterwards a series of events Australian Federal
began that would change both their lives and leave Police (AFP)
the federal police
a permanent mark on Australias legal history. agency of the
Commonwealth of
Australia, set up to
$ETENTIONANDALLEGATIONS
enforce the federal
The Australian Federal Police arrested Dr Haneef laws and to protect the
at Brisbane Airport on 2 July 2007, following interests of Australia
both domestically and
information received from UK intelligence agencies
internationally
that Australian police believed linked him to the
Glasgow Airport attack. Some of the facts and
allegations that inuenced the AFPs belief were:
s Family relationship: Dr Haneef was a distant
relative of both the driver involved in the
Glasgow International Airport attack, Kafeel
Ahmed, and Kafeels brother Sabeel Ahmed,
who at that stage was only a suspect in the
case. Dr Haneef was the brothers rst cousin
once removed that is, they shared the same
great-grandparents.
s SIM card : During investigations into the
Glasgow incident, UK police discovered a
mobile phone SIM card in Sabeel Ahmeds at,
which was registered to Mohamed Haneef. Dr
Haneef had left the SIM card with friends in his
old at when he departed from the UK in 2006,
as it still contained credit. Sabeel Ahmed later
moved into the at.
One of the critical issues in the case was an
allegation made by the AFP and Commonwealth
prosecutors that the SIM card was actually found
inside the Jeep Cherokee used in the attack. This
allegation later turned out to be false. It was
revealed that UK police had originally told the
AFP that the card was in the Jeep, but this was
Cha pter 13 Mohamed H aneef 271
2/9/09 8:02:49 PM

Figure 13.4 The SIM card given to Sabeel Ahmed was one of the key
issues in the Haneef case.
later claried. Some concerns were expressed
about AFPs handling of the information.
s One-way ticket : When Dr Haneef was arrested
at Brisbane Airport he had a one-way airline
ticket to Bangalore, India, paid for by his father-
in-law. This created a perception that he was
attempting to ee the country and may have
been involved in the terrorist attacks. This
perception was strengthened when it was dis-
covered that Dr Haneef had received a phone
call from the brothers mother telling him that
the police wanted to speak to him about some
problem involving his SIM card. However, this
is still a tenuous connection.
As stated by Dr Haneef in his interviews with
police, there was another signicant reason for
his departure: he wanted to be with his wife
and newborn daughter, who had been born by
caesarean section only days before and was not
well. It is possible that he also felt frightened
272 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 272
and alone in Australia after he learnt there
could be a problem with his old SIM card, and
wanted the support of his family.
s Shared at: In a formal court statement, the
AFP claimed that Dr Haneef had told them
that he had lived in the UK at his Liverpool at
with two of the suspects of the Glasgow attack.
However, the record of Dr Haneefs interview
with police shows that he told them that he had
lived at the Liverpool at with several named
doctors, none of whom was a suspect in the
Glasgow incident. Dr Haneef had moved out of
this at before Sabeel Ahmed moved in. He had
visited Cambridge on two occasions in 2004
while in the UK to stay with Kafeel Ahmed, for
a total of six days. The error was not corrected
by the AFP.
s Contact with suspects: The AFP also alleged that
Dr Haneef had been in continuing contact with
both of the suspects of the Glasgow attack. Dr
Haneefs laptop was seized by police and details
of nancial transactions investigated. Links
between Dr Haneef and other terror suspects
were also alleged, and later proved to be false.
At the time of Haneefs arrest, the Federal
Police Commissioner, Mick Keelty, acknowledged
that he may have done nothing wrong and may at
the end of the day be free to go. Despite this, from
the time of his arrest to the day of his release on
27 July, Dr Haneef would spend a total of 25 days
in detention, only then to be released without any
charge. During this time the then Federal Minister
for Immigration and Citizenship, Kevin Andrews,
also made the controversial decision to cancel Dr
Haneefs Australian working visa, a decision that
was later appealed in the Federal Court of Australia
and overturned.
The case resulted in intense media speculation
and commentary and eventually a full inquiry into
the affair, ordered by the Federal Attorney-General
after the change in government following the 2007
federal election. A timeline of all the major events
in the case of Dr Haneef is set out on page 273.
Details and analysis of the legal elements of the
case are discussed below.
2/9/09 8:02:52 PM
 M OHAM ED H AN EEF : A T IMEL IN E OF EVENTS

Date %VENT
11 September 2006 Dr Mohamed Haneef arrives in Australia with his wife, Firdous
Arshiya, under a temporary skilled working visa.
18 September 2006 Dr Haneef commences work as a registrar at the Gold Coast
Hospital in Queensland.

L aw in p rac tic e
26 June 2007 Dr Haneefs wife, Firdous Arshiya, gives birth to their rst child in
Bangalore, India.
29 June 2007 An attempted terrorist attack in London fails after car bombs
intended to explode are discovered and disabled.
30 June 2007 Attack at Glasgow International Airport; a distant relative of Dr
Haneefs, Khafeel Ahmed, is identied as the driver.
2 July 2007 Dr Haneef is arrested by the AFP at Brisbane Airport about to
board a plane to Bangalore, India.
Dr Haneef is detained under Australias new anti-terrorism laws
pending further investigation.
14 July 2007 AFP formally charges Dr Haneef for the offence of recklessly 2 %6) % 7    

providing support to a terrorist organisation, punishable by up
1 Describe the
to 15 years imprisonment.
international events
16 July 2007 Brisbane Magistrates Court grants Dr Haneef bail under
leading up to the 2007
exceptional circumstances, with bail set at $10 000.
Federal Minister for Immigration and Citizenship Kevin Andrews Glasgow International
decides to cancel Mohamed Haneefs visa. Airport attack. What
Queensland Department of Health suspends Dr Haneefs were some of the
employment without pay pending the outcome of the charges. incidents that had
Dr Haneef remains in custody without exercising his bail.
occurred in Australia
18 July 2007 Dr Haneefs barrister, Stephem Keim SC, conrms that he leaked a and abroad?
transcript of the initial AFP interview with Dr Haneef to counter a
2 What was some of the
campaign of damaging allegations by law enforcement agencies.
evidence that police
27 July 2007 Commonwealth Director of Public Prosecutions withdraws the
alleged linked Dr
charge after the $3.2 million investigation against Dr Haneef,
Haneef to the Glasgow
citing no reasonable prospect of a conviction. This followed an
admission by the AFP the week before that the SIM card was not attack and attempted
found at the scene of the Glasgow attack as previously alleged. London bombings?
Dr Haneef is released from custody. How were these claims
29 July 2007 Dr Haneef voluntarily returns to India, no longer with a valid argued and do you
Australian working visa. believe they were
21 August 2007 Federal Court of Australia overturns the Minister for Immigration plausible?
and Citizenships decision to cancel Dr Haneefs visa. 3 Using the timeline
21 December 2007 Full Court of the Federal Court of Australia conrms the above, describe in
judgment overturning the visa cancellation. chronological order ve
13 March 2008 Federal Attorney-General announces an inquiry into the case of of the most important
Dr Haneef, called the Clarke Inquiry. events that occurred
21 November 2008 Findings and recommendations of the Clarke Inquiry are during the case of Dr
presented to the government. Haneef. Justify your
23 December 2008 Clarke Inquiry report is presented to the public. selection.

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reckless
able to foresee
negative consequences
TERRORISMLAWSAND
of doing something,
but carrying on with
the act regardless.
Recklessness implies
a state of mind that
is not as strong as
an intention to do
something, but for
some criminal offences
it is considered
equivalent to intention
for the purpose of
establishing fault.
274 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 274
- E C H A N I S M S F O R A C H I EV I N G J U S T I CE
I NT HE-OHA MED(A NEEFC A SE
The laws applied in the case of Mohamed Haneef
fall into three main categories:
s Anti-terrorism laws which had allowed Dr Haneef
to be detained for 12 days without charge
s Anti-terrorism laws under which Dr Haneef was
eventually charged, and later released after the
charge was dropped
s Australian migration law relating to the
cancellation of Dr Haneefs visa, and the later
overturning of that decision.
These laws and other factors that were inu-
ential in Dr Haneefs case, including the reactions
of politicians, the media and the community, are
examined below.
,EGALRESPONSES
One of the features of the case that made it so
controversial was the use of recently introduced
anti-terrorism laws.
The Anti-Terrorism Act (No. 2) 2005 (Cth) was
passed by the federal parliament in December
2005 amid much public and political debate. It
and other laws were introduced in an effort to
hamper the activities of any potential terrorists in
Australia, and it included numerous provisions that
were seen as a departure from accepted standards
of the criminal law and the separation of powers.
They were widely criticised as being rushed and
in one incident a condential draft of the legi-
slation was published online by the ACT Chief
Minister, Jon Stanhope, who stated that law of this
signicance made in this haste cant be good law. (No. 2) 2005 (Cth) only permits detention without
Nevertheless, the laws were passed without the
full support of the parliament or the public, and
without incorporating many of the amendments
and protections proposed.
Schedule 4 of the Act amended the Criminal Code
1995 (Cth). The changes included the introduction
of preventative detention that is, short-term
detention for named individuals without evidence
or charges. The object of these amendments
was to prevent an imminent terrorist act or to
preserve evidence of or relating to a recent terror-
ist act. Under a preventative detention order,
a person has the right to contact a lawyer, one
family member or household member, his or her
employer, and one employee or business partner,
but only to let them know that he or she is safe and
cannot be contacted. The person being detained is
not allowed to tell them that he or she is under a
preventative detention order.
The Act also introduced new crimes with
severe punishments for supporting or recklessly
providing funds to a potential terrorist. Under the
new s 103.2(1)(b) of the Criminal Code 1995 (Cth),
the individual did not need to know that the person
receiving the funds was a terrorist, only that he or
she was reckless about the possibility.
!NTI
$R(ANEEF
Following the terrorist attack at Glasgow Inter-
national Airport in June 2007, Mohamed Haneef
became the rst person in Australia to be detained
under the Anti-Terrorism Act (No. 2) 2005 (Cth). Dr
Haneef also became the rst person to have his
detention extended under the Act and the rst to be
charged with supporting a terrorist organisation.
Probably the most controversial aspect of the
case was those rst 12 days of Dr Haneefs
detention, as they involved detention of a suspect
without charge. Although the Anti-Terrorism Act
charge for 48 hours, complementary state legi-
slation implementing the preventative detention
scheme could be passed, under which someone
could be detained for up to 14 days without charge.
This was agreed between the Commonwealth and
state governments in September 2005. In NSW,
the Terrorism (Police Powers) Act 2002 (NSW), as
amended by the Crimes Legislation Amendment
2/9/09 8:02:53 PM
 (Terrorism) Act 2004 (NSW), permitted exactly
that, provided that the police obtained a preven-
tative detention order from the Supreme Court of
NSW to prevent an imminent terrorist act or
preserve evidence of a recent terrorist act.
Dr Haneef was not even permitted to contact his

L aw in p rac tic e
wife until he had been held in detention for nine
days. It was not until 14 July 2007 that Australian
Federal Police made the decision, following con-
sultation with the Commonwealth Director of
Public Prosecutions (CDPP), to formally charge
Dr Haneef under s 102.7(2) of the Criminal Code Figure 13.5 Dr Haneefs barrister, Mr Stephen Keim SC
1995 (Cth) with the offence of providing support
to a terrorist organisation, being reckless as to evidential links by the AFP and prosecutors, as Commonwealth
whether it is a terrorist organisation. outlined earlier in this chapter, suggests that the Director of Public
Prosecutions (CDPP)
This new approach represents a signicant case against Dr Haneef may have been one of independent
departure from accepted law regarding involun- guilt by association rather than any real evidence prosecuting agency
established by a federal
tary detention and the separation of powers linking him to the crime accused.
Act to prosecute
between the government and the courts. In the Perhaps an earlier indication of this was evident alleged offences under
case of Lim v Minister for Immigration [1992] HCA in the granting of bail by the Brisbane Magistrates federal laws

64, the separation of powers was interpreted Court to Dr Haneef following formal charges by separation of powers
the doctrine that the
by the High Court of Australia as preventing the AFP. Under the terrorism legislation, ostensibly
powers and functions
involuntary detention by the government except for the protection of the public interest, bail could of the judiciary are
as a consequence of a courts nding of criminal only be granted for terrorism offences under separate from those of
the legislature and the
guilt. Some exceptions are possible, for example exceptional circumstances. In an emotional executive
a short period of detention following a persons hearing during which Dr Haneef reportedly wept, guilt by association
arrest before he or she can practically be brought Dr Haneefs barrister, Stephen Keim SC, argued for criminal liability
before a court, or when awaiting trial on remand his release on bail, as the prosecutions case was imposed for associating
with another person
following a charge if bail is refused by a court. extremely weak. Commonwealth prosecutors who commits a
It has been argued that state legislation that argued that Dr Haneef should remain behind bars. crime, rather than for
committing that crime
gives a state court a power that is incompatible with The magistrate made the decision to grant Dr
oneself
constitutional restrictions on federal courts (such Haneef bail on the condition that he would provide
surety
as the power to grant a preventative detention a $10 000 surety. a sum of money
order) is also a new and disturbing departure from These deciencies highlight some of the provided to support
an accused persons
the principles enunciated in Lim and also in Kable dangers inherent in the anti-terrorism laws and
undertaking that he or
v DPP (NSW) [1996] HCA 24. their potential to severely restrict a persons she will return to court
As discussed above, serious deciencies were liberty. Following the bail hearing, the Queensland for hearing at a later
date, as a condition
later discovered in the evidence used by Australian Department of Health suspended Dr Haneefs of granting bail; it is
police to detain Dr Haneef and repeatedly to extend employment without pay pending the outcome of agreed that the money
that detention. The decision to charge Dr Haneef the charges. Although bail was granted, Dr Haneef will be forfeited if the
accused fails to appear
was also controversial and involved questions elected to remain in custody without exercising
about the quality of the evidence against him and his right to bail, probably due to the high dollar
the soundness of the decision by the AFP and amount required for bail and the governments
Commonwealth prosecutors. This is particularly decision to cancel Dr Haneefs visa, as discussed
relevant where the reliance on certain tenuous below.

Cha pter 13 Mohamed H aneef 275

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ministerial discretion
power granted to a
minister under an Act
to make a specied
decision or order
LEGALRESPONSES
276 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 276
-IGRATIONLAW
Another signicant aspect of the case involved
the cancellation of Dr Haneefs working visa
under Australian migration law. In Australia, the
governing statute is the Migration Act 1958 (Cth). It
is enforced by the federal Minister for Immigration
and Citizenship and overseen where necessary by
the federal courts.
Dr Haneef had been granted a business (long
stay) visa under the Act, which was valid from
30 August 2006 to 30 August 2009 and was
sponsored by his employer, the Queensland Dep-
artment of Health. On the day of Dr Haneefs bail
hearing on 16 July 2007, immediately following the
decision to grant Dr Haneef bail, the then Minister
for Immigration and Citizenship, Kevin Andrews,
used his power of ministerial discretion under
s 501(3) of the Act to cancel Dr Haneefs visa.
The direct consequence of the Ministers decision
was severe. As a result of his visa being cancelled,
Dr Haneef effectively became an unlawful non-
citizen under the Act, which meant that he
became liable to detention by the Department of
Immigration pending his removal from Australia.
In effect, this meant that if Dr Haneef accepted his
right to bail and release from custody, he could be
liable for further detention under different laws.
The grounds for this decision were questioned
not only by Dr Haneefs legal team but by many
commentators. The Minister had made his
decision on the basis that Dr Haneef had failed
the character test necessary for the granting of
the visa, based on a reasonable suspicion that he
had an association with terrorists. Dr Haneefs
legal team brought the decision before the Federal
Court of Australia for review.
The charges against Dr Haneef had been
withdrawn by the Commonwealth Director of
Public Prosecutions on 27 July 2007, citing no
reasonable prospect of a conviction, and Dr
Haneef was immediately released from custody
and his passport returned to him. The Minister
stated that he was seeking advice on Dr Haneefs
visa and did not intend to detain him but that he
had a responsibility to act in the national interest.
Without a valid Australian visa to remain, and
most likely without any desire to remain after the
events, Dr Haneef voluntarily returned to India on
29 July 2007.
However, the Federal Court case challenging the
Ministers decision went ahead and on 21 August
2007, Justice Spender of the Federal Court of
Australia set aside the decision on the basis that
the Minister had erred in applying the wrong test
of association. Justice Spender also noted that the
circumstances had since changed.
The government appealed to the Full Court of
the Federal Court but the judgment was upheld on
21 December 2007. In an interesting comment in
the case, Justice Spender had questioned the char-
acter grounds of associating with terrorists under-
pinning the Ministers decision. Unfortunately I
wouldnt pass the character test on your statement
because Ive been associated with people suspec-
ted of criminal conduct, Justice Spender said to the
Immigration Departments counsel.
2
%6 ) %7    
1 What were the three main categories of
laws applied in the case of Dr Haneef?
2 What were the anti-terrorism laws applied
in the case of Dr Haneef and why were they
controversial?
3 Describe the legal events surrounding the
cancellation of Dr Haneefs Australian visa.
Do you think that the cancellation was
justied on the facts?
.ON
-EDIAANDPOLITICS
As is true of many high-prole cases, the Australian
media were very inuential in shaping public
opinion with respect to the case of Dr Haneef.
Media coverage at the time was generally highly
critical of the governments position and the
lack of evidence in the case and there was much
analysis of the impact of the governments new
anti-terrorism laws.
2/9/09 8:02:56 PM

Figure 13.6 The media in Australia were very inuential in shaping public opinion in the Haneef case.
Perhaps the most important event in the
reporting of the case occurred when Dr Haneefs
barrister, Stephen Keim SC, leaked a 142-page
transcript of Dr Haneefs initial interview with
the AFP to the media. According to Keim, the
transcript clearly showed the very thin case
that the police are claiming to have. Both John
Howard, then Prime Minister, and Mick Keelty,
then Federal Police Commissioner, expressed
outrage at the leak.
Before the source of the leak was identied,
Prime Minister Howard had publicly condemned
it, saying, Whoevers been responsible for leaking
this document is not trying to make sure that
justice is done. Whoevers responsible for this is
trying to frustrate the process and it should be
condemned.
Initially, Mr Keelty took the unusual step of
publicly criticising Mr Keim and suggested that he
would pursue legal action to charge the source of
the leak with contempt of court because the court
proceedings had already begun and because the
leak undermined judicial process.
Mr Keim, however, successfully argued that
his client, pursuant to the legislation under which
he was detained and questioned, has a legal right
9780521734699part_03_3pp.indd 277
L aw in p rac tic e
to a copy of that document, and that document
was provided to him, without any restrictions
whatsoever. He was perfectly entitled, through me,
to release that document. Mr Keim argued that
the government was applying a double standard,
in that government authorities had also leaked
parts of the transcript to the media to suggest that
the case against Dr Haneef was stronger than it
actually was. Mr Keim was later cleared of any
professional misconduct and was given a civil
rights award for his effort. He was also named an
Australian of the Year by the Weekend Australian
magazine.
Following Dr Haneefs release on 27 July 2007,
in an interesting comment on political inuence
in the case, prominent barrister Lex Lasry QC
stated that bungles in the case against Dr Haneef
may have been caused by political pressure in an
election year. I think there were pressures probably
on the ofces of the DPP and to some extent on
the AFP, probably resulting in converting whatever
suspicion there was into a charge which was not
supported by any evidence, he said. I think this
case demonstrates a couple of things and one of
them is that politicians ought to keep out of these
cases and leave the police to do their work.
Cha pter 13 Mohamed H aneef 277
2/9/09 8:02:58 PM

pro bono
a Latin term meaning
for the public good,
used to describe
work that is done by
a lawyer or barrister
on a voluntary basis
and without payment,
where there are issues
of community concern
or signicant effect on
disadvantaged groups
Figure 13.7 Community support for Haneef during the case was strong.
278 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 278
legal links
The ABC closely covered the issues
in the Mohamed Haneef case as they
developed. An episode of its current
affairs show Four Corners was aired on
1 October 2007 discussing the issues in
the case. The following ABC Four Corners
#OMMUNITYSUPPORT
Throughout the case, a number of political
organisations, community groups and profession-
als provided assistance as well as commentary.
website is devoted to the Mohamed
Haneef case and includes a viewable
copy of the original episode: www.abc.
net.au/4corners/special_eds/20071001/
haneef/default.htm
The support of people in the legal community is
evident from the fact that Haneefs legal team,
including Stephen Keim SC, agreed to represent
him pro bono, that is, at no cost.
2/9/09 8:03:00 PM
 In addition, many other organisations provided
valuable commentary and expert opinion to media
reporters and in some cases staged demonstrations
in support of Haneef. Some of these organisations,
including links to their respective websites, are
listed below in the Legal links box.
Members of the Australian public ercely
debated the case, with some arguing that the
federal government would not have treated
someone in this fashion if they knew he was
innocent, and others suggesting that the Howard
government was trying to capitalise on terrorism
to gain support in an election year.
l eg al l in k s
Visit the websites below and
investigate the purpose of
the organisations. Discuss the
contributions each organisation
may have made to the case of
Dr Haneef.
Australian Lawyers Alliance:
www.lawyersalliance.com.au
Amnesty International
Australia: www.amnesty.org.au
Australian Muslim Civil Rights
Advocacy Network: amcran.org
Law Council of Australia:
www.lawcouncil.asn.au
2ES P O N S I VE N ESS O F T H E L AW
One of the most signicant outcomes of the case
of Dr Haneef was the decision by the newly elected
Rudd government to institute an inquiry into the
whole affair, to establish the facts and determine
what went wrong in the application of the laws.
9780521734699part_03_3pp.indd 279
)NTERNATIONALRESPONSE
The Haneef case was not only controversial in
Australia, but also received widespread attention
internationally, particularly in Dr Haneefs home
country, India and not surprisingly in the country
where the original terrorist attacks took place, the
L aw in p rac tic e
United Kingdom.
In the UK, a Guardian editorial condemned the
grubby Howard governments demonising of
Haneef as irresponsible electioneering to push it
to victory in the federal elections of 2007. In India,
The Hindu newspaper accused the Australian
government of high-handed action verging on
vengefulness. The paper, usually more restrained,
called the investigation a shambles and claimed
the Howard governments ght against terrorism
was based on an authoritarian mind-set and
indeed bloody-mindedness.
The Indian government became heavily
involved in the case following a direct appeal to
the Indian Prime Minister by Dr Haneefs wife,
Firdous Arshiya. It was reported that Prime
Minister Manmohan Singh was
so worried about Dr Haneef after 2
%6) %7    
this that he was unable to sleep. 1 How did the media shape
The Indian involvement resulted public opinion in response to
in direct discussions between the the case of Dr Haneef? Were
two countries about the facts and there any allegations about
progress of the case and included political inuence on the case?
a number of exclusive visits to Dr 2 How did the national and
Haneef by ofcials from the Indian international community
High Commission in Australia respond to the case of Dr
while Haneef was still in custody. Haneef? Were the responses
negative or positive?
The inquiry would include recommendations as
to how to improve the law and law enforcement
agencies, to prevent such a situation occurring in
the future.
Cha pter 13 Mohamed H aneef 279
2/9/09 8:03:01 PM
 4HE#LARKE)NQUIRY stances would not occur again. The main
On 13 March 2008 the Commonwealth Attorney- recommendations of the report included:
General, Robert McClelland, announced an inquiry s that the provisions of the Crimes Act 1914 (Cth)
into the arrest, detention, charging, prosecution in relation to terrorism offences, introduced by
and release of Dr Haneef, to be conducted by the the Anti-Terrorism Act 2004 (Cth), be compre-
former NSW Supreme Court Justice, the Hon. John hensively reviewed by an independent reviewer
Clarke, QC. s that the government take steps to review
The Clarke Inquiry lacked a number of powers: and determine ways to clarify the roles and
for example it had no power to compel witnesses responsibilities of different government
to answer questions and was impeded by the agencies relating to counterterrorism and the
classied status of documents and difculties information that they collect
negotiating the national security concerns of s amending s 102.7 of the Criminal Code 1995
the various agencies. Despite these limitations, (Cth) under which Dr Haneef was charged, to
the report included a number of crucial ndings remove uncertainties about the element of fault
and recommendations. One of the main ndings or intention
was the conclusion that the s recommendations to inform the Minister for
material used as evidence in Immigration and Citizenship of the relevant
2%3

% ! 2#(  the case against Dr Haneef was evidence in a counterterrorism case, to ensure
Conduct an internet search based completely decient. The report proper cooperation regarding visas
on the links above relating to the stated that the main AFP ofcer s development of ways to educate ofcers
governments response to the responsible for the investigation, involved in counterterrorism cases about the
Clarke Inquiry and answer the Commander Ramzi Jabbour, had various roles and responsibilities of agencies and
following questions: lost objectivity and was unable departments, and about the investigation and
1 Has the government made any to see that the evidence he prosecution of terrorist offences in Australia.
changes to the anti-terrorism regarded as highly incriminating For the most part, the government has agreed
laws following the ndings of in fact amounted to very little. to the recommendations made by the Clarke
the Clarke Inquiry? The report included numerous Inquiry. However, many of the recommendations
2 Has the government recommendations to improve are complex and will take time to implement. At
implemented any of the the effectiveness of the laws the time of publication, it remains to be seen which
recommendations of the report? and ensure that similar circum- of these changes will be put into practice.
l eg a l l in ks

The ofcial website of the Clarke Inquiry The Australian governments ofcial
into the case of Dr Mohamed Haneef response to the Clarke Inquiry is available
has the inquirys terms of reference, on the Commonwealth Attorney-Generals
statements and transcripts, submissions website.
from all parties concerned in the case,
and a copy of the nal report: www.
haneefcaseinquiry.gov.au/www/inquiry/
haneefcaseinquiry.nsf/Page/Home

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 2ESPONSETOTHE#LARKE with the Labor Party to call publicly for a govern-
)NQUIRY2EPORT
Following the public release of the Clarke Inquiry
Report on 23 December 2008 and the governments
response, a number of events relevant to the case
have taken place.
In an interview with ABC Radio shortly after the
release of the report, Dr Haneef said, Im very,
very pleased and very relieved. Dr Haneef, then
based in Dubai, said the Clarke Inquiry had nally
proved his innocence. While he said it was too
early to talk of a return to Australia, he suggested
that an apology from the Australian government
would be appreciated. He said that the case had
done great damage to his reputation, not only in
Australia but also in India and around the world.
Dr Haneefs legal team, including Bernard
Murphy, chair of the national law rm Maurice
Blackburn, and barrister Stephen Keim, SC, have
also gone on record several times calling for a
public apology from the government. In December
2008, Queensland Premier Anna Bligh broke ranks
4HEFU T U REFOR!U S T RA LIA
The Clarke Inquiry included some damning
condemnation of the handling of the Haneef case
and of the laws used to detain and prosecute him.
This is particularly true of the controversial anti-
terrorism laws introduced in 2004 and 2005, as
discussed above.
Media commentary and the involvement of
interested groups has increased public awareness
of the laws and shed light on some of their de-
ciencies and the potential dangers that the
changes to the law represent. The question that
must be considered is whether these laws are
truly necessary responses to terrorist threats. But
these threats cannot be seen in isolation from the
impact of such laws on the liberty of the individual
and the rule of law. The case of Dr Haneef provides
9780521734699part_03_3pp.indd 281
ment apology to Dr Haneef. As yet, however, no
formal apology has been made.
Dr Haneef also said that he may seek sub-
stantial compensation for loss of income and
damage to his reputation. No announcement has
L aw in p rac tic e
yet been made by the government relating to any
compensation payable to him.
More recently, on 2 September
2009 Mick Keelty announced his
intention to resign from the position 2 %3%! 2# (    
of Australian Federal Police Com- Search the internet for any
missioner. While some, including recent developments related
the Commonwealth Attorney- to the Dr Haneef case.
General Robert McClelland, rejected 1 Has Dr Haneef received
suggestions that the fallout from the any compensation from the
Clarke Inquiry was responsible for Australian government for
his resignation, many others, includ- his time in detention?
ing Dr Haneefs lawyers, welcomed 2 Has the government made
the decision, stating that the AFP any formal apology to
had been an organisational disaster Dr Haneef or to the public
under Mick Keelty. for the AFPs handling of
the case?
a clear illustration of the dangers inherent in such
laws and their potential for abuse. It remains to be
seen whether there will be changes to the laws as
recommended by the Clarke Inquiry.
One nal comment on the case was that
of former Queensland Premier Peter Beattie,
speak ing after Dr Haneefs release on 27 July
2007. Congratulating the Commonwealth DPP
for reviewing and dropping the charges against
Haneef, Beattie reiterated the importance of
people having the guts to stand up and make the
point about unjust laws. The outcome of the case
proves the system works this is an indication
that Australia is fair-minded, he said, and as such,
it vindicates the Australian way of life.
Cha pter 13 Mohamed H aneef 281
2/9/09 8:03:03 PM
 s Recent terrorist attacks have changed legal
and political systems around the world and
governments have gone to various lengths to
try to eradicate terrorism.
s Individuals such as Mohamed Haneef who are
accused of terrorist activities may be subject
to questionable legal processes as a result of
Ch a p te r s u m m a ry
governments zeal to catch and prosecute.
s The Australian government recently
introduced new anti-terrorism laws and Haneef
was the rst person to be detained under the
Anti-Terrorism Act (No. 2) 2005 (Cth) and the
rst to be charged with supporting a terrorist
organisation.
s Some Australian counter-terrorism laws can be
in conict with fundamental principles relating
to the rights of individuals.
M u lt i p le - c hoi ce q ues ti ons
 The granting of bail in the Mohamed Haneef
case demonstrates:
A the seriousness of the charge
B support for the anti-terrorism laws
C a lack of sufcient evidence
D none of the above
 Dr Haneef was charged on the basis of:
A a SIM card given to his relative
B involvement in the Madrid bombings of
2004
C the cancellation of his working visa
D all of the above
 The Clarke Inquiry found that:
A Dr Haneef was guilty of aiding terrorism
B the evidence against Dr Haneef was not
sufcient
C the AFP and ASIO had acted properly in
the case
D Minister Andrews had no right to cancel Dr
Haneefs visa
282 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 282
s The Commonwealth Director of Public
Prosecutions eventually withdrew the charges
against Haneef, citing no reasonable prospect
of a conviction.
s The decision of the Minister for Immigration
and Citizenship to revoke Haneefs visa was
overturned by the Federal Court.
s There was considerable media, legal and
community support for Dr Haneef in Australia
and internationally.
s While the laws have come under close scrutiny
and criticism, debate continues over whether
they are adequate to deal with terrorist threats
while upholding the legitimate rights of
individuals.
 The Minister for Immigration and Citizenship
cancelled Dr Haneefs visa because:
A Dr Haneef had overstayed his visa
B Dr Haneef had given his relative his old
SIM card
C Dr Haneef was involved in the Glasgow
International Airport attack
D Dr Haneef failed the character test
 The new anti-terrorism laws challenge the rule
of law because:
A suspects like Dr Haneef can now be
arrested arbitrarily and investigated for a
terrorist activity
B state laws have been superseded
C bail now has a higher threshold
D sedition now has a new denition
2/9/09 8:03:03 PM
 Ch a p te r s u m m a ry ta s k s
 Outline the alleged links between Dr Haneef
and his cousins in the United Kingdom.
 What do you understand by the term guilt by
association? How does this term apply to the
Haneef case?
Top i c revi ew
EX T EN DED R ES PON S E
 Australias new terrorist laws severely erode
civil liberties. Discuss this statement in light
of the Haneef case.
 Consider whether Dr Haneef should be able
to receive compensation from the federal
government. Explain why and discuss
what amount you think would be fair and
reasonable.
9780521734699part_03_3pp.indd 283
L aw in p rac tic e
 Comment on the Ministers decision to cancel
Dr Haneefs visa. What was the reasoning
behind the decision and do you think it was
justied?
 Explain the circumstances of Dr Haneefs
detention for 25 days. Under what different
laws was he detained?
 Do you think we need different laws for terror
suspects? Explain your response using the
Haneef case as an example.
Marking criteria for the extended response
questions can be found at www.cambridge.
edu.au/education. Refer to these criteria
when planning and writing your responses.
Cha pter 13 Mohamed H aneef 283
2/9/09 8:03:03 PM
 A r e a 3 : I n d i v i d u a l s o r g r o u p s i n c o n f l i c t w i t h t h e s t a te

CHAPTER 14
Outlaw motorcycle
gangs (OMCGs)
chap ter ob j e cti ve s

In this chapter, students will: s explore the different legal approaches adopted
s explore the background and issues related to by federal and state legal systems in relation to
organised crime and OMCGs in Australia OMCGs
s identify and apply legal concepts and terminology s evaluate the effectiveness of legal and non-legal
relating to OMCGs and the law responses in achieving justice in relation to OMCGs
s investigate the legal systems ability to address in conict with the state and the public.
issues relating to OMCGs
s explore the different possible approaches of the
legal system to organised crime and OMCGs
s discuss the legal issues that these approaches will
create
s describe the legal and non-legal responses to
OMCGs
ke y t er m s

bookmaking organised crime

chapter patch
coercive powers task force
colours rule of law
control order
digital piracy
draconian laws
extortion
guilt by association
money laundering
outlaw motorcycle gangs
(OMCGs)

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 L aw in p rac tic e
rel ev ant l aw

IM PORTA N T L EGIS L AT ION

Serious and Organised Crime (Control) Act 2008
(SA)
Crimes Legislation Amendment (Gangs) Act
2006 (NSW)
Crimes (Criminal Organisations Control) Act
2009 (NSW)

SIGNIFIC AN T C AS ES
The Milperra Massacre Trials

Cha pter 14 Outla w m otorcycl e gangs 285

9780521734699part_03_3pp.indd 285 2/9/09 8:03:05 PM


outlaw motorcycle
gangs (OMCGs)
organisations whose
members use
the structure of a
motorcycle club as
a front for criminal
activity
money laundering
disguising money
obtained from illegal
activities to make it
appear legal
extortion
obtaining money or
property from a person
or group by force,
intimidation or illegal
power
organised crime
illegal activities
organised by criminal
groups or enterprises,
most commonly for the
purpose of generating
nancial prot
Figure 14.1 On 22 March 2009, Anthony Zervas was brutally
murdered at Sydney Airport. The incident sparked a full review of
the legislation relating to OMCGs in NSW.
286 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 286
/ U T L AW M O T O R C YC L E GA N G S
I N!U S T RA L IA
Recent high-prole incidents involving members
of outlaw motorcycle gangs have attracted the
attention of the media, law enforcement bodies
and legislators across Australia. In one of the most
recent incidents, a 29-year-old man, Anthony
Zervas, was killed at Sydney Airport on 22 March
2009 after being brutally bashed in the head with
a metal pole. The incident involved an attack
by members of the Sydney-based Comanchero
motorcycle club against members of the widely
known Hells Angels club. The man killed was
returning to Sydney from a party in Melbourne
with his brother and a friend, both of whom were
Hells Angels members.
The incident sparked public debate about the
rising crime associated with outlaw motorcycle
gangs (OMCGs) in Australia, amid fears that
the incident could ignite an all-out war between
members of rival motorcycle gangs.
According to the Australian Crime Commission
(ACC), a federal statutory body established to
investigate and combat serious crime, OMCGs
represent a real and present danger to the
Australian community. In New South Wales
between October 2008 and March 2009, 185 gang
members were charged with 527 offences relating
mainly to violence, drugs and weapons.
The ACC estimates that there are currently 39
active OMCGs in Australia, with approximately
3300 full members, and with strong and complex
criminal networks that operate in many illicit
markets throughout Australia. Reports suggest
that the groups main areas of criminal operations
are manufacturing and distributing illicit drugs,
money laundering and extortion.
OMCGs are not specic to Australia but are
present in many countries around the world. Some
of the most well-known OMCGs internationally
include the Hells Angels and the Bandidos. Some
19 groups are estimated to operate in New South
Wales alone, with some other famous groups
including the Comancheros, the Finks, the Rebels
and the Gypsy Jokers.
This chapter investigates some of the issues
relating to OMCGs and organised crime in
general, and discusses some of the complex legal
mechanisms that have attempted to deal with the
issues.
/RGANISEDCRIME
Organised crime can be dened as illegal activities
organised by groups of criminals, most commonly
for the purpose of generating nancial prot.
The most well-known organised crime groups in
existence today are the Maa, particularly the
Sicilian and American Cosa Nostra, the Japanese
Yakuza, the Chinese Triads and the Colombian
drug cartels. It has been popularised by books,
2/9/09 8:03:08 PM
 movies and television shows, such as the HBO
series The Sopranos, about an American Maa
family, and the Australian series Underbelly and A
Tale of Two Cities, which are loosely based on the
gangland wars in Melbourne in the 1990s and in
New South Wales and Victoria in the 1970s.

L aw in p rac tic e
Organised crime has a long history worldwide.
Throughout history pirates, highwaymen and ban-
dits have attacked trade routes and roads to steal
and prot from the goods being transported. Many
people are familiar, for example, with the stories of
the Kelly Gang in 19th-century Australia.
Smuggling and organised drug-trafcking rings
have also been common in many countries. Some
of the current criminal organisations in Italy and Figure 14.2 Top members of the Yamaguchi-gumi, Japans largest
Japan can be traced back over many centuries. Yakuza organisation
Today, organised criminal groups operate in
various areas of illegal business. The most common same brush without justication or fair process. digital piracy
unauthorised
of these are: With motorcycle gangs in particular this can be
reproduction and
s drug manufacture and distribution a signicant problem: simply being a member of distribution of digital
s extortion and money laundering one of the many legitimate motorcycle gangs may music, software, videos
or other material, often
s prostitution arouse unfounded suspicion from the public, or
for prot
s people smuggling even the police, that an individual is involved in
bookmaking
s environmental crimes such as the dumping of some kind of wrongdoing. the activity of
toxic waste calculating odds on
sporting and other
s counterfeiting of money events and taking bets
s digital piracy
s illegal bookmaking and gambling.
Figure 14.3, published by the ACC, shows
the most common areas of organised crime in Firearms Fraud
Austra lia today. As the chart shows, the largest is
illegal drug trading, but also common are money
High-tech
ech cy
cyber
yber
laundering and fraud. A new area is technology
crime, such as internet and credit card fraud.
Money
OMCGs have been identied in Australia as Other laundering
operating in some of the areas of organised
crime discussed above. However, it is important
to note that simply belonging to, participating in
or associating with one of these groups does not Drugs
necessarily mean that a person has committed
any crime. It may only be a small number of
individuals in such a group, rather than the
organisation as a whole, who are involved in
any illegal activities. There is a serious danger
that all members might be painted with the Figure 14.3 Illicit markets in which organised crime groups operate

Cha pter 14 Outla w m otorcycl e gangs 287

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 -OTORCYCLECLUBS
Motorcycle clubs are not new. The rst motorcycle
was invented in 1885 in Stuttgart, Germany and
motorcycles were commercially available by 1894.
One of the oldest motorcycle clubs, the Yonkers
Motorcycle Club, was founded in Yonkers, New
York in 1903.
There is nothing inherently wrong or criminal
about belonging to a motorcycle club. Many
people join motorcycle clubs to share a common
interest in motorcycles, or for recreational riding
or competition, and members of clubs come from
all walks of life.
Today, the largest motorcycling organisation
worldwide is the American Motorcyclist Asso -
ciation (AMA), which was founded in 1924. It
represents people with an interest in motorcycling
or as described by the AMA, freedom on two
Figure 14.4 Motorcycle clubs have evolved over time in much the same way as the motorcycle itself.
288 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 288
wheels. The AMA currently claims to have close
to 300 000 members and promotes various
motorcycling events in the US and around the
world. The AMA also acts as an advocate for
motorcyclists before governments, local and
international lawmakers, and the general public.
There are hundreds of motorcycling organi-
sations in Australia. Clubs in New South Wales
include the Ulysses Club, the Ambassadors and the
Vietnam Veterans. The organisational structures of
clubs vary, but they often have elected ofcers and
directors, annual fees and a regular publication.
The clubs often sponsor social events and organise
recreational or competition rallies. One of the
biggest motorcycling competitions in Australia
is the Australian Motorcycle Grand Prix, which
is an international event held annually on Phillip
Island, Victoria.
2/9/09 8:03:16 PM

legal links
The Motorcycle Riders Association
of Australia (MRAA) is a non-prot
organisation founded in 1978
that represents the interests of
Australian motorcyclists. It aims
to promote fair and sensible laws,
road safety, and a better image for
Australian motorcyclists.
/UTLAWMOTORCYCLEGANGS
Outlaw motorcycle gangs represent only a very
small percentage of motorcycle groups. Some
OMCGs have a long history, with one of the largest
international clubs, the Hells Angels, rst formed
in 1948 in Fontana, California.
OMCGs began to emerge in Australia in the
1960s and spread quickly across all states, with
New South Wales now home to the greatest number
of clubs and club branches, known as chapters.
The largest gang in Australia is believed to be the
Rebels, with an estimated 2000 members.
The history of OMCGs is different from that of
mainstream motorcycling clubs, and their roots
can be traced back to the late 1940s, following
the end of the Second World War. A number of
motorcycling clubs began to emerge in the United
States when servicemen returned from the war.
They formed clubs to mix with other returned
servicemen, to share their interest in popular
motorcycling, and possibly to escape the routine
of returning to full-time work.
One of the rst criminal incidents attributed to
OMCGs was on 4 July 1947, American Indepen-
dence Day, when the American Motorcyclist
Association sponsored a series of motorcycle races
in the small town of Hollister, California. One of
the motorcycle groups involved was reported to
have initiated drag racing on the main streets of
town, as well as drunken brawling. When one
9780521734699part_03_3pp.indd 289
2 %6) % 7    
The American Motorcyclist
1 What are outlaw
Association (AMA) promotes the
motorcycle gangs and
interests of motorcyclists generally
how widespread are
and organises various motorcycling
they in Australia?
events.
2 What is organised crime
The website of the Australian
L aw in p rac tic e
and how does it relate to
Motorcycle Grand Prix is
OMCGs?
at www.motogp.com.au.
3 What is the difference
between OMCGs and
everyday motorcycle
clubs?
rider was arrested and locked in a police cell, an
estimated 750 riders challenged the local seven-
man police force to release their friend. The event
became known as the Hollister riots. In a now
famous statement, an AMA spokesperson claried
that it was only one per cent of the riders that
weekend who had caused the trouble, and that the
other 99 per cent were law-abiding citizens. This
distinction between 11 per cent and 99 per cent
is still used by OMCG commentators today, and
1 per cent is sometimes even used by OMCG chapter
members themselves as a mark of their identity. a local branch of a
motorcycle club
Identity is important to OMCGs. Many motor-
patch
cycle clubs, both mainstream clubs and OMCGs, a symbol or club logo
will have unique club patches on the back of their attached to the back
of a motorcycle club
members vests. These patches feature the clubs
members vest
logo, name and often the initials MC (motorcycle
colours
club), together with the clubs local branch or a motor cycle clubs
chapter. These patches form what is known as the standard vest showing
the clubs patches on
clubs colours. For OMCGs, the clubs colours are
the back as a mark of
very important to both the club and its members. identication
Sometimes in order for a member to earn the clubs
patches, the club might require a vote and swearing
of allegiance to the club, or the performance of
tasks. A member losing his (or her) colours, for
example to the police or a rival gang, might result
in some form of penalty or even expulsion from the
club. Some OMCGs even have an additional patch
with 1 per cent, to clearly distinguish themselves
from the norms and values of mainstream clubs;
other patches include symbols such as a skull and
Cha pter 14 Outla w m otorcycl e gangs 289
2/9/09 8:03:17 PM
 crossbones. The colours will also act as a crucial
identier for law enforcement agencies seeking to
prove OMCG involvement.
The structure of an OMCG is often another
important factor for the law in identifying the group
and its levels of membership under the dened
legal terms for such organisations. The history and
organisation of one such club, the Hells Angels, is
discussed below.
c a s e s tu d y
4HE(ELLS!NGELS
The Hells Angels Motorcycle Club
originated in Fontana, California in 1948.
Initially, it attracted soldiers returning
from the Second World War, and later the
Vietnam War. The name Hells Angels
had been in use by several US air ghting
squadrons during both the First and
Second World Wars.
The fact that many of the clubs founding
members came from military backgrounds
inuenced the structure of the club and
formed the basis of the military-style
hierarchy and notions of territory or turf
that still exist today.
Over time, the Hells Angels grew from a
small club in California to an international
organisation with approximately 189
chapters in 22 countries.
An article published by Neal Hall in the
Vancouver Sun in 2005 provided insight
into the hierarchy of the Hells Angels Club
and the social structure of its individual
chapters. In his article, Hall cited the expert
opinion of Sergeant Jacques Lemieux, an
Ottawa-based expert on the Hells Angels.
According to Lemieux, each chapter
holds weekly meetings known as church.
The President is the absolute leader, and
makes key decisions about the chapters
290 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 290
2
%3%!2 #(    
Visit the website of the Australian Hells
Angels and evaluate the content of the site.
1 Are there any references to criminal
activity on the site?
2 What attitudes are conveyed by the
photographs posted in the sites
photo gallery?
activities. If absent, the President is
replaced by a Vice-President.
The Sergeant-at-Arms is responsible for
the behaviour of members at meetings and
special events, such as funerals.
The Secretary-Treasurer controls
nances, with duties such as collecting
fees and paying club expenses, and may
sometimes act as intelligence gatherer if
operations by police are pending.
The Road Captain organises and
navigates mandatory bike rides, including
rest stops for food and petrol.
It is believed that there is a code of
conduct governed by the Sergeant-at-
Arms, which may differ slightly from
chapter to chapter. It lays down three major
rules that apply to all members:
1 No sexual assault.
2 No use of heroin.
3 No burning of drug deals (that is,
attempting to rip off a buyer or seller).
In Australia, the ofcial Hells Angels
website displays a range of activities based
around the riding of motorcycles with
prizes and giveaways. It features notices of
events, e-mail contacts and a photo gallery.
It does not list any set of rules for club
members to abide by.
2/9/09 8:03:17 PM
 L aw in p rac tic e
Figure 14.5 Club colours are Figure 14.6 The Hells Angels mother chapter in New York
made up of a number of patches.

exposure for violent criminal activity was also one

/-#'SANDORGANISED
of the largest criminal court cases in Australian
CRIME history. The incidents occurred in a Sydney suburb
As mentioned above, according to the Australian in 1984, in what became known as the Milperra
Crime Commission, OMCGs present a visible Massacre.
threat of complex and highly functional criminal
networks. Although estimates vary, the cost of
OMCG activities has been estimated at around
$2.2 billion per annum. They are reputed to be
involved in:
s the manufacture and distribution of illegal drugs
s money laundering and extortion
s trade in illegal rearms
s trade in stolen goods
s violent crimes and motor vehicle offences.
On the other hand, OMCG members claim
that their clubs are legitimate motorcycle organi-
sations and not used as fronts for organised
crime, as claimed by law enforcement agencies.
Many outlaw motorcycle gangs are believed to
be involved in outwardly legitimate businesses
such as entertainment, private security, nance,
transport, natural resources and construction.
One of the most important Australian cases
in which OMCGs received widespread media Figure 14.7 Milperra Massacre, the aftermath

Cha pter 14 Outla w m otorcycl e gangs 291

9780521734699part_03_3pp.indd 291 2/9/09 8:03:21 PM

 ca s e s p a ce
4HE-ILPERRA-ASSACRETRIALS
The court case following the Milperra
Massacre was at the time one of the largest
criminal trials in Australian history. In total,
43 people were charged with seven counts of
murder.
The Milperra Massacre took place on
Fathers Day 1984 in the Sydney suburb
of Milperra. It involved two rival gangs,
the Bandidos and the Comancheros, and
a number of other motorcycle gangs. The
chief conict between the Bandidos and
Comancheros was over the defection of the
former Bandido leader, William Jock Ross,
to the Comancheros. There was intense
rivalry between them and other outlaw
gangs for control of the cocaine trade
and the manufacture and supply of speed
(amphetamines).
The heavily armed gangs clashed in the car
park of the Viking Tavern in Milperra during
a motorcycle swap meet. In the resulting
violence there was a murderous shoot-out
that saw four Comancheros and two Bandidos
Since the Milperra Massacre there have been
many public and violent incidents involving
OMCGs across Australia. Some of the most shock-
ing recent examples include:
s In 1999 in Geelong, Victoria, two public bomb-
ings within 24 hours were the result of violence
following the torture and murder of a member
of the Comancheros by the Bandidos and the
torching of the rival gangs Sydney clubhouse.
s In Perth in 2001, former Western Australian
Chief Detective Don Hancock and his companion
were blown up by a car bomb planted by the
Gypsy Jokers. following an incident where one
of the Gypsy Jokers members was shot and
killed in a pub.
s In 2006 there was a drive-by shooting of a
Sydney nightclub named Gas, in which 50
292 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 292
killed, along with a 14-year-old girl caught in
the crossre while she sold rafe tickets. More
than 20 others were wounded.
The judge in the case. Justice Adrian Roden
of the Supreme Court of NSW, named Ross as
the instigator of the violence as the supreme
commander of the Comancheros, and the
person primarily responsible for the decision
that members of his club go to Milperra in
force and armed.
Ross was given a life sentence for his
part in the violence. Seven other members
of the Comancheros gang received life
sentences and 16 Bandidos served 14 years for
manslaughter. No biker testied in the cases
and many of the details of the event are still
unknown to this day.
As a result of the massacre, the Firearms
and Dangerous Weapons Act 1973 (NSW) was
subsequently amended to introduce a new
licensing regime for the control of rearms.
(The legislation currently in force in NSW is the
Firearms Act 1996.)
shots were red into the doors by three men
in balaclavas. About 150 people were inside
when the shooting broke out. It was alleged the
shootings were OMCG-related and a warning
to the clubs owners that they should use their
security guards to further the clubs drug
operations.
s In 2006, Russell Oldham, the former Sergeant-
at-Arms of the Bandidos, is believed to have
shot dead his chapter President, Rodney Monk,
in a restaurant. The apparent cause of the
murder was the affair Monk was having with
his female parole ofcer, against club rules,
further exacerbated by an order given by Monk
for Oldham to be expelled from the gang and
his club colours removed. Oldham was found
dead several days later in an apparent suicide.
2/9/09 8:03:21 PM
 s In early 2007 more than 60 members of the
Parramatta and Granville chapters of the
Nomads, previously afliated with the Coman-
cheros, defected to the Bandidos. The defection
caused a new eruption of violence between
the Comancheros and Bandidos, involving re-
bombings and drive-by shootings and resulting
in some 340 arrests and 883 charges. New
South Wales Police set up Operation Ranmore
to stop the escalation of violence.
The above cases illustrate only the public, violent
face of some OMCG activities. The black market
criminal activities of OMCG-related business,
such the trade in illegal drugs or rearms, or
illegal nancial activities like money laundering
and extortion, are often not as well known to
the public.
However, reports from Australias intelligence
agencies suggest that crime associated with OMCGs
- E C H A N I S M S F O R A C H I EV I N G
JU S T ICEI NRELAT IONTO/-#'S
Recent media attention and public concern follow-
ing some of the violent OMCG-related incidents
have resulted in important, and unprecedented,
legislative responses.
One of the main difculties is that OMCG
activities are a nationwide problem, but the prob-
lems often occur and are dealt with on a state-wide
basis. Each of the different jurisdictions in Australia
has elected to address the issue in different ways.
In addition to the legal responses, responses of
the public and interested groups have helped to
shape the approach to OMCGs around the country.
,EGALRESPONSES
Legal responses to OMCGs fall into three
categories:
s enacting laws to prosecute individuals for the
specic crimes that they have committed, such
as assault, drug offences or money laundering
9780521734699part_03_3pp.indd 293
is on the rise, and that OMCGs are moving into
the maritime and security industries. OMCGs are
becoming more sophisticated. As with legitimate
business, the competition for prot and territory
can result in friction and rivalry, and the reports
suggest that there may be a consolidation of the
L aw in p rac tic e
smaller groups into larger and more powerful
organisations controlling criminal operations in
Australia.
As an issue of public and
political concern in all Austra- 2
%6) %7    
lian jurisdictions, OMCGs have 1 How did OMCGs develop and
received much attention from what is their history?
lawmakers. Some of the attempts 2 What are some of the
by lawmakers and members of characteristics of OMCGs and
the public to address the what is their structure?
problems, and some of the impli- 3 What are some of the recent
cations of those attempts, are cases involving OMCGs and
discussed in more detail below. what issues do they present?
s establishing police task forces or increasing
police powers to gather intelligence on OMCGs
and target their activities
s enacting laws that aim to criminalise the clubs
themselves or participation in the clubs.
The implications of these different approaches
are often a point of intense debate by politicians,
law interest groups and other interested parties.
,AWSTARGETINGINDIVIDUALCRIMES
All Australian states and territories have statutory
offences under which the members of OMCGs
can be prosecuted for criminal acts. For example,
prosecutions of participants in the violent incidents
mentioned above would have been made under
standard criminal laws like assault, murder,
rearms offences or offences of dealing in illegal
drugs.
One of the difculties encountered by police
in dealing with OMCG criminal activities is that
Cha pter 14 Outla w m otorcycl e gangs 293
2/9/09 8:03:21 PM
 Figure 14.8 Most jurisdictions in Australia focus of the types of illegal activities OMCGs might be involved in.
task force
a special group or
committee of experts
formed for the express
purpose of studying a
particular problem
coercive powers
special powers
sometimes given
to a commission or
police task force that
allow it to summon
any witness to give
evidence or produce
any documents these
powers are usually only
vested in courts
294 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 294
prosecuting for individual crimes can seem
inadequate to deal with the widespread nature of
the problem. The police work and the evidence
required to prosecute the individual crimes on
a case-by-case basis is time-consuming and
resource-intensive. This is especially true with
OMCGs, where a code of silence among club
members, combined with a fear of speaking
out on the part of both victims and other people
associated with the clubs, means that the evidence
needed to convict will be very difcult to obtain.
Convictions of only those individuals who can be
proved to have committed those crimes can have
little impact on the wider organisational nature of
OMCG activities. As a result, most jurisdictions in
Australia have in place legislative frameworks that
focus more on criminalising the types of activities
that OMCGs might be involved in, and that target
the businesses and prots of those activities. These
may feature:
s money laundering offences
s trafcking and smuggling offences
s orders for reporting of nancial transactions,
or
s legislation whose object is to deprive criminals
of the proceeds or benets derived from
their offences, to prevent reinvestment of the
proceeds in further criminal activities, and to
enable law enforcement agencies to trace those
proceeds: for example the Proceeds of Crime Act
2002 (Cth).
4ASKFORCESANDINTELLIGENCE
Another legislative response in Australia has been
to provide greater powers to law enforcement
agencies to prevent, investigate and disrupt OMCG
or other organised crime activities. This often
involves the setting up of special law enforcement
agencies, or task forces, with special powers to
investigate and prosecute the more serious crimes.
Some of these special powers might involve:
s telecommunications interception
s the use of surveillance devices
s search warrants
s special coercive powers
s sharing intelligence between state, national and
international agencies.
Some of these special powers are controversial
because they increase the traditionally accepted
powers of government and law enforcement
agencies. They provide certain powers to police,
such as coercive powers to compel witnesses to
give evidence, that are normally held only by the
courts. When these powers are allowed, they
will usually require a high degree of oversight
to ensure they are not abused. Such laws raise
important issues about the separation of powers,
as introduced in Chapter 2 that is, the doctrine
that the powers and functions of the judiciary are
separate from those of the other two branches of
government.
Due to reported increases in OMCG activity
in recent years, in 2006 the Australian Crime
2/9/09 8:03:24 PM
 Commission recognised OMCGs as a high risk in Australia approach the issues in the
crime group and established the OMCG National same way. The difculties concern
Intelligence Task Force to investigate OMCG questions of precisely how and by
membership and activities and establish national what process a group is dened as
policies to address the issues. In 2008, this task criminal, and what level of individual
force was replaced by the Serious and Organised involvement is criminalised. For
2 %3% ! 2# (    
Use the internet to search
for recent media articles
about OMCGs and answer
the following questions:
1 Are there any new police

Crime National Intelligence Task Force, which has
a strong focus on OMCGs but also on other areas
of organised crime. It also works with agencies in
different Australian jurisdictions, and encourages
collaboration.
In addition to the federal government, a number
of states have set up operations and task forces to
deal with organised crime activities. For example:
s In March 2009, the New South Wales police
established Strike Force Raptor to target the
illegal activities of OMCGs. By the end of April,
more than 50 arrests had been made and 120
charges laid, and substantial quantities of
amphetamines and rearms seized.
s In New South Wales, Operation Ranmore
was set up in 2007 as part of a crackdown on
OMCGs, enabling police to raid the clubhouses
of the Finks, Rebels, Lone Wolf and Fourth
Reich and obtain evidence to lay charges.
s In Queensland, the OMCG Task Force Hydra
was established to target OMCGs and resulted
in a number of charges for criminal activities.
s In Victoria, the Purana Task Force was set up
in 2003 to investigate the Melbourne gangland
killings, and made a number of critical arrests.
L aw in p rac tic e
example, would a group of four task forces focusing on
teenagers going into a store to shoplift OMCG activities?
a DVD be a criminal organisation? 2 Where are these task
Would all four be equally guilty? forces based, what is
Who should determine this and what their jurisdiction (state,
crimes should be covered? territory or federal), and
The four main issues that must be what powers do they
determined are: have?
s Dening an organisation this
includes how many people can
form a group (for example, two or more; three
or more) and what activities or objectives make
it illegal (for example committing a serious
offence or obtaining some prot or advantage
from it)

,AWSTARGETINGORGANISATIONS
ANDMEMBERSHIP
Probably the most controversial approach to
OMCGs is the introduction of laws that target
or criminalise the clubs themselves rather than
the individual crimes committed. In effect, this
approach outlaws motorcycle gangs in the true
sense. This approach is most contentious where the
law attempts to criminalise individual membership
Figure 14.9 Motorcycle gangs tend to be
of or association with such clubs. targeted as a whole rather than as individuals
There are a number of fundamental legal dif- when crimes are committed that involve their
culties with this approach and no two jurisdictions members.

Cha pter 14 Outla w m otorcycl e gangs 295

9780521734699part_03_3pp.indd 295 2/9/09 8:03:26 PM


rule of law
the principle that
no one is above
the law; the most
important application
of the rule of law is
that governmental
authority is exercised
in accordance with
written, publicly
disclosed laws
adopted and enforced
in accordance with
established procedural
steps (due process)
guilt by association
criminal liability
imposed for associating
with another person
who commits a
crime, rather than for
committing that crime
oneself
296 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 296
s What is the criminal link the level of criminal
activity that is required (for example: committed
a past offence, intends to commit an offence or
come together to commit an offence, or simply
poses a risk or threat of committing an offence)
s Process for determining who can make the
decision on whether a particular group is a
criminal organisation (for example: the courts
only, a government ofcial, or simply the
police)
s Individual involvement what involvement
with the group a person must have to be
considered criminal (e.g. leading the group, being
a member of it, recruiting others, participating
in it, supporting it, or simply associating with a
member of it).
Many commentators have acknowledged the
risks that this approach may pose to fundamental
and accepted interpretations of the criminal law,
and especially to an individuals civil rights. Some
of the serious questions raised are:
s Should an organisation be criminalised if its
members only appear to be potential offenders,
rather than actually committing or intending to
commit an offence?
s Should government ofcials or the police have
the power to declare an organisation criminal,
or should this only be determined by a court?
Should the organisations members be given an
opportunity to respond?
s Should a person be criminally liable for
participating in such an organisation when he
or she has not committed any other offence?
s Should a person be criminally liable for
simply associating with a member of such an
organisation?
Two central concepts of the law are brought
into question by this approach. The rst is the
rule of law, introduced in Chapter 1: that is, the
principle that laws should be applied in the same
way to all individuals. The danger of criminalising
organisations, especially where police or govern-
ment ofcials can make the determination without
court oversight, is that the law may be used to
target individuals or individual associations, rather
than being applied equally to all.
The second problem with the approach is that
it affects a persons fundamental freedom to asso-
ciate by introducing laws of guilt by association
under which a person may be found criminally
liable simply by associating with another person
who commits a crime, even though that person
has committed no crime himself or herself.
Three Australian states have recently attempted
to enact laws with elements of the approaches
outlined above. In Queensland, the rst bill failed
to pass in the Queensland Parliament and a second
has been proposed. In South Australia and New
South Wales, the bills were passed and enacted
into law. Some of their provisions and associated
issues are outlined below.
QU E E NSL A ND A PPRO A C H
In 2007, the Queensland State Opposition intro-
duced into the state parliament the Criminal Code
(Organised Criminal Groups) Amendment Bill
2007. The bills purpose was to amend existing
laws to extend their coverage beyond parties to
offences, and to make it an offence to participate
as a member of an organised criminal group. Its
provisions included:
s dening an organised criminal group as three or
more people with an objective of committing
a serious crime for material benet, or of
committing a serious violent offence
s penalties of up to ve years imprisonment for
participation as a member of that organisation,
if the person knew it was a criminal organisation
and his or her participation contributed to the
occurrence of criminal activity
s dening member to include anyone identifying
himself or herself as a member, for example by
wearing the clubs insignia, patches or colours.
Critics of the bill questioned the lack of
connection between participation and actual
criminal activity. The then Queensland Attorney-
General and Minister for Justice Kerry Shrine
described the bill as ill-conceived, unnecessary
2/9/09 8:03:26 PM
 and [extending the] basic principles of criminal
liability to guilt by association where no specic
act or omission by the accused is necessary.
The bill did not receive enough support to
pass. However, following the violent killing of
Anthony Zervas at Sydney Airport in 2009, the
Queensland government announced that it would
prepare new laws giving police the power to apply
to the Supreme Court for an order prohibiting
identied members of an outlaw motorcycle gang
from associating with each other. At the time of
publication the proposed legislation had not yet
been revealed.
SOUTH A US T R AL IAN APPR OAC H
In South Australia in 2008, following numerous
incidents involving OMCGs including a shoot-out
at an Adelaide nightclub where one gang member
was killed, the South Australian government
enacted the Serious and Organised Crime (Control)
Act 2008 (SA). The South Australian laws aimed
to disrupt activities of OMCGs and other criminal
organisations and protect the public from their
violence.
The Act gave unprecedented new powers to the
government, allowing it to declare an organisation
a criminal organisation and allowing police ofcers
to make control orders preventing individual
members of that organisation from doing specied
acts or being in specied places. The laws are
similar to some of the special terrorism laws
introduced by the federal government following
the September 11 terrorist attacks. For example,
the Anti-Terrorism Act (No. 2) 1995 (Cth) introduced
two new Divisions into the Criminal Code 1995 (Cth)
allowing control orders and preventative detention
orders to be made against individuals.
The South Australian Act is not restricted to
OMCGs but can apply to any declared organisation.
A declared organisation is one whose members
associate for the purpose of organising or engaging
in serious criminal activity, and that represents a
risk to public safety and order, according to the SA
Attorney-General.
9780521734699part_03_3pp.indd 297
Some of the most critical provisions 2 %3% ! 2# (    
of the South Australian Act are: Research information about
s The Attorney-General can declare new Queensland legislation
any organisation a criminal organi- targeting organised crime.
sation without stating grounds and and answer the following
without right of appeal or court questions:
L aw in p rac tic e
review. For example, the Finks 1 Has the law been
have now been declared a criminal passed?
organisation. 2 What changes does it
s The Act creates an offence with a make?
penalty of ve years imprisonment 3 How does it differ from
for anyone who associates more the 2007 bill discussed
than ve times a year with a above?
member of a declared criminal
organisation. This means a person
can be deemed guilty by association
as a result of any contact or meeting, even
though that contact could be entirely innocent.
s The Police Commissioner can apply to the SA control order
Magistrates Court for control orders prohibiting an order made by a
court, government
a person from associating with, communicating
ofcial or police
with or being in the vicinity of specied people. ofcer to restrict an
These orders can be made without the standard individuals liberty, for
example from doing a
criminal onus of proof beyond reasonable specied act or being
doubt. in a specied place
Figure 14.10 South Australian Premier Mike
Rann presents the new Act to the media.
Cha pter 14 Outla w m otorcycl e gangs 297
2/9/09 8:03:29 PM
 s A senior police ofcer can prohibit a person or
class of people, without court oversight, from
being at a specied place or area or attending a
specied event.
The Act has attracted much criticism for its
severe restrictions and lack of adherence to
long-standing principles of the criminal law. For
example, the Law Society of South Australia stated
that the legislation goes too far, that it under-
mines the presumption of innocence, restricts or
removes the right to silence, and does not allow
courts to challenge possibly biased, unfounded,
or unreasonable decisions of the Attorney-General
or Commissioner of Police. Individuals may have
no right to know the reasons for an order or to
challenge the truth or reliability of those reasons.
Court challenges contesting the Act are certain
to occur .
N EW S OUT H WAL ES A P P RO A C H
In New South Wales, there have been numerous
amendments to the law and legislation since the
1984 Milperra Massacre. In 2005 after several
gang-related incidents, including the December
2005 Cronulla riots, the New South Wales
government introduced the Crimes Legislation
Amendment (Gangs) Act 2006 (NSW) to bring in a
series of reforms specically directed at OMCGs
and organised crime. These included:
s increased penalties for activities related to
organised crime
s increased powers for police to apply for search
and seizure warrants, including the power to
remove fortications or surveillance cameras
designed to stop police entry, powers to pacify
guard dogs and even to block drains (to prevent
the ushing of drugs down the sink or toilet)
s new offences for recruiting another person to
carry out or assist in criminal activity
s the introduction of offences for knowingly
participating in a criminal organisation. The
denition of a criminal organisation was almost
identical to the one contained in the Queens-
land bill described above. Signicantly, the
298 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 298
NSW Act did not include an offence for simply
being a member of the organisation.
Immediately following the Zervas murder at
Sydney Airport, NSW Premier Nathan Rees intro-
duced new laws claimed to be tougher than South
Australias and rapidly passed a new Act through
parliament to deal more specically with OMCGs:
the Crimes (Criminal Organisations Control) Act
2009 (NSW). Some of the important changes are:
s Police can make an application to the Supreme
Court to have an organisation declared criminal.
This provision for court oversight stands in
stark contrast to the South Australia law, where
it is the Attorney-General who can make the
declaration.
s Membership of a declared organisation is an
offence, as is association between members of
a declared organisation who are under control
orders. Association includes either being in
company with someone or communicating
with someone by any means. Declared gang
members who continue to associate can face
two years imprisonment for a rst offence or
ve years for a second.
s The Act contains new offences for recruiting
members of a declared organisation, said
to prevent establishment of younger feeder
groups for the organisations.
s It authorises new search warrants to make it
easier for police to seize items connected to
criminal organisations.
As with the South Australian Act, some of
the main concerns expressed were the potential
for immediate charges and control orders to
undermine the presumption of innocence, and
concerns about rights to freedom of association.
On the other hand, Australian Federal Police
Commissioner Mick Keelty stated in an interview
that he believed the new laws were appropriate:
New South Wales does have a particular problem
of the number of outlaw motorcycle gangs that
were aware of, 19 of them are situated in NSW,
he said. So of the nearly 40 gangs, nearly half of
them are in NSW.
2/9/09 8:03:29 PM
 m e d i a cl i p Controversial bikie laws pass capacity to be able to withstand constitutional
NSW Parliament challenge and on that basis has proceeded.
We have carefully considered the provisions
ABC Online, 3 April 2009
of the legislation and the structures we have
established.
The New South Wales Parliament has passed The laws follow a wave of bikie gang

controversial legislation targeting bikie gangs.
The Greens voted against the laws, saying
the new legislation could lead to police
corruption.
The legislation passed the Upper House of
Parliament late last night following a lengthy
debate.
Under the laws police will be able to apply
to have motorcycle clubs declared criminal
organisations.
Members could then be jailed for associating
with each other and prevented from working in
certain jobs.
The legislation has been criticised by the
NSW Law Society and the Bar Association, who
say it is unlikely to withstand legal challenges.
But NSW Attorney-General John
Hatzistergos says he is condent it will be
effective.
This legislation has the capacity to cause
severe damage to these organisations, he said.
The Government has taken senior legal
advice in relation to the legislation and its
L aw in p rac tic e
violence including the fatal bashing of the
brother of a hells angel at Sydney Airport.
CORRUPTION FEARS
The New South Wales Greens say the states
new bikie legislation could lead to police
corruption.
Greens MLC Lee Rhiannon says the
legislation is open to abuse.
It gives extraordinary discretionary powers
to police, she said.
It also undermines the current rules of
evidence, it weakens the right of freedom
of association, and we are concerned that it
could play out in a way that could increase the
possibility for police corruption.
Ms Rhiannon says legislation will not solve
the problem of gang violence.
The challenge with this legislation was to
pass it so that it improved public safety and
ended gang-related criminal activity while
preserving long-held tenants of the justice
system, but that has not been achieved,
she said.

2

%6) %7    
1 What are the three main legal
responses to OMCGs and
organised crime?
2 What are some of the
advantages and disadvantages
of each approach?
3 How does the legislation
differ between Australian
jurisdictions? Which approach
or approaches do you think
are best and why?
Figure 14.11 Belconnen Police Station, ACT

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 .ON
LEGALRESPONSES May, about 300 members of the different gangs
In addition to the responses of lawmakers and law
enforcement agencies as discussed above, there are
a number of other responses to consider. These
include those of the general public, the media, poli-
ticians, interest groups, and the OMCGs themselves.
Some of these responses are explored below.
-EDIAANDPOLITICS
Media coverage, and the ability of media reports
to shape public opinion, have played a crucial part
in political responses to OMCGs. Violent incidents
related to OMCGs are widely covered by the print
and broadcast media, and politicians are often keen
to reassure the public that they are being tough on
crime. This is most evident in the rapid response
of the New South Wales government, following the
Sydney Airport murder, to strengthen organised
crime laws.
The media have enabled public discussion of
the advantages and drawbacks of the laws being
proposed, and they have the power to inuence the
way the issues are dealt with by legislatures and
the police.
$EMONSTRATIONS
Various sectors of the public have voiced their
opinions on OMCGs and the laws response
through demonstrations. In March 2009 about 700
members of clubs including the Hells Angels, Gypsy
Jokers, Rebels and Finks organised a ride through
the towns of South Australias Barossa Valley,
accompanied by a police escort, to protest against
the Serious and Organised Crime (Control) Act 2008.
It took place in conjunction with the Gypsy Jokers
annual ride, which had never before been open
to other clubs. In a second peaceful protest in
le g al li nk s
The F.R.E.E. Australia Partys
website is at www.freeaustralia.
org
300 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 300
converged on Parliament House in Adelaide and
presented a petition against the new legislation.
In response, South Australian Premier Mike Rann
described the laws as the worlds toughest anti-
bikie legislation and stated, We are talking about
drug dealers on wheels and we are not going to
bend or break because of [a] protest.
In another interesting form of protest, in
response to Queenslands Operation Hydra aimed
at curbing criminal OMCG activities, a number of
OMCGs met to discuss tactics to ght nes issued
to motorcyclists. One of the tactics was a cam-
paign to ght all nes in court to create backlogs
in the system, with the aim of forcing police to
reduce nes for trafc infringements.
&ORMINGPOLITICALPARTIES
In one unique response to the OMCG issue,
members of the South Australian public who were
strongly opposed to the Serious and Organised
Crime (Control) Act 2008 (SA) and its implications
for civil rights decided to make their voice and
concerns heard by politicians by establishing a
new political party, the F.R.E.E. Australia Party.
The party obtained formal political status on
19 March 2009 and is open to anyone who is
registered to vote in South Australia. Among its
members are a number of motorcyclists con-
cerned about the introduction of the Act. Party
spokesperson Paul Kuhn said that the party
opposes the Act, but is concerned about a number
of other issues as well. The name of the party
itself is FREE, which stands for Freedom, Rights,
Environment and Education, he said in an inter-
view with ABC News.
2
%6 ) %7    
1 Describe some of the non-legal responses
to organised crime. How do they inuence
changes in the law?
2 What non-legal responses do you believe
are most effective in dealing with OMCG
issues and why?
2/9/09 8:03:37 PM
 L aw in p rac tic e
Figure 14.12 The Freedom Rights Environment Educate Australia Party has branches in South
Australia, Queensland and New South Wales, and hopes to soon become a national party.

Res p o n s i ve n ess o f t he l aw
Public order and safety are usually cited as the and freedom of movement. Laws departing from draconian laws
laws that are
chief reasons for changing the law to address these principles require mechanisms for review.
excessively harsh or
OMCGs. Due to the violence often associated While it is too soon to assess the effectiveness severe from Draco,
with many of their activities, OMCGs receive of these laws not only in reducing criminal a Greek legislator
(7th century CE)
widespread media attention and result in often activities and violence associated with OMCGs, but
whose laws imposed
emotive public discussion. The political responses in ensuring justice for all parties concerned they cruel and severe
of some Australian jurisdictions have focused on will be judged on the facts over time. penalties for crimes

ramping up the laws, being tough on crime and

smashing criminal gangs.
The three main types of legislative responses R EV I EW 1 4 . 5 R ESEARC H 1 4 . 4
to OMCGs and other organised crime are laws 1 How do the responses Search for recent news stories
targeting their activities, laws establishing police of different jurisdictions related to OMCGs and answer
task forces and special police powers, and compare in addressing the following questions:
laws that criminalise the organisations or their OMCG-related activities? 1 Have there been any
members. Not all jurisdictions in Austra lia have Which legal responses do recent incidents involving
introduced laws in the third category. Following you think are the most OMCGs in New South
the Sydney Airport incident, both Victoria and the effective and why? Wales or around Australia?
ACT stated that current laws were sufcient and 2 How far should the law go What happened in those
they had no intention of introducing new laws. in attempting to address incidents?
Other states and commentators have claimed the activities of OMCGs 2 What recent arrests or
that this may create safe haven and legislative and other organised charges have been laid
gaps for OMCGs to exploit, but there has been no criminal groups? Do you against OMCG members? Do
evidence of this to date. think the responses have the articles suggest that the
Legal responses need to be carefully weighed, been appropriate? new laws have been used or
and their implications considered, to avoid creating have been effective?
draconian laws or sacricing fundamental prin- 3 Have there been any
ciples such as the rule of law, the separation of problems or court challenges
powers and the presumption of innocence, or associated with the new
individual rights such as freedom of association laws?

Cha pter 14 Outla w m otorcycl e gangs 301

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s Organised crime is a problem for Australian
society and for the law. It operates in many
different industries and is associated with
many different illegal activities.
s Motorcycle groups have been in existence
Ch a p te r s u m m a ry
for over a hundred years and most were
formed simply to share a common interest in
motorcycles.
s Outlaw motorcycle gang membership is a
growing problem in Australia and there have
been many recent public incidents involving
OMCGs.
s There are different legal approaches to
OMCGs, each with its own advantages and
disadvantages.
M u lt i p le - c hoi ce q ues ti ons
 Organised crime can be dened as:
A illegal activities carried out by organised
groups, usually for nancial gain
B illegal activities carried out by more than
one person in a single incident, where
timing is important
C activities such as rallies and protests
organised by motorcycle gangs without a
permit
D exercise of certain police powers without
authorising legislation
 The largest area of organised crime activity is:
A digital piracy
B extortion
C drug trafcking
D drunken brawling
 Draconian laws are:
A harsh, strict and punitive
B enforced by both state and federal
governments
C enforced by state but not federal
governments
D enacted by the United Nations
302 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 302
s These include laws to prosecute individuals
for specic crimes, the establishment of task
forces, increased police powers, and laws that
criminalise the clubs or participation in them.
s Some of these approaches have ramications
with respect to fundamental principals of the
criminal law and individual rights.
s Different Australian jurisdictions have adopted
different approaches to deal with the issues.
s The media, politicians, the public and OMCGs
themselves have voiced their views on the
issues and on the legal responses.
s The law needs to balance the interests of all
parties involved
s It is too soon to assess the effectiveness of
recent responses of the law to OMCGs.
 Under the South Australian Serious and
Organised Crime (Control) Act 2008 (SA),
who can declare an organisation criminal?
A the Police Commissioner
B the Supreme Court
C the Premier
D the Attorney-General
 What is one reason for enacting controversial
laws outlawing motorcycle gangs?
A to encourage competition between state
premiers for the toughest anti-bikie laws
B to give greater powers to police to
compensate for their low pay
C to limit motorcycle transport, which has a
high degree of road fatalities
D to target organised crime, which can be
difcult to ght under ordinary laws against
criminal acts
2/9/09 8:03:40 PM
 Ch a p te r s u m m a ry ta s k s

 Discuss the problems of organised crime in
Australia. What types of activities are related
to organised crime and how widespread are
they in Australia?
 Outline the origins of motorcycle gangs and
OMCGs. Are they different, and if so, how?
Top i c revi ew
L aw in p rac tic e
 Outline the different legal approaches to
OMCGs.
 Describe some of the recent changes to
Australian laws to deal with OMCGs. How do
these differ from previous laws?
 Do you think some organisations should be
criminalised? What level of participation in
criminal organisations do you think should be
prosecuted?

EX T EN DED R ES PON S E
 Bikie gangs are like any other organisation or
Marking criteria for the extended response
club. There are criminals in all walks of life.
questions can be found at www.cambridge.
Discuss this statement with reference to the
edu.au/education. Refer to these criteria
law and at least one OMCG.
when planning and writing your responses.
 Evaluate the responsiveness of the law in
dealing with OMCGs. Do you think the legal
approaches are fair? Which approaches do
you think are most appropriate and why?

Cha pter 14 Outla w m otorcycl e gangs 303

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 Area 4 : Criminal or civil cases that raise issues of
interest to students

CHAPTER 15
File sharing and
digital copyright
c hap ter ob j e cti ve s

In this chapter, students will: s evaluate the effectiveness of legal and non-legal
s explore legal concepts and terminology relating to responses to digital copyright infringements.
digital copyright and the law
s investigate the legal systems ability to address
issues relating to digital copyright
s explore the differences that exist between
Australian and international law in relation to digital
copyright
s investigate the role of the law in addressing
and responding to changes in relation to digital
copyright
s describe the legal and non-legal responses to digital
copyright infringements
ke y t er m s

copyright
copyright infringement
copyright notice
digital copyright
extradition
le sharing
format-shifting
intellectual property
internet piracy
piracy
space-shifting
technical protection measure
time-shifting

304 C a m b r i d g e L e g al S tu d ie s Pre limin ary

9780521734699part_03_3pp.indd 304 2/9/09 8:03:43 PM

 L aw in p rac tic e
rel ev ant l aw

IM PORTA N T L EGIS L AT ION AN D T R E ATI ES

Copyright Act 1968 (Cth)
Copyright Act (Digital Agenda Amendments)
2000 (Cth)
Copyright Amendment Act 2006 (Cth)
US Free Trade Agreement Implementation Act
2004 (Cth)

SIGNIFIC AN T C AS ES
A&M Records Inc. v Napster Inc., 239 F3d 1004
(9th Cir 2001)
Universal Music Australia Pty Ltd v Sharman
License Holdings Ltd [2005] FCA 1242
Metro-Goldwyn-Mayer Studios Inc. (MGM) v
Grokster Ltd, 545 US 913 (2005)
United States of America v Grifths [2004] FCA
879

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download
to receive data from a
central system to ones
own, local network or
computer
intellectual property
intangible property
that has commercial
value and can be
protected by law,
e.g. text, images,
designs, inventions and
computer programs.
copyright
an exclusive right to
publish, copy, publicly
perform, broadcast, or
make an adaptation
of certain forms of
expression, namely
sounds, words or visual
images
digital copyright
copyright as it applies
to digital media
digital piracy
unauthorised
reproduction and
distribution of digital
music, software, videos
or other material, often
for prot
le sharing
the practice
of distributing
electronically stored
information such as
computer programs,
music and video les,
especially through the
use of peer-to-peer
(P2P) networks
upload
to send data from
a local system or
computer to a central
or remote system, for
other users to view,
hear, or use
306 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 306
&I L E S H A R I N G D I G I T A L COPY R I G H T
A N DT HELAW
The internet has given people not only access to a
whole world of information, but opportunities to
use and interact with it in a way that they never
could before. Photos, music, videos and software
can be viewed and heard on our own computers or
transferred to other devices. The internet makes it
possible to download these les to keep or share,
sometimes for a fee but sometimes without paying
for it. In some cases, the act of downloading this
material may infringe another persons intellectual
property rights.
$IGITALCOPYRIGHTAND
INTELLECTUALPROPERTY
This has become an area of concern not just for
the owners of the material but also for lawmakers
on a domestic and international scale. The
concept of intellectual property in cyberspace
was introduced in Chapter 8. As discussed, intel-
lectual property law protects a persons rights to
intellectual works and other intangible, or non-
physical, property that the person has created.
Three types of legal protection for intellectual
property are patents, trademarks and copyright.
Figure 15.1 Copyright is one of the three types
of protection for intellectual property.
Copyright is the area of intellectual property
law that protects a persons right to an original
expression of an idea. It allows the creator the
right to do or prohibit certain acts relating to that
expression, for example to reproduce it, publish it
or make an adaptation.
Historically, copyright law was conned to
text-based material, but over time has expanded
to include rights in a range of types of works,
including books, lms, software and music. The
arrival of the internet over the past two decades
has brought with it many challenges to traditional
concepts in copyright law. Copyright law has had
to adapt to the new digital environment, and
digital copyright simply refers to copyright as
it applies to this relatively new medium. One of
the most signicant issues in this area is digital
piracy occurring by means of le sharing. File
sharing means distributing electronically stored
information, often without authorisation.
&ILESHARINGANDINTERNETPIRACY
Digital technology has enabled the average
computer user to make copies of almost anything
with ease, much to the discomfort of the music and
movie industries. Digital copying is like oxygen in
cyberspace that is, the internet itself is dependent
on the ability of users to upload, download and
transmit digital text, les, web pages and so on.
However, copyright infringement through
unauthorised le sharing poses serious challenges
for the laws of digital copyright. It has resulted
in ongoing legal battles involving individuals, the
music, lm and television industries, and online
le sharing services.
Popular portable devices that can easily transfer
digital music between computers have allowed
users to obtain their entertainment for free, or
for only a nominal cost. However, to the music
industry and media networks digital copying was
considered piracy. The term pirate has been
2/9/09 8:03:46 PM

Figure 15.2 Computer users often illegally download overseas TV series before their release in
Australia, and then watch them on their laptops, or burn them to DVD.
used in this sense even before the rst copyright
laws were put in place in England with the Statute
of Anne in 1709. An early reference was made by
English writer Daniel Defoe in 1703. He said of
people who were distributing copies of his poem,
A True-Born Englishman, on the streets: Its
being printed again and again by pirates, as they
call them. It is claimed that some 80 000 copies
were pirated on the streets of England, Ireland and
America and that this may even have contributed
to Defoes fame by making his work available more
cheaply to the general public.
The term internet piracy has been coined
to describe the downloading and/or distribution
of unauthorised copies of music, lm, television
programs, games and software via the internet.
This can be done by various means such as
le sharing or peer-to-peer (P2P) networks,
BitTorrent programs, pirate servers, or websites. It
can also be done by people known as hard goods
pirates, who distribute illegal copies of copy-
righted material recorded on DVDs, CDs or video-
tapes for prot.
Digital copying over the internet grew rapidly in
popularity, as it allowed users to obtain music and
other media les freely, quickly, relatively simply,
in the comfort of their own homes, and in an easily
transferable and shareable format. It also allowed
users to store and transport their own music and
media les much more easily than on multiple CDs
or DVDs, or the earlier and even bulkier videotape
and cassette tape collections.
9780521734699part_03_3pp.indd 307
copyright
infringement
the unauthorised use
of copyright material in
a manner that violates
the owners rights
piracy
(1) an illegal act of
L aw in p rac tic e
robbery of a ship
at sea, outside the
jurisdiction of any state;
(2) the infringement of
copyright
internet piracy
unauthorised
downloading or
distribution of
copyrighted material
The music and other media industries were
by means of the
often accused of being slow to catch on and offer internet
accessible digital media solutions to meet this peer-to-peer (P2P)
rapidly growing market demand. The law was also networks
computer networks
slow to change. For example, until 2006, it was still
in which individual
illegal under Australian copyright laws for some- participants are
one to copy legitimately purchased music from his directly connected
to each other, rather
or her own computer to a portable music device, or than through a central
to upload the contents of a legitimately purchased server
CD into his or her computers
digital music library. Recording a
television program onto a video- 2
%6) %7    
tape for later viewing or even 1 Outline what is meant by
making a music compilation on digital copyright and how this
a CD or cassette tape still con- ts into the broader area of
stituted copyright infringement. intellectual property law.
Increasingly easy access to free 2 Explain what is meant by
le sharing technologies began copyright infringement
to put signicant pressure on the and piracy and how these
legal system to adapt. However, the can occur in the digital
absence of any adequate reform environment.
eventually led to costly legal battles, 3 Explain how issues of le
both local and international, insti- sharing arose and why it has
gated by music industry and other become a problem for industry
media bodies in an attempt to and for lawmakers.
protect their copyright and alleged 4 Discuss some of the changes
loss of prot. to digital copyright that
Many of the legal issues relating needed to be made to the
to digital copyright and le sharing law and within the relevant
continue unresolved to this day. industries, in order to respond
These are discussed in more detail to the growth of le sharing
in the following sections. technologies.
Cha pter 15 File sha ring a nd d i gi tal copyri ght 307
2/9/09 8:03:51 PM
 - E C H A N I S M S F O R A C H I EV I N G J U S T I CE
I N R E L A T I O N T O D I G I T A L CO PY R I G H T
There are a number of legal mechanisms in place
to protect a copyright owners rights in his or her
material. In Australia, copyright law is complex
and comes from many different sources, including
legislation, international treaties on copyright
protection, and an expanding body of case law.
Many of these laws apply to copyright in the
digital environment and allow copyright owners to
bring civil action against those they believe to have
infringed their rights. Many of the cases relating
specically to digital copyright centre around the
question of who actually infringed copyright, and
how their offence can be proved when it took place
in a digital environment.
In addition to civil action by the copyright
owners, Australian law also provides for criminal
prosecution of copyright infringement coming
under several categories of offence, with penalties
including nes or even imprisonment. Currently,
these copyright offences are used mainly in
Figure 15.3 Police remove boxes of pirated DVDs from a
truck after seizing them from a house in Melbourne in 2008.
They believe they seized around $30 million worth of illegal
merchandise during this raid.
308 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 308
relation to piracy of copyright material for trade or
prot on a commercial scale.
In recent years, digital copyright issues have
also attracted various non-legal responses. These
include broad public education campaigns by
government and non-government bodies and
the establishment of government and industry
organisations to monitor and provide advice on
digital copyright issues, or to provide a voice for
the various groups affected. There has also been
high-prole coverage of digital copyright by the
media and industry bodies, as well as important
commercial responses to changes in the digital
media and le sharing markets.
,EGALRESPONSES
,EGISLATIVEPROTECTIONIN
Australia
Copyright and other intellectual property
matters are among the enumerated powers of
the Commonwealth parliament (s 51(xviii) of the
Australian Constitution) and are thus a federal
responsibility. The Act that governs Australias
copyright laws is the Copyright Act 1968 (Cth).
The Copyright Act replaced an outdated Act
based on older UK copyright law, and it brought
together some of the principles from the case law
on copyright at the time. The original Copyright Act
has been subject to many amendments since it was
rst brought in, to respond to the changing issues
in copyright law. It is known for being one of the
largest and most complex Australian statutes and
currently runs to a total of 646 pages. Australian
courts have had to decide how the Copyright Act is
to be interpreted and applied in greatly different
contexts. As a result, trying to work out how
copyright applies in a particular situation can
require looking at both the Copyright Act itself and
previous court decisions.
2/9/09 8:03:53 PM
 Some countries, such as the United States and
Canada, have government systems for the regis-
tration of copyright. In Australia, individuals do
not need to do anything in order to get copyright
protection for their work: if a work meets the
requirements for protection in the Copyright Act, it
is automatically protected as soon as it is created,
without the need for any registration.
For a persons work to qualify for copyright pro-
tection under the Copyright Act, the work must be:
s the type of thing to which copyright applies (e.g.
an artistic work or a musical work);
s the result of some skill and effort (original and
not merely copied from someone else); and
s recorded or xed (for example on paper, a
computer disk or a CD).
Many people also choose to add a copyright
notice to their work to remind people that it is
protected by copyright and to let them know who
is claiming copyright. However, for some forms of
copyright, especially where copyright exists in the
contents of a digital le such as a music or sound
le, it is often more difcult for the owner to label
the work as copyright protected. Some individuals
or companies now add what is known as a digital
watermark to les containing copyright material
in order to ensure that information about the
copyright owner is retained within the le.
-ODERNISINGDIGITALCOPYRIGHT
PROTECTION
Since the year 2000, the Australian government
has had to review and amend the Copyright Act a
number of times to adapt it to social, economic
and technological changes. Some of the most
important amendments are as follows.
COPYRIGH T AC T ( DIGITAL AGEN DA
AM END MEN T S ) 2000 ( C T H )
This Act updated a number of provisions of
the Copyright Act to include recent changes in
digital technology. It amended the denition of
communication of a work to include the act of
making a work available online or transmitting
it electronically, and to cover the technical
9780521734699part_03_3pp.indd 309
L aw in p rac tic e
Figure 15.4 In Australia, you do not need to do anything in order to
get copyright protection for your work: if it meets the requirements
for protection in the Copyright Act it is automatically protected as
soon as it is created.
processes that are used to do so. It also introduced copyright notice
prohibitions on making or distributing devices a notice added to a
work to inform people
designed to break technological protection of who owns the
measures, which are the digital locks put in copyright and when
the work was created,
place to limit copying or accessing of copyright
e.g. Random
materials. For example, access might be available Business Pty Ltd 2011
only by use of an access code or a process such technological
as decryption or unscrambling, authorised by the protection measures
tools or locks that
copyright owner.
copyright owners
use to prevent
U S FREE TRA DE A G RE E M E NT unauthorised copying
or access to copyright
I M P L EM ENTATI O N A C T 2 0 0 4 (C TH )
materials
In 2004 Australia entered into an agreement with
the US called the AustraliaUnited States Free Trade
Agreement (AUSFTA). As part of the agreement,
Australia was required to amend a number of its
copyright laws to bring them more into line with
US laws and with certain international treaties.
One of the main amendments was to extend the
expiration of an owners copyright from 50 years
to 70 years after the authors death. Another
signicant provision affecting digital copyright
was to limit the liability of internet service
providers for copyright infringements committed
by their customers (Copyright Act 1968 (Cth) Part
V, Division 2AA).
COPYRIGHT AMENDMENT ACT 2006 (CTH)
This Act introduced further amendments to
Austra lian copyright law that were required under
Cha pter 15 File sha ring a nd d i gi tal copyri ght 309
2/9/09 8:03:56 PM

space-shifting
transferring music or a
sound recording from
one format to another
or from one device to
another, for example
copying a music le
from a computer to a
portable player
time-shifting
recording a television
or radio broadcast
for later viewing or
listening
format-shifting
copying books,
journals, photos or
videos from one
format to another
format, for example
scanning a photo
to digital format or
printing a newspaper
article
310 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 310
AUSFTA. It also updated a number of technological
provisions that were widely seen as outdated or
unfair. Some of the most important amendments
to the Copyright Act 1968 (Cth) were as follows:
s the introduction of new criminal enforcement
provisions, including on-the-spot nes for
copyright infringement
s provisions permitting the copying of music
from format to format or device to device for
personal use, known as space-shifting
s provisions allowing the recording of television
or radio broadcasts for later viewing, called
time-shifting
s provisions allowing individuals to change the
format of copyright materials for personal use,
known as format-shifting, for example scan-
ning photos into digital les or printing an
article
s widening of the provisions on technological
protection measures to make it an offence for
individuals even to use a device designed to
unlock technological protection measures.
Figure 15.5 Since 2000, the Australian
government has had to review and amend the
Copyright Act a number of times to adapt it to
social, economic and technological changes.
Although the Copyright Act has come a long
way in addressing some of the developments in
digital copyright issues, there are still a number of
issues that have been left to the courts or to future
legislation to resolve. It is also important to note
that many apparently innocuous uses of copyright
material, such as downloading or uploading les
containing copyright material via the internet or
sharing them with friends on a personal website,
may still constitute infringement of another
persons copyright and therefore may not be legal
under Australian law.
)NTERNATIONALTREATIESONCOPYRIGHT
Another important part of Australian copyright
law comes from international copyright treaties
that aim to ensure that copyright is protected
across international borders and that important
copyright issues are addressed similarly by
different countries. This is particularly relevant
to digital copyright, where works are constantly
imported and exported between countries through
the internet, through portable devices and through
trade in music, software, lms and DVDs.
In Australia, international treaties must be
incorporated into domestic legislation before they
can become binding, and so the most important
provisions of Australias international treaties
should already be incorporated into the Copyright
Act or other relevant legislation. However, the
international treaties themselves are important
measures for ensuring copyright protection
for Australian copyright holders in overseas
jurisdictions, and to protect overseas copyright
holders from infringements by Australians
within Australia. Australian works are protected
automatically in most other countries. In the same
way, works from most other countries are auto-
matically protected in Australia.
As mentioned in Chapter 8, the main treaties
relating to copyright include:
s Berne Convention for the Protection of Literary and
Artistic Works (accepted by Australia in 1928)
s World Trade Organization Agreement on Trade-
Related Aspects of Intellectual Property Rights
(TRIPS) (accepted by Australia in 1995)
2/9/09 8:04:09 PM
 s AustraliaUnited States Free Trade Agreement
(AUSFTA) (accepted by Australia in 2004)
s World Intellectual Property Organization Copy-
right Treaty (accepted by Australia in 2007)

#ASELAWONDIGITALCOPYRIGHT

L aw in p rac tic e
The difculty in applying digital copyright law
and the scale of the le-sharing problem has led
to a number of civil cases in recent years. As
the internet is international by nature, the court
Figure 15.6 Shawn Fanning, founder of Napster,
challenges have occurred worldwide, with some of
a le-sharing website that shook the foundations
the most important cases in the US and in Australia.
of the music industry
They have involved complex legal arguments
attempting to resolve how the laws apply to the
different le sharing technologies and where the per song for downloading songs like If Youre Happy
liability should lie for infringements committed and You Know It Clap Your Hands. The girl said she
using those technologies. thought it was OK to download music because her
The rst major legal battle relating to le sharing mother had bought the Kazaa program for US$29.95.
and copyright infringement was in 2001 and Eventually Kazaa settled the case with the girls
involved an 18-year-old named Shawn Fanning, family for the sum of US$2000.
who set up an online le-sharing service called The RIAA continued to bring civil actions
Napster. Napster was one of the rst internet against ordinary consumers who engaged in le
services dedicated to sharing mainly popular sharing, and by 2005 the RIAA had sued 12 000
music and video les between users. Complaints people. The main difference between Napster and
of copyright infringement had been received from Kazaa was that Kazaa did not hold or store the
some of the most high-prole recording artists, les centrally, but supplied the software and the
including Metallica and Madonna. In the US case means for individual users to share les. One of
A&M Records Inc. v Napster Inc., 239 F3d 1004 (9th the most signicant cases against le sharing was
Cir 2001), the United States Court of Appeals for launched against Kazaa in Australia in 2005 and
the Ninth Circuit found that Napster had infringed this is discussed on the following page.
copyright by allowing its users to upload and
download copyright-protected material on its
central network. Napster was forced to change its
service and business model to prevent its users
from infringing copyright.
Despite the outcome of the case, new le-sharing
networks quickly arose, with one called Kazaa
emerging as the most dominant. By 2004 Kazaas
program had been downloaded 319 million times.
This resulted in some of the most brutal legal battles
related to le sharing. For example, in 2003 the US
Recording Industry Association of America (RIAA)
launched a series of lawsuits against some 261 indi-
vidual users of Kazaa for copyright infringement Figure 15.7 Niklas Zennstrom, the co-founder
through le sharing. One of these lawsuits involved and CEO of Kazaa; creator of Skype; and co-
a twelve-year-old girl who was sued for US$150 000 founder of Joost

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 ca s e s p a ce
Universal Music Australia Pty Ltd v Sharman License Holdings Ltd;=&#!
THE+AZAACASE
A legal action was brought in
the Federal Court of Australia in
2005 by 30 record companies,
including major international
labels such as Universal,
EMI, Sony BMG and Warner,
against Kazaas Sydney-based
developer and distributor,
Sharman Networks. The record
companies claimed that the
Kazaa software, by allowing
users to download music for free
over the internet, encouraged
copyright infringement on an
unprecedented scale.
The Federal Court found that
most of Kazaas music les were
shared without the approval of
the relevant copyright owner.
2%3 % ! 2#( 
.ON
LEGALRESPONSES seeking to educate the general public and
Another important case in the le
sharing wars was the US case of
Metro-Goldwyn-Mayer Studios
Inc. (MGM) v Grokster Ltd, 545
US 913 (2005). MGM argued that
le sharing software created and
actively marketed by Grokster
encouraged illegal downloading
of movies. Research the le-
sharing issues in this case and
discuss the results.
312 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 312
In his decision, Justice Murray
Wilcox ruled that with its le-
sharing technology, Kazaa was
liable for copyright infringement
because it had authorised users
to infringe the record companies
copyright. He found although
there were technical measures
that could have enabled Sharman
to curtail although probably
not totally to prevent the
sharing of copyrighted les,
Sharman had not implemented
them because this would have
been against its nancial interest.
Because Sharman made its
money from advertising on
the Kazaa system, it wanted
to maximise le sharing using
It is often expensive, lengthy and difcult
for those in the music industry to pursue
persons who are illegally downloading
les. It is also disputed whether pursuing
ordinary computer users is an effective
option. Corporations have tended to take
legal action against only serial offenders,
as a deterrent, and against those who
are making a prot through copyright
infringement.
In addition, it would obviously not be
possible for a company to bring a lawsuit
against every individual who is infringing
copyright. Instead, consumer markets have
been forced to adapt, to offer alternatives
to illegal le sharing to meet the growing
demand. A number of industry and non-
industry bodies have been established,
its software to increase its
advertising revenue.
Justice Wilcox acknowledged
that Sharman probably cannot
totally prevent copyright
infringement by users, and as
a result did not order Kazaa to
be shut down. Concerned to
ensure that the software should
continue to be available for
people who use it for legitimate
purposes, the court allowed
Sharman to continue distributing
its le-sharing software, but only
if it adopted certain technical
measures to stop and discourage
the infringement of copyright
using that software.
to report on the ongoing developments.
-ARKETANDINDUSTRY
RESPONSE
Despite attempts to put a stop to le-
sharing activities, there has been seemingly
unstoppable growth in the market for le-
sharing technologies and portable devices
with which to use them.
Supplementing the growth in portable
music and video devices has been the
emergence of a large and competitive
market offering legitimate downloading
services. For a small fee, users are given
access to authorised copyright material in
a format they request. One of the largest
players in this market has been the popular
iTunes Music Store, launched in 2003 by
the founder of Apple Inc., Steve Jobs.
2/9/09 8:04:12 PM
 By striking a deal with major record labels to offer
a legitimate le sharing service, iTunes ensured that
the music industry could receive payment for their
copyright material while giving users a convenient
and safe method of getting songs from the internet.
The store has since expanded to include copyright

works from other industries threatened by digital
copyright infringements, including television
shows, lms, radio, software and digital books.
The popu larity of stores like iTunes and its success
in returning a prot to the affected industries has
shown that the traditional legal responses are not
always the most effective.
!GENCIESANDORGANISATIONS
A number of organisations and interest groups in
Australia contribute to the discussion about copy-
right and digital technology and provide research,
advice and education to the public, businesses and
the government. Some of these are listed below.
COM M ON WEALT H AT T OR N EY-GEN E RA LS
D EPARTMEN T
The Attorney-Generals Department holds respon-
sibility for Australias copyright laws. It provides
information about copyright law and works closely
with groups and organisations that have an interest
in the development of copyright law in Australia.
AUSTRALIAN COPYRIGHT COUNCIL (ACC)
The ACC is an independent non-prot organisation
that provides information and advice about
copyright in Australia. The Council also produces
publications, carries out research and makes
submissions on copyright policy in Australia. It
is funded by the Australian Government and the
L aw in p rac tic e
Figure 15.8 A number of industry and non-industry bodies have
been established to educate the general public on copyright and
infringement issues regarding media obtained over the internet.
A U STRA L I A N FEDE RATI O N A G A I NST
C O P YRI G H T TH E FT (A FA C T)
AFACT was established in 2004 to protect the
Australian television and movie industry against
the effects of copyright theft. It works with industry,
government and law enforcement agencies to
achieve its aims.
EL E C TRO NI C FRO NTI ERS A U STRA L I A
I NC . (E FA )
Electronic Frontiers Australia is a non-prot
national organisation, independent of government,
representing internet users who are concerned
about freedom of expression in the online
environment and related issues. It aims to protect
and promote civil liberties, advocate change in
the law and educate the community about online
social, political, and civil liberties issues.
le g al li nk s

Australian Council for the Arts.

M USIC IN DUS T RY PIR AC Y
INVESTIGAT ION S ( MIPI)
MIPI acts on behalf of the music industry in
Australia to provide investigative services and
copyright enforcement, and is highly involved in
educating the Australia public about the costs of
music piracy to the music industry.
The website of the Attorney-Generals Department provides
information on copyright: www.ag.gov.au/copyright
The website of the Australian Copyright Council provides
information on its activities: www.copyright.org.au
The website of Electronic Frontiers Australia provides
information on current issues at www.efa.org.au

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 2%6)%7
1 Identify the domestic and international
protection that is provided for Australian
owners of copyright materials.
2 How does an artist receive copyright
protection for his or her material and how
can other people identify it?
3 Why did traditional copyright law have
to change to include digital copyright
protection and how did this affect ordinary
computer users?
4 How has the music industry dealt with
digital copyright infringers and how has the
market responded?
5 Describe some of the measures taken by
independent agencies to protect copyright.
2ES P O N S I VE N ESS O F T H E L AW
As discussed above, there has been much recent
change in both domestic and international
copyright law, as lawmakers around the world try
to keep up with the rate of technological change.
There have also been many civil lawsuits brought
by the music industry in an attempt to curb the
problem and deter future copyright infringement,
as well as criminal prosecutions for large-scale
piracy. This section considers some of those
responses and the future direction of the law.
#RIMINALLAWRESPONSETO
DIGITALCOPYRIGHT
So far this chapter has mainly looked at the use of
the civil law in response to digital copyright issues.
But as mentioned above, the Copyright Act includes
provisions that make certain acts of copyright
314 C a m b r i d g e L e g al S tu d ie s Pre limin ary
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2
%3%!2 #(    
1 Look for some further information on the
internet about the Kazaa case. What were
some of the arguments used by the parties
and do you think they were justied? Do
you think the outcome of the case was
correct?
2 Investigate some of the alternatives for
legally purchasing online media. Why do
you think some computer users continue to
download using le sharing technologies,
and do you think this is justiable? Why?
3 Look at the websites for each of the
institutions and agencies listed above and
describe how each agency is trying to
educate the public about illegal copying
and le sharing.
4 Which institutions and agencies do you
think are more successful in achieving
their goal of minimising digital copyright
infringement? Why?
infringement illegal, and in some cases include
severe nes or possible prison sentences. While
prosecutions for digital copyright infringements
do not yet appear to be directed at the average
computer user, there have been some important
cases that need to be considered.
For example, in November 2007, Jose Duarte, 21,
became the rst person convicted in Australia for
recording a lm from a cinema screen. In Sydneys
Downing Centre Local Court, Duarte pleaded
guilty to making an illegal copy of The Simpsons
Movie using the camera in his mobile phone and
uploading it to the internet. The lms distributors
conrmed that an illegal copy of the movie was on
the internet within hours of its global release but
prior to its US release. A criminal conviction under
the Copyright Act was recorded against Duarte and
he was ned $1000.
2/9/09 8:04:16 PM
 L aw in p rac tic e
Figure 15.9 AFACT protects the lm Figure 15.10 Prosecutions for digital copyright infringements are not
industry against piracy and copyright yet completely directed at the average computer user, but this could
infringements in Australia. change in the very near future.

There have been many more recent

examples of prosecutions for copyright
infringements, ranging from smaller viola-
tions to very large and expensive piracy
operations. Examples of these cases can be
seen on the AFACT website, whose address is
provided in the link below.
A recent criminal case in Australia relates
to the extradition of Australian resident
Hew Raymond Grifths for trial in the US on
charges of copyright infringement for illegal
Figure 15.11 The housing commission townhouse in which
software distribution. This is discussed in the Hew Raymond Grifths was reputed to live as a wanted fugitive
Case Space on page 316. at Berkley Vale on the Central Coast
l eg a l l i n ks

The Australian Federation Against
Copyright Theft (AFACT) provides
news articles and updates on criminal
prosecutions against movie piracy and
copyright infringements in Australia.
Visit the website and discuss some of the
current criminal cases under way against
Australians who have infringed lm
copyright and some of the penalties that
have been applied: www.afact.org.au/
news.html

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 ca s e s p a ce
United States of America v Grifths;=&#!

In a case closely watched by the
rest of the world, Hew Raymond
Grifths was accused by the
US of being a ringleader in an
internet software piracy network
called Drink or Die. The case is of
interest not just because it sets
a benchmark in the prosecution
of digital copyright infringement,
but also because it involves an
Australian resident indicted by a
court in the State of Virginia, US
for copyright infringement under
the US law. The case highlights
the serious consequences for
internet users worldwide if they
are charged with infringement
of internationally protected
copyright.
The US Government sought
to extradite Grifths for his
infringements, despite the fact
that he was not a fugitive and
had not committed a violent
crime. Grifths, who lived in a
modest house on the Central
Coast of NSW, had not taken any
money for his activities. Drink
or Die specialised in cracking
copyright-protected software,
movies, games and music by
removing the embedded codes,
then distributing them free of
charge.
The US Government took the
case for extradition to the Federal
Court of Australia, with lengthy
proceedings involving three
Australian court cases. The US
Government was successful in the
Federal Court of Australia and in
the Full Court on appeal. Grifths
applied to the High Court of
Australia for special leave to
appeal, which was refused.
Pending the High Court hearing
of his application, he was held in
custody in Australia. In February
2007, Grifths was extradited to
the US, where he pleaded guilty
in a Virginia court to criminal
copyright infringement. Grifths
was sentenced to 51 months in
a US prison. This sentence was
reduced to account for time
served in Australian custody and
in March 2008 he returned to
Australia.
The extradition was a
controversial topic in Australia,
as it led to questions about
why Grifths could not be
prosecuted in Australia, where
he had also infringed Australian
copyright law. Extradition to a
foreign country merely because
businesses in that country
were affected by the persons
acts was seen by some to be a
disproportionate response, and
one that implied an inappropriate
degree of inuence over Australia
by the foreign country. On the
other hand, the decision to
extradite Grifths was praised
by some as an important step
in enforcing the international
protection of copyright.

4 H E F U T U R E O F D I G I T A L COPY R I G H T
I N!U S T RA L IA
Despite stronger legislation, a constant stream
of court actions and the arrival of alternatives to
illegal le sharing, the issue of digital copyright
infringement has far from disappeared. For
example, Australian music industry organisation
Music Industry Piracy Investigations (MIPI) has
carried out research into the extent of music piracy
in Australia, which found that around 2.8 million
Australians download music illegally, 75 per cent
of whom are downloading every month. Nearly
70 per cent of Australians agree that illegal le
sharing is stealing, but only half of all 14- to
24-year-olds agree with this statement. There is
a common perception that accessing free music
from home does not really hurt anyone, and as
discussed above this is a perception that both the
music industry and governments have tried very
hard to change. It is not only record companies

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 L aw in p rac tic e
Figure 15.12 The law has to constantly and rapidly keep adapting itself to meet the challenges for copyright law and
digital technology.

that are deprived of income by illegal distribution 2 %3%!2 #(    

2 %6 ) %7    

of music, but also the musicians, composers and 1 Research some of the recent 1 Discuss whether and
authors who created the musical works. cases involving le sharing in what circumstances
Issues are likely to multiply as internet tech- and digital copyright, criminal prosecution for
nology continues to change and technology including the current status copyright infringement is an
expands into more areas traditionally protected of the Australian case appropriate response.
by copyright. Although most of the civil actions between AFACT and internet 2 Explain why the case of
to date have centred around the music industry, service provider iiNet. How Hew Raymond Grifths was
the battle is now turning to lm and video media do you think these cases are important for Australia and
and television networks. For example, a civil case changing the effectiveness outline the outcome of the
was commenced in 2008 by AFACT in Western of digital copyright in case.
Australia against internet service provider iiNet. Australia and its impact on 3 Discuss whether you think
It involves large movie industry players such as ordinary computer users? the responses to digital
Village Roadshow, Universal Pictures, Disney 2 A controversial new copyright infringement in
Enterprises and the Seven Network, and is international treaty on Australia and around the
important internationally because it tests the copyright infringement world have been sufcient
liability of internet service providers for the copy- called the Anti- and what actions you think
right infringements of their customers. Counterfeiting Trade might be used in the future.
The law has adapted very rapidly in recent Agreement (ACTA) is under
years to meet some of the challenges for copyright negotiation in response to
law and digital technology. The effectiveness of pirated copyright-protected
many of these laws is yet to be seen, as cases will works. Research the current
be played out in the courts in the coming years. status of this treaty and
As technology continues to change and people consider how it might affect
become more familiar with how to use it, as well Australian copyright laws.
as how to abuse it, the law will continue to adapt.

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 s Digital copyright protects against the
unauthorised use of copyright material in an
online environment.
s Original material (also known as intellectual
property) is protected by both domestic and
international copyright laws.
s The music and lm industries have brought
Ch a p te r s u m m a ry
civil actions against persons infringing
copyright. Two of the leading cases were the
Napster and Kazaa cases in the US.
s Criminal prosecutions for copyright
infringement have also been undertaken,
including NSW Local Court case against Jose
Duarte for recording a movie in a cinema and
United States of America v Grifths, which
involved an Australian distributing illegal
software and other media for free.
M u lt i p l e- c hoi ce q ues ti ons
 What is the meaning of internet piracy?
A the downloading of movies without the
owners permission
B the downloading of music without parental
permission
C the downloading and/or distribution of
media without the owners permission
D the downloading and/or distribution of
media without parental permission
 How are copyright owners protected from
internet piracy in Australia?
A by professional standards of ethics in the
music and movie industries
B by state and territory laws
C by the Copyright Act 1968 (Cth)
D by Border Protection Command
 What effect has the AustraliaUnited States
Free Trade Agreement had on the protection
of copyright in Australia?
A It has helped to develop more copyright
uniform laws.
B It allows Australians and Americans to copy
each others media for free.
C It has provided one copyright law for the
whole world.
D It has provided an agreement that Australia
and America will play each others music on
the radio.
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9780521734699part_03_3pp.indd 318
s The average user of the internet does not see
illegal downloading as a serious crime.
s Education of the public therefore plays an
important role in dealing with the issue.
s In general, those operators that make prots
from illegal downloading will be pursued,
rather than individual users.
 Why was AFACT established?
A to lobby for the rights of Australians
accused of internet piracy in the United
States
B to represent Australians concerned about
freedom of expression and civil liberties
C to protect the music industry from illegal
downloading and educate the public about
internet piracy
D to protect the lm and television industry
from illegal downloading and educate the
public about internet piracy
 Why is the case USA v Grifths so important?
A It involved the creation of enormous wealth
through illegal downloading using the
internet.
B It involved an Australian citizen being
charged in an American court for crimes
committed on the internet.
C It involved a case of mistaken identity, as
the prosecution assumed Grifths was
American.
D It involved an American citizen being
charged in an Australian court for crimes
committed on the internet.
2/9/09 8:04:25 PM
 Ch a p te r s u m m a ry ta s k s
 Outline what is meant by internet piracy and
illegal le sharing and what laws are relevant.
 Explain why stopping illegal downloading
of material and le sharing is a problem for
lawmakers.
 Discuss some of the approaches of lawmakers
to digital copyright issues. Do you think the
law has effectively adapted to protect digital
copyright?
Top i c revi ew
EX T EN DED R ES PON S E
Digital copyright is effectively protected in
Australia. Critically evaluate this statement
with reference to some of the legal efforts to
protect digital copyright. Also discuss some of
the non-legal responses to the issue and their
effectiveness.
9780521734699part_03_3pp.indd 319
L aw in p rac tic e
 Outline some of the approaches of industry,
organisations and the market to the issue.
Which approaches do you think are the most
effective and why?
 Propose a campaign to educate young
people about digital copyright, outlining
some of the issues and consequences for
infringing copyright in Australia.
Marking criteria for the extended response
question can be found at www.cambridge.
edu.au/education. Refer to these criteria
when planning and writing your response.
Cha pter 15 File sha ring a nd d i gi tal copyri ght 319
2/9/09 8:04:25 PM
 Area 4 : Criminal or civil cases that raise issues of
interest to students

CHAPTER 16
Drug testing
c hap ter ob j e cti ve s

In this chapter, students will:

s explore legal concepts and terminology in respect
to drugs and drug testing
s investigate the ability of the legal system to address
issues relating to drug testing
s explore the differences that exist between state and
federal law in relation to drug testing
s investigate the role of the law in addressing and
responding to change in relation to drug testing
s describe the legal and non-legal responses to drug
testing
s evaluate the effectiveness of legal and non-legal
responses to drug testing.
ke y t e r ms

illicit drug
prescription drug
legal drug
privacy
information privacy
bodily privacy
consent
employment contract

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 L aw in p rac tic e
rel ev ant l aw

IM PORTA N T L EGIS L AT ION AN D T R E ATI ES

Occupational Health and Safety Act 2000 (NSW)
Privacy and Personal Information Protection Act
1998 (NSW)
Privacy Act 1988 (Cth)
Road Transport Legislation Amendment (Drug
Testing) Act 2006 (NSW)
Road Transport (Safety and Trafc Management)
Act 1999 (NSW)
Rail Safety Act 2008 (NSW)
Defence Act 1903 (Cth)
Australian Sports Anti-Doping Authority Act
2006 (Cth)
Sports Drug Testing Act 1995 (NSW)

SIGNIFIC AN T C AS ES
BHP Iron Ore Pty Ltd v Construction,
Mining, Energy, Timberyards, Sawmills and
Woodworkers Union of Australia (WA Branch)
[1998] WA IR Comm 130
Shell Rening (Australia) Pty Ltd, Clyde Renery
v CMFEU [2008] AIRC 510
Candido v Hi Fi Supermarket Pty Ltd [2003] AIRC
983

Cha pter 1 6 Drug tes ti ng 321

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 Int roduc t ion
Recent surveys in Australia indicate that drug use
is a regular part of life for many people. The most
common drug use in Australia involves legal drugs
such as caffeine, medicinal drugs, alcohol and
tobacco. Although less common, statistics indicate
that a signicant number of people have also used
prohibited drugs at some point in their lives.
For example, a 2007 study conducted by the
Australian Institute of Health and Welfare, a federal
government agency, indicated that 41.3 per cent
of Australians aged 14 years or over used alcohol
at least weekly, 16.6 per cent were daily tobacco
smokers, and 13.4 per cent had recently used
prohibited drugs such as cannabis. Over the past
decade there has been a signicant decline in
the use of tobacco, but an increase in the use of
alcohol. The use of prohibited drugs has remained
at a generally lower rate in comparison. The table
below shows some of the statistics on recent drug
use by people in Australia.

Table 16.1 Summary of drug use in Australia, 19932007 (as a proportion of the population aged 14
years or older)

$RUGBEHAVIOUR      

4OBACCO 29.1 27.2 24.9 23.2 20.7
!LCOHOL 77.9 78.3 80.7 82.4 83.6 82.9
LLLICITDRUGS
Marijuana/cannabis 12.7 13.1 17.9 12.9 11.3 9.1 #
Pain-killers/analgesics * 1.7 3.5 5.2 3.1 3.1 2.5 #
Tranquillisers sleeping pills* 0.9 0.6 3.0 1.1 1.0 1.4 #
Steroids* 0.3 0.2 0.2 0.2
Barbiturates* 0.4 0.2 0.3 0.2 0.2 0.1
Inhalants 0.6 0.6 0.9 0.4 0.4 0.4
Heroin 0.2 0.4 0.8 0.2 0.2 0.2
Methadone ** or n.a. n.a. 0.2 0.1 0.1 0.1
Buprenorphine
Other opiates/opioids* n.a. n.a. n.a. 0.3 0.2 0.2
Methamphetamine (speed)* 2.0 2.1 3.7 3.4 3.2 2.3 #
Cocaine 0.5 1.0 1.4 1.3 1.0 1.6 #
Hallucinogens 1.3 1.8 3.0 1.1 0.7 0.6
Ecstasy*** 1.2 0.9 2.4 2.9 3.4 3.5
Ketamine n.a. n.a. n.a. n.a. 0.3 0.2
GHB n.a. n.a. n.a. n.a. 0.1 0.1
Injected drugs 0.5 0.6 0.8 0.6 0.4 0.5
Any illicit 14.0 17.0 22.0 16.9 15.3 13.4 #

.ONEOFTHEABOVE 21.0 17.8 14.2 14.7 13.7 14.1

* For non-medical purposes

** Non-maintenance
*** This category included substances known as Designer drugs before 2004.
# Difference between 2004 result and 2007 result is statistically signicantly (2-tailed = 0.05).

Australian Institute of Health and Welfare, www.aihw.gov.au/publications/index.cfm/title/10579

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 In the general sense a drug can be dened as
any substance that alters bodily function, whether
to treat or prevent disease or for other purposes.
Of course, the effect on a person will depend on
the nature of the drug itself and the quantity and
circumstances in which it is used.

L aw in p rac tic e
A drugs effects might be minimal or temporary,
such as, for example, the stimulant effect of
caffeine. However, in some circumstances, drugs
can result in serious side effects or long-term
health problems. Because of the negative effects
of some drugs and the danger they can pose to
users and the people around them, societies have
developed laws over time to prohibit certain drugs
or to restrict their use.
More recently, technology has enabled testing
for the presence of drugs in situations where
the drug is prohibited or deemed unsuitable, for
Figure 16.1 A selection of mind-altering substances
example in the workplace, when driving a car or
in some public places. This chapter looks at some
of the laws and cases on drug testing in Australia
and explores some of the issues relating to the
application of those laws, and the effects of the
laws on the individual and on society in general.

$RUGSANDTHELAW
Certain drugs have been restricted or prohibited
by societies since far back in recorded history. For
example, one of the earliest recorded prohibitions
was against the use of alcohol under Islamic sharia
law, attributed to passages from the Quran from
the seventh century CE. In Europe Pope Innocent
VIII issued a prohibition on cannabis in 1484, and
one of the rst laws against smoking in public
places was issued in 1632 in America by the Figure 16.2 Even coffee has been prohibited at
Massachusetts General Court. certain times throughout history.

Even coffee has been prohibited at certain

times throughout history. For example in 1675
King Charles II of England, concerned that the
increasing popularity of coffee in coffee houses
across the kingdom was causing rebellion among
his people and producing very evil and dangerous
effects, issued a Proclamation for the Suppression
of Coffee Houses. The law called for the closure
of all cafs and prohibited sale of coffee, tea and
even chocolate. Not surprisingly, the law was
so unpopular that the people forced the king to
overturn it within just one week.

Cha pter 1 6 Drug tes ti ng 323

9780521734699part_03_3pp.indd 323 2/9/09 8:04:37 PM


legal drug
a drug that is not
prohibited under the
law, although some
other restrictions may
apply
prescription drug
a type of legal drug that
can be obtained only by
a doctors prescription
illicit drug
also called an illegal
drug; a drug that is
prohibited by law
324 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 324
Figure 16.3 King Charles II of England
attempted to prohibit coffee in 1675.
Australia today has both federal and state
legislation relating to drugs, as well as local laws.
These laws cover various social aspects of drug use
and address issues including such as the trade and
supply of drugs, use and possession of drugs, and
access to or treatment with medicinal drugs.
The laws will differ depending on whether the
drug is a legal drug, for example aspirin, caffeine,
tobacco, or alcohol; a prescription drug such as
birth control, antibiotics or anti-depressants; or an
illicit drug such as cannabis, heroin or ecstasy.
Laws may restrict the sale, advertising or
licensing of a drug, prohibit its cultivation or
trafcking, or impose restrictions on the age of
drug users or the places or situations in which the
drug can be used. For example, tobacco is a type
of legal drug whose use is subject to a number
of conditions. A breach of these restrictions will
generally result in a ne. Some of the current laws
in Australia and New South Wales that impose
conditions on the sale or use of tobacco include:
s a prohibition on advertising tobacco products
Tobacco Advertising Prohibition Act 1992 (Cth)
s compulsory health warning labels on cigarette
packs Trade Practices (Consumer Product
Information Standards) (Tobacco) Regulations
2004 (Cth)
s higher taxes on cigarettes Excise Act 1901
(Cth)
s making it an offence to sell cigarettes to
persons under 18 years old Public Health Act
1991 (NSW)
s a prohibition on smoking in enclosed public
places Smoke-free Environment Act 2000
(NSW).
With respect to illicit drugs, different laws
will apply depending on the type of drug and
the circumstances. Criminal offences range
from minor summary offences to more serious
indictable offences, with corresponding penalties
from a recorded conviction or a small ne to life
imprisonment. Prohibited activities include use of
certain drugs, possession of specied amounts,
cultivation, trafcking and importation. Types of
offences and the laws in which they are contained
include:
s illicit drug offences under New South Wales
state law, including a list of prohibited drugs
Drug Misuse and Trafcking Act 1985 (NSW)
s importation of illicit drugs, including a list of
prohibited drugs Customs Act 1901 (Cth) and
Customs (Prohibited Imports) Regulations 1956
(Cth)
s trafcking of illicit drugs Crimes (Trafc in
Narcotic Drugs and Psychotropic Substances) Act
1990 (Cth).
2/9/09 8:04:44 PM

Figure 16.4 Australian laws impose many restrictions on tobacco products.
Figure 16.5 Under the Law Enforcement (Powers and Responsibilities) Act 2002
(NSW) s 148, police do not need a warrant to use sniffer dogs to detect drugs in
pubs, at entertainment events and on public transport in New South Wales.
$RUGTESTING
Many drugs, both legal and illicit, can
alter perception, emotion, judgment or
behaviour and as a result can interfere
with the way a person carries out tasks
such as playing sport, driving a car
or completing work duties. Driving a
car under the inuence of alcohol or
operating heavy machinery under the
inuence of cannabis, for example, can
endanger both the person and others.
This is one of the reasons that law
enforcement agencies, employers and
others have begun to test individuals
for the presence of drugs in particular
circumstances, in order to deter or
penalise their use.
The drugs for which people may
be tested include legal drugs such as
alcohol, prescription drugs and over-
the-counter pharmacy drugs, and
illegal drugs such as cannabis, cocaine,
amphetamines and heroin. The purpose
9780521734699part_03_3pp.indd 325
of the testing, the practical limitations of
the equipment being used and the costs
associated with testing will determine
what tests are carried out. The methods
used have varying levels of accuracy and
instrusiveness. They include:
s surveys or questionnaires
s interviews or clinical observation
s assessment of a persons clothes or
belongings, using sniffer dogs or scan-
ning equipment
s testing of bodily tissue (skin, hair,
nails)
s testing of bodily uids (breath, saliva,
blood, urine or sweat).
Technological advances in drug test-
ing methods now enable more accurate
results than in the past.
The legal implications of testing will
depend on the method used and the
reasons that justify the testing. This can
touch on areas of both criminal and civil
law and raises issue of consent, necessity,
privacy and broader social policy.
2
%3%!2 # (    
There are several international
treaties relating to drugs. Go
to the Australian Institute of
Criminology website (www.
aic.gov.au/research/drugs/
L aw in p rac tic e
international/treaties.html), list
the treaties to which Australia
is a party, and for each treaty,
answer the following questions:
1 What are its aims?
2 Does the treaty focus on the
possession, use, or sale of
drugs, or on other activities
involving drugs?
3 What kinds of drugs does it
deal with?
4 What methods does it use to
achieve its aims?
5 How many nation-states are
parties to the treaty?
2 %6) %7    
1 How common is drug use in
Australia? What types of drug
use are most common?
2 Describe some of the history
behind drug laws throughout
the world. What types of drugs
have been restricted by the law
and why?
3 What are some of the laws
in Australia that restrict or
prohibit drugs? What are some
of the penalties that can apply
for not complying with the
laws?
4 What are some of the methods
used for drug testing and in
what situations do you think
they might be used?
Cha pter 1 6 Drug tes ti ng 325
2/9/09 8:04:47 PM
 - E C H A N I S M S F O R A C H I EV I N G J U S T I CE
I NDRUGTES T I NG
Drug testing has been introduced or considered in
many different areas over the past two decades.
These are discussed in detail below.
,EGALRESPONSES
Drug testing can be seen as an intrusive act. For
this reason, in many instances where it has been
introduced, laws and policies have had to be
adapted, both to permit the testing and to provide
a clear and transparent process to follow.
Changes to the law will depend on the context
of the drug testing. For example:
s Roadside testing of motor vehicle drivers might
require a change in police powers and the
introduction of new driving offences.
s Different government employers might require
changes to their statutory powers to allow them
to test certain employees for drugs.
s Private sector employers might require changes
to their staff employment contracts or the
introduction of new policies and guidelines.
Figure 16.6 ACT Police Breath Testing/Command truck
326 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 326
4ESTINGMOTORVEHICLEDRIVERS
Probably the most visible instance where drug
testing is used is for motor vehicle drivers. Safety
on the roads is cited as the primary reason for
testing in this situation.
As this is an area of criminal law, it is enforced
by the police force, and any state or territory
police ofcer in Australia can require a person
driving a motor vehicle to undergo a roadside
breath test to determine whether there is more
than the permitted concentration of alcohol in the
blood. More recently, some states and territories,
including New South Wales, have introduced
random drug testing to identify drivers under
the inuence of other drugs, such as cannabis,
ecstasy, speed or some prescription drugs that can
impair driving ability. In 2006, the Road Transport
Legislation Amendment (Drug Testing) Act 2006
(NSW) was passed to amend the Road Transport
(Safety and Trafc Management) Act 1999 (NSW).
This authorised random testing of drivers.
The testing will usually involve two stages: a
preliminary oral uid test plus a secondary test
to conrm the results. Where a drivers behaviour
suggests impaired driving ability, police may
order the driver to undergo more intrusive testing
by a medical ofcer, such as testing samples of
blood and urine. Penalties for returning a positive
reading can vary depending on the circumstances
and the drug, including nes, suspension of licence
or even a prison sentence.
In May 2009, NSW police reported that 34 335
motorists had been tested, 757 tested positive
for illicit substances, and 598 were prosecuted
in court. Of those prosecuted, approximately
98 per cent had convictions recorded against
them. Given these results, and the safety impli-
cations for all people using public roads, there
appears to be general public approval of this type
of drug testing, provided that the process and
methods used are fair and transparent.
2/9/09 8:04:48 PM
 4ESTINGEMPLOYEESINTHE
WORKPLACE
As Australia has no national comprehensive
drug strategy or legislation governing employers
approach to drugs, the issue of drug testing in the
workplace is largely governed by occupational
health and safety legislation, which varies from
state to state.
JUSTIFIC AT ION S F OR WOR K PL AC E D RU G
TESTING
Four main reasons are commonly cited to justify
testing individuals for the presence of drugs in the
workplace. Whether these reasons are fair and
just would need to be assessed according to the
particular workplace context and the extent of the
testing proposed. They are:
s safety of the individual and others
s productivity of an organisation or individual
s health of individuals using drugs
s integrity or reputation of the company or the
group to which the individual belongs.
Safety: The primary reason for drug testing in the
workplace is safety ensuring that employees are
t to carry out their duties. This is especially so in
jobs where health or even lives can be put at risk
if employees are not alert, such as those involving
the operation of vehicles or equipment requiring
precision. The use of drugs that impair judgment
poses a risk to the users own safety and to the
safety of other employees and/or customers or the
general public.
In New South Wales, under the Occupational
Health and Safety Act 2000 (NSW) s 8, employers
have a general duty to ensure the health, safety
and welfare of their employees while they are
at work. Employers often point to this duty to
justify the introduction of workplace drug testing
programs.
Productivity: Another reason often cited for
carrying out random drug testing in the workplace
is that by helping to identify workers who are using
drugs, it can reduce the cost of time lost due to
the effect of drugs, accidents in the workplace, and
9780521734699part_03_3pp.indd 327
L aw in p rac tic e
Figure 16.7 Workplace safety is one reason put forward to justify
random drug testing in the workplace.
absenteeism, as well as the costs of health care or
workers compensation.
Health: The current or long-term mental or
physical health of the individual may be used as a
reason for drug testing, especially in schools, sport
and the workplace. Drug testing might be used to
identify individuals who may need help with drug
dependency or other health problems related
to their drug use. A signicant question here
is whether the health of the individual is rightly
the concern of an outside party or whether it is a
private matter for the individual.
Integrity: One nal justication for conducting
drug tests relates to the integrity and reputation of
the company or organisation to which the indi-
vidual belongs. For example, over the past few
decades, many athletes have returned positive test
results for performance-enhancing and other illicit
drugs. As a consequence, some sporting associa-
tions have claimed, their sponsors or the general
public are likely to have negative perceptions of
their sport or association. Similarly, some com-
panies, organisations, government bodies or even
schools may be concerned that reports of
employees or students drug use will affect their
reputation and the way their work practices,
culture, discipline or performance are viewed.
Cha pter 1 6 Drug tes ti ng 327
2/9/09 8:04:51 PM
 EMPL OY EES R IGH T S
Employees themselves, however, may see this test-
ing as an infringement of their rights and an invasion
of their privacy. This is especially the case where
more intrusive methods of drug testing are pro-
posed, such as saliva or blood and urine samples.
Other important issues are:
s Who is to be tested: for example, whether it is
targeted at one individual or random testing
across the entire workforce
s When and where: the time and place of testing,
for example at work or home, in private or in
front of other people
s Refusal: what happens when a person refuses
to take a test or cannot take a test
s Information: what is done with the information
received and how long this information can be
kept
s Penalties: whether the penalties that apply are
reasonable or too harsh
s Review: the reliability and independence of
the tests and whether a person has a right to
complain or review the process.
If a company fails to consider these issues from
the perspective of its employees, the introduction
of drug testing in the workplace can result in
civil action. Some of the court judgments arising
from these circumstances have served to clarify
the processes that can be used to ensure that
Figure 16.8 Two common areas in which random drug testing is conducted
328 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 328
workplace policies are just. A few of these cases
will be considered later in this chapter.
Workplace drug testing might be performed by
or on behalf of public or private sector employers
or by the relevant government regulatory bodies
for the industry. For example, drug testing of
coal mine employees might include drug testing
by mining companies or by the New South Wales
Chief Inspector of Coal Mines. Some of the
industries where drug testing is carried out are
outlined below.
RA I LWAY EM PL O YE E S
Employees of the State Rail Authority in NSW may
be subject to drug testing under the Rail Safety
(Drug and Alcohol Testing) Regulation 2008 (NSW).
The most signicant reason for this testing is
the safety of drivers, passengers and the general
public, given the high possibility of danger should
something go wrong.
Employees carrying out rail safety work, as
dened in s 7 of the Rail Safety Act 2008 (NSW),
include drivers, signal operators, workers who
couple or uncouple trains, those whose work is
maintenance, repair, or inspection of trains, equip-
ment or infrastructure, and those who manage
and monitor safe working systems or passenger
safety. All of these employees are be subject to the
regulation. These employees can be randomly
2/9/09 8:04:55 PM
 tested before or during their shifts where there is
reasonable cause to believe that there are drugs in
their system, or where the employee has been
involved in an accident.
AUSTRAL IAN DEF EN C E F OR C E
A person may also be required to undertake a drug
test before appointment or enlistment.
A I RL I NE E M P L O YEES
Some Australian airlines conduct pre-employment
testing of some employees, particularly ight and

All members of the armed services in Australia
are subject to some form of drug testing. Again the
safety of the employees and the general public is
the primary concern, in addition to integrity and
the Defence Forces reputation nationally and
internationally.
Part VIIIA of the Defence Act 1903 (Cth) authorises
drug testing of all armed services personnel as
part of the Prohibited Substance Testing Program.
med i a cl i p
L aw in p rac tic e
cabin crew. Recent events have also resulted in
the Commonwealth Civil Aviation Safety Authority
considering the introduction of new civil aviation
regulations, to permit drug testing of employees
in safety-sensitive areas, including air trafc con-
trollers, baggage handlers, refuellers and other
ground staff. The media clip below illustrates
some of the issues that might be considered under
these laws.

Aviation sector faces Under the system, any staff member of an

widespread drug testing
by Andrew West
The Age, 13 May 2009
Pilots, air trafc controllers and baggage
handlers will be subject to random tests for
drug and alcohol use under a new system to
be phased in by Australias air safety regulator
this month.
The Civil Aviation Safety Authority will begin
testing safety-sensitive personnel who are
involved in the control or maintenance of
aircraft.
CASA estimates the new regulations will
cover up to 120 000 pilots, ight attendants,
aircraft engineers, refuellers, ight controllers
and ground staff. Its been in the pipeline
for several years, a CASA spokesman, Peter
Gibson, said.
The scope is, quite intentionally, fairly wide
to include anybody who could have a safety
impact on the aircraft.
Mr Gibson said baggage handlers were also
included in the testing because they had regular
contact with aircraft on the tarmac. This will
occur at Sydney Airport, or at Bourke, or any-
where there is safety-sensitive activity, he said.
airline, government agency, engineering or
ground services company found with a blood
alcohol level of more than 0.02 per cent, or
any trace of drugs, would be immediately
stood down. The worker would have a second
test and see a doctor for an assessment.
If a doctor detects a dependence problem,
the employee will enter rehabilitation. Staff
whose misuse of drugs or alcohol is assessed
as one-off or out of character will be able to
return to work after a brief break. Offenders
may also face nes up to $5500.
The decision to introduce widespread
random testing came after a plane crash
on Hamilton Island in 2002 left six people,
including a family of four from New Zealand,
dead. Police later found cannabis and
smoking utensils in the pilots car.
Mr Gibson said all companies involved in
the aviation industry would have to introduce
drug- and alcohol-management plans for staff
and rehabilitation for affected staff. All the
key players in the industry have signed up,
he said.
Unions representing the pilots and air trafc
controllers support the testing, which will be
carried out on site by the pathology company
Symbion.

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 2%6)%7
4ESTINGOFATHLETES
1 What are some of the main
reasons why employers and the
public might want to introduce
workplace drug testing?
2 What are some of the most
important issues for employees
who are facing a drug test?
3 What types of workplace are
subject to drug testing in
Australia and do you think
it is justied? What other
workplaces do you think
should consider drug testing of
employees?
4 Read the article on airline
drug testing and answer the
following questions:
a Why is the Civil Aviation
Safety Authority proposing
to introduce drug testing?
b Which airline and airport
employees might have to
undergo the proposed tests?
c What happens if an
employee tests positive to a
drug test?
330 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 330
that tend to impair work performance.
Drug testing of professional athletes,
such as rugby league players, could be
considered a category of workplace
drug testing. Drug testing for amateur or
semi-professional athletes is generally
a matter for individual clubs or sporting
associations. The National Anti-Doping
Scheme governs drug testing required
of athletes who have been selected to
compete as representatives of Australia in
international sporting competitions. The
body that administers the scheme is the
Australian Sports Anti-Doping Authority
(ASADA), established by the Australian
Sports Anti-Doping Authority Act 2006 (Cth).
It has the power to investigate anti-doping
rule violations, make recommendations
on its ndings, and present cases against
alleged offenders at sport tribunals.
The term doping refers to the use of
a drug to improve athletic performance,
and drug testing of people in sport
involves some different issues from
those usually present in the workplace.
It usually focuses on the detection of
performance-enhancing drugs, such as
anabolic steroids, rather than on drugs
Figure 16.9 Even swimming stars such as
Grant Hackett are subjected to rigorous
drug testing to ensure fair competition.
The reasons for testing include ethical and
practical concerns about fair play between
competitors, the reputation of teams and
sporting codes, and the health and safety
of individual players and the fans who look
up to them. As a result many governing
sporting bodies have adopted drug testing
in order to prevent so-called drug cheats
and improve the integrity of their sports.
The laws on drug testing in sport are
generally different from those governing
drug testing in the workplace. They include
state and federal legislation about testing
standards and often incorporate codes
and policies drafted by individual sporting
associations, such as those the sporting
codes of football leagues. Independent
bodies, such as ASADA and the Australian
Sports Drug Medical Advisory Committee,
assist in educating, setting standards,
conducting and reviewing sports drug
testing.
The Australian Sports Anti-Doping
Authority Act 2006 (Cth) was amended in
2008 to bring it into compliance with the
World Anti-Doping Code.
In New South Wales, the Sports Drug
Testing Act 1995 (NSW) contains provisions
for drug testing of persons who participate
in sporting activities receiving funding
from the state, or under a program
administered by a body that receives
funding from the state.
4ESTINGINSCHOOLS
Reasons often offered for drug testing
in schools are the immediate and long-
term health of students, and the safety of
students in the school environment.
There is little evidence that drug testing
is or has been used in Australian schools
to date, although it is widespread in the
United States. The issues and laws are
different from those applicable in sport
2/9/09 8:05:04 PM
 or the workplace, as the vast majority of persons
who would be affected by drug testing in schools
are minors that is, people under 18 years of age.
While the school has a duty of care to protect its
students, persons under 18 lack the legal capacity
to consent to certain invasions of privacy. In
considerations, the report concluded that drug
testing of students is not appropriate for Australian
schools. The ABC News media clip below discusses
some of the issues raised in the report.

legal links

L aw in p rac tic e
Australia strict laws of privacy apply to protect A copy of the report Drug Testing
individuals rights. in Schools is available on the
In 2008 a federal government report by the website of the Australian National
Australian National Council on Drugs thoroughly Council on Drugs: www.ancd.org.
investigated the advantages and disadvantages of au/assets/pdf/rp16_drug_
drug testing in Australian schools. After looking at testing_in_schools.pdf
all the issues, including the relevant legal and ethical

2 %6) % 7    

m ed i a cl i p

School drugs test a waste of money 1 What are some of the

by Michael Turtle
main reasons for drug
ABC Online, 26 March 2008 testing in sport? Do you
agree?
A year-long study from the federal governments advisory group on 2 Do you know of any
drugs has found drug testing in schools would be a waste of money. cases in the media
The report was commissioned by the Australian National Council on
where athletes have
Drugs after debate in the community about compulsory drug testing in
been accused of drug
schools.
It found that any testing system would be ineffective and not always use? How do you
give the right results. think the legal and
Report author Ann Roche says it would also have negative effects like ethical considerations
creating mistrust and stigma. mentioned above in the
Level of use is actually quite low so youre kind of looking for a
context of drug testing in
needle in a haystack, therefore therell be more error, she said.
sport might apply to the
To falsely accuse a young person of illicit drug use is really
problematic. case?
The study found it would cost about $350 million to do a saliva test 3 What are some of the
for every student in the country and it says that money could be better legal issues relating to
spent elsewhere. drug testing in schools?
New South Wales Education Minister John Della Bosca says he agrees 4 Do you think that
with the reports recommendations.
drug testing in
Mr Della Bosca says it would also be monumental waste of taxpayer
schools is necessary or
funds.
Fewer than 2 per cent of our suspensions and expulsions were appropriate?
resulting from drug use or drug selling in schools, he said.
If students are suspended for using or possessing drugs at school,
part of their return to school program will involve anti-drug counselling.
This is a far more effective way of dealing with illicit drug use.

Cha pter 1 6 Drug tes ti ng 331

9780521734699part_03_3pp.indd 331 2/9/09 8:05:07 PM

 privacy
a persons right to be
free from unwanted
intrusion or public
scrutiny
information privacy
protection against
inappropriate handling
of a persons personal
information, with rules
for the collection and
handling of personal
data and records
bodily privacy
protection from
physically invasive
procedures without the
persons consent
consent
free and voluntary
agreement by a rational
person who is able to
understand and make
a decision about the
matter to which he or
she agrees
Figure 16.10 Physical and information privacy are two issues linked
to drug testing.
332 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 332
/THERLEGALRESPONSESTO
DRUGTESTING
When drug testing is to be carried out, there are
three parties to be considered: the person being
tested, the person (or organisation) carrying out
the testing, and the general public. Parties rights
and obligations can come from specic legislation.
In sport, they can also come from sporting
codes of conduct. Relevant areas of law include
employment law and criminal law.
0RIVACYANDCONSENT
Australian privacy laws offer some protection
to individuals required to undergo a drug test.
Several different types of privacy are relevant to
drug testing:
s information privacy including rules about
the collection and handling of personal data
and records
s bodily privacy protection from physically
invasive procedures, such as blood or saliva
tests, without the persons consent
s privacy of communications protects infor-
mation that a person sends or receives, such as
mail, e-mail or phone conversations
s territorial privacy limits intrusions into certain
environments, for example video surveillance,
searches or identity checks in the workplace or
in the home.
In New South Wales, the Privacy and Personal
Information Protection Act 1998 (NSW) sets out
12 Information Protection Principles (IPPs) to
protect information relating to individuals. These
principles relate to the collection, storage, access
to, accuracy of, use and disclosure of information.
It also provides complaint mechanisms to
allow cases to be reviewed by the NSW Privacy
Commissioner. The agencies bound by the Act
include state government departments, statutory
authorities, the police, and local councils.
The main federal law protecting privacy of
personal information is the Privacy Act 1988 (Cth).
It offers similar protection as the NSW Act. Eleven
IPPs apply to Commonwealth and Australian
Capital Territory government agencies that collect
information about individuals. Ten further IPPs
apply to certain private companies (for example,
credit providers and credit reporting agencies,
which have access to individuals personal tax le
numbers) and to all health service providers.
l eg al l i nks
Privacy NSW is the ofce of
the New South Wales Privacy
Commissioner. It provides advice
to employers and individuals
on privacy issues and privacy
complaints: www.lawlink.nsw.gov.
au/lawlink/privacynsw/ll_pnsw.
nsf/pages/PNSW_index
Central to the question of whether a persons
right to physical privacy or to information privacy
has been breached is whether the person freely
consented to the physical procedure or the
disclosure of information. An individuals right to
bodily privacy is entrenched in both the common
law and legislation in the form of prohibitions
on criminal assault. It is also implied by the tort
of trespass to the person. The law may consider
a breach of a persons bodily privacy to be an act
of assault or trespass unless that individual has
2/9/09 8:05:13 PM
 voluntarily consented. Only in rare circumstances
can a lawful invasion of a persons bodily privacy
occur without this consent, for example in some
situations of medical emergency where that
person is unconscious or otherwise incapable of
consenting.
Drug testing cannot be forced on an individual
and any process for drug testing of individuals must
consider and comply with legal requirements for
consent. The most difcult issue for organisations
conducting drug testing is what to do when a
person refuses to consent to testing. (For example,
should an athletes refusal result in an immediate
penalty or suspension?) The way an organisation
deals with refusal to consent will depend on its
rules relating to drug testing.
%MPLOYERANDEMPLOYEERIGHTS
In addition to the issues of privacy and consent, the
rights of an employee are protected by his or her
employment contract. This may be a collective
agreement negotiated by the employees at a
company or by their trade union, or an individual
contract applying to the individual worker.
Workplace agreements are legal and binding
contracts and require both parties to abide by
their conditions.
Where there is a requirement not to use certain
drugs at or away from work, or where drug testing
is a requirement of employment in a workplace,
this will often be a term of an employment contract.
The contract will form the basis of an employees
agreement to those terms when the employee rst
joins that particular workplace.
Where workers in a particular industry belong
to a union, the union can assist employees in
negotiating fair workplace conditions. Unions usu-
ally have more power than individual employees
to change or negotiate employment terms, and
can often provide the most security against such
things as dismissal where an employee refuses to
take a random drug test or tests positive.
For employers, employment contracts will
often form the basis for justifying the use of
drug testing, as it can be claimed that employees
9780521734699part_03_3pp.indd 333
L aw in p rac tic e
Figure 16.11 In some sectors, drug testing may
become part of the interview process.
agreed to this when they rst accepted the job. employment contract
a contract between
Discussion with unions when drafting appropriate
an employer and
policies can strengthen an employers justication employee(s) which sets
for instituting drug testing programs. out matters including
the pay, hours, working
As mentioned earlier in this chapter, drug poli-
conditions, benets
cies are often instituted under the occupational and obligations
health and safety (OHS) policy of a workplace. In of the employee
and the rights and
NSW, the Occupational Health and Safety Act 2000
responsibilities of the
(NSW) contains obligations upon employers to en- employer
sure that the workplace is safe and t to work in.
l e g al l i nks
WorkCover NSW is responsible for
overseeing occupational health and
safety laws in New South Wales.
Information on OHS laws can be
seen on their website at
www.workcover.nsw.gov.au
2 %6 ) %7    
1 Describe and evaluate the ways that
employees are protected against random
drug testing in the workplace.
2 How are employers rights protected?
3 Propose a constructive approach to a
workplace drugs and alcohol policy. What
would you include in the policy and why?
Cha pter 1 6 Drug tes ti ng 333
2/9/09 8:05:15 PM
 .ON
LEGALRESPONSESAND about the way a policy is being implemented, or
ORGANISATIONS
When the introduction of drug testing in a workplace
is proposed, a number of factors outside the law
may need to be considered. These might include the
degree of employee or community support for the
proposal, and whether there are other alternatives
available such as targeted education programs
about drugs and workplace safety, peer support,
employee assistance or counselling programs for
people affected by drugs. Other agencies may be
helpful in assessing the benets and drawbacks of
drug testing, and in addressing drug issues in other
ways. These include trade unions, commercial
interests, the media, or interested governement
and non-government organisations.
#OMMUNITYSUPPORT
Community reaction is important when considering
drug testing. As discussed at the beginning of
this chapter, the community would be unlikely to
support, for example, a prohibition on caffeine or
aspirin, or the testing of individuals for the presence
of these substances.
Public support of drug testing proposals can often
be critical to their success. For example, in a 2004
survey conducted by the Australian Government
Ofce of the Privacy Commissioner, respondents
were asked about their attitudes toward random
drug testing. Of the respondents, 16 per cent said that
drug testing of employees was never appropriate.
The majority of respondents (59 per cent) saw
random drug testing as appropriate only where
necessary to ensure safety, and only 23 per cent
of respondents suggested that drug testing was
appropriate whenever employers chose.
4RADEUNIONS
As discussed above, trade unions can play an impor-
tant role in negotiating employment contracts and
workplace drug testing policies. Unions may be able
to provide additional support such as mediation or
counselling services, provide a voice for concerns
334 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 334
help to persuade organisations to change or update
their drug testing policies if required.
#OMMERCIALRESPONSES
Another area of relevance is the emergence in
recent years of a market in drug testing. A number
of companies in the commercial sector now offer
drug testing and consultancy services, for example
assistance in legal compliance and drafting of drug
testing policies. In addition, the manufacturers and
retailers of commercially available drug testing
products have an interest in the introduction
of compulsory drug testing in the workplace.
Commercial interests may also include the interests
of the company or organisation itself in promoting
or being seen to promote productivity in the
workplace. Commercial interest is an important
consideration in the growth of drug testing in the
workplace and should always be carefully weighed
against the real necessity or reasonableness of the
testing in each individual case.
leg al l i nks
The following company is an
example of an Australian laboratory
that conducts drug testing services
for Australian businesses. Visit the
website and consider how the laws
you have learnt about apply:
www.medvet.com.au/drug_
testing/services.php
4HEMEDIA
A further consideration, especially where issues
of integrity and reputation are important, is the
media. The media can play an important role in
informing the public attitude toward drug testing,
and media coverage, both positive and negative,
can be important in encouraging or discouraging
its spread.
2/9/09 8:05:15 PM

Media coverage is especially inuential with
respect to drug testing in sport. It can have a
signicant impact on the perceived integrity of
high-prole sports gures or sporting clubs. While
the exposure and condemnation of illicit drug
use can be considered a positive consequence,
media coverage and commentary can also have
a detrimental effect on clubs or even individual
careers, especially where allegations of drug use
cause long-lasting damage to reputation but are
not based on factual evidence.
'OVERNMENTANDNON
organisations in Australia and
GOVERNMENTORGANISATIONS
A number of government and other organisations
are instrumental in providing research, com-
mentary, advice or assistance for the public and
for the parties involved. In addition to the NSW
and federal Privacy Commissions and WorkCover
NSW, some other organisations are listed in the
Legal links box on the right.
2ES P O N S I VE N ESS O F T H E L AW
As we have seen, there are a number of ways in
which the Australian legal system addresses drug
testing.There is legislation prohibiting or restricting
certain drugs and creating offences for certain
dealings with those drugs. There is legislation
relating to drug testing in individual workplaces,
for example in the Australian Defence Force or the
NSW State Rail Authority. Drug testing in sports
is overseen by a different legislative regime and
advisory bodies, as well as individual sporting
codes and sporting tribunals. For other workplaces,
more general laws relate to issues of information
privacy and bodily privacy, especially in relation
to consent.
While it is clear that workplace drug testing in
New South Wales is being carried out by various
organisations in both the public and private sectors,
9780521734699part_03_3pp.indd 335
legal links
The Australian National Council
on Drugs, as mentioned above,
provides advice and advocacy
to government and the public
on drug-related issues and is
inuential in shaping national drug
L aw in p rac tic e
policy: www.ancd.org.au
The Australian Drug Information
Network (ADIN) serves as a central
point of access to alcohol and drug
information provided by prominent
internationally: www.adin.com.au
The New South Wales Road
Transport Authority provides
information and advice in relation
to roadside drug testing of motor
vehicle drivers:
www.rta.nsw.gov.au
the full extent of this practice and the effectiveness
of current laws in protecting the parties interests
are difcult to measure. Particularly in the private
sector, the extent to which drug testing practices
are routinely carried out is not clear, especially
where drug testing is carried out by a company
before the person actually begins working for it.
While technological methods for performing
drug tests have improved, there is little evidence
as to their effectiveness in deterring drug use or
preventing injury or crime. For example, a 2006
review by the NSW Ombudsman into the use of
sniffer dogs, titled Review of the Police Powers
(Drug Detection Dogs) Act 2001, found no evidence
that sniffer dogs deterred drug use or reduced
drug-related crime. The review also found that
sniffer dogs were only successful in targeting drug
Cha pter 1 6 Drug tes ti ng 335
2/9/09 8:05:16 PM
 dealers in 1.4 per cent of cases: in other words,
they targeted mostly recreational users, and only
by chance might they detect a supplier.
For employers and employees one of the most
important methods of oversight is provided by
state and federal industrial relations systems that
cover disputes between employers and employees.
Judgments of these industrial relations tribunals
ca s e s p a ce
have been able to provide some guidance on
best practice in the use of drug testing programs.
The following case illustrates the importance of
consultation with employees when drafting a drug
testing policy. It was one of the rst Australian cases
involving compulsory drug testing in the workplace.
It was brought before the Western Australian
Industrial Relations Commission in 1998.

BHP Iron Ore Pty Ltd v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers
Union of Australia (WA Branch) ;=7!)2#OMM

The employer, a mining
company, wished to introduce
a drug testing program for all
employees. While it had sought
the input of employees and most
of the employees had agreed
to the program, the union was
opposed to it. The union argued
that there was no evidence that
such a drastic program was
needed, as there had been no
drug-related incidents, and a
positive urine test did not reliably
indicate actual impairment on the
job. They said the drug testing
constituted an unreasonable
intrusion into the privacy of the
employees.
BHP argued that it needed to
implement the program to meet
its obligations under the Mining
Safety and Inspection Act 1994
(WA), which prohibited a person
being in a mine while under the
inuence of alcohol or drugs, and
its OHS duty to maintain a safe
workplace.
The Commission found that
BHPs proposed drug testing
program was reasonable. BHP
had undertaken a consultation
process, and the policy was
acceptable to the majority of
employees. The Commission
also considered it reasonable for
the company to put in place a
compulsory drug testing scheme
rather than having to wait until
a staff member showed signs of
impairment to test him or her.
With respect to the invasion
of privacy, it was noted that
safeguards against wrongful
use of the test results had been
put in place and that BHP had
agreed to review the policy if
new technologies allowed for less
intrusive testing methods.

More recent cases have tested the fairness and
consistency of random employee drug testing
policy. For example, in 2003 in the case Candido
v Hi Fi Supermarket Pty Ltd [2003] AIRC 983, the
Australian Industrial Relations Commision (AIRC)
ruled that the dismissal of a salesperson for
smoking marijuana at work was unfair because the
two other employees caught smoking marijuana
were only given a warning.
In another important case from the AIRC,
Shell Rening (Australia) Pty Ltd, Clyde Renery v
CMFEU [2008] AIRC 510, the relevant union, while
not disputing the role played by drug testing in
workplace safety, argued that the testing of urine
samples detects drug use over a longer period
than did oral samples not merely recent use.
Impairment resulting from drug use tends to last
for hours, not days. Therefore, urine samples could

336 C a m b r i d g e L e g al S tu d ie s Pre limin ary

9780521734699part_03_3pp.indd 336 2/9/09 8:05:16 PM

 L aw in p rac tic e
Figure 16.12 BHP won the right to drug test their employees to ensure their safety when at work.

be seen as an unnecessary invasion of privacy and
saliva samples should be sufcient. Shells position
was that the policy was designed to address
habitual drug use as well as actual impairment,
and that urine testing provides more information.
The AIRC held that because urine testing has a
longer window of detection, which may interfere
with employees privacy, it would be unjust and un-
reasonable to use that method when a more precise
method is available. Saliva testing
both indicates actual impairment
and is unlikely to detect drug use
having no effect on employees
performance. In the same case, the
Commission also found that it was
appropriate for Shell to conduct
drug testing for some employees
and not others.
2
%6) %7    
1 Explain why it is difcult to
assess the effectiveness of
drug testing laws.
2 What are some of the recent
cases involving drug testing
in the workplace and what
are the main points arising
from these judgments?

Co nc l u s io n
Drug testing continues to be an area of concern
for many Australians. As it is a relatively recent
practice, states have attempted to adapt existing
laws such as those relating to privacy and consent
in order to afford protection for the parties
involved. Where laws have not been adequate,
both legislators and the courts have acted to ensure
that drug testing policies remain fair, protect all
the parties interests and decrease the incidence
of disputes.
Where drug testing policies are introduced,
care is required to ensure that the reasons for the
policy are clear and justied, that the methods
and processes are carefully considered, that
consultation and monitoring take place, and that
the consequences of a positive test result are fairly
applied. As technologies evolve and drug testing
expands into different areas of society, the law will
continue to develop to provide greater clarity in
relation to parties rights and obligations.

Cha pter 1 6 Drug tes ti ng 337

9780521734699part_03_3pp.indd 337 2/9/09 8:05:18 PM

 s Use of many different types of drugs is
common in Australia, some of which are
restricted or prohibited by law.
s Drug testing has arisen as a way to prevent
some of the negative effects of drug use.
Ch a p te r s u m m a ry
s Drug testing laws differ depending on the
context.
s In the workplace, safety, productivity, health
of employees and company reputation are
the main reasons offered for drug testing.
s Issues of concern include privacy
considerations and employees rights,
especially if companies are thought to be
implementing drug testing as a way of
exerting control over their employees.
M u lt i p l e- c hoi ce q ues ti ons
 What are illicit drugs?
A drugs that the law restricts
B drugs that you can only buy with a medical
prescription
C drugs that the law prohibits
D all of the above
 For what reasons might employers randomly
test workers for drugs?
A to keep samples of workers DNA on le
B to see whether workers are able to carry
out their work duties responsibly and safely
C to abide by laws set down by the
government
D to show workers that drugs are not
acceptable in the workplace
 Which of the following is NOT a reason for
drug testing in sport?
A to ensure that no athlete enjoys an unfair
advantage provided by performance-
enhancing substances
B to protect athletes health and safety
C to protect sporting clubs reputation and
integrity
D to ensure that professional athletes are
earning no additional income from illicit
drug dealing
338 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 338
s Drug use in sport is different from other
contexts, in that prohibited substances are
used to enhance performance.
s Drug testing in Australian schools is
generally believed to be unnecessary and
inappropriate.
s Non-legal considerations relating to drug
testing include community support, the
views of employees and their unions, and
commercial interests.
s It is difcult to judge the effectiveness of
drug testing and the applicable laws, but
the courts have been able to provide some
guidance on best practice.
 Which type of privacy is most important to
consider in drug testing?
A territorial privacy
B bodily privacy
C privacy of communications
D information privacy
 What issue was the dispute about in Shell
Rening v CMFEU?
A whether employees could take recreational
drugs on their holidays
B whether all employees should be tested
C whether urine or oral samples should be
tested
D whether all employees should be tested
and whether urine or oral samples should
be tested
2/9/09 8:05:18 PM
 Ch a p te r s u m m a ry ta s k s

 Construct a table that shows some of the
most important considerations for employees
and employers in drug testing.
 Outline some of the rights and obligations
for each party and describe the basis of these
rights and obligations.
 Explain how you would go about formulating
a workplace drug and alcohol policy. What
would it include and how would you notify
workers about this policy?
Top i c revi ew
L aw in p rac tic e
 Investigate a workplace where drug testing is
used. Write a report of your ndings including
arguments for and against the testing, any
legislation that applies and any other issues.
 Evaluate the need for drug testing in various
social contexts.
 Do you think the police should become
involved if someone tests positive to a drug
test? Justify your answer.

EX T EN DED R ES PON S E
 The technology of drug testing is being
Marking criteria for the extended response
permitted to shape the limits of human
questions can be found at www.cambridge.
privacy and dignity. The situation should be
edu.au/education. Refer to these criteria
the other way around.
when planning and writing your responses.
Evaluate this statement, drawing on
arguments for and against random drug
testing.
 Evaluate the effectiveness of the legal system
in achieving justice for both employees and
employers in the area of random drug testing.

Cha pter 1 6 Drug tes ti ng 339

9780521734699part_03_3pp.indd 339 2/9/09 8:05:18 PM

 Answers to multiple-
choice questions
Pa rt I

C H APT ER 1 C H A P TER 4
1a 2b 3c 4c 5c 1c 2b 3b 4b 5c

C H APT ER 2 C H A P TER 5
1 a 2 b 3 c 4 d 5 c 6 b and c 7 a 8 b To pi c 1 1 a 2 b 3 b 4 a 5 b
9 b and d 10 d To pi c 2 1 c 2 d 3 b 4 b 5 d
To pi c 3 1 d 2 a 3 c 4 b 5 b
C H APT ER 3
1b 2b 3a 4a 5c
P art I I

C H APT ER 6
1c 2a 3c 4c 5d

C H APT ER 7
1b 2a 3c 4c 5a

C H APT ER 8
1b 2b 3d 4b 5d
Pa r t I II

C H APT ER 9 CH A P TER 1 3
1c 2c 3c 4c 5c 1c 2a 3b 4d 5a

C H APT ER 10 C H A PTE R 1 4
1d 2c 3b 4d 5d 1a 2c 3a 4d 5d

C H APT ER 11 C H A PTE R 1 5
1c 2c 3b 4b 5a 1c 2c 3a 4d 5b

C H APT ER 12 C H A PTE R 1 6
1b 2d 3c 4c 5d 1c 2b 3d 4b 5d

340 C a m b r i d g e L e g al S tu d ie s Pre limin ary

9780521734699part_03_3pp.indd 340 3/9/09 11:02:30 AM

 Glossary
9/11 a term used to describe
the terrorist attacks in the United
States on 11 September 2001;
otherwise known as September 11
access the right or opportunity to
make use of something
Act of Parliament Statute law,
resulting from a bill successfully
passing through parliament and
gaining royal assent
adoption order a court order that
establishes a new legal relationship
between potential adoptive
parents and a child eligible for
adoption. It also severs the legal
relationship that existed between
the adoptive child and his or
her natural or legally recognised
parents or guardians prior to the
adoption process.
adversarial system a system of
resolving legal conicts, used in
common law countries such as
England and Australia, that relies
on the skill of representatives
for each side (e.g. defense and
prosecution lawyers) who present
their cases to an impartial decision-
maker
Al Qaeda an international Islamic
extremist group, responsible for
attacks on military and civilian
targets in various countries, the
most notable being the attacks on
the US on 9/11
alternative dispute
resolution dispute resolution
processes, such as mediation,
arbitration and conciliation, that do
not involve courts
anarchy the absence of laws and
government
appeal an application to have a
higher court reconsider a lower
courts decision, on the basis of an
error of law
9780521734699part_03_3pp.indd 341
appellate jurisdiction the ability
or power of a court to hear appeals
of the decisions of lower courts
and to reject, afrm or modify
those decisions
apprehended violence
orders court orders to protect
a person who fears violence or
harassment from a particular
person. In NSW, apprehended
personal violence orders prohibit
violence between members of the
public; apprehended domestic
violence orders prohibit violence
in the context of a family.
arbitration a form of alternative
dispute resolution in which the
disputing parties present their
cases before an arbitrator, who
makes a decision that is binding on
the parties
Australian Federal Police the
federal police agency of the
Commonwealth of Australia, set
up to enforce the federal laws
and to protect the interests of
Australia both domestically and
internationally
balance of power the power held
by the political party whose vote is
needed to pass legislation; usually
determined in the upper house of
parliament under the Westminster
system of government
balance of probabilities the
standard of proof required in a
civil case in order for a plaintiff to
succeed in proving the case against
the defendant
beyond reasonable doubt the
standard of proof required in
a criminal case in order for the
prosecution (the state) to obtain a
conviction against the accused
bicameral containing two
chambers or houses of parliament
bill a drafted law that has not yet
been passed by parliament
bill of rights a statement of basic
human rights and privileges
bipartisan having the support of
the two major political parties
bodily privacy protection from
physically invasive procedures
without the persons consent
bookmaking the activity of
calculating odds on sporting and
other events and taking bets
burden of proof the responsibility
of a party to prove a case in court
capital punishment the practice
of sentencing a person to death by
judicial process; also referred to as
the death penalty
caution a formal notice given to a
young offender where the offence is
more serious than one appropriately
dealt with by a warning
Central Intelligence Agency (CIA)
the spy agency of the United
States of America, responsible
for gathering national security
intelligence
chapter a local branch of a
motorcycle club
children generally persons aged
15 years and younger, depending
on the legal context
civil jurisdiction the power of a
court to hear matters involving
disputes between private
individuals, and to award civil
remedies
civil liberties basic individual
rights, such as freedom of speech
and religion, which are protected
by law
coercive powers special powers
sometimes given to a commission
or police task force that allow
it to summon any witness to
give evidence or produce any
documents these powers are
usually only vested in courts
341
2/9/09 8:05:20 PM
 colours a motor cycle clubs
standard vest showing the clubs
patches on the back as a mark of
identication
committal hearings inquiries
held in the Local or Magistrates
Court to determine whether
there is enough evidence against
the defendant to warrant a trial
in a higher court (this is called
establishing a prima facie case)
common law law made by courts;
historically, law common to England
Commonwealth Director of Public
Prosecutions (CDPP) independent
prosecuting agency established by
a federal Act to prosecute alleged
offences under federal laws
complainant a person alleging
that a sexual assault has been
committed against him or her
conciliation a method of legal
dispute resolution involving a third
party who helps the parties to
reach agreement. The conciliator
takes an active role, advising the
parties, suggesting alternatives and
encouraging the parties to reach
agreement, but does not make the
decision for them
concurrent powers existing at the
same time; powers held by both
state and federal parliaments
consent (1) free and voluntary
agreement by a rational person
who is able to understand and
make a decision about the matter
to which he or she agrees; (2) free
and voluntary agreement to sexual
intercourse
conspiracy theories speculation
that there is a cover-up of the
information surrounding a
signicant event by government or
other authorities
contempt of court words or
actions that show a disregard
for the authority of the court or
interfere with its powers
control order an order made by a
court, government ofcial or police
ofcer to restrict an individuals
liberty, for example from doing a
specied act or being in a specied
place
342 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 342
conveyancers people who deal
professionally with the legal and
practical matters involved in the
transfer of titles to property when
real estate is sold and purchased
copyright an exclusive right to
publish, copy, publicly perform,
broadcast, or make an adaptation of
certain forms of expression, namely
sounds, words or visual images
copyright infringement the
unauthorised use of copyright
material in a manner that violates
the owners rights
copyright notice a notice added
to a work to inform people of who
owns the copyright and when the
work was created, e.g. Random
Business Pty Ltd 2010
coronial inquests investigations
into deaths that have occurred in
unusual circumstances, held in the
Coroners Court and overseen by a
magistrate called the Coroner
corporal punishment the physical
punishment of people, especially of
children, by hitting them
corporations law legislation that
regulates corporations and the
securities and futures industry
in Australia; it is administered
by the Australian Securities and
Investments Commission (ASIC)
courts of equity historically,
courts whose decisions were more
discretionary and based on moral
principles, and which served as an
antidote to the inexibility of the
common law
credibility trustworthiness,
reliability, believability
cross-examination questioning a
witness called by the other side,
to produce information relevant to
ones case or to call the witnesss
credibility into question
customary law principles and
procedures that have developed
according to the customs of
a people or nation, or groups
of nations, and are treated as
obligatory
customs collective habits or
traditions that have developed in a
society over a long period of time
cyberbullying harassment using
digital media such as websites,
e-mail, chat rooms, social
networking pages or instant
messaging
cyberspace the environment in
which electronic communication
occurs; the culture of the internet
cyberstalking repeated
harassment using e-mail, text-
messaging or other digital media
with the intention of causing fear or
intimidation
damages monetary compensation
for harm or loss suffered
declaration a formal statement of
the parties position on a particular
issue. Declarations are not legally
binding under international law.
de facto relationship (from the
Latin term meaning existing in
fact): a relationship between two
adults who are not married but are
living together as a couple
defamation the act of making
statements or suggestions that
harm someones reputation in the
community
defendant the person who is
accused of a crime or a civil wrong;
in a criminal case, the defendant is
also referred to as the accused
delegated legislation laws
made by authorities other than
parliament, who are delegated
the power to do this by an Act of
Parliament
digital copyright copyright as it
applies to digital media
digital dossier all the types
of information about a person
that he or she has deliberately
or unintentionally put onto the
internet, held in multiple locations
digital piracy unauthorised
reproduction and distribution of
digital music, software, videos or
other material, often for prot
direct discrimination a practice or
policy of treating a person or group
of people less favourably than
another person or group in the
same position, on the basis of sex,
race, national or ethnic origin, age,
sexuality or other characteristic
2/9/09 8:05:20 PM
 disinhibition effect the tendency
to say and do things in cyberspace
that the person wouldnt ordinarily
say or do in the face-to-face world
dispossession the removal or
expulsion of people from their
traditional lands
doli incapax a Latin term
meaning incapable of wrong; the
presumption that a child under 10
years of age cannot be held legally
responsible for his or her actions
and cannot be guilty of a criminal
or civil offence
domestic law the law of a nation
download to receive data from a
central system to ones own, local
network or computer
draconian laws laws that are
excessively harsh or severe from
Draco, a Greek legislator (7th
century CE) whose laws imposed
cruel and severe penalties for crimes
Dreamtime also known as the
Dreaming, the source of Indigenous
Australian customary law
elders older men and women of
recognised wisdom and authority,
who are the keepers of traditional
knowledge within Indigenous
communities; they are responsible
for such things as initiations and
the handing down of punishments
when community laws are broken
employment contract a contract
between an employer and
employee(s) which sets out matters
including the pay, hours, working
conditions, benets and obligations
of the employee and the rights and
responsibilities of the employer
entered into force (of a treaty)
having become binding upon those
states which have consented to be
bound by it
equality the state or quality of
being equal, that is, of having the
same rights or status
equity the body of law that
supplements the common law and
corrects injustices by judging each
case on its merits and applying
principles of fairness
estate all of the property that a
person leaves upon death
9780521734699part_03_3pp.indd 343
ethics (1) rules or standards
governing the conduct of a person
or the members of a profession;
(2) a major branch of philosophy,
which investigates the nature of
values and of right and wrong
conduct
examination in chief questioning
a witness, by the barrister who
format or printing a newspaper
called that witness
exclusive powers powers that can
be exercised only by the federal
parliament
ex parte (Latin) from one side; in
a case this means the other side is
absent or unrepresented
express consent consent given
directly, either oral or written
external affairs power the
power of the Commonwealth to
legislate on international matters
involving Australia; interpreted
by the High Court to mean that
when the Commonwealth signs an
international treaty or convention
it has the authority to enact laws to
give effect to this international law
within Australia
extortion obtaining money or
property from a person or group
by force, intimidation or illegal
power
extradition the handing over of a
person accused of a crime by the
authorities of the country where
he or she has taken refuge, to the
authorities of the country where
the crime was committed
fairness free from bias, dishonesty,
or injustice; a concept commonly
related to everyday activities
federation the process of uniting
several states to form a single
national government
feminism the advocacy of rights
for women on the basis of the
equality of men and women; there
are many varieties of feminist ideas
in political and social thought
le sharing the practice of
distributing electronically stored
information such as computer
programs, music and video les,
especially through the use of peer-
to-peer (P2P) networks
scal relating to government
nancial matters
forensic relating to the detection
and investigation of crime
format-shifting copying books,
journals, photos or videos from
one format to another format, for
example scanning a photo to digital
article
foundling a deserted infant whose
parents identity is unknown
G lo s s ary
fraud a dishonest act, done
intentionally in order to deceive
freedom of information (FOI) the
principle that people should be
able to have access to information
relating to the administration
of government decision-making
and information held by the
government. FOI legislation
governs the processes of obtaining
this information, at state and
federal level.
gender segregation the separation
of people according to their gender
General Assembly the main body
of the United Nations, made up of
all of the member nations
glass ceiling an invisible barrier
that prevents women from rising in
an organisation through promotion;
on the face of it, a company may
not directly discriminate, but subtle
practices may still discourage
women or prevent them from being
promoted to more responsible and
better paid positions
guarantor a person who gives
a formal promise that someone
elses contract will be fullled, often
backed by some form of asset that
will stand as collateral to secure the
promise
guilt by association criminal
liability imposed for associating
with another person who commits
a crime, rather than for committing
that crime oneself
Hansard a full account of
what is said in parliament or in
parliamentary inquiries; named
for English printer T. C. Hansard
(17761833), who rst printed a
parliamentary transcript
Gl os s ary 343
2/9/09 8:05:21 PM
 harmonisation agreement among
the laws of different jurisdictions
homicide the act of killing another
human being
hung jury a jury that is unable to
reach agreement
identity theft obtaining or using
the identity of another person
in order to commit a range of
fraudulent activities, usually to
obtain nancial gain
illicit drug also called an illegal drug;
a drug that is prohibited by law
implied rights civil and political
rights that can be inferred from
the Constitution, rather than being
expressly stated
in camera (Latin) privately; only
specied persons such as the judge
can be present during the testimony
or proceeding
indictable offences serious criminal
offences that require an indictment
(a formal, written charge) and
a preliminary hearing; they are
typically tried before a judge and
jury and are subject to a greater
penalty
indictment information presented
for the prosecution of one or more
criminal offences; a formal written
charge
indirect discrimination practices or
policies that appear to be neutral or
fair because they treat everyone in
the same way, but which adversely
affect a higher proportion of people
from one particular group
information privacy protection
against inappropriate handling of a
persons personal information, with
rules for the collection and handling
of personal data and records
injunction a court order requiring
an individual or organisation to
perform, or (more commonly) not to
perform a particular action
inquisitorial system a legal system
where the court or a part of the
court (e.g. the judge) is actively
involved in conducting the trial
and determining what questions to
ask; used in some countries with
civil legal systems as opposed to
common law systems
344 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 344
intellectual property intangible
property that has commercial value
and can be protected by law, e.g.
text, images, designs, inventions
and computer programs
internet a global network of inter-
connected computer networks that
allows users to obtain and share
information in a number of ways
internet piracy unauthorised
downloading or distribution of
copyrighted material by means of
the internet
Internet Service Providers
(ISPs) companies that offer
customers access to the internet
Islamic extremists people who
follow an extreme version of the
Islamic religion which sanctions
the use of violence to achieve their
objectives
Jemaah Islamiyah a radical Islamic
organisation that has links with Al
Qaeda
jihad in Islam, a term meaning
struggle; used without any
qualiers it is generally understood
in the West to refer to a holy war
on behalf of Islam
jurisdiction the powers of a court,
depending on its geographic area,
the type of matters that can be
decided, and the type of remedies
that can be sought
jury a group of people who listen
to all of the evidence in a court
case and decide on the verdict
justice the legal principle
of upholding generally
accepted rights and enforcing
responsibilities, ensuring that equal
outcomes are achieved for those
involved
juvenile a child or young person,
generally under 18 years of age,
although this may vary depending
on the context
kinship family relationships,
including all extended family
relationships; an important part
of Indigenous cultures and values,
which dictate how all people in the
group behave toward each other
laissez-faire a French word literally
translated as allow to do, used to
describe economic philosophies
that government should not
intervene in business; may also be
used in a broader sense of minimal
government intervention in most
aspects of society
larceny taking another
persons property with intent to
permanently deprive the owner
of the property; also known as
stealing
law a set of rules imposed on all
members of a community which
are ofcially recognised, binding
and enforceable by persons or
organisations such as the police
and/or courts
law enforcement agencies those
bodies that have the role of
enforcing the law; they are created
by Acts of Parliament and include
the police and some government
departments
legal drug a drug that is not
prohibited under the law, although
some other restrictions may apply
legal system the system of courts,
prosecutors and police in a country
legislative powers the legal
power or capacity to make laws
libertarians advocates of minimal
government control or interference
in the lives of individuals
mandamus a court order
compelling a government ofcial
or organisation to perform a
particular task
martial law military government
and laws imposed on civilian
society, which overrides civil law
massacre the intentional killing of
a large number of people
mediation (1) a process in which
two parties are brought together
for the purpose of discussing and
resolving a conict; (2) a form
of alternative dispute resolution
designed to help two (or more)
parties, in the presence of a neutral
third party, to reach an agreement
merits review analysis of the facts
presented in a case, and often
the policy choices that led to the
decision
2/9/09 8:05:21 PM
 ministerial discretion power
granted to a minister under an Act
to make a specied decision or
order
mitigation making the severity of
an offence or a sentence milder or
less severe
money laundering disguising
money obtained from illegal
activities to make it appear legal
mule recruitment the attempt to
procure a person (the mule) to
receive and deliver illegal funds
to criminals abroad or at home
without the knowledge of the
mule; this is usually done through
a fake company and may involve
getting an unsuspecting employee
to sign a contract and transfer
funds on behalf of organised
criminals.
nation-state a politically
independent country
native title the right of Indigenous
people to their traditional lands
natural justice the body of
principles used to ensure the
fairness and justice of the decision-
making procedures of courts; in
Australia it generally refers to the
right to present your case, the
right to freedom from bias by
decision-makers, and the right to a
decision based on logically relevant
evidence
negligence carelessness; a tort
that involves breach of a duty of
care resulting in harm that could be
foreseen
negotiation any dialogue intended
to resolve disputes and/or produce
an agreement on further courses
of action
nomadic a term used to describe
people who tend to travel and
change settlements frequently
obiter dicta (Latin) comments
from a judge in a case that are
not directly relevant to the case,
and therefore not legally binding
(singular: obiter dictum)
on remand (of an accused) in
custody pending and/or during his
or her trial
9780521734699part_03_3pp.indd 345
online predators people with
malicious intent, such as sex
offenders, pedophiles, who give
false and misleading identities
with the aim of enticing their
victims into harmful encounters
online or in real life
onus the burden or duty of
proving the case to the court
opened for signature (of a treaty)
having negotiations concluded
and ready for parties signatures.
Many treaties, especially those
convened by the UN, will be
open for signature only until a
certain date; others, such as the
Geneva Conventions, are open for
signature indenitely.
opinio juris sive
necessitatis (Latin) opinion that
an act is necessary by rule of law:
the principle that for the practice
of a state to be customary
international law, the state must
believe that international law
requires it
optional protocol an addendum
to a treaty, agreed to by the
parties at a later date, to create
enforcement provisions or to
interpret the treaty in light of later
developments
organised crime illegal activities
organised by criminal groups
or enterprises, most commonly
for the purpose of generating
nancial prot
original jurisdiction the ability or
power of a court to hear a case in
the rst instance
outlaw motorcycle gangs
(OMCGs) organisations whose
members use the structure of
a motorcycle club as a front for
criminal activity
pastoralists farmers raising sheep
or cattle, usually on large areas
of land
patch a symbol or club logo
attached to the back of a
motorcycle club members vest
patents rights granted for any
device, substance, method or
process which is new, inventive or
useful
peer-to-peer (P2P) networks
computer networks in which
individual participants are directly
connected to each other, rather
than through a central server
piracy (1) an illegal act of robbery
of a ship at sea, outside the
jurisdiction of any state; (2) the
infringement of copyright
plaintiff the person who initiates
a civil action
pleadings written statements of
G lo s s ary
the parties to a civil dispute that
set out the issues to be decided
by the court
political autonomy self-
determination, independence
poverty line the minimum level
of income needed to meet basic
necessities and below which a
household is dened as poor;
an adequate standard of living
and thus the poverty line will be
different for different countries
precedent a judgment that is
authority for a legal principle, and
that serves to provide guidance
for deciding cases that have
similar facts
prescription drug a type of legal
drug that can be obtained only by
a doctors prescription
prima facie (Latin) on the face;
at rst sight: having sufcient
evidence established against a
defendant to warrant a trial in a
higher court of law
privacy a persons right to be free
from unwanted intrusion or public
scrutiny
private law the body of law
governing relationships between
individuals (e.g. contract law, torts,
family law and property law)
pro bono a Latin term meaning
for the public good, used to
describe work that is done by a
lawyer or barrister on a voluntary
basis and without payment, where
there are issues of community
concern or signicant effect on
disadvantaged groups
Gl os s ary 345
2/9/09 8:05:21 PM
 procedural fairness / natural
justice the body of principles used
to ensure the fairness and justice
of the decision-making procedures
of courts; in Australia it generally
refers to the right to present your
case, the right to freedom from
bias by decision-makers, and
the right to a decision based on
logically relevant evidence
prohibited person a person
prohibited from working in child-
related employment because of a
conviction of a serious sex offence,
murder of a child, or an offence
involving violence toward a child
prohibition a court order that
forbids a lower level court from
hearing or taking further action in a
case or matter
prosecutor the person formally
conducting legal proceedings
against someone accused of a
criminal offence; the prosecutor acts
on behalf of the state or the Crown
public law the body of law
governing relationships between
individuals and the state, and
the structure and operation of
government itself (e.g. criminal,
administrative, and constitutional
law)
public morality standards of
behaviour generally agreed upon
by the community
public space areas set aside in
which members of the community
can associate and assemble
question of law a disputed legal
contention that is left for the judge
to decide (for example whether
certain evidence is admissible)
R R at the beginning of a case
name refers to Regina (Latin for
Queen). Since Australia is a
constitutional monarchy this refers
to our head of state on whose
behalf the prosecution case is run.
When the head of state is a male,
as was the case in 1935, the R
stands for Rex, which is Latin for
King.
racial hatred abuse or denigration
of a person because of his or her
race, or verbal abuse or denigration
of a race generally
346 C a m b r i d g e L e g al S tu d ie s Pre limin ary
9780521734699part_03_3pp.indd 346
rail gauge the distance between
the inner sides of the two rails of a
train line
ratify to formally conrm that the
country intends to be bound by
the treaty
ratio decidendi (Latin) the legal
reason for a judges decision
reckless able to foresee negative
consequences of doing something,
but carrying on with the act
regardless. Recklessness implies a
state of mind that is not as strong
as an intention to do something,
but for some criminal offences it is
considered equivalent to intention
for the purpose of establishing
fault.
referendum the referral of a
particular issue to the electorate
for a vote
reservation a statement made
by a nation-state when signing
or ratifying a treaty, that allows it
to exclude certain provisions or
modify them as they apply to the
nation-states own practice
residual powers those remaining
matters on which the states can
legislate, which are not referred to
in the Constitution
responsibilities legal or moral
obligations to others
rights legal or moral entitlements
or permissions
rule of law the principle that no
one is above the law; the most
important application of the rule of
law is that governmental authority
is exercised in accordance with
written, publicly disclosed laws
that are adopted and enforced
in accordance with established
procedural steps (due process)
rules regulations or principles
governing procedure or controlling
conduct
s abbreviation for section of any
legislation; ss is the abbreviation him or her to perform
for sections (plural)
sanction a penalty imposed on
those who break the law, usually in
the form of a ne or punishment
Security Council the arm of the
United Nations responsible for
maintaining world peace and
security
sedition words or acts said or
done with the intention of urging
others to use force against the
government
self-determination the right to
determine ones own acts without
external inuence; the freedom of
the people of a given territory to
determine their own political status
or independence from their current
state
self-executing (of a treaty)
automatically becoming binding on
a state party to the treaty as soon
as the treaty has been ratied
separation of powers the doctrine
that the powers and functions of
the judiciary are separate from
those of the legislature and the
executive
sexual assault a general term
for criminal offences involving
unwanted sexual contact; acts
include unwanted touching or
groping, indecent acts of other
kinds, and rape
sexual harassment any
unwelcome sexual behaviour, such
as sexual advances, suggestive
comments, unwanted touching,
written communication or gestures,
especially in the workplace
social values ethical standards
that guide people in their thinking
about aspects of their society
space-shifting transferring music
or a sound recording from one
format to another or from one
device to another, for example
copying a music le from a
computer to a portable player
special leave approval granted
by the High Court for a case to go
before it on appeal
specic performance an order
requiring the defendant to perform
the acts that the contract obliged
sponsorship the support of an
individual, event, or organisation
nancially or through the provision
of products or services
2/9/09 8:05:21 PM
 standard of proof the degree or
level of proof required in order for
the plaintiff (in a civil case) or the
prosecution (in a criminal case) to
prove their case
stare decisis a Latin term meaning
the decision stands; the doctrine
that a decision must be followed
by all lower courts
the state a term that is used to
refer to the government and the
people that it governs
state police law enforcement
agencies with statewide jurisdiction
statute law law made by
parliament
suicide the intentional taking of
ones own life
summary offences criminal
offences that can be dealt with
by a single judge without a jury
and do not require a preliminary
hearing
superpower a country that has
a dominant role in world politics
and possesses military power in
excess of other nations. At the end
of the Second World War (1945)
the USA and USSR were known
as superpowers because of their
huge armies and nuclear arsenals.
surety a sum of money provided
to support an accused persons
undertaking that he or she will
return to court for hearing at
a later date, as a condition of
granting bail; it is agreed that
the money will be forfeited if the
accused fails to appear
table to place on the table for
discussion
tariff a tax that must be paid on
imports or exports
task force a special group or
committee of experts formed for
the express purpose of studying a
particular problem
technological protection
measures tools or locks that
copyright owners use to prevent
unauthorised copying or access to
copyright materials
9780521734699part_03_3pp.indd 347
terms of reference a set of
guidelines used to dene the
purpose and scope of an inquiry
terra nullius land belonging to no
one; the idea and legal concept
that when the rst Europeans came
to Australia the land was owned
by no one and thus was open to
settlement. It has been judged
legally invalid.
terrorism violence or the threat of
violence, directed at an innocent
group of people for the purpose
of coercing another party, such
as a government, into a course of
action that it would not otherwise
pursue
time-shifting recording a
television or radio broadcast for
later viewing or listening
tortious wrongful; constituting a
tort or breach of duty to others
torts civil wrongs involving breach
of a duty; torts include negligence,
defamation, nuisance, and trespass
to the person, goods or land
tort law the body of law that
deals with civil wrongs including
negligence, defamation, trespass
and nuisance
trade marks words, names,
symbols, devices or any
combination of these, used to
identify and distinguish the goods
or services of one company from
those of another
treaty an international agreement
concluded between states in
written form and governed by the
guidelines of international law;
treaties may also be referred to as
conventions or covenants.
trespass to the person a tort
involving direct contact with
a persons body without that
persons consent
tyranny rule by a single leader
holding absolute power in a
nation-state
ultra vires (Latin) beyond the
power or authority legally held by
a person, institution or statute to
perform an act
United Nations a world
organisation dedicated to world
peace and the sovereignty and
equality of all its members
upload to send data from a local
system or computer to a central or
remote system, for other users to
view, hear, or use
values principles, standards, or
qualities considered worthwhile or
desirable within a society
vicarious liability the legal liability
G lo s s ary
imposed on one person or agent
(e.g. an employer) for the wrongful
acts of another, when those acts
were done within the scope of the
legal relationship between them,
such as employment
war on terror the term used in
2002 by US President George W.
Bush to refer to his administrations
efforts to ght terrorism anywhere
in the world using any means
warning a formal notice given to
a young offender, usually for a rst
minor offence
White Australia Policy the
government policy of allowing only
Europeans and English-speaking
people to immigrate to Australia
working with children check a
check by the NSW Commission
for Children and Young People on
the appropriateness of a person
in NSW to work in child-related
employment.
World Wide Web a system of
documents that are accessible on
the internet and that are connected
to each other through hyperlinks
on which the user can click to be
taken to another location. The
World Wide Web is not the same
thing as the internet.
young people in NSW, persons
aged 1618 years
Youth Justice Conferences
meetings of all the people who
may be affected by a crime
committed by a young offender;
used to help them to accept
responsibility for their actions while
avoiding the court system
Gl os s ary 347
2/9/09 8:05:21 PM
 Index

A Australian Childhood Foundation 204

Aboriginal and Torres Strait Islander Peoples Australian Constitution
access to civil law 9 amending 36, 93
customary law 5, 437 federal legislative powers 31, 33, 345
disadvantages 44 judicial system 61
government policies 98 key features 61, 136, 308
language and culture 436 religious freedom 139
legal status 101 separation of powers 38
see also native title Australian Council of Trade Unions (ACTU) 160, 204,
Aboriginal Land Rights Act 97, 108 225
access 89 Australian Crime Commission (ACC) 1523, 260, 286,
ACTU see Australian Council of Trade Unions (ACTU) 291, 294
Administrative Appeals Tribunal (AAT) 43 Australian Customs and Border Protection Service
Administrative Decisions (Judicial Review) Act 1977 155
(Cth) 17, 43, 61 Australian Federal Police (AFP) 1512, 240, 245, 271,
Administrative Decisions Tribunal (ADT) 61 275, 281, 298
Administrative Decisions Tribunal Act 17 Australian Human Rights Commission 11417, 166,
administrative law 25, 61 2212, 229
adversarial system 18, 66, 73 Australian Law Reform Commission 88, 116, 179,
ADVO see Apprehended Domestic Violence Order 2057
afrmative action 225 Australian Security Intelligence Organisation (ASIO)
AFP see Australian Federal Police 154, 246
Al Qaeda 2367, 23940, 244, 246
alternative dispute resolution (ADR) 1568 "
Amnesty International 49, 54, 91, 151, 160, 166, 279 balance of power 92
anarchy 1213 balance of probabilities 65, 69, 82, 113, 203
Anti-Discrimination Act 97, 114, 165, 199, 215, 222, Bali bombings 23449
229 barristers 62, 71, 121, 124
Anti-Discrimination Board (ADB) 161, 165, 222 bicameral 27, 29, 32
anti-discrimination legislation 114, 116, 2289 bill of rights 1346, 139, 247
Anti-Terrorism Act 2467, 268, 274, 280, 297 birth
appeals 22, 245, 32, 39, 41, 43, 61, 105, 116, 311 registration 1978
appeals to High Court 389, 412 technologies 84
appellate jurisdiction 245, 39, 41 Births Deaths and Marriages Act 193, 1978
Apprehended Domestic Violence Order (ADVO) 823 Britain see United Kingdom
arbitration 34, 116, 1567, 160 Bryant, Martin 25057
arrest 13, 66, 83, 124, 150, 152, 154, 2056, 2412, Builders Labourers Federation 160
2467 burden of proof 67, 69
ASIO see Australian Security Intelligence Organisation by-laws 29
assimilation
Indigenous peoples 99 C
Attorney-General 267, 88, 166, 244, 272, 280, Cabinet 28, 30, 38, 90, 159, 223
2989, 313 capital punishment 45, 49, 801, 209
Australia Act 1986 (Cth) 17, 39 care and protection 24, 194, 1989, 2023

348 C a m b r i d g e L e g al S tu d ie s Pre limin ary

9780521734699part_03_3pp.indd 348 2/9/09 8:05:22 PM

 care application 210 federation process 312
case law 20, 116, 308, 311 High Court 21, 23, 256, 323, 356, 3842,
cautions 2001 612, 78, 92, 98, 103108, 136, 13940, 166,
CDPP see Commonwealth Director of Public 179, 198, 275, 316
Prosecutions judicial review 43, 55, 61, 162, 165
certiorari 163 separation of powers 38
child care 161, 163, 215, 2178, 2257, 230 transfer of power from Britain 312
child care proceedings 203 Convention on the Elimination of All Forms of
child labour 1945, 207, 209 Discrimination against Women (CEDAW)
Children (Criminal Proceedings) Act 200, 207 2201, 227
Children (Protection and Parental Responsibility) Act Convention on the Rights of the Child (CROC) 49, 55,
193, 201, 209 166, 194, 196, 201
children 24, 43, 68, 823, 91, 99, 102, 119, 132, Australias obligations under 201

I nd ex
1378, 152, 155, 158, 1801, 192211 child executions 49
see also Convention on the Rights of the Child copyright 25, 1767, 30619
(CROC) Copyright Act 176, 30810, 3145
Children and Young Persons (Care and Protection) Act coronial inquiries 24, 67
1934, 1989, 2023 corporations law 24
Childrens Court Act 193, 203 Court of Appeal 25, 196, 2467, 311
Childrens Court court-made law 18
hearings 234, 68, 203 courts
childrens rights 196 of equity 18
China 52, 186 procedures 23
circle sentencing 81, 145 State and Federal 226
civil court proceedings 18, 659 Covenant on Civil and Political Rights see
civil law 18, 60, 62, 656, 70, 73, 1113, 117, 197, International Covenant on Civil and Political
314, 325 Rights (ICCPR)
civil law systems 73 Covenant on Economic Social and Cultural Rights
civil liberties 38, 1801, 188, 313 see International Covenant on Economic Social
Clarke Inquiry 273, 28081 and Cultural Rights (ICESCR)
Commission for Children and Young People 198, Crimes Act 3, 59, 60, 83, 87, 122, 1501, 172, 183,
202 247, 280
Commission for Children and Young People Act 2023 Crimes Legislation Amendment (Police and Public
commissions of inquiry 165 Safety) Act 201, 274, 298
committal hearings 24 criminal law
Committee on the Rights of the Child 196, 201, 209 court proceedings 6670
common law 1822, 36, 44, 55, 60, 623, 65, 73, vs civil law 603
87, 101, 103, 1323, 136, 145, 196, 1989, CROC see Convention on the Rights of the Child
332 (CROC)
Commonwealth Director of Public Prosecutions cross-examination 67, 69, 121
(CDPP) 66, 83, 119, 165, 273, 2756 customary law 5, 437, 49, 73
Commonwealth of Australia Constitution Act 1900 customs 5, 7, 10, 12, 33, 45, 48, 98, 107
(UK) 17, 312 Customs Act 41, 246, 324
Commonwealth v Tasmania 35, 40 cyberbullying 178
Community Justice Centres (CJCs) 157 cybercrime 1848
concurrent powers 33 cyberspace 17090
conscientious objectors 137 cyberstalking 178
Constitution see Australian Constitution
constitutional law 61 D
constitutional system damages 245, 623, 69, 1123, 117, 142, 229
division of power 323, 39 de facto relationships 33, 7983

Index 349

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 death penalty 49, 54, 244 equal pay see pay equity
deaths in custody 165 equality 89, 117, 143, 214
Declaration of Human Rights see Universal equity 1820, 106, 216, 227
Declaration of Human Rights (UDHR) ethics 67, 12, 45, 78, 170
defamation 22, 25, 63, 1412, 199 European Union 54, 135, 184
defence 31, 33, 66, 69, 72, 121, 124 euthanasia 181, 134
defendants 65, 72 ex parte 41
delegated authority 137 exclusive powers 33
delegated legislation 29 Executive Council 289
democracy 38, 90, 134, 239 external reviews 61, 1612
Department of Community Services (DOCS) 83, 203, extradition 186, 3156
205
detention centres 1589, 207 F
development of 1820 fairness see procedural fairness
obedience to 10 Family Court 23, 25, 38, 81, 91, 151, 203
vs rules and customs 47 Family Law Act 55, 77, 91, 1967, 215
dictatorship 38, 239 Federal Court 212, 246, 36, 389, 41, 43, 61, 1058
digital copyright 30419 federal parliament
discrimination 55, 90, 104, 1145, 134, 166, 199, legislative powers 33, 34
215 role and structure 278
direct discrimination 2202, 230 Federation 312, 38, 48
indirect discrimination 2202 le sharing 30419
District Court 21, 234, 71, 89, 113, 124 Firearms Act 82, 292
doctrine of precedent 2122 Franklin Dam case see Commonwealth v Tasmania
doli incapax 8 Fraser Island 401
domestic law 48 fraud 22, 24, 867, 153, 165, 1734, 185, 287
domestic violence 823 free speech 13941, 1812, 1868
Donoghue v. Stevenson 59, 64 Freedom of Information Act 149, 161
Dreamtime 44
Drink or Die 316 G
drug testing 320339 General Assembly (UN) 4954, 169, 228
duties 6, 133, 150, 163, 214 Geneva Conventions 48, 240
duty of care 64, 113, 117, 133, 331 genocide 4849
Gillick v West Norfolk and Wisbech Health Authority
% 196, 1989
East Timor 145, 236, 239 glass ceiling 229
elders 45, 47, 98 Gove land rights case see Milirrpum v Nabalco Pty Ltd
employment Governor-General 2730, 36, 389,
children 202 Greenpeace 54, 91, 160
law 47, 159, 204 Grifths, Hew Raymond 3156
sex discrimination 2145, 221, 223, 229 Guantanamo Bay 2401
women 2147 gun laws 25863
enforcement 12, 45, 48, 81, 150, 1524, 172, 174, Gutnick v Dow Jones & Co Inc 17, 22
181, 183, 185, 187, 229, 236, 240, 2456, 260,
268, 279, 286, 291, 294, 300, 310, 313, 325 H
equal opportunity 111, 114, 161, 1656, 205, 218, hacking 1723, 183
2223, 228 Haneef, Mohamed 26683
Equal Opportunity for Women Agency (EOWA) harassment 150, 178, 198, 2202, 227, 229
224 (CD) High Court 21, 23, 256, 323, 356, 3842, 612,
Equal Opportunity for Women in the Workplace Act 78, 92, 98, 103108, 136, 13940, 166, 179,
213, 2234, 230 198, 275, 316

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 HIV/AIDS 227 J
House of Representatives 27, 32, 36, 38, 89, 1067 Jemaah Islamiyah 23840, 270
Howard, John 92, 108, 159, 181, 259, 262, 277, 279 judges 6, 10, 18, 2022, 6573, 92, 1045, 107,
human rights 25, 4855, 81, 132, 134, 136, 1435, 122
160, 166, 186, 196, 201, 205, 209, 218, 220, judicial review 43, 55, 61, 162, 165
222, 22630 judiciary 389, 61, 136, 294
see also Universal Declaration of Human Rights jurisdiction 22, 39
Human Rights and Equal Opportunity Commission jury 189, 245, 668, 712, 889, 1201, 132,
(HREOC) see Australian Human Rights 136, 142
Commission hung jury 89
Human Rights and Equal Opportunity Commission Act Jury Act 89
149, 166, 213, 222 jury service 72, 217, 231
Hussein, Saddam 13 justice 89, 1920, 28, 43, 813, 106, 1123, 120

I nd ex
I K
identity theft 867 Kazaa 3112
immigration detention centres Kids Helpline 204
see detention centres kinship 45
Independent Commission Against Corruption (ICAC)
1656 L
indictable offences 234, 66, 84, 112, 200, 207, land rights 103, 108
324 larceny 24
Indigenous Australians see Aboriginal and Torres law enforcement see enforcement
Strait Islander Peoples law reform
indirect discrimination see discrimination agencies of 8891
Indonesia 18, 49, 145, 2369, 2407 and native title 98109
injunctions 39, 63, 69, 112, 115, 163, 173 and sexual assault 11824
inquisitorial system 18, 73 and sport 11017
intellectual property 65 conditions that give rise to 789
and digital copyright 3068, 311 denition 78
in cyberspace 1757, 184 mechanisms of 923
intergovernmental organisations (IGOs) 54, 93 law
internal reviews 161 denition 47
International Court of Justice (ICJ) 50, 537 legal aid 91, 203, 206
International Covenant on Civil and Political Rights legal professions 702
(ICCPR) 4950, 55, 144, 166, 247 legal system 5, 78, 1830
International Covenant on Economic Social and legislation
Cultural Rights (ICESCR) 50, 144, 166 delegated 29
International Criminal Court (ICC) 4950 passing through parliament 2830
international customary law 4950 libel 13940
international law 4855 lobby groups 912
differences between domestic and 48 Local Courts 19, 214, 66, 83, 116
relevance to Australian law 55
sources 489 M
international treaties and declarations Mabo Eddie 98, 1034, 106
4950 Mabo v Queensland 98, 109
internet 5, 18, 22, 41, 90, 153, 159, 170188, 287, magistrates 71
306, 30910 Magistrates Court 235, 38, 67, 71, 115, 253, 273,
piracy 3067 275, 297
Internet Service Providers (ISPs) 181, 186, 309, 317 mandamus 39
Israel 237 Maori land rights 105

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 marriage 34, 45, 7980, 1978, 217 parliamentary committees 8990
Marriage Act 7980 participation of women 220
media 72, 90 patents 1767, 188, 306
Members of Parliament (MPs) 27, 29, 91, 105, 159 pay equity 216, 227, 230
Milirrpum v Nabalco Pty Ltd 103 plaintiff 63, 72
Milperra Massacre 2912, 298 police 6, 8, 10, 66, 823, 119, 1503
Mugabe, Robert 13 New South Wales Police Force 150, 165, 293, 295,
Murphyores v The Commonwealth 401 326
Myall Creek massacre 102 Australian Federal Police (AFP) 1512, 240, 245,
271, 275, 281, 298
. Port Arthur massacre 25065
nation-state 5, 489, 512, 54 gun reform after 25863
nationalism 31 poverty line 217
native title 98109 precedent 2022, 92
Native Title Act 104, 1089 prima facie 71, 163
Native Title Amendment Act 108 privacy 25, 85, 88, 155, 162, 166, 171, 174, 179
Native Title Tribunal 1078 Privacy Act 162, 17980, 332
natural justice 9, 43 Privacy and Personal Information Protection Act 162,
negligence 25, 634, 68, 111, 113, 115, 117, 133, 332
199 private law 6070
New Zealand 18, 105, 1345, 329 Privy Council 39
non-government organisations (NGOs) 54, 901 procedural fairness 9, 43
NSW Aboriginal Land Council (NSWALC) 108 prohibition 39
NSW Commission for Children and Young People Property (Relationships) Legislation Amendment Act 79
198, 2023 property law 44, 62, 65, 175
NSW Law Reform Commission 889 prosecutor 8, 656, 83, 123, 241, 271
NSW Ombudsman 1634 protection
children see care and protection
O Indigenous peoples 99
obiter dicta 21 public law 6070
observation of court proceedings 70 public morality 78
Ofce for Women (NSW) 223 public space 201, 2056, 209
Ofce for Women (OfW) 223
ombudsmen R
ofces of 163 R v. Brislan; ex parte Williams 41
NSW Ombudsman 93, 151 Racial Discrimination Act 97, 104, 117, 132, 166
OMCGs see outlaw motorcycle gangs Racial Hatred Act 178
opinio juris sive necessitates 49 rail gauges 312
optional protocol 166, 2289 ratication 55, 143, 201, 209, 227
ordinances 29 ratio decidendi 21
organised crime 153, 260, 2867, 291, 2948, 300 reasonable doubt 65
original jurisdiction 25, 3941 Red Cross 54
Osland v R 412 referendum process 312, 36, 38, 80, 102, 145
outlaw motorcycle gangs 284303 referendums
Federation 312
P 1967 referendum 99, 102
paid maternity leave 225, 227 refugees 54, 93, 155, 166
parliament regulations 6, 11, 29, 35, 1701, 174, 1812, 140,
passing bill through 30 324, 329
role of 1820, 278, 1056, 1089, 1156, 122 Reno v American Civil Liberties Union 180182
structure of 278 republic referendum 36

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 rights technology 41, 845, 123, 152, 16890, 287, 306,
common law vs statutory 1819 309, 312, 317
domestic 48 terra nullius 44, 92, 98, 1014, 106, 109
legal vs moral and customary 89, terrorist attacks 2367, 26870, 272, 279, 297
see also human rights; land rights torts 605, 111, 113, 117, 1323, 179, 1989, 332
royal assent 30 torture 48, 535, 133, 143
royal commissions 93, 103, 165 Trade Practices (Consumer Product Information
Rudd, Kevin 80, 92, 106, 244 Standards) (Tobacco) Regulations 324
rule of law 10, 185, 236, 240, 281, 296, 301 trade unions see Australian Council of Trade Unions
rules (ACTU)
need for 47, 61, 68, 73 trademarks 1757, 188, 306
vs laws and customs 57 trial by ordeal 1920
tribunals 50, 112, 161, 330, 335

I nd ex
3 tyranny 1213
same-sex relationships 7980
sanctions 10, 45 5
Security Council (UN) 514, 246 ultra vires 35
separation of powers 32, 38, 268, 2745, 294, 301 United Kingdom 1819, 22, 52, 134, 2701, 279
Sex Discrimination Act 55, 97, 1156, 213, 215, United Nations (UN)
2212, 22930 charter 49, 512
sex slavery 227 legal decisions 501, 93
sexual harassment 2202, 227, 22930 obligations of governments 512
Shopfront Youth Legal Centre 207 peacekeeping 52
slander 141 see also Conventions entries; International
smoking bans 11 Covenants entries; Universal Declaration of
solicitors 67, 71 Human Rights (UDHR)
sources of law United States
Australian law 55 bill of rights 135
international law 4951, 55 juvenile executions 48, 196
South Australia v Commonwealth 40 Universal Declaration of Human Rights (UDHR)
sovereignty 48, 51, 101, 107, 188 50, 1434, 166, 220
spam 169, 1745
Spam Act 169, 1745, 183 6
spiritual nature of customary law 44 values 79, 789
standard of proof 65 Vietnam War 137, 290
stare decisis 21
state and territory courts 225 7
state power Whistleblowers Australia (WBA) 159
formal (i.e. legal) means to challenge 1616 White Australia Policy 31
informal (i.e. non-legal) means to challenge Whitlam, Gough 103, 120
15860 Wik case 1067
statute law 18, 2730 William the Conqueror 20
statutory authority 43, 115, 137, 174 WIPO see World Intellectual Property Organization
summary offences 23, 66, 84, 200, 324 Wireless Telegraphy Act 41
Summary Offences Act 131, 139 women
Supreme Court 216, 38, 41, 49, 66, 71, 80, 103, 112, anti-discrimination legislation 114, 165, 215, 222,
139, 142, 158, 165, 173, 181 225, 22930
changing status 2169
T indigenous women 219
Tampa incident 155 protection of rights 2205
tariffs 31, 54, 93 Womens Electoral Lobby (WEL) 226

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 Womens Information and Referral Service 223 Y
Womens Legal Status Act 216 Yorta Yorta native title case 107,109
workforce Young Offenders Act 81
aging 216 young person 192211
gender segregation 227, 230 legal denition 194
working with children check 202 Youth Action and Policy Association (YAPA) 205
World Intellectual Property Organization 184, 311 youth conferencing 207
World Trade Organization 176, 184, 311 Youth Justice Conferences 81
World Wide Web 171, 181
World Youth Day 140
WTO see World Trade Organization

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