LEGAL STUDIES

Summarised course notes for the HSC Legal Studies Exam, by Orion de Leede
Sourced from class notes, previous assignments and donated notes.

Omnia potest Deus, misereátur nostri

 Contents
Important Stuff ................................................................................................................................................... 4
Exam Structure............................................................................................................................................... 4
SECTION I: CORE – Crime and human rights 20 marks (30 Minutes) ................................................... 4
SECTION II: CORE – Crime and human rights 30 marks (1 hour) .......................................................... 4
SECTION III: OPTIONS 50 marks (1 hour 30 minutes) .......................................................................... 4
Essay Plan ...................................................................................................................................................... 4
SCRL.......................................................................................................................................................... 4
Introduction ................................................................................................................................................ 4
Paragraph Structure .................................................................................................................................... 4
Conclusion ................................................................................................................................................. 4
Section I: Crime ................................................................................................................................................. 5
1. The Nature of Crime .................................................................................................................................. 5
Meaning of Crime ...................................................................................................................................... 5
Elements of Crime ..................................................................................................................................... 5
Strict Liability Offences ............................................................................................................................. 5
Categories of Crime ................................................................................................................................... 5
Summary and Indictable Offences ............................................................................................................. 7
Parties to a Crime ....................................................................................................................................... 7
Factors Affecting Criminal Behaviour....................................................................................................... 8
Crime Prevention ....................................................................................................................................... 8
Chapter 2: The Criminal Investigation Process ............................................................................................. 8
SCRL.......................................................................................................................................................... 8
Police Powers ............................................................................................................................................. 8
Reporting Crime......................................................................................................................................... 9
Investigating Crime .................................................................................................................................... 9
Arrest, Detention and Charge .................................................................................................................. 10
Summons, Bail or Remand ...................................................................................................................... 10
Chapter 3: Criminal Trial Process................................................................................................................ 11
SCRL........................................................................................................................................................ 11
Court Jurisdiction ..................................................................................................................................... 11
The Adversarial System ........................................................................................................................... 12
Legal Personal in a criminal Trial ............................................................................................................ 12
Please and Charge Negotiation ................................................................................................................ 13
Legal Representation and Legal Aid........................................................................................................ 13
Burden and Standard of Proof.................................................................................................................. 13
Use of Evidence, Including Witnesses..................................................................................................... 13
Defences to Criminal Charges ................................................................................................................. 13
The Role of Juries .................................................................................................................................... 14
Chapter 4: Sentencing and Punishment ....................................................................................................... 14
Key Things to Understand ....................................................................................................................... 14
SCRL........................................................................................................................................................ 14
Concepts not to get confused ................................................................................................................... 14
Statutory and Judicial Guidelines ............................................................................................................ 14
The Purposes of Punishment .................................................................................................................... 15
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 Factors Affecting a Sentencing Decision ................................................................................................. 15
Aggravating Factors ................................................................................................................................. 15
Mitigating Factors .................................................................................................................................... 15
The Role of the Victim in Sentencing...................................................................................................... 15
Appeals .................................................................................................................................................... 16
Types of penalties .................................................................................................................................... 16
Alternative Methods of Sentencing ......................................................................................................... 17
Post-sentencing Considerations ............................................................................................................... 17
Chapter 5: Young Offenders ........................................................................................................................ 17
SCRL........................................................................................................................................................ 17
Young Offenders and the Law ................................................................................................................. 17
Age of Criminal Responsibility ............................................................................................................... 17
The Rights of Children and Young People when Questioned or Arrested .............................................. 18
Children’s Court....................................................................................................................................... 18
Penalties for children ............................................................................................................................... 19
Alternatives to court ................................................................................................................................. 19
Effectiveness of the law for young offenders .......................................................................................... 19
Chapter 6: International Crime .................................................................................................................... 19
SCRL........................................................................................................................................................ 19
Defining International Crime ................................................................................................................... 20
Categories of International Crime ............................................................................................................ 20
Dealing with International Crime ............................................................................................................ 21
The Effectiveness of Measures Dealing with International Crime .......................................................... 21
Section II: Human Rights................................................................................................................................. 22
SCRL........................................................................................................................................................ 22
Chapter 7: The Nature and Development of Human Rights ........................................................................ 22
Definition of Human Rights..................................................................................................................... 22
Developing Recognition of Human Rights .............................................................................................. 23
Formal Statements of Human Rights ....................................................................................................... 25
Chapter 8: Promoting and Enforcing Human Rights ................................................................................... 26
The Role of State Sovereignty ................................................................................................................. 26
The Effectiveness of International Responses ......................................................................................... 26
Effectiveness of Australian Domestic Law in Relation to Human Rights............................................... 28
Chapter 9: Contemporary Human Rights Issue – Child Soldiers ................................................................ 30
Introduction .............................................................................................................................................. 30
The Effectiveness of Legal Responses .................................................................................................... 30
The Effectiveness of Non-Legal Responses ............................................................................................ 30
Section III: ‘Option 3 – Family Law’ .............................................................................................................. 31
Chapter 10: The Nature of Family Law ....................................................................................................... 31
Concept of family law .............................................................................................................................. 31
Legal Requirements of Marriage ............................................................................................................. 32
Alternative family relationships ............................................................................................................... 32
Legal Rights and Obligations................................................................................................................... 33
Adoption .................................................................................................................................................. 35

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 Chapter 11: Responses to Problems in Family Relationships ..................................................................... 35
Divorce ..................................................................................................................................................... 35
Legal Consequences of Separation .......................................................................................................... 35
Dealing with Domestic Violence ............................................................................................................. 36
The Role of: ............................................................................................................................................. 36
Effectiveness of the Law in Achieving Justice During Relationship Breakdown ................................... 37
Chapter 12: Contemporary Issues in Family Law ....................................................................................... 38
Recognition of Same-Sex Relationships.................................................................................................. 38
Changing Nature of Parental Responsibility............................................................................................ 39
Surrogacy and Birth Technologies........................................................................................................... 40
Care and Protection of Children .............................................................................................................. 40
Section IV: ‘Option 7 – World Order’ ............................................................................................................. 41
Chapter 13: The Nature of World Order ...................................................................................................... 41
Meaning of World Order ......................................................................................................................... 41
The Need for World Order ....................................................................................................................... 42
The Development of World Order ........................................................................................................... 42
The Nature of Conflict ............................................................................................................................. 42
Access to Resources as a Source of Conflict ........................................................................................... 42
Chapter 14: Responses to World Order ....................................................................................................... 43
The Effectiveness of Legal and Non-Legal Measures ............................................................................. 43
Political Negotiation, Persuasion and the Use of Force ........................................................................... 46
Chapter 15: Contemporary Issues Concerning World Order ....................................................................... 47
The Responsibility to Protect (R2P) ........................................................................................................ 47
Regional and Global Situations that Threaten Peace and Security: ......................................................... 48
The Nuclear Threat .................................................................................................................................. 48
The Success of Global Cooperation in Achieving World Order: ............................................................ 50
East Timor and the UN intervention ........................................................................................................ 50
Rules Regarding the Conduct of Hostilities: International Humanitarian Law ....................................... 52

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 Important Stuff
Exam Structure
SECTION I: CORE – Crime and human rights 20 marks (30 Minutes)
 There will be objective response questions to the value of 20 marks.
 Questions to the value of 15 marks will be drawn from Crime.
 Questions to the value of 5 marks will be drawn from Human Rights.
- Questions may refer to stimulus.
SECTION II: CORE – Crime and human rights 30 marks (1 hour)
 Part A: Human Rights 15 marks
 There will be short-answer questions to the value of 15 marks.
 The questions may be in parts.
 There will be 3–4 items in total.
- Questions may refer to stimulus.
 Part B: Crime 15 marks
 There will be one extended response question to the value of 15 marks.
- The question may refer to stimulus.
 The expected length of response is around four examination writing booklet pages (approximately
600 words).
SECTION III: OPTIONS 50 marks (1 hour 30 minutes)
 There will be seven extended response questions, one for each Option.
 Each question is worth 25 marks.
 Each question has two alternatives.
 Candidates answer two questions, each from a different Option.
- The expected length of response is around eight examination writing booklet pages
(approximately 1000 words).
Essay Plan
SCRL
When righting an essay always remember SCRL (pronounced like skrill). In every paragraph, you must
include at least one legislation but alternative the other evidence between the other letters of SCRL.
S – Statistics
C – Cases
R – Reports
L – Legislation
Introduction
1. Begin with principle focus, for example:
“Criminal law, through tis processes and institutions, attempts to address the tensions that exist between
community interests and individual rights and freedoms.”
2. State your case and if the question asks you to evaluate the criteria you will evaluate against.
3. Identify the points of your argument.
Paragraph Structure
P Use one of your points of argument e.g. age of criminal responsibility.
E Give examples of how it operates and cases to illustrate.
E Explain the Examples
L link back to original point
Conclusion
Reword introduction but include value judgement if the question asks. Page 4 of 54
 Section I: Crime
Principle Focus: Through the use of a range of contemporary examples, students investigate criminal law,
processes and institutions and the tension between community interests and individual rights and freedoms.
Key Themes and Challenges:
 The role of discretion in the criminal justice system.
 Issues of compliance and non-compliance in regard to criminal law.
 The extent to which law reflects moral and ethical standards.
 The role of law reform in the criminal justice system.
 The extent to which the law balances the rights of victims, offenders and society.
 The effectiveness of legal and non-legal measures in achieving justice.

1. The Nature of Crime

Meaning of Crime
 An Act or omission committed against the community at large, which is punishable by the state.
 All criminal law matters are brought to court by the Crown (state) e.g. R v Khan.

Elements of Crime
Actus Reus (guilty act)
 The act of carrying out the crime.
 Must be a voluntary act but can also include omissions or failure to act such as criminal negligence.

Mens Rea (guilty Mind)

 The accused’s intention to commit the crime.
 The defended must have understood what was happening and what they were doing when the act was
committed.
 Without Mens rea charges are either downgraded (e.g. murder to manslaughter) or dropped.
 Main levels are:
- Intention – that the offender meant to do the act e.g. wanted to stab them.
- Recklessness – aware their actions could cause an offense but proceeded anyway.
- Criminal negligence – failure to foresee a risk or danger, and the failure to prevent it.

Causation
 That the offender’s actions directly result in an offense.
- e.g. If Bob attacks Tim, and Tim ties from his wounds – then Bob would be charged with murder.

Strict Liability Offences

 Offences where they the prosecution only needs to prove actus reus.
- E.g. speeding ticket, breaching a fire ban, parking fine.

Categories of Crime
 This affects how the crimes are investigated, and punished.

Offences Against the Person

 Homicide – unlawful killing of another person.
 Murder – accused deliberately intended to kill the victim.
 Manslaughter – cannot be proved that the accused intended to kill.
 There are 3 types of manslaughter:
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 - Voluntary manslaughter – person kills with intent but there are mitigating circumstances.
- Involuntary manslaughter – acted in reckless or negligent way but without intention to kill.
- Constructive manslaughter – killing of a person while the accused was carrying out another
dangerous or unlawful act. Manslaughter was ‘constructed’ from the other unlawful act.
 Infanticide – death of a baby under 12 months by the hand of their mother.
 Assault – causing physical harm to another person or threatening to.
 There are two main types of assault:
- Aggravated Assault – when the assailant uses an object or if the accused breaches their duty to
protect or attacks an officer.
- Sexual Assault – Lack of consent is central to the crime; a person is not consenting where they
are:
 Substantially intoxicated by drugs and alcohol; lack the capacity to consent.
 Intimidated or coerced into the act.
 If the accused is abusing their position of trust or authority over the victim.
 There is also another type – Indecent Assault
- This is a sexual assault against a minor, and often carriers a higher sentence then standard sexual
assault.
 Dangerous driving causing death – self-explanatory.
Offences Against the Sovereign
 Treason – Any attempt or manifest intention to levy war against the state, assist the enemy, or cause
harm to or death to the executive and legislative branch.
 Sedition – Promoting discontent, hatred or contempt against the government. Rarely used and includes
urging force or violence against the government.

Economic Offences
 Note: White Collar Crime and Computer Offences are strict liability.
 Crimes against the Property
- Larceny: When one or more persons intentionally takes another person’s property without
consent or without intention of returning it
- Robbery: When property is taken directly from the victim, usually forcefully.
- Break and enter: Occurs when a person or persons enters a room or building with the intention of
committing an offence
 White Collar Crime – Various non-violent crimes associated with business people or professionals.
- Embezzlement: Theft or misappropriation of funds placed in one's trust or belonging to one's
employer.
- Tax evasion: An illegal practice where a person, organization or corporation intentionally avoids
paying his true tax liability.
- Insider trading: The illegal practice of trading on the stock exchange to one's own advantage
through having access to confidential information.

 Computer offences
- Hacking: Unauthorised access or modification of data.
- Piracy: Unauthorised copying of, or access to; a computer commercial product.
Drug Offences
 All except possession are strict liability offences.
 Possession – in the accused custody or control, with the full knowledge of the accused.
 Use of a prohibited Drug – the intentional consumption by any means.
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  Cultivation – the growth of a prohibited plant e.g. cannabis.
 Supply – includes offering or agreeing to supply prohibited drug,

Driving Offences
 All driving offences are strict liability offences.
 Speeding – Traveling above the designated speed limit e.g. 60 km/h in a 50 km/h zone.
 Negligent driving – Driving dangerously e.g. on the wrong side of the road.
 Drink driving – Driving above their license’s set blood-alcohol level.

Public Order Offences

 Affray – the use or that of violence towards another in a way which would cause other people to
present to fear for their safety.
 Riot – 12 or more people using or threating to use violence for a common purpose.
- Others include explosives and firearm offences, bomb hoaxes and participation in criminal
organisations.

Preliminary Crimes
 Offences that occur before a crime or there the crime was not successful.
 Attempts – When an individual tries to commit a crime but is not successful.
- Usually carries the same penalty as if it had succeeded.
 Conspiracy – When 2 or more people conspire to commit a crime. The conspiracy is completed
when an agreement (the act) is reached between the parties) with intention shown with explicit
agreement.

Regulatory Offences
 Breach of delegated legislation such as regulations or local laws.
- e.g. water restrictions, fire restrictions or public transport rules.

Summary and Indictable Offences

 Summary offences:
 Less severe offences that are heard and sentenced by a magistrate in the Local Court.
 Punishment determined by magistrate.
 Charge is usually laid by police officer or government officer.
 Punishment usually less severe such as a fine, good behaviour bond or community service.
 Indictable offences:
 More severe offences that are heard and sentenced by a judge in District Court or tried before a judge
and jury.
 Judgement determined by jury, punishment determined by judge.
 Charge is brought by a public prosecutor working for the state.
 Punishment is usually imprisonment of hefty fine.
Parties to a Crime
 Principal in the first degree
 Person who commits the criminal act.
 Principal in second degree
 Person who was present at the crime and assisted or encouraged the principal offender to perform the
offence
 Accessory before the fact
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  Helped the principal to plan or carry out the crime
 Accessory after the act
 Someone who has assisted the principal after the actual act is committed
Factors Affecting Criminal Behaviour
1. Psychological Factors.
2. Social Factors
3. Economic Factors
4. Political Factors
5. Genetic Theories
6. Self-Interest

Crime Prevention
Situational Crime Prevention:
 An aim to make it more difficult for criminals to carry out a crime and therefore stop a crime before it is
committed.
- E.g. CCTV and increased lighting.

Social Crime Prevention

 Attempts to address the underlying social factors that may lead to criminal behaviour.
- E.g. drug rehabilitation programs and youth centres.

Chapter 2: The Criminal Investigation Process

SCRL
Important Legislation
 Bail Act 2013 (NSW)
 Crimes Act 1900 (NSW)
 Evidence Act 1995 (NSW)
 Law Enforcement (Powers and Responsibilities) 2002 Act (NSW)

Significant Cases
 Darby v Director of Public Prosecutions [2004] NSWCA
- Deals with search and seizure (what constitutes a search)

Police Powers
 Police are responsible for ensuring the community abides by the law, and for investigating breaches.
 In the criminal process, police are required to investigate crimes and gather evidence, if necessary
make arrests or detain suspects and to bring evidence against an offender to court to be tried.
 In NSW, police powers are mainly found in the Law Enforcement Act (NSW. The main powers
include:
- Question and detain suspects (known as search and seizure)
- Use reasonable force if necessary
- Use particular technologies
- Arrest and interrogate suspects (before an arrest a warrant is needed)
- Recommend whether bail should be granted.

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Reporting Crime
 Reporting crimes is an essential part of the criminal process – police need to be aware a crime has been,
or might be, committed to investigate it.
 It is usually ordinary people who will report a suspected crime.
 However, for many different reasons, people are often reluctant, unable or unwilling to report crimes.
 Some crimes are more widely report than others.
- E.g. domestic violence is rarely reported due to shame and embarrassment, or fear for their
safety.

Investigating Crime
 Police will need to make a decision on whether to investigate a crime based on a number of factors.
- Such as likelihood of success, available resources and priorities, or the severity of the offence.
 If proceeded with, police can use a number of methods and special powers to further their
investigation.

Gathering Evidence
 Police will need to gather enough evidence to support a charge against the accused in court.
 Evidence could include witness testimony, physical evidence like objects or weapons, or other
videos, documents, fingerprints or DNA evidence.
 Strict rules apply to admissibility of evidence in court, and extreme care is needed to ensure any
evidence found is not compromised or interfered with.

Use of Technology
 Technological advances have been useful in the criminal investigation process.
 Technology has improved methods of data, video and audio surveillance, as well as data processing
techniques.
 However, evidence gathered through technology must be sufficient reliable if it is to be used in court.
- One recent issue has been the reliability of DNA evidence, where over-reliance on the evidence
by police or the jury has in some cases led to wrongful convictions.

Search and Seizure

 Police have special powers to search people, property and premises, and to seize and detain objects in
particular circumstances.
 In NSW, police can stop and search a person without a warrant if they ‘believe on reasonable
grounds’ [Law Enforcement Act (NSW)] that the person is carrying something prohibited, stolen or
used in commission of an offense.
 Powers of search and seizure differ depending on the situation, e.g. when searching private premises,
a school, a person already in custody or conducting a strip search.

Use of Warrants
 A warrant is a legal document issued by a judge or magistrate that authorises a police officer to perform
a certain act.
 Police will sometimes require a warrant before they can use their special powers – e.g. NSW police
usually require a search warrant before they can search a private premise, or before they can use a
wiretap.
- Police will need to show sufficient evidence or reasons to a judge or magistrate before a warrant
can be issued.
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Arrest, Detention and Charge
Arrest
 Proper procedures must be followed by police when arresting or detaining a person.
 In NSW, police can only arrest a person if they:
- Have a valid warrant for the arrest.
- Catch a suspect committing an offence.
- Believe on reasonable grounds the person has committed or is about to commit an offence.
- The person has committed a serious indictable offence for which they have not yet been tried.
 For an arrest to be legal, police must state to the person that they are under arrest and the reason why.
 Police can use reasonable force to arrest a person if required.

Detention and Interrogation

 In NSW, police can only detain a person for up to four hours without charging them or releasing them.
(except for terror suspects)
 The time period does not include certain rest periods, and if necessary police can extend the period
with a valid court warrant.
 Police must issue a person with a caution once they are detained and before they are interrogated.
- The caution informs the person of their right to silence and the maximum period of detention.

Release or Charge
 Before the end of the detention period, police must either charge the suspect with an offence or release
them unconditionally.
 If charged and kept in custody, the accused must be brought before a court as soon as practicable for
a bail hearing.

Summons, Bail or Remand

 A summons (or a court attendance notice) will be issued to a person charged with an offence.
 It is a legal document that states when and where a person must appear in court.
 If the accused fails to appear, the magistrate may enter a default judgement of guilty; the person may
also be arrested or charged with contempt of court.
 A summons will also be sent to witnesses required to attend court to give testimony.
 Police may request that the accused remains in custody until and during trial.
 Whether the remains in custody is determined by a magistrate during a bail hearing.
 If bail is granted, the accused can be released awaiting trial, often with conditions attached (like
lodgement of money, curfew or monitoring requirements).
 If bail is denied, the accused will be detained on remand until trial, in a remand centre similar to a
prison.
- Remand is the period a person stays in custody, before trial.

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 Chapter 3: Criminal Trial Process
SCRL
Important Legislation
 Judiciary Act 1903 (Cth)
 Supreme Court Act 1970 (NSW)
 District Court Act 1973 (NSW)
 Jury Act 1977 (NSW)
 Legal Aid Commission Act 1979 (NSW)
 Children’s Court Act 1987 (NSW)
 Evidence Act 1995 (NSW)
 Jury Amendment (Verdicts) Act 2006 (NSW)
 Local Court Act 2007 (NSW)
 Criminal Case Conferencing Trial Act 2008 (NSW)
 Coroner’s Act 2009 (NSW)
Significant Cases
 Dietrich v The Queen (1992)
- Case which established the judicial precedent that legal aid should be provided to all (wording is
key – should, not must – it is not a right)

Court Jurisdiction
 There are many factors that determine which court has the proper jurisdiction to hear a case. These
include:
 Whether it is a criminal matter or a civil matter.
 The case is being heard for the first time (original jurisdiction) or if it involves an appeal (appellate
jurisdiction).
 The age of the accused (e.g. under 18).
 The seriousness and nature of the matter (e.g. summary, indictable or serious indictable offence).
 The type of hearing (e.g. bail, committal, trial or sentencing).
- In NSW, the main courts that deal with criminal offences include:
 Lower Courts
 Local and Children’s courts.
 The Coroner’s Court and the Land and Environmental Court can also deal with some
aspects of criminal matters.
 Intermediate Courts
 District Court.
 Superior Courts
 Supreme Court (Trial Division) and Supreme Court (Court of Appeal).
 In rare cases, the High Court can also hear appeals on points of law from the state
Supreme Court, if it grants special leave to appeal.

Local Court
 The first point of call for most criminal matters in NSW.
 Jurisdiction to deal with summary offences and indictable offences triable summarily.
- Limits on sentences it can impose.

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  Conducts bail and committal proceedings (committal = decides if there is enough evidence to be
referred to a higher court.)
 Matters heard by a magistrate without a jury.
 Cases usually processed faster with less expense.

Children’s Court
 Specialised court dealing with criminal matters involving young offenders (under 18 at time of offence).
 It is a closed court, with matters presided over by a magistrate with specialised training in children’s
matters.
- Also deals with civil and administrative matters concerning the care and protection of young
children.

Coroners Court
 Investigates the cause and manner of a person’s death, as well as fires and explosions where property has
been damaged or a person has been injured.
 Basically, it investigates suspicious circumstances.

Land and Environment Court

 Specialist court responsible for interpreting and enforcing environmental law in NSW.

Supreme Court
 Hears the most serious criminal cases.
 Sits in Sydney, with matters also heard in regional centres if the need arises.
 Hears the most serious criminal matters, like murder and manslaughter, or a major conspiracy or
drug-related charge.

Court of Criminal Appeal

 Branch of Supreme Court and the NSW’s highest court.
 Can hear appeals from the District Court or Supreme Court.
 High Court is the highest court, with appellate jurisdiction over this one.

The Adversarial System

 Australia’s criminal justice system is based on an adversary system of trial:
 This involves two opposing sides responsible for presenting their case to an impartial court.
 The judge or jury hears the evidence presented by the parties and comes to a conclusion.
- Common in common law countries like the U.S., U.K., NZ and Canada.
 It is different from an inquisitorial system of trial
 Involves a judge who directs the case and calls for evidence.
- Common in civil law countries like Japan, Indonesia, continental Europe and most of South and
Central America.

Legal Personal in a criminal Trial

 Judiciary: judge or magistrate.
 Prosecution: police prosecutor or prosecutor of the Director of Public Prosecutions (DPP)
 Defence: barrister and solicitor.

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Please and Charge Negotiation
 A plea is a formal statement of guilty or not guilt entered into by the accused.
 Charge negotiation involves negotiation between the defence and the prosecution about the charges
against the accused.
- It might result in certain charges being withdrawn if the accused pleads guilty to others, or in a
lesser sentence being imposed.

Legal Representation and Legal Aid

 Adequate access to justice is crucial to ensure the legal system functions fairly and equally for all parties
who come before it.
 Not everyone has the finances or skill to seek proper legal representation.
 In Dietrich v the Queen the High Court recognised a limited right to legal representation in Australia.
- Legal Aid NSW provides legal assistance and representation to people who are socially and
economically disadvantaged to ensure that they have equitable access before the law.

Burden and Standard of Proof

 In criminal matters, the burden of proof rests with the prosecution to prove the case against the accused.
 The standard of proof is the level of proof required for a party to succeed in court.
 In criminal matters the standard of proof is beyond reasonable doubt.
- This requires prosecution to show there is no reasonable doubt that the accused committed the
offence.

Use of Evidence, Including Witnesses

 Police will need to gather enough evidence to support a charge against the accused in court.
 The use of evidence in court is bound by the Evidence Act (NSW) – which defines when evidence
can be admissible.
 Different types of evidence include:
- Real evidence – including physical evidence and documentary evidence.
- Witness testimony – can include ordinary witnesses and expert witnesses.

Defences to Criminal Charges

 A defendant may have a legal defence available in order to defend a charge in court.
 There complete defences, which result in the complete acquittal of the accused, or partial defences,
which may result in the charge or sentence being reduced.
 Depending on the nature of the offence, complete defences to a charge can include:
- Mental illness or insanity.
- Involuntary behaviour or automatism.
- Mistake or accident.
- Self-defence or necessity.
- Duress – not applicable to murder.
- Consent – not applicable to murder.
 There are some partial defences that relate specifically to the crime of murder, that can reduce
murder to manslaughter:
- Provocation – the defendant claims that the victim’s actions caused them to lose self-control.
Provocation is a controversial defence and has been abolished in some jurisdictions.

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 - Diminished responsibility – this defence is used when the accused is suffering from a mental
impairment that they claim caused them to commit the crime. E.g. infanticide.

The Role of Juries

 A jury is a panel of citizens, selected at random from a jury list compiled from the electoral roll.
 Juries are used to hear most indictable offences where a plea of ‘not guilty’ is entered, and may be
used in either the District Court or the Supreme Court.
 The jury’s role is to reach a verdict on the guilt or innocence of the defendant based on the evidence
presented to them at trial.
 Either party can challenge selection of a juror based on either a peremptory challenge or a
challenge for cause.
- In NSW, majority verdicts have been permitted since 2006, allowing verdicts of eleven or ten to
one where the court is satisfied that a unanimous verdict will not be reached.

Chapter 4: Sentencing and Punishment

Key Things to Understand
 If an accused is tried in court and found not guilty, the person is acquitted and set free.
 If the accused pleads guilty or the court reaches a guilty verdict after trial, the court will determine
and impose an appropriate sentence on the offender in a following hearing called a sentencing
hearing.

SCRL
Important Legislation
 Child Protection (Offenders Registration) Act 2000 (NSW)
 Crimes (Administration of Sentences) Act 1999 (NSW)
 Crimes (Appeal and Review) Act 2001 (NSW)
 Crimes (Sentencing Procedure) Act 1999 (NSW)
 Crimes (Serious Sex Offenders) Act 2006 (NSW)
 Crimes Act 1900 (NSW)
 Crimes Act 1914 (Cth)
 Criminal Assets Recovery Act 1990 (NSW)
 Migration Act 1958 (Cth)
 Terrorism (Police Powers) Act 2002 (NSW)
 Victims’ Rights Act 1996 (NSW)
 Young Offenders Act 1997 (NSW)
Concepts not to get confused
 Bail is the temporary release of the accused when awaiting trial, often with conditions.
 Remand is the period of time spent in custody awaiting trial, and occurs when bail is refused

Statutory and Judicial Guidelines

 There are numerous laws, rules, guidelines and cases that govern how sentences are determined.
 The Crimes (Sentencing Procedure) Act 1999 (NSW) is the primary source of sentencing law in
NSW.
- The maximum penalty that an offender can receive for an offence is decided by parliament and
listed in legislation.

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  The magistrate or judge determines the most appropriate sentence to impose in the circumstances –
this is known as judicial discretion.
 In some instances, controversial changes have been made by parliaments to remove judicial
discretion for certain offences – this is known as mandatory sentencing.

The Purposes of Punishment

 Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) lays down the allowable
purposes of sentencing in NSW courts.
 The purposes of sentencing can be divided into four main categories (RRID):
- Retribution.
- Rehabilitation.
- Incapacitation
- Deterrence, including general and specific deterrence

Factors Affecting a Sentencing Decision

 A magistrate or judge must take into account many different factors in determining a sentence,
including:
- Aggravating factors – circumstances that make the offence more serious and can lead to an
increased sentence
- Mitigating factors – circumstances that make the offence less severe and can lead to a reduced
sentence
- Other objective or subjective factors or a victim impact statement.

Aggravating Factors
 Some examples aggravating factors:
- Violence, cruelty or weapons.
- Any injury, harm or damage.
- Motivated by any hatred or prejudice.
- If the victim was vulnerable (e.g. old, young or disabled) or targeted for their occupation (e.g.
police officer or teacher)
- If the offender is a re-offender or has any prior convictions

Mitigating Factors
 Some examples mitigating factors:
- Good character references or no prior convictions.
- The offender is youthful or inexperienced.
- The offender pleaded guilty or assisted police.
- The offender has shown honest remorse.
- Good prospects of rehabilitation.

The Role of the Victim in Sentencing

 Victims can be involved in the criminal trial process in a number of ways, for example:
- Reporting a crime and providing evidence.
- Testifying at trial as a witness.
- Submitting a victim impact statement.
 In NSW, victims of crime are recognised and guaranteed certain rights under the Victims Rights Act
1996 (NSW), which contains a Charter of Victims’ Rights.
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Victim impact statements
 A victim impact statement is a voluntary statement written by the victim about the impact that the crime
has had on them.
 It allows the victim to inform the court how the crime has affected them – it is presented after the
verdict but before sentence is passed.
- They are only permitted for serious offences involving violence (actual or threatened) or the
death of or any physical harm to a person.

Appeals
 The Crown and people convicted of an offence, have a right to appeal their case.
 There are two types of appeals in criminal cases:
- Appeal against conviction
- Sentence appeal
 A person convicted or sentenced in a Local Court will have a right of appeal to the District Court, or
to the Supreme Court on a point of law.
- A person sentenced in the District or Supreme Court can seek permission to appeal to the Court
of Criminal Appeal.

Types of penalties
 The Crimes (Sentencing Procedure) Act 1999 (NSW) lists the various penalties a court can impose.
Some of the lesser penalties that do not involve condition or restriction on the offender’s actions
include:
- Caution
- Criminal infringement notice
- Conviction or no conviction recorded
- Fine
- Forfeiture of assets
 Penalties that involve the court imposing conditions or restrictions on the offender’s actions or
movement include:
- Bond
- Probation
- Suspended sentence
- Community service order
 The highest penalties involve a sentence of detention or imprisonment of the offender. These
include:
- Imprisonment
- Home detention
- Periodic detention
 In special circumstances, a court can also approve a diversionary program as an alternative to
traditional processes.
- For example, it may involve a program of rehabilitation for drug and alcohol abuse imposed by
the Drug Court.
 Participants in diversionary programs have been found to be less likely to commit an offence than
those given traditional sanctions.

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Alternative Methods of Sentencing
 In specific circumstances, the law allows for alternative methods of sentencing to be used. These
include:
- Circle sentencing: sentencing for some adult Aboriginal offenders conducted in a circle of local
community members and a magistrate.
- Restorative justice: a form of sentencing involving a voluntary conference between the offender
and the victim of the crime

Post-sentencing Considerations
 A number of issues need to be considered after a sentence is imposed. Common considerations
include:
- Security classification: Determining what prison and level of security is required.
- Protective custody: For offenders who are particularly vulnerable to attack by other prisoners.
- Parole: Conditional release of a prisoner after completion of the minimum term of imprisonment
 Other considerations include:
- Preventative detention: Holding a person in custody in case of some future harm that they may
commit, but without having committed an offence.
- continued detention – on-going detention of a person after they have already served their full
sentence
- Sexual offender’s registration
- Deportation – offenders who are not Australian citizens may be subject to deportation if they
receive a custodial sentence of 12 months or more.
Chapter 5: Young Offenders
SCRL
Important Legislation
 Bail Act 1978 (NSW)
 Children (Criminal Proceedings) Act 1987 (NSW)
 Children’s Court Act 1987 (NSW)
 UN Convention on the Rights of the Child Crimes (Sentencing Procedure) Act 1999 (NSW)
 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
 Young Offenders Act 1997 (NSW)

Young Offenders and the Law

 The law recognises a different level of responsibility and vulnerability for children and young people
than it does for adult offenders.
 The juvenile justice system includes a mixture of the welfare model and the justice model.
 The system applies a higher level of protection and assistance for young offenders, but at the same
time allows for serious sanctions where necessary.

Age of Criminal Responsibility

 Historically, children and young people who committed offences were treated largely the same as adult
offenders.
 Children could be imprisoned, flogged, transported to colonies like Australia, or even executed.
 Gradually, the common law developed a presumption that infants and very young children were
incapable of forming the necessary criminal intent to commit a crime.
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 - This was known in the common law as the presumption of doli incapax.
 By the late 20th Century, most jurisdictions had adopted a minimum age of criminal responsibility.
 Today, there is a conclusive presumption that children under 10 years old cannot commit an offence.
 For children and young people aged more than 10 years, the law differs.
 The following table highlights these differences.

Age (inclusive) Criminal Responsibility

0 – 9 years old Cannot be charged with a criminal offence. Children under 10 are not seen as mature
enough to commit criminal offences.
Rebuttable presumption of doli incapax. Presumed not capable of committing an
10 – 13 years old offence, but prosecution may show the child knew what they did was ‘seriously
wrong’ and not just ‘naughty’.
14 – 15 years old Criminally responsible for any offence committed, but no conviction can be recorded
unless it is a serious offence.
16 – 17 years old Criminally responsible for any offence committed and a conviction may be recorded,
but the case will still be heard in the Children’s Court.
Full adult criminal responsibility, with case to be heard in adult courts. If the offence
18 years or older was committed before the accused’s 18th birthday, it can still be heard in Children’s
Court until the accused turns 21.
The Rights of Children and Young People when Questioned or Arrested
 Many police powers apply to young people as they do for adults, however, the law recognises certain
circumstances where children must be given greater protections in their dealing with police.
 Police can stop and require details of a person under 18 and suspected of carrying or consuming
alcohol without reasonable excuse.
 If police question a child or young person, there must be another responsible adult present, otherwise
the information may be inadmissible in court.
 Children, like adults, have a right to silence when being questioned by police.
 There are special requirements relating to police strip searches and young people.
 The conditions under which police can arrest a young person are as for adults, including the
requirement to tell a person they are under arrest and why.
 Police must find out details of the young person’s parent or guardian as soon as possible and contact
them.
 Children and young people must have a support person present during a police interview.
 Police must give the caution of rights in presence of the support person.
 Police must inform the suspect of their right to contact Legal Aid.

Children’s Court
 The Children’s Court is a specialised court established under the Children’s Court Act 1987 (NSW).
 It has a dual role:
- Dealing with criminal matters of children and young people under 18 years of age.
- Dealing with matters of care and protection of children and young people referred to it by the
Department of Community Services.
 The Children’s Court is required to have regard to particular principles, including:
- Children have rights equal to adults and have a right to be heard and participate in proceedings
that affect them.
- Children are responsible for their actions but require guidance and assistance.
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 - Where possible, the education of a child should proceed without interruption.
- Where possible, a child should be able to reside in his or her home.

Penalties for children

 Children’s penalties differ from adult penalties, and there are more restrictions around when they can be
imposed.
 Some of the lower-end penalties include:
- Dismissal
- Conviction
- Adjournment
- Bond
- Youth justice conference
- Fine.
 Some of the more serious penalties include:
- Probation
- Community service order
- Suspended control order
- Control order (custody in a juvenile justice centre).

Alternatives to court
 The Young Offenders Act 1997 (NSW) introduced diversionary measures for young offenders and police
as an alternative to traditional criminal processes.
 It allows for a three-tiered system to be applied for summary offences by young people, including:
- Warnings
- Cautions
- Youth justice conferences.

Effectiveness of the law for young offenders

 The rate of detention for young offenders has decreased by over 50% since 1981.
- Yet in Australia, between 900–1000 young people are held in custody on an average day.
 Research suggest that custodial penalties ought to be used very sparingly with juvenile offenders.
 The Young Offenders Act 1997 (NSW) has been particularly successful in diverting young people
away from custodial sentences.

Chapter 6: International Crime

SCRL
Important Legislation
 War Crimes Act (Cth)
 Geneva Conventions Act (Cth)
 International Criminal Court Act (Cth)
 International Criminal Court (Consequential Amendments) Act (Cth)
 Australian Federal Police Act (Cth)
 Criminal Code Act (Cth)
 Australian Crime Commission Act (Cth)
 Extradition Act (Cth)

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Significant International Documents
 Rome Statue of the International Criminal Court
 Convention on the prevention and punishment of the Crime of Genocide
 Geneva Conventions
 UN Convention against Transnational Organised Crime

Defining International Crime

 Countries today view their role as part of an international community differently and cooperate more
than ever before.
 In criminal law, there is growing recognition that certain acts committed by individuals might be so
extreme or universally condemned that they should be enforced by all jurisdictions.
 Globalisation, increases international travel and advances in technology have also increased
opportunities for crimes to be committed across jurisdictional borders.

Categories of International Crime

 International crime involves a breach of the criminal standards imposed by the international community,
or some crossing of international borders in the commission or planning of the crime.
 There are broadly divided into two main categories:
- Crimes against the International Community
- Transnational Crimes

Crimes Against the International Community

 Crimes against the international community are crimes recognised by the international community as
being of universal concern.
 They are crimes so serious that they are condemned by the whole international community and are
punishable internationally.
 The International Criminal Court was established in 2002 by the Rome Statue as a court of last
resort to prosecute crimes against the international community.
 The ICC recognises three broad categories of crime against the international community:
- Genocide
- Crimes against humanity
- War Crimes
 A fourth category, known as crimes of aggression, which relates to acts of war, is still being
negotiated.

Transnational Crimes
 Transnational crimes are similar to domestic crimes, such as fraud, hacking or drug trafficking, but
involve movement across international borders.
 Some of the main types of transnational crimes include:
- Human trafficking and people smuggling.
- International fraud and white-collar crime.
- Transnational internet crimes.
- International terrorism.
- Trade or trafficking in illegal goods.

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Dealing with International Crime
Domestic Measures
 Domestic measures for dealing with crimes against the international community include:
- Australia’s ratification of the Rome Statute for the International Criminal Court in 2002 and
involvement with that court.
- Domestic legislation criminalising acts that constitute crimes against the international
community, for example:
 War Crimes Act (Cth) and Geneva Conventions Act (Cth).
 International Criminal Court Ac (Cth)
 Chapter 8 of the Commonwealth Criminal Code (‘offences Against Humanity and
Related Offences’).
 Domestic measures for dealing with transnational crimes include:
- The Australian Federal Police (AFP) deals with transnational crime in Australia but also assists
regionally and worldwide.
- Commonwealth Attorney-General’s Department (provides advice, updates the public and
oversees legislation in this area.)
- Australian Crime Commission (coordinates other departments to combat national issues e.g.
organised crime and transnational).
- Australian Customs Border Protection Service (monitors and combats illegal movement of
goods and people)
- State Bodies (can combat transnational in specific circumstances e.g. NSW’s ICAC investigating
corruption).

International Measures
 International measures for dealing with crimes against the international community include:
- International agreements, such as the Rome Statue establishing the International Criminal Court.
- Specific international tribunals, including the historic Nuremburg trials or Tokyo trials of WWII,
or the International Criminal Tribunal for the former Yugoslavia (ICTY).
- Extradition treaties between countries.
 International measures for dealing with transnational crimes include:
- The International Criminal Police Organisation (INTERPOL)
- International agreements such as the United Nations Convention against Transnational
Organised Crime.
- The Pacific Transnational Crime Network (PCTN).
- Extradition treaties between countries.

The Effectiveness of Measures Dealing with International Crime

 Significant issues to address relating to transnational crimes include:
- International cooperation between states and provisions of adequate resources.
- Coordination between international agencies and exchange of information.
- Efforts and compliance in weaker or poorer jurisdictions.
 Significant issues to address relating to crimes against the international community include:
- Courts are established to deal with atrocities after they have been committed.
- The international community has often been too slow to stop atrocities before they occur or while
they are occurring.

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 - Difficulty in capturing offenders, especially where they are protected inside their own
jurisdiction.
- Cost of investigating and prosecuting cases.
- Incomplete membership of the ICC.
- Danger of imbalanced or biases use of international mechanisms.

Section II: Human Rights

Principal focus: Through the use of a range of contemporary examples, students investigate the notion of
human rights and assess the extent to which legal systems embody such human rights and promote them in
practice.
Themes and challenges:
 The changing understanding of the relationship between state sovereignty and human rights.
 Issues of compliance and non-compliance in relation to human rights.
 The development of human rights as a reflection of changing values and ethical standards.
 The role of law reform in protecting human rights.
 The effectiveness of legal and non-legal measures in protecting human rights.

SCRL
Important International Documents
 ICCPR
 UDHR
 ICESCR
 Magna Carta
 Rome Statue

Terms
Habeas Corpus - people cannot be imprisoned without good reason.
Customary rights - those widely accepted in the community.
Legal rights - those afforded to people by the legal system.
Moral rights - Moral behaviour may simply define as that which is good, eg. the individual has a moral right
to life as it’s immoral to kill others.

Chapter 7: The Nature and Development of Human Rights

Definition of Human Rights.
 Human rights are fundamental rights to which every human is entitled to.
 It is generally recognised that human rights are:
- Universal: which means they apply to everyone, everywhere, at any time.
- Indivisible: which means that all human rights are equally important.
- Inherent: which means that it is given to all humans at birth.
- Inalienable: which means that people cannot agree to give them up.
 Types of human rights include:
- Civil and Political: protect individuals from the arbitrary exercise of power by a state e.g. right
to life and freedom from slavery.
- Economic, Social and Cultural: concerned with the material and cultural wellbeing of people,
e.g. right to social security, equal pay for equal work, right to education.

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 - Environmental, Peace and Self-determination: These are collective rights which mean they
don’t necessarily belong to an individual, but rather ‘people’s’ (self-determination is the right of
people to govern themselves)
 Side note: Environmental and peace rights are considered 3rd generational human rights,
as they were/are being – developed after the UDHR and its’ twin covenants. This also
means they are less enforced/recognised than other human rights.

Developing Recognition of Human Rights

 Whilst the term ‘human rights’ was only developed in the 1940s, the concept of them has its roots in
ancient times.
 Development of concepts of human rights has been influenced by:
- Idea of state sovereignty
- ‘Natural law’ doctrine
- Historic constitutional documents and international agreements
- Movements to recognise certain human rights

Natural Law Doctrine

 The philosophy is based on the idea that certain ‘natural’ laws exist which apply to all humanity and
which maintain the basic dignity of human beings.
 Theorists argued that certain fundamental natural laws applied to humans and could not be taken
away by a king or any other power
 ‘Natural law’ has contributed to concepts of human rights by promoting the idea that humans have
certain fundamental freedoms that cannot be taken away

Historic Constitutional Documents

 Human rights have gradually been recognised through various documents which have become part of the
constitutions of individual nations as well as through international agreements.
 Magna Carta 1215 and English Common Law
- English law (which Australia inherited upon colonisation) first recognised that the king had
limited powers on individuals in the Magna Carta
- It included principles that:
 Everyone has the right to freedom.
 Anyone accused of a crime must be brought before the courts.
 There must be equality before the law.
 Property cannot be confiscated by the king without compensation.
 English common law developed rights protecting rights of individuals including: the writ of
habeas corpus.
 Declaration of Rights 1689 (UK)
- Principles of the Magna Carta and English common law found clearer expression in the
Declaration of Rights 1689
- This document established parliament's supremacy over the king
- Also established some individual rights including:
 Freedom of speech.
 Protection against cruel and unusual punishment.
 Declarations of America and France
- Increasing emphasis individual’s right to be free from the arbitrary power of the state can be seen
in both the:
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  American Declaration of Independence 1776
 French Declaration of the Rights of Man and the Citizen 1789
- These two documents represent systematic attempts to enshrine individual human rights and
freedoms in the law of nations.

Movements Recognising Human Rights

 Movement for protection of human rights has been influenced by the struggle for:
- The abolition of slavery
- Trade unionism and labour rights
- Universal suffrage
- Universal education
- Self-determination
- Environmental rights
- Peace rights
 Abolition of Slavery
 Slaves were used extensively in ancient times.
 This was a system in which individuals had no personal rights.
 They could be bought and sold and were often physically, emotionally and sexually abused.
 Britain and other colonial powers took slavery for granted until late 18th century where there were
growing awareness of natural rights and political liberty.
- Emancipation Act 1833, abolished slavery throughout British colonies
- France was first to pass a decree abolishing slavery, Declaration of the Rights of the Man and
Citizen 1789
- 13th amendment of the US Constitution outlawed slavery in 1865
- Slavery Convention of 1926 was negotiated
- New supplementary convention on Abolition of Slavery in 1965
- Slavery banned under Article 4 of the Universal Declaration of Human Rights
 Trade Unionism
 One outcome of the Industrial Revolution which began in 18th century Britain was the emergence of
trade unions.
 They are associations of employees that were created to protect the rights of workers.
 Holds enormous collective power; where single employees have very limited power but many
workers together combined in a single cause have a great deal of power.
- Universal Declaration of Human Rights, Article 23 (4) states ‘everyone has the right to form and
to join trade unions for the protection of his or her rights’
 Universal Suffrage
 Refers to the right to vote
 In the most voting was only opened to male and the wealthy people
 By the 1890s there were women’s suffrage societies in all Australian colonies
 New Zealand became the first country to pass universal suffrage in 1893.
 South Australia became the first jurisdiction in Australia to grant women the right to vote in 1894
 Voting rights for Federal Parliament were won in 1902
 British women were not entitled to vote until 1928
 However, ATSI groups did not have to right to vote until 1962
- Right to vote is now protected under Article 21 (3) of the Universal Declaration of Human Rights

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 Universal Education
 The concept of universal education is the right of all to a basic education
 Any kind of formal education was rare in most nations before the 19th century
 People of all social class recognised education as a means of ensuring the future of their children
 Australian colonies made several Acts that made education free and compulsory for all
 However, the standards of education in developing countries remain poor today
 The UN has invested large amounts of money to improve the level of basic education throughout the
world
- The right to education is protected under Article 26(1) of the Universal Declaration of Human
Rights
 Self-determination
 The right of peoples to govern themselves and choose their own form of government.
 It involves the right of colonised people to establish their independence.
 Right for people within a nation to freely choose their form of government.
 It is linked to the principle of sovereign equality of all UN’s member states, no matter their size or
power.
- Right to self-determination is protected under the Charter of the United Nations 1945
 Most controversial aspect of self-determination is the right claimed by indigenous peoples to control
their own traditional land and economy.
 This right is referred to in the Declaration on the Rights of Indigenous Peoples 2006 which was
adopted by the UN General Assembly in 2007
 Environmental Rights
 Encompass the right to a clean, healthy and sustainable environment.
 Environmental law protects the right of future generations to the same level of environmental quality
as the present generation enjoys.
 Kyoto Protocol, commits State Parties to reduce greenhouse gases emissions.
- Australian government signed this protocol in 2007 and ratified it immediately
 Other notable conventions for environmental rights are:
- The Stockholm Declaration (1772)
- Rio Declaration (1992)
- Paris Climate Agreement (2015)
 Peace Rights
 The right of people to have their government maintain peace and eliminate war.
- The Charter of the United Nations 1945 obliges nations to settle disputes by peaceful means and
to refrain from acts of war.
- Peace was recognised as an international right by the Declaration of the Right of Peoples to
Peace 1984
- Treaty on the Non-Proliferation of Nuclear Weapons 1968, prohibits signatories from buying or
building new nuclear weapons and commits signatory nation who already have nuclear weapons
to disarmament.

Formal Statements of Human Rights

 Whilst the Universal Declaration of Human Rights 1948 (UDHR) is significant (as it defined human
rights), it is not legally binding, and as such the most important international documents can be seen in
the UDHR’s subsequent twin covenants.

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  Whilst they were originally politicised during the cold war, today the ICCPR & ICESCR are almost
universally ratified.
- The International Covenant on Civil and Political Rights 1966 creates obligations to respect
rights such as Gender equality, freedom of thought, and a rule of law.
- The International Covenant on Economic, Social and Cultural Rights 1966 protects rights
such as rights to just conditions, adequate standard of living and rights to education.
 Other treaties dealing with specific human rights include:
- The Convention on the Rights Of the Child 1989 (CROC) which includes a child’s right to
life, citizenship, heath care, education, a relationship with their parents, and freedom from
servitude.
- The Declaration on the Rights of Indigenous Peoples 2006 (DRIP) which extends the right
of self-determination to indigenous peoples.
- The Declaration on the Right of Peoples to Peace 1984 which declares the collective right of
people for their government to maintain peace and eliminate war.
 Note: Only CROC is legally binding, as the other two are only declarations – just like
the UDHR.

Chapter 8: Promoting and Enforcing Human Rights

The Role of State Sovereignty
 This is a major issue in human rights, as in its strictest sense, state sovereignty means that no foreign
state or law can interfere in another nation’s domestic jurisdiction without consent.
 One of the major problems is that not all governments equally accept the idea that their own people
have certain rights.
- Some countries rely upon state sovereignty as a rationale to justify mistreatment of their
citizens, including human rights abuses. E.g. Uganda’s use of child soldiers.
 Another problem is that due to state sovereignty, even if a country ratifies an international law, it can
simply repeal its domestic laws and no longer be beholden to the international document.
- Whilst this is a major problem in international law generally, we must remember
international agreements are only possible because of state sovereignty.

The Effectiveness of International Responses

 There are significant limits to the effectiveness of international law in protecting human rights.
 Not all countries are parties to human rights treaties.
 Lack of adequate enforcement mechanisms.
 Enforcement by consensus (enforcement of international law relies on consensus).
 Reliance on state reporting.
 Lack of Security Council action.
 War crimes tribunals (tribunals may actually help entrench the conflict rather than end it).
 Lack of funding.
 Informal recognition of NGOs.
 Effectiveness of media
- Media is effective because it can quickly mobilise action however people may get ‘compassion
fatigue’ from being exposed to abuses so much.
The U.N.
 Established through the UN Charter 1945, the U.N. has had mixed success in its fulfilment of its duties,
however human rights remain one of its strongest areas.

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  The Office of the High Commission for Human Rights (OHCHR) – offers support and expertise to
the various human rights monitoring bodies and systems within the UN.
 The UN Human Rights Council – has 47 member states responsible for promoting human rights
globally, Human rights council can also request that the UN Security Council takes action to stop
human rights violations.
- As of 2017, Australia is a member of this council.
 UN General Assembly – one of the principal organs of the UN, this is the main body of the UN in
which nation-states debate agreements, and is particularly effective for HR, because this is the body
which facilitates the creation of declarations and conventions.
 UN Security Council – chief decision-making arm of the UN and is theoretically the most
powerful/potentially effective body, due to its power to create sanctions and authorise military
action.
- However, in practices factors such as certain countries VETO powers, has meant that it
rarely meets this function.
Intergovernmental Organisations
 Powerful instruments for protecting against human rights abuses within member states, because
membership often requires respect for human rights and a good human rights record.
 Examples include:
- Commonwealth of Nations: 54 members including Australia; has a strong history in
promoting human rights and has in the past suspended or expelled members for persisted
abuses. E.g. apartheid south Africa.
- African Union: 53 members across Africa; includes the African Commission on Human and
People’s Rights, African Charter on Human and People’s Rights and African Court on
Human and Peoples’ Rights.
- European Union: 28 member states across Europe including France, Germany and Italy; the
EU Charter of Fundamental Rights ensures that all EU member states respect human rights;
the European Court of Justice enforces the before mentioned charter.

Courts
 International Court of Justice (ICJ):
 Can hear and judge disputes between states, and issues advisory opinions in matters of international
law.
 Requires the consent of state parties to hear matters, limiting its power,
- Unable to hear cases brought by individual people or private organisations, and little power of
enforcement.
- Has heard very few cases on human rights abuse.
 International Criminal Court (ICC):
 Not a court specifically for human rights, but prosecutes and hears matters of the most serious
international crimes, including genocide, crimes against humanity and war crimes.
 Has jurisdiction to prosecute individual people rather than states, which potentially makes it a power
institution.
- An example of its ineffectiveness is Syria, and the failure to prosecute individuals responsible for
war crimes, due to vetos on the Security Council.
 European Court of Human Rights (ECHR):
 Considers cases brought by individuals, as well as organisations and state, against all countries
bound by the European Convention on Human Rights (ECHR).
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  Has 47 members, including all members of the European Union, as well as other European states like
Russia and Turkey.
- Has been very successful and its decisions are highly influential.

Non-government organisations
 An organisation that works towards a certain cause and operates separately to any government.
 As concepts of human rights has grown domestically and internationally, interests in human rights
protection has grown among ordinary citizens - establishment of NGOs for human rights has also
increased.
- NGOs developed the International Bill of Rights and the UN Charter 1945.
 Examples include:
- Amnesty International – has helped raise awareness on violations of political rights such as
their attempt to save the Bali 9.
- International Committee of the Red Cross – one of the oldest organisations, it has been very
successful in its promotion of human rights and humanitarian efforts, often treating combatants
and civilians of both sides during a conflict. This NGO was also instrumental in helping create
the Geneva Conventions.

The Media
 One of the most powerful entities in the modern world, the media has had great success in promoting
human rights, such as Koney 2012, however has been limited in other areas e.g. Ukraine.
 The media plays an extremely important role in raising awareness of human rights abuses around the
world and rallying public and government action against them.
 The growth of 24hr news channels and the internet means that news can now be broadcasted
immediately around the world.
- Often the media ‘names and shames’ perpetrators, however this ability can be restricted
depending on different countries and conditions of war zones.
Effectiveness of Australian Domestic Law in Relation to Human Rights
How Human Rights are Incorporated into Domestic Law (Ratification)
 Unlike some nations, simply signing a treaty does not incorporate it into Australian domestic law, for
that it must be ratified.
 Thanks to the external affairs power stated in the Constitution, the Federal Government has sole
responsibility for negotiating and ratifying treaties.
 For a treaty to be ratified, existing laws (including common, constitutional and statute) must cover
the same grounds as the treaty or new laws must be enacted.
- One example is the incorporation of the Convention of the Rights Of the Child (CROC) into
Australian law with the Family Law Act 1975 (Cth).

The Constitution
 The Constitution provides some of the best protection for human rights although its scoped is limited by
the few rights that are expressed.
- E.g. freedom of religion and right to vote are the only rights specifically outlined in the
constitution, however there are others (such as right to freedom and political communication) but
there are only implied and were made binding through high court decisions.
 Division of Power: helps promote and protect human rights by placing checks of authority on state
and local government.

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 - Also, allows the federal government to ratify treaties under the external affairs power.
 Separation of Powers: responsible for actually enforcing human rights, as it splits the government
in 3 (executive, legislative and judicial) and they balance each other.

Statue law
 Second only to the constitution in protecting rights, as it actually can create new rights but these can
be repealed with a majority in both houses of the federal parliament.
- E.g. various anti-discrimination acts.

Common law
 Very limited in its capability to create new rights, and any made can be overturned by statue law.

Courts and tribunals

 Promotes human rights by knocking back illegal statue laws.
- E.g. high court decision of Mabo v Queensland and Lange v Australian Broadcasting

Non-governmental organisations
 Can shape public opinion by launching coordinated ad campaigns e.g. CFMEU campaign against
work choices.
- Can also lobby governments.

The Media
 Can name and shame because Australia is one of best countries for media freedom.
- It can also change public opinion e.g. Don Dale controversy.

A Charter of Rights?
Arguments for and against a Charter of Rights
For
 High community support for a Charter of
Rights
 Redressing the inadequacy of existing human
rights protections
 Reflecting basic Australian values
 Protecting the marginalised and disadvantaged
 Contributing to a culture of respect for human
rights
 Improving Australia’s international standing
in relation to human rights
 Bringing Australia into line with other
democracies
 Generating economic benefits
Against
 The adequacy of current human rights
protections in Australia
 Undermining a tradition of parliamentary
sovereignty, including transferring legislative
power to unelected judges
 No better human rights protection is guaranteed
 Potentially negative outcomes for human rights
 Excessive and costly litigation
 Democratic processes and institutions offer
better protection of rights
 A major economic cost
 Unnecessarily legalised human rights

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 Chapter 9: Contemporary Human Rights Issue – Child Soldiers
Introduction
 A child soldier is defined as any person below 18 years of age who is, or has been, recruited or used by
an armed force or armed group in any capacity.
- This includes children being used as fighters, cooks, potters, spies, or for sexual purposes.
 Use of child soldiers falls into three main forms:
- Direct Involvement: where the child may be expected to take part in the fighting and armed with
a weapon.
- Indirect Involvement: where the child acts in supporting roles such as a messenger, scout, cook,
servant or even as sexual servants.
- Use for Political Advantage: where the child soldier is used for political purposes, such as
propaganda or as a human shield.
 Children are recruited as child soldiers either voluntarily (usually due to socioeconomic factors or a
misplaced desire for adventure) or in-voluntarily (when armed forces conscript children, usually due
to desperation or for the psychological effects on enemy combatants).
 The current number of child soldiers is unknown (estimated to be in the 10s of thousands), but was
previously reported by the UN and Human Rights Watch in 2007 to be between 200,000-300,000.

The Effectiveness of Legal Responses

 The use of ‘Child Soldiers’ is illegal under international law, however compliance ranges throughout the
world.
 The main international documents include:
- The Additional Protocols to the Geneva Convention of 1977: considers the recruitment of
children under the age of 15 as illegal, a war crime.
- The Convention on the Rights of the Child 1989: now all but universally adopted (looking at
you US), states the minimum age of recruitment as 15, discourages recruitment of children under
18 years old, and creates obligations to minimise harm to all children during armed conflicts.
 This only regulates child soldiers when ratified.
- The Rome Statue 1998: established the International Criminal Court to try persons charged with
committing crimes against the international community. This includes the use of child soldiers,
and as such, the ICC holds jurisdiction to prosecute individuals that recruit child soldiers.
 One example of the ICC successfully prosecuting an individual for war crimes is Thomas
Lubanga, although this took a significant amount of time and money.
 These legal responses have been largely effective:
- all nations in the developed world banning child soldiers.
- However, there remains compliance issues in the developing world – particularly in Africa.
 An example of this is the use of child soldiers in the Ugandan rebel forces known as the
Lord’s Resistance Army.

The Effectiveness of Non-Legal Responses

 Whilst there are many legal responses, their effectiveness can vary – and this is when non-legal
responses shine.
 Brought back into spotlight thanks to media and NGOs such as Human Rights Watch (which
monitors and reports on violations) and Child Soldiers International (which differs as it is a
collection of NGO’s that aim on preventing and rehabilitating child soldiers)
 Examples of large scale efforts is the Kony2012 campaign.
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 - Largely successfully raising awareness and money
- Problem was, Kony had been missing for years
- Most of the money paid individuals running the campaign and few actually helped child soldiers.

Section III: ‘Option 3 – Family Law’

Principal focus: Through the use of contemporary examples, students investigate the legal nature of family
relationships and the effectiveness of the law in achieving justice.
Themes and challenges to be incorporated throughout this topic:
 The role of the law in encouraging cooperation and resolving conflict in regard to family
 Issues of compliance and non-compliance
 Changes to family law as a response to changing values in the community
 The role of law reform in achieving just outcomes for family members and society
 The effectiveness of legal and non-legal responses in achieving just outcomes for family members.

Terms:
De facto couples - couples who live together as though married but aren’t legally married
In Loco Parentis - in the place of parents
Decree Nisi - court order stating the date a marriage will end unless good reason not to is provided
Decree Absolute - court's final order officially ending a marriage

Chapter 10: The Nature of Family Law

Concept of family law
 There are many different family arrangements within modern Australian society, which shape society’s
concept of what a family is and what functions it should perform.
 Fundamentally, a family is a unit of society, and family law comprises all the laws that deal with
relationships and the rights and responsibilities of people in families.
 Society places legal obligations on members of families to ensure that the members also have legal
protection
- The 2 main functions of a family are to care for the children, and the spouses - emotionally,
physically, and financially

Difficulty in Defining Family

 In modern Australia, there are many people living in many different personal relationships which they
regard as family, however what constitutes as family has had major changes in the last 30 years.
 The Australian Bureau of Statistics (ABS) defines family as: ‘two or more persons… who are
related by blood, marriage (registered of de facto), adoption, step or fostering and who are usually
resident in the same household’
 Types of families existing in Australia and numbers according to the 2006 census:
- Nuclear Family: a husband, a wife and their children (46% of households - includes both married
and unmarried couples).
- Couples without children: (38% of households)
- De Facto couples: (with or without children 15%)
- Blended families: couples with children from previous relationships
- Extended family: families which include more than just children and their parents e.g.
grandparents, aunts, uncles, cousins etc.
- Single-parent families: (5.3% as of 2011)
- Same-sex couples: (in 2001, approx 20 000 couples living together)
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Legal Requirements of Marriage
Legal Definition of Marriage
 “The union of a man and a woman to the exclusion of all others, voluntarily entered into for life” -
Marriage Amendment Act 2004 (Cth).
- This definition originally came from a case in Britain called Hyde v Hyde and Woodmansee
1866, which Australian inherited upon federation, but was later added to statue law in the
Marriage Act 1961(Cth). This was again changed by PM John Howard in 2004 – in an attempt to
prevent same-sex marriages.
 Due to the division of powers, marriage is a matter of federal law and according to the definition
above, characterises of a valid marriage are:
- Union of a man and woman.
- Voluntarily entered into.
- For life.
- To the exclusions of all others.

Requirements of a Valid Marriage

 Other requirements for a valid marriage outlined in the Marriage act:
 Marriageable age: legal age to marry is 18 but 16 and over can seek special permission from court
to marry.
 Prohibited degrees of relationships: may not marry ancestor, descendant, brother, sister (including
full blood and half-blood) or adopted siblings.
 Notice of marriage: 1 month notice of intent to get marriage must be given to the celebrant.
 Valid marriage ceremony: must have two witnesses at the ceremony, must have an authorised
celebrant.
 Marriage certificate: issued by celebrant after the ceremony and is legal proof according to the law.
 A marriage can be declared void if:
 One of the parties is already married.
 The parties are related to each other.
 One party did not really consent to the marriage.
 One of the parties was not of marriageable age.

Alternative family relationships

 ATSI customary marriages
 Most customary ATSI marriages do not conform to the requirements of a valid marriage
 In 1982, the Australian law reform commission tabled a report dealing with customary marriages.
The report examined such things as:
- Rights of inheritance
- Compensation payments
- Tax benefits
 The federal government responded to recommendations by saying it was a state territory matter. In
NSW, customary matters are seen as defacto relationships.
 Family Law Act 1975 (Cth) was amended to state that when dealing with parental responsibility the
kinship and child rearing practices of the child’s culture need to be taken into consideration.

 Single Parent Family

 In 2011, 15% of Australia 6.4 million families were single parent.
 Increase in number due to:
- Increase in divorce.
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 - Greater financial independence of women.
- Changing social attitudes.
- Improved welfare provision.
 Child Support Scheme was also introduced to enforce maintenance orders. The Child Support
(registration and collection) Act 1988 (Cth) shifted collection from the courts, to an administrative
body.

 Blended
 When a parent marries with children from another relationship. Family includes stepmother,
stepfathers and step children.
 Step parents do not have the same legal responsibilities for their step children. They do not have a
responsibility to:
- Maintain discipline
- Make day to day decisions about health, education and welfare.
 Step parents can adopt their step children if the child is > than 5 and has lived with the step parent for
more than 2 years. Step parents apply to the Family Court for this order to be made.
 Same Sex
 Recognised as de facto relationships.
 De Facto Relationship
 Defined in section 4A of Family Law Act 1975 (Cth) as a relationship where:
- Partners are not legally married.
- Partners are not related by family.
- They have a relationship as a couple living together on a genuine domestic basis.
 In 2016 over 70% of couple who marry have lived as a de facto couple previously.
 Polygamous Relationships
 Polygamy is having more than one wife.
 Polyandry is having more than one husband.
 Illegal in Australia.
 One of the partners is seen as being the married partner while the rest are seen as de factor partners if
someone moves to Australia from a country where such marriages are recognised.
 Family Court can make orders if polygamous marriage breaks down.

Jurisdiction in Family Law

 Under the Australian Constitution, the federal government has the power to make laws related to
marriage and divorce.
 States have residual powers to make laws on other family matters and have agreed to hand their
powers to the federal government in certain matters regarding family.
- All states except WA has given their powers regarding children of de facto couples to the
commonwealth government
 Children of all families now come under the jurisdiction of the Family Law Act 1975 (Cth)

Legal Rights and Obligations

Children
 A Child is a person under 18, and generally don’t have legal rights until the child is born.
 Australia has ratified several international treaties that deal with the treatment of children.

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 - Eg. The UN Convention on the Rights of the Child (CROC), contains forty articles, most of
which outline a right of a child.
 4 basic principles of the CROC are:
- Non-discrimination
- Best interests of the child
- Right to life, survival and development
- Right to have views expressed and respected

Parents and Children

 There is both state and federal legislation which aims to ensure that parents fulfil their duties, however
these laws also establish that children have certain rights.
- When examining these rights, it is clear that there are corresponding responsibilities and
obligations between parents and children.
 Name and Nationality:
- Parents are obliged to register their children after birth with the Registrar of Births, Deaths and
Marriages (now Service NSW), under the Registration of Births, Deaths and Marriages Act 1973
(NSW)
 This gives the child a legal name.
- Under the Australian Citizenship Act 1948 (Cth), any child born in Australia is automatically a
citizen if one parent is an Australian citizen or permanent resident.
 Discrimination:
- All children have the right to be treated equally before the law.
- All children are given the same rights under the Status of Children Act 1996 (NSW).
 Care and Control:
- Children have the right to know and be cared for by both parents under the Family Law Reform
Act 1995 (Cth).
- Parents have the responsibility to control their child and are responsible to some degree for their
behaviour.
 Discipline:
- Parents have the right to administer moderate and reasonable discipline to their child.
- ‘Moderate and reasonable’ is determined by common law.
 Education:
- Parents are obliged under the Education Act 1990 (NSW) to send their kids to a registered school
or provide approved home school.
- As of amendments to the education act in 2010, students are required to complete school until
year 10 and then to continue either full time education, training, paid employment or a
combination of these until at least 17 yrs old.
 Religion:
- Parents have the right to choose the religion of which their children will be brought up in.
 Medical Treatment:
- Until the child is 14, the parent must seek medical treatment in the child's best interest even if it
goes against religious beliefs.
- The Children and Young Persons (Care and Protection) Act 1998 (NSW) gives doctors the power
to carry out necessary medical treatment without parental consent.
- Under the Minors (Property and Contract) Act 1970 (NSW), people over the age of 14 can
legally give consent to medical treatment.

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  Contracts:
- People under the age of 18 cannot be bound by contract unless it’s for their benefit under the
Minors (Property and Contract) Act 1970 (NSW).
 Autonomy of Children:
- As children become older they become able to make more decisions for themselves
- Some decisions they can legally make under the age of 18 are:
 Consent to medical treatment at 14
 Work at age 15
 Leave home at 16
 Consent to sexual intercourse at age 16
 Drive on a provisional license at 17

Adoption
 The process of transferring the parental responsibilities and rights as covered by the Adoption Act 1990
(NSW).
 In order to adopt:
- Both parents must consent to give up the child, if they have split it is generally up to the mother
but the father has 14 days to apply to care for the child.
- Children over 12 must consent to their own adoption.
- If birth parent give consent, there is a 30-day cooling-off period.
- Must be between 21-51 to adopt and female over 16 years older and male over 18 years older
than child.
- Same-sex couples may adopt.
- Many people go overseas to adopt due to difficulty in Australia.
 Ultimately, adoption is an area of state law.

Chapter 11: Responses to Problems in Family Relationships

Divorce
 The Family Law Act 1975 (Cth) specifies that divorce can only be on the grounds of ‘irretrievable
breakdown’ of the marriage.
 The process of divorce includes:
- Party must inform their spouse at the beginning of the 12-month period.
- Must be living separately and apart for 12 months.
- A decree nisi would be issued after lodging the application with the Family Law Court.
- After a month, the decree nisi becomes a decree absolute to officially dissolve the marriage.

Legal Consequences of Separation

Children
 Laws regarding the care after the parents of the children separate are contained in the Family Law Act
1975 (Cth) which changed substantially by the Family Law Reform Act 1995 (Cth).
 Under the Family Law Act 1975 (Cth), disputes concerning children must aim to achieve the best
interests of the child (heavily influenced by the CROC).
 When determining ‘best interests’, there are two main considerations:
- The child’s right to maintain a meaningful relationship with both parents
- The need to protect them from physical and psychological harm
- Other considerations include the child’s view and relationships with each parent
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  Separating families are required to attend family dispute resolutions and follow a parenting plan
- If an agreement cannot be made, the court will enforce a parenting order that deals with matters
including the child’s living arrangement, parental responsibility, maintenance, communication
etc.

Property
 If the separating couple reach an agreement to the allocation of property, then they can apply to the
Family Court for a consent order.
 If they cannot however reach an agreement, the Family Court will start at a 50/50 split and adjust as
they consider:
- Financial and non-financial contributions
- The effect of the property allocation order on the earning capacity of each party
- Each party’s age, income and financial resources
- Whether each or either party is caring for a child under 18
 Courts aim to be as fair as possible, and have this power under the Family Law Act

Dealing with Domestic Violence

 Domestic violence is defined as any act whether verbal or physical, of a violent or abusive nature that
takes place within a domestic relationship.
 It can be caused by, (and result in) psychological problems, social problems and financial problems.

Violence Between Spouses

 Victims can apply to the Local Court for an Apprehended Domestic Violence Order (ADVO), aim to
protect victims who know their attacker.
 ADVO’s were introduced by the Crimes (Domestic Violence) Amendment Act 1982 (NSW)
- ADVO’s restricts the offender’s behaviours, it also revokes that person's firearm license (if they
have one)
 Originally, they were limited to married or de facto relationships though in 1988 it was amended
- The government has introduced a program that requires police to take photos of injuries to add
weight to ADVO applications

Violence Against Children

 The CROC declares that no child should be subjected to violence and that it is the responsibility of the
state to protect them from all forms of physical or mental violence.
 A police officer is the only person who can apply for and ADVO for children under 16 years of age,
those over can apply for their own
 Certain professionals (ie. doctors, teachers and school counsellors) are required to report to the NSW
Community Services if they suspect a child is at risk of harm under the Children and Young Persons
(Care and Protection) Act 1987 (NSW).
- Once made, Community Services (FACS in NSW) must legally investigate the issue, and can
remove the child from their home situation

The Role of:

Courts and Dispute Resolution Methods
 The Family Court of Australia deals with complex issues regarding marriage, divorce and children, it
provides legally binding resolutions to such matters.
 The adversarial nature of courts intensifies the conflict, and thus mediation aims to reduce litigation
(courts) to resolve such disputes.

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 - They can determine parenting plans
- Division of property after separation
 NSW state courts have a role in:
- Adoption
- Wills, inheritance and succession
- Most aspects of domestic violence
- Surrogacy and birth technologies
- Care and protection of children
 The Family Court of Australia was established under the Family Law Act 1975 (Cth)
 This and the Federal Magistrates Court (Federal Magistrates Act 1999 (Cth)) are known as family
law courts
- The Family Court of Australia is a superior court and only hears more complex matters (ie.
complex financial matters)
- Most divorces are solved through mediation, reducing pressures on courts’ time and save people
money
- Some people find meditation unsatisfactory in achieving justice

Non-Government Organisations
 NGOs often provide support for families.
 Examples of NGOs:
- Wedley Mission
- Dads in Distress
- Women’s Legal Centre
 They provide mentoring, support, counselling, relationship advice, assistance in managing conflict
and emotional support for children as their parents separate.
 Many of these organisations are dependent on donations and goodwill of volunteers
 Supply compulsory mediation for separating families.

The Media
 Draw attention of the public to perceived injustices in the system
 Highlighting abuse women go through has led to changes in social attitudes against violence in the
home
 Media technologies such as websites, brochures and forms has been used by courts to provide better
information about rights and obligations under family law
 Pressures parliament
- Eg. one year before the announcement of the NSW Domestic Violence Death Review Team, the
Sydney Morning Herald issued many articles with pictures and stories of domestic violence
homicide victims and emotive headlines calling for domestic homicide review.

Effectiveness of the Law in Achieving Justice During Relationship Breakdown

Factor which enhance the effectiveness Factors which limit the effectiveness

Parties to a marriage

- Divorce is easy to obtain - Sometimes one party is to blame

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 - Agreement about divorce is - Some argue divorce is too easy to
encouraged so costs and trauma are obtain
reduced

Parties to a De Facto Relationship

- Since 2009, rules regarding property - Some people feel that de facto
division for divorcing couples now couples should not have the same
apply to separating de facto protection from the law, particularly
relationships in property disputes

Parents

- 2006 amendments mean that parents - 2006 amendments are used by some
generally have equal shared parental to lessen maintenance payments
responsibility

- Family violence provisions protect - Family violence provisions may be

victims of domestic violence detrimental to women, making them
fearful to raise the issue

Children

- Children’s rights rather than parent’s - There’s allegations that family

rights are emphasised violence is insufficiently catered for
and that some children spend
significant time with a violent parent

Other People

- Other people with an interest in the

children can apply to the court to see
the children

Chapter 12: Contemporary Issues in Family Law

Recognition of Same-Sex Relationships
 Homosexual couples have only recently gained legal recognition; though face many other problems such
as being discriminated by insurance companies, refused equality under superannuation and being denied
the right to marriage.
Legal Responses Non-Legal Responses
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 In the Family Law Amendment (De Facto  The Australian Human Rights Commission
Financial Matters and Other Measures) Act holds inquiries and gives recommendations
2008 (Cth), separating de facto homosexual to the government regarding legislation that
couples are able to bring property and does not comply with UN human rights
maintenance matters to the Family Court or treaties. In the report Same-Sex: Same
Federal Magistrates’ Court. Entitlements, they had recommended
 Changes to the Health Insurance Act 1973 amending federal laws to remove
(Cth) in 2008 allows same-sex couples and discrimination. This report prompted the
their children to register as a family for legal responses in the other column.
Medicare and have the same entitlements.  Groups such as the Australian Marriage
 The Miscellaneous Acts Amendments (same Equality and Gay and Lesbian Rights Lobby
sex relationships) Act 2008 (NSW) gave have lobby the government and media to
equal parenting rights for female partners of address discrimination.
mothers (both are now listed on the birth
certificate), thus providing the children
inheritance rights.
Effectiveness
 Both state and federal governments continue to work and respond to issues of discrimination.
 Recent legislative changes have improved the legal rights and protections of same-sex couples but
an impasse still exists in allowing same-sex couples to legally wed.
- Hopefully the current postal survey can help alleviate this.
Changing Nature of Parental Responsibility
 In the past, parents sought ‘custody and control’ over their children, enforcing their parental rights over
their children’s wellbeing.
 Now the courts are less concerned with parental rights, and more concerned on parental
responsibility, family dispute resolutions, and domestic violence.
Legal Responses Non-Legal Responses
 The Family Law Amendment (Shared  Community institutions and nationwide
Parental Responsibility) Act 2006 (Cth) organisations can help separating parents
makes courts take primary and additional negotiate their own parenting agreements.
considerations. - Relationships Australia also offers a
- Primary considerations are the range of information, referrals,
capacity for beneficial child-parent counselling, education and skills
relationships, and the need to protect the training – services.
child from abuse. - DadsLink is a group that focuses on
- Additional considerations include the fathers and their relationships with their
child’s wishes, parental financial children
abilities, and so on.
 Terminology changes in the legislation from
‘custody’ to ‘residency’ to ‘living with’ are
intended to remove any notion of parents
owning and totally controlling their children
Effectiveness
 Family law in this area emphasises idea that children are vulnerable, are their needs must be met first
and foremost.

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  Criticisms have arisen from the laws over emphasis on equal time with parents, rather than the
quality of life that would entail.
 Misconceptions have also formed, due to poor wording in the terms shared care (equal time with
parents) and shared parental responsibility (shared decision making), and this may require revision
in the legislation to address the misconceptions.
Surrogacy and Birth Technologies
 Birth technologies (such as IVF and surrogacy) raise questions about paternity and the rights of
inheritance.
 Laws relating to surrogacy differ from state to state, creating inconsistency.
- Commercial surrogacy is illegal in NSW under the Assisted Reproductive Technology Act 2007
(NSW) though altruistic surrogacies (no reward payments) are largely unregulated.
 Note: The surrogate mother has exclusive custody rights; she cannot be forced to give up the
child.
Legal Responses Non-Legal Responses
 Surrogacy Act 2010 (NSW) made  Various organisations and lobby groups
commercial surrogacy illegal, but allowed have opposed surrogacy as it gives a means
altruistic surrogacy. of same-sex couples raising children (they
- Also introduced a maximum 2-year jail have desired surrogacy be restricted to
sentence and $100,000 fine. infertile heterosexual couples)
 The Status of Children Act 1996 (NSW)
created the ‘presumption of paternity’,
which states that when a woman becomes
pregnant by using donor sperm from
someone other than her husband, the man is
presumed not the father of the child born.
 In the case of B v J (1996) the child’s father
refused to pay maintenance as his name
didn’t appear on the birth certificate; this
was rebutted
Effectiveness
 The law has been ineffective in clarifying the rights and responsibilities of commissioning parents and
birth parents, the rights of the child, and removing inconsistencies between states.
 There is much need for law reform as these technologies challenge long-standing views on
families and parents.
Care and Protection of Children
 All of Australia has passed laws regarding family violence (n order to address child abuse and neglect,
however their effectiveness is mixed.
 According to the NSW Ombudsman to the Wood Enquiry, number of “at risk of harm” reports have
been steadily increasing since 2006.
Legal Responses Non-Legal Responses
 Under the Children and Young Persons  Organisations such as the Salvation Army
(Care and Protection Act 1998 (NSW), provide extensive support and educational
certain professionals are required to report services to children in need e.g. child care
to Family and Community Services (FACS) centres, counselling services, emergency
if they suspect child abuse, and a housing.

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 caseworker will make an assessment to  Anglican Church has established
determine the extent of risk. Professional Standards Unit that
- Police and representatives from the investigates complaints involving clergy
NSW Department of Health will protect and ancillary staff in the sexual abuse of a
the child. child.
- Police have powers to arrest the suspect.  Child Abuse Prevention Service (CAPS)
- The Wood Inquiry found that mandatory aims to educate the community about child
reporting increased by 19% following abuse issues and raise awareness
this change.
 If FACS determines that a child should be
removed from their guardian, they will
apply for an order from the Children’s
Court.
 60% of all reports are referred to the Joint
Investigation response team (JIRT) who will
speak to the young person and act to protect
the child if they are in immediate danger.
Effectiveness
 Whilst these laws have helped, the crisis remains.
 According to the NSW Family and Community Services Annual Statistical Report 2010/11:
- During 2008/09 there were nearly 190,000 calls to Helpline and 7500 eReports
 Overall improvements are still needed such as:
- Decreased admin work for case worker.
- Decreased call load to helpline.
 The end aim is to allow caseworks to focus on assessment and harm prevention.

Section IV: ‘Option 7 – World Order’

Principal focus: Through the use of contemporary examples, students investigate the effectiveness of legal
and non-legal measures in promoting peace and resolving conflict between nation states.
Themes and challenges to be incorporated throughout this topic:
 The role of law in encouraging cooperation and resolving conflict in regard to world order.
 Issues of compliance and non-compliance.
 The impact of changing values and ethical standards on world order.
 The role of law reform in promoting and maintaining world order.
 The effectiveness of legal and non-legal responses in promoting and maintaining world order.

Chapter 13: The Nature of World Order

Meaning of World Order
 ‘World order’ refers to the activities and relationships between the world’s states and other significant
non-state global actors, that occur within a legal, political and economic framework.
 This balance of power informs the ay nations regulate and order their interactions with each other.
- World Order maintains political stability across the globe, allowing for the continued existence of
complex international bodies such as the UN, EU, NATO, International Monetary Fund and the
World Bank.

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The Need for World Order
 An ordered world is needed if states are to cope with globalisation and counter global threats such as
nuclear war, climate change and economic meltdown.
 The need for world order has never been greater, due to the high level of interdependence that has
resulted from globalisation.
 The current world order is founded upon two principles that on their face seem contradictory: state
sovereignty and multilateralism.
- Multilateral approaches are far more effective than unilateral action in dealing with the common
problems that face the international community.

The Development of World Order

 In 1919, at the end of World War I, the League of Nations was established to prevent war, based on
the principle of collective security.
- However, the League was ultimately unsuccessful and failed to prevent the outbreak of World
War II.
 At the end of World War II, the victorious Allied Powers, including this time the US, established a
new organisation to promote global peace and security.
- The United Nations Charter was signed in San Francisco by 50 nations on 26 June 1945, and on
24 October 1945 the UN became a legal entity.

The Nature of Conflict

 Throughout human history, conflict has been a destabilising factor and a constant threat to world order.
Inter-state (between nations)
 Interstate conflict can take different forms, such as conventional war, nuclear war, cyber-warfare or cold
war.
Intra-state (within a nation)
 Intrastate conflict can include civil war, guerrilla war, wars waged by governments against their own
citizens, terrorism or communal killings.
 It was previously believed that intra-state conflicts did not threaten world order, however there are
two ways in which they can:
- When there is movement of people causing pressure along national borders.
- When crimes against humanity or genocide are involved.

Access to Resources as a Source of Conflict

 Competition over access to resources such as fossil fuels and water are likely to become an even more
serious source of conflict.

Land
 Traditional reason for conflict.
 Land used for personal, industrial or agricultural purposes is becoming scare due to:
- Population growth
- Pollution
- Environmental degradation
- Enables access to many other resources
- Cultural, emotional and spiritual attachments may be related to the land, particularly in relation to
Indigenous People
 Violent conflicts over land include, East Timor, Kosovo, Rwanda and (to some extent) WWI.
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Timber
 Increasingly scarce resources – 46% of old growth forests have been destroyed.
 Timber is easily accessible, easy to transport, versatile and necessary for construction and
development.
- Therefor a lucrative industry has arisen
 Conflicts include Burma, Cambodia, Democratic Republic of Congo, and Liberia.

Gas and Oil

 Fuel scarcity is one of the greatest concerns for developing and developed countries who are
economically dependent on fuel sources.
 Alternatives are beginning to be developed and increasingly active, for example nuclear and solar,
thus bringing us to the question, is this the end of the oil era?
 Many of the world’s largest oil reserves are in areas of political instability and conflict, including:
- Iran
- Nigeria
- Sudan
 The search for oil can also exacerbate and fund conflict.
- The intervention of Transnational Companies can greatly contribute to the loss of world order as
companies such as BP and Shell override the opinions of smaller countries, e.g. Sudan.

Minerals
 “Valuable minerals become conflict minerals when their control, exploitation, trade, taxation or
protection contributes to or benefits from armed conflict” – UN Agency for International Development.
 Competition for minerals is often between companies, individuals, governments and entire countries:
- Diamonds are frequently used by rebel groups as a source of income due to the nature of
diamonds as easy to steal, move, conceal and are difficult to trace, e.g. Angola and Sierra Leone.
 Human rights violations led to certification processes for all commercial diamonds.
- Colton is another sought after minerals, used in smart phones, computers and game consoles
 Found in the Democratic Republic of Congo.
- Copper has historically caused great conflict in the maintenance of control of mines.
 E.g. Papua New Guinea.

Chapter 14: Responses to World Order

The Effectiveness of Legal and Non-Legal Measures
The Nation State and State Sovereignty
 State sovereignty is the foundation of contemporary international relations, however also poses the
greatest challenge for international law.
 Sovereignty refers to the supremacy and independent authority of the nation state to govern its own
affairs free from external interference.
 Sovereignty also affords a state the ability to enter international agreements and treaties, thus
providing the foundation for international law.
- However, these states may also use their sovereignty to impede the influence on international law
by acting as a barrier to unwanted input from the international community.
 Article 2 of the UN Charter enshrines a nation’s right to state sovereignty; however, it also
recognizes the ability of the UN Security Council (UNSC) to override this concept if a threat to
peace or act of aggression is posed.

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  The difficulty of this notion remains, however, in the interpretation of the criteria necessary to
intervene.
- It is generally accepted that this occurs when a conflict expands beyond a nation’s own borders,
for example an intra-state conflict causing an exodus of refugees into neighbouring counties, thus
posing a ‘threat to peace’ and qualifying UNSC authorised intervention.
 Sovereignty further underpins international law through the power to reject international documents
- Failure to sign or ratify treaties means those states are not bound by, and are thus exempt, from
international law
- Non-members of the UN are not bound by the Charter nor are they obliged to co-operate with the
international community

The United Nations

 The creation of the United Nations was a massive multilateral commitment to a global environment
characterised by the rule of law.
 In its history, the United Nations has achieved the following aims:
- Promoted the idea that everyone has human rights regardless of where they live.
- Led numerous peacekeeping operations.
- Served as the hub of a massive body of international law.
- Enabled dialogue to continue between hostile states.
- Kept all nation-states as members, even those that have been at odds with the international
community.
- Acted as a court of world opinion on issues of great importance.
 The UN also provides leadership in dealing with issues that affect global order in the following
ways:
- Commissioning research and reports.
- Convening conferences.
- Initiating new treaties e.g. the ICCPR, ICESCR and CROC
- Promoting arms control.
- Promoting human rights.
- Carrying out peacekeeping operations.
- Providing humanitarian and development assistance.

International Instruments
 Treaties and customary law are the main sources of international law.
 There are two types of treaty:
- Bilateral treaties between two states.
- Multilateral treaties between a number of states.
 Since 1945 all states have been obliged to lodge their treaties with the United Nations.

Courts and Tribunals

 Promoters of diplomatic process, courts and tribunals are crucial to maintaining world order as they
prevent or prolong the assumption of conflict between states as negotiations are permitted to take place
 These include:
- The International Court of Justice (ICJ): Established in 1946 as part of the UN, the ICJ deals
with disputes between states, however its judgments are only binding if the nations agree to the
resolution.

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 - The International Criminal Court (ICC): Established by the Rome Statue in 1998, the ICC is a
court in which individuals can be tried for mass atrocities (genocide, war crimes, crimes against
humanity), however cases take a large amount of time and money – and are very rare.
- ad hoc tribunals set up to hear matters arising from armed conflicts e.g. International Criminal
Tribunal for the Former Yugoslavia.

Intergovernmental Organisations
 Regional intergovernmental organisations (IGOs) are increasingly making a significant contribution to
world order, such as the:
 African Union (AU)
 European Union (EU)
 Council of Europe
 Commonwealth
 Organisation of American States (OAS)
 Association of Southeast Asian Nations (ASEAN).

Non-Government Organisations
 Non-government organisations (NGOs) also play a crucial role in world order, and there are some
25,000 NGOs today that campaign globally for humanitarian ideals.
 NGO’s are special interest organisations that focus on particular issues and seek to ameliorate the
issues and raise a broad public awareness
 Some of the most prominent of these include;
- Amnesty International
- Greenpeace
- Oxfam
- Human Rights Watch
 NGO’s assisted in the writing of the UN Charter and are integral to the running of the UN,
collaborating with various specialised agencies
 NGO’s deal with issues of international concern through:
- Investigation
- Research
- Education of policy makers
- Education of the public
- Lobbying leaders and governments

Australian Federal Government

 Under section 51 of the Australian Constitution, the federal parliament has the power to make laws
relating to ‘external affairs’, that is, matters of international concern.
 Since federation in 1901, Australia has taken its global responsibilities seriously and has been an
enthusiastic contributor to the United Nations in the areas of regulation of nuclear weapons,
peacekeeping and humanitarian assistance.
- Australia has even served on the UN Security Council 5 times, and was recently elected to the
UN Human Rights Council in 2017, for 3 years.

The Media
 A free and unbiased media is essential to the rule of law and the maintenance of a well-informed, stable
global sphere.

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  The media draws attention to various disasters and political crises and has the potential to influence
political leaders through public opinion
- NGO’s such as Amnesty and IGO’s such as the UNHCR utilize the media to propagate their
cause and inform the public of present human rights abuses

Political Negotiation, Persuasion and the Use of Force

Political Negotiation
 The simplest and most frequent use of means of working with the international community,
communication between states now occurs at many levels of government.
 Technological advancements have broadened the forum of discussion between nations and has
promoted diplomatic negotiations.
- Where negotiation cannot solve disputes, the next step is persuasion

Diplomatic Pressure (Persuasion)

 States, international organisations and transnational corporations can be persuaded to change their
behaviour through the pressure of world public opinion.
 Persuasion is one of the main ways in which NGO’s achieve their objectives.
 States also can be encouraged to improve their behaviour by the prospect of membership to world
organisations.
- For instance, Turkey was required to improve its compliance with human rights before its
membership to the EU would be approved. (currently Turkey has not joined the EU)
- China were also asked to raise its trade standards to comply with the rules of the World Trade
Organisation.
 This type of persuasion is called ‘soft power’ and relies on co-operation rather than coercion.
 The media can heavily contribute to this kind of diplomacy by providing a platform for the global
community to express their opinions:
- In the lead up to 2008 Beijing Olympics, a social media campaign labelled the games the
‘Genocide Olympics’ due to China’s repeated blocking of UNSC resolutions on ending violence
in the Darfur region
- In July 2007 China became signatory to UNSC resolution 1769

Force
 The deterrence of the use of force (albeit, as a last resort) is enshrined within Article 2 of the UN
Charter;
- “All members shall refrain in their international relations from the threat or use of force against
the territorial integrity or political independence of any state”
 However, the United Nations does provide a framework for circumstance where political
negotiations break down and persuasion and soft power have no effect.
- Article 42 states the UNSC may take action as necessary to maintain or restore international
peace and security.
- Article 51 states force may be used in self-defence.
 This notion however proved problematic, as highlighted by the 2001 US invasion of Iraq, America
claiming this was in response to the September 11 attacks by al Qaeda terrorists.

Multilateral Action
 Multilateral Action requires international co-operation and primarily the unanimous agreement of the
five permanent members of the UNSC.
- Collective action was not taken in Kosovo after two members threatened to veto any resolution
attempts

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 - In the absence of UN action, NATO forces intervened the ethnic cleansing and called for
international security and presence in Kosovo.
 Ultimately, multilateral or collective military action that has the backing of international law is
deemed legal only when in response to a situation threatening global peace.
 Since WWII, unilateral military intervention is illegal under international law, although this has not
stopped some nations.

Chapter 15: Contemporary Issues Concerning World Order

The Responsibility to Protect (R2P)
 Recognizing the failure to adequately respond to the most heinous crimes known to humankind, world
leader made a historic commitment to protect to protect population from genocide, war crimes, ethnic
cleansing and crimes against humanity at the United Nations (UN) 2005 World Summit.
 This summit agreed upon three pillars in regard to the new Responsibility to Protect:
- Pillar One: The State carries the primary responsibility for the protection of populations from
genocide, war crimes, crimes against humanity and ethnic cleansing.
- Pillar Two: The international community has a responsibility to assist States in fulfilling this
responsibility.
- Pillar Three: The international community should use appropriate diplomatic, humanitarian and
other peaceful means to protect populations from these crimes. If a State fails to protect its
populations or is in fact the perpetrator of crimes, the international community must be prepared
to take stronger measures, including the collective use of force through the UN Security Council.
Legal Responses Non-Legal Responses
 R2P places the onus on states and  In 2003, the World federalist movement-
international organisations to protect institute for global policy (WFM-IGP)
populations from mass atrocities. launched the ‘Responsibility to Protect –
- For states, it requires them to protect Engaging Civil Society’ project’ (R2PCS)
their own citizens and to help other with aim of building support for R2P.
states to build their capacity to do so. - The aim of R2PCS was to build support
- For international organisations, for R2P by engaging civil society and
including the UN, it imposes a educate other NGOs and the R2P
responsibility to warn, to generate principles so that they could effectively
effective prevention strategies, ad when lobby governments to respond quickly
necessary mobilise military action. and appropriately to emerging
- For NGOs and individuals, R2P means humanitarian crises.
the responsibility to draw policy- - The R2PCS has been involved in
makers’ attention to what needs to be strengthening the acceptance of R2P
done, by whom and when. with governments and international
 Prevention is the key response in the R2P organisations, raising awareness of R2P,
doctrine through measures such as building promoting the implementation of R2P
a states’ capacity to safeguard human rights, with the UN and helping NGOs develop
remedying grievance and conforming to the strategies to implement R2P for country
rule of law. specific situation.
- However, if the prevention fails, R2P  International Coalition For The
requires whatever measures are Responsibility to Protect (ICRTOP) was
necessary to stop mass atrocity crimes. established in 2009 to raise awareness of
R2P and educate NGOs on how to form
partnerships with other NGOs and apply
R2P norms to specific regions.

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 Effectiveness
 Work still needs to be done in making R2P a useful mechanism in responding to crisis situations.
 Problems include:
- Lack of political will: states are unwilling to act.
- Politics: judgment is necessary and unpopular.
- Information: unclear when intervention works.
 These problems are best illustrated with the cases of Libya and Syria:
 Libya
- Arab Spring:
 Led to an uprising
 Fuelled by social media
 Population wanted democracy
 Gaddafi, Dictator
 Military attacked population (War Crimes - Crimes Against Humanity)
- UNSC passed resolution in 1973
 R2P justification for no-fly zone
 Led by NATO, forces attacked Government forces which allowed rebels to overthrow
government.
 Civil unrest remains to this day, due to opposing sides trying to gain control.
- Was this R2P or Western influenced regime change?
 Either way it resulted in a power vacuum.
 Syria
- Arab Spring:
 Growing frustration with the regimes' handling of HRs.
 Public protests.
 Government killing protestors.
 Organised militia set up to fight against government.
 Increased targeting of civilians, with the government even using Chemical weapons and
Bunker bombs
- UNSC passed resolution to demand an end to all violence (attempts at orchestrating a
ceasefire)
- UNSC resolutions to take military action were vetoed by China and Russia, due to concerns
about wester regime change.
- In February 2017, the US launched a missile attack against Regime forces after reports of
chemical warfare
 The US said they were enacting international law, however the UNSC did not sanction the
military action – thus rendering the attack as illegal (although the US faced no
consequences).
Regional and Global Situations that Threaten Peace and Security:
The Nuclear Threat
 The greatest threat to global peace and security is the presence of nuclear weapons.
 The international community was lucky to survive the Cold War and other international tensions and
conflict without a nuclear war between world powers.
 WW3 came close in 1
- 1962 – Cuban Missile Crisis
- 1973 – Oil Crisis
- 1985 - Reaganism led to a military build-up and cold war escalation.

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 - 1995 – false reading had indicated to the Russians that the US had pre-empted a nuclear attack.
Russia was moments away from retaliating, but the commanding officer realised it had to be a
glitch because the Russian leader was in the US at the time.
Legal Responses
 Bilateral Treaties:
- 1991 – The USA and Russia signed
START 1 and began reduction of their
nuclear arsenals from 58000 nuclear
warheads. The aim was to reduce their
arsenals to about 5000 each. The total
amount between the two countries is
about 11000 at present.
- 2002 – US president Bush and Russian
President Putin signed the SORT treaty.
Both states were to reduce their nuclear
weapons to between 1700 and 2000
except ‘tactical’ nuclear weapons (those
to be used on the battle field).
- 2010 – US president Obama and
Russian president Medvedev signed
‘New Start’ to replace the expiring
START 1 and SORT treaties. The
reductions required include a reduction
in deployed nuclear warheads to 1550
combined.
 Multilateral Treaties:
- The Nuclear Non-Proliferation treaty
(NPT) 1968:
 Bans the creation of new nuclear
weapons.
 It was signed in 1968 in
Washington, London and Moscow,
and came into force in 1970 when it
was ratified by a sufficient number
of nations, however Israel, India and
Pakistan did not ratify – and have
since develop nuclear arsenals.
- Comprehensive Test Ban Treaty
(CTBT) 1996:
 This treaty banned the production of
weapons grade fissile material,
eliminate nuclear weapons,
supported nuclear free zones and
gave security assurances to all
nations.
Non-Legal Responses
 International Weapons of Mass
Destruction Commission:
- Established by the Swedish government
in 2003 as a response to slowed progress
on non-proliferation, arms control and
disarmament.
- Its role was to act as a facilitator of
informed public debate to rid the world
of weapons of mass destruction.
- The major achievement of the
commission was the publication of the
2006 report, weapons of Terror which
was particularly detailed investigation
into how disarmament could be
achieved.
 The International Commission on
nuclear non-proliferation and
disarmament:
- Set up investigate nuclear disarmament
plans and develop tighter rules for the
NPT.
- The commission finalised a report in
2009 titled 'Eliminating Nuclear Threats
- A practical guide for Global
policymakers'.
 Campaign for Nuclear Disarmament
(CND):
- British NGO that aims to rid the world
of nuclear weapons using non-violet
means.
- Advocates immediate negotiation that
will lead to rapid, timetabled abolition
of nuclear forces.
- It participates in UN conferences on
disarmament.
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  As of March 2010, there were 182
signatories and 151 ratifications.
However, the United States had not
ratified the treaty at this time.
Effectiveness
 International law in regard to the nuclear threat has been largely successful, as most nations in the
world do not possess nuclear weapons, however for these laws to be effective no nation can possess
the weapons – and as such they have not been effective.
 North Korea:
- 1993 North Korea was referred to the International Atomic Energy Agency (IAEA) for
violating its safeguards.
- The US and North Korea signed an agreed framework that was non-binding but North Korea
agreed not to manufacture nuclear weapons and remain a party to the NPT.
- In 2003 North Korea withdrew from the NPT and in 2006 detonated a nuclear bomb. After
further pressure from the UNSC, North Korea agreed to abandon its nuclear program. This has
not occurred and North Korea has exponentially accelerated their nuclear program since the
election of Donald Trump.
 Iran:
- Since 2006 the UNSC has put pressure on Iran which had appeaed to be determined to develop
a nuclear bomb.
- In 2015 the US and Iran ratified the Iran Nuclear Deal in which Iran agreed to limit its
enriched uranium – to a level where it would not be able to produce a nuclear weapon, but still
enough for nuclear power. In return, the US agreed to lessen their sanctions against Iran, and
by all accounts, Iran has abided by the deal.
 However as of October 2017, the US has indicated its dissatisfaction with the deal and
has increased sanctions on Iran.
The Success of Global Cooperation in Achieving World Order:
East Timor and the UN intervention
 The UN intervention in East Timor since 1999 is considered a successful example of global cooperation
in achieving the resolution of world order issues.
 It involved the illegal invasion of East Timor by Indonesia in 1975, atrocities committed during the
25-year occupation, and violence committed by pro-Indonesia militias in 1999.
 In 1975 the Indonesian government invaded East Timor then governed the annexed territory harshly.
- It is estimated that over 100,000 people died as a result of the Indonesian takeover.
- Reports of atrocities were denied by the Indonesian government as were the East Timorese desire
for self-determination.

Legal Response (UN Nation-Building)

 After the Asian Economic Crisis in 1998, the downfall of the Suharto regime and a personal letter from
Australian PM John Howard; the Indonesian government agreed to allow a UN sponsored referendum
for independence.
 UNSC Resolution 1264 created the United Nations Mission in East Timor (UNMET) which held the
ballot, and consisted of 280 unarmed police officers, who acted as advisors to Indonesian police.
 There was overwhelming support for independence (78.5%) which saw a backlash by pro Indonesian
supporters, resulting in 70% of the country’s infrastructure destroyed and left 2000 dead.

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  In response (and thanks to lobbying from the US and Australia) INTERFET (international force for
East Timor) was created under Australian command, and quickly brought East Timor under control.
 Eventually INTERFET and UNMET were replaced by UNTAET (UN transitional administration in
East Timor) which was created to prepare East-Timor for independence.
- UNTAET mission was effectively nation building and was extremely successful.
 East Timor, now known as Timor-Leste, became an independent country on 20 May 2002 and joined
the United Nations.

Non-Legal Response
 The Media:
- Journalists and global media networks were able to broadcast real-time film footage of the
murderous rampage of pro-Indonesian militia, as well as the lack of action by the Indonesian
army and police to stop the violence.
- This was highly influential in turning world opinion against the Indonesian occupation of East
Timor and prompting decisive UN action.
 Diplomatic Pressure:
- UN Secretary-General Kofi Annan did everything he could, talking to all of the parties involved
in pursuit of an end to the violence.
- Mary Robinson, the UN High Commissioner for Human Rights, expressed deep concern over
reports of the escalating violence and said that the SC must urgently consider deploying forces to
East Timor.
- US president Bill Clinton also pressured the Indonesian president to allow a UN intervention.
Finally, the Indonesian government conceded and the Australian-led INTERFET mission began
moving into East Timor, as American generals quietly warned their Indonesian counterparts not
to attack the Australian peacekeepers. Again, in the area of Diplomacy global cooperation was an
essential ingredient.
 NGO Expertise:
- The ICG the East Timorese government and the UN administration there by producing reports on
issues that are of vital importance to East Timor’s future peace and security.
- In short, work by NGOs such as the ICG is indispensable for the long-term success of nation-
building in East Timor.
 Australian Aid:
- Australia has assisted East Timor since 1999 in numerous ways, including:
 Providing $890 million in assistance between 1999 and 2009.
 Building partnerships with the World Bank and the UN to help with the coordination of
development assistance.
 Training 800 police for the East Timorese police force.
 Providing medical id I the form of 10,000 operations and 15,000 consultations by Australian
medical personnel, and providing specialist training for East Timorese.
 Training and supporting thousands of civil servants.
 170 scholarships for East Timorese students to study at universities in Australia.
 Creating 32,000 jobs through public works projects.
 Supplying aid, water, food and medicine for thousands of internally displaced people.
- Australia has given strong political and moral support to the government of Timor-Leste.
 When Timor-Leste’s President Jose Ramos-Horta was shot in an attempted revolt by rebels in
2008, Australia lent support by rushing the Timorese leader to hospital in Darwin and
ensuring that Australian troops maintained peace and security in the country.

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Effectiveness
 Like in Somalia and Rwanda the UN faced disaster but with strong diplomatic pressure from Kofi
Annan (UN General Secretary), Bill Clinton (US President) and the willingness of the Australian
government to send military forces; it was able to stand up to the violence and guarantee East
Timor’s future security, independence and sovereignty.

Rules Regarding the Conduct of Hostilities: International Humanitarian Law

 The body of international treaties and humanitarian values also known as international humanitarian law
(or IHL for short), are some of the most universal enforceable international laws and are perhaps the
most important; due to their regulation of conflict, and protection of human rights.
 Side note: the criteria for an essay on this topic would be protection and enforcement.

Legal Responses
 For all of mankind’s history, humanity has found increasingly inventive and destructive ways to conduct
hostilities, however since the rise of nation-states, international agreements have curtailed the impact of
war.
 Geneva Conventions – Although there have been many iterations of the Geneva conventions, the
latest is the four agreed upon in 1949, after the second world war. These conventions are detailed as
followed:
- The First Geneva Convection protects injured combatants on land during war, as well as medical
and religious personnel.
- The Second Geneva Convention protects injured combatants at sea and hospital ships.
- The Third Geneva Convention protects prisoners of war, and orders that all prisoners are to be
immediately released and repatriated after the end of hostilities.
- The Fourth Geneva Convention protects civilians, even those in occupied territories.
 Hague Conventions – Negotiated in two peace conferences held at The Hague in the Netherlands
(hence the name) during 1899 and 1907, these conventions concern themselves prohibiting certain
types of weapons:
- The first Hauge Convention of 1899 prohibits the use of chemical weapons, hollow-point bullets
and aerial bombing of civilians.
- The second Hauge Convention of 1907 modified and expanded the first, including greater focus
on naval warfare.
 Additional Geneva Convention Protocols – Despite rampant partisanship and ideological debate
across the globe during the Cold War of the 20th century, the Geneva Conventions received three
additional protocols in 1977:
- Additional Protocol 1 further protects civilians and prohibits the use of ‘child soldiers’.
- Additional Protocol 2 further protects civilians in intrastate conflicts (e.g. civil wars).
- Additional Protocol 3 protects people working under any official symbol of the Red Cross or
affiliated movements.
 International Criminal Court – Following controversial international ad hoc tribunals, the ICC was
established under the Rome Statue of 1998 and came into effect in 2002 with its 60th ratification.
- The ICC is widely considered to have given ‘teeth’ to the Geneva and Hauge conventions, with
its ability to prosecute individuals (albeit with the assistance of sovereign-states) who have
broken international law including offences such as:
 Crimes Against Humanity
 Genocide
 War Crimes

Non-Legal and Pseudo-Legal Responses

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 International Committee of the Red Cross:
 Established thanks to the arduous work of Henry Dunant, the ICRC is one of the oldest and most
effective Non-governmental organisations, however with the signing of the 3rd additional Geneva
protocol, the ICRC now stands as a unique legal entity as an Inter-government organisation – not
unlike the United Nations.
 This allows the ICRC to not only act as a legal mechanism dealing with IHL, but also a non-legal
mechanism, through its relationship with the media.
 No matter which branch, all personnel of the ICRC are volunteers, and have certain duties in war
time. These include:
- Educating military forces and the public in IHL.
- Visiting prison camps, internment camps, or labour camps of all sides.
- Evaluating the conditions of prisoners of war held in detention.
- Providing food, medicine, cloths and blankets to those in need.
- Facilitating the exchange of information between people on all sides of a conflict about prisoners
of war and missing persons.
 The Media:
 As Sir Frances Bacon famously coined in 1597 “Knowledge is power”, and because the media
distributes information, they are the most powerful non-legal entity.
 The media is so powerful, with their ability to ‘name and shame’ offenders, that all official
mechanisms issue media release or public reports in the to sway public opinion. The media is
partially powerful in representative democracies:
- For example, if governments won’t prosecute offenders, the media can often encourage the
people to force the governments to prosecute.

Effectiveness
 Geneva Conventions and their Additional Protocols:
 The Geneva Conventions and its additional protocols, are some of the most effective legal documents
in human history.
 This is because they are the only universally ratified international agreements in the world, thus
possessing universal jurisdiction.
 Whilst this is indeed impressive, this has not stopped individuals or states violating the agreements.
- The most recent case of these was the United States reinstatement of illegal interrogation
techniques (torture) at Guantanamo bay, during the Bush administration.
 Hauge Conventions:
 Similar to the Geneva conventions and their additional protocols, the Hauge Conventions have
universal jurisdiction, because all nations are signatories to the conventions, and only a few have not
ratified them. These include:
- Andorra - Morocco
- Gabon - Republic of Korea (‘South Korea’)
- Guinea - Russia
- Lesotho - Seychelles
 What separates the Hauge conventions from the Geneva conventions, is the history of major powers
ignoring the conventions.
- This can be seen historically, such as during WWI, when both the Triple Entente and Triple
Alliance used chemical weapons; and as recent as the 8th and 9th of June 2017, when a US led
coalition used white phosphorus (which is banned under the first convention) in a ISIS held
civilian district of Raqqa to “conceal collation troop movements”.

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 International Criminal Court:
 Whilst the United Nation’s Security Council (UNSC) technically has the capability to be a legal
mechanism in enforcing IHL, its inability to issue resolutions, effectively neutralises its capability,
leaving only the ICC as the main enforcement body.
 However, the ICC itself has many flaws including:
- The long period of time it takes for a case to be brought to trial and then concluded.
- The massive financial costs of cases.
- The reliance on member states to comply with warrants.
 These faults are best illustrated in the case of Omar Bashir, the president of Sudan since 1993.
- Bashir has been wanted by the ICC since the 4th of March 2009 for trying to commit, and acts of,
crimes against humanity, war crimes and genocide. Despite exhaustive amounts of time and
money, for nearly a decade, Bashir has evaded prosecution and remains in power to the date of
this day.
 International Committee of the Red Cross:
 The ICRC is very effective in all of its duties, with its educations programs being particularly
effective, and there are only a few cases were the ICRC has not been permitted to conduct its duties:
- One of the more recent examples of the ICRC’s effectiveness, was the United States agreement
to end torture under the Obama administration, after the practice being reinstated during the Bush
administration. This backdown in US policy was due to pressure from the international
community, and particularly the lobbying efforts of the ICRC.
- The most recent example ICRC ineffectiveness is the ongoing conflict in Syria, with both the
Assad Regime and ISIS blocking the ICRC’s access, resulting in catastrophic humanitarian
crises.
 The Media:
 The media can often be seen as both ineffective and effective in its ability to force compliance of
nation-states and is best illustrated in the case of the current Syrian conflict.
- Despite intense media coverage and lobbying efforts, the UNSC has been unable to issue a
resolution of military action for or against any parties involved in the conflict, besides the so
called Islamic State, however the media’s efforts did achieve a result on the 7th of April 2017,
when the U.S.A. attacked a Syrian controlled airfield, in response to concerns over uses of
chemical weapons.

Conclusion
 The group of international agreements that regulate hostiles are the most sacred and important laws, for
the stability of the world.
 These rules have both legal and non-legal mechanisms for protection and enforcement, which have
achieved mixed success.
 In the end, international humanitarian law shares the same weaknesses of other international laws,
that is, there is a need for dramatic improvement in the way in which international laws are enforced.
- This is crucial if long term world order is to be assured.

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