Madeleine George - The Difference Between You and Me (Retail)

Cambridge Legal Studies
Preliminary THIRD
EDITION
Paul Milgate
Kate Dally
Phil Webster
Daryl Le Cornu
Tim Kelly
ISBN 9781107650787 © Paul Milgate et al 2013 Cambridge University Press

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© Paul Milgate, Kate Dally, Phil Webster, Daryl Le Cornu and Tim Kelly 2013
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ii Cam br i d g e Lega l Studi es – Preli m i n a r y

Contents
About the authors x

Acknowledgements xi
Introduction xii
Using Cambridge Legal Studies – Preliminary xiii
Key Features of the Student Book xiv
Glossary of key words xvi
Part I: The legal system
C H A P T E R 1 – BA S I C L E G A L CO N C E P T S 4
1.1 The meaning of law 6

1.2 Customs, rules and law 7
1.3 Values and ethics 9
1.4 Characteristics of just laws 10
1.5 The nature of justice 10
1.6 Procedural fairness and the principles of natural justice 11
1.7 The rule of law 12
1.8 Anarchy and tyranny 14
Chapter summary 16
C H A P T E R 2 – S O U R C E S O F CO N T E M P O R A RY AUS T R ALI AN L AW 18
2.1 Australia’s legal heritage 20

2.2 Common law 20
2.3 Court hierarchy: Jurisdiction of state and federal courts 24
2.4 Statute law 28
2.5 The Constitution 32
2.6 Aboriginal and Torres Strait Islander peoples’ customary laws 44
2.7 International law 48
2.8 International organisations 51
2.9 Relevance of international law to Australian law 55
Chapter summary 56
C H A P T E R 3 – C L A SS I FI C AT I O N O F L AW 58
3.1 Public law and private law 60

3.2 Criminal and civil court procedures 65
3.3 The legal profession 70
3.4 Common and civil law systems 72
Chapter summary 73
iii

C H A P T E R 4 – L AW R E FO R M 74
4.1 What is law reform? 76

4.2 Conditions that give rise to law reform 76
4.3 Agencies of reform 83
4.4 Mechanisms of law reform 88
Chapter summary 90
C H A P T E R 5 – L AW R E FO R M I N AC T I O N 92
Topic 1: Law reform and native title

5.1 Conditions that led to law reform on native title 94
5.2 Operation of the legal system in relation to native title 97
5.3 Effectiveness of law reform in relation to native title 105
Topic 2: Law reform and sport

5.4 Conditions that led to law reform in sport 106
5.5 Agencies of law reform in sport 110
5.6 Mechanisms of law reform in sport 111
5.7 Effectiveness of law reform in the sporting world 113
Topic 3: Law reform and sexual assault

5.8 Conditions that led to law reform relating to sexual assault 114
5.9 Agencies of law reform relating to sexual assault 116
5.10 Mechanisms of law reform relating to sexual assault 117
5.11 Effectiveness of law reform relating to sexual assault 119
Topic summary 120
Available in the Interactive Textbook
Topic 4: Young drivers and the law

Conditions that led to law reform relating to young drivers and the law
Agencies of law reform relating to young drivers and the law
Mechanisms of law reform relating to young drivers and the law
Effectiveness of law reform relating to young drivers and the law
Part II: The individual and the law
C H A P T E R 6 – YO U R R I G H T S A N D R E S P O N S I B I L I T I E S 126
6.1 What are rights and responsibilities? 128

6.2 The nature of individual rights 129
6.3 Individuals’ rights and responsibilities in relation to the state 133
6.4 International protection of rights 138
Chapter summary 141
iv Cam br i d g e Lega l Stu di es – Preli m i n a r y

C H AP T E R 7 – R E S O LV I N G D I S PU T E S 142
7.1 Introduction 144

7.2 Law enforcement agencies 144
7.3 Disputes between individuals 149
7.4 Disputes with the state 151
Contents
Chapter summary 159
C H AP T E R 8 – CO N T E M P O R A RY I SS U E: T H E I N D I V I D UA L A N D T E C H N O LO G Y 160
8.1 The scope of new technology 162

8.2 Legal issues in cyberspace 163
8.3 Privacy, safety and censorship 169
8.4 Rights in cyberspace 174
8.5 Current status and sources of law in cyberspace 175
8.6 Future directions 176
8.7 Conclusion 179
Chapter summary 180
Available free on Cambridge GO
Additional information on the individual and technology
Part III: Law in practice
AREA 1: Groups or individuals suffering disadvantage
C H AP T E R 9 – C H I L D R E N A N D YO U N G PE O PLE 184

9.2 Children, young people and the law 186
9.3 Mechanisms for protecting the rights of children and young people 192
9.4 Responsiveness of the law 195
9.5 Conclusion 198
Chapter summary 200
Additional information on groups or individuals suffering disadvantage: Children and young people

C H A P T E R 10 – WO M E N 202

10.2 Women and the law 204
10.3 Mechanisms for achieving justice for women 209
10.4 Responsiveness of the legal system to efforts to achieve justice for women 216
10.5 Conclusion 220
Chapter summary 222
Additional information on groups or individuals suffering disadvantage: Women
C H AP T E R 17 – G R O U P S O R I N D I V I D UA L S S U FFE R I N G D I SADVAN TAG E: M I G R A N T S
Introduction
Migrants and the law
Mechanisms for achieving justice for migrants
The responsiveness of the legal system to migrants and applicants
Future directions
Chapter summary
C H AP T E R 18 – G R O U P S O R I N D I V I D UA L S S U FFE R I N G D I SADVAN TAG E:

A B O R I G I N A L A N D TO R R E S S T R A I T I S L A N D E R PE O PL E S
Introduction
The legal status of Aboriginal and Torres Strait Islander peoples before 1967
Mechanisms for achieving justice for Aboriginal and Torres Strait Islander peoples
Responsiveness of the legal system to Aboriginal and Torres Strait Islander peoples
Conclusion
Chapter summary
vi Cam br i d g e Lega l Stu di es – Preli m i n a r y

C H A P T E R 19 – G R O U P S O R I N D I V I D UA L S S U FFE R I N G D I SADVAN TAG E: PE O PLE W H O

H AV E A M E N TA L I L L N E SS O R A N I N T E L L E C T UA L D I SA B I L I T Y
Contents
Introduction
People who have a mental illness or an intellectual disability and the law
Mechanisms for achieving justice for people who have a mental illness or an intellectual disability
Responsiveness of the legal system to efforts to achieve justice for people who have a mental illness
or an intellectual disability
Conclusion
Chapter summary
AREA 2: Events that highlight legal issues
C H A P T E R 11 – T H E BA L I B O M B I N G S 226

11.2 9/11 and global terrorism 228
11.3 Mechanisms for achieving justice after the Bali bombings 232
11.4 Legal responses to terrorism 236
11.5 Conclusion 239
Chapter summary 240
Additional information on events which highlight legal issues: The Bali bombings
C H A P T E R 12 – T H E P O R T A R T H U R M A SSAC R E 242

12.2 The Port Arthur massacre 244
12.3 Mechanisms for achieving justice after the Port Arthur massacre 249
12.4 Responsiveness of the legal system to the Port Arthur massacre 251
12.5 Conclusion 254
Chapter summary 255
vii
Additional information on events which highlight legal issues: The Port Arthur Massacre
C H AP T E R 20 – E V E N T S T H AT H I G H L I G H T LE G A L I SS U E S: T H E Q U E E N S L A N D FLO O D S
Introduction
The Queensland floods
Mechanisms for achieving justice after the floods
Legal responses to the floods
Conclusion
Chapter summary
AREA 3: Individuals or groups in conflict with the state
C H A P T E R 13 – M O H A M E D H A N E E F 258
13.1 A brief history of the Mohamed Haneef case 260

13.2 Mechanisms for achieving justice in the Mohamed Haneef case 265
13.4 The future for Australia 272
Chapter summary 273
CHAPTER 21 – INDIVIDUALS OR GROUPS IN CONFLICT WITH THE STATE: JULIAN ASSANGE
A brief history of the Julian Assange case

Mechanisms for achieving justice in the Julian Assange case
Responsiveness of the law
Conclusion
Chapter summary
C H AP T E R 14 – O U T L AW M OTO R C YC L E G A N G S 276
14.1 Outlaw motorcycle gangs in Australia 278

14.2 Mechanisms for achieving justice in relation to OMCGs 285
Chapter summary 293
viii Cam br i d g e Lega l Studi es – Preli m i n a r y

C H A P T E R 22 – I N D I V I D UA L S O R G R O U P S I N CO N FLI C T W I T H T H E S TAT E:
T H E N O R T H E R N T E R R I TO RY I N T E RV E N T I O N
Contents
The Northern Territory Intervention
Mechanisms for achieving justice in relation to The Northern Territory Intervention
Conclusion
Chapter summary
AREA 4: Criminal or civil cases that raise issues of interest to students
C H A P T E R 15 – FI L E -S H A R I N G A N D D I G I TA L CO PY R I G H T 296
15.1 File-sharing, digital copyright and the law 298

15.2 Mechanisms for achieving justice in relation to digital copyright 300
15.4 The future of digital copyright in Australia 308
Chapter summary 312
C H AP T E R 16 – D R U G T E S T I N G 314

16.2 Mechanisms for achieving justice in drug testing 319
16.4 Conclusion 329
Chapter summary 330
C H A P T E R 23 – C R I M I N A L O R C I V I L C A S E S T H AT R AI S E I SS U E S O F I N T E R E S T TO
S T U D E N T S: FAC E B O O K PR I VAC Y I SS U E S
Introduction
Mechanisms for achieving justice in privacy issues
Conclusion
Chapter summary
Answers to multiple-choice questions 333

Glossary 334
Index 343
ix
About the authors
Paul Milgate DipTeach BEd and Grad Cert in Theology, is leader of Pedagogy and for the past 12 years has been
the Head Teacher of the HSIE (Human Society and Its Environment) Faculty at Xavier Catholic College, on the
North Coast of NSW. He has extensive experience in Legal Studies, having taught it since its inception, and also
provides funding and assists in the planning and running of legal seminar days in collaboration with Southern
Cross University Faculty of Law and Justice.
Kate Dally BA DipEd is Head Teacher of Social Sciences at Birrong Girls High School in Sydney. She has
extensive teaching experience, having taught Social Sciences for the past 22 years. Kate’s experience also
covers HSC marking in both Legal Studies and Business Studies. She has written for Success One Business
Studies for a number of years.
Phil Webster BA DipEd MEd MACE is Head Teacher of Social Science at Mosman High. He has over 20 years’
experience in HSIE as a teacher of Legal Studies, Society and Culture, and Business Studies, with a particular
interest in the changing role of law in society. Phil is passionate about issues of human rights, justice and
fairness in a rapidly changing world.
Dr Daryl Le Cornu BA(Hons) DipEd PhD was recently the Senior Curriculum Support Officer for HSIE in NSW.
He has many years of experience teaching both Legal Studies and Modern History. He has a passion for the
teaching of human rights, the United Nations, global governance and contemporary history, as well as the
promotion of student-run human rights groups within schools. Daryl is the Education Officer for the WCAA
(World Citizens Association of Australia) and is a member of ACUNS (Academic Council on the United Nations
System).
Tim Kelly BA DipEd DipLaw obtained his BA DipEd from the University of New South Wales in 1984 and
completed his Diploma in Law from the Legal Practitioners Admissions Board in 1996. He began teaching
Legal Studies in 1993 at St Mary’s Maitland. Since 1998, Tim has been the HSIE Coordinator at St Mary’s in
Casino and is currently an Education Officer for the Lismore Catholic Schools Office. Tim is also a tutor in
HSIE Curriculum Specialisation at Southern Cross University and is a current HSC marker for Legal Studies.
x Cam br i d g e Le ga l Studi es – Preli m i n a r y

Acknowledgements
Thanks to my wife, Barbara, my daughter, Ebony, and my son, Zach – a great team!
Paul Milgate
Thanks to all of my family and friends who put up with me as I wrote my chapters.
Kate Dally
To the boys at Hells Angels MC – thanks for your assistance with OMCGs. To Katie Wood at Amnesty – huge thanks for your support
and research. Tristan Tipps Webster – the ATSI guru – many thanks.
Phil Webster
To the American branch of the family – Jarod, Katie and Ryker.

Daryl Le Cornu
Love to Salty, Jack, Hannah and, of course, Nana and Keg! Ssshhh – don’t tell anyone about Diggers.
Tim Kelly
Many thanks to the team at Redfern Legal Centre and Elaine Johnson from the NSW Environmental Defender’s Office for their tireless
effort in reviewing this title. Our gratitude must also go to Nicholas Gangemi, Barrister-at-Law, who reviewed this book and the
accompanying Teacher Resource material.
The publishers
xi

Introduction
To the student
Congratulations on choosing Cambridge Legal Studies Preliminary Cambridge Legal Studies – Preliminary (Third Edition) is a
Third Edition. This edition has been updated to meet the changing comprehensive resource that introduces you to a dynamic and
processes of the legal system and the requirements of the current challenging subject. It brings the law to life for you, both inside
Stage 6 Legal Studies Syllabus in New South Wales. and outside the classroom.
Legal Studies was first introduced into the NSW Curriculum You will discover a wealth of material that introduces you to
in 1989. Since then, thousands of students have finished their the Australian legal system and how the individual interacts with
secondary schooling as better informed citizens who are able to and is affected by the law, and will gain insight into how the law
think critically about the processes and institutions that shape works in practice in a variety of contexts. You will be engaged
their lives on a daily basis. and stimulated by up-to-date case law and recent legislative
The rights people enjoy within democratic societies can at developments. Practically, updated research and review activities
times be eroded by governments when electorates become will help you build your research skills and make sure that you are
apathetic about their freedoms and liberties. Legal Studies ready for your exam.
will allow you to explore the power vested in our democratic We wish you luck and success.
institutions and wielded by our elected leaders. It explores issues
that will challenge the way you see the world and how you
understand the concept of achieving justice through the law.
xii Cam br i d g e Lega l Studi es – Preli m i n a r y

Using Cambridge Legal Studies – Preliminary
The Cambridge Legal Studies – Preliminary resource package 4 Teacher Resource Package
consists of five components.
The Teacher Resource Package contains a wide range of materials
to support students and teachers, with course, lesson and teaching
1 Student Book
plans, and assessment and homework preparation.
The Student Book contains all topics in Part I, Part II (including
additional topics under Law Reform in Action) and a range of 5 Interactive Textbook
contemporary high-interest topics in Part III.
A version of the student text has been optimised to be read on
screen through an internet browser. It delivers a host of interactive
2 Cambridge GO
features to enhance the teaching and learning experience of the
The Cambridge Legal Studies access to GO gives students a free student text. The Interactive Textbook includes:
online resource that contains: ➥ drag-and-drop activities
➥ two additional chapters for Part III – Migrants and Aboriginal ➥ multiple-choice quizzes at the end of each chapter
and Torres Strait Islanders ➥ multimedia presentations to reinforce learning
➥ additional resources for Chapters 8–12 ➥ audio footage to help bring concepts to life
➥ marking criteria for the Extended Response Questions from ➥ additional chapters including:
the Study Toolkit • Part I: The legal system
➥ weblinks - Chapter 5 Law reform and action – Topic 4: Young
➥ additional resources. drivers and the law
• Part III: Law in practice
3 Study Toolkit - Chapter 19 – People who have a mental illness or an
The Study Toolkit, packaged with the Student Book, contains intellectual disability
a wide range of materials to help you succeed in Legal Studies, - Chapter 20 – Events that highlight a legal issue:
including: The Queensland floods

➥ exam preparation and study tips - Chapter 21 – Individuals or groups in conflict with the
➥ a range of additional multiple-choice, short-answer and state: Julian Assange

extended-response questions for each part of the course - Chapter 22 – Individuals or groups in conflict with the
➥ legal research tips and information to help you understand state: The Northern Territory Intervention
case citations. - Chapter 23 – Criminal or civil cases that raise issues of
interest to students.
Guide to Icons
This icon lets you know that there is additional This icon lets you know that there is extra material
information available on Cambridge GO. available in the Interactive Textbook.
This icon lets you know that you will need to access
the internet in order to complete an activity or
research task.
xiii

Key features of the Student Book
Chapter openers
PART I
Each chapter of Cambridge Legal Studies –
Chapter 1
The legal system

Preliminary begins with a chapter opener Basic legal concepts
that contains:
Chapter objectives
In this chapter, students will:
➔ identify and apply legal concepts and terminology ➔ discuss the nature of justice in terms of equality, fairness
➥ chapter objectives
➔ identify the changing nature of law and access
➔ describe the interrelationship between customs, rules ➔ discuss the concept of procedural fairness and the rule of law
and laws ➔ discuss the concepts of anarchy and tyranny
➔ explain the relationship between the legal system ➔ communicate legal information by using well-structured
➥ key terms
and society responses.
Key terms/vocabulary
➥ relevant law (including important access
anarchy
equality
ethics
legal system
nation-state
rules
sanctions
customary law fairness natural justice tyranny
legislation customs
doli incapax
justice
law
procedural fairness
rule of law
values
and significant cases) Odd law

Did you know that in NSW it is illegal to prevent a minister of religion from giving a service?
➥ odd law (in Chapters 1–8). S 56 of the Crimes Act 1900 states:
Whosoever by threats or force prevents, or endeavours to prevent, any members of the clergy, or other person duly authorised in that
behalf, from officiating in a place of divine worship, or from the performance of his or her duty in the lawful burial of the dead in a
burial place, or strikes or offers any violence to, any member of the clergy, or minister engage in, or to the knowledge of the offender
about to engage in, any of the duties aforesaid, or going to perform the same, shall be liable to imprisonment for two years.
Media Clip
PART III
Media Clip Review 15.3
A number of current media articles are Most pirates say they’d pay for legal downloads
Andrew Ramadge, Technology Reporter

1
2
3
Identify the types of media that are illegally downloaded.
Outline the reasons that people gave for these downloads.
Explain what is meant by the ‘Robin Hood’ attitude.
Law in practice
6 May 2010
4 Do you think that people have unrealistic expectations
provided to help you understand how MOST people who illegally download movies, music and TV
shows would pay for them if there was a cheap and legal service
as convenient as file-sharing tools like BitTorrent.
‘I think what it comes down to is freedom,’ he said.
‘They just want to know that they’ve got the data, they can
watch it whenever they want, on whatever device they want,
More than two-thirds of respondents in news.com.au’s
survey said they would be prepared to pay for movies through
a convenient legal download service. 5
about the prices that they are willing to pay? Justify your
answer.
Given that this survey was carried out in 2010, do you
That’s the finding of the most comprehensive look yet at they can watch it three months later, or a year later, and not Almost half said they would pay $2 per movie, followed by
think that people’s opinions are still the same? Why or
the law operates in real-world situations.

people who illegally download TV shows, movies and music in have any time limitations.’ 28 per cent who said they would pay $5 and a minority who
why not?
Australia, conducted by news.com.au and market research firm If there was a legitimate online service that gave people the would fork out a premium price of $10.
CoreData. same freedoms offered by pirated media at a cheap price, Mr Mr Gane said the most popular price – $2 per episode –
The survey canvassed the attitudes of more than 7000 Crafti said many downloaders would switch to it. wasn’t going to cut it for the film industry.
people who admitted to streaming or downloading media from
illegitimate sources in the past 12 months.
‘They’d be happy to be signed up to it, to be able to not have
to search BitTorrent and have to figure out which bad quality
‘The average [cost of a] Hollywood movie in 2008 to make
and market was $108 million. So it’s a very expensive business
Research 15.3
It found accessibility was as much or more of a motivator version of it to get,’ he said. and it’s a very risky business. To expect to be able to purchase 1 Research some of the recent cases involving file-sharing
than money for those who illegally download media using ‘While some people would still not pay for it, there’d be a copy of that movie for $2 is a rather unrealistic ask,’ Mr Gane and digital copyright, including the Australian case
services like BitTorrent. enough people who would pay for it to create and maintain a said. between AFACT and internet service provider iiNet.
More respondents said they turned to illegal downloads very sustainable media industry.’ The expectation of getting something for nothing, or close
How do you think these cases are changing the
because they were convenient than because they were free, to nothing, was a by-product of the internet era and would have
Stealing from the rich effectiveness of digital copyright in Australia and its
when it came to all three types of media covered by the survey to change, Mr Gane said.
Neil Gane, the executive director of anti-piracy group Australian impact on ordinary computer users?
– TV shows, movies and music. ‘There’s almost a devaluation of quality content in the
Federation Against Copyright Theft, said there was a need for
And more than two-thirds said they would pay for downloads internet space and this devaluation has perhaps been one of 2 A controversial new international treaty on copyright
businesses to develop more flexible models – but they were
from a legitimate service that was just as convenient if it existed. the negative legacies of the digital age,’ he said. infringement called the Anti-Counterfeiting Trade
being hampered by piracy.
The hypothetical legitimate service was described as giving ‘There is a cross-section of the online community who now Agreement (ACTA) has been negotiated in response to
‘This is something that consumers obviously want, and it’s
Activities – Review and Research

users access to TV shows, movies and music they wanted, when mistakenly almost believe this warped maxim that if it’s online pirated copyright-protected works. Carry out research
something that legitimate businesses are striving for,’ he said.
they wanted them, without ads or copy protection. it should be free.’ on this treaty and consider how it might affect Australian
‘[But] I think industry and government have to address the
The survey also found: The Australian Federation Against Copyright Theft protects copyright laws. Why is it seen as controversial?
current rampant infringement that’s available online.
TV shows are illegally downloaded more regularly, and by the copyright interests of the film and television industry
‘Movie industries obviously want to make their content 3 Go to the AFACT website and write 2–3 paragraphs
more people, than movies or music. in Australia and represents major studies including Village
available online, but they can’t compete currently with a free about the information provided on this website.
GEN Y is prepared to pay more for legal downloads of TV Roadshow, Disney, Paramount, Sony, Universal, Fox and
alternative that’s perpetrated through theft.
shows and movies than any other age group, while people Warner Bros.
‘Once there is a level playing field, I think you’ll begin to see a
Throughout each chapter you will find a

between 31 and 50 are more likely to pay top dollar for music. Earlier this year the group lost a court case launched against
lot more flexible, innovative business models.’
THE most popular prices for legal downloads chosen by internet service provider iiNet over the alleged copyright
respondents were $1 per TV show, $2 per movie and 50c per
Mr Gane also questioned whether pirates would really be
infringements of its customers. Review 15.4
prepared to pay for legitimate downloads, or were simply saying
music track. Australia’s Pirate Party is based on the Swedish group of
they would in order to justify their behaviour. 1 Discuss whether and in what circumstances criminal
the same name, which won about 7 per cent of votes in the
Freedom of use
number of activities. Review activities are

‘We’ve always seen a Robin Hood type of attitude towards prosecution for copyright infringement is an appropriate
country’s 2009 election
David Crafti, president of the Pirate Party Australia political movie piracy and certainly when it comes to downloading and response.
The local group says it is focused on civil liberties and
group, said the survey results showed illegal downloaders were illegal file-sharing in general that it’s all about hurting the Tom
copyright law reform and plans to contest the next federal 2 Explain why the case of Hew Raymond Griffiths was
in fact frustrated consumers. Cruises of the world who are probably paid too much money in
election. important for Australia and outline the outcome of
‘People aren’t just looking for a free ride. They’re living in the the first place, and it’s essentially a victimless crime,’ he said.
According to the most recent statistics from 2006, film piracy the case.
designed to help you test your knowledge

modern world and expecting business models to keep up with ‘This type of Robin Hood attitude is often used to justify such
costs the movie industry in Australia about $230 million a year, 3 Discuss whether you think the responses to digital
them,’ he said. behaviour that the majority know very well is illegal.’
with internet pirates blamed for up to $92 million of that.
Mr Crafti said restrictive copy protection measures that copyright infringement in Australia and around the
The price is wrong Mr Gane said that figure would only have risen in recent years
‘crippled’ many legal download stores – such as locking movie world have been sufficient and what actions you think
Mr Gane also said some of the prices survey respondents said as broadband speeds in Australia increased.
or music files so they can only be played on specific devices – might be used in the future.
they were prepared to pay for legal downloads were unrealistic.
of key concepts and skills. Research activities

turned users off buying media through legitimate channels.
are designed to extend your knowledge by 308 Ca m b r i d g e Le g a l St u d i e s – Pre l i m i n a r y C h a p te r 1 5 : Fi l e -s h a r i n g a n d d i gi t a l co py r i g ht 309
researching relevant cases or issues using

source material.
xiv Cam br i d g e Lega l Studi es – Preli m i n a r y

Glossary terms
PART III
➥ provisions permitting the copying of music from format to International treaties on copyright Case law on digital copyright Despite the outcome of the case, new file-sharing networks
format or device to device for personal use, known as space- quickly arose, with one called Kazaa emerging as dominant.
Another important part of Australian copyright law comes from The difficulty in applying digital copyright law and the scale of
All of the key terms in each chapter (and

shifting By 2004 Kazaa’s program had been downloaded 319 million
international copyright treaties that aim to ensure that copyright the file-sharing problem has led to a number of civil cases in
➥ provisions allowing the recording of television or radio times. This resulted in some of the most brutal legal battles
is protected across international borders and that important recent years. As the internet is international by nature, the court
broadcasts for later viewing, called time-shifting related to file-sharing. For example, in 2003 the US Recording
copyright issues are addressed similarly by different countries. challenges have occurred worldwide, with some of the most
➥ provisions allowing individuals to change the format of Industry Association of America (RIAA) launched a series of
Law in practice
This is particularly relevant to digital copyright, where works are important cases in the United States and in Australia. They have
more) are defined for you in the margin and

copyright materials for personal use, known as format- lawsuits against some 261 individual users of Kazaa for copyright
constantly imported and exported between countries through involved complex legal arguments attempting to resolve how the
shifting, for example scanning photos into digital files or infringement through file-sharing. One of these lawsuits involved
the internet, through portable devices and through trade in music, laws apply to the different file-sharing technologies and where
printing an article a 12-year-old girl who was sued for US$150 000 per song for
software, films and DVDs. the liability should lie for infringements committed using those
➥ widening of the provisions on technological protection downloading songs like ‘If You’re Happy and You Know It Clap
In Australia, international treaties must be incorporated into technologies.
in the glossary at the end of the book. These

measures to make it an offence for individuals even to use a Your Hands’. The girl said she thought ‘it was OK to download
domestic legislation before they can become binding, and so the The first major legal battle relating to file-sharing and
device designed to unlock technological protection measures. music’ because her mother had bought the Kazaa program for
most important provisions of Australia’s international treaties copyright infringement was in 2001 and involved an 18-year-
Although the Copyright Act come a long way in addressing some of US$29.95. Eventually, Kazaa settled the case with the girl’s family
should already be incorporated into the Copyright Act or other old named Shawn Fanning, who set up an online file-sharing
the developments in digital copyright issues, there are still a number for the sum of US$2000.
relevant legislation. However, the inter national treaties themselves service called Napster. Napster was one of the first internet
definitions are designed to help you learn

of issues that have been left to the courts or to future legislation to The RIAA continued to bring civil actions against ordinary
are important measures for ensuring copyright protection for services dedicated to sharing mainly popular music and video
resolve. It is also important to note that many apparently innocuous consumers who engaged in file-sharing, and by 2005 the RIAA
Australian copyright holders in overseas jurisdictions, and to protect files between users. Complaints of copyright infringement had
uses of copyright material, such as downloading or uploading files had sued 12 000 people. The main difference between Napster
overseas copyright holders from infringements by Australians within been received from some very high-profile recording artists,
containing copyright material via the internet or sharing them with and Kazaa was that Kazaa did not hold or store the files centrally,
Australia. Australian works are protected automatically in most including Metallica and Madonna. In the US case A&M Records
friends on a personal website, may still constitute infringement of but supplied the software and the means for individual users to
and revise key terms from the syllabus.

other countries. In the same way, works from most other countries Inc. v Napster Inc., 239 F3d 1004 (9th Cir 2001), the United States
another person’s copyright and therefore may not be legal under share files. One of the most significant cases against file-sharing
are automatically protected in Australia. Court of Appeals for the Ninth Circuit found that Napster had
Australian law. was launched against Kazaa in Australia in 2005 and this is
As mentioned in Chapter 8, the main treaties relating to infringed copyright by allowing its users to upload and download
discussed below.
copyright include: copyright-protected material on its central network. Napster was
space-shifting transferring format-shifting copying books,
music or a sound recording journals, photos or videos from ➥ Berne Convention for the Protection of Literary and Artistic Works forced to change its service and business model to prevent its
from one format to another or one format to another format, (accepted by Australia in 1928) users from infringing copyright.
from one device to another, for for example scanning a photo
➥ World Trade Organization Agreement on Trade Related Aspects
example copying a music file from to digital format or printing a
a computer to a portable player newspaper article of Intellectual Property Rights (TRIPS) (accepted by Australia Case Space
in 1995)
➥ Australia–United States Free Trade Agreement (AUSFTA) Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 1242 (the Kazaa case)
time-shifting recording a (accepted by Australia in 2004)
television or radio broadcast A legal action was brought in the Federal Court of Australia in ‘curtail – although probably not totally to prevent – the sharing
➥ World Intellectual Property Organization Copyright Treaty
for later viewing or listening 2005 by 30 record companies, including major international of copyrighted files’, Sharman had not implemented them
(accepted by Australia in 2007).
labels such as Universal, EMI, Sony BMG and Warner, against because this would have been against its financial interest.
Kazaa’s Sydney-based developer and distributor, Sharman Because Sharman made its money from advertising on the
Case Space
Networks. The record companies claimed that the Kazaa Kazaa system, it wanted to maximise file-sharing using its
software, by allowing users to download music for free over software to increase its advertising revenue.
the internet, encouraged copyright infringement on an Justice Wilcox acknowledged that Sharman ‘probably cannot
unprecedented scale. totally prevent copyright infringement by users’, and as a result
The Federal Court found that most of Kazaa’s music files did not order Kazaa to be shut down. Concerned to ensure
were ‘shared without the approval of the relevant copyright that the software should continue to be available for people
A number of relevant legal cases appear

owner’. In his decision, Justice Murray Wilcox ruled that with who use it for legitimate purposes, the court allowed Sharman
its file-sharing technology, Kazaa was liable for copyright to continue distributing its file-sharing software, but only if it
infringement because it had ‘authorised’ users to infringe adopted certain technical measures to stop and discourage the
the record companies’ copyright. He found although there infringement of copyright using that software.
throughout the text. Each case allows you to

were technical measures that could have enabled Sharman to
Figure 15.5 Since 2000, the Australian government has had to review and
amend the Copyright Act number of times to adapt it to social, economic Figure 15.6 Shawn Fanning, founder of Napster, a file-sharing website
and technological changes. that shook the foundations of the music industry
300 Ca m b ridge Le ga l St u die s – Pre lim ina r y C h a p te r 1 5 : Fi l e -s h a r i n g a n d d i gi t a l co pyr i g ht 301

apply your knowledge of the legal system to
real-world situations. Many cases are followed
by a range of questions to help you test what
you have learnt.
Legal Links
PART II
convention due to sensitivity about sovereignty and authorising ➥ establishment of an effective method of resolving trademark
third parties to do cross-border searches. Also, there are civil disputes
In addition to the activities, there are

liberties concerns that the treaty jeopardises free speech and ➥ reduction in the incidence of cybersquatting – that is, making a
privacy rights. Forty-three nations had signed the convention as profit from the use of someone else’s domain name.
of 2009, but only about a third of these had ratified it. Though Most of all, ICANN has ensured the stability of the internet so that
the aims of the treaty are noble it has not yet made a significant individuals, businesses and governments rarely worry about the Chapter summary
The individual and the law
suggested links to internet resources and

contribution to fighting cybercrime. Nations are still relying on internet collapsing.
➔ Cyberspace is an area in which the law is playing an increasing ➔ Efforts to protect children from indecent or inappropriate
unilateral action and ad hoc cooperation with a few other like-
8.7 Conclusion
but controversial role. The characteristics of cyberspace material on the internet can conflict with the protection
minded nations to fight cybercrime.
include global coverage, easy anonymity for users, and the of individual rights to free expression. Combating serious
However, the Convention on Cybercrime (Draft 25), along
facilitation of creative activity. criminal activity that makes use of the internet faces similar
activities in each chapter. These will help you

with the recommendations of the Model Criminal Code Officers Law’s effectiveness in cyberspace has been limited because
➔ Crimes specific to cyberspace include hacking and spam. challenges, as well as the difficulty of enforcement.
Committee of the Standing Committee of Attorneys-General, the internet is a global medium and laws are limited by national
➔ Fraud and violations of intellectual property rights are not ➔ Philosophical approaches to rights in cyberspace fall into two
influenced the development of Australia’s Cybercrime Act 2001 boundaries. The tension between global and local interests, as
specific to cyberspace, but they take on a distinctive character general camps: laissez-faire and interventionist.
(Cth), discussed earlier in the chapter. well as the cost of enforcing law with respect to the internet, has
in that context. ➔ While greater government control of cyberspace has
extend your knowledge and stay up to date

been a hindrance. In addition, law enforcement is tied to its area of
terrorism violence or the threat of violence, directed at an innocent ➔ Privacy and safety issues are of concern to many internet users, clear benefits with respect to fighting crime, democratic
group of people for the purpose of coercing another party, such as a jurisdiction, and the anonymity possible on the internet has made
and particularly to parents of young users. governments must ensure that individuals’ civil rights are not
government, into a course of action that it would not otherwise pursue it difficult to trace offenders. Often, law must use a case-by-case
➔ The ALRC has recommended the development of a statutory violated.
approach, and prioritise cases according to which have the most
tort of breach of privacy, and other reforms to take account of ➔ International regulation of cyberspace is in its infancy.
with changes in the legal system.

reasonable prospect of enforcement.
new technology.
Legal Links When drafting legislation and agreements, both national
governments and international organisations must ensure that the
For further information about the Convention on
Cybercrime, follow the link at www.cambridge.edu.au/
new law or reform can accommodate the rapid pace of technological Multiple-choice questions
change, so that it is not made redundant or irrelevant in a short
prelegal3weblinks 1 Two distinct features of cyberspace that will influence laws 4 Spam is:
time. They must also avoid the unintended consequences of well-
relating to it are its: a the unauthorised duplication of goods protected by
intentioned laws, balancing the protection of people directly or
a security and predictability intellectual property law.
indirectly affected by activities in cyberspace with individual rights
ICANN’s potential b anonymity and global character b an unsolicited commercial electronic message.
and community good.
c political progressivism and educational value c an attempt to gain money through some sort of deception.
One organisation that has enormous potential to be the ultimate Given the international nature of cyberspace, its effective
d d democracy and communitarianism d the intentional misrepresentation or concealment of
global authority on the internet is the Internet Corporation for regulation will require, at the very least, cooperation among nation-
2 It can be concluded from the US Supreme Court decision in information in order to deceive or mislead.
Assigned Names and Numbers, or ICANN. This non-profit organisation states. A binding and enforceable international regime will require
considerable effort, and quite possibly a voluntary relinquishment Reno v ACLU that: 5 A digital tattoo is:
is responsible for the domain name system (DNS). The founders
of some national authority. a Cyberspace requires some degree of government control. a a unique type of computer identifier used by some
of ICANN intended it to be the ultimate authority for the internet.
b Laws that attempt to regulate internet content may restrict European countries.
Chapter summary
However, the US government has had responsibility for its oversight,
free speech. b a software program unique to the individual, which is
under a memorandum of understanding between ICANN and the
c Online communication is more like a conference call than a stored online somewhere in cyberspace.
US Department of Commerce, from 1998 to 2009. Representatives
private conversation. c a type of internet scam.
of other countries and other observers have questioned why the US
d All of the above d information placed on the internet that is no longer wanted
should have primary authority, and argued that it should be more
3 The international organisation concerned with copyright law is: but that cannot be easily removed.
independent and therefore more international.
At the end of each chapter you will find a

Some of ICANN’s achievements have included: a ICANN
➥ decentralisation of the sale and distribution of domain names, b IANA
which led to a significant drop in the price of registering a c the UN
domain name d WIPO
summary of the chapter, multiple-choice

Cha pte r 8: Conte m pora r y is s u e : The indiv idu a l a nd te c hnol og y 177 178 Ca m br idg e Le g a l St u die s – Pre l imi nar y
questions and chapter tasks. In Part III you
will also find extended response activities.
xv

Glossary of key words
Syllabus outcomes, objectives, performance bands and language and consistent meaning in the Higher School
examination questions have key words that state what Certificate documents. Using this glossary will help students
students are expected to be able to do. A glossary of key and teachers understand what is expected in responses to
words has been developed to help provide a common examinations and assessment tasks.
Account account for: state reasons for, report on; give an Distinguish recognise or note/indicate as being distinct or
account of: narrate a series of events or transactions different from; note differences between
Analyse identify components and the relationship between Evaluate make a judgement based on criteria; determine the
them; draw out and relate implications value of
Apply use, utilise, employ in a particular situation Examine inquire into
Appreciate make a judgement about the value of Explain relate cause and effect; make the relationships between
things evident; provide why and/or how
Assess make a judgement of value, quality, outcomes, results
or size Extract choose relevant and/or appropriate details
Calculate ascertain/determine from given facts, figures or Extrapolate infer from what is known
information
Identify recognise and name
Clarify make clear or plain
Interpret draw meaning from
Classify arrange or include in classes/categories
Investigate plan, inquire into and draw conclusions about
Compare show how things are similar or different
Justify support an argument or conclusion
Construct make; build; put together items or arguments
Outline sketch in general terms; indicate the main features
Contrast show how things are different or opposite
Predict suggest what may happen based on available information
Critically (analyse/evaluate) add a degree or level of accuracy
Propose put forward (for example, a point of view, idea,
depth, knowledge and understanding, logic, questioning,
argument, suggestion) for consideration or action
reflection and quality
Recall present remembered ideas, facts or experiences
Deduce draw conclusions
Recommend provide reasons in favour
Define state meaning and identify essential qualities
Recount retell a series of events
Demonstrate show by example
Summarise express the relevant details concisely
Describe provide characteristics and features
Synthesise putting together various elements to make a whole
Discuss identify issues and provide points for and/or against
x vi Cam br i d g e Lega l Studi es – Preli m i n a r y

Acknowledgements
The author and publisher wish to thank the following sources for permission to Commons Attribution-Share Alike 3.0 Unported, 2.5 Generic, 2.0 Generic
reproduce material: and 1.0 Generic license, p.92-93; State Library QLD, p.94; The First Fleet in
Sydney Cove, January 27, 1788/John Allcot, 1937/an7891482, National Library
Images: ©Shutterstock/corgarashu, p.2-3/ximmytws, p.5-4/lightpoet, p.6(bl)/ of Australia, p.96(t); National Archives of Australia, 59228a, p.96(b), A8598,
tommaso79, p.6(rc)/fotografos, p.6(tr)/fotografos, p.6(tr)/Tupungato, p.6(br)/ AK6/5/80/11, p.99; ©Newspix/News Ltd, p.100, 246, 250,318(br) /James Knowler,
Suzanne Tucker, p.6(bc)/Monkey Business Images, p.7,324(br)/max blain, p.9/ / p.111/ Lindsay Moller, p.112/Braden Fastier, p.150/Anthony Reginato, p.172(t)/
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p.18-19/David H. Seymour, p.21/Phillip Minnis, p.27/Andrija Kovac, p.43/photogl, Craig Borrow, p. 281/Kim Smith, p.288-289/316(br)/Renee Nowytarger, p.293;
p.58-59/Feng Yu, p.63,299(br)/R, Gino Santa Maria, p.63(b)/holbox, p.69/S. On Country:Yorta Yorta Elder Professor Henry Atkinson, from the series Home/
Borisov, p.72(bl)/Circumnavigation,p.72(br)/ wong yu liang,p.74-75/Raedwald, On Country (2011), Sarah Rhodes, p.103; ©Action Photographics/NRL, p.106(br);
p.79/Ifong, p.82/Bork, p.83(b)/Brian A Jackson, p.84/ Pot of Grass Productions, ©NSW Rape Crisis Centre, p.115,117; ©Manly Council, NSW, p.119; Creative
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p.166(bl)/Shevchuk Boris, p.166(br)/Songquan Deng, p.168(br)/Tomislav Pinter, trademark of Twitter, Inc.”, p.168(br); John Erling Blad/ Creative Commons
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p.184-185/YanLev,p.186/Thomas M Perkins, p.188/Lisa S, p.191/Jon Le-Bon, Attribution-Share Alike 3.0 Unported license, p.199;ABS/ABS Schools, Australia,
p.292/mangostock, p.195/Sascha Burkard, p.196/Oleg Znamenskiy, p.202- 2010 (cat. no. 4221.0) www.abs.gov.au, p.206/Labour Force, Australia (cat. no.
203,225/Everett Collection, p.204/Dimitry Kalinovsky, p.206/Spirit of America, 6202.0), p.209; Tirin/Creative Commons Attribution-Share Alike 3.0 Unported
p.207/Zurijeta, p.210/ Andresr, p.213/Derekfsmith, p.242-243/Maxim Petrichuk, license under the GNU Free Documentation License, p.214(br); National
p.249/Katarzyna Mazurowska, p.258-259/Vydrin, p.264/ pcruciatti, p.272/ Security Department /Australian Government/Creative Commons Attribution
BartlomiejMagierowski, p.276-277/Mirvav, p.278(tr)/DDCoral, p.278(br)/Guy J 3.0 Australia, p.234; ©UN Photo Library/ Devra Berkowitz, p.217; ©Alamy/
Sagi, p.285/Sari Oneal, p.285/Kheng Guan Toh, p.296-297/Stephen VanHorn, CuboImages srl, p.226, 227/Roger Cracknell07/classic, p.261(br)/Jakob Kamender,
p.298/NSW Police/AAP, p.300/ Pavel Ignatov, p.301/khz, p.302(bl)/alexskopje, p.273; Arnaud Gaillard/Creative Commons Attribution-Share Alike 1.0 Generic
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Foley/epa, p.72(tl)/Sheldon Levis 1/Deomitx, p.105/Bettman, p.187/Heritage AP Photo/Rick Rycroft, p.182-183/ Radar Bali, p.230/Malaysia Police Dept,
Images, p.205/Penny Tweedie, p.208/epa, p.229(bl)/Neville Elder, p.229(br)/ p.231(r ) /AP Photo/Achmad Ibrahim, p.229(t)/Anwar Mustafa/AFP, p.229(r)/Dita
Peter Foley/epa, p.236/ Mark M. Lawrence, p.260(tr) /Patrick Robert, p.261(bl)/ Alangkara/AP, p.233(tl)(tc)(tr)/Dave Hunt, p.269/Pool/Steven Siewert, p.278/
Jacques Langevin/Sygma, p.279; Creative Commons Attribution-Share Alike Dan Himbrechts, p.304(tl); ©David Gray/ Reuters/Picture Media/ RTXHDPH,
2.0 Generic license/ ©Infrogmation, p.14(t)/laff y4k, p.14(bl)/Steve Cadmanp.51/ p.253; ©IP Awareness Foundation, p.306(tr); ©North Wind Pictures, p.318(tl);
Kingbob86 (Timothy), p.255/Espen Moe, p.273/Joi Ito, p.163(tl), p.302(br)/Artist ©Bloomberg via Getty Images, p.318(bl); ©Highway Patrol Images/Creative
Unknown, p.318/ Ruth Ellison, p.235(bl)/ jasonesbain, p.157 /Timeshift9, p.128/ Commons Attribution 2.0 Generic license, p.320.
Chris Johnson, p.140/ Patrick Gruban, p.53/1Flatworld (Richard Johnstone,
p.78/Paul, p.106(bl); Creative Commons Attribution-Share Alike 3.0 Unported Text: ‘Cigarette Beach Ban’ Reproduced by permission of the Australian
license, p.136 /Martyman, p.97/Fanny Schertzer, p.244/ ©JJ Harrison, p.28/ Broadcasting Corporation and ABC Online. NSW Political Reporter Liz Foschia/28
Thomas Schoch, p.45/Hanhil from the Nederlandstalige Wikipedia, p.50/ Feb 2012, p.13; ‘Google hit with $200,000 damages bill over Mokbel shots’,
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p.48/The Age Archives, p.98/Tamara Dean, p.220/Bruce Miller, p.284/Julian p.322; ‘National Drug Strategy Household Survey Report’ ©Australian Institute
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Australia, Used Under the Creative Commons Copyright License, p.62; urban p.324; Beth Gaze, ‘Twenty Years of the Sex Discrimination Act: Assessing its
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p.76; Salim Fadhley Free Art License/Copyleft License, p.83(t); ©Courtesy Nine apologises for any accidental infringement and welcomes information that
Network Australia/ACA, p.87; ©ActionAid Australia, p.87; ©Peripitus/Creative would redress this situation.
x vii
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Part I
The legal system
40% of course time
Principal focus
Through examining law-making processes and institutions, students will gain an understanding of the
nature and functions of the legal system.
Themes and Challenges

➔ Why the law is necessary in the operation of our society ➔ How law reform and development reflect changes in society
➔ How society depends on the rule of law ➔ Factors which shape the Australian law and legal system
➔ How different jurisdictions and legal institutions interact

PART I
The legal system
1 Basic legal concepts 3 Classification of law
➔ The meaning of law ➔ Public law and private law
➔ Customs, rules and law ➔ Criminal and civil court procedures
➔ Values and ethics ➔ The legal profession
➔ Characteristics of just laws ➔ Common and civil law systems
➔ The nature of justice
➔ Procedural fairness and the principles of natural justice
➔ The rule of law 4 Law reform
➔ Anarchy and tyranny
➔ What is law reform?
➔ Conditions that give rise to law reform
➔ Agencies of reform
2 Sources of contemporary
➔ Mechanisms of law reform
Australian law
➔ Australia’s legal heritage
➔ Common law 5 Law reform in action
➔ Court hierarchy: jurisdiction of state and federal courts
➔ Law reform and native title
➔ Statute law
➔ Law reform and sport
➔ The Constitution
➔ Law reform and sexual assault
➔ Aboriginal and Torres Strait Islander peoples’ customary laws
➔ International law
➔ International organisations
➔ Relevance of international law to Australian law

Chapter 1
Basic legal concepts
Chapter objectives
➔ identify and apply legal concepts and terminology ➔ discuss the nature of justice in terms of equality, fairness
➔ identify the changing nature of law and access
➔ describe the interrelationship between customs, rules ➔ discuss the concept of procedural fairness and the rule of law
and laws ➔ discuss the concepts of anarchy and tyranny
➔ explain the relationship between the legal system ➔ communicate legal information by using well-structured
and society responses.
access equality legal system rules
anarchy ethics state sanctions
customary law fairness natural justice tyranny
customs justice procedural fairness values
doli incapax law rule of law
Odd law
Did you know that in NSW it is illegal to prevent a minister of religion from giving a service?
S 56 of the Crimes Act 1900 states:
Whosoever by threats or force prevents, or endeavours to prevent, any members of the clergy, or other person duly authorised in that
behalf, from officiating in a place of divine worship, or from the performance of his or her duty in the lawful burial of the dead in a
burial place, or strikes or offers any violence to, any member of the clergy, or minister engaged in, or to the knowledge of the offender
about to engage in, any of the duties aforesaid, or going to perform the same, shall be liable to imprisonment for two years.

PART I
Chapter 1: Basic legal concepts

1.1 The meaning of law Review 1.1
The law is a dynamic thing – a complex mechanism, evolving from 1 List the areas of law related to the images
hundreds of years of tradition, culture and values. provided below.
In general terms, the law can be defined as a set of enforceable 2 What other areas of law can you think of? List at
rules of conduct which set down guidelines for relationships least five.
between people and organisations in a society. The law provides

methods for ensuring the impartial treatment of people, and
outlines punishments for those who do not follow the agreed rules Legal Links
of conduct.
The NSW Bar Association provides easy-to-read information
Despite the fact that it often seems to be playing catch-up, the
about the Australian legal system.
law attempts to keep pace with our ever-changing society.
The State Library of NSW provides information on the
To understand how these rules (known in modern society as
history of the legal system in Australia.
‘the law’) came about, we also need to understand why we live in
Go to www.cambridge.edu.au/prelegal3weblinks for links
a society.
to their websites.
A society is a group of human beings who are linked by mutual
interests, relationships, shared institutions and a common culture.
In earliest history, people usually banded together for basic survival
and would agree to live by rules that protected their lives and their
property.
This tradition has carried on throughout history. As groups
of people formed societies, and cultural groups within these
societies, they established and enforced rules about the conduct
of relationships. Laws today are imposed by the administrative
institutions that govern a society; they cover all members of society
and there are consequences if they are breached.
law a set of rules imposed on all members of a community which are

officially recognised, binding and enforceable by persons or organisations
such as the police and/or courts
values principles, standards, or rules regulations or principles

qualities considered worthwhile governing procedure or
or desirable within a society controlling conduct
Figure 1.1 Laws regulate a wide variety of situations within society.
6 Cam br i d g e Le ga l Stu di es – Preli m i n a r y

1.2 Customs, rules and law
PART I
Rules
Customs If you were to look in a dictionary or on the internet, you would

find many definitions of the word ‘rules’. Generally, rules refer to
Put simply, customs are established patterns of behaviour among prescribed directions for conduct in certain situations. Rules are

people in a society or group. Customs vary depending on the generally made by groups and only affect people within those
culture, religion and history of a group of people, society or country. groups. These rules often vary between groups and are not
For example, in Australia it is customary for a man to shake hands enforceable by the state. For example, there are rules for playing
when greeting a friend, whereas in Europe this greeting may be in games, behaviour in the classroom, and so on. If these rules are
the form of a kiss on each cheek. broken, there is some form of punishment attached, enforceable
Where a custom is followed by most of the population over by those involved in the making of the rules (e.g. suspension,
time, it may become part of the laws of that society. Because detention). Rules can also be altered by these people in order to deal
of differences between societies, not all customs become law. with changes in situations. This usually happens after consultation
Customary law refers to established patterns of behaviour that with the group members involved.
are accepted within a particular social or commercial setting and In a legal sense, rules form the basis of laws. However, rules can
that are of sufficient importance to be enforced. These principles be changed quite quickly with the agreement of those involved.
and procedures develop through general usage according to the Laws, as you will discover, are much more difficult to change and
customs of a people, state or group of states. Customs arose to punishment is not always a simple process.
deal with problems in the most harmonious ways. Over time, these
customs collective habits or traditions that have developed in a society
customs become accepted as legal requirements. Three types of over a long period of time
customary law that have influenced the Australian legal system are:
➥ Aboriginal and Torres Strait Islander customary law
➥ English customary law customary law principles and procedures that have developed according
➥ international customary law. to the customs of a people or nation, or groups of nations, and are treated
as obligatory
In many societies, most customary law is never written down, as
is the case with Indigenous Australian customary law. In other
societies, customary law is eventually recorded and transferred into
state a politically independent country
written law in formal legal systems.
Figure 1.2 There may not be a law about wearing school uniform, but there is often a rule.
C hap ter 1: B asic l egal concep t s 7

Laws have certain characteristics that make them different
Review 1.2 from rules:
Complete the lists below by adding three additional 1 Laws are binding on the whole community. This means that they
examples of rules. apply to all members of society.
HOUSEHOLD RULES 2 Laws can be enforced. This means that penalties apply if a law
1 Always inform your parents when you are going out. is broken.
3 Laws are officially recognised. This means that governments and
2
courts recognise laws and enforce them.
3
4 Laws are accessible (or discoverable). This means that people
4
can find out which law applies to a particular situation.
SCHOOL RULES 5 Laws relate to public interest. This means that laws exist for
1 Students must always wear correct school uniform on
things that concern the whole of society, and that interest
school grounds.
is considered to outweigh the costs or drawbacks of the
2 government’s involvement in enforcing them.
3 6 Laws reflect rights and duties. This means that everyone in
4 society has responsibilities to others, such as the duty to drive
SOCIAL ETIQUETTE safely, and that everyone has the right to be treated in the same
1 Always cover your mouth and nose when sneezing way by others.
in public. In Australia today, the laws are mainly decided by elected
2 government officials at local, state or federal government levels.
3 Judges also have the power to make laws in certain cases when
they set a precedent. This will be discussed in greater detail in the
4
following chapters.
It is expected by society that the law will look after all members
Law of the group, and therefore that any laws made will be fair, just
and equitable. It is also expected that they will reflect traditional
The law, as we know it, is made up of the formal rules of society. and current ethics and values. Although this represents the ideal
These ‘legal rules’ have been agreed upon by the majority of those situation, what is actually attainable may be another matter.
in the group, and govern their behaviour and activities.
ethics (1) rules or standards governing the conduct of a person or
Laws are different from rules. For example, at the shopping the members of a profession; (2) a major branch of philosophy, which
centre, a sign on the escalator requests that you stand to the left investigates the nature of values and of right and wrong conduct
and do not take strollers on it. These rules exist for the safety and
comfort of shoppers. However, they are just rules, and that is why Table 1.1 Differences between laws and rules
you will still see people standing on the right and taking their prams
Laws Rules
on the escalator. There are also signs telling you that you can’t
➥ to be obeyed by all ➥ to be obeyed by specific
smoke in shopping centres. This is a law, and if someone did ‘light
citizens of a society individuals or groups
up’ they would be asked to leave the shopping centre by security
➥ made by a law-making ➥ made by individuals
or the police, and they might incur a fine. The consequences of
body or groups
breaking rules are comparatively minor, however inconsiderate it
may be to break them. ➥ enforced through the ➥ enforced by leaders
courts of a group
Laws allow and prohibit a whole variety of activities, from where
rubbish should be placed to how we should treat fellow human ➥ a breach results in a ➥ consequences of a breach
prescribed sanction at the discretion of the
beings. Failure to follow them incurs penalties ranging from a fine
imposed by the courts leader of a group
to imprisonment.
8 Cam br i d g e Le ga l Stu di es – Preli m i n a r y

1.3 Values and ethics
PART I
Relationship between customs,
rules and laws
We all have values by which we try to live. Living according to our
As people have joined together in communities, a relationship has ethics means that we do things that we consider to be morally right.
developed between rules, laws and customs: Law-makers try to incorporate these values and ethics into laws.

➥ Whenever people have lived together in groups, they have However, it is very difficult to make rules, and thus laws, about
developed rules to govern their behaviour and thus maintain everyone’s values, especially as there are often groups in society
the smooth running of activities. that have differing standards of what is morally right or wrong.
➥ These rules were based on the traditions, customs and values For this reason laws will only cover those ethical values that are
of the group. common to the majority or the dominant group. Over the past
➥ These rules have penalties attached if members of the group three decades many groups have voiced their values and ethics in
fail to follow them. a public manner in an attempt to influence the law and the legal
➥ Groups usually put someone, or a small group, in charge to system. Two classic examples (with varying degrees of success) are:
enforce these rules and the associated penalties. In modern ➥ The Mardi Gras (Sydney) – an internationally recognised annual
times, this became the government. event celebrating same-sex relationships. It started off as a
➥ Over time, these rules became formalised laws, known in protest march against the treatment of same-sex couples by
society as ‘the law’. the legal system and the lack of protection afforded to their
relationships.
➥ The Mardi Grass (Nimbin, northern NSW) – an annual event that
attempts to influence the government to relax the laws relating
to the use and cultivation of marijuana. It includes events such
Figure 1.3 The House of Representatives Chamber in Parliament
as the Hemp Olympics and the Dope Pickers Ball.
House, Canberra

1.4 Characteristics of Equality
just laws Equality means that all people in a society are treated in the
same way with respect to political, social and civil rights and
The concept of justice involves the fair and impartial treatment
opportunities; no one enjoys unfair advantage or suffers unfair
of all persons, especially under the law. In simple terms, justice
disadvantage. Although we would like to think that equality applies
can be seen as the continued effort to do the right thing by
to everyone, our society tolerates many types of equality and many
everyone. When it comes to making laws in a democratic society,
forms of inequality. For example, depending on the situation, a
justice involves consulting the people and carrying out the
10-year-old child will be treated differently from a 17-year-old
decisions of the majority, while ensuring that the minority has
teenager or a 40-year-old adult. While the law strives for equality,
the opportunity to put their point of view. A just law is one that
it also takes into account people’s different capacities, such as
allows everyone to receive fair treatment and outcomes, and
maturity, recognises that some people are more vulnerable than
ensures that human rights are recognised and respected. This is
others and provides protection for them. For example, children
not always an easy thing to do, as you will learn throughout the
under 10 years of age cannot be held legally accountable for their
Legal Studies course.
actions and therefore cannot be convicted of a criminal offence. This
presumption is known as doli incapax. In the case of 10–14-year-
justice the legal principle of upholding generally accepted rights and
enforcing responsibilities, ensuring that equal outcomes are achieved for olds, the court will make an assessment as to whether the child can
those involved tell the difference between right and wrong, and this will influence
the way in which the matter is handled.
1.5 The nature of justice doli incapax a Latin term meaning ‘incapable of wrong’; the presumption
that a child under 10 years of age cannot be held legally responsible for
his or her actions and cannot be guilty of a criminal or civil offence
The system of courts (and those who work within the courts, such
as judges and legal practitioners), prosecutors and police in a
country is often called the legal system. It is the task of the legal Fairness
system to ensure that all citizens have equal access to the law and
that the law provides equality, fairness and justice to all members Fairness and justice are usually associated with each other.
of society. Equality, fairness and justice are central concepts The difference is that the term ‘fairness’ applies to everyday life,
which allow us to distinguish good law from bad law. However, whereas ‘justice’ has more legal connotations. People may have
if all citizens do not have full and equal access to the legal system, different opinions about what is fair.
equality, fairness and justice are just empty concepts. It is only by For example, suppose one team wins a sport competition
combining all of these principles that a legal system will be seen because all of its players, randomly selected, happen to be taller
to be providing justifiable and appropriate outcomes. than those on the other team. If the rules of the competition do not
specify that both teams must have players of the same size, it may
legal system the system of courts, prosecutors and police within a country seem unfair to the losing team, but there is no ‘fact of the matter’. If
Ann places a bet on the team she knows has the taller players, and
none of the other people who placed bets knows anything about
equality the state or quality of being equal; that is, of having the same the teams or how tall the players are, Ann’s winning the bet may
rights or status
also be regarded as unfair – as a result of her having knowledge the
others lacked.
In other words, even if it is sometimes possible for an opinion
fairness freedom from bias, dishonesty, or injustice; a concept commonly
about what is fair to be justified or mistaken, there is no single social
related to everyday activities
mechanism for deciding what is fair or ensuring fairness.
10 Cam br i d g e Lega l Studi es – Preli m i n a r y

1.6 Procedural fairness
PART I
When rules are made, it is expected that they will be fair to those
covered by them. In the same way, when a rule is translated into law,
it is expected that it will be fair to all members of society. Justice and the principles of
is more specific than fairness, as the term is applied to situations natural justice
covered by the law, which tries to ensure that everyone has the
Procedural fairness refers to the idea that there must be fairness in
same opportunities.

the processes that resolve disputes. It is closely linked to the concept
of natural justice; the two terms are often used interchangeably.
Access Natural justice refers to the fact that everyone should be treated
fairly in legal situations. There are two main principles of natural
The ultimate goal of the law in a democratic society such as
justice. These are:
Australia is to protect the rights of all citizens; however, the legal
➥ the right to be heard – this includes the right to a fair hearing
system can only fulfil this goal if all people have equal access to the
➥ the right to have a decision made by an unbiased decision-
agencies and institutions of the law. Access refers to the ability to
maker – even an appearance of bias is enough to constitute
obtain or make use of something. The concept of justice suggests
a breach of natural justice.
that everyone who is covered by a legal system and its laws should
The assertion that ‘justice should not only be done, but should be
have equal access to that system. This includes ensuring that
seen to be done’ comes from the English case R v Sussex Justices;
citizens are aware of the laws that affect them, and understand
Ex parte McCarthy [1924] 1 KB 256. It was discovered that in a criminal
their rights and responsibilities under these laws.
trial in which McCarthy was convicted of dangerous driving, a
However, in reality, the legal system is not accessible to
clerk to the magistrates was also a solicitor who had represented
everybody equally. Financially disadvantaged people, people living
the person suing McCarthy in a separate civil case arising out of
with disability, people from non-English speaking backgrounds,
the accident. Although the magistrates did not consult the clerk
women, Aboriginal and Torres Strait Islander peoples, and those
for his opinion, and the clerk gave them no advice on the matter,
who are institutionalised may experience particular difficulties.
McCarthy’s conviction was overturned on the basis of the possibility
access the right or opportunity to make use of something of bias.
procedural fairness / natural justice the body of principles used to

ensure the fairness and justice of the decision-making procedures of
courts; in Australia it generally refers to the right to know the case against
you and to present your case, the right to freedom from bias by decision-
Figure 1.4 Historically, Indigenous Australians have had limited access makers, and the right to a decision based on relevant evidence
to the legal system in Australia.

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

PART I
Review 1.3 Review 1.4
1 Why do we need laws? For what reasons do members 1 In your own words, describe what the article below
of society obey the law? is about.
2 Define the following basic legal notions. You can choose 2 Explain why councils may not actually prosecute anyone

to use words, pictures or cartoons to define them: for breaching these anti-smoking laws.
a custom 3 Why do you think people may not obey this law?
b rules 4 Does society need a stronger type of legislation? Write
c law two paragraphs, one arguing in favour of the legislation,
the other arguing against it.
d fairness
e equality
f justice
g values
h ethics
3 Write an explanation of why you chose to define the
terms above using the same format.
Media Clip
Smoking to be banned in NSW public spaces
Liz Foschia
ABC Online, 28 February 2012
The New South Wales Government is to stub out smoking in ‘We want to honour the commitment we made to clubs
most of the state’s public places, from parks to bus stops. through our memorandum of understanding. This is a
Health Minister Jillian Skinner says legislation will be Government that keeps its promises.’
introduced to the Parliament in coming months to prohibit The Government says smoking-related illnesses account for
smoking in sports grounds, swimming pools, entrances to more than 5,000 deaths in NSW each year, while 44,000 are
buildings and public transport stops. admitted to hospital.
‘A series of places where children and families congregate The NSW Cancer Council has applauded the announcement.
more frequently,’ Ms Skinner said. Council chief executive Andrew Penman says the legislation
Smoking will also be banned in commercial outdoor dining will give people more choice in whether they are exposed to
areas but not until 2015. smoke.
Ms Skinner has defended the delay on that aspect of the ban, ‘The important principle is that the measures are aimed at
saying it honours a Coalition election commitment to the clubs protecting people from being exposed in places where they
industry. are involuntarily present,’ Dr Penman said.
‘Nobody is calling the tune on this except the public, who ‘They have to be at a taxi rank, they have to be at a rail
asked for this legislation and it will be happening,’ she said. station. They really haven’t got the option to move away.’
‘We had 16 years of Labor. That wasn’t done then. It’s now not He is pragmatic about the outside dining areas delay.
even a year within the O’Farrell Government and, here we are, ‘The important thing is to move forwards. What we do have
we’ve moved already. is a firm cut off in 2015,’ he said.

1.8 Anarchy and tyranny Anarchy
The rules and laws that have evolved for different societies are When people believe that the law has let them down in some way,
based on the customs, values and ethics that are part of these they may declare, ‘We live in a state of anarchy!’ What exactly do
traditions. Most people want and accept rules as a necessary they mean by this?
part of everyday life due to the belief that all people should be The word ‘anarchy’ comes from the Greek word anarchia,
treated equally and with fairness. Rules are needed to ensure that which means ‘without a ruler’. Anarchy, therefore, is a term used to
our behaviour is regulated to meet the common expectations describe a state of chaos and disorder resulting from the absence
of society. The absence of laws, the inability to enforce laws or of rules and laws.
the unfair and unequal application of laws can result in states of A state of anarchy may break out during a revolution or after a
anarchy or tyranny. natural disaster, because the law enforcement agencies no longer
exist or are unable to enforce the laws of a society. Violence and
widespread looting are two early indicators that a society or group
is on the verge of anarchy.
In London in August 2011, in the aftermath of a death of a man
shot by police, a protest march was held. Such was the anger at
the shooting that the march quickly got out of hand. Lawlessness
involving violence and looting became widespread, with residents
and shopkeepers forced to protect themselves and their properties
from looters and other criminals. This went on for several days and
spread to other cities until the situation was calmed. The British
government and police carried out intense enquiries to find out
how the situation escalated. These enquiries found that many
people felt distanced from the government and the police force.
While the majority of people believe that an absence of rules and
laws leads to a disorganised, chaotic society, certain philosophers,
theorists and anarchist movements believe that anarchy does not
imply chaos, but rather a ruler-free society with voluntary social
harmony.
anarchy the absence of laws and government
Figure 1.6 After Hurricane Katrina in the United States in 2005, parts of
New Orleans slipped into a brief state of anarchy. Figure 1.7 The ‘Circle-a’ is the most widely recognised symbol for anarchy.

PART I
Tyranny
If anarchy is the absence of laws and law enforcement agencies,
then tyranny is the opposite. By definition, a tyrant is a single
leader who has unlimited power over the people in a country or

state. Generally, tyrannical power involves severe punishment
for any infringements of the law. Some modern-day examples of
tyrannical power in action include Saddam Hussein’s rule in Iraq
prior to his arrest in 2003, Bashar al-Assad’s presidency in Syria and
Robert Mugabe’s control of power in Zimbabwe.
tyranny rule by a single leader holding absolute power in a state
Figure 1.8 Modern-day anarchist groups protest against the dominant

power of governments and large corporations.
Research 1.1
Prepare a report on anarchy and modern-day anarchist
organisations. In your report include the following:
➥ a definition
➥ a history
➥ information on two anarchist organisations and
their beliefs
➥ modern-day anarchists and their activities.
To help with your research, go to www.cambridge.edu.au/
prelegal3weblinks for links to a sample of different anarchist
groups. Alternatively, you may choose your own group to
research.
These groups often protest at:
➥ G8 summits
➥ European Union meetings
➥ World Trade Organization meetings. Figure 1.9 Zimbabwean tyrant Robert Mugabe and an example of a
protest against him.

Chapter summary Multiple-choice questions
➔ The law of a country has developed from the rules of the 1 Which of these statements about the difference between a rule
dominant community. and a law is true?
➔ These rules are based on the customs, values and ethics of
a Rules are not binding on the whole of the community.
that community.
b Rules do not involve rights and responsibilities.
➔ Rules and laws have different characteristics.
c Rules are not enforceable.
➔ The term for the absence of government is ‘anarchy’.
d Rules have nothing to do with ethics.
➔ The law is based on the notions of fairness, equality
2 What is anarchy?
and justice.
➔ The law covers all members of society and has penalties a constant violence and disorder
attached for infringements of the law. b the absence of law
➔ People follow the law because it provides them with c wearing black clothes to break the rules
protection against wrongful behaviour. d rebellion against the government

3 What are ethics?
a allowing people to be different
b a mix of equality and fairness
c the principles that help us make decisions about right and
wrong behaviour
d different people’s perceptions of the law
4 A police officer charges a man for crossing the road against the
lights, but does not book a woman doing the same thing. Why
is this unjust?
a The police officer should concentrate on serious crimes.
b Studies show that women are better at crossing roads.
c The police officer has not treated all pedestrians equally.
d You should be allowed to cross the road wherever you want.
5 What is the purpose of the law?
a to divide power among all of the different groups in society
b to provide stability for the ruling government
c to maintain order in society
d to make people do things that no one wants to do

PART I
Chapter summary tasks

1 Describe the difference between anarchy and the law.
2 Explain how anarchy and a structured system of law are not

compatible.
3 Describe the relationship between rules, laws and custom.
4 Compare and contrast ‘rules’ and ‘laws’.
5 What is the relationship between fairness, equality and justice?
6 Is law necessary? Justify your answer.
7 Why do people have different perceptions about the law?

Chapter 2
Sources of contemporary Australian law
Chapter objectives
➔ identify and apply legal concepts and terminology ➔ describe the role of the law in conflict resolution and
➔ describe the key features and operation of the Australian its ability to respond to and initiate change
and international legal systems ➔ locate, select and organise legal information from a
➔ discuss the effectiveness of the legal system in dealing variety of sources
with relevant issues ➔ communicate legal information by using well-structured
➔ explain the relationship between the legal system responses.
and society
adversarial system delegated legislation legislative powers residual powers
appeal domestic law mediation sanction
appellate jurisdiction equity natural justice stare decisis
bicameral exclusive powers obiter dicta summary offences
bill ex parte opinio juris statute law
committal hearing external affairs power original jurisdiction terra nullius
common law federation precedent treaty
concurrent powers indictable offences ratify ultra vires
customary law inquisitorial system ratio decidendi
defamation jurisdiction referendum

PART I
Chapter 2: Sources of contemporary Australian law
Relevant law
Important legislation
Commonwealth of Australia Constitution Act 1900 (UK) Administrative Decisions (Judicial Review) Act 1977 (Cth)
Australia Act 1986 (Cth)
Significant cases
Gutnick v Dow Jones & Co. Inc. [2001] VSC 305 R v Brislan; Ex parte Williams [1935] HCA 78
Commonwealth v Tasmania [1983] HCA 21 Osland v R [1998] HCA 75
South Australia v Commonwealth [1942] HCA 14 Roper v Simmons, 543 US 551 (2005)
Murphyores v The Commonwealth [1976] HCA 20
Odd law
Defendants in a criminal case can apply for a retrial when it is found that there is an error in the original case. Cesan v The Queen;
Mas Rivadavia v the Queen [2008] HCA 52, a case heard in the High Court, saw the court order a retrial for two men suspected of drug
smuggling because the judge presiding over the original trial had been ‘asleep during significant parts of the trial’. In addition to simply
being asleep for key parts of the trial, such as the presentation of evidence, the judge’s snoring and heavy breathing distracted the jury.

2.1 Australia’s legal In this system, called the civil law system, a judge (or group of judges)
has the task of investigating the case before him or her.
heritage Indonesia uses an inquisitorial system for criminal trials. This
means that the judges will conduct an inquiry into the truth of
Legal processes and practices used in Australia today are based what occurred: that is, the facts behind the legal issues in dispute.
on the model developed in England. When the British came to They are able to admit evidence that might not be admitted in an
Australia in 1788, they brought with them the law that applied in Australian court. Judges are empowered to decide which witnesses
Britain, known as common law. Contemporary Australian law has will be called, and could even call for outside testimony that had not
evolved from both common law and statute law. Common law been requested by either side.
refers to laws created in court – that is, decisions made by judges.
Statute law refers to laws made by parliament. These concepts are inquisitorial system a legal system where the court or a part of the court
(e.g. the judge) is actively involved in conducting the trial and determining
discussed in further detail below.
what questions to ask; used in some countries with civil legal systems as
opposed to common law systems
common law law made by statute law law made by
courts; historically, law common parliament
to England
The adversarial system of trial

2.2 Common law
The term ‘common law’ has many different uses, as you would find
The English system of law has heavily influenced Australian law and
if you were to put the term into a search engine on the internet.
practice, including the way in which court cases are conducted. As a
Common law in Australia today includes elements of the following:
result, Australia uses the adversarial system as part of both criminal
➥ court-made law (as opposed to laws made by parliament)
and civil court proceedings. The word ‘adversary’ means ‘opponent’.
➥ law developed by the courts of common law, as distinct from
In a trial the two sides of the case try to prove their version of the
the courts of equity
facts and disprove the version of the other side. The defendant
➥ the system of court-based law used in the United Kingdom and
in a criminal trial does not have to prove anything, as he or she is
many of its former colonies, including Australia, New Zealand,
assumed to be innocent until proven guilty. However, most people
Canada and the United States.
accused of a crime will retain the services of a legal team to show
how the prosecution’s case is flawed. courts of equity historically, courts whose decisions were more
An impartial judge (and sometimes a jury) will listen to the discretionary and based on moral principles, and which served as an
antidote to the inflexibility of the common law
evidence presented by both parties and make a decision as to which
side has proved their case, and thus disproved the other side’s case.
adversarial system a system of resolving legal conflicts, used in common Development of the common law
law countries such as England and Australia, which relies on the skill of
representatives for each side (e.g. defence and prosecution lawyers) who
present their cases to an impartial decision-maker The British legal system itself developed from a number of sources.
In Anglo-Saxon England, for example, questions about rights and
obligations were decided on the basis of local custom, and disputes
The inquisitorial system were resolved by local courts. After the Normans invaded England
in the 11th century, they began a system of travelling judges who
In an inquisitorial system, the court is actively involved in applied a common set of laws to all areas of England. Petitions from
determining the way in which the competing claims are presented. people who felt that the local courts had been unjust were dealt
It is different from the adversarial system, where the role of the with on the premise that similar cases should be treated in a similar
court is to act as an impartial referee. way. The decisions made by the judges provided the precedents
The inquisitorial system derives from the Roman and Napoleonic for later cases, and the laws they applied became the basis of the
codes. It is found in Europe, as well as Japan and some other countries. British legal system.

PART I
Figure 2.1 Australian common law is based on the English system. Shown here are the houses of Parliament in London.
This system was the one brought over to Australia with the wound healed within a prescribed period, or if the defendant sank,
First Fleet, but gradually Australia has developed its own legal he or she was considered innocent and set free; if not, execution
system based on its statute law and common law. Many British usually followed.
legal principles have been retained in the Australian system. These Trial by ordeal continued after the Norman conquest, though
include the principles of natural justice. there were new requirements imposed by the church, for example
From about the 6th to the 11th century, the law was enforced that no one could be made to undergo an ordeal without the
by local administrative bodies. The king’s appointees, the church, bishop’s permission. It was eventually condemned by the church in
and local landlords all had a role in court resolution of legal 1215 and abolished by royal decree in 1219.
matters. Crimes were treated as wrongs for which the offender had In order to consolidate his hold on the country, William the
to compensate the victim. If the court accepted a case, both the Conqueror sent judges (or justices) around the country with three
person against whom the illegal act was allegedly committed (the main tasks to carry out:
plaintiff) and the person who was said to have committed it (the 1 Administer a common set of laws throughout the country.
defendant) had to swear an oath. The defendant might have the 2 Report on any threats to the throne.
help of ‘oath-helpers’ – people willing to swear to his innocence. 3 Assess the wealth of the country so that taxes could be
If the court found the defendant’s oath believable, he or she could levied.
simply walk away. If, however, the plaintiff could bring witnesses When a later ruler, Henry II, came to the throne in 1154, there was
who would swear that the defendant had committed the act, the a well-established practice of sending royal justices throughout
defendant might be required to participate in a ‘trial by ordeal’. the countryside to listen to disputes, work out solutions and
Before the ordeal, the defendant had to fast for three days and apply punishments, and ensure that common rulings were made
attend a special Mass. He was then given a painful task to complete overall. These judges also had authority to make decisions when
or to bear, such as carrying a red-hot iron bar a certain distance in they heard new cases. In this way, a set of uniform laws developed
his bare hands, retrieving a stone from a cauldron of boiling water, throughout England. Thus, common law as we know it today
putting his hand into a flame, or being thrown into a river or pond. has evolved from judicial decisions that were based in tradition,
If the defendant completed the task without injury or death, if the custom and precedent.
C hap ter 2: S ources of contemp orar y Austral ian l aw 21

circumstances. The moral principles on which equitable decisions
were based were called the rules (or maxims) of equity, and are still
used today.
The systems of common law and equity coexisted, but not
always peacefully. In the early 17th century, a dispute between the
Chancellor and the Chief Justice of the King’s Bench was resolved
through the personal intervention of the king, James I, who called
a conference of judges. They concluded that in the case of conflict
between the common law and equity, equity should prevail. As a
result, rules of equity always override common law.
There are equitable remedies for wrongs not recognised by
the common law. Some of these remedies are non-financial:
for example, the court may order someone to do what he or she
promised but then failed to do, or may set aside an unfair contract.
In the 1870s, the British parliament passed legislation merging
the courts of common law and the courts of equity, allowing judges
to apply the rules of common law or equity (or both) in a particular
case. The Australian colonies followed suit with similar legislation.
equity the body of law that supplements the common law and corrects
injustices by judging each case on its merits and applying principles
of fairness
Figure 2.2 An example of a water ordeal: the guilty would float, the
The doctrine of precedent
innocent would sink.
As stated above, the common law, or case law, is the law developed
by judges when deciding cases. Not only are there rules about the
Development of equity presentation of evidence and the running of the case, but judges
must resolve disputes on the basis of decisions made in similar
The procedure for bringing a case before the court was rigidly
cases. A judgement that is followed is called a precedent, and
formal. In Anglo-Saxon times, if a party failed to follow the
it provides the authority for the legal principle contained in the
prescribed steps, he could lose his case. Even later, the common
decision. The doctrine of precedent is also known as stare decisis
law would hold that a person was bound by a contract, even if he
– Latin for ‘the decision stands’.
had made a mistake or been tricked into signing it. By the 15th
The purpose of precedent is to ensure that people are treated
century, people were bringing petitions to the king claiming that
fairly, and that the law develops in a consistent and coherent
the common law courts had made unjust decisions. It became the
fashion. It means that old cases retain authority and their decisions
job of the Chancellor to deal with these petitions.
can be used as the basis for decisions in modern court cases. Thus
For many years, the Chancellor was a priest, as well as a judge.
the doctrine of precedent works to limit a judge’s ability to be
Chancellors did not base their judgements on precedent and form;
creative when it comes to making a decision.
instead, they were influenced by Christian principles. This body of
law, which developed to deal with the injustices that had crept into
precedent a judgement that is stare decisis a Latin term
the common law and was set up to hear these petitions, became authority for a legal principle, and meaning ‘the decision stands’; the
known as equity. that serves to provide guidance doctrine that a decision must be
for deciding cases that have followed by all lower courts
As a court of equity, the Court of Chancery looked at the
similar facts
features of each case to decide what was fair or just in the particular

PART I
Making and following precedent ratio decidendi (Latin) the legal reason for a judge’s decision
When there has been no previous decision to provide guidance for
deciding a case, a court must use principles of the existing common
law and statute law to make its decision. The judge/s will also pay obiter dicta (Latin) comments from a judge in a case that are not
directly relevant to the case, and therefore not legally binding (singular:
attention to social developments and common sense. This new obiter dictum)

decision creates a precedent.
Another way in which precedents are created is in the
interpretation of legislation. Where there is a dispute about the When precedent does not have to be followed
meaning or application of a section of an act, or about the meaning
If the facts or relevant points of law are significantly different from
of a word, a court may have to resolve the question. For example,
a previous case, the case may be distinguished from the earlier one
if a statute requires that the local council must approve the removal
and its ratio decidendi will not have to be followed.
of trees from any land, a developer might not agree that the term
When a higher court upholds an appeal against a lower court’s
‘trees’ includes dead trees. Judicial interpretation of the legislation
decision, the decision of the lower courts is reversed.
might be needed to determine whether council approval must be
A court may refuse to follow a decision of another court that
sought for the removal of dead trees just as for live ones.
is at a lower or equal level in the hierarchy. This refusal is called
While courts are not bound to follow other courts’ interpretations
overruling the decision of the lower court.
of statutes, they are usually expected to do so. This is because if a
court decision has not resulted in parliament changing the wording
of legislation, it suggests that parliament is satisfied with the court’s Rules of precedent
interpretation.
Binding precedent
When a judge gives a decision in a case, it usually is made up of
two parts: Lower courts are bound to follow decisions of superior courts,
➥ the ratio decidendi – the essential legal reason why a judge regardless of whether the judge believes a decision of the higher
came to a particular decision. A v decidendi in a higher court will court is correct. This is known as ‘binding precedent’. For example,
set a binding precedent on lower courts; the NSW Local Courts and District Court must follow the decisions
➥ obiter dicta – other remarks made by the judge regarding of the NSW Supreme Court. All state and federal courts in Australia
the conduct of the trial, for example about the credibility of a are bound by the decisions of the High Court of Australia. Only the
witness. These remarks do not form part of the decision and ratio decidendi of the superior court is binding.
thus do not set a precedent. The High Court is not strictly bound by its own decisions, though
it usually follows them.
Persuasive precedent
Superior courts do not have to follow decisions made in lower

courts. They may, however, use them to help make a decision.
This is called ‘persuasive precedent’. Persuasive precedent may
also include obiter dicta of a judge in a higher court.
Decisions made in other Australian states or other common law
countries, such as the US or the UK, may influence an Australian
judgement. The higher the court in its own jurisdiction’s hierarchy,
the more persuasive the precedent.
jurisdiction the powers of a court, depending on its geographic area,

the type of matters that it can decide, and the type of remedy that it
can award
Figure 2.3 The Yass courthouse, NSW

Case Space
The law of defamation and the internet
Gutnick v Dow Jones & Co. Inc. [2001] VSC 305

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

downloaded, and that a plaintiff can bring proceedings in any
jurisdiction where the offending statements can be accessed.
2.3 Court hierarchy: The Australian Capital Territory does not have the intermediate
level, but is otherwise similar. Each court has its own jurisdiction, or
Jurisdiction of state and area over which it has authority. Minor matters are dealt with lower
federal courts in the court hierarchy, and the higher courts are reserved for more
serious matters and appeals from the lower courts.
Australia has two overlapping jurisdictions of law: state and In criminal cases, minor offences such as loitering and
federal. As a result, there are separate state and federal obstructing traffic are called summary offences – these are dealt
jurisdictions, each of which has its own court structure. with in the lower courts. More serious criminal offences, such as
All courts have the power to hear a case for the first time. Some assault and murder, are called indictable offences – these are
courts can also hear appeals from lower courts. This means they dealt with in the higher courts.
can reconsider the decision of a lower court, where the losing

summary offences criminal indictable offences serious
party believes there has been an error in the lower court’s legal offences that can be dealt with criminal offences that require
reasoning. Figure 2.4 shows the structure of state courts in New by a single judge without a jury an indictment (a formal, written
and do not require a preliminary charge) and a preliminary
South Wales, and federal courts in Australia. The arrows show
hearing hearing; they are typically tried
the specific courts that can hear appeals from each of the lower before a judge and jury and are
courts. subject to a greater penalty
appeal an application to have a higher court reconsider a lower court’s

decision, on the basis of an error of law Lower courts
Local Court and Magistrates’ Court

State and territory courts
In New South Wales, the Local Court deals with minor criminal
The state court system in New South Wales operates under the matters and minor civil disputes. In this court a magistrate will
following hierarchy: hear and decide the case, and will set the punishment for criminal
1 Lower courts offences. The Local Court is also known as the Magistrates’ Court. In
2 Intermediate courts the Australian Capital Territory, the court that has this role is called
3 Superior courts. the Magistrates’ Court.

PART I
High Court of Australia
Federal superior courts State and Territory superior courts

Federal Court of Australia Land and Environmental Court of NSW

Supreme Court of NSW
Court of Criminal Appeal
Federal specialists courts
Family Court of Australia
State intermediate courts
Non-family law Family law

District Court of NSW
matters matters
Federal lower courts State lower courts

Federal Magistrates’ Court of Australia Local Court of NSW
Coroner’s Court of NSW
Children’s Court of NSW
Figure 2.4 State/territory and federal court hierarchy
Most criminal matters are heard in the Local or Magistrate’s Coroner’s Court
Court, as only very serious crimes are referred to the District or
In New South Wales and in the Australian Capital Territory, the role
Supreme Courts. In the case of indictable offences, the magistrate
of the Coroner’s Court is to ensure that unexplained or suspicious
will listen to an outline of the evidence to determine whether
deaths (or suspected deaths), fires and explosions are properly
the prosecution has a strong enough case to be able to try the
investigated. If necessary, coronial inquests are carried out
defendant in the District Court or Supreme Court. This preliminary
and cases are handed to a higher court for trial.
hearing is called a committal hearing.
The Local Court in New South Wales has jurisdiction to deal with Children’s Court
the following areas:
In New South Wales and in the Australian Capital Territory, the
➥ minor criminal and summary offences
Children’s Court deals with civil matters related to the care and
➥ civil matters with a monetary value of up to $100 000
protection of children and young people. It also deals with
➥ committal hearings
criminal cases involving persons under the age of 18 at the
➥ a limited range of family law matters, such as property
time of the offence, or (in New South Wales) under the age of 21
settlements and residence orders for children. In this area,
when charged with a crime they committed while under the age
the Local Court has federal jurisdiction and in these matters is
of 18.
essentially part of the Federal Court hierarchy.
The Magistrates’ Court of the Australian Capital Territory has Land and Environment Court
similar jurisdiction, although it can hear and decide civil matters
The Land and Environment Court is a specialist court responsible
with a maximum monetary value of $250 000.
for interpreting and enforcing environmental law in the state
committal hearings inquiries coronial inquests investigations

of New South Wales. It has a wide jurisdiction and deals with
held in the Local or Magistrates’ into deaths that have occurred matters related to environmental planning (e.g. zoning of park
Court to determine whether in unusual circumstances, held lands), environmental offences (e.g. illegal polluting or dumping)
there is enough evidence against in the Coroner’s Court and
the defendant to warrant a trial overseen by a magistrate called and appeals against local council rulings.
in a higher court (this is called the Coroner
establishing a prima facie case)

Intermediate courts In civil matters, there is no upper limit to monetary damages
that can be awarded in the Supreme Court. It hears matters
The District Court of New South Wales on claims for damages for personal injury, breach of contract,
The District Court of New South Wales deals with more serious professional negligence, possession of land, and defamation. Most
criminal matters. These include every thing from charges of larceny civil matters are dealt with by a judge alone, but a jury is used in
to more serious charges such as manslaughter, sexual assault and some limited circumstances.
large-scale drug importation. The only charges with which the The Supreme Court also hears appeals. The Court of Appeal is the
District Court cannot deal are murder, treason and piracy, which highest court in each state and territory, for both civil and criminal
must be dealt with by the Supreme Court. matters. It also makes decisions about procedural fairness in lower
A judge, and sometimes a jury, will hear cases tried in a courts. Three judges hear most appeals, but some are heard by two,
District Court. and, in special cases, they may be heard by more than three. If the
The District Court deals with criminal offences such as: judges cannot agree, the majority view prevails. To appeal to the
➥ manslaughter, malicious wounding, and dangerous driving High Court from the Court of Appeal, special permission must be
➥ assaults granted by the High Court.
➥ sexual assaults
corporations law legislation that regulates corporations and the
➥ offences relating to property, including robbery, breaking and securities and futures industry in Australia; it is administered by the
entering, larceny and embezzlement Australian Securities and Investments Commission (ASIC)
➥ importing, supplying or possessing prohibited drugs

➥ offences involving fraud, including passing valueless cheques,
obtaining money by deception, and forgery. Federal courts
The District Court has an unlimited jurisdiction in claims for damages
The federal court system has a hierarchy in much the same way as
for personal injuries arising out of a motor vehicle accident. It also
the state court system does. The system includes:
handles civil cases where the amount claimed is between $100 001
and $750 000. If both parties agree, the court can deal with cases
The Federal Magistrates Court of Australia
where larger amounts are involved. It also has appellate jurisdiction.
The Federal Magistrates Court of Australia was established by the
Commonwealth Parliament towards the end of 1999 and conducted
larceny taking another appellate jurisdiction the
person’s property with intent to ability or power of a court to hear its first sittings in July 2000.
permanently deprive the owner appeals of the decisions of lower The Federal Magistrates Court was established to relieve some
of the property; also known as courts and to reject, affirm or
of the case load of the Federal and Family Courts and reduce the
stealing modify those decisions
cost and time required to deal with more minor federal matters.
The jurisdiction of the Federal Magistrates Court includes family
Superior courts law and child support, administrative law, bankruptcy, human
rights, consumer protection and trade practices, privacy, migration,
The Supreme Court
copyright, and industrial law. It does not deal with criminal matters.
The Supreme Court is the highest court in the state or territory It shares its original jurisdiction with the Family Court of Australia and
hierarchy. It deals with the most serious criminal matters and civil the Federal Court of Australia; matters can be transferred between
cases involving large sums of money (there are no monetary limits these courts, depending on the complexity of the legal issues.
on its civil jurisdiction) and most cases where an equitable remedy The Federal Magistrates Court plays a strong role in settling
is sought. It also deals with appeals from the lower courts in that disputes in regard to copyright, human rights, industrial law,
state or territory. migration, privacy and trade practices. It currently deals with over
The Supreme Court has criminal jurisdiction over the most 90 per cent of migration and bankruptcy applications.
serious indictable offences such as murder and manslaughter, In November 2012, the Federal Parliament passed legislation
attempted murder, kidnapping, major conspiracy and drug-related changing the name of the Federal Magistrates’ Court of Australia to
charges, and Commonwealth prosecutions for serious breaches of the Federal Circuit Court of Australia. The title of Federal Magistrate
the corporations law. All cases are heard before a judge and jury. was changed to Judge.

PART I
The Federal Court of Australia The High Court of Australia
The Federal Court of Australia was established by an Act of The High Court of Australia is the highest court in the Australian
Parliament in 1976. It assumed some of the jurisdiction formerly judicial system. It was established in 1901 under section 71 of the
exercised by the High Court of Australia and all of the jurisdiction of Australian Constitution. The High Court deals with appeals from
two courts that had dealt with industrial matters and bankruptcy. the Federal Court of Australia, the Family Court of Australia, and

It deals with civil disputes governed by federal law (except for the state and territory Supreme Courts. It also deals with cases
family law matters), as well as some summary criminal offences. concerning the interpretation of the Australian Constitution and
The Federal Court’s position in the federal court hierarchy is the constitutional validity of laws.
equivalent to that of the Supreme Courts in the states and
territories. In relation to the other courts in the federal hierarchy, it Legal Links
is equal to the Family Court of Australia, and superior to the Federal
Legal Access Services is a site that was set up to provide
Magistrates’ Court.
legal advice to ordinary Australians. It provides information
on the Australian legal system.
The Family Court of Australia Lawlink, hosted by the NSW Attorney-General’s Office, has
information about the courts of NSW and Australia.
The Family Court of Australia is a superior federal court that deals
The ACT government provides information on that
with the most complex family law matters. It was established by the
territory’s courts and tribunals.
Australian Parliament in 1975. Its main function is to rule on cases
related to specialised areas in family law, such as divorce, parenting The Australian Government Attorney-General’s website has
information about the federal legal system and courts.
orders, the division of property and spousal maintenance. In its
appellate jurisdiction, it can hear appeals from a decision of a Links to these websites can be found at www.cambridge.
edu.au/prelegal3weblinks.
federal magistrate or a single Family Court judge.
Figure 2.5 The High Court of Australia is located in Canberra.

Review 2.1 2.4 Statute law
1 Why do we need courts? Statute law is the law made by parliament. It is also known as
2 Explain the meaning of ‘court hierarchy’. ‘legislation’ or ‘Acts of Parliament’. In Australia, any parliament
3 Which court is the highest in Australia? has the power to make statute law. This means that state, territory
4 Outline the types of matters that are heard in the local and federal governments all have the right to make laws. The
court. Who hears these matters? Australian Constitution sets out the powers of the state and federal
5 Indicate the types of cases that are dealt with in the parliaments with respect to making law.
District Court of New South Wales. Who decides these
cases? The role and structure of parliament
6 Describe the role of the Supreme Court.
A parliament is a body of elected representatives. It debates
7 Explain the importance of the High Court.
proposed legislation, passes or rejects it, and amends legislation.
8 In which court would the following matters most likely
Apart from Queensland and the territories, all state parliaments
be heard?
and the Federal Parliament are bicameral. This means that they
a murder trial
have two houses, an upper house and a lower house. The Australian
b an appeal from the NSW Supreme Court Capital Territory’s parliament is unicameral: it only has a lower
c a hearing for the offence of using offensive house, called the Legislative Assembly. In New South Wales, the
language in public lower house is known as the Legislative Assembly and the upper
d an investigation into a suspicious death house is called the Legislative Council.
e an armed robbery trial In Federal Parliament, the two houses are the Senate (the
f the preliminary hearing for a kidnapping case upper house) and the House of Representatives (the lower house).
The government is formed by the political party that wins the majority
g a civil dispute between business partners involving
$100 million of seats in the lower house. Sometimes parties will unite to form a
government (such as the Liberal–National Coalition). The prime
h a case dealing with an aspect of the Australian
minister is the leader of the government. The political party or parties
Constitution
who have the remaining seats in the lower house form the opposition.
Figure 2.6 Parliament House, Canberra

PART I
The Queen
(represented by the Governor-General)

Government
members of
parliament
Executive
members of
parliament
Non-government
members of
parliament
House of Representatives Senate
Figure 2.7 The Parliament of Australia
Ministers are those members of the government who have a special

The legislative process
responsibility for particular departments, e.g. Minister for Education,
Minister for the Environment. Some or all of the ministers form the
Passing legislation
Cabinet. Cabinet makes decisions on policy and laws to be drafted for
consideration by parliament. One of the most important functions of parliament is the passing of
The Executive Council is made up of the Governor or Governor- laws. Most laws are introduced by the party that holds government.
General and selected ministers. It is the body that enables legislation A proposed new law is known as a bill. Bills are usually introduced
to be put into operation. The British monarchy still plays a role in by ministers, who are responsible for their preparation. Any Member
parliament in Australia. of Parliament can introduce a bill; however, if a bill is introduced by
The Queen must assent to laws. She is represented in Australia by a member who is not a minister (called a backbencher), the bill is
the Governor-General at federal level and governors at the state level. known as a private member’s bill.
The making of a law can be time-consuming and difficult. The
bicameral containing two chambers or houses of parliament
process is open to public scrutiny and, as a result, well-organised
pressure groups and members of the public can influence
parliamentarians’ opinions.
Legal Links As members of parliament are subject to elections every
For information on the Commonwealth Parliament go to few years, they are well aware of the consequences of passing
www.cambridge.edu.au/prelegal3weblinks for a link to the unpopular legislation. This means that proposed legislation often
Parliament of Australia website. undergoes much discussion in parliament and may be redrafted
many times.

Before a bill passes and becomes federal law, it requires the Table 2.1 The advantages and disadvantages of delegated
approval of both houses of parliament and the Governor-General. legislation
It then becomes an Act of Parliament.
Advantages Disadvantages
The process for passing laws through the New South Wales
➥ The people making the ➥ Members of Parliament
Parliament (as well as other states with bicameral parliaments) is
legislation are usually do not have the time or
generally the same as passing laws through Federal Parliament.
experts in that field. expertise to fully check the
This process is outlined in Figure 2.8. delegated legislation.
The process for passing laws in the Legislative Assembly of the
➥ Delegation of minor ➥ With many different
Australian Capital Territory has fewer steps, as there is only one legislation frees up bodies involved in
legislative chamber. Bills of the ACT are not given royal assent parliamentary time for making delegated
by the Governor-General, and this territory has no governor or very serious issues. legislation, there can be
administrator. inconsistencies.
➥ It is easier to amend ➥ Little publicity surrounds

bill a drafted law that has not yet Act of Parliament statute law, delegated legislation the delegated legislation
been passed by parliament resulting from a bill successfully and thus it is more and thus the public usually
passing through parliament and
flexible. cannot voice their views.
gaining royal assent
delegated legislation laws

made by authorities other than
parliament, who are delegated
Review 2.2
the power to do this by an act of
parliament
1 Explain how common law originated.
2 Describe how people were tried for crimes in medieval
England. What were the problems with this system?
Delegated legislation 3 Define equity law and explain how it differs from the
Delegated legislation is legislation made by non-parliamentary common law.
bodies. It involves ‘less important’ laws that parliament does not 4 Explain why Australian law is based on common law
have time to draft, consider and pass, and so delegates (passes principles.
on) the responsibility to ‘subordinate’ bodies, such as government 5 Identify the differences between court-made law and
departments or local councils. The act that authorises a body to statute law.
make delegated legislation is called an ‘enabling Act’. 6 How is the principle of precedent used in court
Types of delegated legislation include: decisions?
9 regulations – laws made by the Governor-General, state 7 Evaluate the importance of the Gutnick v Dow Jones &
Governors or members of the Executive Council Co. Inc. case.
10 ordinances – laws made for Australian territories (e.g. 8 Devise a way to explain to the public how an act of
Norfolk Island and the Australian Antarctic Territory) parliament is made. You may wish to use a series of
11 rules – legislation made for government departments, cartoons or a storyboard.
usually by the department involved 9 Define delegated legislation. Demonstrate your
12 by-laws – laws made by local councils which are restricted knowledge with appropriate examples.
to the area governed by that council.

PART I
The process of passing a bill through parliament
Influences on governments to make laws come from many and varied sources.
These include:
• community interest/lobby groups
Need for new law • electoral mandate
is identified

• the need to continue or enhance existing laws
• party policy
• national/international events
• proposals put forward during election campaigns.
Cabinet approves the drafting of a bill.

Draft bill The proposed bill is drafted by parliamentary clerks and timetabled for its first reading
in the lower house. The bill is presented by the minister, ready for its first reading.
The first ‘formal’ reading of the bill takes place: the Clerk of the Parliament reads out the
First reading
title of the bill. Each Member receives a copy of the proposed Act.
The minister then speaks about the proposed Act, elaborating on its general aims.
Second reading Debate over the bill takes place. This stage is completed by the Clerk reading the title
of the bill for the second time.
The bill is examined and debated in detail and changes (known as amendments) are
Committee stage
made if necessary.
During the third reading a vote is taken on the bill. If the bill passes, it moves to the
Third reading
upper house.
In the upper house, the process is repeated. If the bill does not pass in the upper house
Upper House
is may be returned to the lower house for amendments or may be rejected..
If the bill is passed in the upper house, it is presented to the Governor (in the case of
NSW legislation) or Governor-General (in the case of federal legislation) for formal
Royal assent
approval. The bill now becomes an Act of Parliament and is law as of the date specified
in the Act.
Figure 2.8 The passage of a bill through parliament

2.5 The Constitution an Act of the British Parliament, the Act brought the Commonwealth
of Australia into existence as a nation, and the Constitution can be
changed only by a referendum of Australian voters.
A constitution is a set of rules that may apply to a social club, a large-
The Australian Constitution contains certain ‘checks and balances’
scale organisation or even a nation. On 1 January 1901, Australia
as a result of debate and discussion during the federation process:
gained a Commonwealth Constitution, which outlined the legal
➥ The Senate provides a ‘check’ (restraint) on the power of the
framework and rules that apply to the governance of Australia.
House of Representatives. The Senate is sometimes called
Prior to the Australian Constitution coming into force, Australia
the ‘states’ house’, since all states have the same number of
consisted of six colonies, which were independent of each other
senators (12) regardless of population. Each territory has two
with the right to govern within their own borders. These six colonies
senators.
were not answerable to any authority in Australia, but rather to the
➥ Section 128, which covers the process for altering the
British government. By the 1880s various groups and individuals
Constitution, specifies that a majority of states need to vote
began to promote the concept that Australia would be better off if
‘yes’ on a proposal for it to succeed – that is, four out of six
the six colonies amalgamated into one nation under one centralised
states. In addition, an absolute majority of voters Australia-wide
government. An emotional and sometimes bitter debate raged for
must vote ‘yes’ – that is, 50 per cent of voters plus one. It should
two decades until federation was achieved.
be noted that this strict requirement has made constitutional
It is important to look at the arguments for and against
change very difficult: no referendum has succeeded since 1977.
federation in Australia because these different considerations
➥ The ‘division of power’ outlined in s 51 ensures that the states
shaped the content of the final constitution document. As with any
have control over the ‘residual powers’, that is, those not listed
democratic process, politicians have to persuade the public to vote
in s 51. This will be examined in detail later in this chapter.
for their proposals, and sometimes they have to make trade-offs to
gain voter confidence. This was essential to get the necessary votes federation the process of uniting several states to form a single national
in each of the federation referendums. government
After a series of referendums in 1898, 1899 and 1900, the

colonies eventually found a compromise position on a proposed
referendum the referral of a particular issue to the electorate for a vote
constitution, but, before it could take effect, approval from the
British Parliament was required. The Commonwealth of Australia
Constitution Act 1900 (UK) was passed and Australia came into
s abbreviation for ‘section’ of any legislation; ‘ss’ is the abbreviation for
existence as a nation on 1 January 1901. The key features of this ‘sections’ (plural)
British Act were:
➥ Australia was a federated nation consisting of six states
(Western Australia joined shortly after the other states). The
Northern Territory gained self-government in 1978 and the ACT
in 1988.
➥ There was a bicameral federal parliament (House of
Representatives and Senate).
➥ A High Court of Australia was established to oversee any other
courts and provide ‘final and conclusive’ judgements upon any
appeals it hears (s 73 of the Australian Constitution).
➥ It outlined both the division of power and the separation of
powers as they would apply in Australia.
➥ It enabled the Constitution to be altered by a referendum (s 128
of the Australian Constitution).
The Constitution itself is s 9 of the Commonwealth of Australia Figure 2.9 ‘Kanakas’ at work on the Queensland cane farms. (‘Kanaka’ is a
Constitution Act. Although the Constitution came into force through disparaging term used for a South Sea Islander brought to Australia to work.)

PART I
Table 2.2 Arguments for and against federation in 1901
Arguments for federation Arguments against federation
Economics: the removal of trade barriers between the colonies Trade: tariffs could be used to protect industries in certain
would promote a more efficient economy colonies from competition in other colonies
Transport: a national rail network would overcome problems Fear: smaller states believed that the more populous and ‘richer’

caused by the colonies having different rail gauges states would simply override their interests
Defence: as the colonies were far from Britain and thus from Apathy: many people felt that federation was irrelevant to
Britain’s ability to assist in the event of attack, a unified military their daily lives; this was compounded by the severe economic
force would reduce vulnerability depression of the 1890s
Nationalism: there was a desire to foster a unique Australian Expense: federation would be expensive to achieve and a national
identity and culture distinct from the ‘mother country’, England government would be expensive to run
(in 1900, 96% of Australians were of British origin)
Racial ‘purity’: implementing national policies restricting Cheap labour: Queensland was determined to protect its sugar
immigration would ‘keep Australia white’ (the White industry by allowing Pacific Islanders ‘kanakas’ to work on the
Australia Policy) sugar plantations
rail gauge the distance between the inner White Australia Policy the government tariff a tax that must be paid on imports
sides of the two rails of a train line policy of allowing only Europeans and English- or exports
speaking people to immigrate to Australia
the Constitution divided up the powers between the federal

government and the states.
Section 51 of the Constitution specifies the legislative powers
of the Federal Parliament. The Federal Parliament has the power to
make laws with respect to all of the matters listed in s 51. These are
sometimes referred to as the ‘enumerated powers’. It is important
to realise that the states can also make laws in many of the areas
listed in s 51, namely, those areas over which the federal and state
governments have concurrent powers. Section 52 outlines the
exclusive powers of the federal government – that is, those areas
in which only the Commonwealth (federal) parliament can legislate:
x the seat of government of the Commonwealth, and all
places acquired by the Commonwealth for public purposes
xi matters relating to any department of the public service
Figure 2.10 A pendant from the early 1900s promoting
controlled by the Commonwealth, according to the
the aims of the White Australia Policy
Constitution
xii other matters declared by the Constitution to be within the
Division of power exclusive power of the Commonwealth parliament.
The exclusive powers of the federal government include the areas
After all the controversy and discussions leading up to the of trade and commerce with other countries, foreign relations
formalisation of the Australian Constitution, the fundamental (‘external affairs’), and national defence. While s 90, for example,
concern of what powers the states would retain and what powers states clearly that the federal government has exclusive power over
the federal government would have was resolved in Chapter I, customs, and s 114 forbids the states from raising or maintaining
Part V of the Constitution, in sections 51 to 60. Quite simply, any military force, determining how the Constitution applies to a

real-life question or dispute is not always clear-cut. Constitutional be noted that there is a provision in s 51(xxxvii) that allows for a
interpretation is the task of the High Court, and we will look at some ‘referral of powers’, whereby states are able to ‘give’ power to the
important cases in which that court has clarified the nature and Commonwealth to make laws with regard to a specific matter
scope of the powers. (e.g. in 2009 NSW referred some industrial relations matters to the
Obviously there needs to be a conflict resolution mechanism in Commonwealth under the Industrial Relations (Commonwealth
place if a state and the Commonwealth make contradictory laws. Powers) Bill 2009 (NSW).)
This is found in s 109: ‘When a law of a State is inconsistent with a
legislative powers the legal power or capacity to make laws
law of the Commonwealth, the latter shall prevail, and the former
shall, to the extent of the inconsistency, be invalid.’ This will be
discussed later in this chapter.
concurrent powers existing at the same time; powers held by both state
Those powers that belong solely to the states are known as and federal parliaments
the residual powers; that is, all the powers left over that are not
otherwise given to the Commonwealth exclusively. Each state
has its own constitution, which enables the state to make laws in exclusive powers powers that can be exercised only by the Federal
various areas, but excludes any area directly denied to the states by Parliament
the Australian Constitution. Chapter V of the Constitution outlines

some of these prohibitions. Some of the key residual powers are in
residual powers those matters on which the states can legislate, as they
the areas of de facto relationships (in NSW this now includes same-
are not referred to in the Constitution
sex relationships), crime, hospitals and public transport. It should
Figure 2.11 The states’ different rail gauges were a ‘legacy’ of the colonial system of Australia. The Constitution refers to this issue in ss 51(xxxii), (xiii) and
(xxxiv). Rail gauges for all states are now standardised, allowing efficient interstate rail travel.

PART I
Legal Info
Commonwealth government legislative powers
The following extract from the Australian Constitution lists pharmaceutical, sickness and hospital benefits, medical
some of the legislative powers of the federal parliament. and dental services (but not so as to authorize any form

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

Case Space
Commonwealth v Tasmania [1983] HCA 21 (‘Tasmanian Dam case’)
If either the Commonwealth or a state government passes a law The federal government recognised the Wild Rivers area
that contravenes the Australian Constitution, that law would be as a region of special significance and it was listed under
deemed unconstitutional and thus be declared invalid. the World Heritage Convention. The federal government
Technically the government would be said to be acting passed the World Heritage (Property Conservation) Act 1983
ultra vires. But what happens if the state and Commonwealth (Cth), which specified that such areas of special significance
laws were both valid, as can often be the case with a concurrent should be protected. The Franklin was included as one such
power? This situation arose in Commonwealth v Tasmania [1983] area. Now there was a state law allowing the construction
HCA 21, known more commonly as the Tasmanian Dam case. of the dam and a federal law which demanded that it be
stopped. The case went to the High Court.
Tasmania wanted to build a hydroelectric dam on the
Franklin and Gordon river system. A group of environmentalists There are seven judges on the full bench of the High Court.
began a protest campaign against this proposal and the In a 4–3 decision, the court ruled that the federal government
Wilderness Society and the Australian Conservation Foundation was validly using the external affairs power of the Constitution
got actively involved. Nationwide protests were organised (s 51(xxix)), which gives it the authority to legislate on any matter
under the ‘No Dams’ slogan, and a range of high-profile of ‘international concern’. Although Tasmania had argued that
personalities took up the cause. the construction of the dam and the regulation of that area of
the state were purely internal or domestic affairs, the High Court
Tasmania refused to budge. The Tasmanian government
held that the Commonwealth had the power to make laws with
argued that the building of the dam was a residual power and
respect to international obligations that also govern conduct
the protesters, while entitled to their view, were not going to
within Australia. Under s 109, the federal law would override
change Tasmania’s decision. In the lead-up to the 1983 federal
the state law. Section 109 states that ‘when a law of a State is
election, the leader of the Australian Labor Party promised to
inconsistent with a law of the Common wealth, the latter shall
stop the dam if elected. Labor won the election, but Tasmania
prevail, and the former shall, to the extent of the inconsistency,
continued to build the dam.
be invalid’. The construction of the dam was stopped and the
Figure 2.12 There were numerous street marches protesting against Franklin River was ultimately preserved for future generations.
the construction of the Franklin Dam.

PART I
Case Space
Amending the Australian Constitution
The law and the legal system must be dynamic to be and Torres Strait Islanders. This ensured consistency of laws,
effective. Mechanisms must be in place to change ineffective, as some states had discriminatory laws and were reluctant

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

international matters involving Australia; interpreted by the High Court
to mean that when the Commonwealth signs an international treaty
or convention it has the authority to enact laws to give effect to this
international law within Australia
bipartisan having the support of the two major political parties Figure 2.13 In 1967, Australia voted ‘yes’ to allow the government to make
laws concerning Indigenous people.

Review 2.3
1 Define the term ‘constitution’. c Outline the process by which the federal government
2 Use examples to outline the constitutional division of could construct a rail line from Brisbane to Melbourne.
power. In your answer distinguish between: Refer to ss 51(xxxii), (xxxiii) and (xxxiv).
a legislative powers d What part of the Constitution reproduced here has

been altered by a referendum? Explain the impact of
b enumerated powers
this amendment.
c concurrent powers
e Explain s 51 (xxxvii) in your own words.
d exclusive powers
4 Write a summary of Commonwealth v Tasmania [1983] HCA
e residual powers.
21 using the following headings:
3 Study the extract of s 51 and answer the following
a facts
questions:
b issue
a Under what section of the Constitution can the federal
c judgment.
government legislate with respect to imports and
exports? Explain your answer. 5 With specific reference to s 128, outline why it is so difficult
to alter the Australian Constitution, even if more than 50 per
b With specific reference to ss 51(xxi) and (xxii), outline
cent of voters want the proposed change.
the grounds on which de facto relationships are
considered residual powers. Explain why these
relationships were not covered in the Constitution
by our ‘founding fathers’.
Separation of powers chapters of the Constitution are set out in accordance with the
doctrine:
The separation of powers doctrine was developed by the 18th- ➥ Chapter I – The Parliament (ss 1 to 60)
century French political philosopher, Charles de Secondat ➥ Chapter II – The Executive (ss 61 to 70)
Montesquieu. He believed that the civil liberties of the public were ➥ Chapter III – The Judicature (ss 71 to 80)
at risk if the key organs of government were controlled by one In theory Australia has adopted the doctrine of the separation of
person or group. powers. However, because some members of the executive are
Montesquieu identified these key organs of government as: members of the legislature – that is, the ministers and the prime
➥ the legislature – the law-makers (in Australia this is the minister are members of both the executive and the legislature
parliament: the House of Representatives and the Senate) – the separation of powers does not exist in its pure form in
➥ the executive – the ministers and government departments Australia.
who administer the laws made by parliament (in Australia The key feature of the separation of powers in Australia is that
the Governor-General, the prime minister and Cabinet are there is a clear distinction between the judiciary and the other
members of the executive) arms of government. For a true democracy to operate and in the
➥ the judiciary – the courts which interpret and apply the law. interests of justice, it is imperative that there be no overlap between
If one person or group controls all three organs or arms of the judicial and non-judicial arms of government. Protecting the
government, then he, she or it has unfettered power and the risk independence of the judiciary is one of the cornerstones of our
of dictatorship is very real. If the three arms are independent, each democracy. This becomes evident when a court makes a decision
acts as a check on the others, ensuring that no branch abuses its that is not in accordance with government policy.
power and that civil liberties are protected.
civil liberties basic individual rights, such as freedom of speech and
Australia’s founders certainly wanted the doctrine of the
religion, which are protected by law
separation of powers to apply upon federation. The first three

PART I
Role of the High Court High Court jurisdiction
The High Court has both original and appellate jurisdiction. The
Chapter III of the Australian Constitution is titled ‘The Judicature’ and original jurisdiction of the High Court is outlined in ss 75 and 76:
it is within this chapter that the judicial system of the Commonwealth Section 75
is created. Section 71 creates the High Court of Australia and specifies In all matters –

that it must contain one Chief Justice and at least two other judges. (i) arising under any treaty;
In September 2008, Robert Shenton French was appointed the 12th (ii) affecting consuls or other representatives of other
Chief Justice of the High Court. Justice Virginia Bell was appointed in countries;
February 2009 and Justice Heydon is due to retire in 2013. (iii) in which the Commonwealth, or a person suing or being
The first sitting of the High Court was on 6 October 1903, with sued on behalf of the Commonwealth, is a party;
three judges. In 1906 the number of judges was increased to five (iv) between States, or between residents of different States, or
and in 1912 the number of judges was further increased to its between a State and a resident of another State;
current number, seven. (v) in which a writ of mandamus or prohibition or
Section 71 also allows the Commonwealth Parliament to create an injunction is sought against an officer of the
other courts. Over time, parliament has created the Federal Court, Commonwealth; the High Court shall have original
the Family Court and the Federal Magistrates Court, which all come jurisdiction.
under federal jurisdiction. Section 76
Section 72 outlines how High Court judges are appointed, and The Parliament may make laws conferring original jurisdiction
as a result of a successful referendum in 1977, specifies that they on the High Court in any matter –
must retire when they reach the age of 70. Most High Court judges (i) arising under this Constitution, or involving its
come from the bench of the state Supreme Courts or the Federal interpretation;
Court. They are chosen by the ‘Governor-General in Council’, which (ii) arising under any laws made by the Parliament;
essentially means they are chosen by the government of the day. (iii) of Admiralty and maritime jurisdiction;
While most sittings are in Canberra, cases can be heard in the other (iv) relating to the same subject matter claimed under the laws
capital cities and even by video link if it is warranted. of different States.
Cases that come under original jurisdiction begin in the High Court
Review 2.4 itself. Matters relating to the interpretation of the Constitution fall
under s 76(i), and this role of the High Court has, at times, had an
1 Distinguish between the three ‘arms’ of government. enormous influence on determining the division of power between
2 Explain how the separation of powers operates in Australia. the states and the Commonwealth.
3 Outline the significance of the separation of powers for
original jurisdiction the ability or power of a court to hear a case in the
the functioning of a democracy.
first instance
Research 2.1 mandamus a court order compelling a government official or

organisation to perform a particular task
1 Investigate the concept of mandatory sentencing
and discuss how this may come into conflict with the
independence of the judiciary when determining prohibition a court order that forbids a lower level court from hearing or
punishments. taking further action in a case or matter
2 Compare and contrast the operation of the separation

of powers in Australia with its operation in either France
injunction a court order requiring an individual or organisation to
or the United States.
perform, or (more commonly) not to perform a particular action

Figure 2.14 The High Court makes statements on how each level of government can use its powers, and outlines any limits on these powers.
As community conditions, standards and attitudes evolve, interpretation of the Constitution involves stipulating what areas
they should be reflected in the views expressed by the judiciary. the Commonwealth can legislate on and what areas belong to
This is another way in which the law maintains its relevance and the states. In association with such decisions, the High Court
effectiveness. makes statements on how each level of government can use its
When a case concerning the interpretation of the Constitution powers and outlines any limits on such powers. For example, in
comes before the High Court, all seven judges hear and decide the Tasmanian Dam case, the High Court said in obiter dicta that
the matter. This ensures a final decision, even though decisions the Commonwealth can only use the external affairs power when
need not be unanimous. The High Court is the highest court in entering legitimate international treaties or conventions. In other
the Australian judicial system and, since 1986, there are no other words, the Commonwealth government could not enter a treaty
avenues of appeal available. The Australia Act 1986 (Cth) severed with another country simply to gain legitimacy to override a state
the judicial link with England; appeals from the Australian judicial law that it disagreed with. Initially High Court decisions favoured
system no longer go to the Privy Council in England for final the states but, over time, a broader approach to interpreting the
determination. Constitution has seen a shift in the legislative balance between
the states and the Commonwealth. The following cases are
examples of the High Court exercising its original jurisdiction to
The influence of the High Court: interpret the Constitution.
Interpreting the Constitution
South Australia v Commonwealth (‘First
While the High Court has various roles, such as determining
Uniform Tax case’) [1942] HCA 14
whether a particular body has the jurisdiction to exercise judicial
power, one of its fundamental duties is to interpret disputes Section (ii) of the Constitution clearly gives the Commonwealth the
concerning the Constitution. Invariably, the High Court’s legislative power to collect taxes. This was considered a concurrent

PART I
power, so both the Commonwealth and the states were collecting
income taxes until 1942. As a wartime emergency measure, federal
laws were introduced which effectively made the Commonwealth
the only level of government able to collect income taxes. In return,
the Commonwealth agreed to return to the states a grant of money
about equal to what they could no longer collect as income tax.

These grants are under s 96, which states that ‘the Parliament
may grant financial assistance to any state on such terms and
conditions as the Parliament thinks fit’. The states believed the new
law would not only deny them financial independence, but would
allow the Commonwealth to dictate how they spent these grants.
The states did not like this proposal, as it would make them
reliant on the Commonwealth for the bulk of their revenue.
The states went to the High Court, claiming the new law was
aimed primarily at denying them the right to collect income tax
and thus reducing their fiscal independence. The High Court
ruled that this was irrelevant; the proposed law was constitutional Figure 2.15 Fraser Island, situated off the south-east coast of Queensland,
and therefore valid. is now World Heritage listed.
fiscal relating to government financial matters

R v Brislan; Ex parte Williams [1935] HCA 78
Dulcie Williams was convicted of operating an appliance for the
purpose of receiving messages by ‘wireless telegraphy’ without
Murphyores v The Commonwealth
proper authorisation. Dulcie was using a ‘wireless broadcasting
(‘Fraser Island case’) [1976] HCA 20 receiving set’ (that is, a radio). In the appeal, it was claimed that the
Murphyores extracted certain minerals from sands on Fraser Island Commonwealth had acted ultra vires by charging her under the
under a lease granted by the Queensland government. Such a Wireless Telegraphy Act 1905 (Cth), as the section under which she
lease was certainly constitutionally valid, and the environmental was charged does not extend to radio sets, and, if it did, it was invalid,
consequences were also a state concern. because s 51(v) of the Constitution covers ‘postal, telegraphic,
The Commonwealth government disagreed with the project, telephonic and other like services’, but not broadcasting.
partly on environmental grounds, but had no constitutional power The High Court ruled that ‘upon its true interpretation’
to simply shut down the operations on Fraser Island. Instead it the Commonwealth is able to legislate in respect of any such
relied on one of its legislative powers – specifically s 51(i), over trade broadcasting services. Consequently, it has been accepted that the
and commerce – to prohibit export of the minerals. Murphyores Commonwealth has the constitutional power to make laws with
relied on those exports for its financial viability, but under s 112 respect to new developments in communications technology, such
of the Customs Act 1901 (Cth), the Commonwealth could prohibit as television and the internet.
the export of any goods from Australia, either absolutely or unless
certain conditions were complied with. R ‘R’ at the beginning of a case ex parte (Latin) ‘from one side’;
name refers to Regina (Latin in a case this means the other side
Murphyores went to the High Court, arguing that the
for ‘Queen’). Since Australia is is absent or unrepresented
Commonwealth had acted outside its constitutional power, but the a constitutional monarchy this
High Court noted that, while the effect of the use of s 51 may well be refers to our head of state, on
whose behalf the prosecution
to override a traditional state power, the Commonwealth was within case is run. When the head of
its rights to prohibit the export of the minerals. The motivation for state is a male, as was the case in
1935, the ‘R’ stands for Rex, which
the Commonwealth’s use of the power – such as concern about the
is Latin for ‘King’.
environmental effects – was irrelevant.

Research 2.2 Research 2.3
Divide the class into pairs and choose one month from the 1 Read Heather Osland’s story, in her own words,
current year. Go to the summary of High Court decisions by following the link at www.cambridge.edu.au/
for each year as outlined in the monthly ‘bulletins’ on the prelegal3weblinks.
Australasian Legal Information Institute (refer to www. 2 Conduct research using the internet, then compare and
cambridge.edu.au/prelegal3weblinks for link). The group is contrast Said Morgan’s case with Heather Osland’s.
to prepare a slide presentation that outlines:
➥ A case ‘handed down’ – brief overview of the facts
of the case and the decision
➥ What the term ‘case reserved’ means Judicial review
➥ What the term ‘original jurisdiction’ means
➥ A case for which ‘special leave has been granted’, The system of judicial review involves review of the actions of a
and explain what this means. government official or department by a court of law. Generally the
system involves investigating the legality of a decision or action.
The High Court exercises judicial review whenever it makes a
Appeals to the High Court from decision about whether a particular law is constitutionally valid or
not. It has almost unlimited jurisdiction to review Commonwealth
lower courts administrative decisions.
The Federal Court undertakes most judicial reviews by applying
Section 73 outlines the appellate jurisdiction of the High Court.
the Administrative Decisions (Judicial Review) Act 1977 (Cth). It is
It stipulates that the High Court has jurisdiction to ‘hear and
important to understand that this Act applies strict rules and does
determine all judgements’ from any cases emanating from:
not give the Federal Court the power to review a decision on its
➥ the High Court exercising its original jurisdiction
merits. Appeals can go to the High Court, by leave.
➥ any Federal Court exercising federal jurisdiction
A far more effective and efficient way for individuals to appeal
➥ the Supreme Court of any state.
the decision of a government official or body is through non-judicial
Section 73 also states that ‘the judgement of the High Court in all
review of administrative action in the Administrative Appeals
such cases shall be final and conclusive’. Currently, all appeal cases
Tribunal, which has jurisdiction to review the merits. Courts other
must be granted special leave before the case will be heard by the
than federal courts may also review decisions on the merits, if they
High Court. Chapter 4 of the High Court Rules 2004, which became
have statutory authority to do so.
effective on 1 January 2005, deals with the practice and procedure
Generally, judicial review involves the court with appropriate
of the High Court in its appellate jurisdiction.
jurisdiction investigating whether a government official or
Generally, appeals relate to questions of law, or a matter that
department has acted ultra vires, or whether he, she or it has
is of such significance as to warrant the attention of the High Court,
followed the rules of natural justice (procedural fairness). These
or a dispute between the opinions of various courts that requires
concepts are covered in the HSC course.
a final adjudication. The workload of the High Court has built up
over the decades and there are numerous examples of the High
merits review analysis of the facts presented in a case, and often the
Court deciding matters in its appellate jurisdiction. One of the
policy choices that led to the decision
more famous cases is Osland v R, a 1998 appeal from the Victorian
Supreme Court.
natural justice the body of principles used to ensure the fairness and
special leave where the High question of law a disputed legal justice of the decision-making procedures of courts; in Australia it
Court grants approval for the case contention that is left for the generally refers to the right to present your case, the right to freedom
to come before it in its appellate judge to decide (e.g. whether from bias by decision-makers, and the right to a decision based on
jurisdiction certain evidence is admissible) relevant evidence

PART I
Case Space
Osland v R [1998] HCA 75
On 30 July 1991 Heather Osland and her son David Albion Justice Kirby noted that the raising of battered partner

planned to get Frank Osland (Heather’s husband and David’s syndrome ‘does not raise a protective cloak over an accused
stepfather) out of their lives. They first dug a grave, then charged with murder’. Heather Osland spent nine-and-a-half
drugged Frank by putting sedatives in his evening meal to years in prison. She was released in July 2005 but sought a
induce sleep. David Albion carried the plan to finality after formal pardon from the Governor of Victoria, in an attempt
Frank went to bed by fatally hitting him over the head with an to clear her name. When the pardon was refused, she sought
iron pipe in the presence of Heather. Later, David and Heather access to documents outlining the reasons why. In 2008,
buried Frank in the grave they had earlier prepared. Heather Osland stated: ‘Domestic violence is a big issue today,
David and Heather did not deny digging the ‘hole’ (as they but in my day it was locked in a cupboard.’
called it) or giving Frank the sedatives. They also did not deny
that David delivered the fatal blow or that they buried Frank in
the ‘hole’. Heather reported Frank as a missing person. It wasn’t
until January 1995 that the pair were charged with murder.
Both David and Heather relied on self-defence and
provocation to account for their actions. The defence provided
detailed evidence of extreme violent behaviour by Frank over
the years, and its escalation in the days preceding his death.
David and Heather believed there would be dire consequences
for them if Frank realised he had been drugged. Initially David
was acquitted and Heather was convicted of murder and
sentenced to 14 years’ imprisonment. Heather appealed this
decision on a range of grounds, including the conduct of the
trial, criminal complicity, evidence issues and causation issues.
The High Court also dealt with the issue of ‘battered woman
syndrome’ (BWS) for the first time in Australia. The High Court
confirmed its admissibility into evidence if it ‘related to the
particular facts of the case’. The High Court specified that BWS
was not a new discrete defence but was applicable in Australia
where ‘expert evidence is received to describe common
features of the conduct in abusive relationships and where
provocation and self defence are put in issue’.
The point was made, obiter dictum, that abusive
relationships are not gender-specific. As a result of this
ruling, ‘battered partner syndrome’ was accepted into
the fabric of the criminal justice system; that is, victims
in such relationships could use it where the facts did not
Figure 2.16 Changing social attitudes should be reflected in High
allow them to rely solely on provocation or self-defence.
Court rulings. Domestic violence is no longer a ‘hidden crime’, and
Ironically, the High Court ruled that it did not apply in more just outcomes are now possible, depending on the facts of
Osland’s case. the case.

2.6 Aboriginal and Torres and Torres Strait Islander peoples, land is sacred and cannot be
owned. Instead people are custodians of the land, looking after it
Strait Islander peoples’ for future generations. This collective guardianship is a key feature
customary laws of customary law. However, the lack of tangible ownership is one
reason why the British people felt that they could settle and impose
The Indigenous cultures of Australia are the oldest living cultures in British property law in Australia. The British considered Australia
the world. Over time, Indigenous peoples have been influenced by to be an unoccupied land, as they could not see any signs of
other peoples, both those who came to Australia to stay and those ownership, such as fences and signs. The term that they used for
who visited Australia for trade or other reasons, but did not stay. this is ‘terra nullius’, a Latin expression meaning ‘empty land’.
Indigenous peoples also traded among themselves and exchanged Although today federal and state legislation and the common
ideas, songs and dances. These exchanges often took place at large law govern Australia, many Indigenous people still follow their own
ceremonial gatherings where many people came together. The customary law as well.
gatherings often occurred at a time and place when there were
customary law principles and procedures that have developed through
plenty of particular foods.
general usage according to the customs of a people or nation, or groups
Like all cultures, Indigenous Australian cultures have changed of nations
and developed over time. Colonisation of Australia brought rapid
changes to Indigenous society and dramatically affected the land
terra nullius (Latin) ‘land belonging to no one’; the idea that when the
and the way people lived.
first Europeans came to Australia the land was owned by no one and thus
Prior to European settlement, only Indigenous people was open to settlement. It has been judged legally invalid.
populated Australia. When the First Fleet sailed into Sydney
Harbour in 1788, Aboriginal people inhabited the whole of
Australia and Torres Strait Islanders lived on the islands between The spiritual nature of Indigenous
Australia and what is now Papua New Guinea. Australia had customary law
many different Aboriginal and Torres Strait Islander communities,
speaking different languages and with various cultural beliefs, The Dreaming is the basis of much Aboriginal and Torres Strait
practices and traditions. It was very much a hunter-gatherer Islander law. The Dreaming is the history of Aboriginal and
lifestyle, and one in which gender played a role: men hunted Torres Strait Islander peoples; their creation and teaching stories.
the large animals such as kangaroos, emus and turtles, and the It explains how the land, animals, plants and sky were created and
women and children hunted smaller animals and collected fruits, has a very strong religious element.
berries and other plants. On the coast, people relied on catching Due to the secrecy that covers many of the traditional laws,
fish and many types of shellfish. Not all Indigenous peoples were and the cultural role played by oral history in contrast to written
nomadic; in many cases, groups would stay in an area only for documentation, it is hard to describe these laws and their links to
a certain period of time because of seasonal variations and the the Dreamtime. In addition, laws will differ from community to
availability of food. community.
There is no single system of Aboriginal and Torres Strait However, it can be agreed that law and religion are very closely
Islander law. The separate Indigenous nations developed their related, and that many laws have evolved from the Dreamtime
own laws, but there were also common aspects among groups. All and are concerned with the treatment of the land and those who
of these laws are spiritually based and closely linked to the land. live on it.
Aboriginal and Torres Strait Islander law is based on tradition, Since 1788, many Indigenous people have lived under two
ritual and socially acceptable conduct. For this reason it is known legal systems, the common law system deriving from Britain and
as ‘customary law’. Indigenous customary law. As more than two-thirds of Aboriginal
A main difference between Aboriginal and Torres Strait Islander and Torres Strait Islanders live in remote areas, they are more likely
customary law and the British legal tradition can be seen in the to use customary law to settle a dispute.
area of land ownership. The right to possess property is a key
The Dreaming the source of Indigenous Australian customary law
principle of English and European law. However, to many Aboriginal

PART I
Figure 2.17 Aboriginal rock paintings
Diversity of Indigenous societies Indigenous peoples and has developed over many thousands of
years. Most laws relate to marriage, child-rearing, religion, family
Aboriginal and Torres Strait Islander law is tribal and different and kinship. Customary laws have been passed from generation
groups have their own variations of customary law. Australia is a to generation by word of mouth and through ritual. Stories, songs
large land mass and, as a result, different languages and modes and dances are used to help people remember the laws of their
of conduct developed. However, the similarities in customary law group. Different people in the group know different laws. For
outweigh the differences. example, women have knowledge of some laws that they pass on
For example, under traditional law, the majority of Indigenous to girls at a certain age.
communities will generally see that disputes are not restricted to During ceremonial meetings at communal gathering
individuals. The resolution of the dispute, involving negotiation, places, laws are passed on by, and to, the appropriate people
mediation and conciliation, will involve everyone in the community. and reinforced often through dance and storytelling. Many
There are also offences that are not recognised by non-customary of these ceremonies are sacred and people from outside the
law but are punishable under traditional law. Examples include community are not permitted to participate or watch. The
insulting an elder and the singing of sacred songs in public. These stories have been handed down for thousands of years and
are offences in most Indigenous societies, regardless of where they explain things such as the creation of all things, why things
are located in Australia. happen, tribal boundaries, family relationships, cultural practices
and forbidden acts.
Ritual and oral traditions within kinship family relationships, including all extended family relationships;
Indigenous societies an important part of Indigenous cultures and values, which dictate how all
people in the group behave towards each other
Aboriginal and Torres Strait Islander law is part of everyday life.

The law is an integral part of the values, customs and ethics of

Dispute resolution within Punishments range from ridicule and shaming to exile, spearing
or death. Punishment by death is much less frequent today than
Indigenous societies in the past, possibly because of conflict with Australian law. The
justification for physical punishments such as spearings or beatings
When customary laws are broken or disputes arise within
is sometimes expressed as to ‘restore balance’ for the parties and
traditional Indigenous groups, the family and the community
their families.
are involved. Discussions or meetings, rather than formal judicial
processes, would be held during ceremonial times. Elders and sanction a penalty imposed on those who break the law, usually in the
influential members of the community might meet with the form of a fine or punishment
people in conflict and use discussion and dialogue in an attempt
to settle the dispute.
Relationships and their maintenance are very important in The significance of land and bodies
Aboriginal and Torres Strait Islander communities. It is through of water to Indigenous societies
these relationships that people are able to pass on and follow
traditional laws. As a result, mediation has an important role in The idea of individual land ownership is alien to Aboriginal and
dispute resolution. Torres Strait Islander thought. Being a member of a group means
that a person is able to live on and use the resources of certain lands.
elders older men and women of recognised wisdom and authority, who Thus, the land belongs to the group and loss of this land means
are the keepers of traditional knowledge within Indigenous communities;
losing the group’s culture and history. In the same way, Aboriginal
they are responsible for such things as initiations and the handing down of
punishments when community laws are broken and Torres Strait Islander people have links with the sea, lakes, rivers
and all bodies of water. These are not owned by individuals, but are
cared for by the group under customary law.
mediation a form of alternative dispute resolution designed to help Each group has distinct responsibilities governing the way that
two (or more) parties, in the presence of a neutral third party, to reach
they look after their land and bodies of water. These responsibilities
an agreement
are tied into their traditional laws and the stories and rituals
that pass on these laws and responsibilities. Failure to follow the
Enforcement and sanction within traditional laws can be seen as a failure to show respect for the land
Indigenous societies and traditional values.
It is expected that everyone in the community will follow and The relevance of customary
reinforce the traditional laws. In traditional societies, order is law today
maintained through self-regulation and consensus among family
heads. Elders play an important role in guiding decisions related to In the past twenty years there has been greater legal recognition
enforcing the law, intervening as necessary. of Aboriginal and Torres Strait Islanders’ rights as the traditional
Offences under traditional law may be breaches of sacred landholders of Australia. Many aspects of customary law can be
law or offences against other persons or property. The boundary seen embodied in Australian law today. The practice of sustainable
between these categories is not always clear. Where sacred development, for example, is the basis for current environmental
law has been broken, elders are often directly involved in laws. Conciliation and mediation are increasingly used to resolve
applying sanctions. disputes in criminal, consumer and employment law.
Sanctions vary from place to place. The relatives of the Customary laws are also sometimes taken into account when
wronged party, ceremonial leaders, or both may be involved in an Aboriginal or Torres Strait Islander is charged with a crime. For
the punishment, the form of which may be determined through example, where an act has been done because Aboriginal customary
negotiations and/or kinship relationships. For the most serious law requires it, but the act amounts to an offence under Australian
offences, elders may need to ensure that the punishment is law, this may be raised in mitigation of the offence. Evidence that a
appropriately carried out and restraint is exercised. criminal offence was provoked by the victim’s breaking customary

PART I
Figure 2.18 This map is just one representation of Aboriginal Australia. Using published resources available between 1988 and 1994, this map attempts
to represent all the language or tribal or nation groups of the Indigenous peoples of Australia. It indicates only the general location of larger groupings
of people, which may include smaller groups such as clans, dialects or individual languages in a group. Boundaries are not intended to be exact. This map
is NOT SUITABLE FOR USE IN NATIVE TITLE AND OTHER LAND CLAIMS. David R Horton, creator, © Aboriginal Studies Press, AIATSIS and Auslig/Sinclair,
Knight, Merz, 1996.
law may also be a mitigating factor, and evidence that an offender

is to receive traditional punishment may be submitted in mitigation
of a sentence.
In some places where there are a large number of people living
a traditional lifestyle, elders will be consulted by those involved in
maintaining and enforcing the law.
However, there is much debate about the role of customary law
in prosecuting, defending and punishing offenders, and those in
the legal system are always wary of being accused of unfairness if
everyone is not treated equally by the law. As a result, legislatures
have been reluctant to formally incorporate customary laws into
Australian law.
mitigation making the severity of an offence or a sentence milder or

less severe Figure 2.19 In Indigenous societies, land belongs to a group, not
to individuals.

2.7 International law
States and sovereignty: The
differences between domestic
and international law
Each country has laws for its own people, known as domestic law.
A country can do this because it is an autonomous (independent)
state that has sovereignty.
A state, in the legal sense, is an independent entity that is
Figure 2.20 Local Aboriginal people sign agreement with a mining
company for the rights to mine in the area, October 1987
recognised by other states on an international basis. In order to
be a state, a place must have:
➥ a defined territory
Review 2.5 ➥ a permanent population

➥ an effective government
1 Describe the importance of tradition in Aboriginal and ➥ the capacity to enter into international negotiations.
Torres Strait Islander customary law. Sovereignty means that the state has the authority to make rules
2 Explain the different relationships that Europeans and for its population and the power to enforce these rules. The term
Aboriginal and Torres Strait Islanders have with the land. ‘state’ can refer to a political division within a federation, such as
3 Why is it not possible to refer to a uniform Aboriginal New South Wales or Tasmania, or (in an international context) to an
and Torres Strait Islander customary law? autonomous state.
4 What do the laws of Indigenous Australian peoples have International law governs the relationships between states.
in common? International law enables states to participate in trade and
5 Identify some ways in which customary law is relevant commerce and provides mechanisms for the maintenance of peace
to the Australian contemporary legal system. and security and the reduction of conflict. International law also
covers fundamental human rights, making it illegal to do such
things as torture political prisoners or commit genocide.
One of the main criticisms of international law is that it lacks
Research 2.4 the power to enforce that law. There are many examples around
Visit The Dreaming section of the Australian government the world of states breaching international law, especially in
website (refer to www.cambridge.edu.au/prelegal3weblinks the area of human rights. International law could not prevent
for link) and complete the following activities: genocide in Rwanda in the 1990s and has not prevented crimes
1 Explain the importance of the Dreaming to Aboriginal against humanity committed in the Darfur region of Sudan since
and Torres Strait Islander peoples. 2003 or those of the Syrian civil war (continuing at the time
2 Identify how Dreaming stories are passed on through of writing).
generations. In this sense, international law is different from domestic
3 Who has custody of these stories? law. States are powerful entities and to force a state to take a
4 Discuss why many of these stories are called ‘sacred’ particular course of action can have far-reaching implications for
and ‘secret’. the international community. As a result international law relies

on countries consenting to cooperate in the enforcement of
5 Look at the list of stories and their summaries and
distinguish the common themes of many of these stories. these laws.
A further point of difference is that law is adhered to not simply
6 Choose a story and briefly tell what it is about.
because it can be enforced, but because it is generally accepted

PART I
by the whole community. As the world is made up of diverse Most of the laws prohibiting crimes against humanity originated
cultures with different values, not all countries will agree with all as customary international law. Important examples include the
international laws and may ignore a law if they feel that it is not in condemnation of slavery and genocide.
their national interest to do so.
opinio juris sive necessitatis (Latin) ‘opinion that an act is necessary by
However, states are interdependent in many ways, and
rule of law’: the principle that for the practice of a state to be customary
the recognition of this world community provides one of the

international law, the state must believe that international law requires it
motivations for following international law.
domestic law the law of a state

Treaties and declarations
Treaties are the most commonly used source of international law.
Sources of international law According to the Vienna Convention on the Law of Treaties (1969),
a treaty is an international agreement concluded between states
in written form and governed by the guidelines of international
The main sources of international law are customs, treaties, legal
law. Another way of looking at it is that a treaty is an agreement
decisions and legal writings.
between legal equals and may cover any sphere of international
relations between the parties.
Customary international law Treaties can be either:
Customary international law is not contained within a written ➥ bilateral – between two nations, for example the Agreement
document. Instead it is based on long-established traditions or between the Republic of Indonesia and Australia on the Framework
common practices followed by many states to the point that they for Security Cooperation (the ‘Lombok Treaty’), concerning their
are accepted as being fair and right by the international community. common security and respective national security; or
For example, customary international law regulating war had ➥ multilateral – between many states, for example the Charter of
been in existence for a long time before the Hague and Geneva the United Nations, which established the United Nations (UN)
Conventions explicitly outlined rules governing the conduct of and its organs and agencies. Each country that is a signatory to
states in conflict, such as the manner in which prisoners of war and this treaty has a seat in the General Assembly and participates
civilians were to be treated. in UN processes.
This form of international law develops over time, as it requires The more states that sign a treaty, the more powerful that treaty
‘constant and uniform’ practice of states in order to be accepted as will be. Treaties are used to make specific laws and to control
law. It should be noted that even if there is constant and uniform conduct and cooperation between and within states. A treaty
practice, it is still not considered law unless the states accept that the may also establish an international organisation, for example the
practice is binding upon them. This principle is termed opinio juris Rome Statute of the International Criminal Court. There is no set
sive necessitatis (shortened to opinio juris). way of making a treaty, but most treaties are made through direct
Critics of customary international law point out that it can be negotiations between states. If all parties involved agree, the treaty
difficult to establish that it exists, and the time lag involved in its will be signed. A document will only become a treaty if all parties
being accepted as law has rendered it secondary to treaties and have the intention of being bound by its provisions and obligations
conventions as a source of international obligations. The number at the time of signing. The treaty only becomes binding on a state
of nations in existence since the end of the First World War has when that state ratifies it – that is, confirms that it intends to be
also grown considerably, so getting consensus has become more bound by the conditions placed on it by the treaty.
problematic. In addition, the rate of change in the world today For some countries, such as France, treaties that the country
is rapid and at times requires a more immediate response. For has ratified automatically become part of the domestic law. Other
example, what is the most effective means of limiting damage from countries require domestic legislation to be passed in order for the
the economic crisis of 2008? Would customary law or treaties be the treaty to be implemented into their law. In other cases, whether
more appropriate way of regulating global financial markets? domestic legislation is required will depend on the type of treaty.

treaty an international agreement concluded between states in written
form and governed by the guidelines of international law; treaties may
also be referred to as conventions or covenants
ratify to formally confirm that the country intends to be bound by

the treaty
declarations formal statements of a party’s position on a particular issue.

Declarations are not legally binding under international law
Case Study
Child executions
There are still a handful of countries in the world today that
execute offenders for crimes committed when they were
under the age of 18.
It is evident that child executions breach international
treaties. Article 6 of the International Covenant on Civil and
Political Rights (ICCPR) states that ‘sentence of death shall
not be imposed for crimes committed by persons below
eighteen years of age’. Article 37 of the Convention on the
Figure 2.21 The International Criminal Court in The Hague, Rights of the Child (CROC) provides that ‘neither capital
the Netherlands
punishment nor life imprisonment without possibility
Declarations are also international instruments, but they differ of release shall be imposed for offences committed by
from treaties. Declarations state and clarify the parties’ position on persons below eighteen years of age’.
particular issues, but do not impose legally binding provisions that In Roper v Simmons, 543 US 551 (2005), the US Supreme
must be followed. A famous example is the Universal Declaration Court held that executing offenders who were minors
of Human Rights. The United Nations Commission on Human when they committed the crime violates the Eighth
Rights was established, following the Second World War and the Amendment, which prohibits ‘cruel and unusual
Holocaust, to draft the declaration – the first universal statement on punishments’. The court found that standards of
decency had evolved since 1989, when it had ruled
the basic principles of human rights. Among its chief purposes was
that the execution of 16- and 17-year-old offenders was
to define the meaning of the words ‘fundamental freedoms’ and
constitutional. There was now a national consensus that
‘human rights’, which appear in the UN Charter.
death is disproportionate punishment for juveniles. In
In 1948 the declaration was ratified by a proclamation by the
addition to state legislation and practice, the court had
United Nations General Assembly. Forty-eight countries voted in
also considered international trends.
favour of it, with none voting against it and only eight abstaining.
Bodies including the Inter-American Commission on
The declaration is the foundation for two binding UN human rights
Human Rights and Amnesty International believe that ‘the
covenants: the International Covenant on Civil and Political Rights
exclusion of child offenders from the death penalty is now
(ICCPR) and the International Covenant on Economic, Social so widely accepted in law and practice that it has become
and Cultural Rights (ICESCR). Its principles are contained in other a rule of customary international law’.
treaties as well.

PART I
Legal decisions Antarctic Treaty System, the International Convention for the
Regulation of Whaling (1946) and two other treaties. Although
The International Court of Justice (ICJ), which is part of the United
commercial whaling has been prohibited since 1986 for all
Nations, is the judicial body that deals with disputes between
members of the International Whaling Commission, Japan has
states. Many treaties designate the ICJ as the means of resolving
relied on an exemption in the whaling treaty that permits killing
disputes that arise under the treaty.
whales for scientific research.

Stare decisis (or precedent) does not apply to decisions of the
ICJ. According to Article 59 of the Statute of the International Court
of Justice, a decision of this court only binds the parties to the 2.8 International
particular dispute. However, the court considers past rulings in organisations
its decisions, and ICJ decisions may help to shape the content
of treaties.
The United Nations
There are other international courts and tribunals whose
judgements contribute to establishing international law. The
The United Nations (UN) is the chief organisation involved in
International Criminal Court (ICC) and the European Court of
international law. It was established in 1945 by the Charter of the
Human Rights (ECHR) are two examples. The ICC was set up to
United Nations. At its first meetings, 51 countries were represented;
prosecute the most serious crimes concerning the worldwide
community; the ECHR is a regional court that rules on violations
of the European Convention on Human Rights. Specialised courts
have also been set up for particular purposes and timeframes,
such as to deal with war crimes committed during a specific
conflict. Examples of this type of court are the International
Criminal Tribunal for the Former Yugoslavia and the International
Criminal Tribunal for Rwanda.
United Nations a world organisation dedicated to world peace and the

sovereignty and equality of all its members
Legal writings
Due to the changing international political landscape and the
developing nature of international law, the writings of respected
international lawyers, judges and academics have an important
part to play in guiding decision-making and treaty formation.
Along with judicial decisions, scholarly writings are mentioned in
Article 38(1)(d) of the Statute of the ICJ as a means of determining
the rules of international law. Scholarly legal writings may be
drawn upon for the purpose of interpreting treaties or determining
their application in international disputes.
Governments may also seek the advice of experts on matters
of international law. For example, in 2007 the Sydney Panel of
Independent International Legal Experts provided advice to
the Australian government on whether the legality of Japan’s
‘scientific’ whaling program could be challenged under the Figure 2.22 The UN headquarters in New York

by 2012, there were 193 members. The UN’s main objectives are to should be re-examined (this will be discussed later). As the UN has
maintain global peace and security; to develop friendly relations no powers to make states enact its resolutions into domestic law or
among states based on respect for equal rights and each state’s to follow a particular course of action, it effectiveness is very much
right to govern its own political, economic and social development; dependent on the political will of states.
and to promote cooperation in solving international problems. The main organs of the UN are discussed below.
The UN has been central to the protection of human rights and to
developing a legal framework to address terrorism, drug trafficking, The General Assembly
the clearing of landmines, and protection of the environment. It has
The General Assembly is made up of representatives from all
also been active in concrete efforts to fight disease, reduce poverty,
member states and is the main forum for multilateral discussion on
provide emergency relief in natural disasters, and many other
all international matters covered by the UN Charter. It discusses and
humanitarian operations.
makes recommendations on the operation of the UN, on conflicts
The UN’s International Law Commission is the body primarily
between states, and on practical questions regarding political
responsible for codifying and developing international law.
cooperation, human rights and international law. It appoints the
The UN General Assembly’s Legal Committee (Sixth
non-permanent members of the Security Council and oversees
Committee) receives the Commission’s reports and considers its
the UN budget. It has established a number of committees,
recommendations. It may then organise a conference to draw up
commissions and working groups for particular purposes.
a convention based on those recommendations that the member
The General Assembly meets every year and can meet more
states vote upon.
often if required.
Critics of the UN believe that reform is necessary for its continued
relevance. State sovereignty often poses a challenge to the authority
General Assembly the main body of the United Nations, made up of all of
of the UN, especially in situations involving peace and security. the member states
It has also been suggested that the structure of the Security Council
Figure 2.23 The UN General Assembly

PART I
Figure 2.24 The UN Security Council controls the UN’s peacekeeping corps.
and Russia, which had significant oil interests in Sudan, threatened

The Security Council
to veto any Security Council resolution involving economic
The Security Council is the most powerful part of the UN. It is sanctions. Resolution 1564, passed in September, disappointed
the executive of the UN and has the final say about the security many human rights groups due to the absence of stronger measures
and peacekeeping activities of the General Assembly. The Security such as an immediate oil embargo and targeted sanctions against
Council consists of five permanent members: the UK, the US, Russia, government officials. Currently, the civil war in Syria, with its loss of
China and France (countries that were victorious in the Second World life and destruction, is causing much discussion and debate, with
War). There are also 10 non-permanent members who serve for two the UN declaring the situation ‘unacceptable’. However, as yet no
years each. Australia has been a member of the Security Council five economic sanctions have been imposed, as general agreement has
times since 1945. not been reached among members.
Under the Charter of the UN, it is the Security Council that has A further criticism of the Security Council is that having been set
primary responsibility for maintaining international peace and up over 60 years ago it does not reflect a broad spectrum of cultural
security. As such it is able to investigate disputes that could lead values evident in the world today. For example, it could be argued
to conflict. It can issue economic sanctions against nation-states that the inclusion of a Muslim nation as a permanent member
to persuade them to change their policies, or to prevent or stop would make the Security Council a more representative body.
aggression. It can also send ‘peacekeeping’ troops from member The other main organs of the UN are the Economic and
states into areas where there is conflict, to separate opposing forces Social Council, the Trusteeship Council, the Secretariat and the
and to reduce tension. It may also authorise collective military International Court of Justice (discussed below).
action. Security Council resolutions require a unanimous vote of
all five permanent members of the Security Council. If one of the Security Council the arm of the United Nations responsible for
maintaining world peace and security
permanent members votes against the resolution then it is not
carried. This is called the ‘veto power’ and is considered one of the
fundamental weaknesses of the current structure of the Security
Council. For example, in 2004, the Security Council held continuing Legal Links
discussions to address the humanitarian crisis in the Darfur region For more information on these bodies follow the link
of Sudan. There, Arab militias with Sudanese government backing at www.cambridge.edu.au/prelegal3weblinks to the
were engaged in a horrific campaign of forcible relocation of certain UN website.
groups (‘ethnic cleansing’) involving rape, murder and torture. China

The International Court of Justice is an economic and political partnership of European nations that
have agreed to cooperate for the common good. It has regulatory
The International Court of Justice (ICJ) is the principal judicial
powers covering areas such as human rights, the environment,
organ of the United Nations. It was established in 1945 and its
economic policies and trade.
main functions are to settle disputes submitted to it by states
and to give advisory opinions on legal questions submitted by
Legal Links
the General Assembly, the Security Council, or other bodies as
permitted by the General Assembly. The ICJ can only hear disputes Refer to www.cambridge.edu.au/prelegal3weblinks
if the nations involved accept the jurisdiction of the court. for a link to a list of intergovernmental organisations.
There are two distinct types of cases upon which the court may
rule. The first type is legal disputes (contentious issues) between
states, on which the court produces binding rulings. The second
Non-government organisations
type is advisory proceedings, in which the General Assembly or
the Security Council requests the court’s opinion on any legal
(NGOs)
question. Other UN organs may request advisory opinions, but only
Non-government organisations (NGOs) are associations based on
with respect to their own activities. Although advisory opinions do
common interests and aims, and which have no connection with
not have to concern particular controversies between states, they
any government. They make contributions in a wide range of areas,
often do.
from world peace, disaster relief, and environmental protection
jurisdiction the powers of a court, depending on its geographic area, to promoting education and alleviating poverty. They do this by
the type of matters that can be decided, and the type of remedies that informing the public and lobbying governments to take action on
can be sought
issues of concern. Examples of international NGOs include the Red
Cross, Greenpeace and World Vision.
A well-known human rights NGO is Amnesty International. It has
Intergovernmental organisations an estimated 2.2 million members and subscribers throughout the
(IGOs) world. It is independent of any national government: that is, it does
not rely on funding from any national government. According to its
Intergovernmental organisations (IGOs) are organised groups of official site (refer to www.cambridge.edu.au/prelegal3weblinks for
states, established to pursue mutual interests in a wide variety of link), Amnesty International takes action to:
areas. Many IGOs are subsidiary agencies of the UN; others have ➥ stop violence against women
been formed to make collective decisions about international ➥ defend the rights and dignity of those trapped in poverty
issues such as refugees, tariffs or wealth. The International Labour ➥ abolish the death penalty
Organization is a UN agency whose aim is to ensure the safe and fair ➥ oppose torture and combat terror with justice
treatment of workers. ➥ free prisoners of conscience
Regional organisations also play an important role in ➥ protect the rights of refugees and migrants
international decision-making. For example, the European Union ➥ regulate the global arms trade.
Figure 2.25 The Greenpeace logo (Trademark of Stichting Greenpeace Council)

2.9 Relevance of
PART I
Review 2.6
international law 1 Explain two different ways that the term ‘state’ can
to Australian law be used.
2 Identify what is meant by the term ‘international law’.

As discussed earlier, in some countries ratification of a treaty Outline the different ways in which international law
automatically makes it part of that country’s domestic law. This is is made.
not the case in Australia. 3 Why was the United Nations established?
For some treaties, new legislation may be required to implement 4 Discuss the limitations of international law.
it in Australian law. For others, existing federal or state/territory
5 Describe the functions of the UN General Assembly.
legislation is sufficient (in other words, the terms of the convention
6 Explain the importance of the UN Security Council.
are already being satisfied by domestic law).
7 Outline the role of the International Court of Justice.
To pass new legislation implementing a treaty, the federal
Discuss its limitations.
government may rely on the external affairs power in s 51(xxix)
8 Identify some organisations that influence
of the Constitution. It may also rely on other powers, such as the
international law.
trade and commerce power in s 51(i) if the subject matter involves
shipping.
International law does not dictate the way in which Australia
implements the obligations it has under treaties. The preferred Research 2.5
method of giving effect to most treaty obligations is by
1 Go to the United Nations website (refer to link at www.
incorporating the actual text of the treaty provisions into domestic
cambridge.edu.au/prelegal3weblinks). Choose one of
legislation. For example, the Space Activities Act 1998 (Cth) contains
the issues that the UN covers (for example human rights).
provisions from several UN treaties regulating the exploration and
2 Write a report about some of the recent initiatives taken
use of outer space.
by the UN in this area.
Treaties also influence Australian law in the development of
3 Outline any problems that you see the UN facing as it
the common law, in judicial review of decisions, and in the judicial
undertakes these initiatives.
interpretation of statutes.
Examples of human rights treaties that have some of their
provisions reflected in state or territory and/or federal legislation
include: Research 2.6
➥ International Covenant on Civil and Political Rights (ICCPR) – see,
Investigate adversarial and inquisitorial legal systems. Write
for example, Human Rights Act 2004 (ACT); Charter of Human
a report that looks at the origins and workings of adversarial
Rights and Responsibilities Act 2006 (Vic)
and inquisitorial legal systems. Include a comparison of the
➥ Convention on the Rights of the Child (CROC) – see, for example,
systems, looking at the advantages and disadvantages of
Family Law Act 1975 (Cth), in particular s 67ZC
each system. You might like to look at Indonesia and recent
➥ Convention on the Elimination of All Forms of Discrimination
trials that have taken place with respect to terrorist activity
Against Women (CEDAW) – Sex Discrimination Act 1984 (Cth) and drug smuggling. Come to a conclusion about which
➥ Convention Against Torture and Other Cruel, Inhuman or system you think is better for Australia.
Degrading Treatment or Punishment (CAT) – Division 274 of the
Commonwealth Criminal Code.

Chapter summary
➔ The Australian Constitution took shape during the process ➔ Customary law still has relevance in Australia today and
of Federation. elements of it have been incorporated into dispute resolution
➔ The constitutional division of powers outlines the procedures.
responsibilities of the Commonwealth and the states by ➔ Contemporary Australian law is based on English common
reference to concurrent, exclusive and residual powers. law and has been adapted over time to suit modern Australian
➔ The High Court has the ultimate responsibility for interpreting society.
the Constitution. ➔ The Australian Constitution sets out the fundamental rules of
➔ The High Court is the final court of appeal in Australia (its Australian law, including the roles of the states, the role of the
appellate jurisdiction), but it also has original jurisdiction for federal government and the Commonwealth powers. It shows
some matters, notably constitutional law. the division of powers among these parties to make laws.
➔ The Constitution indicates how the separation of powers ➔ Parliament has the power to make changes to these laws as
operates in Australia. It is important to note that only the long as the correct processes are followed. The government in
judiciary is truly independent in Australia. power at the time will influence changes to the law.
➔ The separation of powers ensures that individual rights and ➔ The doctrine of precedent is an element of common law,
the democratic system are protected. which requires judges to follow rulings made in previous
➔ The law in Australia, prior to European settlement, was court cases, unless they are inconsistent with a higher court’s
customary law based on Aboriginal and Torres Strait Islander decision or wrong in law.
traditions, rituals and acceptable conduct. ➔ Australia is recognised internationally as a sovereign state with
the authority to make its own laws.
➔ Australia also takes part in international law-making through
its membership of the United Nations and by being a signatory
of international treaties.
Multiple-choice questions
1 Which section of the Constitution outlines the legislative 3 Australia does not follow the doctrine of the separation of
powers of the Commonwealth government? powers in its pure form because:
a s1 a Australia does not have a president
b s 73 b members of the executive and the legislature are
c s 96 completely separate
d s 128 c some members of the executive are also members of the
2 On what grounds would it be unconstitutional for a legislature
current District Court judge to be elected to the House of d Australia is still a monarchy
Representatives while remaining a judge?
a it offends the division of powers
b it offends the separation of powers
c it would be ultra vires
d it is not allowed under the referendum provisions
of s 128

PART I
4 Referring to s 51, which of the following statements is true? 7 When is a binding precedent set?

a Victoria would be able to produce its own notes and coins. a when it is established by a higher court
b Queensland is able to pass laws to allow migrants into the b when a judge has determined that the facts of a case
state to work in agriculture. are similar to another case
c New South Wales is able to legislate to legalise same-sex c when a judge accepts the advice from a judge in a
marriages. higher court
d South Australia can build a rail line along its southern d when parliament passes a law about a case
coastline. 8 What is the main purpose of equity?
5 How would the High Court decide a case where a state and a to achieve justice
the Commonwealth exercising a concurrent power come into b to achieve fairness
conflict? c to achieve equality
a it would rule in favour of the state as its law was passed first d to achieve damages
b it would apply s 109 and rule in favour of the state 9 Which of these statements about the Security Council is true?
c it would apply s 109 and rule in favour of the a it is open for all countries to join
Commonwealth b it has the authority to send armed forces into countries
d it would rule in favour of the Commonwealth because it c it must take the advice of the General Assembly on matters
must act in accordance with the Prime Minister’s wishes involving peacekeeping
6 What is common law? d it has limited powers
a parliament-made law 10 Which of these features does the adversarial system involve?
b judge-made law a the use of a jury in all court cases
c the legal principles developed in England and followed b the payment of damages to the victim of a crime
in Australia c judges collecting evidence
d law that resolves disputes between two individuals d each side presenting its case and testing the opposition’s
evidence

1 Explain and justify the different ‘checks and balances’ provided 6 Describe the distinguishing features of Indigenous customary law.
by the Australian Constitution. 7 Discuss the relationship between the government and the
2 Explain the difference between the ‘division of power’ and the whole parliament when it comes to making new laws or
‘separation of powers’ under the Constitution. amending current laws.
3 Use examples to describe the various roles of the High Court. 8 Evaluate the influence of international law on domestic law.
4 Class debate: if the Constitution were to be rewritten today, 9 Explain the jurisdiction of each of the courts in New South
what current state government powers should go directly to Wales or the ACT.
the federal government? 10 Critically analyse the ways that Indigenous customary law
5 Explain the difference between common law and statute law. has been, and can be, incorporated into the contemporary
Analyse their relationship. Australian legal system.

Chapter 3
Classification of law
Chapter objectives
➔ identify and apply legal concepts and terminology ➔ describe the role of the law in conflict resolution and its
➔ describe the key features and operation of the ability to respond to and initiate change
Australian and international legal systems ➔ locate, select and organise legal information from a
➔ discuss the effectiveness of the legal system in dealing variety of sources
with relevant issues ➔ communicate legal information by using well-structured
➔ explain the relationship between the legal system and responses.
society
balance of probabilities defendant prima facie
beyond reasonable doubt examination in chief private law
burden of proof injunction prosecutor
civil jurisdiction intellectual property public law
credibility jury specific performance
cross-examination plaintiff standard of proof
damages pleadings the state

PART I
Chapter 3: Classification of law
Relevant law
Australian Constitution Criminal Code 2002 (ACT)
Crimes Act 1900 (NSW)/Crimes Act 1900 (ACT) Judiciary Act 1903 (Cth)
Significant cases
Donoghue v Stevenson (1932) AC 562 Roach v Electoral Commissioner [2007] HCA 43
Odd law
Under s 513 of the Crimes Act 1900 (NSW), it is an offence to steal or destroy shrubs and other plants. This section states:
Whosoever steals, or destroys, or damages with intent to steal, the whole, or any part, of any tree, sapling, shrub, or plant, or any
underwood shall, on conviction by the Local Court, be liable to imprisonment for 6 months, or to pay a fine of 5 penalty units, or both.

3.1 Public law and Public law
private law Public law deals with the powers and obligations of government
and citizens, and the relationships between persons and the state.
There are many different ways of classifying law. One is to separate
Three main areas of public law are criminal, administrative, and
it into two main categories: public law and private law.
constitutional law.
Public law is the body of law dealing with relationships between
individuals and the state, and with the structure and operation of
the government. Criminal law
Private law is the body of law governing relationships between Criminal law is the body of rules under which certain acts or
individuals – that is, individual citizens but also organisations and omissions are punished by the state. Its function is to maintain
companies. Private law is also referred to as civil law. public safety and order for the whole of society. The state has this
responsibility because an offence is seen as being against the whole
public law the body of law private law the body of law
community even if only one individual is affected. This is because
governing relationships between governing relationships between
individuals and the state, and individuals (e.g. contract law, the offence is seen to damage the moral order of society; that is, the
the structure and operation torts, family law and property law) safety of persons and property.
of government itself (e.g.
In Australia, criminal law is the responsibility of each state.
criminal, administrative, and
constitutional law) The common law plays a significant role in Australian jurisdictions
including New South Wales and the ACT, but each state and
territory also has its own legislation to cover criminal behaviour.
The actions and punishments covered by these laws are the same,
or similar, in all states and territories, as it would be too confusing
for everyone involved if what was a major crime in one state was
not in another. The criminal justice systems of the states and
territories are also similar.
In New South Wales, the main criminal statute is the Crimes Act
1900 (NSW). The ACT has both its own Crimes Act 1900 (ACT) and the
Criminal Code 2002 (ACT). The Code is the result of the ACT’s adoption
of provisions of the Model Criminal Code, a cooperative project
between the Commonwealth, state and territory governments to
develop more uniform legislation.
Parts of these Acts have been reviewed and changed to reflect
changes in society. For example, the Crimes Acts have been
amended to cover automobile and computer crimes. As with all
areas of law, sections of Acts will always lag behind changes in
society due to the speed of change and the slower procedures and
processes involved in changing laws.
Legal Links
Go to www.cambridge.edu.au/prelegal3weblinks and
follow links to view the Crimes Act 1900 (NSW), the Crimes
Act 1900 (ACT) and the Criminal Code 2002 (ACT) in full.
Figure 3.1 The Supreme Court of New South Wales

PART I
Administrative law
Legal Links
Administrative law is the area of law that deals with government
Information on the NSW Administrative Decisions Tribunal
powers and decisions made by government bodies. It is based
and the ACT Civil and Administrative Tribunal can be
on the English model. Administrative law exists to ensure the
viewed by following the links at www.cambridge.edu.au/
accountability of the administrative actions and decisions made
prelegal3weblinks.

by the government and its departments.
Administrative law cannot be used to challenge all
government dealings, for example policy decisions and the
giving of advice. An example of a decision that cannot be Constitutional law
challenged is an increase in taxes. However, the actions of Constitutional law is the branch of public law that focuses on the
the departments that are set up to administer these policy rules governing the executive, legislative and judicial functions
decisions can be challenged under administrative law. In this of government. The Australian Constitution divides legislative
way, a taxpayer could challenge his or her tax assessment under power between the Commonwealth and the states by conferring
administrative law, on certain specific grounds. on the Commonwealth Parliament the power to make laws with
In Australia, administrative law is complicated due to the respect to particular topics. It also specifies that when there are
different levels of government. An individual must be aware of inconsistencies between state and Commonwealth legislation, the
which government body was responsible for the action before Commonwealth law will prevail.
he or she can challenge it. If a law violates the rules contained in the Australian
There are three ways in which a person can seek a review of a Constitution, the case must go to the High Court of Australia.
decision made by a government agency. The avenue taken depends The High Court has the role of deciding cases of special federal
upon the nature of the complaint and whether the complaint is significance, including challenges to the constitutional validity of
made against a federal or state decision. These avenues are: laws. Procedures in this court are similar to those of other courts
➥ Internal review occurs when a decision made by a member in the sense that they are very formal and the two sides argue
or officer of an agency is reviewed by another person in the their cases, usually represented by highly respected barristers.
agency. It can be sought by requesting the reconsideration of However, they differ in the following ways:
a decision or by following set procedures where more formal ➥ Cases are heard by one or more judges (called Justices). Cases
mechanisms exist. involving interpretation of the Constitution and those of great
➥ External review is review of a decision by a person or public importance are heard by all seven Justices.
body outside the agency that made the decision. This is a ➥ Decisions are not given at the end of the hearing; they are only
more formal system, which provides review of the merits of delivered after much deliberation.
a decision. ➥ Each justice makes his or her own decision on cases. When a
➥ Judicial review of administrative decisions can be provided decision is not unanimous, the majority decision will prevail.
only by courts, and their role is limited to deciding whether or ➥ Decisions of the High Court are binding on all courts in Australia.
not the decision was lawfully, fairly and rationally made. At the A case that challenged the constitutionality of a statute was that
federal level, the Australian Constitution gives the High Court of Roach v Electoral Commissioner [2007] HCA 43. It concerned the
jurisdiction to give specified remedies against unlawful action disqualification of full-time prisoners from voting in Commonwealth
by federal government officers. The parliament has conferred elections. The history behind this case was that, prior to amendment
a similar jurisdiction on the Federal Court under section 39B of of the Commonwealth Electoral Act 1918 (Cth) in 2006, prisoners
the Judiciary Act 1903 (Cth). serving a sentence of less than three years were entitled to vote in
Government departments have information about appealing against elections. The 2006 amendments took away the right to vote of any
decisions on their websites. In NSW, appeals against government prisoner serving a sentence.
decisions are heard by the Administrative Decisions Tribunal (ADT),
and in the ACT, by the ACT Civil and Administrative Tribunal.
C hap ter 3: C l assific ation of l aw 61

Figure 3.2 The Australian Constitution
Vickie Lee Roach, a serving prisoner, took the case to the High
Contract law
Court on the ground that the Act as amended was unconstitutional.
Her team of lawyers argued that the new law breached her implied A contract is an agreement, or promise, between two or more
constitutional freedoms of political participation and political parties that is recognised by law. Contract law is concerned with the
communication. After hearing the case, the majority of the court recognition of this agreement and the actions taken to enforce it.
found the amended law to be invalid, but accepted the validity of When one of the parties to a contract believes that all or part of
the previous law, which banned prisoners from voting if they were the contract has been breached, he or she can bring a legal action
serving a term of three years or more. in a civil court. Damages are most often the common law remedy
available for breach of contract. Damages are viewed as a substitute
Private law for performance of the contract – that is, for the other party doing
what he or she agreed to do by signing the contract. Thus they are
designed to put the plaintiff in the position he or she would have
The aim of private law is to regulate relationships between
been in if the contract had been performed properly, that is, to
individual persons, companies and organisations. Private rights are
compensate him or her. The amount of compensatory damages is
protected by both statute and common law. When an individual
intended simply to provide the plaintiff with the benefits that he or
brings a court action against another individual for infringement
she would have had if the defendant had kept the agreement, not
of his or her private rights, it must be in a court exercising civil
to punish the defendant.
jurisdiction and the action is known as a civil proceeding. Three
The plaintiff may also seek one of the following remedies:
major areas of civil law are contract law, tort law and property law.
££ an injunction – this is an order usually directing a party not to
civil jurisdiction the power of a court to hear matters involving disputes do something, e.g. ordering the defendant to cease the conduct
between private individuals, and to award civil remedies breaching the contract. In some cases, an injunction may

PART I
There are many different types of torts, all of which are regulated
by statute as well as common law. They arise from different types of
activity and include:
➥ negligence
➥ nuisance – public and private
Figure 3.3 A contract
➥ trespass to land

require the party to do something, e.g. requiring a telephone ➥ false imprisonment
customer to remove wiring that he or she installed, and that ➥ defamation.
was not authorised by the telephone company. The case that established the modern tort of negligence and that
➥ specific performance – this is an order directing the breaching clearly shows the difference between tort law and contract law is
party to perform the contract in the way specified by the court. ‘the snail in the bottle’ case.
It will only be ordered if the amount of damages does not
provide adequate compensation.
Property law
In each instance, civil court case procedures are followed, where the
offended party must argue that a breach of contract has occurred. Property law is a wide area of law that governs relations
The level of court where the case is heard depends on the level of involving things and interests that can be owned and that have
damages sought. a commercial value. These include objects capable of being

possessed physically, but also less tangible interests, such as
damages monetary injunction a court order shares in a company. The products of creative effort, including
compensation for harm or loss requiring an individual or text, images, designs, inventions, computer programs and other
suffered organisation to perform, or (more
commonly) not to perform a
intangible objects, are protected by statute and common law
particular action governing intellectual property.
One of the most important types of property dealt with under
plaintiff the person who initiates
a civil action property law is real property. Real property is the actual land and
specific performance an order anything attached to that land, as opposed to personal property,
requiring the defendant to
perform the acts that the contract
which includes everything else.
obliged him or her to perform Property rights are legal rights to possess, use or benefit from
something. A violation of such rights often involves breaking the
terms of a contract. Legal action for breaches of property law can
Tort law take place in either the criminal court or civil court, depending on
Torts are ‘civil wrongs’. The word ‘tort’ comes from the French word the offending action.
meaning ‘wrong’. Tort cases deal with situations in which someone
intellectual property intangible property that has commercial value
has done something to interfere with the rights of someone else. and can be protected by law, e.g. text, images, designs, inventions and
Another way of putting it is that a tort occurs when someone computer programs
breaches or fails to fulfill a duty that he or she owes to someone.
Breach of contract is also a civil wrong, but the difference
between tort and agreements is that with agreements there is
already a legal relationship between the parties at the time of the
wrong, whereas in torts there is no legal relationship prior to the
wrong. The law of torts tries to restore the plaintiff to the position
he or she was in before the wrong was committed.
All torts entitle the alleged victim to take legal action against
the alleged perpetrator in a civil court and claim compensation.
However, court action can be expensive, in terms of both time and
Figure 3.4 One of the most important types of property dealt with
money, so it is important that plaintiffs take this into account when under property law is real property; that is, the actual land and anything
deciding whether the wrongdoing is worth bringing a case. attached to that land.

Case Space
Donoghue v Stevenson (1932) AC 562
Mrs Donoghue alleged that Stevenson had failed in his duty

of care to provide:
➥ a system of working his business which would prevent snails
from getting into ginger beer bottles, and
➥ an efficient system of inspection of the bottles before they
were sold to the consumer, including clear bottles that
would make it easier to inspect.
The court held that a manufacturer is under a legal duty to the
consumer to take reasonable care that the article will not cause
injury to health.
Lord Atkin, one of the presiding judges, referred to the
precedent case of Heaven v Pender (1883) 11 QBD 503, which
established that ‘under certain circumstances, one man may
owe a duty to another, even though there is no contract
between them’. He went further than the narrow decision in
Heaven, however, citing obiter dicta of the dissenting judge,
Brett MR, who extended the notion of a duty of care to anyone
in a position where failing to use ‘care and skill in his conduct
… would cause danger of injury’.
Until Donoghue v Stevenson, individuals had no rights against
suppliers with whom they didn’t have a contract. As May
Donoghue did not actually buy the ginger beer and, thus, had
no contractual relationship with the manufacturer, in previous
times she would not have been able to sue.
Donoghue v Stevenson became a landmark decision and
Figure 3.5 A decomposing snail found in ginger ale formed the basis formed the basis of the tort of negligence worldwide, not only
of litigation. because of the judgement relating to non-contractual duty of
This case was an appeal by May Donoghue, the plaintiff in the care, but also because of Lord Atkin’s ‘neighbour principle’:
original decision. The defendant’s appeal had succeeded; Mrs [T]here must be, and is, some general conception of relations
Donoghue then appealed to the House of Lords. giving rise to a duty of care, of which the particular cases found
Mrs Donoghue was bought some ginger beer by a friend in the books are but instances ... The rule that you are to love your
in the town of Paisley, Scotland. The ginger beer was in a dark neighbour becomes, in law, you must not injure your neighbour;
glass bottle, which prevented Mrs Donoghue from seeing the and the lawyer’s question: Who is my neighbour? receives a
contents. Some ginger beer was poured into a glass for her, restricted reply. You must take reasonable care to avoid acts or
which she drank. Her friend then proceeded to pour the rest of omissions which you can reasonably foresee would be likely to
the ginger beer into Mrs Donoghue’s glass and it was then that injure your neighbour. Who, then, in law, is my neighbour? The
a decomposing snail came out of the bottle. This made her feel answer seems to be – persons who are so closely and directly
quite ill, and later she also suffered from severe gastroenteritis. affected by my act that I ought reasonably to have them in
Mrs Donoghue sued David Stevenson (the respondent), who contemplation as being so affected when I am directing my mind
was the manufacturer of the ginger beer. to the acts or omissions that are called in question.

3.2 Criminal and civil court
PART I
standard of proof the degree or balance of probabilities the
procedures
level of proof required in order for standard of proof required in a
the plaintiff (in a civil case) or the civil case in order for a plaintiff
prosecution (in a criminal case) to to succeed in proving the case
prove their case against the defendant
There are many differences between criminal and civil law court
cases. Before discussing criminal and civil court procedures in

more depth, it is necessary to be familiar with some of these key
beyond reasonable doubt the jury a group of people who listen
differences and relevant terminology. standard of proof required in to all of the evidence in a court
Criminal and civil law can overlap. The victim of a crime whose a criminal case in order for the case and decide on the verdict
prosecution (the state) to obtain
case has been heard in criminal court may also wish to take the
a conviction against the accused
case to civil court to obtain compensation for injuries suffered as a
result of the defendant’s conduct. In both cases, however, the legal
outcome will be decided according to the adversarial system of Review 3.1
trial. This means a judge, and sometimes a jury, hears both sides of
1 Distinguish between public and private law.
the case as put forward by representatives of the parties involved.
The judge considers the evidence and makes a decision in favour of 2 Outline the differences and similarities between civil
one of the parties. and criminal court cases.

3 Explain the role of administrative law and how an
Key differences between criminal and civil
administrative decision of a government body be
court proceedings
challenged.
Criminal cases feature a Civil cases feature a plaintiff
4 Which courts can decide questions of constitutional
prosecutor and a defendant. and a defendant.
law? What types of questions are in this category?
In criminal cases, the state In civil cases, an individual or
5 Outline the types of remedies that can be sought by
brings the case to court. organisation brings the case
to court. the plaintiff if a contract is breached.
6 Describe tort law.
In criminal cases, the onus is In civil cases, the onus is on
on the prosecutor to prove the plaintiff to prove the case. 7 Outline the different types of property that are
the case. protected by property law.
In criminal cases, the In civil cases, the standard of
standard of proof that proof a plaintiff must meet is
applies is that the prosecutor the balance of probabilities.
must prove the case beyond (This is a lower standard Criminal procedure
reasonable doubt. (This is a of proof than is needed in
higher standard of proof than criminal cases.) Criminal law proceedings are the legal processes in which a
is required in civil cases.)
person accused of a crime is prosecuted to secure a conviction and
punishment, such as a fine or imprisonment. The two main types
of criminal hearings are summary hearings and trial by jury. The
prosecutor the person formally defendant the person who
conducting legal proceedings is accused of a crime or a civil type of hearing depends upon the seriousness of the offence that
against someone accused of a wrong; in a criminal case, the the accused is alleged to have committed; that is, whether it is a
criminal offence; the prosecutor defendant is also referred to as
summary or indictable offence.
acts on behalf of the state or the the accused
Crown Summary offences are relatively minor and include certain traffic
offences and offensive behaviour. They are heard and decided by a
onus the burden or duty of magistrate or judge without a jury.
the state a term that is used to proving the case to the court An indictable offence is a serious criminal offence and may be
refer to the government and the
heard by a judge and a jury. Crimes in this category include murder,
people that it governs
sexual assault and malicious wounding.

Legislation has been passed to allow some indictable offences jury of 12 people, unless the accused elects to have his or her case
to be prosecuted summarily (that is, as summary proceedings) in heard before a judge alone. The jury’s job is to consider whether
the Local Court (NSW) or Magistrates’ Court (ACT). there is enough evidence to convict the accused. The judge advises
For summary matters in NSW, the police themselves may the jury and deals with questions of law. The jury will consider the
prosecute the case in the Local Court. Not only do the police evidence provided in court and decide on issues of fact on the basis
investigate crimes and arrest suspects, but a specially trained police of this evidence. In both NSW and the ACT, the jury must come to a
officer called the police prosecutor represents the state in court. unanimous verdict – that is, they must all agree. However, in NSW in
More serious crimes are prosecuted by the Office of the Director 2006, new legislation allowed for the following: if there are 12 jurors
of Public Prosecutions (DPP). In the ACT, the DPP is responsible for and if after at least 8 hours they cannot all agree, then the verdict is
prosecuting all criminal matters in both the Magistrates’ Court and allowed to be agreed on by 11 of the jurors; or if there are 11 jurors
Supreme Court. and, after at least 8 hours they cannot all agree, the verdict can be
The accused, known as ‘the defendant’, will usually employ a agreed by 10 jurors.
lawyer to represent him or her. Some people may choose to represent
themselves, depending on the seriousness of the charges. The case
that the accused puts forward is called ‘the defence’.
Criminal trial process
Before an accused person can be tried for an indictable offence, At the start of the trial, the indictment is read to the accused, who
there must be a committal hearing. To have the matter put before may plead guilty or not guilty. The prosecution begins with an
a jury the prosecutor must convince the magistrate that there opening address, setting out the facts of the case and the evidence
is a sufficiently strong case that the accused has committed an that will be presented to prove the defendant’s guilt.
indictable offence. Each side then calls witnesses and ‘examines’ them by asking
Trials of indictable matters take place in the District or Supreme them questions. This is called examination in chief. Its purpose,
Court in NSW, depending on the seriousness of the offence, and for the prosecution, is to establish facts to prove the case. For the
in the Supreme Court in the ACT. Criminal trials are heard before a defence, its purpose is to disprove the prosecution’s case.
Figure 3.6 Jurors sit in the courtroom’s jury box.

PART I
Cross-examination allows each side to examine the witnesses Hearings in the different courts
of its opponent, in order to call into question the opponent’s
version of the facts, or a witness’s credibility. Local and Magistrates’ Courts
After all of the evidence has been given, each side gives a Most criminal cases are dealt with by the Local or Magistrates’
closing address to the jury. This final speech draws together the Court. These courts do not make use of juries and judges. Rather,
evidence and provides an argument for that side’s position. It may

a magistrate makes the decision. Matters are generally handled
also answer arguments that could be made by the other side. The quickly, efficiently and cost-effectively.
judge will then ‘sum up’ the case and instruct the jury on how to go In the Local and Magistrates’ Courts, the lawyers and magistrates
about the task of reaching a verdict. The jury goes to another room do not wear traditional robes and solicitors carry out most legal
to deliberate until a verdict is reached. If the jury returns a verdict work. The proceedings are less formal than the higher courts. Many
of ‘guilty’, sentencing occurs either at that time, or at a later date defendants choose to represent themselves and so argue their case
determined by the court. without the help of a lawyer.
examination in chief questioning of a witness by the barrister who called Coronial inquests
that witness
A coronial inquest will occur when there is an unnatural death
or an unexplained fire or explosion. The proceedings are more
credibility trustworthiness, reliability, believability inquisitorial than normal court proceedings, as the coroner’s office
will gather all of the evidence. If there is evidence that a serious
crime has been committed, the coroner will recommend that an
cross-examination questioning a witness called by the other side,
indictment be issued and the accused will be tried in a court of law
to produce information relevant to one’s case or to call the witness’s
credibility into question in the usual way.
Burden and standard of proof in criminal cases

In criminal cases, the defendant is presumed to be innocent
until proven guilty. The burden of proof (the onus) rests on the
prosecution, which must prove beyond reasonable doubt that
the accused has committed the offence with which he or she is
charged. The prosecution needs to convince the jury that the crime
was committed by the defendant for the defendant to be found
guilty. It is the job of the defence to disprove the prosecution’s
case and provide evidence to show the innocence of their client.
The standard of proof refers to the level of proof required
in order for the party that has the burden of proof to succeed.
In a criminal case, the standard is ‘beyond reasonable doubt’.
Figure 3.7 Parramatta Children’s Court, NSW
This means that to return a guilty verdict, no jury member can have
any doubt that the crime was committed by the accused. Children’s Court hearings
burden of proof the responsibility of a party to prove a case in court Children charged with a crime are treated differently by the court
system, as immature persons are regarded as having a different
degree of responsibility from adults. Conviction by a Children’s
standard of proof the degree or level of proof required in order for the Court, even for a serious crime, has less severe consequences than
plaintiff (in a civil case) or the prosecution (in a criminal case) to prove
conviction in an ordinary criminal court. Most charges against
their case
people under 18 years of age are heard in a special Children’s Court

hearing. They are usually heard before a magistrate who specialises wrong. This party is called ‘the defendant’ and may be an individual
in children’s cases and takes reasonable measures to ensure that the or an organisation.
child understands the proceedings.
The case is heard in a closed court and the public is not allowed The process in a civil claim
to attend. If journalists are present, they are not permitted to
The statement of claim outlines the facts of the dispute and the
publish the identity of the offender. In NSW, if the child is under
parties involved in the dispute. There are rules for the way in which
16 years of age, no conviction is recorded.
it must be ‘served’ on the defendant, which must be followed
strictly. As discussed in Chapter 2, the court that has jurisdiction
Review 3.2 to decide a civil matter will depend on the type of claim and the
1 Explain the differences between an indictable offence monetary amount involved.
and a summary offence. The documents that the defendant and plaintiff will exchange
and file with the court, which set out the issues that are to be
2 Describe the task of the prosecution in a criminal trial
and how it goes about carrying out this role. decided by the court, are called pleadings. The statement of claim
or originating application will therefore be the first pleading in the
3 Compare and contrast the roles of the prosecution and
sequence of the case. There may be many pleadings, alternating
the defence in a criminal trial.
between the parties, over the course of the case.
4 Describe the role played by a jury. How are members
The defendant responds with a statement of defence. This
of a jury selected?
statement may deny or challenge the plaintiff’s allegations, or admit
5 What is a coronial inquest?
them but plead additional facts to counter the effect of admitting
6 Outline the ways in which children charged with a crime
them. A defendant may also file a counterclaim against the plaintiff.
are protected. Account for this protection. Do you think
At this stage, the parties are able to obtain more information
this is reasonable?
about each other’s arguments through a process called ‘discovery’.
This process allows each party to obtain information to assist
them in responding to the other party’s claims and allegations.
Research 3.1 Interrogatories are written questions submitted to the other party,
which must be answered. They must be relevant to a matter in
1 Go to the Lawlink website by following the link at
question. At this point, many civil disputes are resolved. In most
www.cambridge.edu.au/prelegal3weblinks.
cases legal practitioners prepare the documents, as they have
2 Who hosts this site? Why was it set up?
an understanding of the processes and can give appropriate and
3 Go to ‘Courts and tribunals’. Imagine that you are doing
timely advice on legal matters.
work experience at the local primary school and have
If the dispute cannot be settled, the matter will be referred to
to teach a Year 6 class about the local court. Develop an
trial. During the trial, each side has the right to produce evidence, call
internet activity based on the information on the website.
witnesses and carry out cross-examinations. When both sides have
presented all evidence, the judge will make a ruling. If the plaintiff
is successful, the judge will make a decision about the amount of
Civil procedure relief (or compensation) to be given to the plaintiff by the defendant.
This compensation usually takes the form of damages in a monetary
Civil proceedings are court actions that are the result of disputes form, or an injunction, which is a court order prohibiting specified
between individuals. Unlike criminal proceedings, they are initiated activities. Sometimes a specific performance will be required under
by individuals or organisations, rather than the state, and they deal the judgement, such as the completion of an action (e.g. the transfer
with such matters as breach of contract, property disputes and of the property in dispute).
negligence. The person who initiates the civil action, called ‘the
plaintiff’, will start proceedings by issuing a statement of claim pleadings written statements of the parties to a civil dispute that set out
the issues to be decided by the court
or a summons to the party who has committed the breach or the

PART I
Understanding criminal and
civil cases
There are a number of ways in which you can gain a better
understanding and appreciation of the operation of criminal and

civil law. This can be done by:
1 Compiling a media file
Keeping a record of specific cases that are reported in the media is an
excellent method for building a sound understanding of criminal and
civil cases. In order to help you record and summarise your findings,
a Media File pro forma is provided on the Cambridge GO website. It is
recommended that you print a number of copies of this pro forma, make
notes specific to each case and attach them to each article you collect.
2 Reading about cases online
Accessing cases online is one of the most time-efficient ways of
Figure 3.8 Does smoking marijuana involve criminal law or civil law? collecting information about criminal and civil cases. The Lawlink
(under ‘Legal Resources’), Caselaw and Australasian Legal Information
Institute are reliable sites to visit (refer to www.cambridge.edu.
Burden and standard of proof in civil cases au/prelegal3weblinks for links to these websites). These sites have
The burden of proof in a civil case is on the injured party information about rulings on a wide variety of court cases.
(the plaintiff) to prove his or her allegations. The rules of civil 3 Observation
procedure give the defendant the opportunity to submit Observing a court case in action is an important way of reinforcing
evidence to rebut the plaintiff’s case. To rebut generally means and extending your knowledge of criminal and civil law. The Lawlink
to disprove a statement or evidence presented by another. NSW website lists all courts in NSW, and information about ACT
In civil cases, the standard of proof is ‘on the balance of courts can be found by following the link at www.cambridge.edu.
probabilities’. This means that the plaintiff, who has the burden of au/prelegal3weblinks. Students are able to visit most courts that are
proof, must prove that it was more probable than not that he or she open to the general public. However, if a school group is thinking
suffered injury or loss as a result of the actions of the defendant or about attending a court, it is important to contact the court to
that ‘his or her claim is correct in law’. ensure that correct protocols and etiquette can be followed.
Review 3.3
1 Draw a flow diagram showing the steps taken in civil legal c A woman is convicted of driving with a blood
action. alcohol level of 0.08.
2 How would you decide in which court to bring a personal d Your friend is caught with marijuana.
injury claim for negligence that resulted in medical bills of e You find a cockroach in a salad you just ordered
$100 000? in a restaurant.
3 What sorts of facts might be sought in discovery in a case f A neighbour’s music at 3 a.m. every night wakes you
involving a debt that was not paid? up constantly.
4 Decide whether the following cases involve criminal law or 5 Is it more difficult to prove a case in criminal law or civil
civil law: law? Why?
a You are held up at knifepoint and your mobile phone 6 With a classmate, make a poster (either by drawing or
is stolen. cutting out pictures) showing as many civil wrongs and
b A man trips over a box on the supermarket floor and criminal acts as you can. Draw up a table to list these and the
breaks an ankle. court in which cases about these wrongdoings will be heard.

3.3 The legal profession A magistrate is in charge of a lower court. After hearing both
sides of the case, the magistrate will decide whether a person is
guilty or innocent. The magistrate will decide on the punishment
Court cases involve a number of participants. Some of these people
in criminal cases, and the amount of money awarded in civil cases.
play an official legal role in the court proceedings, while others play
Magistrates will refer very serious criminal offences to the
an unofficial role. The official and unofficial participants of most
District Court (in NSW) or to the Supreme Court (in the ACT). The
court cases are outlined below. The circled numbers in the text
magistrate will hear some indictable matters to determine whether
correspond to the numbers in Figure 3.9.
they should go to trial. If there is enough evidence to establish a
prima facie case, and thus justify the expense of a trial, it will be
Legal professionals referred to a higher court.
1 Judges and magistrates

2 Judge’s associate
Judges and magistrates preside over court cases. They are seen
The judge’s associate is a confidential secretary to the judge and
as the umpires of court cases, making sure that the rules are
is a clerk of the court in which the judge is presiding. He or she
followed and that a fair trial is carried out. They are legally qualified
generally has a law degree.
professionals who have considerable experience in the law.
Judges sit in intermediate and superior courts (District and
Supreme Courts). The role of the judge is to adjudicate in cases: the
3 Tipstaff
judge makes decisions about points of law and gives instructions A tipstaff supports the judge in procedural and organisational
to the jury to make sure that they understand the proceedings and matters when court is in session. When court is not in session,
evidence presented. The judge is required to hand down sentences the tipstaff may provide research and administrative support.
and rulings. In civil cases, the judge will sit without a jury and
therefore is responsible for the final decision. prima facie (Latin) ‘on the face’; at first sight: having sufficient evidence
established against a defendant to warrant a trial in a higher court of law
Figure 3.9 Court cases involve a number of participants.
1 3
5 6
7 2
4
4
4 4

PART I
associate when the jury is ready to return a verdict, operates
4 Barristers and solicitors (legal practitioners)
audiovisual equipment where necessary, gives instructions to the
People seeking legal advice will usually contact a solicitor first. jury and answers questions from jurors, and looks after the jury
Solicitors give legal advice to people on a wide range of legal room and the comfort of the jurors.
issues. They have completed a recognised law course and carried
out relevant work experience to achieve their qualification.
7 Court reporter

Solicitors may work in any of a number of practice areas. Some
of the major areas of employment are family law, conveyancing for All court proceedings are recorded, either in shorthand or using
real estate transactions, and the preparation of wills and contracts. a shorthand machine, or in audio and/or visual form. A transcript of
Traditionally, only barristers could represent parties in court. the proceedings is an accurate written record of what has been said.
Solicitors will most often prepare a brief for a barrister when a case
must go before a court, as well as doing research and providing Review 3.4
legal advice. In the Local or Magistrates’ Court, however, it is more
1 Outline the role of a judge or magistrate in court
common to see solicitors appearing on behalf of clients. For each
proceedings.
state and territory, there are separate associations for solicitors and
barristers, and in NSW, barristers and solicitors are issued different 2 Identify the forms of legal representation that are
available to a person who is having legal problems.
practising certificates.
Barristers often specialise in one area of law (e.g. family law), 3 Describe the roles of the judge and the jury in a
which allows them to develop a depth of knowledge and expertise court case.
in the area.
Solicitors will generally approach a barrister on behalf of their
client. The barrister will then represent the client in either a criminal Other participants
or civil court proceeding. Barristers have two main roles in court
proceedings: Corrective services officer
➥ To provide legal advice on the likely outcome of a court case,
A corrective services officer is required to guard the accused in a
based on the facts provided to them by their client. This allows
criminal case and escort that person to and from the courtroom.
the client to decide which course of action is best.
➥ To present their client’s case in court.
Jury
5 Witness A jury is a panel of citizens, selected at random, who consider
the evidence and decide on questions raised in the case. Their
A witness gives evidence to support the case in court. Both parties
job can be described as ‘fact-finding’, and their decision is called
can call witnesses. A witness must stay outside the courtroom until
a verdict. Before a court case begins, they are sworn in. In most
his or her name is called. When they are called they must take the
cases, a criminal trial involves a jury of 12 people. Civil cases may
witness stand and swear an oath or make an affirmation to tell
be heard by a judge alone or sometimes (in NSW) with a jury of
the truth.
four people.
The members of a jury are ordinary citizens selected at random
6 Court officer from the jury list, which is compiled from the electoral roll.
The court officer organises the court lists and calls witnesses into In a criminal trial, both the prosecution and the defence have
the courtroom. He or she administers the oath or affirmation, the right to challenge either the selection of the entire panel of
ensures that the public are seated in the right areas, and announces jurors, or individual jurors. ‘Challenges for cause’ are based on the
the arrival and departure of the judge or judges. The court officer person not being qualified to serve on a jury, being ineligible or
communicates questions from jurors to the judge and passes disqualified, or being suspected of bias. Both sides can also exercise
documents from the bar table to the associate, who passes them a certain number of ‘peremptory challenges’ of prospective jurors,
to the judge, jury or witnesses. He or she also advises the judge’s without having to give a reason. However, challenging the selection

of a juror can be difficult: neither side knows anything about them
in advance apart from their names, and peremptory challenges are
3.4 Common and civil
usually based on nothing more than name or appearance (e.g. age, law systems
gender, race, clothing, physique).
Most countries throughout the world use a system of law based on the
common and civil principles of law – or a combination of both.
Plaintiffs and defendants
Civil law has its origins in Roman law. It is a codified system that
The person who brings a civil action against someone else is called uses a set of rules (known as the code of law) that are applied and
the plaintiff, while the person who must defend his or her actions is interpreted by judges. This form of legal system is still used in many
called the defendant. In a criminal trial, the defendant is the person countries of the world.
accused of the crime, and there is no plaintiff. Common law, on the other hand, was developed by custom.
It began long before there were any written laws but continued to
Media be applied by courts long after written laws came into use.
The main difference between the two systems is that in civil law,
The media often attend high-profile court cases in order to report
judges apply the rules in the code of law to the various cases before
on them. Generally, representatives from the media sit in the media
them, whereas in common law, the rules are derived in part from
gallery or wait outside the court in order to interview people.
specific court rulings.
In countries that have a legal system based on common law,
the term ‘civil law’ refers to the area of law governing relationships
between private individuals, in contrast to the criminal law.
Civil law systems in other countries

The term ‘civil law’ sometimes causes confusion. In the Australian
legal system it refers to private law (i.e. disputes between
individuals). However, the term ‘civil law’ also describes the legal
systems of those countries that have developed from the Roman
law system instead of the English common law system.
Today, countries such as France, Germany and Italy are civil law
countries. Civil law countries usually have an inquisitorial system of trial
as opposed to the common law adversarial system. In an inquisitorial
system of trial, the judge collects the evidence for both sides in a
Figure 3.10 The media, following a high-profile court case dispute, and is actively involved in the fact-finding task.
Figure 3.11 The ruins of the Forum Figure 3.12 Common law in Australia has its origins Figure 3.13 The Palazzo della Consulta, seat
Romanum (Roman Forum) in customary law developed in England. This image of the Italian Constitutional Court, designed
shows Queen Elizabeth I in the Court of King’s bench – by Ferdinando Fuga (1732)
the highest common law court in England until 1875.

PART I
Chapter summary
➔ The law is divided into public and private law. There are ➔ The court where the case is heard will depend on such things

differences in the ways that infringements of public and as the severity of the crime in criminal cases and the amount of
private law are dealt with by the courts. damages sought in civil cases. Cases involving issues of equity
➔ Public law governs relationships between individuals will mainly be considered by the Supreme Court.
and the state and includes criminal, administrative and ➔ Criminal and civil court procedures are different in a number
constitutional law. of ways. In a criminal trial, the prosecution has the burden of
➔ The Australian Constitution sets out the foundational rules proof. In a civil matter, the plaintiff has the burden of proof.
of Australian government. Constitutional law governs any ➔ The standard of proof in a criminal trial is beyond reasonable
changes made to these laws. doubt. In a civil hearing, it is on the balance of probabilities.
➔ Private law governs relationships between individuals or ➔ Contemporary Australian law is based on English common law.
between them and organisations or companies. It includes Many other countries use the civil law system, which is based
contract, tort and property law. on a statutory code rather than on precedent.
1 Why is criminal law prosecuted by the state rather than by 4 What can a plaintiff expect from a successful tort claim?
individual citizens? a compensation from the defendant in the form of damages
a Victims of crime are usually unable to afford legal b compensation from the state
representation. c an injunction to prevent the defendant from approaching
b Crime is considered a wrong against us all and thus a the plaintiff’s solicitor
matter of public law. d an order of specific performance
c Crime is often due to government decisions or policy and 5 Which of these statements about the burden and standard of
the state must take responsibility for it. proof is true?
d It is a matter of organisation and thus is a subset of
a The defence in a criminal trial must prove that the
administrative law.
defendant is innocent, beyond reasonable doubt.
2 What is the main purpose of administrative law? b The defendant in a civil trial must prove that the plaintiff’s
a to achieve justice in civil cases case is flawed, on the balance of probabilities.
b to ensure fairness in government decisions c The plaintiff in a civil trial must prove his or her case on the
c to allow people to bring criminal charges against balance of probabilities.
government departments d The plaintiff in a civil trial must prove that the defendant is
d to allow people to receive damages in civil cases guilty beyond reasonable doubt.
3 What is the High Court’s role in relation to the laws made by
parliament? Chapter summary tasks
1 Outline the main ways that a person can seek a remedy if a
a to decide whether they are consistent with the Australian
government decision is unfair. Do you think many people seek
Constitution
justice in this way? Justify your answer.
b to exercise veto power if necessary, when a bill comes
2 What remedies are available when you have a contract for
before parliament
services and the other party fails to do what they agreed to do?
c to ensure that they are consistent with international
treaties that Australia has signed 3 What is tort law? Discuss the idea that tort law has turned us
into a society that sues each other when things go wrong.
d to advise the minor parties on how they can get laws
passed 4 Explain the roles of prosecution and defence in a criminal case.
5 Compare and contrast the features of criminal and civil law.

Chapter 4
Law reform
Chapter objectives
➔ discuss legal concepts and terminology with respect to ➔ discuss the place of the law in addressing and responding
law reform to change
➔ debate the legal system’s ability to address issues in society ➔ identify and assess the conditions in society that contribute
that may contribute to law reform to law reform
➔ discuss the relationship that exists between the legal ➔ describe and evaluate the role and operation of agencies
system and the society in which it operates and agents involved in law reform.
Apprehended Domestic de facto relationship hung jury social values
Violence Order (ADVO)
forensic identity theft terms of reference
balance of power
fraud precedent Youth Justice Conferences
capital punishment
Hansard public morality

PART I
Chapter 4: Law reform
Relevant law
Marriage Act 1961 (Cth) Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Property (Relationships) Act 1984 (NSW) Australian Law Reform Commission Act 1996 (Cth)
Family Law Act 1975 (Cth) Law Reform Commission Act 1967 (NSW)
Crimes (Forensic Procedures) Act 2000 (NSW) Jury Act 1977 (NSW)
Crimes Act 1900 (NSW) The Succession Act 2006 (NSW)
Young Offenders Act 1997 (NSW)
Odd law
Legal costs can quickly spiral out of control. A case heard in the Federal Court of Australia, Croker v Commonwealth of Australia;
In the Matter of Croker [2010] FCA 1031, concerns the bankruptcy of an individual who purchased a pair of $50 cufflinks from the
High Court, and sued the court after alleging that the cufflinks became tarnished. The flurry of litigation resulted in the individual
contracting a debt of over $50 000, causing his bankruptcy. The final debt was therefore over 1000 times the original cost of the
allegedly tarnished cufflinks!

4.1 What is law reform? As Australia is a diverse multicultural society, it can sometimes be
difficult to gauge the mood of the community, if indeed there is
anything approaching consensus on an issue.
Australian society is constantly evolving and changing. Given
The problem for law-makers is that public morality is not static;
the speed at which social values change, the law can sometimes
it continues to evolve. These changing social values are an impetus
seem anachronistic, or slow to respond. The saying often quoted is
for law reform. There are many examples of legislation that has
‘Society moves ahead and the law limps behind.’
been introduced, repealed or amended after courts have handed
As suggested in previous chapters, the law needs to be
down decisions. Judicial decisions are one way in which legislators
similarly dynamic in order for the community to respect and
and others recognise that the existing law no longer reflects the
follow it. But mere change is not enough to constitute ‘reform’.
community’s social values. In most cases, as indicated above, the
As the Hon Justice Michael Kirby, a former member of the High
law usually lags behind changes in social values. This is not always
Court Bench, wrote:
a negative feature of the law, as deliberate and well-thought-out
In our language, the word ‘reform’ tends to connote an improvement,
changes to our laws take time.
an advance: not just for change, a change for the better.
The following example demonstrates how law reform has been
M.D. Kirby, Reform the Law:
Essays on the renewal of the Australian legal system a direct response to changing social values.
(Oxford University Press, Melbourne, 1983), p. 7
Changes to laws should not only recognise the changes taking place social values ethical standards public morality standards of
that guide people in their behaviour generally agreed upon
in society, but should reflect those changes which have produced
thinking about aspects of their by the community
better circumstances for significant portions of society, as well as society
providing protections against harm.
However, law reform is not always smooth or easy, as not all Figure 4.1 Historically, social values in Australia have been heavily
influenced by the Christian faith.
members of society may agree with particular changes to the law or
see the need for them. The extent of disagreement often depends
on the conditions that gave rise to law reform: in other words, on
what is driving the need to reform the law.
This chapter examines the conditions that give rise to law
reform, and the agents and mechanisms that can bring it about
once the reform needed has been identified.
4.2 Conditions that give

rise to law reform
Changing social values
Social values are standards or principles that guide people in their
thinking about aspects of their society and that are underpinned
by beliefs about right and wrong. Social values are not necessarily
the same as individual values, but they both influence and are
influenced by individuals’ judgement. Both individual and social
values and ethics are shaped by various cultural factors, often
including religion.
When the majority of people within a society hold similar views
about an issue, the views can be said to reflect public morality. The
law must reflect the social values of the majority of the community
if it is to stay relevant and be assured of a high rate of compliance.

PART I
Changing social values regarding same-sex The Rudd government in 2008 acted on the Australian Human
Rights Commission’s report, Same-Sex: Same Entitlements, and an
relationships
audit of Commonwealth legislation to remove discrimination and
Many of Australia’s social values have been influenced by its enable same-sex couples and their children to be recognised by
Christian traditions, including the belief that the family is one of Commonwealth law. These changes were legislated to ensure that
the cornerstones of a stable society. Part of the traditional belief Australia remained a fair and just community by allowing same-

has been the understanding that a family must have a mother sex couples and their families to enjoy identical entitlements that
and a father in a heterosexual relationship recognised formally by opposite-sex de facto couples enjoy.
religious ceremony and legally by marriage legislation – currently It passed the Acts that came into effect in 2009. These were:
the Marriage Act 1961 (Cth). ➥ Same-Sex Relationships (Equal Treatment in Commonwealth
Over the past 40 years, the idea of what constitutes a family Laws Superannuation) Act 2008
has evolved to the point where the definition above no longer ➥ Same-Sex Relationships (Equal Treatment in Commonwealth
reflects the social values of a significant number of Australians. Laws General Law Reform) Act 2008
Moreover, many Australians in same-sex relationships were living This legislation removed discrimination from 85 pieces of federal
together without the legal protections afforded to people living in legislation in areas such as taxation, superannuation, social security,
heterosexual relationships. This meant that they had few rights – the Pharmaceutical Benefits Scheme (PBS) and Medicare safety
especially property rights – if the relationship ended. nets, in addition to aged care. It also amended legislation that did
In 1984, the NSW government passed the De Facto Relationships not recognise same-sex couples for the purposes of child support,
Act 1984 (NSW), which established certain rights for people living in immigration, veterans affairs and citizenship.
de facto relationships. At this time there were calls to recognise Over the past few years there has been increased debate
same-sex couples in the same way. After some impassioned concerning the amendment of the Marriage Act to allow same-
speeches in both houses of the NSW Parliament, the De Facto sex couples to marry. In 2012, the Gillard government refused to
Relationships Act was amended to include same-sex couples and consider amendments to the Act even though this was debated
was renamed the Property (Relationships) Act 1984 (NSW). For vigorously at the Labor Party’s National Conference in 2012.
people separating now, these matters are dealt with under the Some states have mooted proposed ‘civil union’ legislation,
Family Law Act 1975 (Cth). This Act now deals with matters regarding which would to all intents and purposes recognise same-sex
property and children in relation to de facto couples as well as relationships as a legally recognised form of partnership similar
married couples. to marriage. Presently, it seems that marriage is one area in
Under this Act, factors for a court to consider when determining which members of both sides of Parliament do not believe that
whether a couple are in a de facto relationship include the the public has shifted far enough in their thinking to warrant
duration of the relationship, how long they have lived together, legislative reform.
whether it is a sexual relationship, and their financial dependence
or interdependence. Importantly, these factors also include the de facto relationship (from the estate all of the property that a
degree of mutual commitment to a shared bond and whether Latin term meaning ‘existing in person leaves upon death
fact’): a relationship between two
they are publicly recognised as a couple. This Act gave couples adults who are not married but
in these relationships certain property rights, and recognised the are living together as a couple
legitimacy and value of their relationship.
Further legislative change occurred with the Property
(Relationships) Legislation Amendment Act 1999 (NSW), which Review 4.1
amended 25 other Acts whose provisions excluded same-
1 Outline the sequence of events that led to the Property
sex couples. For example, it amended the Wills, Probate and (Relationships) Legislation Amendment Act 1999 (NSW).
Administration Act 1898 (NSW) to give a de facto spouse of a person What did that act accomplish?
who died without a will the same rights as a husband or wife with
2 What are some other types of social changes that
respect to the deceased person’s estate. The Succession Act 2006 might lead to law reform? How might the reform be
(NSW) now covers this, as the Wills, Probate and Administration Act accomplished?
1989 (NSW) has been repealed.
C hap ter 4: Law refor m 77

heinous crimes. It was a case of society delivering pure retribution
for a crime: ‘a life for a life’. It was also suggested that it provided
a strong deterrent to those disposed to commit murder. In fact,
in a significant number of homicides the offender and the victim
knew each other, and many involved extreme breakdown of family
relationships. Many murderers could be described as one-time
killers who are unlikely to re-offend. When capital punishment was
abolished in each of the Australian states, the murder rate remained
relatively unchanged, suggesting that as a form of punishment it
had little deterrent value.
It was also recognised that, whatever the chances of a criminal’s
rehabilitation, executing him or her extinguishes the possibility
completely. There are very strong arguments that capital
punishment violates prohibitions of cruel, inhuman and degrading
punishments in international human rights treaties, and that
Figure 4.2 Part of a protest for same-sex couples
where it exists, it is imposed more often on poor, uneducated and
otherwise vulnerable persons. In addition, there is the risk of killing
New concepts of justice an innocent person who has been wrongly convicted.
As a result of these moral arguments and practical
When the law is unable to deliver just outcomes to individuals and considerations, social attitudes with respect to capital punishment
the community, there may be a need for law reform. For example, shifted and no Australian jurisdiction now permits it. Because the
if the criminal law is failing victims, the community and/or the concept of what justice requires shifted from pure retribution to a
accused, new concepts of justice may need to be formulated. greater emphasis on rehabilitation, and because deterrence clearly
In the past, capital punishment for particular murder offences was not being achieved, capital punishment no longer served the
was seen as the most effective way of dealing with the most community’s purposes.
Case Study
Whose social values should prevail?
In California, same sex-marriages were recognised when the Public morality is not clear-cut on this issue in California.
Supreme Court of that state ruled in May 2008 that legislation With legal challenges expected to follow the referendum result,
banning these marriages was discriminatory and violated the it may be some time before there is certainty in this area.
state constitution. Since then there have been many couples
who have legitimised their relationships in the eyes of the law
through marriage.
In November 2008, voters overturned the court ruling
by agreeing through referendum to change the state’s
constitution in a ballot called ‘Proposition 8’. In an article
titled ‘California Bans Same-Sex Marriage’, the BBC reported:
‘The referendum called for the California constitution to be
amended by adding the phrase: “Only marriage between a man
and a woman is valid or recognised in California.”’
The state’s Attorney General has stated that those marriages
conducted after the court ruling will remain valid. Figure 4.3 Americans protesting for Proposition 8 on gay marriage

PART I
Figure 4.4 Capital punishment, now abolished in Australia, was once seen as a way of dealing with the most heinous of crimes.
Another notable example of changes in the way the law punishes based on an adversarial system in which the accused can put the
offenders can be seen in Youth Justice Conferences established witnesses for the prosecution to robust questioning. This has been
under the Young Offenders Act 1997 (NSW). This is discussed in more viewed as an important part of ensuring people are not wrongly
detail in Chapter 9. Youth Justice Conferences are an attempt to divert convicted. Finding the balance between ensuring the accused
young first-time offenders away from the court system and hence is able to pursue a defence fairly while avoiding re-victimising a
a criminal record. Their aim is to act as a ‘circuit breaker’ in a young victim is a challenge, and a specialist court may be better placed
person’s behaviour trajectory. A conference may involve members of to achieve this.
the community, the offender’s family, the victim and his or her family,
and professionals such as a social worker. Youth Justice Conferencing capital punishment the practice Youth Justice Conferences
of sentencing a person to death meetings of all the people who
has enjoyed support from the community, as it has achieved positive
by judicial process; also referred may be affected by a crime
results for young first-time offenders. Some have argued that it should to as the ‘death penalty’ committed by a young offender;
be used for a wider range of offences, including serious offences, used to help them to accept
responsibility for their actions
because it obliges the young person to consider the consequences of while avoiding the court system
his or her actions, in particular the harm caused to the victim.
Other law reform initiatives to address new concepts of justice
include circle sentencing for Indigenous offenders, the NSW Drug
Court and the enforcement of parenting orders in the Family Court, Research 4.1
to name a few. All of these reforms are attempts to deal with issues Refer to www.cambridge.edu.au/prelegal3weblinks for a list
that the current laws were clearly failing to address. of websites to research law reform in the areas listed below.
There has also been some speculation about the introduction of Identify how the initiatives work and assess whether they are
a specialist court to deal with sexual assault matters. This has been an improvement on the previous ways in which the law dealt
put forward because of a range of issues, including the sensitivity with these issues.
with which victims are treated during the legal process and an Circle sentencing
understanding of the context of sexual assault and what that means
NSW Drug Court
with respect to the physical collection of evidence from victims, in
Enforcement of parenting orders
addition to proving that consent was not given. Our legal system is

Case Study
New concepts of justice to combat domestic violence
Domestic violence is different from violence perpetrated on As more became understood about the perpetrators
the street, in schools or in the workplace. The Women’s Action and circumstances of domestic violence, significant law
Alliance defines domestic violence as ‘violence occurring within reform continued to unfold. Some of these developments
a household or between family members. Its most common have included:
form is violence by a husband against a wife (legal or de facto) ➥ The Crimes (Domestic Violence) Amendment Act 1993 (NSW)
but it can also include violence by wife against a husband or
– allowed police to apply for interim ADVOs after hours
child against parent. Violence by parent against child is more
by telephone, as well as making it an offence to ‘stalk’ or
commonly referred to as child abuse’.
‘intimidate’ a person.
Domestic violence can be manifested sexually, physically or
➥ The Crimes Amendment (Apprehended Violence) Act 1999
verbally and in most cases causes psychological harm to the
(NSW) – distinguished between orders taken out for
victim. Victims of domestic violence are usually isolated socially
domestic violence and those relating to ‘personal violence’
and they often stay in these relationships for many reasons,
in other situations, such as disputes between neighbours.
including fear of reprisal.
In addition, the police must record in writing why they did
In the past, victims of domestic violence had to report an
not proceed with criminal charges for a breach of an ADVO.
incident to the local police. In many cases the victim was told that
➥ Amendments to the Bail Act 1978 (NSW) – removed
this was a private matter more appropriately sorted out within
the presumption that bail will be granted in relation to
the family. Research has indicated that the initial response of the
police to a victim’s report of domestic violence will determine domestic violence offences or breaching an ADVO, where
whether that victim proceeds further with the complaint. the defendant has a history of violence.
➥ Amendments to the Firearms Act 1989 (NSW) – allowed
The victim also had to rely on assault provisions under
the relevant criminal legislation. Not only were there often police to seize any firearms present when called to the
delays in bringing the matter to court, but the necessity of scene of a domestic violence incident.
proving the charge beyond reasonable doubt could be a high After 30 years of amendments to various legislation, especially
hurdle when the evidence was essentially one person’s word the Crimes Act, it was felt that the crime of domestic violence
against another’s. Victims of domestic violence incidents had deserved a stand-alone Act of Parliament. Hence the Crimes
inadequate protection under the law and it was clear that the (Domestic and Personal Violence) Act 2007 (NSW) was passed
legislation was not sufficient. and took effect in 2008.
This Act repealed Part 15A of the Crimes Act, which dealt
Legislation
with apprehended violence orders, and re-enacted those
In New South Wales, the Crimes (Domestic Violence) Amendment
provisions as a new Act, with some modifications and
Act 1982 (NSW) inserted new provisions into the Crimes Act
additional provisions. It was also felt that domestic violence
1900 (NSW), introducing the concept of an Apprehended
was treated as a lesser crime, hidden in the Crimes Act. Under
Domestic Violence Order (ADVO). ADVOs could be obtained
the new Act a person may be charged with a ‘domestic violence
by victims through the Local Court or the police. The court
offence’. While the acts constituting such an offence are not
must be satisfied ‘on the balance of probabilities’ that the
new, being charged with the criminal acts under the new name
person has reasonable grounds for fear – a lower standard of
has significant implications for bail, the offender’s criminal
proof than ‘beyond reasonable doubt’. An ADVO can be tailored
record and any future convictions.
to suit the victim’s situation; for example, it can forbid the
Under s 38, an ADVO made to protect an adult must
accused from coming close to the victim’s children, residence,
automatically include any children living with that adult,
place of work, or another specified place that the victim
unless sufficient reasons are given as to why they should
frequents. It is a criminal offence to breach an ADVO but the
be left off.
ADVO is not itself a criminal conviction.

PART I
Case Study (continued)
Additional domestic violence initiatives in New South Wales
The NSW government has recognised that there is still room 12 weeks, in an effort to minimise the stress and trauma on the
for improvement, with respect to both the protection of victim and any children.

victims and the prevention of domestic violence in the future. The DVICM, which was trialled in Campbelltown, Macquarie
The Domestic Violence Intervention Court Model (DVICM) Fields and Wagga Wagga, also offers support to offenders
involves a coordinated response to domestic violence by the to assist with their own psychological and social difficulties.
police and government agencies in an attempt to support Police and correction officers are involved in the process.
victims and break the cycle of violence. The photographic evidence was initially credited with an
Once a report is made the police will make an immediate increase in guilty pleas by offenders, from 50% in 2004 to
request for an ADVO. They can also initiate an arrest approximately 63% by 2006.
warrant with strict bail conditions and begin targeted case The NSW Bureau of Crime Statistics and Research (BOCSAR)
management processes focusing on protection. Upon commented on the program in 2012 and found the results
arriving at the scene of an incident, they can, with the mixed. It found that the program did account for some
consent of the victim, use video and still-image cameras improvements in police and court response to domestic
to photograph the scene and any injuries, and record any violence cases and did reduce the time taken to finalise
witness statements. matters in Campbelltown and Wagga Wagga. It showed an
Thereafter, weekly meetings with representatives from increase in the proportion of persons charged in the Macquarie
welfare agencies, the Local Court, the Department of Fields area but no change in the other two.
Community Services and the police are scheduled, to assist While an increase in financial resources, as well as political
the victim and ensure that his or her needs are met. The will, is necessary to ensure the ongoing effectiveness of
Office of the Director of Public Prosecutions will also provide programs such as the DVICM, some of the positive results to
a prosecutor specifically trained in the legal and social issues date indicate that such costs would assist in some measure
associated with domestic violence cases, who will handle the towards breaking the cycle of violence and protecting
case from start to finish. Each case is to be finalised within individuals in their own homes.
changed the way people in industrialised countries lived over

Apprehended Domestic Violence Order (ADVO) a court order used
for the protection of a person involved in an intimate, spousal or de facto the course of the 20th century, and required the introduction of
relationship new laws for safety, ownership and licensing, and (eventually)
environmental protection.
The development of life support devices and treatments since
Legal Links the 1960s has meant that the legal definition of death had to be
changed. Rather than referring to the cessation of respiration and
Follow the link at www.cambridge.edu.au/
heartbeat, most jurisdictions now require the irreversible cessation
prelegal3weblinks for more information about the
of all functions of the entire brain, as it is now possible to keep a
law relating to domestic violence.
person’s heart and lungs operating for a significant period of time,
but with no brain function.
More recently the progress made in ‘birth technologies’ has
New technology also seen changes to laws at both state and federal level to resolve
issues about parentage, inheritance, and financial maintenance. As
Advances in technology always put the law under pressure to children can now be conceived from donated biological material,
remain current. New technology contributes to changes that the law had to clarify and differentiate biological rights and
may be either radical and sweeping or subtle and incremental. obligations from ‘social’ rights and obligations deriving from the
For instance, the invention of the petrol-powered motor vehicle family roles and relationships in which people actually live.

The use of DNA evidence in criminal matters has led to The Law Society’s criminal law committee believes delays in
convictions where previously, without other physical evidence, DNA analysis are still common, and predicts that the adverse impact
there would have been no conviction. As technology has improved, on the criminal justice system caused by backlogs at the laboratory
so have the chances of solving previous ‘cold cases’. In NSW, there will worsen.
are more than 400 unsolved homicides, dating back as far as 1975.
forensic relating to the detection and investigation of crime
Because DNA is very stable and can last for a significant period of
time, biological material collected can still be used, decades later,
to create DNA profiles for analysis. Many ‘cold’ cases are being
reopened for police investigation, with DNA evidence and analysis
being a key factor.
The Crimes (Forensic Procedures) Act 2000 (NSW) was introduced
to set guidelines for the DNA testing of criminal suspects. The Act
sets out who may be tested and who may order the test, as well as
detailed requirements for how the procedures may be conducted.
The manner in which a DNA sample is obtained can determine its
admissibility in court.
In 2007, several amendments to the Act took place. Among other
changes, s 11 was revised to allow DNA samples to be collected
from suspects in an increased range of offences, which include
some indictable offences as well as a number of summary offences.
Another major change concerned the period of time that a
suspect’s DNA material could be kept for forensic use. Under the Act
prior to the 2007 amendments, DNA material had to be destroyed
after 12 months if the criminal case against the person did not
proceed. However, under the amended s 88(2)(c), where DNA has
been collected from a suspect who ends up being convicted of a
different crime as a result of an investigation of the same acts, the
DNA material does not have to be destroyed.
Such provisions are intended to increase conviction rates. Some
have argued, however, that without sufficient legislative protections
relating to the use of this technology, there can be an erosion of the
rights of accused persons. For example, the wait time for the results
of a DNA test can be up to 180 days. This raises serious issues if the
prosecution case is dependent on that evidence, especially if the
accused has been refused bail.
In order to speed up the process, the NSW government
decided in 2008 to outsource some of its testing to private
laboratories. Such delegation of responsibility will generally
require further safeguards to ensure the privacy, confidentiality,
and integrity of the testing procedures. However, in 2010 delays
had not improved despite the state government saying that
resources had been boosted in this area. In 2011, 67 innocent
Figure 4.5 Advancements in technology and social media resulted in
people spent an average of 239 days in custody before being enormous social change, including changes to legal systems around
exonerated by the District Court. the world.

PART I
Research 4.2
Using the internet, research the types of criminal activities
that can be carried out under the following activities:
➥ terrorism

➥ unlawful immigration
➥ fraud involving email and the internet
➥ dissemination of obscene materials electronically
➥ funds transfer fraud
➥ health benefits fraud
➥ social security fraud.
4.3 Agencies of reform

As discussed above, there are various reasons as to why the law may
become dated or no longer able to regulate society in a fair and
Figure 4.6 Advances in medical technology, such as IVF, create new just manner. The extent to which the law may need to be reformed
challenges for the law.
is usually investigated and reported upon by one or more of the
following organisations or groups.
Review 4.2
Law reform commissions
1 What are the factors that have to be balanced
when introducing new legislation or amendments Law reform commissions have been established by various
that use scientific advances to increase police
parliaments within their own jurisdictions to report on
investigative powers?
matters referred to them under what is called the terms of
2 What are some other scientific advances that have led reference for a particular inquiry. The reports may contain
or may lead to legislative changes? List some of the
recommendations for ways to modernise or simplify the law, or to
factors that need to be considered or balanced when
eliminate defects.
making changes.
An essential feature of law reform commissions is that they
are independent of the parliament that established them. This
is important because political interference in the research and
reporting process can skew the findings. It has also been said that
when a government provides the terms of reference for an inquiry
into an area of law reform, it should not already know the answer.
In other words, the government should not know what the end
result or recommendations will be.
For the purposes of our area of study, the two law reform
commissions to be examined are the Australian Law Reform
Commission and the NSW Law Reform Commission.
terms of reference a set of guidelines used to define the purpose and

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

Case Study
Identity theft Legislative provisions for identity theft in NSW
Over the past ten years there has been an increase in what Section 192E of the Crimes Act 1900 (NSW) is the provision most
is known as ‘identity theft’ or ‘identity fraud’. With the directly relevant to identity theft.
development of more sophisticated computers, scanning Subsection (1) states:
devices and software applications, this type of crime has A person who, by any deception, dishonestly:
become easier. It is also attractive, as it can yield significant a) obtains property belonging to another, or
rewards with a high probability of not being caught. b) obtains any financial advantage or causes any financial
Identity theft has the potential to cause immediate financial disadvantage,
loss as well as damage to a victim’s credit rating and reputation. is guilty of the offence of fraud. Maximum penalty:
Imprisonment for 10 years.
It can also be psychologically distressing to know that someone
Section 192E is contained in the new Part 4AA, which deals with
else is using your identity to engage in serious criminal
fraud. Also enacted were Part 4AB, which deals with identity
activities. Those activities could include using credit card
offences specifically, and Part 4AC, which deals with money
numbers; fraudulently obtaining loans, government benefits
laundering. Specific sections within these Parts defined such
or employment benefits; evading the payment of taxes; money
terms as ‘deception’, ‘obtaining financial advantage or causing
laundering; drug smuggling; people smuggling; or stalking or
financial disadvantage’ and ‘identification information’.
intimidating someone.
The theft or assumption of another person’s identity, or the Other sections in these Parts of the Crimes Act that could be
use of his or her personal information, was not itself a criminal used to prosecute identity crime include:
offence in most Australian jurisdictions until recently. (The first ➥ dealing with identification information (s 192J)
states to enact legislation specifically criminalising identity ➥ possession of identification information (s 192K)
theft were South Australia and Queensland, in 2003 and 2007, ➥ possession of equipment etc to make identification
respectively.) Rather, it was what was done with the stolen documents or things (s 192L)
identity. Because assuming another person’s identity was a ➥ intention to defraud by false or misleading statement
preparatory step in the commission of offences such as fraud (s 192G)
or theft, such offences could be used to prosecute the identity ➥ intention to defraud by destroying or concealing accounting
theft. However, that requires the prosecution to prove the records (s 192F).
associated offence. Unauthorised access to and modification of computer data are
It can be difficult to adapt specific theft, fraud and forgery covered in Part 6 of the Act, and these also might be used to
offences to fit the facts of identity crime. Much existing prosecute identity crime.
legislation, including the provisions in the Model Criminal Code
referred to in Chapter 3, requires at least proof that the accused identity theft obtaining or fraud a dishonest act, done
using the identity of another intentionally in order to deceive
had the intent to use the information in his or her possession to
person in order to commit a
obtain a financial benefit. However, identities can be assumed range of fraudulent activities,
for other reasons, for example to cross national borders for the usually to obtain financial gain
purposes of organised crime or terrorism.
Law reform in this area could include the enacting of state
and federal legislation creating one or more general identity
crime offences. In 2008, this was the recommendation of
the Model Criminal Law Officers’ Committee of the Standing
Committee of Attorneys-General. The model offences would
include making, supplying or using information about a
person that is capable of being used to identify him or her;
possessing such information with intent to commit or facilitate
Figure 4.8 The advent of digital technology has made identity theft
an indictable offence; and possessing equipment to create such easier to commit and more difficult to prosecute because offences are
information. committed across jurisdictional borders.

PART I
The Australian Law Reform Commission Prior to this inquiry, research by the NSW Bureau of Crime
Statistics and Research in 2002 showed that 8 per cent of trials
The Australian Law Reform Commission (ALRC) was established in in the District Court between 1998 and 2001 resulted in a
1975 and operates under the Australian Law Reform Commission Act hung jury. It also showed that in over 90 per cent of these hung
1996 (Cth). It is an independent statutory (set up by a statute) body. juries the vote was 7–5 or 8–4. Given these statistics, there did
The main role of the Commission is to review Commonwealth not appear to be a strong basis for changing the system. There

laws relevant to matters referred to it by the Attorney-General, to weren’t many cases in which a jury was unable to return a verdict
conduct inquiries into areas of law reform in these areas, and to because of one juror. Other arguments for majority verdicts were
advise the government on how the law can be changed to meet that it would make verdicts quicker and easier, would create less
current needs. It also works to bring about harmonisation of pressure on jurors, and would be consistent with most other
Commonwealth, state and territory laws where possible. It must Australian jurisdictions.
ensure that laws, proposals and recommendations do not trespass Arguments for retaining unanimity included:
on personal rights and are consistent with Australia’s international ➥ It accords with the principle of ‘beyond reasonable doubt’.
obligations, particularly in the area of human rights. Arguably, if one or two jurors are not confident that the accused
An inquiry involves a process of research and consultation. is guilty, that is enough to constitute reasonable doubt.
Once the ALRC has completed an inquiry and report, it will ➥ It allows for greater deliberation of the issues.
make recommendations to the federal government through the ➥ Juries may disagree for good reasons.
Attorney-General. The government can accept all or some of the ➥ It promotes community confidence in the justice system.
recommendations or can ignore the report altogether. Sometimes ➥ It is consistent with the requirement of unanimity in trials for
the political climate at the time may determine whether the Commonwealth offences.
Commission’s recommendations become enacted into law. ➥ The number of hung juries is relatively small.
In its annual reports, the ALRC publishes a summary of the In its conclusions the Commission stated:
implementation status of its recommendations. More than
We believe that until a comprehensive study is conducted in NSW
80 per cent of ALRC’s recommendations have been either to determine the existing practices in NSW jury trials, and what
substantially or partially implemented by the government. improvements need to be made, no major overhaul of the jury
Some of the more recent areas of law reform examined by the system should be attempted … The facts are that we simply do not
know enough about how actual juries really deliberate and why they
ALRC are the federal sedition laws, privacy laws, and freedom
reach the decisions they do … Until more information is uncovered
of information legislation. as to the problems that need to be addressed, the introduction of
majority verdicts would be of limited value.
The NSW Law Reform Commission Despite this advice, the NSW government passed the Jury
Amendment (Verdicts) Act 2006. It amends the Jury Act 1977 (NSW)
This Commission was set up under the Law Reform Commission Act
to allow majority verdicts of 11–1 or 10–1 after a reasonable
1967 (NSW). It was the first of its kind in Australia. It has a similar
time for deliberation has passed (not less than eight hours) and
role to that of the ALRC, but at the state level: to consider the
where the court is satisfied that it is unlikely the jury will reach a
laws of NSW with a view to eliminating aspects of the law that are
unanimous verdict.
out of date, unnecessary, too complex, or defective. Its role also
includes consolidating overlapping legislation, hence simplifying harmonisation agreement among the laws of different jurisdictions
the law. The NSW government will refer issues to the Commission
for investigation as to what, if any, law reform is necessary. In its
research it will generally consult with the public. sedition words or acts said or done with the intention of urging others
to use force against the government
A report released by the Commission in 2005 was on majority
verdicts in criminal trials.
The proposal was to investigate changing from unanimous
hung jury a jury that is unable to reach agreement
verdicts to majority verdicts of 11 or 10 jurors.

It appears that the changes may have been politically motivated, A ‘standing committee’ is a committee that is permanent during
rather than to reform a law that was not working. An appeal to the the life of the body that appointed it. Standing committees inquire
‘law and order’ vote has been a common feature of the political into and report on matters referred to them by the Senate or House
landscape since the late 1980s in NSW. A reason given for the of Representatives, including estimates of expenditure, bills, and
introduction of the law was to protect the victims of crime from the performance of departments allocated to them. An example
the anguish of a lengthy retrial. The extent to which this law will of such a committee is the Senate Standing Committee on Finance
compromise the right of the accused to a trial with the highest and Public Administration.
standard of proof remains to be seen. ‘Select committees’ are small committees appointed for a
The NSW Law Reform Commission handed down its report particular purpose, or a once-only task.
on bail in 2012, which included a discussion on the merits of s 22A Once a committee has been asked to undertake an inquiry, the
of the 2007 Bail Act. A number of interest groups made submissions terms of reference are drawn up. Members of the public as well as
to the Commission in a bid to influence its final report. The extent experts in a field may be asked to give submissions. The committee
to which the NSW government will adopt the recommendations will hear witnesses, examine evidence, and formulate conclusions.
of the Commission will depend on economic and political The media usually attend and report on committee proceedings.
considerations. Reference to this issue is made in the HSC text in As the hearings are conducted in public, every submission is
the area of Young Offenders. recorded in Hansard and available on the internet. At the end of the
inquiry the committee will write and table a report in parliament.
Research 4.3
Hansard a full account of what is said in parliament or in parliamentary
Follow the link at www.cambridge.edu.au/ inquiries; named for English printer T. C. Hansard (1776–1833), who first
printed a parliamentary transcript
prelegal3weblinks to the Australasian Legal Information
Institute and select from one of the NSW Law Reform
Commission’s completed reports dating from 2005.
table to place on the table for discussion
Provide a brief outline of the following:
➥ the purpose of the report
➥ the findings of the report.
Ask your teacher for some assistance as you review the The media
report you have chosen.
One of the hallmarks of a sound working democracy is a ‘free’
and ‘fair’ press. This means that the government is not able to
Parliamentary committees influence what is reported and how it is reported, so stories
that reach the public are an accurate account of what is really
Parliamentary committees can be established by both houses happening. Another essential feature of a working democracy is
of parliament. For example, at the federal level the House of diversity of media ownership to dilute the influence of individuals
Representatives and/or the Senate may not have sufficient time or media companies who may have a particular ideological view
in parliamentary sitting sessions to discuss issues that arise to push.
from a particular piece of legislation. There may be flaws in the Because of their large audience and geographical reach, current
effectiveness of a law or the legislation may be particularly complex, affairs programs like the ABC’s 7.30 are able to interview important
requiring greater scrutiny. Committees scrutinise government political figures, such as the Prime Minister, state Premiers and
activity, including policy and administrative decisions, and oversee Cabinet ministers, about contentious issues. Keeping citizens
the expenditure of public money. informed allows them to apply public pressure on governments to
A vote is usually taken to take something to committee. address injustice, incompetence or corruption. Thus the media can
A committee may involve only Senators or only Members of the be a powerful vehicle for holding governments accountable.
House of Representatives. A ‘joint committee’ will have both The effectiveness of non-legal mechanisms in influencing law
Members and Senators. reform can depend on the politics of the day. For example, an issue

PART I
➥ Their aim is to improve people’s circumstances and
prospects, within the scope of their mission.
C. Ball and L. Dunn, Non-Governmental Organisations in the
Commonwealth: Guidelines for Good Policy and Practice
(The Commonwealth Foundation, London, 1994)
NGOs can work with governments where there are shared goals.

The Australian government’s overseas aid program has the aim
of reducing poverty in developing countries. The program is
managed by the Australian Agency for International Development
(AusAID). Among other tasks, AusAID provides funding for NGOs
Figure 4.9 Current affairs programs on television are able to influence within Australia, such as ActionAid, that have this particular
popular opinion and apply public pressure on issues of social and legal
importance.
mission and that undergo an accreditation process to ensure that
they have strong community support.
that affects voters in a hotly contested electorate, or an electorate As a mechanism for law reform, the effectiveness of NGOs
that is part of the government’s key support base, is more likely to can vary. Some NGOs, such as Amnesty International, discussed
be addressed than one that affects voters in a safe seat. If votes in in Chapter 2, and Greenpeace have developed a formidable
an electorate do not pose a threat to seats in parliament, then the reputation in their pursuit of goals such as human rights and
issue may be ignored in the hope that it will eventually fade from combating environmental threats. Consequently, they now have
public attention. the resources and the tactics, developed over many years, to put
The modern media can promote law reform simply by reporting pressure on nations.
the stories of individuals who suffer discrimination, persecution or Due to NGOs’ independent status, however, governments
financial loss due to a poorly framed law. For example, the plight and other institutions can ignore them and continue to carry out
of victims of sexual assault has received significant attention by practices that are contrary to the NGOs’ goals. The Royal Society for
all forms of mass media over the past few years. The resulting law the Prevention of Cruelty to Animals (RSPCA) has campaigned for
reform recognised that sexual assault is a ‘special crime’ which an end to live animal exports to other countries, but the Australian
cannot be treated as all other crimes and requires additional legal government is reluctant to stop this profitable trade.
responses. This will be examined in greater detail in Chapter 5.
Non-government organisations
(NGOs) Figure 4.10 ActionAid Australia (formerly Austcare) is part of an
international anti-poverty agency that is active in over 40 countries.
Non-government organisations (NGOs) are organisations that are

independent of governments. They are under no obligation to Lobby groups
conform to any government policy and therefore can be a source
of objective information about various issues around the world. A lobby group is an organised group of people who try to influence
This is particularly important for people who live in countries with government ministers or other Members of Parliament to advance
repressive governments that restrict freedom of speech. their social or political agenda. The goal may be to change the law,
The common characteristics of NGOs have been identified to keep a particular law that already exists, or to introduce new laws.
as follows: Lobby groups target Members of Parliament, parliamentary
➥ They are formed voluntarily by individuals. committees, the media and the public as well as governmental
➥ They are independent of government. inquiries. They may do this by writing letters, requesting a
➥ They are not for private personal gain or profit. Money
meeting with a representative or Senator, or making policy
generated goes towards the goals of the organisation,
submissions, or by writing letters to the editor or calling talkback
though it may also be used to produce information and
for expenses such as utilities, publications, and paid radio. A lobby group may also be an NGO, an industry group or
employees. other interest group.

The Lone Fathers Association of Australia has been a strong
Courts
advocate for ‘shared equal parenting’. Amendments to the Family
Law Act 1975 (Cth) in 2006 were intended to encourage the use The manner in which courts make law through precedent, as
of non-court-based services to deal with relationship difficulties outlined in Chapter 2, can be considered a means of law reform.
and separation, and to ensure that children have meaningful Precedents made in higher courts clarify what the law should
relationships with both parents after a separation or divorce. be, in cases where the law is in an early stage of development or
A number of organisations, including the Women’s Refuge where there is a need to clarify the meaning of words contained
Resource Centre, the Family Law Director of NSW Legal Aid and in legislation.
Women’s Legal Services NSW made submissions to a state inquiry Sometimes, matters come before a court before they have been
into the effects of the amendments, expressing concern that they considered by parliament. However, courts do not consciously set
not only subordinated children’s best interests to the interests out to reform the law. The role of judges is to deal with the matter
of the parents, but also offerred reduced protections for victims before them, and as such law reform in the courts comes about
of family violence. A former Chief Justice of the Family Court, in an ad hoc or piecemeal way. Although changes to the law do
Alistair Nicholson, commented that the amendments were ‘ill- occur as a result of judicial decisions, they do so over an extended
researched, unduly influenced by fathers’ groups and did little to time frame.
reform family law’. Even so, it is well recognised that courts, especially the High
Further reform to the Family Law Act 1975 (Cth) to attempt to Court of Australia, have delivered and will continue to deliver
address the adverse fall-out of the previous reforms, came into decisions that revolutionise the legal landscape in Australia.
effect in June 2012. Lobby groups can be important agents of law An obvious example is the 1992 Mabo decision declaring that
reform as long as some groups’ interests are not favoured over native title still existed within Australia and that the concept of
others simply because they are better organised and can more ‘terra nullius’ was a legal lie perpetuated by the British at the time
effectively articulate their views. of settlement.
Review 4.3 Parliaments

1 Compare and contrast the aims and methods of the
Parliaments today are the institution where most law reform is
following agencies of law reform:
realised. The process of changing the law occurs through the
a Law reform commissions and lobby groups
passage of bills.
b Parliamentary committees and Law Reform The impetus for this type of change, however, usually comes
Commissions
from other sources: namely the conditions that lead to law reform
c Lobby groups and the media and the agents of reform. Detailed knowledge of the subject matter
d Lobby groups and NGOs is often required to report and comment accurately on areas where
2 What are some of the ways individuals can contribute to reform is needed, and parliamentarians’ expertise does not always
an inquiry by a law reform commission or a parliamentary extend to this level.
committee on an issue that concerns them? The parliament is still a place, though, where proposed laws are
debated. This can be a rigorous and intense process, especially if a
proposed law is controversial or is a radical departure from previous
4.4 Mechanisms of laws. If a political party holds government, it obviously has a greater
chance of its bills being passed. A bill’s fate, however, may depend
law reform on which party or parties hold the balance of power in the Senate
or, in NSW, the Legislative Council.
The mechanisms of law reform are the ‘machinery’ that actually Political parties present their policies to the voters prior to
brings about changes. These include judicial and legislative each election, and if voted into power they are expected to fulfill
branches of government, as well as international organisations. these promises. For example, the Labor Party, under former

PART I
leader Kevin Rudd, campaigned in 2007 with the promise of
Other agencies
repealing John Howard’s ‘WorkChoices’ legislation. By the end
of 2008, the Rudd government had introduced new workplace Other agencies of law reform also exist and are listed below. Follow
relations legislation that abolished some of the harsher elements the links at www.cambridge.edu.au/prelegal3weblinks to research
of WorkChoices. In 2012, the Gillard government, being a minority the role they perform in contributing to law reform in Australia.
government, had to make many compromises with the Greens

Royal Commissions
Party and independent Members of Parliament in order to pass The NSW Coroner
legislation through the parliament. In contrast the O’Farrell Liberal The Office of the NSW Ombudsman
government in NSW (2011) and the Newman Liberal government in The Australian Human Rights Commission
Queensland (unicameral house: 2012), had commanding majorities
that made the passage of legislation a smoother process.
As parliament is the branch of government that makes law, it will
continue to be the main mechanism by which major law reform will
be carried out.
precedent a judgement that is balance of power the power

authority for a legal principle, held by the political party
and that provides guidance for whose vote is needed to pass Figure 4.11 The United Nations, Geneva
deciding cases that have similar legislation; usually determined
facts in the upper house of parliament
under the Westminster system of Legal Info
government
Amending acts
The United Nations Parliament must pass another act to amend an existing act.
For example, the Crimes (Forensic Procedures) Amendment Act
The United Nations is the chief organisation involved in 2007 (NSW), which changed several sections of the Crimes
international law. The role of the United Nations in the (Forensic Procedures) Act 2000 (NSW), was enacted and
development and implementation of international treaties was came into force through normal parliamentary procedures.
However, you will not find it in the current statutes of NSW,
outlined in Chapter 2. As such it is the primary mechanism in the
because it has been repealed. Indeed, s 4(1) of the Act states
evolution and reform of the law governing states.
that ‘this Act is repealed on the day following the day on
The effectiveness of the UN in promoting peace and security
which all of the provisions of this Act have commenced’.
around the world via international law is discussed in more detail in
What’s going on? Amending acts are passed for a very specific
Chapter 2. Law reform may take place when Australia implements
purpose: to amend another piece of legislation. Once this is
a treaty by passing domestic legislation that takes account of the done they are often no longer needed, though they must
international obligations. contain a provision to guard against their purpose being
‘undone’ when they are repealed. Section 4(2) of the Crimes
Intergovernmental organisations (Forensic Procedures) Amendment Act 2007 states that ‘the
repeal of this Act does not … affect any amendment made
As mentioned in Chapter 2, many intergovernmental organisations by this Act’. The function of an amending act is just that: to
(IGOs) are subsidiaries of the UN. These bodies are established amend. The act that it amends is called the ‘principal Act’.
to meet and decide upon certain international issues, such as View some amending acts, and previous versions of principal
acts, by choosing ‘History’ or ‘Acts (Point-in-Time)’ in an
refugees, tariffs and wealth. To this extent they contribute to
online legislation database.
international law reform on a global as well as a regional scale
through the promotion and development of multilateral and ‘Consolidated Acts’ and ‘In Force Legislation’ will contain acts
that are currently in force – i.e. that have not been repealed.
bilateral treaties.

Chapter summary
➔ Law reform is the process of changing the law to make it more ➔ Parliamentary committees are established by both houses of
current, correct defects, simplify it, and remedy injustice. parliament to examine ways of addressing flaws in legislation or
➔ The conditions that give rise to law reform are changing social simplifying the effectiveness of a law or to examine more closely
conditions, new concepts of justice, and new technology. legislation that is particularly complex. It could also be the case
➔ The law must reflect social values if it is to stay relevant, and to that developments within society warrant greater attention
ensure a high rate of compliance. from the legislature and therefore a committee is set up.
➔ When the law fails to deliver just outcomes to individuals or ➔ The media influence law reform by keeping citizens informed
groups within the community, it may mean that new concepts and holding governments accountable.
of justice are needed. ➔ Non-government organisations (NGOs) are organisations that
➔ The rate of technological change in the world today has put are independent of governments. Their aim is to influence
the law under significant pressure to stay current. The law governments to make changes that will improve people’s lives.
must change to accommodate new possibilities. ➔ The primary mechanisms of law reform are the courts and
➔ Law reform commissions have been established by various parliaments. The United Nations can be a mechanism of law
parliaments within their own jurisdictions to report on matters reform in Australia through the country’s participation in
referred to them. They are independent of government and international treaties.
submit recommendations that the government can implement
fully, partially or not at all.

PART I

1 Which of the following statements is the most correct way to 4 Which of the following is not an agent of law reform?
describe public morality? a unions
a a shared set of religious beliefs b the Queen
b crimes committed against the community c superior courts
c similar values and beliefs held by the majority of the d lobby groups
community at a particular point in time 5 What could citizens do about a federal law that explicitly
d the shared set of beliefs held by the Australian Parliament discriminates against naturalised citizens who were born
2 Law reform is necessary at times because technology advances overseas?
at a rate faster than the law. Which of the following is not an a Form a law reform commission at local level.
area in which the law has had to change due to technological b Bring defamation proceedings against TV or radio stations
change? that run programs on that law.
a identity theft c Call talkback radio stations and form a lobby group to
b same-sex relationships pressure parliament.
c IVF procedures d Lobby the state Supreme Court.
d collection of DNA evidence
3 Law reform commissions have been set up by parliaments
to investigate areas of potential law reform. Which of the
following determines the scope of their investigation?
a ministers’ directions to the Commission
b terms of reference
c public opinion
d media commentary

1 Explain what is meant by law reform. 6 Outline some of the problems that have arisen with the advent
of DNA evidence.
2 Explain why changing social conditions contribute to the need
for law reform. 7 Explain why identity crime can be difficult to prosecute.
3 Explain, using examples, how the law has lagged behind 8 Explain the extent to which law reform commissions are an
technology. effective instrument for changing the law.
4 Discuss the reasons why Australia no longer imposes capital 9 Explain how the United Nations can be a vehicle for law reform
punishment for murder. in Australia.
5 Describe the extent to which the law has improved its response 10 Outline the strengths and weaknesses of the courts and
to domestic violence. parliament as vehicles for law reform.

Chapter 5
Law reform in action
Chapter objectives
In this chapter, students will: ➔ discuss the role of law in initiating and responding to change
➔ identify and apply legal concepts and terminology ➔ locate, select and organise legal information from a variety
➔ discuss the effectiveness of the legal system in of sources including legislation, cases, media reports,
addressing issues international instruments and documents
➔ investigate the interrelationship between the legal system ➔ account for differing perspectives and interpretations of
and society legal information and issues
➔ discuss the role of law in encouraging cooperation and ➔ communicate legal information using well-structured
resolving conflict responses.
Topic 1: Law reform and Topic 2: Law reform and sport Topic 3: Law reform and
native title assault sexual assault
dispossession civil litigation complainant
martial law conciliation consent
native title contempt of court in camera
nomadic express consent sexual assault
pastoralists indictable offence
terra nullius sponsorship
tort law
trespass to the person
vicarious liability

PART I
Chapter 5: Law reform in action
Important legislation Significant cases
Racial Discrimination Act 1975 (Cth) Mabo v Queensland [1988] HCA 69
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Mabo v State of Queensland (No. 2) (‘Mabo case’) [1992] HCA 23
Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141
Native Title Act 1993 (Cth) Wik Peoples v Queensland (‘Pastoral Leases case’) [1996] HCA 40
Native Title Amendment Act 1998 (Cth) Members of the Yorta Yorta Aboriginal Community v Victoria
[2002] HCA 58
Native Title Amendment Act 2007 (Cth)
Native Title Amendment Act (Technical Amendments) Act 2007 (Cth)
National Parks and Wildlife Act 1974 (NSW)
Aboriginal Land Rights Act 1983 (NSW)
Topic 2: Law reform and sport

Racial Discrimination Act 1975 (Cth) Gardner v AANA Ltd [2003] FMCA 81
Anti-Discrimination Act 1977 (NSW) Bugden and Canterbury-Bankstown v Rogers (1993) ATR 81-246
Sex Discrimination Act 1984 (Cth) Taylor v Moorabbin Saints Junior Football League and Football
Victoria Ltd [2004] VCAT 158
Australian Sports Commission Act 1989 (Cth)
Disability Discrimination Act 1992 (Cth)
Crimes Amendment (Cheating at Gambling) Act 2012

Criminal Procedure Act 1986 (NSW) R v Anon (Gang-rape case)
Criminal Procedure Amendment (Sexual Offence Case R v MM
Management) Act 2005 (NSW)
R v Mc
Criminal Procedure Amendment (Evidence) Act 2005 (NSW)
R v Mak and others
Criminal Procedure Further Amendment (Evidence) Act 2005 (NSW)
R v BS and MS (Gang-rape trial)
Crimes Amendment (Consent – Sexual Assault Offences) Act 2007 (NSW)

Topic 1: Law reform and Aboriginal and Torres Strait Islander people were ‘savages’, with no
concept of land ownership. There were no fences, landlords, tenants
native title or farms to speak of, and no signs to indicate ownership; therefore,
the British government declared the land terra nullius (see page 97).
5.1 Conditions that led to The colonial laws and policies relating to Indigenous people
law reform on native title did not serve their interests, but were suited to the white colonists’
interests. Some examples of these laws and policies can be seen in
Table 5.1.
In basic terms, ‘native title’ refers to the right to land by the original
inhabitants. In Australia it has a legal significance and it is a right nomadic a term used to describe people who tend to travel and change
to an area of land, claimed by peoples whose ancestors were the settlements frequently
original inhabitants before European settlement and who can prove

that they have had a continuous association with that land.
In fact, the term has such significance that it is the name given by
the High Court to Indigenous property rights as recognised by the
Court in Mabo v Queensland (No. 2) (‘Mabo case’) [1992] HCA 23. The
Mabo decision was the first legal recognition that the Indigenous
people of Australia had a system of law and ownership of their lands
that existed long before European occupation and settlement. This
recognition overthrew the idea of terra nullius and subsequent
cases have led to efforts to enshrine native title in legislation.
native title the right of Indigenous people to their traditional lands
History of government policy

‘Aboriginals’, as they were called by past generations, are more
appropriately referred to as ‘Indigenous Australians’, as this term
encompasses both Aboriginal and Torres Strait Islander peoples.
Torres Strait Islanders are of Melanesian origin. One of the most
famous Torres Strait Islanders is the late Eddie Mabo, who was born
on Murray Island (Mer) and belongs to the Meriam people. We will
refer to Eddie Mabo and his legal battles later in this chapter.
Indigenous people have inhabited the Australian continent for
the past 50 000 years, living a mostly nomadic lifestyle. Although
they did not use legal documents or written laws, it is undisputed
that Aboriginal and Torres Strait Islander peoples used oral law,
customs and traditions to maintain order and control behaviour.
Tribal elders employed negotiation, discussion, rulings and
sanctions when it came to unacceptable behaviour. Traditional
Indigenous societies were, and still are, rule-governed.
It is clear from the map on page 47 that Indigenous people lived
in distinct tribal and language groups, and it is not accurate to
Figure 5.1 Front cover of specially endorsed writ filed in the High Court
categorise Indigenous people as belonging to a single cultural group. on behalf of Eddie Mabo and co-plaintiffs, in an action against the State of
In 1788, when the First Fleet arrived, the belief at the time was that Queensland, 20 May 1982

PART I
Policy/law Effect
Dispossession/dispersal (1788–1800s)
Since Indigenous people were not recognised as citizens, it was – Massive reduction in Indigenous population.
not a criminal offence to hunt, shoot and kill them. The general – Traditional Indigenous areas were converted to farming lands.
belief was that Indigenous people would eventually ‘die out’.
– Aboriginal people could be shot on sight if armed with spears,

– Martial law in NSW (1816) or even if they were unarmed and within a certain distance of
– Martial law in Tasmania (1824) houses or settlements.
– Settlers were authorised to shoot Aboriginal people.
Protection (1869–1909)
– Aboriginal Protection Act 1869 (Vic) – These Acts gave wide powers to the Board for the Protection of
– Aborigines Protection Act 1909 (NSW) Aborigines, which governed where Aboriginal people could live
and work, what jobs they could do, and whom they could marry
and associate with.
– The powers of the Board under the NSW Act were similarly wide,
and included the power to remove children from homes to be
placed in missions.
Assimilation and integration (1900–1967)

– By this time, Indigenous populations were a long way from – The European majority attempted to teach the Indigenous
‘dying out’, and the policy was to ‘Europeanise’ them so that population to be ‘white’. This was met with both submission and
they would leave behind their language, culture, artefacts and resistance.
traditions, and become ‘similar’ to Europeans
– Nationality and Citizenship Act 1948 (Cth) – Aboriginal people became Australian citizens (as distinct from
British), along with everyone else, but not all states gave them
full rights, such as the right to vote in Commonwealth elections
– 1940s: ‘Exemption certificates’ or ‘Citizenship certificates’ were – Effectively, these certificates meant the holders were ‘not
given to some Aboriginal people by some states. Aboriginal’. The certificates had strict conditions, such as
requiring a ‘European lifestyle’, and could be revoked without
warning.
– 1962 amendments to the Commonwealth Electoral Act 1918 (Cth) – The amendments gave the right to vote in Commonwealth
elections to all Indigenous people in states that had not already
provided for this right.
– 1967 referendum amending the Constitution – The phrase ‘other than the Aboriginal race in any State’ was
removed from s 51(xxvi), giving the Commonwealth the power
to make laws specifically for the benefit of Aboriginal people.
Section 127, which provided that Aboriginal people were not
counted as part of the population for census purposes, was
deleted.
– Creating a nation for all of us (2011) – The final report from an Expert Panel recommends that
Presented to the Prime Minister in 2012 the Constitution be amended so as to show recognition of
Aboriginal and Torres Strait Islander peoples.
Table 5.1 Government policies and their effects on Indigenous Australians
dispossession the removal or expulsion of people from their martial law law enforced by the military over civilian affairs; overrides
traditional lands civilian law
C hap ter 5: Law refor m in ac t ion 95

Figure 5.2 The First Fleet arrives at ‘New Land’.
Review 5.1
1 Describe the legal system of
Indigenous Australians prior to 1788.
2 Identify the Latin term meaning ‘land
belonging to no one’.
3 Describe the three main policies of
Australian governments in relation
to Indigenous people from 1788 to
1967. List one effect of each policy.
Figure 5.3 Under the policy of protectionism, Indigenous people were forced to live
on reserves – often under terrible conditions.

5.2 Operation of the
PART I
people in the area around the Yarra River in what is now Victoria.
Batman negotiated a treaty for the transfer of the land in exchange
legal system in relation for tools, weapons, food and blankets. Shortly thereafter, Governor
to native title Richard Bourke declared the treaty null and void, on the basis that
New South Wales – which extended from Cape York in the north
to Wilson’s Promontory in the south and nearly as far west as the

Part of the rich and diverse cultural heritage of Aboriginal and
Torres Strait Islander peoples was a well-developed structure of current border of Western Australia – belonged to the Crown, not
laws that governed their relations with one another, and with the to the Indigenous people.
land. All of this changed with European settlement. It would take The concept of terra nullius has had a vast impact on the
200 years for this system to be formally recognised. Indigenous population. Their treatment by the colonists, which
involved loss of land, loss of culture and dispersal, has led to
considerable social problems. This will be discussed in more detail
The doctrine of terra nullius later in the course. By the 1840s, for example, most Aboriginal
in Australia people in Tasmania had either been killed, died from introduced
diseases, or been forcibly relocated.
The term terra nullius means ‘land belonging to no one’. As a The concept of terra nullius has also had an enormous impact
common law concept, it refers not only to uninhabited territory, but on native title claims. Any Aboriginal or Torres Strait Islander
also to territory that has no recognisable system of law, or social community that has tried to claim native title has had to prove that
or political organisation. Under the ‘doctrine of reception’, when they are the traditional owners of the land and have an ongoing
uninhabited land was colonised by Britain and no other system of connection with it. As the land was considered empty prior to
law was apparent, then English law would dominate. British settlement, it also meant that the settlers could possess
Over the course of a few decades, the perception that the most of the arable land with government approval – which
country had very few inhabitants, and that they had no political entailed driving off anyone else who might be living on this land
or legal organisation and, thus, no sovereignty, led to the legal at the time. If the traditional owners of the land have been forced
fiction justifying British possession and the imposition of British off their land (in some cases 200 years ago), how then do they
law. Although Governor Arthur Phillip was under orders to establish prove a continuing connection with this land under Aboriginal
friendly relations with the native people, and did make serious law and custom?
efforts in this area, language and cultural barriers meant that
negotiations had limited success. Terra nullius as a justification for terra nullius (Latin) ‘land belonging to no one’; the idea and legal concept
that when the first Europeans came to Australia the land was owned by no
British policy was clearly evident by 1835, when businessman and
one and thus was open to settlement
explorer John Batman attempted to lease land from the Indigenous
Figure 5.4 Indigenous Australians have a strong bond with the land.

The legal status of Indigenous in attitudes and beliefs that was taking place in the 1960s. Over
90 per cent of the population voted ‘yes’ on the amendments to the
Australians up to 1967 Constitution. Section 51 (xxvi) was amended to allow the federal
government to legislate for Indigenous people and to override any
The doctrine of terra nullius meant that in the eyes of the law
discriminatory state laws. Section 127 was deleted. From this point
Indigenous Australians did not exist as citizens. The criminal laws
on, Aboriginal affairs became a federal issue, and Aboriginal and
did not protect Indigenous people and, throughout the first half of
Torres Strait Islander people were counted in the census.
the 19th century, government policies tended to condone violence.
One of the most significant and tragic events of the 1800s occurred
in New South Wales at Myall Creek, near Bingara. In June 1838, a
The development of native title
group of Indigenous people who had set up camp on a cattle
station were brutally attacked and killed by a group of white men Native title claims in the Northern Territory
(11 convicts and one free man), who claimed they were acting in
In 1963, Yolngu people from the Gove Peninsula, in eastern Arnhem
retaliation for the theft of cattle. Twenty-eight men, women and
Land, sent a bark petition to the Commonwealth government
children were slaughtered.
protesting the removal of some 300 hectares of land for bauxite
The Governor of New South Wales, Sir George Gipps, ordered
mining without their permission. The petition failed to move the
a police investigation into the massacre. This was the first time
federal government to recognise the rights of the Yolngu people
that the British colonial administration had taken a decision to
and hence the ‘Gove land rights case’ (Milirrpum v Nabalco Pty Ltd
apply the criminal law on behalf of the Indigenous people. Initially,
(1971) 17 FLR 141) commenced in the Northern Territory Supreme
the 11 convicts were found not guilty of the crime; however, a
Court in 1971. In his ruling, Justice Blackburn stated that if the
subsequent retrial sent seven men to their death by hanging. As
Yolngu people did have any type of native title rights, they would
a result of this event, any further massacres of Aboriginal people
went unreported.
Until the 1967 referendum, there were two references to
Aboriginal people in the Constitution: s 51(xxvi) and 127. Section
127 excluded Aboriginal people from the census. Section 51(xxvi)
gave the Commonwealth the power to make laws in respect
of ‘people of any race for whom it is deemed necessary to make
special laws’ but excluded ‘the aboriginal race’ from this power;
this effectively reserved the responsibility for Aboriginal affairs to
state governments. Since there were no federal laws governing
the welfare of Indigenous people, different states interpreted their
rights and legal status in various ways, resulting in inconsistencies
and inhumanity.
The 1967 referendum did not give Indigenous Australians the
right to vote. The right to vote in Commonwealth elections had
already been extended to all Indigenous Australians who did not
already have this right under the laws of their state – namely, those
in Western Australia and Queensland – by amendments in 1962 to
the Commonwealth Electoral Act 1918 (Cth). The right to vote in state
elections had been achieved in all states by 1965.
Nor did the referendum grant citizenship to Aboriginal and
Torres Strait Islander people: most of the federal and state laws
discriminating against them had been repealed by 1967. However,
Figure 5.5 Bill Onus, President of the Victorian Aborigines’ Advancement
the referendum became a symbol of the public recognition of the League, was the only Indigenous person to take part in the march for an
rights of Indigenous Australians, and its success reflects the change Aboriginal Rights referendum, on 29 May 1967.

PART I
Figure 5.6 Prime Minister Gough Whitlam in 1975, with Vincent Lingiari of the Gurindji people
have been extinguished under common law. Thus, the doctrine of The Mabo cases
terra nullius prevailed and they could not prevent mining on the
land. Three years after the unsuccessful Yolngu petition, members Between 1985 and 1992, Eddie Mabo and four other men from the
of the Gurindji people walked off the job at two cattle stations in Murray Islands challenged the Queensland government in two
the Northern Territory, protesting against poor working conditions cases in the High Court of Australia: Mabo v Queensland [1988] HCA
and pay. Their action was also a protest against dispossession of 69 and Mabo v Queensland (No. 2) [1992] HCA 23.
their traditional lands by pastoralists. The first case questioned the validity of a state law that
In 1972, the Australian Labor Party, led by Gough Whitlam, was attempted to abolish native title by asserting state ownership of
elected after 23 years in opposition. That year, the government the islands off the coast of Queensland. The High Court held that
established the Department of Aboriginal Affairs in response to the Queensland Act was inconsistent with the Racial Discrimination
the failure of the Gove land rights case. A royal commission into Act 1975 (Cth), because under it, the Meriam people’s right to own
Aboriginal land rights was established, under Justice Edward property would be limited to a greater extent than that of other
Woodward, who as a barrister had acted for the Yolngu people in members of the community. Under the Constitution, where federal
the case. The findings of the commission led to the drafting of the and state laws conflict, federal law prevails.
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). This was The second case, now known as the Mabo case, concerned the
the first legislation in Australia to establish a land claim process by Meriam people’s rights to occupy and control Murray Island (Mer).
which traditional owners could claim various parcels of land that Although Eddie Mabo and one of his fellow plaintiffs died during
were listed as available for claim. this time, in May 1992, the High Court ruled (by six judges to one)
In response to the Gurindji land claim, the government that Australia was not terra nullius and that the Meriam people
negotiated with the owners of the stations to return part of the clearly held native title to their land.
land to the traditional owners. The photo above depicts Prime The decision of the High Court in the Mabo case introduced the
Minister Gough Whitlam symbolically handing native title back to legal doctrine of native title into Australian law. In recognising the
the Gurindji people in 1975. traditional rights of the Meriam people to their islands in the eastern
Torres Strait, the court also held that native title existed for all
pastoralists farmers raising sheep or cattle, usually on large areas of land Indigenous people in Australia prior to European contact. To make
C hap ter 5: Law refor m in ac t ion 99

are owed as seminal contributors to our national life and culture: as
workers, soldiers, explorers, artists, sportsmen and women – as a
defining element in the character of this nation – and the standing
they are owed as victims of grave injustices, as people who have
survived the loss of their land and the shattering of their culture.
Review 5.2
1 Describe the changing legal status of Aboriginal and
Torres Strait Islander people prior to 1967 and up to
1993. Why do you think laws have changed?
2 Outline how the Yolngu people’s native title claim was
resolved in court. What was the newly elected Whitlam
government’s response to this decision?
3 Explain the importance of the 1992 Mabo decision for
the legal status of Indigenous people.
4 Evaluate the statement made by Prime Minister Paul
Keating in 1993 on the passing of the Native Title Act.
Growing recognition of native title

in some countries
Native title means the right of indigenous people to live on their
land and use it for traditional purposes. Throughout the world
there has been growing recognition of the rights of indigenous
peoples to their own lands. Hunting and fishing rights and land
ownership rights have been returned to many indigenous groups
in different countries.
Figure 5.7 Eddie Mabo took his challenge to the High Court and won. There has also been a move to give greater self-determination
to indigenous groups. Self-determination means the rights of
clearer the legal position of landholders and the processes that
indigenous peoples to control the use of their traditional lands,
must be followed in claiming native title, the federal government
as well as the local economy and social policy. Maori in New
passed the Native Title Act 1993 (Cth).
Zealand, Inuit in Greenland and Canada, and Aboriginal and Torres
The Mabo case and the ensuing legislation significantly changed
Strait Islanders are three indigenous groups who have been given
the legal status of Indigenous people in relation to native title and
greater recognition in terms of native title and self-determination
gave some people access to parcels of land throughout Australia
in their own countries.
to practise their traditional way of life. It did not allow Indigenous
people to ‘own’ land, as this could, thereby, restrict current owners’
access to that land. In December 1993, during the passage of the
Legal Links
Native Title Bill through parliament, Prime Minister Paul Keating said: The Native Title Research Unit (NTRU) provides independent
[T]oday, as a nation, we take a major step towards a new and better research on native title. Information relating to native title
relationship between Aboriginal and non-Aboriginal Australians. We can be found at its website (refer to www.cambridge.edu.
give the Indigenous people of Australia, at last, the standing they are au/prelegal3weblinks for link).
owed as the original occupants of this continent, the standing they
100 Cam br i d g e Lega l Stu di es – Preli m i n a r y

PART I
Agencies of law reform on native title Members of Parliament, as representatives of their
constituents, also have a role to play in introducing and
When claiming traditional ownership of land, Aboriginal and Torres encouraging discussion and debate about issues that concern
Strait Islander groups must have their claims legally validated. The all Australians. In this way parliament is able to address issues of
only courts that can make this determination in Australia are the equity and justice.
In 2008, the then Prime Minister, Kevin Rudd, apologised

Federal Court and the High Court. Initial claims are brought to the
National Native Title Tribunal but this body cannot make legal to Indigenous Australians for past injustices inflicted on them.
decisions about native title; it can only carry out research and make Speaking in the House of Representatives in Canberra on
recommendations. 13 February 2008, Mr Rudd said the parliament apologised for
Claimants may obtain one of three types of determination: laws and policies which had ‘inflicted profound grief, suffering
➥ unopposed determination (if the application is uncontested) and loss on these our fellow Australians’. Actions such as these
➥ consented determination (if the parties involved reach an by politicians and parliament are a way of bringing about social,
agreement through mediation) if not legal, change.
➥ litigated determination (the application is contested in a court

of law, and a judge makes a decision). Major High Court decisions on
native title and subsequent legal
The role of the High Court developments
With respect to native title claims, the High Court of Australia has
Native title was not recognised in Australia until 1992, when the
the same role as it does with any other legal case: as a court that
High Court, in the Mabo decision, overturned the doctrine of
hears appeals about decisions made in other courts of Australia.
terra nullius.
It cannot show sympathy or favouritism or be swayed by public
opinion when hearing these cases.
Initial claims of native title are brought before the National The Mabo case
Native Title Tribunal, which investigates and mediates claims made The Mabo case is important because it led to the introduction
by Aboriginal and Torres Strait Islander peoples. The Federal Court of native title legislation. It is also significant because it gave
of Australia will make the determination on whether native title recognition to the Indigenous inhabitants of Australia.
exists. Any appeal against a determination is made to a full sitting In this case, the High Court recognised the existence of native
of the Federal Court and then to the High Court of Australia. Thus title for a group of Murray Islanders in the Torres Strait. Eddie
the High Court acts as a court of last resort in determining whether Mabo argued that they could prove uninterrupted occupancy of
native title exists in claims made about certain geographical places traditional lands, and that the state legislation annexing the islands
in Australia. did not extinguish their pre- existing rights to it.
The case required the High Court to consider the legality of the
The role of parliament declaration of terra nullius. The court ruled that the islanders were
the traditional owners of the land and that they had the right to
Parliament’s role in recognising native title is to enact legislation
possess and occupy the islands and enjoy use of their traditional
to protect the property rights of Aboriginal and Torres Strait
lands. The High Court also established guidelines for future
Islander peoples.
claims of native title. These guidelines included the provision of
Public pressure and lobbying by interested parties have
compensation where the native title rights were taken back by the
seen new laws regarding native title introduced in Australia.
federal government.
As mentioned above, the Native Title Act 1993 (Cth) was enacted in
As a result of the Mabo decision, the federal government enacted
response to lobbying by the Indigenous community for statutory
the Native Title Act 1993 (Cth).
law reflecting the Mabo case, but also lobbying by the mining and
The purpose of this Act is to:
pastoral sectors concerned about potential claims of native title on
➥ provide for the recognition and protection of native title
their land.
C hap ter 5: Law refor m in ac tion 101

➥ establish ways in which future dealings that affect native title ➥ Tough tests were imposed to determine the right to native title.
may proceed and set standards for these dealings At least one member of the claimants must prove a continuous
➥ establish a mechanism for determining native title claims and link with the traditional lands.
provide for the validation of past grants of property interests
that may be thrown into doubt because of the recognition of The Yorta Yorta native title case
native title.
The Yorta Yorta people are Indigenous Australians whose traditional
The Act stopped short of defining native title and created the Native
lands are located in north-east Victoria. They applied to the Native
Title Tribunal to determine the validity of native title claims. If native
Title Tribunal for determination of native title in respect of public land
title holders are unable to reclaim their lands and thus exercise their
and water in February 1994. The Yorta Yorta Aboriginal community
rights, the tribunal determines the compensation to be paid.
claimed that some areas of state forests and waterways in northern
Victoria and southern New South Wales were their traditional lands.
The Wik case The Native Title Registrar, who assesses claimants’ applications
The Mabo decision and the Native Title Act resulted in other to the Tribunal, accepted their application in May 1994 and it was
Aboriginal groups attempting to reclaim land. The Wik and subject to mediation from September 1994 until May 1995. It was
the Thayorre people launched a case against the Queensland then referred to the Federal Court.
government in 1996 (Wik Peoples v Queensland [1996] HCA 40), The claim was dismissed by the Federal Court. Justice Olney
claiming native title rights to land that was being used by concluded that the evidence did not support the claim, as the Yorta
pastoralists, under pastoral leases. Under a pastoral lease, the Yorta people had stopped occupying their traditional lands in the
government owns the land but the farmers have exclusive right to 19th century. He said: ‘The tide of history has indeed washed away
use it. The Federal Court ruled that the existence of pastoral leases any real acknowledgment of their traditional laws and any real
extinguished the right to native title. This decision was appealed observance of their traditional customs.’
to the High Court, which ruled that the Wik and Thayorre people The Yorta Yorta people appealed this decision but the Full Court
were entitled to their traditional lands. The court found that of the Federal Court upheld Justice Olney’s findings.
pastoral leases and native title could coexist but that when The Yorta Yorta then appealed to the High Court (Members of
conflict arose, the pastoral leases would prevail. the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58).
While the Wik decision did not grant automatic title They claimed that the trial judge and the majority of the Full Court
over Crown land, it caused concern among pastoralists and had been wrong in requiring them to prove continuous observance
mining companies that they would have to enter into lengthy of traditional laws and customs in relation to land. The High Court
negotiations with Indigenous people over access to and use of handed down its decision in December 2002 and upheld the
land. In response to this concern in rural Australia, the federal decision of the Federal Court by a majority of five to two.
government enacted the Native Title Amendment Act 1998 (Cth), In its decision, the High Court considered the meaning of the
which amended the Native Title Act 1993 (Cth) and introduced phrase ‘traditional laws and customs’ and what was required for
some additional changes. There was much debate in parliament proving continuous observance of these laws and customs. In its
over this Act before it was passed. While the government had a decision, which was to influence future native title claims, the court
large majority in the House of Representatives, it did not enjoy as held that in order to prove native title, claimants must establish
much support in the Senate. that there has been an acknowledgment and observance of laws
The main provisions of the Act are as follows: and customs on a substantially uninterrupted basis since the arrival
➥ It extinguished native title over any land that was considered of British sovereignty. The fact that these laws and customs have
privately owned prior to 1 January 1994. been passed down orally is not sufficient; claimants must show that
➥ When native title exists alongside a pastoral lease, the pastoralist their way of life is influenced by these traditions. In this way, the
is allowed to use the land for primary production without having High Court decision clarified the law with respect to the evidence
to consult people who have native title interests. required to prove native title.

PART I
Figure 5.8 On Country: Yorta Yorta Elder Professor Henry Atkinson, from the series Home/On Country (2011), Sarah Rhodes.
Review 5.3
1 Define ‘native title’ and ‘self-determination’. Which b a court decision whose consequences are as
Indigenous groups have gained greater recognition yet unclear
in these areas? c the concerns of groups within society about a
2 Assess the significance of the Mabo decision. court decision
3 What was the impact of the Wik case? 5 Describe the native title claim of the Yorta Yorta community.
4 Explain how a government might respond to the following. 6 Outline the legal history of their claim to native title.
Give examples. 7 Explain the reasons their claim was denied.
a a court decision whose outcomes or likely 8 How does this decision affect other native title claims?
consequences the government supports

The National Native Title Tribunal (NTT) ➥ it is appropriate to acknowledge the importance of land to
Aboriginal people
The National Native Title Tribunal (NTT) is a federal government
➥ government decisions made in the past have had a negative
agency set up under the Native Title Act 1993 (Cth). It mediates native
effect on Aboriginal land ownership.
title claims under the direction of the Federal Court of Australia.
This Act established a system of land councils. The NSW Aboriginal
The aim of the NTT is to help to resolve native title issues. The tribunal
Land Council has the power to make claims on Crown land, approve
plays a variety of roles: for example, it acts as an arbitrator in some
or reject agreements to allow mining on Aboriginal land, conciliate
situations where the people involved cannot reach agreement about
disputes, and advise the state government on land rights. The Act
proposed developments. It also assists people who want to negotiate
provided for the ownership of reserve land to be transferred to the
other sorts of agreements, such as Indigenous land use agreements.
Aboriginal people, through a local or the state Land Council, but
If requested, the tribunal will assist people in negotiations about
in fact only a small percentage of land has been so transferred.
proposed developments (future acts), such as mining. It is not a court
Section 28 of the Act provided for 7.5 per cent of land tax in NSW to
and does not decide whether or not native title exists.
be paid to the state Aboriginal Land Council to meet administrative
The process of proving native title can be slow and expensive. In
costs and to finance land purchases and future development, but
the period between the establishment of the NTT and 31 December
this ceased in 1998 due to a ‘sunset clause’ in the Act, and s 28 was
2011, 200 applications were submitted and 175 determinations
repealed in 2001.
were made. Of the 175 determinations:
The Act also permits local Land Councils to negotiate agreements
➥ 134 were determinations that native title exists over the whole
with the owners of land to give Indigenous Australians access to
or part of the determination area
the land for the purpose of hunting, fishing or gathering.
➥ 41 were determinations that native title does not exist.
Legal Links Legal Links

The Federal Court of Australia’s website provides information
More details about the Native Title Tribunal can be
about the processes in claiming native title (go to www.
found by following the link at www.cambridge.edu.au/
cambridge.edu.au/prelegal3weblinks for link).
prelegal3weblinks.
Federal legislation
Native title legislation
Federal Parliament has enacted legislation to protect all parties
involved in and affected by native title claims. As discussed above, the
State legislation Native Title Act 1993 (Cth) was the Australian government’s response to
As discussed, the Mabo and Wik decisions led to Commonwealth the High Court’s Mabo decision. The Act provides for the recognition
legislation in the area of native title and self-determination for of native title and the integration of this form of property right into
Aboriginal people and Torres Strait Islanders. State legislation has the land title system. However, it does not allow the Commonwealth
also been enacted to give rights to and protect the interests of government to affect the operation of any law of a state or a territory
Indigenous Australians. that is capable of operating concurrently with this Act.
The National Parks and Wildlife Act 1974 (NSW) provides for The Howard federal government responded to the High Court’s
the protection of places and relics which are of significance to Wik decision with the Native Title Amendment Act 1998 (Cth). The
Aboriginal culture. Under this Act, it is an offence to knowingly amendments incorporated the High Court’s decision that native
destroy, disturb or remove these objects or to destroy, deface or title rights could coexist on land held by pastoral leaseholders.
damage these places. The same government amended the legislation by the Native
The Aboriginal Land Rights Act 1983 (NSW) recognises that: Title Amendment Act 2007 (Cth) and the Native Title Amendment
➥ land was traditionally owned and occupied by Aboriginal people (Technical Amendments) Act 2007 (Cth). These changes also allowed
➥ land has spiritual, social, cultural and economic significance to for Township Leases. This is where the Australian government
Aboriginal people and the traditional owners in a township negotiate for a town be

PART I
leased for between 40 and 99 years. The leases and processes are this history of ownership was because when the British took over
overseen by the Office of Town Leases (more can be found out this land they excluded the Yorta Yorta community. This is a problem
about these leases by following the link at www.cambridge.edu.au/ faced by other Aboriginal and Torres Strait Islander communities in
prelegal3weblinks). claiming traditional ownership.
The effects of the 2007 changes were intended to improve the It is undeniable that major steps have been taken with respect
overall efficiency of the processes involved in claiming native title. to native title, by both the judicial and legislative branches of

Commonwealth legislation has also been enacted to provide government. However, those interested in reform are also faced
some Indigenous rights over bodies of water. The Aboriginal and with the fact that the law protects the property rights of people
Torres Strait Islander Heritage Protection Act 1984 (Cth) is used to who themselves had nothing to do with colonial dispossession, but
protect areas of water and of land that have cultural significance for whose interests are at odds with native title claims. Future progress
Indigenous people. is likely to depend on the articulation and maintenance of new
concepts of justice, and sustained public commitment to electing
Native title as a collective right governments that will legislate for those aims.
A collective right is one that is claimed and shared by a group of

people. Native title is a collective right as it cannot be claimed
by an individual, only by a group (for example, the Wik people).
All members of the group share the rights that are gained.
However, despite native title being a collective right, an
individual can bring a claim before the courts, as seen in the
Mabo case. As the individual is acting on behalf of the group, all
members of the community that he or she represents will share
the rights gained.
5.3 Effectiveness of
law reform in relation
to native title
As we have seen, there has been progress in the area of law reform
relating to native title; however, this progress has been relatively
slow. Due to the very nature of the law, all stakeholders involved Figure 5.9 National Sorry Day, 13 February 2008
in (and affected by) native title claims must be considered when
proposing and enacting new legislation and, as such, the Native Title
Act 1993 (Cth) and its amendments recognises not only the rights of Review 5.4
the traditional owners, but also those of current landholders.
1 Draw a timeline showing the recognition of native title
Although one of the biggest legal steps forward was the
rights and self-determination for Aboriginal and Torres
overturning of the concept of terra nullius in the Mabo case, the Strait Islanders in Australia and in New South Wales.
initial use of terra nullius by the British has continued to be a major
2 Outline the major legislation governing native title at
stumbling block for those communities making native title claims;
the federal and state levels.
consider the Yorta Yorta people’s claim for their traditional lands
3 Describe the major federal and state legislation
in Victoria. The court cases took eight years and the claim was
protecting places and objects of cultural significance
eventually denied. The basis of the High Court’s determination was
for Indigenous people.
that the Yorta Yorta could not prove a recent history of traditional
4 In what way is native title a collective right?
ownership of this land. The main reason that they could not prove

Topic 2: Law reform Athletes’ movements off the field are just as closely scrutinised
by the public and fans as their on-field performance. The media
and sport are not hesitant about reporting behaviour that is not appropriate
for a ‘role model’, and some NRL and AFL players have incurred
5.4 Conditions that led suspensions from their sporting bodies for offences such as drink-
to law reform in sport driving and drug use. Despite an individual’s right to be considered
innocent until proven guilty in court, an NRL player, Brett Stewart,
was banned from four games in 2009 by the governing body after
‘Australia’ and ‘sport’ are terms that are almost synonymous.
being charged with sexual assault. Stewart was found not guilty
Sport is a part of Australian culture and Australians have performed
in his trial, 2 years later. The governing body, however, refused to
incredibly well on the world stage for many years. Winning world
apologise or compensate Stewart, claiming he had ‘brought the
championships is a matter of great pride, particularly in swimming,
game into disrepute’.
rugby union, netball and women’s basketball. In addition, Australian
Government has also taken a greater role in sport over
sport has become ‘big business’. The rise of full-time or professional
the past three decades. The Australian Institute of Sport (AIS)
sport means that athletes such as Greg Inglis (NRL), Lauren Jackson
was established in 1981 after more than 8 years of government-
(basketball) and Michael Clarke (cricket) are ‘at work’ when we watch
commissioned studies of sports institutes in Europe. The purpose
them play. These athletes are considered employees and their teams
of the AIS is to develop the highest quality sportspeople by
or organisations are their employers.
providing facilities and funding to athletes and organisations.
Large corporations now favour associating themselves with a team
In addition to changes in the way sport is seen, there have been
or competition through sponsorship deals that provide material
broader social changes that affect the ways in which sport and the
support in exchange for advertising. The names and logos of national
law interact. Gambling on sporting outcomes, in particular, has
and multinational companies can be seen on football players’ jumpers
risen to prominence in recent years. Legalised casinos have become
and prominently displayed around the grounds; a major sponsor of
the norm across all states of Australia and technology has allowed
Cricket Australia has been a fried chicken chain. A major sponsor of
online betting to flourish in the past 5 years. Greater willingness
five NRL teams and one of its playing grounds is a global betting
to hold others accountable for harm and to seek civil remedies
agency – Centrebet. These multimillion-dollar sponsorship deals
for real or perceived wrongdoing has affected both amateur and
enable the sponsor to gain exposure to millions of viewers.
professional sport. So, too, the rise of criminal convictions against
The standards to which players and coaches are held go beyond
stakeholders, such as Ryan Tandy, an NRL player, and his manager
the ordinary expectations of etiquette owed to the team and
and friends.
to competitors, as not only the club but the sporting code and
the sponsoring companies are brought under scrutiny by anti-
social behaviour.
Figure 5.10 From left to right: Cricketer Michael Clarke, basketballer Lauren Jackson and rugby player Greg Inglis

PART I
Sport Law
Criminal offences Discrimination laws Contracts Torts

(e.g. drug use) (e.g. Trudy Gradener case) (e.g. Sonny Bill Williams)

e.g. Trespass against e.g. Negligence –
person assault/battery Richard Vowles
Figure 5.11 Sport law spans a number of different areas of law.
‘Sport law’ ranges over the areas of contract law, tort law, and The chief executive officer of the NRL called on the International
the criminal law, and encompasses efforts to promote safety in Rugby Board, the governing and law-making body for rugby union,
sport, to provide remedies for those injured, to regulate behaviour to stop Williams from switching codes. The board said it had no
on and off the field (including gambling), and to ensure equal jurisdiction over individual clubs’ contracts.
opportunity and fair treatment for individuals and groups who
engage in sport. As social attitudes change, the law must develop
accordingly. We will look at some of the areas in which it has had to
accommodate new patterns and demands.
As discussed in Chapter 4, law reform can be prompted by the
recommendations of specialised law reform bodies or various other
agencies or agents, and it can be brought about directly by court
decisions or legislation.
sponsorship the support of an tort law the body of law that

individual, event or organisation deals with civil wrongs including Figure 5.12 Sonny Bill Williams lost a large sum of money when he
financially or through the negligence, defamation, trespass breached his NRL contract with the Bulldogs.
provision of products or services and nuisance
The Bulldogs and the NRL obtained a temporary injunction
preventing Williams from playing for the French club, Toulon, and
Civil law: breach of contract initiated proceedings in the NSW Supreme Court. The consequences
of breaching the injunction could have been contempt of court
Professional athletes are required to sign contracts that legally proceedings against Williams, or the Bulldogs may have been able
bind their playing services to a club and a competition. Sonny Bill to seize his assets. As Williams is an outstanding player who draws
Williams was paid $450 000 per year by the Canterbury Bulldogs in many fans, and the Bulldogs had invested much time and money
the NRL. Although contracts are broken from time to time in many in his training and development, his breach of contract could have
areas of business, often leading to civil litigation, it came to most entitled them to damages.
fans as a huge surprise when Williams broke his contract in 2008 by A settlement was eventually reached between the parties,
leaving Australia to play rugby union in France, without even telling with Williams being ordered to pay $750 000 to the Bulldogs, and
the club or his team-mates of his decision. agreeing not to play in the NRL before 2013. His contract with the
Many sporting contracts contain ‘get-out’ clauses for both Bulldogs expired in 2012.
parties so that if players are injured or playing poorly, clubs may
release them from their playing lists. However, in this case, there civil litigation court action contempt of court words or
brought to remedy a wrong or actions that show a disregard
was no ‘get-out’ clause; Williams sought a release from his contract
breach of contract sport law for the authority of the court or
to play for another team for a far greater salary. interfere with its powers

Review 5.5 express consent consent given directly, either orally or in writing
1 Define the term ‘sport law’.

2 What are some of the consequences of sport being ‘big indictable offence a serious criminal offence that requires an indictment
(a formal, written charge) and a preliminary hearing; indictable offences
business’?
are typically tried before a judge and jury and are subject to greater
3 What mechanisms for resolving a contract dispute were penalties than non-indictable offences
attempted in the Sonny Bill Williams case? What was the
final outcome?
Avenues for justice: civil or criminal?
Interference with another person outside the rules of sport,
Harm suffered in sport or threats that cause a person to apprehend immediate and
unlawful violence, can constitute assault, leading to criminal
There is a long-standing adage in sport that ‘what happens on the charges. However, those involved in sport often choose to use
field stays on the field’. It means that if there is an altercation or the professional judicial mechanisms, such as league tribunals, to
disagreement between players during a competitive match, it is to be enforce codes of behaviour and impose sanctions.
forgotten when the full-time siren sounds and complaints are not to Others have chosen to sue other players or clubs for damages
be made to referees, sporting administrators or indeed police. and loss of wages through the civil law system. As discussed in
Rules of games or sports are different from laws. However, when Chapter 3, the standard of proof required of the prosecution in
made by sporting bodies, they are often referred to as ‘codes of a criminal case is ‘beyond reasonable doubt’. In a civil case, the
conduct’ that all players are required to follow. Such rules may also plaintiff need only prove the defendant’s liability ‘on the balance
include specific rules in contact sports that concern the safety of of probabilities’. This just means that it is more probable than not
players. In rugby union, eight players pushing against each other that the defendant is responsible for the wrong suffered – an easier
creates a dangerous situation, and referees must follow certain requirement to satisfy.
procedures before they allow a scrum to begin. In addition, while there are criminal compensation schemes
Amateur and professional players give express consent to acts for victims, maintained and administered by the state, the sums
that would constitute the basis for the criminal offence of assault involved are generally much lower than the amount of financial
– an indictable offence – when done in a non-sporting context. compensation that a successful plaintiff could receive in damages.
When players participate in various sports, they accept the risk of The maximum compensation available in NSW for a victim of
harms that can occur within the course of the game, when played in a violent crime is $50 000. Since professional athletes can earn
accordance with the rules. In contact sports such as rugby league, hundreds of thousands of dollars a year, victims’ compensation is
rugby union and Australian Rules football, players can break seen as inadequate. When pursued as a civil case, direct contact
bones, be rendered unconscious and in extreme cases, be injured with a person’s body without the person’s consent is one of the
to the point of quadriplegia. For example, grabbing a person and intentional torts of trespass to the person.
slamming him to the ground would be the basis of an assault charge Another avenue that may be taken in the civil law is negligence,
if inflicted without consent. However, players give express consent where a club, league or other agency involved in sport has failed to
to tackles in rugby. They do not give express consent to behaviour fulfill its duty of care to the participants. In a high-profile NSW case
that is prohibited by the rules. (Bugden and Canterbury-Bankstown v Rogers (1993) ATR 81-246, in
In 2001, John Hopoate, an NRL player for the Sydney-based Wests the Court of appeal) Steve Rogers sued Mark Bugden after a high
Tigers, was brought before the NRL Judiciary for inserting his finger tackle from Bugden in a 1985 rugby league match broke his jaw.
between opposing players’ buttocks after they had been tackled. Rogers experienced dental problems, surgery, pain and distress.
Hopoate was caught on video clearly carrying out the offences and Compensatory damages of more than $68 000 were awarded and
was found guilty of ‘unsportsmanlike interference’. He maintained the court held that Bugden’s club bore vicarious liability for the
that he had done nothing wrong and stated, ‘I’m a great believer assault because Bugden’s actions were done in the course of his
in what happens on the field should stay there.’ He was suspended employment as a player. His contract authorised the use of force
from play for 12 weeks. when tackling.

PART I
Other professional athletes have sought damages for loss of
wages, in addition to medical expenses, pain and suffering. Review 5.6
Even in the ‘non-professionalised’ world of amateur sport, 1 Consider the idea that ‘what happens on the field,
material loss may be considered in the decision as to the quantum stays on the field’. Is it ever an appropriate approach to
of damages awarded. In 1997, Darren Kennedy’s jaw was broken by behaviour in sport? Discuss, with illustrations.
a high tackle by Gary Pender in an amateur game of rugby league in

2 Explain why athletes would rather pursue action in civil
NSW. Kennedy sued both Pender and the Narooma Rugby League law courts rather than through the criminal justice system.
Football Club for $40 000 in medical bills. The club’s lawyers argued 3 Explain what it means for a club to be vicariously liable
that because the players were volunteers, the club could not be for the acts of its players.
responsible for their conduct.
The NSW District Court held that although players were not
paid to play, the benefits that they derived from the relationship
were significant enough to form a relation ship of employment, and
Equal opportunity in sport
Pender was doing what the club expected him to do.
In 2003, a junior Australian Rules football league in Victoria banned
a 13-year-old from playing in its competition because of her sex.
trespass to the person a tort vicarious liability the legal
involving direct contact with liability imposed on one person The player, Helen Taylor, along with two other girls aged 14 and 15,
a person’s body without that or agent (e.g. an employer) for challenged the ban.
person’s consent the wrongful acts of another,
when those acts were done
While both the number of girls and women involved in sport
within the scope of the legal and the range of sports open to female players have increased
relationship between them, dramatically over the past few decades, there are still some
such as employment
challenges to be addressed, socially and legally.
Figure 5.13 Tackles are fairly common in many contact sports. Taylor’s case, in the Victorian Civil and Administrative Tribunal
(Taylor v Moorabbin Saints Junior Football League and Football
Victoria Ltd [2004] VCAT 158), questioned the exclusion of all girls
aged 12 or over from competing alongside boys in the junior
competitions. Despite anti-discrimination legislation in the various
states and territories and at federal level, all Australian jurisdictions
contain exceptions allowing exclusions on the basis of sex. The
Equal Opportunity Act 1995 (Vic) permits the exclusion of one sex
from a sport if strength, stamina or size is relevant. Post-puberty,
the average boy has greater lean body mass than the average
girl, and there is an appreciable difference in their performance
in sports. The judge’s task was to determine at what age there is a
lawful reason to separate the boys from the girls. He concluded that
the differences are not sufficiently great in the under-14 age group,
but they are sufficiently significant in the under-15 age group. So
excluding Helen Taylor was unlawful, though not the exclusion of
the other two girls. The judge added that it would be preferable if
Football Victoria would, instead of excluding girls, give them the
choice of whether to participate.
While the decision was a victory for Helen Taylor, questions
remain about its application to other sports, and how great the
differences between boys’ and girls’ physical attributes would
have to be in other sports in order to justify an exception to the
relevant legislation.

There are also differences in the legislation of the various states The Human Rights Commission can investigate complaints
and territories. In NSW, the exception to the prohibition of sex of discrimination and assist in reaching agreement between a
discrimination is much less specific, and allows female (or male) complainant and the organisation or company against which the
players to be excluded in any circumstances. Section 38 of the complaint is made. It does this through conciliation, in which
Anti-Discrimination Act 1977 (NSW), headed ‘Sport’, states: it acts as an impartial referee while the parties talk through their
Nothing in this Part renders unlawful the exclusion of persons concerns and look for solutions.
of the one sex from participation in any sporting activity not In 2001, the All Australia Netball Association (AANA) issued
being the coaching of persons engaged in any sporting activity, a ban to prevent pregnant women from playing in the Trophy
the administration of any sporting activity or any prescribed
competition. This included the captain of the Adelaide Ravens,
sporting activity.
Trudy Gardner, who was 15 weeks pregnant at the time. Gardner
lodged a complaint with HREOC, claiming discrimination on the
Research 5.1 grounds of her pregnancy under the Sex Discrimination Act 1984
Follow the links at www.cambridge.edu.au/ (Cth). Gardner and AANA were unable to resolve the disagreement
prelegal3weblinks and look at the Anti-Discrimination in that forum and she took them to court, seeking an injunction to
Act 1977 (NSW). allow her to continue to play pending the outcome of her complaint.
1 Discrimination on the basis of sex is explicitly prohibited She missed three games due to the ban, but the Federal Magistrates
by this Act. What other characteristics of persons Court granted the interim injunction. As a result of missing those
besides their sex do not justify discrimination, according three games, Gardner lost match payments and sponsorship.
to the Act? Gardner successfully sued the Netball Association in 2003
2 Are any of these characteristics relevant to (Gardner v AANA Ltd [2003] FMCA 81), seeking damages for distress,
discrimination within sport? Can you imagine situations pain and suffering, as well as the loss of the match payments and
in which they might be relevant? Discuss. sponsorship money. The Federal Magistrates Court found that the
3 Is a person’s sex different in any way from these other prohibition had breached ss 7 and 22 of the Sex Discrimination Act.
characteristics? Why or why not?
conciliation a method of legal dispute resolution involving a third party
who helps the parties to reach agreement
5.5 Agencies of law reform

in sport The NSW Law Reform Commission
Match fixing is a term used to describe corrupt behaviour in pre-
The Australian Human Rights determining the result of any particular sporting event. The sole
Commission reason for fixing a match is to guarantee the result so that a bet
placed on the match would lead to a windfall for a gambler.
The Australian Human Rights Commission is an independent In 2011, the NSW Law Reform Commission described some
statutory organisation, established in 1986. It was called the Human reasons why existing common law and statutory offences that
Rights and Equal Opportunity Commission (HREOC) prior to 2008. might apply in circumstances of match fixing were inadequate to
It investigates and reports to Federal Parliament about issues of cover the range of new match-fixing behaviours. For example, in
human rights compliance, resolves discrimination complaints and rugby league, bets can now be placed on whether the first scoring
breaches of human rights, holds public inquiries, provides advice play of a game is a penalty goal or a try.
and submissions to parliament, and conducts research into human The commission was responding to cases such as that of Ryan
rights and discrimination issues. These issues cover a broad range Tandy, who played in an NRL match in August 2010 and was found
of areas, including employment, education, the provision of goods guilty of criminal behaviour as a result of his actions during the
and services, and sport. first few minutes of the match. Tandy created a situation that may

PART I
have led to the opposing team taking a penalty goal in the first few
minutes of play. The result of the match overall was of little concern.
Prior to this case, ‘match fixing’ could be prosecuted under offences
that did not use consistent terminology – some focusing on fraud,
dishonesty and/or corruption – or that required the person charged
to have obtained a benefit or be directly engaged in gambling.

Since Tandy did not place a bet on the game in question, but
informed others of his intended actions so they could benefit, his
defence revolved around this notion that he had not placed a bet
on this particular match.
Under existing laws, Tandy may not have had charges laid against
him. By 2012 the Crimes Amendment (Cheating At Gambling)
Bill 2012 was being read in the NSW Parliament. The proposed
legislation aimed to outlaw behaviour inadequately covered by
existing legislation.
The Australian Sports Commission

The Australian Sports Commission (ASC) is a statutory authority
of the Australian government. Established through the Australian
Sports Commission Act 1989 (Cth), the ASC plays a role in the
development and operation of sport at all levels. It provides advice
Figure 5.14 Netballer Trudy Gardner, who lodged a complaint with
to the government and funding to national sporting organisations. HREOC, claiming discrimination on the grounds of her pregnancy
The Australian Institute for Sport (AIS), mentioned above, is one of
its divisions.
As a result of the netball ban, the ASC was asked to investigate 5.6 Mechanisms of law
the issues surrounding pregnant athletes. It hosted the National reform in sport
Forum on Pregnancy in Sport in August 2001, with participants
from government, industry and non-government organisations. The courts
The conclusions formed the basis for a set of guidelines for the
Australian sporting industry on pregnancy in sport. In addition to As discussed in Chapter 4, the courts’ role in interpreting
clearing the way for pregnant women to continue to play sport, legislation as applied to a particular case is to clarify its meaning.
the guidelines offer information and advice to protect sporting Where a higher court sets a precedent, it is making a statement
clubs. As employers, clubs are concerned to avoid being sued for about the application of the legislation or common law rule in
negligence if a player suffers foreseeable harm to herself or her relation to a set of facts and the way the law should be applied
foetus while engaging in sport. in the future. A court’s consideration of a situation and the
arguments for and against a claim can reveal unfairness or
Research 5.2 injustice in the legislation itself.
The Federal Sex Discrimination Commissioner in 2003, Pru
Follow the link at www.cambridge.edu.au/prelegal3weblinks
Goward, commented on Gardner’s case, saying that it was good to
to the Australian Human Rights Commission website and
research other areas dealt with by the Commission in see the courts developing case law around the Sex Discrimination
relation to sport. You might first try searching the site using Act. The circumstances of pregnant women continuing to pursue
the word ‘sport’. sport at high levels constituted a new application of the anti-
discrimination legislation.

The Court of Arbitration for Sport the 2008 Olympic team. No precedent was set in this case. After
discussions with Swimming Australia, the sport’s governing body,
The Court of Arbitration for Sport (CAS) was established in 1984 as
D’Arcy agreed that he would not swim competitively until August
part of the International Olympic Committee. It is an international
2009. In 2011, Simon Cowley successfully sued Nick D’Arcy for
arbitration body set up to settle disputes related to sport. It is
damages suffered in 2008. The courts ordered D’Arcy to pay Cowley
based in Lausanne, Switzerland, and has courts in New York City
$180 000 to compensate him for pain, suffering and the costs of
and Sydney, as well as ad hoc, temporary courts in Olympics
major surgery required to repair damage to his facial features. D’Arcy
host cities. The CAS settles disputes through arbitration, where
declared himself bankrupt, in order to avoid paying compensation.
the parties have agreed to its jurisdiction, and its decisions are
Despite public criticism that D’Arcy had been convicted of a criminal
binding. It hears two types of dispute:
offence, he was chosen to compete for Australia at the 2012 London
➥ commercial, including contract disputes, sponsorship, and
Olympics. Just two months prior, D’Arcy posted a photograph of
television rights, as well as civil liability claims, such as athletes’
himself on his Facebook page, in which he posed with a gun, and
accidental injuries during competition
was ordered to return home immediately after his events in London.
➥ disciplinary, including drug-related problems, violence on the
field, and abuse of referees.
Disciplinary cases are generally first dealt with by the ‘competent
Parliaments
sports authorities’: for example, the Australian Olympic Committee.
As we have seen, matters sometimes come before a court before
Appeals then may go to the CAS.
they have been considered by parliament. When a legal decision
Many of the disputes brought before the CAS are quite serious.
reflects new social patterns or attitudes, parliaments may
A recent case is that of Nick D’Arcy, a swimmer chosen for the
enact, amend or repeal legislation to ensure that the statute law
Australian Olympic team in 2008. At a celebration party on the
stays current and credible. This often happens after extensive
night he was chosen, D’Arcy was involved in an argument with a
consultation with bodies such as law reform commissions, human
fellow swimmer. D’Arcy punched Simon Cowley, breaking his nose,
rights commissions, or – in the case of sport law – the Australian
eye socket and jaw, and was subsequently convicted in the NSW
Sports Commission.
Local Court of recklessly inflicting grievous bodily harm. D’Arcy
received a 14-month suspended jail sentence.
The Australian Olympic Committee dropped him from the
Olympic team for bringing the team into disrepute. D’Arcy
Figure 5.15 Nick D’Arcy was convicted of inflicting bodily harm and
unsuccessfully appealed to the Court of Arbitration for a place on
subsequently was dropped from the Olympic Swim team.

PART I
One consequence of widespread recourse to the civil law is
Review 5.7 fear of lawsuits. For example, schools may decide to phase out
1 How could it be argued that the law as it relates to contact sports such as rugby if claims by students injured while
pregnant athletes should be different from ordinary playing become a common occurrence. Another concern is that
laws protecting equal opportunity for women athletes? players who are seriously hurt in situations where no one is at
fault – for example where a tackle is perfectly within the rules

2 What types of matters are heard by the Court of
Arbitration for Sport? of the game – are just as much in need of financial assistance
3 Is a fight on a football field in a close match different as those awarded damages, yet insurance coverage may be
from a fight on a street corner and if so, should penalties inadequate to their needs. While these are legitimate concerns,
for fights on the sporting ground be less than for it is hard to see how law reform would be the appropriate means
assaults committed on the street? of addressing them.
Equal opportunity in sport

5.7 Effectiveness of law Local, national and international interest in ensuring women’s
reform in the sporting world equality with men in all areas, including participation in sport,
has prompted legislation at both state and federal level. Australia
Contract is a signatory to the UN Convention on the Elimination of All
Forms of Discrimination Against Women, and domestic legislation
Breaches of contract in the sporting world may have different implementing this treaty makes discrimination on the basis of
particulars from breaches of contract in other areas of business, sex unlawful.
but the mechanisms and remedies are not markedly different. The In addition, legislation such as the Racial Discrimination Act 1975
Sonny Bill Williams case examined above illustrates the increasingly (Cth) and the Disability Discrimination Act 1992 (Cth) protects other
global nature of commercial sport, and may be interesting because groups that have historically been disadvantaged. The work of
it crossed jurisdictional boundaries: two countries and two different statutory bodies such as the Australian Human Rights Commission is
rugby codes. However, it is not clear that there is a significant need vital in addressing issues of equal opportunity, and court cases such
for law reform in this area. as Trudy Gardner’s have provided further factors for parliaments to
think about when drafting legislation. In the course of law reform,
Harm suffered in sport parliaments must balance concerns about negligence claims
against the need for fairness.
A greater readiness to sue and the professionalisation of sport
are two social factors contributing to players’ preference for civil Research 5.3
remedies rather than the criminal law. While the sums of money
involved are relatively large in professional sport, the purpose
prelegal3weblinks and review the details and comments
of tort law remains the same: to compensate people for losses or
on the Richard Vowles case.
damage suffered as a result of wrongs done to them.
1 Explain why the referee was held liable for Vowles’ injury.
Clubs, teams and referees are under a duty of care to safeguard
2 What is ‘contributory negligence’, and why was it
their players’ health and welfare, especially with respect to
relevant in this case?
reducing the risk of injury. In 1998, a rugby union player, Richard
Vowles, successfully sued the Welsh Rugby Union for damages
after he became a quadriplegic in a scrum that collapsed, breaking
his neck. According to the rules, the referee should not have
allowed that scrum if he considered that it would be dangerous
to continue.

Topic 3: Law reform Under-reporting is hard to gauge so only estimates can be used
in approximating the incidents of sexual assault in homes and the
and sexual assault broader community. Organisations such as the NSW Rape Crisis
Centre provide one such source of information on the contact they
5.8 Conditions that led have with the community (see Figures 5.17, 5.18 and 5.19).
to law reform relating to sexual assault a general term for criminal offences involving unwanted
sexual assault sexual contact; acts include unwanted touching or groping, indecent acts
of other kinds, and rape
One of the central aims of the criminal justice system is to prosecute

criminal offenders on behalf of the victims and the community.
Throughout this process there is a tension between the rights of the
accused and the interests of individuals and the community, and
getting this balance right is a constant challenge for the state.
There has been significant law reform in relation to sexual
assault offences over the past decade. This has been motivated by
perceptions that the criminal justice system was failing to deliver
just outcomes for victims and the community.
Sexual offences are the least reported crimes in NSW and have
the lowest conviction rates. This is compounded by delays in cases,
contributing to a low rate of satisfaction on the part of victims.
In 2010, the victimisation rate for sexual assault was 79.5
victims per 100 000 persons. According to the Australian Bureau
of Statistics (ABS), during 2010 there were 17 757 victims of sexual
assault recorded by police and 25 per cent of these victims were
aged 10–14 years.
These results also indicated that the majority of sexual assault
victims were female (85 per cent), who were also more likely to
be victims of kidnapping or abduction than males (58 per cent).
Figures further outline that female victims of sexual assault aged
15–19 had the highest victimisation rate of any age group, at a rate
more than seven times the overall rate for sexual assault.
According to the Australian Law Reform Commission, under-
reporting of sexual assault makes it difficult for the legal system
to respond to this type of crime. In its report, Family Violence –
A National Legal Response, the Commission stated:
Understanding that sexual assault is under-reported is crucial
background when considering the response of the criminal justice
system. The vast majority of incidents of sexual assault do not come
to the attention of the legal system. The problem is exacerbated in
the family violence context. Therefore, an important part of the law
reform focus should be on measures that might promote reporting
and challenge community attitudes to sexual assault that continue
to reinforce its invisibility. Figure 5.16 Sexual assaults are the least reported crimes in NSW.

PART I
The results of a statewide survey of victims and service
Manner of contact
20 000 providers, conducted by the NSW Criminal Justice Sexual Offences
18 159
18 000 Taskforce in 2005, revealed that victims were ill-served by the legal
16 000 system in terms of their practical needs. There was no established
14 000
system for addressing the ‘multiple needs’ of some victims,
12 000
including translation, mental health support, accommodation and

10 000 Total Contacts 22 754
8 000 counselling. The Director of Public Prosecutions (DPP) will generally

6 000 prosecute if there are prospects of a conviction and it is in the public
4 000 2 646 interest. Where the victim knows the attacker – the vast majority of
2 000 842 583 524
0
reported cases – much of the case will rely on one person’s word
Telephone Online Face to face Email Liaison/Advocacy against that of another unless there is convincing physical evidence.
Figure 5.17 Reports to the NSW Rape Crisis Advocates for victims argue that cases that involve a stranger are
more likely to proceed, because it is easier to establish that the sex
Reason for contact
was not consensual, the assaults are often of a more severe nature,
and there is more likely to be strong physical evidence.
Physical evidence often poses another major obstacle. Victims
Supporters
of sexual assault will generally need to be physically examined and
25% Domestic/
Family Violence questioned in detail in order to obtain evidence that can be used
44% in court.
Sexual Assault In addition, there has been a real lack of state resources
31% provided to doctors who work in sexual assault services. Training
for ‘Sexual Assault Nurse Examiners’ of sexual assault victims,
instead of doctors, was one area of need identified and the NSW
Department of Health commenced this training in 2004. Although
the nurse examiners have training in clinical practice and forensic
Age of client 0–15 2% assessments and routinely give evidence in court, this initiative was
seen by some as a ‘resource efficiency’ measure.
55+ As a result of these and other factors, most formal complaints
10% of sexual offences do not result in formal investigations and most
46–55 16–25
14% investigations do not lead to trials. The 2005 national Personal
28%
Safety Survey reported that only 19 per cent of women who had
experienced sexual violence by a male offender had reported this
36–45 to the police.
21% 26–35
25% In NSW the number of sexual offences reported to police
exceeded the number of proven charges by about ten to one. …
[A] pproximately 8% of sexual offences committed against children
and 10% of recorded sexual offences against adults reported to
police are ultimately proven at court.
Figure 5.18 and Figure 5.19 – Source: NSW Rape Crisis Centre, 2011 Jacqueline Fitzgerald, ‘The Attrition of Sexual Offences
from the New South Wales Criminal Justice System’,
Under-reporting can be attributed to the following factors. Many 92 Contemporary Issues in Crime and Justice (January 2006),
NSW Bureau of Crime Statistics and Research
victims do not report sexual assault because they believe they
would not win a court case or that it will be too much trouble, or Given the estimates of the number of unreported incidents, this
they cannot face it emotionally. Compounding this is the fact that conviction rate represents a small proportion of the incidents that
in 70 per cent or more of cases, the offender is known to the victim, are occurring. It is worth asking why this is the case, especially when
making proof more difficult. compared to all other categories of crime.

5.9 Agencies of law reform
relating to sexual assault
The Criminal Justice Sexual Offences
Taskforce
The Criminal Justice Sexual Offences Taskforce was established in
2004 by the NSW Attorney-General to investigate issues relating
to sexual assault and the prosecution of these crimes. Its task was
to advise the Attorney-General on how the criminal justice system
could become more responsive to victims of sexual assault without
undermining the right of the accused to receive a fair trial.
The Taskforce had input from a broad cross-section of
government and non-government organisations, in an effort
to obtain various viewpoints on the criminal justice system. It
produced 70 recommendations for implementation. As a result
of its report, new legislation was passed from 2005, some of
which is discussed below. In conjunction with the Taskforce
investigation, the NSW government also asked the Australian
Institute of Criminology (AIC) to investigate the question of
whether giving evidence via closed-circuit television altered the
impact of the evidence as it was received – that is, whether it was
likely to reduce the empathy the jury might have for the victim
or the accused. The AIC found that there was no real difference
in jury responses. These findings went some way to convincing
the government that this could be a reliable mode of delivering
evidence for traumatised victims who did not want to be in the
same room as the accused.
Figure 5.20 The lack of doctors specialising in sexual assault has
the potential to reduce the likelihood of just outcomes for victims of
sexual assault. NSW Rape Crisis Centre
The NSW Rape Crisis Centre has been at the forefront of reforms to
Review 5.8 the way sexual assault matters are dealt with by the NSW criminal
justice system.
1 Give some reasons for the low percentage of sexual
This organisation was started in the 1970s by a group of women
crimes that are actually reported to police.
who voluntarily assisted victims of sexual assault in NSW. In 1974, the
2 What are some of the difficulties in proving a sexual
Whitlam federal government provided funding so that services could
assault case when the victim knows the attacker?
be upgraded and made permanent, and the workers paid. The centre
3 Why is specific training important for doctors and
runs 24 hours a day and provides support and counselling for anyone
nurses dealing with sexual assault victims?
in NSW who has experienced sexual violence.

PART I
Research 5.4
1 Obtain some or all of the following articles using a
search engine.
➥ Natasha Wallace, ‘A daughter’s agony, her family’s

Figure 5.21 The NSW Rape Crisis Centre is a 24-hour telephone and online suffering’, Sydney Morning Herald, 29 July 2004
crisis, support and referral service for anyone in NSW who has experienced ➥ Paul Sheehan, ‘Why sexual violence is almost legal:
sexual violence.
Our inflexible, forbidding court system alienates
many who deserve justice’, Sydney Morning Herald,
The NSW Bar Association 9 August 2004
➥ Paul Sheehan, ‘Rough, slow justice for rape victims’,
Sydney Morning Herald, 10 April 2006
The NSW Bar Association, the professional organisation for barristers
➥ Kate Sikora, ‘Standing up for victims’, Daily Telegraph,
in the state, has rewritten its own rules for the cross-examination of
9 October 2006
alleged victims of sexual assault matters. Questions that belittle,
➥ Janet Fife-Yeomans, ‘Damning report shows how
confuse or mislead victims are to be banned. Attacks on the victim,
we fail our sex case children’, Daily Telegraph,
it is hoped, will now not be permitted in the courtroom.
3 October 2008
➥ Adele Horin, ‘One in four women suffer sexual
The media violence: Study’, Sydney Morning Herald,
3 August 2011
Criminal cases involving sexual assault have received significant ➥ Adele Horin, ‘SlutWalk turns apathy into action on
media attention over the past decade. In some cases this frenzied sex attacks’, Sydney Morning Herald, 13 June 2011
attention has led to undesirable results, such as in 2004 when the 2 Outline the criticisms made of the criminal justice system
conviction of one of five men accused of gang rape, Tayyab Sheikh, in these articles. Could the high profile of these cases
was overturned in the NSW Court of Criminal Appeal and a new have led to some of the law reform measures outlined
below? Discuss.
trial ordered. When sensationalistic coverage gives a jury access to
inadmissible material, the jury’s ability to ignore this information
may be put into doubt and thus the accused may not receive a fair
trial. The judges said this was regrettable but ‘a conviction following Legal Links
an unfair trial is a conviction obtained at too high a price’.
For more information on the NSW Rape Crisis Centre follow
In other cases, the media’s influence on public opinion, the link at www.cambridge.edu.au/prelegal3weblinks.
law organisations and governments has resulted in changes
that improve the treatment of victims of serious sexual assault
crimes in court. Victims being forced to recount their experience
5.10 Mechanisms of law
reform relating to sexual
over and over, and defence counsel badgering victims in cross-
examination to call their credibility into question, have been
graphically portrayed by the media and have horrified the assault
public and many in the legal profession. Frequently, however,
the positive outcomes have been accompanied by less desirable Parliament
ones, such as the rights of the accused being accorded a fairly low
importance, and a readiness to exploit the prejudices of some There have been many Acts passed by the NSW Parliament over the
segments of the public. In the 2004 Sydney gang rape trials, an past few years to usher in reform in sexual assault matters. Some of
ugly racist theme surfaced in some of the public rhetoric, focusing the key legislation has been:
on the ethnicity of the rapists. The media can be an unreliable ➥ Criminal Procedure Amendment (Sexual Offence Case
instrument of justice. Management) Act 2005 (NSW): This Act amended the Criminal

Procedure Act 1986 (NSW) to provide that a pre-trial order
The courts
made by a judge in proceedings relating to a sexual offence is
binding on whatever judge presides at the trial. Rulings on the While recommendations of the Criminal Justice Sexual Offences
admissibility of evidence by a judge other than the trial judge Taskforce have changed the manner in which judges and the
need to be binding on the trial judge, so that delays in the courts deal with matters of serious sexual assaults, these changes
commencement of criminal proceedings are minimised. The have largely been brought about as a result of legislation.
legislation was designed to minimise the stress and trauma on Changes in social attitudes regarding sex crimes will doubtless
complainants giving evidence, who have to prepare themselves lead to future court decisions rethinking the law or looking at
to give evidence every time a trial is scheduled and rescheduled. criminal law issues in the area of sexual assault in a way that leads
➥ Criminal Procedure Amendment (Evidence) Act 2005 (NSW): to law reform.
This Act amended the Criminal Procedure Act 1986 (NSW) to Judges in cases where a guilty verdict was returned have
allow a transcript or recording of a complainant’s evidence handed down some severe penalties, both to send a message of
in any retrial. If the evidence is admitted in a retrial, then the general deterrence to the community and to reflect the severity
complainant cannot be forced to give further evidence unless of the offences. For example, Bilal Skaf, who was convicted as
she or he decides to do so. the ringleader in a series of gang rapes in Sydney in 2000, was
➥ Criminal Procedure Further Amendment (Evidence) Act sentenced to 55 years’ jail with a non-parole period of 40 years
2005 (NSW): Certain provisions of this Act were designed to (reduced on appeal).
ensure that improper questions were not put to complainants It has been suggested that specialist courts for sexual offences
during cross-examination. It also provided for evidence to be would lessen the trauma suffered by victims when giving evidence,
given ‘in camera’ (privately) and for support people to be close and would improve conviction rates. Some of the features of such
to a complainant when giving evidence. The Act also introduced courts would include appropriate technology, such as closed-circuit
a new section into the Criminal Procedure Act 1986 to prevent an television, and facilities such as separate entrances for defendants
unrepresented accused from cross-examining the complainant. and victims. While the Taskforce did not go so far as to recommend
➥ Crimes Amendment (Consent – Sexual Assault Offences) Act a specialist court, its recommendations included a specialised
2007 (NSW): A person’s lack of consent and knowledge that case management process using specially trained judges and
the person is not consenting are elements of sexual assault prosecutors, screening processes, technology and other features of
offences such as rape. If someone is under the influence of such a court.
alcohol or drugs, there may be no capacity to give consent. In
court, an accused will be examined by the prosecution on what
Research 5.5
steps he took to ensure that there was consent. The Crimes Act
1900 (NSW) was amended to place the onus on the defendant Choose one or more of the following articles to read
to prove there was consent; in the past the prosecution had carefully:
this responsibility. ➥ Richard Ackland, ‘New rape trial is on a slim premise’,
Sydney Morning Herald, 5 March 2004.
complainant a person alleging that a sexual assault has been committed ➥ Jocelynne Scutt, ‘The rights and wrongs of the
against him or her
courtroom’, Sydney Morning Herald, 23 May 2005.
➥ Clare Buttner, ‘Justice failing rape victims’, Lawyers
Weekly, 29 May 2007.
in camera (Latin) privately; only specified persons such as the judge can
Links to these articles can be found at www.cambridge.
be present during the testimony or proceeding
1 What is the author arguing?
consent free and voluntary agreement by a rational person who is 2 What support does he or she offer for his or her ideas?
able to understand and make a decision about the matter to which he
3 Discuss.
or she agrees

PART I
in 1995. The difficulties of prosecuting such cases still exist, including
victims’ reluctance to be ‘grilled in the witness box’.
The changes to the NSW Barristers’ Rules with respect to the
questioning of sexual assault victims can only be a good thing. It is
also a sign that the publicity and pressure exerted by the various
agencies of law reform have prompted a rethink of the way defence

lawyers will conduct their cases in the future.
State governments have implemented at least two-thirds of
the 70 recommendations of the Criminal Justice Sexual Offences
Taskforce. Some of the following have also been introduced:
➥ Continuing efforts to address delays in sexual assault matters.
The District Court had introduced mandatory timetables.
➥ Closing court when victims are giving evidence.
➥ Complainants can use remote witness facilities in 78 locations
across the state.
Figure 5.22 An effective poster produced as part of the Northern
Beaches Men Against Sexual Assault Campaign ➥ Judges are required to disallow improper cross-examination
questions.
5.11 Effectiveness of law Finally, continuing efforts to educate the public are equally important.
Sexual assault crimes are crimes of violence, and certain beliefs about
reform relating to sexual gender in our society need to be articulated and challenged if these
assault crimes are to be properly addressed by the criminal justice system.

Dr Don Weatherburn, from the NSW Bureau of Crime Statistics and
As discussed, the low reporting rates for sexual crimes, and Research, stated that ‘In nine out of 10 cases of sexual assault reported
consequently the low number of offenders successfully prosecuted, to NSW police, however, the victim and offender already know each
were a serious concern to the NSW government and to the other. In many cases they are partners or former partners.’ He went
community at large. The legislation passed from 2005 on has been on to say that ‘the capacity of the police to lay charges and clear the
an attempt to address this problem. The chief task is to ensure that offence in these circumstances depends greatly on whether the victim
victims are not further traumatised by the court process, while is willing to give evidence and whether there is any corroborating
protecting the right of an accused to a fair trial. evidence, such as injury to the victim’. Continuing education and
Changes to the law of consent in late 2007 may prove to deliver a reforms to the criminal justice system will be necessary to improve
significant shift in outcomes for the complainant. In the vast majority reporting and collection of evidence to assist in more successful
of matters, where the accused is known to the complainant, a reversal prosecutions while balancing the rights of the accused against those
of the onus of proof regarding consent may make it more difficult for of the victim and the community.
the accused to deny criminal responsibility. It may in turn encourage
more victims to report offences. Review 5.9
As the new laws are applied in the courts, there will be more
information for assessing whether the requirement of ‘reasonable 1 How has the NSW Parliament addressed the need for
grounds’ for believing that there was consent will unfairly prejudice reform in the area of sexual assault crimes? Give examples.
juries against a defendant. 2 What other agencies have had a role in bringing about
At this stage it appears that the reforms are having little changes to the way trials are conducted? Classify each
of these agencies with respect to their function and
practical impact. Figures from the NSW Bureau of Crime Statistics
purpose within the legal system.
show that police only arrested offenders in 21 per cent of the sexual
assault cases that were reported in 2007. Further figures show the 3 Outline some of the changes that have taken place.
success rate of the police in solving sexual assaults has dropped 4 How could success in this area be measured?
dramatically. Police were solving double the number of cases Give examples.

Topic summary
➔ ‘Native title’ refers to Aboriginal and Torres Strait Islander ➔ The 1967 referendum amended the Constitution to allow the
peoples’ right to an area of land with which they have had an Commonwealth to legislate for Indigenous Australians, and to
ongoing association. allow them to be counted in the census.
➔ The concept of terra nullius was used to justify the ➔ The Mabo case was a significant High Court decision that
implementation of British law and the dispossession abolished terra nullius and led the federal government to pass
of indigenous peoples. the Native Title Act 1993 (Cth).
➔ Further state and federal legislation and court decisions have
been instrumental in law reform in the area of native title.
1 British policies towards Indigenous Australians were based on 4 The aim of the national native title tribunal is:
which of the following? a to assist with native title negotiations
a colonial conquest, then attempts at assimilation b to determine whether a particular place is terra nullius
b mediation c to advise the Federal Court of Australia on native title
c native title d to hear criminal cases involving Indigenous Australians
d implied rights contained in the Constitution 5 Which of the following statements is true of native title?
2 What was the effect of the 1967 amendments to the Australian a It can be claimed by an individual.
Constitution? b It is a collective right shared by a group.
a They gave Indigenous people the right to vote. c It is the modern term for terra nullius.
b They allowed the Commonwealth to make laws for d It is contained in s 128 of the Constitution.
Indigenous Australians, and allowed them to be counted
in the census. Topic summary tasks
c They gave them native title. 1 In your own words, describe the Myall Creek Massacre. Why do
d They gave Australian citizenship to all Aboriginal people you think this massacre occurred?
in NSW and Victoria.
2 Create a timeline outlining the key stages of Indigenous
3 Which of the following statements is true of the Wik decision? Australians’ right to vote in federal elections.
a It gave Indigenous people native title over all pastoral land.
3 In your own words, discuss the aims of the Native Title Tribunal.
b The High Court held that pastoral leases could coexist with
Why was it established?
native title, but where there was a conflict, the pastoral
4 Who was Eddie Mabo? How did he change Indigenous rights?
lease took priority.
5 Describe the relationship between court decisions and
c It overturned Mabo.
subsequent legislation, and explain how law reform relating
d The High Court found that the Native Title Act 1993 was
to native title has taken place so far.
unconstitutional.

PART I
Topic 2: law reform and sport

Topic summary
➔ Sport law is a complex combination of tort, criminal and ➔ Rules of the games, set down by governing bodies, can be
contract law, and is based on both statute and common law. enforced through the court system, and players may face
➔ Sport has changed dramatically in the past 40 years: it is criminal charges or civil action for harm inflicted.
broadcast nationwide, and major companies spend vast sums ➔ Coaches, referees and administrators may be subject to a
of money to sponsor teams and competitions. Gambling on a claim in negligence for breaching a duty of care.
range of sporting outcomes has become far more widespread. ➔ Agencies of law reform in sport include the Australian Sports
➔ Athletes are held responsible for their intentional actions both Commission and the Australian Human Rights Commission.
on and off the sporting field.
1 Sport law is: 5 The case of Trudy Gardner demonstrates:
a the rules of any particular sporting body a a conflict between sporting rules and anti-discrimination
b the law made by the Australian Sports Commission laws
c a combination of various statutes, common law b how sporting bodies are subject to legal action
judgements and tort law c the ability of individuals to challenge decisions in courts
d none of the above d all of the above.
2 Express consent is a term that means:
a Players may do whatever it takes to win a game. Topic summary tasks
b What happens on the field stays on the field. 1 Outline the changes in attitudes to sport that have occurred
c Players must give consent before they play a game. over the past few decades. List some of the consequences of
d Players accept the possibilities that can occur within the these changes.
course of the game.
2 Explain the importance of the law in governing on-field
3 Victims of assault on a sporting field usually take legal action behaviour in contact sports.
through civil courts because:
3 Explain how contract law relates to professional athletes and
a Criminal law does not apply on the sporting field.
clubs. What can happen if a contract is breached?
b Victims’ compensation is inadequate for professional
athletes. 4 Why do you think victims of violence on the sporting field do
c There is usually not enough evidence. not report an offence to police?
d Witness statements from players cannot be accepted 5 Discuss two ways in which women’s participation in sport has
in courts. led to law reform.
4 Vicarious liability refers to:

a referees’ and officials’ responsibility for the enforcement
of rules
b employers being held accountable for their employees’
actions
c financial liability of sporting bodies
d none of the above

Topic summary
➔ There has been significant law reform relating to sexual assault ➔ Agencies of law reform relating to sexual assault include
over the past decade, prompted by the failure of the criminal parliamentary inquiries such as the Criminal Justice Sexual
justice system to deliver just outcomes for victims. Offences Taskforce, non-government organisations such as the
➔ Sexual assault is a crime with one of the lowest conviction NSW Rape Crisis Centre, and professional organisations.
rates in NSW due to investigation failures, delays in cases, a ➔ The media have been influential in putting pressure on
lack of resources and a lack of information provided to victims. governments to reform the laws relating to sexual assault.
➔ Since 2005, various laws have been passed in NSW to improve
criminal procedure in relation to sexual assault cases.
1 Which of the following was not a reason to reform the law in 4 The Crimes Amendment (Consent – Sexual Assault Offences) Act
the area of sexual assault? 2007 (NSW) changed the Crimes Act with respect to consent.
a low rate of reported sexual offences Which of the following is correct?
b low rate of convictions a Documentary evidence is needed to establish consent.
c poor level of service to victims in terms of information and b The onus of proof of consent has been reversed.
resources c Partial consent may be established.
d the media were insufficiently interested in sexual assault d None of the above.
cases 5 The Criminal Procedure Further Amendment (Evidence) Act 2005
2 The Criminal Justice Sexual Offences Taskforce set up in 2004 (NSW) made which of the following changes to the Criminal
has brought about which of the following changes? Procedure Act 1986 (NSW)?
a legislation to improve procedures regarding the giving of a Hearsay evidence can now be admitted to prove that the
evidence complainant consented to sexual intercourse.
b legislation requiring judgements to reflect public opinion b It prohibited the cross-examination of victims by an
about sexual offenders accused person representing himself.
c a greater number of sexual offences reported c It allows a transcript or recording of a complainant’s
d a statutory requirement that the media report cases with evidence in any retrial.
greater understanding of the law d It reaffirmed the right of an unrepresented accused to
3 The NSW government asked the Australian Institute of cross-examine the alleged victim.
Criminology (AIC) to investigate whether giving evidence via
closed-circuit television altered the way in which the evidence Topic summary tasks
was received: that is, whether it affected juries’ empathy for 1 Outline the main issues that prompted law reform in the area
the victim or the accused. Which of the following best reflects of sexual assault.
those findings? 2 Discuss the changes to the law of consent from the perspective
a Juries were more likely to favour the accused. of the victim and the accused.
b Juries were more likely to favour the victim. 3 Identify and describe the role of some non-legal measures in
c There was no difference in jury responses. addressing the effectiveness of the law in dealing with sexual
d Closed-circuit TV evidence was more likely to permit the assault.
presentation of graphic evidence. 4 Describe at least three reforms to the law relating to sexual
assault.
5 Assess the effectiveness of law reform in addressing the issues
around sexual assault.

Topic 4
Young drivers and the law
This additional Topic is available

for teachers and students in the
Interactive Textbook

Part II
30% of course time
Principal focus
Through examining the roles of legal and non-legal institutions, laws and media reports, students will
gain an understanding of how the law impacts on individuals

➔ How justice, laws and society are connected ➔ How the law is used to regulate technology
➔ Balancing the rights and responsibilities of individuals ➔ The role of legal mechanisms in effectively achieving justice
➔ The relationship between the rights of individuals and the for individuals and society
needs of the state
1 Your rights and responsibilities 3 Contemporary issue: The individual

and technology
➔ What are rights and responsibilities?
➔ The nature of individual rights ➔ The scope of new technology
➔ Individuals’ rights and responsibilities in relation to the state ➔ Legal issues in cyberspace
➔ International protection of rights ➔ Privacy, safety and censorship
➔ Rights in cyberspace
2 Resolving disputes ➔ Current status and sources of law in cyberspace
➔ Future directions
➔ Law enforcement agencies
➔ Disputes between individuals
➔ Disputes with the state

PART II

Chapter 6
Your rights and responsibilities
Chapter objectives
➔ investigate the effects of legal and non-legal institutions on ➔ evaluate the effectiveness of legal instruments for achieving
individuals justice for both individuals and society
➔ explore the relationship between rights and responsibilities ➔ identify and apply appropriate legal terms and concepts.
in various contexts
➔ discuss the necessary balance between the rights of
individuals and of the state
Key terms
bill of rights political autonomy rights self-executing
implied rights responsibilities self-determination tortious
Relevant law
Racial Discrimination Act 1975 (Cth) Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14
Education Act 1990 (NSW) Donoghue v Stevenson [1932] AC 562
Summary Offences Act 1988 (NSW) Wilson v Tyneside Window Cleaning Co. [1958] 2 QB 110
World Youth Day Act 2006 (NSW) Evans v State of NSW [2008] FCAFC 130
Local Government Act 1993 (NSW)
Local Government (General) Regulation 2005

PART II
Chapter 6: Your rights and responsibilities
Odd law
In a case heard in the District Court of the Western District of Pennsylvania, United States ex rel. Gerald Mayo v. Satan and his staff, a
plaintiff initiated suit against the infernal corporation of Lucifer and his henchmen, who had ‘allegedly placed deliberate obstacles in
plaintiff’s path and caused his downfall’. The plaintiff argued that ‘by reason of these acts Satan has deprived him of his constitutional
rights’. The court found, among other things, that there were irresolvable factual questions with respect to the respondents (i.e. ‘Satan
and his staff’), and dismissed the case on procedural grounds.

6.1 What are rights Rights and responsibilities are interrelated. Where someone
has a responsibility to another person, the other person has a
and responsibilities? corresponding right to be treated in a particular way. Where
citizens have particular rights, the state has a responsibility to
Rights are entitlements that people have by legal or moral protect those rights and ensure that they are not violated by
authority. If you have a right to something, others are legally or individuals, groups or the state itself. Where the members of a
morally prohibited from taking it away from you. A person has a group have a legal responsibility to do something, the group
right to do something or possess something as a result of being in a has a right to expect it. For example, members of a trade union
particular group or a particular legal class of persons. For example, are responsible for paying their union dues; everyone on the
in Australia, residents and property owners over the age of 18 electoral roll in a state has the responsibility to serve on a jury if
have the right to vote in local council elections. Human rights are randomly chosen.
fundamental rights that every person has on the basis of being
a human being, without regard to nationality, age, sex or other rights legal or moral entitlements tortious wrongful; constituting a
characteristics. ‘Human being’ is a class of persons, just as ‘persons or permissions tort or breach of duty to others
over 18’ and ‘Australian citizens’ are classes or groups of persons.

Responsibilities are legal or moral obligations that a
responsibilities legal or moral
person may have to another person, to a group, or to the state,
obligations to others
society, or other people generally. There are responsibilities to
act in particular ways, as well as responsibilities to refrain from
certain acts. For example, a parent has both legal and moral Legal basis of rights
responsibility to take care of his or her children, and all persons
have a responsibility not to commit criminal and tortious acts. For a right to have a legal basis, it must be protected by law and
States, groups, organisations, corporations and societies have thus be enforceable. In Australia, legal rights may be protected by
responsibilities, just as individuals do. statute or by common law.
Figure 6.1 Voting is compulsory for Australian citizens over the age of 18. Apart from being compulsory, voting is also a right.

PART II
Statute behaviour. In short, if you are aware that your behaviour poses
a risk to others, you may be liable for harm or damage caused to
An example of a right protected by statute is the right not to be
another citizen.
excluded or restricted on the basis of race, colour, descent, or national
Other contexts in which there is a duty of care include doctors’
or ethnic origin. This right is contained in the Racial Discrimination
duty to their patients, airlines’ duty to passengers, and employers’
Act 1975 (Cth) and is very broad, extending to people’s treatment
duty to ensure that their employees have safe conditions in which to

in ‘political, economic, social, cultural, or any other field of public
do their work (Wilson v Tyneside Window Cleaning Co. [1958] 2 QB 110).
life’ (s 9). For example, an employer would not be able to dismiss an
Breach of the duty of care, resulting in harm that could be foreseen,
employee because he or she was from a certain racial group. Nor
entitles the person harmed to bring an action for negligence.
would a political party be able to refuse to allow someone to join
because of his or her ethnic origin. negligence carelessness; a tort that involves breach of a duty of care
resulting in harm that could be foreseen
Common law
Other rights are protected by common law, particularly in contract
law and tort law. For example, if one party to a contract breaches
6.2 The nature of
a term of the contract (that is, fails to do what he or she agreed individual rights
to do), and the term that has been breached is a very important
one, the other party has the right to end the contract (Progressive The distinction between moral
Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14). Or to take a
and legal rights
very general example that we have seen in the context of tort law, if
someone purchases a product, he or she has a common law right to
The main difference between legal rights and moral rights is that
enjoy it without being exposed to anything harmful or unpleasant
people can argue from different ethical viewpoints about whether
(Donoghue v Stevenson [1932] AC 562).
a certain moral right exists, whereas legal rights are contained in
statutes or in the body of decisions constituting common law, and
Legal basis of responsibilities it cannot be disputed that these are binding in the jurisdictions to
which the statute or the common law applies. Although people
As stated above, where someone has a right, someone else has a
might argue that a particular law or common law principle is not
corresponding responsibility.
just – in other words, that it should not be the law – if it is currently
the law it cannot be argued that it is not currently binding, whether
Statute someone likes it or not.
While moral rights and responsibilities may have binding force
Legal responsibilities are also called ‘obligations’ or ‘duties’. An
for everyone, only those who believe that they are binding are
example of a statutory obligation is parents’ duty to send their
likely to behave accordingly and try to persuade others to do so. In
children to school or to arrange for their children to be home
other words, moral rights and responsibilities are not enforceable.
schooled. Another is the duty of the state to ensure that every child
While many laws have been passed because they agree with the
has the best possible education, and to provide public schools.
moral views of most people in a community, and are complied
These duties are contained in Acts such as the Education Act 1990
with for similar reasons, the law is sometimes slow to change to
(NSW), and are based on the principle, stated in s 4 of the Act, that
reflect changes in social attitudes and public morality. As discussed
every child has the right to an education.
in Chapter 4, this is why law reform is an important feature of
Australian law.
Common law An example of a controversial moral right is the right to die.
Other legal responsibilities are based on the common law. For Some people diagnosed with terminal illnesses have argued that
example, the duty of care is a well-known common law duty. they have a right to die if they choose, rather than suffering pain
As expressed in Donoghue v Stevenson, it is owed to all persons and loss of dignity. However, euthanasia is not a legal right in any
who are likely to be ‘closely and directly affected’ by your Australian jurisdiction.
C hap ter 6: Your r ights and resp onsib il ities 129

Figure 6.2 A controversial moral right is the right to die.
Another example is the right in NSW to engage in sexual activity. mainly with succession to the throne and the way in which English
Consensual heterosexual and homosexual sex is legal for persons law was to be adopted in its colonies (see p. 145 on the ‘doctrine
over the age of 16. However, many religious and social leaders in our of reception’). As one of the 47 member countries of the Council
community would argue that this age is inappropriate. Hence, while of Europe, the UK is a party to the European Convention for the
persons over 16 have a legal right to consensual sex, some would Protection of Human Rights and Fundamental Freedoms (1953) and
dispute the existence of a moral right to it. is bound by it. The UK introduced the Human Rights Act 1998 to give
further effect in UK law to the rights contained in this convention.
A bill of rights? In the US, the Bill of Rights, ratified in 1791, consists of the first
10 amendments to the Constitution and contains fundamental
Protections provided by bills of rights rights of individuals in private life, in the criminal justice process,
and with respect to the government generally.
Countries including the US, the UK and New Zealand have a
New Zealand’s Bill of Rights Act 1990 contains civil, democratic
document known as a bill of rights. Such a document sets
and human rights, including freedom from discrimination, and
out specifically what individuals are entitled to expect of their
freedoms from government intrusions into individuals’ lives.
government. Australia is the only western democracy that does not
Table 6.1 shows some examples of rights contained in bills
have one.
of rights.
Although the UK has no single constitutional document, the
English Bill of Rights of 1689 sets out a few fundamental rights and
bill of rights a statement of basic human rights and privileges
is still in force today. However, it is limited in its scope and deals

PART II
New Zealand: United States of America: European Union:
Bill of Rights Act 1990 Bill of Rights European Convention for the
Protection of Human Rights and
Fundamental Freedoms
The right not to be subjected to The right not to be subjected to excessive The right not to be subjected to torture
torture or to cruel, degrading, or bail, excessive fines, or cruel and unusual or to inhuman or degrading treatment or

disproportionately severe treatment punishments (Amendment VIII) punishment (Article 3)
or punishment (s 9)
The right to freedom of thought, Congress shall make no law respecting an The right to freedom of thought, conscience,
conscience, religion, and belief, establishment of religion, or prohibiting and religion (Article 9); freedom of expression,
including the right to adopt and to the free exercise thereof; or abridging including freedom to hold opinions and to
hold opinions without interference (s the freedom of speech, or of the press receive and impart information and ideas
13); freedom of expression (s 14) (Amendment I) without interference (Article 10)
Everyone who is arrested shall be No person shall be held to answer for a capital Everyone charged with a criminal offence
informed of the reason; shall have crime unless on a presentment or indictment has the right to be informed of the nature
and be informed of: the right: to of a grand jury, nor compelled in a criminal and reason for the accusation, to have
consult a lawyer, to be released if the case to be a witness against himself, nor be adequate time and facilities to prepare his
arrest is not lawful, to be charged deprived of life, liberty or property without defence, to have a lawyer, to have witnesses
and brought to court promptly or due process of law (Amendment V) The right on his behalf under the same conditions as
released, and not to be a witness to a speedy and public trial by jury, to be witnesses against him, to have a fair trial, and
against himself (s 23) informed of the nature and reason for the to be presumed innocent until proved guilty
accusation, to have a lawyer (Amendment VI) (Article 6)
Table 6.1 Examples of rights enshrined in a bill of rights
Figure 6.3 The US Bill of Rights is part of that country’s Constitution.

Research 6.1
Follow the links at www.cambridge.edu.au/prelegal3weblinks to view the US Bill of Rights (the first 10 amendments to the US
Constitution).
1 Choose three rights that are contained in the US Bill of Rights. Summarise these rights in your own words.
2 For each of these rights, explain why it was considered important enough to be included in the US Bill of Rights.
3 Are these considerations still relevant today? Why or why not?
View other links at www.cambridge.edu.au/prelegal3weblinks to help you with further research.
Arguments for and against an Australian

Review 6.1
bill of rights
1 Make a list of five rights and corresponding
In Australia, a bill of rights has never existed, as the authors of our
responsibilities.
Constitution believed that citizens’ rights would be protected by
2 Describe the difference between legal and moral rights,
decisions of the courts or by various statutes made as the need
using examples.
arose. The Australian Constitution does set out a number of express
3 ‘Citizens have the right to end their own lives if they are
rights, including the right to religious freedom (s 116) and the right
terminally ill.’ Discuss the legal and moral issues arising
to trial by jury (s 80). However, the debate over the need for explicit
from this idea.
constitutional protection for a broader range of human rights
4 What are some further arguments for and against an
has featured in Australian political dialogue since the 1890s and
Australian bill of rights? Do we need a bill of rights?
continues today. Some of the arguments for and against a bill of
Justify your answer.
rights are summarised in Table 6.2.
For Against
££ Australian law gives insufficient protection to fundamental ££ Rights are already protected by statutes and the common law.
freedoms, and a bill of rights would enshrine those rights.
££ A bill of rights would make our current laws more cohesive ££ A bill of rights makes little practical difference in the
and accessible, rather than being ‘locked up’ in past protection of rights.
judgements and statutes.
££ We are becoming increasingly internationalised and need to ££ Enabling judges to strike down laws made by parliament that
be aware of international laws. A bill of rights would bring are inconsistent with a bill of rights would be undemocratic.
Australia in line with other countries
££ A bill of rights would allow Australia to meet its international ££ Rights written in a bill of rights can become outdated very
obligations more effectively. quickly in a rapidly changing world.
££ A bill of rights would protect the rights of minorities. ££ A bill of rights would actually restrict rights, because
once defined, a right is limited by the words in which it
is expressed.
££ The High Court’s interpretation of ‘implied rights’ in the ££ The judiciary would become too political if there were a bill
Constitution is too limited: we need a document explicitly of rights.
setting out our rights.
Table 6.2 Arguments for and against a bill of rights in Australia

PART II
6.3 Individuals’ rights and to assist overrides their right to enjoy a cigarette on the beach.
A newspaper article outlining this case is presented on page 13.
responsibilities in relation By 2012, Manly Council had imposed smoking bans on all ocean
to the state and harbour beaches, within 10 metres of child playground areas,
sporting fields and all events run by the council.
Conflicts between rights and Other conflicts between the rights of individuals and the state

are seen as more serious. At times, governments have asked citizens
responsibilities to be willing to die in wars that the citizens oppose. Throughout the
Australian citizens have certain expectations of their local, state and 1960s and 1970s, the Australian government felt obliged to assist
federal government, and understand that while citizens enjoy the in the United States’ effort to defeat communism. Approximately
rights granted by the Constitution, other statutes, and the common 47 000 young men were conscripted to fight in the Vietnam War
law, they also have responsibilities. At times the rights of individuals between 1966 and 1972, through the enactment of a law that
and their responsibilities to the local, state or national community permitted them to select young men randomly from birth records.
come into conflict. If an individual refused to respond to a letter from the government,
Over the past few years in NSW, smoking cigarettes has he was pursued and often jailed. Those who believed that violence
been outlawed in more and more places. Manly Council, which or war was morally wrong, or that the Vietnam War was not a just
governs Manly Beach through delegated authority, introduced war, were known as ‘conscientious objectors’. Individuals’ rights in
a no-cigarette policy for its beach in 2004. Council rangers were relation to the state have taken a new turn since 11 September 2001,
able to fine people smoking on the beach up to $50. Individuals’ when not only the United States but other countries, including
desire to smoke on the beach clearly conflicts not only with the Australia, began to enact legislation to protect its citizens from
free environment in
desires of non-smokers to have a smoke terrorism. We will look at some of the problems for individual rights
proximity to them, but also with the council’s interest in keeping in Chapter 13, which deals with the case of Mohamed Haneef.
the beach free of cigarette butts, which create an ugly sight for Haneef, an Indian-born Australian resident, was detained without
tourists and a hazard for marine life when they are washed into charge for 12 days in connection with a bombing that he had
the ocean. It could be argued that individuals’ responsibility nothing to do with.
Figure 6.4 A no-smoking sign on Manly Beach, Sydney

Media Clip
Saggy pants crackdown pays off
Sydney Morning Herald, 30 September 2012
A city in the United States has collected almost $US 4000

($A 4080) in fines since it banned saggy pants less than nine
months ago.
The ordinance introduced in Albany, Georgia, bans pants
or skirts that sit more than three inches (7.62 centimetres)
below the top of the hips, thus exposing skin or underwear.
According to city attorney Nathan Davis, the Municipal
Court recently advised that ‘’187 citations have been issued
and fines collected of $US 3916.49’’, since the ordinance went
into effect on November 23.
First-time offenders pay a fine of $US 20. Subsequent
violations can result in fines of up to $US 200.
Violators cannot be imprisoned, and the ordinance also
Figure 6.5 Young men were selected randomly from birth records to fight allows 40 hours of community service to be completed in
in the Vietnam War. lieu of a fine.
Several politicians in the United States are worried that
State interference with personal liberties saggy pants and other sloppy dressing sins committed by
America’s youth could be related, no matter how indirectly,
In all Western democratic countries, individuals can govern to delinquency, poor learning and crime.
themselves in terms of the food they eat, the clothes they wear,
the jobs they do and how many children they have. Laws based
on religious beliefs would violate constitutional prohibitions
in Australia, the United States and many other countries, and
moral justifications of laws dealing with such individual matters
would not last long in a multicultural society with diverse beliefs.
Nonetheless, there are examples where governments have tried to
exert statutory authority within these areas.
In Louisiana and Virginia, in the US, in 2004 and 2005, the
state governments attempted to outlaw the wearing of trousers
that reveal underpants – a fashion among teenagers at the time,
inspired by hiphop artists who have displayed it at concerts and
on album covers. The proposed legislation was based on the view
that such fashions were indecent and offensive to the rest of the
community and on the criminal offence of indecent exposure. In
the leadup to the US presidential elections of 2008, Barack Obama
weighed into the debate.
More recently, authorities in the US have been issuing fines of $85
to pedestrians who walk and send text messages at the same time.
In Forth Worth, New Jersey, there have been 23 minor accidents
between cars and pedestrians. More seriously, three people have
Figure 6.6 Should governments have the right to enforce codes
been killed as a result of not paying attention to traffic because they of dress?
were using their phones while walking.

PART II
Review 6.2 It’s a free world?
1 Discuss the rights of a local council to ban:
Freedom of expression
££ smoking on a beach
££ the use of mobile phones while walking in public
As discussed above, the Australian Constitution does not contain
a bill of rights. It does expressly protect a few rights of individuals.

££ topless sunbathing.
2 Read the Media Clip on page 132. Outline the reasons These are:
why any government is likely to be unsuccessful in ££ s 80: the right to a trial by jury
outlawing the display of underpants. Are there any ££ s 116: freedom of religion
countries that enforce the wearing of certain clothing? ££ s 117: the right not to be discriminated against on the basis of
Do they have a right? You should try to write at least one one’s state of residence
point or argument for both sides of these scenarios. ££ s 51(xxxi): the right to compensation if one’s property is
3 Discuss whether a police officer in New South Wales compulsorily acquired for any purpose in respect of which the
could arrest you for indecency or offensive conduct Commonwealth government has the power to make laws.
under the Summary Offences Act 1988 (NSW). (This Act It was only in the early 1990s that the High Court began to interpret
outlaws offensive, indecent and anti-social behaviour.) the Constitution in such a way as to find rights for individuals
Figure 6.7 Tasmanian logging and woodchipping company Gunns brought civil action against individuals and environmental groups for a number
of alleged acts of protest against its activities in logging natural growth forests.

that were implied rights rather than expressly (explicitly) stated. against its activities. The lawsuits alleged conspiracy to injure Gunns
In a series of cases, the court found that laws limiting political and unlawful interference with its business. Many commentators
advertising, prohibiting criticism of government authorities, and argued that the lawsuits were intended to intimidate the protesters
restricting the provision of information about migration breached and tie them up in an expensive, time-consuming process –
an implied constitutional right to political communication. This effectively silencing them.
right cannot be taken away by a statute. The issue of freedom of expression arose in 2008 when the
However, this implied right only protects individuals from limits Catholic Church and the NSW government hosted World Youth
on a particular type of communication (political), and the only Day in Sydney. While celebrations and events ran for a week in
limits from which they are protected are limits imposed by the July, special powers were granted to police through the World
government. A person cannot rely on the implied right if another Youth Day Act 2006 (NSW) and World Youth Day Regulation 2008.
individual, an organisation or corporation attempts to prevent his The Act prohibited conduct that ‘annoyed or inconvenienced’ the
or her exercise of free speech. For example, in 2004 the Tasmanian participants, and police could issue fines of up to $5500 for the
logging and woodchipping company Gunns brought civil sale or distribution of a range of items, including stickers, T-shirts
action in the Victorian Supreme Court against 20 individuals and and condoms. A group called the NoToPope Coalition, protesting
environmental groups, for a number of alleged acts of protest the pronouncements of Pope Benedict XVI on sex and condoms
Figure 6.8 World Youth Day, Sydney, 2008

PART II
by handing out such items, challenged the regulation in the Full Freedom of expression and defamation
Federal Court as an intrusion on their freedom of expression.
Another factor complicating the exercise of freedom of expression
The court struck down the part of one clause of the regulation
is the risk of defamation. To what extent can you criticise your
relating to ‘annoying conduct’, but retained the prohibitions on
teacher, friend or boss, and possibly hurt his or her reputation?
‘inconveniencing’, obstructing, or putting people’s safety at risk.
What legal rights and responsibilities do you have as the speaker or
They held that it was not parliament’s intention that regulations

writer? And how well does the law work to protect reputations on
would be made preventing the exercise of free speech.
the one hand and free speech on the other?
Some critics of this decision (Evans v State of NSW [2008]
You are legally protected from being sued if:
FCAFC 130) have questioned the jurisdiction of the Federal Court,
££ what you say is true, or
arguing that only the High Court has the power to interpret the
££ it is your honest opinion, not a statement of fact, on a matter of
Constitution. The judgement could also be questioned on the
public interest, and the facts on which the opinion is based are
basis of its application of the implied right, given the very narrow
clearly stated, or
scope that the right was found to have in the High Court cases of
££ you have a legal, social or moral duty to communicate
the 1990s.
something to a person and the person has a corresponding
Also in 2008, a British atheists’ group paid to place large
duty to hear or read it.
advertisements on London buses, with messages such as ‘Sleep
Even if you were taken to court and successfully used one of the
in on Sundays’ and ‘There’s probably no God. Now stop worrying
three defences listed above, it may cost you a significant sum
and enjoy your life.’ When the Atheist Foundation of Australia
in legal fees. Consider the case of Jodie Power and Mercedes Corby,
attempted to place similar advertisements, they were unsuccessful.
below.
Australia’s largest outdoor advertising company, APN Outdoor,
rejected the proposal for ads on Australian public transport. The defamation the act of making statements or suggestions that harm
president of the Atheist Foundation, David Nicholls, commented someone’s reputation in the community
that the experience highlighted Australia’s need for legislation

prohibiting such a refusal, and that the laws of western Europe, the
US and Britain are far better than those of Australia with respect
to freedom of speech. On the other hand, it could be argued that
private companies are under no obligation to do business or not do
business with anyone they choose, and that for the government to
impede that choice is inappropriate.
implied rights civil and political rights that can be inferred from the
Constitution, rather than being expressly stated
Review 6.3
1 Explain the difference between an ‘express right’
and an ‘implied right’.
2 What rights are expressly guaranteed by the
Constitution?
3 Do Australians have a right to free speech? Justify
your answer.
4 Examine the case of Milorad Trkujla on page 136. Figure 6.9 Defending free speech can be very expensive if you are taken
to court for defamation.

Media Clip
Google hit with $200,000 damages bill over Mokbel shots
Dan Oakes
Sydney Morning Herald, 12 November 2012
A Melbourne man who won a defamation case against search Mr Trkulja, an elder at a Serbian Orthodox Church in
engine giant Google has been awarded $200,000 in damages. Springvale, also won $225,000 in damages from Yahoo earlier
Milorad Trkulja, also known as Michael, sued the this year over the same matter.
multinational over images of him alongside a well-known Google’s lawyers argued the search engine was not the
underworld figure that appeared in its search results. publisher of the material and was only indexing the link to the
A six-person Supreme Court jury found last month that website and the images in its results.
Mr Trkulja had been defamed by the images, which he first The company used the ‘ innocent dissemination’ defence,
contacted Google about removing in 2009. arguing it was providing links to the content without knowing
The images were posted after Mr Trkulja was shot in the back that the material was defamatory.
by an unknown gunman while eating with his elderly mother at However, the jury found Google’s defence of the images
a St Albans restaurant in June 2004. broke down because it did not take any steps to remove the
When Mr Trkulja’s name was typed into Google’s image images from its searches once Mr Trkulja’s lawyers contacted the
search, photos had appeared of him alongside gangland figure company. The jury found the search engine was not liable for
Tony Mokbel. the search results themselves, as Mr Trkulja had incorrectly filled
Google search results also linked to a page on a now defunct out a form for reporting offensive material by not including the
website, Melbourne Crime, which had published photos URL of the content to which he objected.
labelled with his name. The website that hosted the image has since been taken
Mr Trkulja said he had never initially intended to sue Google down and the images or the article are no longer indexed by
but had been galvanised into action after his request for the Google’s search engine.
content to be removed from its searches in 2009 was not granted. A Google spokesman said in response to the ruling: ‘Google’s
Supreme Court Justice David Beach this morning said in search results are a reflection of the content and information
awarding the damages that the case was about ‘vindication’ and that is available on the web. The sites in Google’s search results
‘nailing the lie’. are controlled by those sites’ webmasters, not by Google.’
Review 6.4
Read the media clip and answer the following questions:
1 Describe Mr Trkulja’s objection to the photos of him linked by Google search.
2 Outline how Mr Trkulja felt he was defamed and why he proceeded with the defamation case.
3 Evaluate the current laws on defamation. What responsibilities do you have when you talk about someone else?
6.4 International has passed domestic legislation to implement the treaty as part of
protection of rights its own laws. In Australia, treaties must be implemented through
domestic legislation in order to become binding.
Declarations are different from treaties in that they simply
As discussed in Chapter 2, international law can be made through the state the parties’ intentions; they express the international
formation of treaties between two or more nations. Treaties become community’s aspirations with respect to an area of human rights.
binding on the citizens of an individual nation either automatically They are generally developed through the United Nations (UN)
upon ratification, if the treaty is self-executing, or once the nation or other international organisations, such as subsidiary bodies

PART II
Legal Info
Extract of Universal Declaration of Human Rights
The full text of the Declaration can be viewed by following the link at www.cambridge.edu.au/prelegal3weblinks.

Article 3. Everyone has the right to life, liberty and security Article 11.
of person. (1) Everyone charged with a penal offence has the right to be
Article 4. No one shall be held in slavery or servitude; slavery presumed innocent until proved guilty according to law in a
and the slave trade shall be prohibited in all their forms. public trial at which he has had all the guarantees necessary
Article 5. No one shall be subjected to torture or to cruel, for his defence.
inhuman or degrading treatment or punishment. (2) No one shall be held guilty of any penal offence on account
Article 9. No one shall be subjected to arbitrary arrest, of any act or omission which did not constitute a penal offence,
detention or exile. under national or international law, at the time when it was
committed. Nor shall a heavier penalty be imposed than the one
Article 10. Everyone is entitled in full equality to a fair and
that was applicable at the time the penal offence was committed.
public hearing by an independent and impartial tribunal, in the
determination of his rights and obligations and of any criminal Article 15.
charge against him. (1) Everyone has the right to a nationality.
(2) No one shall be arbitrarily deprived of his nationality nor
denied the right to change his nationality.
of the UN or the World Trade Organization, and while they are not a key right of peoples. It means the right of a group to determine
legally binding, they are morally binding and influential in setting their own political status (how they want to be recognised), and
standards for the protection of rights. to pursue their own economic, social and cultural development.
The Universal Declaration of Human Rights is an important Self-determination is enshrined in the UN’s Charter, as well as in
declaration of the rights to which all humans are entitled. The the International Covenant on Civil and Political Rights, and the
following extract summarises what the UN is trying to achieve International Covenant on Economic, Social and Cultural Rights.
internationally. Article 15 of the Universal Declaration of Human Rights (see above)
expresses this right in terms of all individuals’ right to a nationality.
self-executing (of a treaty) automatically becoming binding on a state
The UN Charter, Chapter 1, Article 1, part 2 includes self
party to the treaty as soon as the treaty has been ratified
determination as one of the purposes or goals of the UN:
To develop friendly relations among nations based on respect for
the principle of equal rights and self-determination of peoples, and
Limitations of international law to take other appropriate measures to strengthen universal peace.
in protecting rights Self-determination is a constant theme in international politics,

for example the Basque independence movement in Spain and
Parties to international law are nationstates, not individuals, and that of the Tamil Tigers in Sri Lanka. In some cases, the United
international law requires the full participation and cooperation Nations has intervened. In other cases, sometimes because of
of nation-states in order to function effectively. Some states may individual member states’ reluctance to become involved in
occasionally or frequently choose to ignore declarations, treaties and high-risk conflicts where their own interests are at stake, there
UN resolutions, just as some citizens choose to ignore the laws of their has been no UN action.
state. The consequences for nationstates, however, are seldom as
immediate or certain as they are for individuals who ignore the law. self-determination the right to determine one’s own acts without external
influence; the freedom of the people of a given territory to determine their
Rights are something thought to be possessed not only by own political status or independence from their current state
individuals, but also by peoples or nations. Self-determination is

One way in which self-determination is demonstrated in
Australian Indigenous communities is through the use of customary
law rather than the English common law. Circle sentencing is an
example of tribal law in practice.
political autonomy self-determination, independence
Circle sentencing
Circle sentencing courts have been established in several locations
Figure 6.10 People at a rally showing their concerns about the Indonesian
occupation of East Timor. in NSW, the ACT and WA. Their introduction is based on Canadian
experience with Indigenous communities and has the goal of
One place where the UN has intervened, with some limited
preventing crime, supporting victims and giving Indigenous people
success, has been in East Timor (now TimorLeste). Indonesia, the
greater involvement in the criminal justice system. Sentences
former ruling power of East Timor, opposed the independence
are more likely to be meaningful for the offender if imposed by
movement for many years, as East Timor contained considerable
authorities within his or her own culture.
resource wealth and lay geographically within the Indonesian
Circle sentencing works in the following way. When an accused
archipelago. In 1999, the UN intervened and was assisted by
person in a criminal trial has pleaded guilty or been found guilty,
Australian troops to keep the peace between pro- and anti-
and is a member of an Indigenous community, the magistrate
independence supporters while a referendum was held. Although
travels to the accused’s community for the purpose of sentencing.
a large majority of East Timorese voted for independence
The magistrate and other persons sit in a circle, discuss the matter
from Indonesia, violence and internal conflict continued, with
and arrive at an appropriate sentence. The group will include
pro-Indonesian militias launching attacks from within and
the offender, the victim and their families, as well as respected
outside East Timor, and an assassination attempt on President
members of the local Indigenous community.
José Ramos-Horta in 2008.
The rights of Indigenous peoples Review 6.5

The question of whether peoples who want independence 1 What are the purposes of the Universal Declaration of
from a colonial power have a right to such independence may Human Rights?
be addressed from a general viewpoint but also considered in 2 How are those rights enforced? Suggest some possible
the context of the particular historical facts of a place. The UN ways they could be more effectively enforced.
declared a decade for World Indigenous Rights from 1995 to 2004.

The UN hoped to promote the rights, languages and cultures
of all Indigenous peoples and to draft a Charter of Indigenous
Research 6.2
Human Rights.
As we saw in Chapters 2 and 5, Australian Indigenous people Follow the link at www.cambridge.edu.au/
have faced serious challenges to their political autonomy since prelegal3weblinks and read the article by Brendan Thomas,
European settlement. Their laws were radically different from ‘Circle sentencing: involving Aboriginal communities in the
British laws and were not considered to constitute a system of law sentencing process’ (2000).
at all. The ‘doctrine of reception’ mandated that uninhabited land 1 What are the aims of circle sentencing?
colonised by Britain would be subject to English law – despite the 2 What are the benefits?
vastly different languages, cultures, beliefs and traditions of the 3 What are the drawbacks?
people who actually inhabited the land.

PART II
Chapter summary

➔➔ Rights and responsibilities are contained in both statute and ➔➔ The Australian Constitution contains a few express protections
common law. for individual rights, and the High Court has recently defined
➔➔ Moral rights are not actually enforceable by law and therefore an implied right to freedom of political communication.
cannot be upheld in a court of law. ➔➔ International efforts to articulate and protect rights are
➔➔ Australia is the only Western democracy that does not have a contained in numerous conventions, treaties and declarations.
bill of rights. There are often difficulties in enforcement, as some states do
➔➔ The rights and responsibilities of individuals and the state not recognise these agreements or have not incorporated
have varied over time and extend from government interest these rights into their domestic legislation.
in personal dress to conscription in wartime to anti-terrorism ➔➔ The right to self-determination is an internationally recognised
measures that go much further in limiting people’s rights. right of peoples.
Multiple-choice questions Chapter summary tasks

1 How are legal rights protected? 1 Outline the arguments for and against a bill of rights in
a by statute law Australia.
b by common law 2 List two examples of how rights are protected by statute and
c by both statute and common law common law in Australia.
d by ethics and religious customs
3 Describe the difference between moral and legal rights, using
2 Which of these statements about moral rights is true? examples.
a They have no legal basis.
4 Give an example of a conflict between the rights of individuals
b They can be enforced.
and their responsibilities to the state, and discuss how it might
c They are the same as legal rights.
best be resolved.
d None of the above.
5 Discuss the right of Indigenous people in Australia to self-
3 Which of these statements is true?
determination.
a Every state in the world has a bill of rights.
6 Explain the concept of circle sentencing. Why might it be
b A bill of rights can only be drafted by the United Nations.
effective?
c A bill of rights is a document setting out the rights of
individual citizens. 7 Explain the reasons for constructing declarations of rights. List
d A bill of rights is part of Australia’s Constitution. some examples of such declarations.
4 What sort of right is the right to euthanasia? 8 What other rights are not expressly contained in the Australian
a a common law right Constitution, but enjoyed by Australians as a result of statutory
b a legal right or common law? Discuss.
c a moral right 9 How does defamation pose a threat to individuals’ free

d none of the above expression? What defences are available to someone who has
5 How is the right to freedom of speech protected? critical things to say about a political figure?
a by statute 10 How are internationally recognised rights protected in

b by common law Australia? Discuss.
c by both common and statute law
d it is not protected by either statute or common law

Chapter 7
Resolving disputes
Chapter objectives
➔ investigate the roles of various law enforcement agencies ➔ compare and contrast individuals’ disputes with other
➔ discuss various methods of dispute resolution between individuals and with the state
individuals ➔ identify the difference between formal and informal
➔ investigate formal and informal methods of dispute methods of challenging state power as the state attempts to
resolution between individuals and the state enforce rights
➔ assess the effectiveness of legal and non-legal instruments ➔ identify and apply appropriate legal terms and concepts.
in resolving disputes between individuals and the state
alternative dispute resolution arbitration freedom of information (FOI) negotiation
apprehended violence Australian Federal Police law enforcement agencies state police
order (AVO)
conciliation mediation

PART II
Chapter 7: Resolving disputes
Relevant law
Crimes Act 1914 (Cth) Privacy Act 1988 (Cth)
Criminal Code, contained in the Criminal Code Act 1995 (Cth) Australian Human Rights Commission Act 1986 (Cth)
Crimes Act 1900 (NSW) Anti-Discrimination Act 1977 (NSW)
Family Law Act 1975 (Cth) Government Information (Public Access) Act 2009 (NSW)
Income Tax Assessment Act 1936 (Cth)
Significant cases
Toonen v Australia, Communication No. 488/1992, UN Doc Croome v Tasmania [1997] HCA 5
CCPR/C/50/D/488/1992 (1994)
Odd law
Wills can often be a source of family conflict. In one famous example, the US industrialist Wellington Burt denied two whole generations
of his family a share of the proceeds of his estate, estimated to be worth between $40 million and $100 million. Provoked by family feuds
that had arisen during his lifetime, Burt’s will stated that the bulk of his estate was not to be settled until 21 years after the last of his
descendants then living (including grandchildren) had died. Burt’s last grandchild passed away in 1989 and, in 2010, the $100 million
estate was shared out between 12 descendants – great-grandchildren, great-great grandchildren and great-great-great grandchildren.

7.1 Introduction apprehend and disable suspects. These weapons deliver a strong
shock that disrupts the central nervous system. In 1995, a mentally
unstable man, Roni Levi, threatened a number of people on
This chapter will examine the nature of disputes between
Bondi beach with a knife. Police shot him dead after he ignored
individuals and how they can be resolved in a variety of ways. It
repeated warnings to drop his weapon. Advocates of CEDs argue
will also look at individuals’ disputes with the state over issues
that Mr Levi might still be alive today if police carried CEDs rather
such as wrongful arrest or access to information, and methods of
than firearms.
resolution. It will investigate the role of various law enforcement
There was a renewed call for CEDs to be carried by police in
agencies in upholding statutes at state and federal levels, as well as
December 2008. This followed an incident in which Tyler Cassidy,
some of the legal restrictions placed on these agencies.
a 15-year-old Victorian youth, was shot dead after brandishing a
7.2 Law enforcement

knife and making threats towards police. However, while healthy
adults are unlikely to suffer lasting damage from a CED, abnormal
agencies heartbeat may be brought on in persons with existing heart disease
or other risk factors such as mental illness, drug use or alcohol use, or
The police high stress. A 2008 Amnesty International report, ‘Less than Lethal?’,
documented the deaths of 334 people in the United States after
State police CEDs were used on them. In more than 40 of the cases, coroners
Police do not make the laws; they only enforce them. They try found that the shocks had led to or contributed to the death.
to see that law and order in a community are maintained by Another problem with CEDs is that they are open to abuse by
preventing unlawful acts, investigating crimes and arresting police officers and there appear to be few guidelines or restrictions
offenders. on their use, leaving suspects at the mercy of some overzealous
The police have rules that they must obey when they perform officers. Amnesty International’s study found that 90 per cent of
these duties. To ensure that evidence is collected correctly and thus those who died after having a CED used on them were unarmed
is able to be used by the prosecution in a court case, the police are and did not pose a threat to the public. Information on the NSW
covered by a code of practice. This code covers: Ombudsman’s special report to parliament on the use of CEDs in
➥ police powers to stop, search and detain people

NSW is found on page 155.
➥ police powers to enter and search premises and seize property

In March 2012, a Brazilian student, Roberto Laudisio Curti, was
➥ police powers to arrest, detain and question suspects

tasered by police for allegedly stealing biscuits from a convenience
➥ the way in which suspects and others are to be treated by police.

store in Sydney. He was chased by six police officers, who used
Each state and territory in Australia has its own police force. The capsicum spray before using a taser gun to apprehend Mr Curti.
New South Wales Police Force is primarily concerned with enforcing He died as a result. Coroner Mary Jerram stated that the actions of
criminal law, particularly those offences contained in the Crimes police were reckless and excessive.
Act 1900 (NSW). Some of the most serious crimes are clearly those
law enforcement agencies those bodies that have the role of enforcing
against the person, such as homicide, manslaughter and sexual the law; they are created by Acts of Parliament and include the police and
assault. More recently, new laws have been passed to combat some government departments
organised gangs and terrorist activities.

Other aspects of state policing include assisting with mediation
apprehended violence orders court orders to protect a person
in family and neighbourhood disputes, particularly those
who fears violence or harassment from a particular person. In NSW,
involving domestic violence. The application and enforcement ‘apprehended personal violence orders’ prohibit violence between
of apprehended violence orders restricting the movements of members of the public; ‘apprehended domestic violence orders’ prohibit
violence in the context of a family
some individuals in relation to others is another part of the job of
the state police.
A current issue for state policing is the use of taser or stun
state police law enforcement agencies with statewide jurisdiction
guns, also called Controlled Electronic Devices (CEDs), to subdue,

PART II
Figure 7.1 NSW State police officers
removes or attempts to remove a child from the Commonwealth

Federal police
of Australia may be sentenced up to three years’ imprisonment.
The Australian Federal Police (AFP) are responsible for enforcing Chapter 13 details the AFP’s investigations into Mohamed
federal law and criminal law where crimes cross state boundaries. Haneef’s alleged role in a terrorist attack in Glasgow, Scotland.
The key role of the Australian Federal Police is to prevent and detect It is not the most glowing of reports, as the AFP spent $8 million
crimes against Commonwealth law within Australia, and in certain investigating Dr Haneef, only for him to be found to have been
circumstances, by Australians overseas. Crime legislation enforced wrongfully arrested.
by the AFP includes the Crimes Act 1914 (Cth) and the Criminal
Code (Cth). Offences include drug importation and distribution, Australian Federal Police the federal police agency of the
Commonwealth of Australia, set up to enforce the federal laws and to
and crimes relating to Commonwealth entities (e.g. bribery of
protect the interests of Australia both domestically and internationally
Commonwealth public officials). The powers of the AFP are set out
in the Australian Federal Police Act 1979 (Cth).
Significantly, the nature of the AFP and what is required of it
have changed since 11 September 2001. The AFP has reacted to a
rapidly changing environment, particularly in relation to terrorism
and terrorist organisations. There is now a greater focus on
international operations.
The new challenges the AFP faces include terrorism, human
trafficking and sexual slavery, cybercrime and family matters. The
AFP’s role in the family law process is to act upon specific orders
of the Family Court. Generally the AFP will enforce a court order
where there is an actual fear that a child may be removed from
Australia. Sections 65Y and 65Z of the Family Law Act 1975 (Cth)
provide that a child who is subject to family law proceedings must Figure 7.2 The Australian Federal Police enforce federal and criminal law
not be removed from the Commonwealth of Australia. A party who across state and territory boundaries.
C hap ter 7: R esol ving disp utes 145

Additional law enforcement ➥ Family law – enforcing court orders and preventing parents
from illegally removing their children from Australia
agencies in Australia ➥ Law enforcement.
Protecting the Australian community through the interception
The Australian Customs Service was renamed in late 2008 to
of illegal drugs and firearms is a high priority and sophisticated
recognise the importance of its role in maintaining the security
techniques are used to target aircraft, vessels, cargo, postal
and integrity of Australia’s borders. It was originally known
items and travellers considered a risk. The techniques include
as the Department of Trade and Customs and was the first
intelligence analysis as well as the use of detector dogs and
government department established in 1901. Approximately
computer technology.
20 million passengers each year move through air and sea
In August 2008, the AFP seized 4.4 tonnes of MDMA, also
ports. Customs works closely with the AFP, as well as with the
known as ‘ecstasy’. X-rays and inspection of a suspicious shipping
Australian Quarantine and Inspection Service, the Department of
container that had arrived in Melbourne in June revealed 3000
Immigration and Citizenship and the Department of Defence, to
tins of tomatoes, which actually contained ecstasy tablets, not
detect and discourage unlawful movement of goods and people
tomatoes. AFP commissioner Mick Keelty commented that the
across the border.
successful operation was a result of coordination between Customs,
The Australian Customs and Border Protection Service (ACBPS)
local police and the AFP. Sixteen people were arrested and illegal
employs more than 5500 people in Australia and overseas, has a
drugs worth $440 million were removed from circulation.
fleet of sea patrol vessels, and uses two aerial surveillance planes
for surveillance of borders. The key areas of concern for ACBPS are:
➥ Immigration – ensuring that passengers are moving legally Australian Crime Commission
across borders The Australian Crime Commission (ACC) is a Commonwealth
➥ Quarantine – monitoring and confiscating goods harmful to statutory body working nationally with other federal, state and
animal and human life territory agencies to counter serious and organised crime. In NSW,
the Australian Crime Commission (New South Wales) Act 2003
(NSW) was passed to enable the full operation of the ACC in NSW.
Similar legislation was passed in the other states and territories,
effectively bringing the Australian Crime Commission Act 2002 (Cth)
into state or territory law. All arms of intelligence gathering and
law enforcement were thereby brought together to unify the fight
against serious, organised criminal activity.
The ACC has both intelligence and investigative functions and
capabilities. To better enable Australia to meet the threats posed
by nationally significant crime, the ACC performs a number of
important functions, including:
➥ collecting and analysing criminal intelligence data
➥ providing advice to the ACC Board on National Criminal
Intelligence Priorities (NCIPs)
➥ providing and maintaining effective and efficient criminal
intelligence systems, including the Australian Criminal
Intelligence Database
➥ investigating federally relevant criminal activity and forming
taskforces: for example, Strike Force Tuno II, a homicide
squad established to investigate a string of possibly related
Figure 7.3 Illegal drugs being intercepted by Australian Customs and murders, attempted murders and suspected murders over
Border Protection Service. a 15-year period.

PART II
Figure 7.4 ‘Technology-enabled crime’ encompasses both crimes committed directly against computers and computer systems and traditional crimes
committed with the use of technology.
activity, especially with the increasing use of social networking

Australian High Tech Crime Centre
sites such as MySpace and Facebook. Identities are usually stolen
The AHTCC is hosted by the AFP and attempts to provide a through ‘phishing’, whereby email is used to lure unsuspecting
national approach to technology crime. Its brief is to combat computer users to a fake website where they provide their bank
serious and complex crimes involving computer technology, such account details.
as online fraud, mule recruitment, and offensive and prohibited
internet content. ‘Technology-enabled crime’ encompasses
mule recruitment the attempt to procure a person (the ‘mule’) to receive
both crimes committed directly against computers and and deliver illegal funds to criminals abroad or at home without the
computer systems and traditional crimes committed with the knowledge of the ‘mule’; this is usually done through a fake company and
may involve getting an unsuspecting employee to sign a contract and
use of technology. The first category, detailed in Part 10.7 of the
transfer funds on behalf of organised criminals
Criminal Code (Cth), includes:
➥ computer intrusions (gaining unauthorised access to data in
a computer or computer system)
➥ unauthorised modification of data, including destruction
Australian Security Intelligence Organisation
of data The Australian Security Intelligence Organisation (ASIO) is
➥ denial-of-service attacks (the deliberate impairment of service) Australia’s national security service, established under the
➥ the creation and distribution of malicious software Australian Security Intelligence Organisation Act 1979 (Cth). It was
(e.g. viruses, worms, trojans). initially established in 1949 as Australia’s security service, to
Each state and territory in Australia has its own legislation, similar guard against activities such as espionage (spying), sabotage,
to the Commonwealth legislation, covering computer-related politically motivated violence and attacks on our nation’s
offences. defence systems. ASIO’s main role is to gather information that
Another task of the AHTCC is to police and remove inappropriate will help the federal government and other law enforcement
and illegal internet content, such as child pornography and agencies, such as the AFP, to prevent and thwart attacks on
racially based ‘hate’ sites. Identity fraud is also a growing criminal Australia. ASIO’s role is expanding; it employs more than 1500

people and plans to grow to over 1800. ASIO’s information Wheatley, manager of the singer John Farnham, was jailed for
is used by 75 government departments, police and senior 3 years for defrauding the Commonwealth of $318 000. Wheatley
decision-makers. was using a so-called tax minimisation scheme, sending income
Chapter 13 outlines the role of ASIO in the arrest and detention from the John Farnham tour to another country without declaring
of terror suspect Mohamed Haneef, in which ASIO correctly advised it to the ATO.
the AFP that Dr Haneef was not a suspect in the 2007 Glasgow Other laws administered by the ATO include those governing
Airport bombing and that there was virtually no evidence linking fringe benefits tax (FBT), the Goods and Services Tax (GST), and
Dr Haneef to this terrorist attack. superannuation.
Government departments
Some Commonwealth and state government departments have Review 7.1
the authority to enforce specific laws. The Australian Tax Office 1 What is a law enforcement agency? Give an example of
(ATO) has the power to enforce certain laws for the protection and a government body that has enforcement powers and
benefit of society. For example, under the Income Tax Assessment briefly summarise its specific aims.
Act 1936 (Cth), the ATO can investigate and prosecute individuals or 2 Explain the role of the police in the legal system.
companies in relation to tax offences. Comment on the importance of jurisdiction in law
The main issues relating to income tax involve either the enforcement.
avoidance of tax or the underpayment of tax. In 2007, Glenn
Media Clip
Chainsaw and samurai sword used in neighbours’ clash over loud music
Nick Ralston
Sydney Morning Herald, 2 May 2012
A neighbourhood dispute over loud music and erratic driving Jorgensen household complained about Ms Halls playing
has escalated into a bloody brawl in which a chainsaw partially loud music.
severed a man’s arm. The Thorntons claim that someone from the Jorgensen
Doctors are attempting to reattach the arm of Mark household then drove in a dangerous and threatening manner
Jorgensen, 29, after the altercation in in Fenton Close, Minto, towards them.
last night. Police were called and the two families were told to return to
Another man, Troy Thornton, 26, lost a finger in the dispute. their homes.
His sister, Nicole Thornton, claimed he was attacked with a But tensions escalated again just before 9.20pm, resulting in
samurai sword. the chainsaw being produced.
Mr Thornton, a father of two, lives in Queensland but was Ms Thornton claimed members of the Jorgensen household
in Sydney to attend the funeral of his sister’s partner, Peter tried to invade their family’s home.
Reinhardt, who drowned when his boat overturned on the ‘Basically we ended up all in a brawl,’ she said. ‘The guys from
Nepean River in March. next door. By then there was 20 of them with bats, swords and
As Ms Thornton kept a waterside vigil with her newborn poles.
baby, the couple’s Londonderry home was robbed. Thieves took ‘It was me, my mum and my sister taking on guys, so my
jewellery, cash and a gun. brother has gone and got the chainsaw.’
The Thorntons’ mother, Wendy Halls, said it had been a Ms Thornton said her brother was attacked with the sword
traumatic few months for the family. before he got involved in a wrestle with the chainsaw. She
The problems began just after 5.30pm yesterday when the denied he went after anyone with it.

PART II
7.3 Disputes between The mediator does not provide advice on the matters or impose
a decision on the parties. The mediator may have not particular
individuals expertise in the subject area, but will be an expert in the process
of mediation. Through his or her negotiation and listening skills,
Disputes between individuals are highly variable in terms of their
the mediator is able to assist the parties in examining the issues,
nature, complexity and seriousness. One of the more common types
and the parties will come up with their own solutions to settle

of disputes between individuals is that of ‘neighbourhood’ disputes.
the dispute.
In conciliation, the third party also helps the parties to identify
Alternative dispute resolution the issues, consider alternative options to solve the dispute, and
Going to court can be expensive in terms of both money and time. reach an agreement. In contrast to a mediator, the conciliator may
There has been pressure to provide alternatives to court processes advise the parties, although he or she does not make a decision for
for solving legal disputes. It has been estimated that the average them. A conciliator may be a legal practitioner or professionally
civil case costs $30 000–$40 000, which puts many average wage qualified in the subject matter of the dispute. He or she will be
earners in a precarious position should they lose. Logically, any responsible for managing the process, explaining the rules and
claim against another party for less than this amount would seem acting as an umpire. In conciliation, the parties may also have their
useless, yet the financial cost of loss or damage below this amount own legal advisers.
may still be significant to the person who suffers it.

Alternative dispute resolution (ADR) uses a variety of Arbitration
methods to resolve disputes between parties without involving
Arbitration is a formal dispute resolution process in which two or
court processes. ADR allows the participants not only to save time
more parties refer their dispute to an independent third person (the
and money, but also to have more control over proceedings.
arbitrator) for determination. It is useful when the subject matter of
ADR may be as simple as two parties talking through their
the dispute requires an expert and/or when a court-like procedure
dispute, or as complex as court-ordered mediation or arbitration.
is desired, but with a greater degree of confidentiality. It is used
Mediation involves a neutral third party who attempts to help the
when a contract specifies arbitration for resolution of any disputes
parties come to an agreement. In arbitration, the neutral third
arising, in industrial relations matters, and in tenant and landlord
party will make a decision that is binding on the parties involved
disputes. It has become the preferred procedure in Australia for
in the dispute. These are discussed below.
disputes involving commercial contracts.
Negotiation
alternative dispute resolution conciliation a form of alternative
Negotiation means discussion between two or more parties with dispute resolution processes, dispute resolution in which the
such as mediation, arbitration and disputing parties use the services
the aim of reaching a mutually beneficial outcome. It involves
conciliation, that do not involve of a conciliator, who takes an
consideration of the other party’s views, and often some degree of courts active role, advising the parties,
compromise. Many parents teach their children negotiating skills and suggesting alternatives and
encouraging the parties to reach
you’d probably be surprised at how often you negotiate with friends, agreement. The conciliator does
teachers and parents. In a legal sense, negotiation is frequently the negotiation any dialogue not make the decision for them
intended to resolve disputes and/
first stage of resolving a dispute between parties. Negotiation only
or produce an agreement on
involves the parties involved and therefore is usually low in cost. further courses of action
arbitration a form of alternative
dispute resolution in which the
Mediation and conciliation disputing parties present their
mediation a form of alternative cases before an arbitrator, who
Mediation and conciliation are similar processes and are usually dispute resolution designed to makes a decision that is binding
confidential. Both processes involve an independent and neutral help two (or more) parties, in the on the parties
presence of a neutral third party,
third party who helps the parties to negotiate and reach a decision
to reach an agreement
about their dispute that they both find acceptable.

The NSW teachers’ dispute with the Department of Education that the policy was designed to reduce education funding.
and Training in 2008–09 provides an example of how disputes can The dispute continues.
be resolved with a combination of arbitration and negotiation.
During 2008, NSW teachers and their union, the Teachers’ Community Justice Centres and Conflict
Federation, failed in their attempt to negotiate with their
employer, the Department of Education and Training, over staffing
Resolution Service
and salaries. A key point in their disagreement was that the Community Justice Centres (CJCs) aim to resolve disputes through
government had decided to drop an incentive scheme that gave mediation. There are six centres throughout NSW, providing
teachers who undertook work in remote or disadvantaged areas informal and impartial dispute resolution services to all sections of
a place at the top of the list for transfer to more desirable schools the community and government agencies. CJCs are funded by the
later in their careers. NSW government and provide their services free of charge.
The Teachers Federation’ decided to take the case to the Matters dealt with by CJCs include family disputes and youth
Industrial Relations Commission (IRC), the statutory body with the conflict, workplace grievances, neighbourhood arguments and
power to conciliate and arbitrate to resolve industrial disputes. community disputes.
However, a date for the IRC to review the dispute was not available CJCs are designed to resolve disputes between members of
until March 2009. The teachers decided this was too long to wait the same community. As these people usually have an ongoing
and undertook strike action in November. Finally, the dispute was relationship, it is important that a dispute over something like
resolved in December 2008 through negotiation and the threat a fence is resolved as quickly and economically as possible with
of more strike action in 2009. Although there were several areas no long-lasting acrimony. A dispute over an issue such as who is
of compromise, the government withdrew the provision that responsible for the repair of a fence can be resolved at a CJC by
schools would no longer be obliged to accept service transfers; the the parties talking through their dispute with a neutral mediator.
incentive transfer scheme was maintained; and the teachers again It will be more satisfactorily resolved here than in a formal and
had a legally enforceable collective agreement and greater job confrontational courtroom.
security, rather than individual contracts of limited duration. In the ACT, the Conflict Resolution Service (CRS) has existed
At the time of writing, the Teachers Federation’ was again in since 1988 as a non-profit organisation to help solve disputes
dispute with the NSW Department of Education and Communities between neighbours. One of the main methods used to solve
over a policy entitled ‘Local Schools, Local Decisions’. The policy disputes is mediation. According to the CRS website, 83 per
aimed to devolve power to school principals to control staffing cent of mediated neighbourhood disputes are solved by
levels and the purchasing of resources. The Federation claimed mutual agreement.
Figure 7.5 Northern Beaches TAFE teachers protest about imposing work conditions proposed by the state government, 6 November 2008.

PART II
Review 7.2 Review 7.3
1 Distinguish between the processes of mediation, 1 Define ADR. Outline some of the forms it may take.
conciliation and arbitration. Where does negotiation Which one do you think would have the most desirable
fit in? results? Justify your answer.

2 Why might someone prefer alternative dispute 2 If you are having problems with your neighbours, why
resolution to taking the other party to court? should going to court be the last step taken?
Give reasons. 3 What options are there for settling a dispute with your
neighbour? Discuss, with reference to the types of
disputes that might arise.
The Land and Environment Court

The Land and Environment Court of NSW (LEC) is a specialist court
with a wide jurisdiction. It has the same status in the court hierarchy
as the Supreme Court of NSW, and is responsible for interpreting
and enforcing environmental law in NSW. Proceedings that can
come before the LEC include:
➥ administrative or merits review: the court rehears a case that
has been decided by a body such as a local council
➥ civil proceedings arising from a breach or potential breach
of the law
➥ criminal proceedings for environmental offences.
The LEC’s jurisdiction is granted by more than 60 NSW Acts.
Figure 7.6 The court is able to make judgements on issues involving the
It does not have the power to hear matters outside that removal or pruning of trees and who should pay.
statutory jurisdiction. It deals with environmental, development,
building and planning disputes, and certain types of native
title claims. Alternative dispute resolution is integrated within 7.4 Disputes with the state
its procedures.
Among the statutes granting the court jurisdiction is the Trees There are a number of methods by which state power or
(Disputes Between Neighbours) Act 2006 (NSW). This Act allows government decisions and policies can be challenged. Some of
the court to make judgements on issues involving the removal these are informal or ‘non-legal’ methods, and others involve
or pruning of trees and who should pay. formal legal channels.
Research 7.1 Non-legal methods of challenging

1 Follow the link at www.cambridge.edu.au/
state power
prelegal3weblinks to the Lawlink website and choose
the case Bowan v Glanville [2008] NSWLEC 10. The media
2 Summarise the dispute between neighbours in relation By writing a letter, sending an email or calling television and radio
to trees. Evaluate the court’s judgement. Why can’t the stations, citizens are able to inform the media of a decision they
neighbours negotiate a settlement without resorting to think is unfair, unjust or harsh. There have been many instances
the Land and Environment Court? in which major networks have taken on a story and caused the
government to overturn a decision.

For example, it could be argued that children were released Members of Parliament
from migrant detention centres in August 2005 as a result of media
Members of state and federal Parliaments (MPs) are elected by
pressure. If individuals and pressure groups constantly appear
voters to represent a particular area or electorate. For example,
on television and radio, the government may choose to listen
former Prime Minister John Howard held the federal seat of
and reverse a policy decision. In this case, the Commonwealth
Bennelong, in Sydney, before being defeated by Maxine McKew
Department of Immigration and Multicultural Affairs, as it was then
in the 2007 federal election.
called, explained that it had ‘softened’ its stance on the detention
All citizens within an electorate are able to contact the
of immigrants.
office of their representative and speak to their MP about an
The internet is a source of information and a means of
issue that may trouble them. The MP may take this issue back
communication. By means of common interest websites, people
to parliament in Canberra and discuss it with other MPs or the
can get together physically, online or both to discuss situations
party that is in power. Some voters would argue that Mr Howard
where public officers have allegedly acted unjustly. One such site,
lost his seat because he was not attending to the needs of his
entitled ‘Whistleblowers Australia’, states:
electorate. Ms McKew’s campaign focused on issues within the
The goal of Whistleblowers Australia (WBA) is to help promote a
electorate. Ms McKew lost this seat in 2010 to former tennis player
society in which it is possible to speak out without reprisal about
corruption, dangers to the public and other vital social issues, and to John Alexander.
help those who speak out in this way to help themselves. Some electorates or regions are significantly more affected by
certain issues than others. If the Pacific Highway between Sydney
and Brisbane were to be widened, residents of towns along this
highway could be directly affected. An MP in an affected area might
be able to convince his or her party to reconsider an executive or
Cabinet decision. However, this issue would clearly be irrelevant to
residents of Western Australia.
Members of the public can also contact their federal or state
MP, or local councillor, if they feel they have been wronged by a
government department or agency in that jurisdiction. MPs and
councillors can help in resolving the dispute so that it does not
need to go to court or a tribunal. MPs and councillors rely on being
re-elected to their position, so it is in their interest to help their
Figure 7.7 The forbidding exterior of the Woomera detention centre
constituents resolve disputes quickly.
Trade unions
Groups of people in various industries unite to form trade unions
to protect their rights and conditions of employment. Unions can
help to negotiate a workplace agreement containing important
provisions about workplace safety, wages and conditions. They
will also take action when an employer proposes to change the
conditions of work in a way that is detrimental to employees.
In Australia, the legislative approach to industrial relations was
historically based on conciliation and arbitration. Going on strike is
a last resort.
In the early 1970s, one union, the Builders Labourers
Federation, banned workers from worksites so that various sites
of heritage value in Sydney were not demolished for the purpose
Figure 7.8 Maxine McKew, who won former Prime Minister Howard’s seat
of Bennelong in 2007 of potential property development. These ‘green bans’ were

PART II
highly successful: a small park in Hunters Hill and terrace houses GetUp! Action for Australia is an example of a non-government
in Victoria Street, Potts Point, still exist today. The historic area organisation, which according to its website:
of Sydney known as The Rocks was also saved and protected … is an independent, grass-roots community advocacy organisation
by the actions of unions placing bans on work at proposed which aims to build a more progressive Australia by giving everyday
demolition sites. Australians the opportunity to get involved and hold politicians
accountable on important issues.
More recently the Australian Council of Trade Unions (ACTU)

ran an extensive and expensive campaign entitled ‘Your Rights at The organisation links its 600 000 members through email,
Work’. The campaign included billboards, posters, television and Facebook and Twitter, and was actively involved in the fight
radio commercials to challenge the federal workplace relations against Woolworths and its ownership of poker machines in
laws, known at the time as WorkChoices. The ACTU created a Australia. GetUp! believes that there should be some sort of
website with information and updates on the campaign, and regulation regarding poker machines, to stop people from losing
asked supporters and union members to join. ‘Your Rights at Work’ large amounts of money.
continued to exist after the 2007 federal election. Although the new
government enacted new legislation, some people believe that Legal methods of challenging power
unions need to maintain pressure on any government to ensure
that workers’ rights are not eroded. Challenges to decisions of government or government bodies can
also be made on a formal or legal basis.
Review 7.4
Internal reviews
1 How would you go about challenging the state if they
In New South Wales, government departments can review their
refused to award you the Higher School Certificate?
What laws and means would you utilise to investigate own decisions, procedures or behaviour. Such reviews are very cost-
why you did not receive your HSC? effective, but can be ineffective in terms of practical outcomes if the
people conducting the review have been involved with a decision
2 Which of the informal methods of challenging state
power would be the most effective and why? that is not appropriate or incorrect.
A recent example is that of the Combined Pensioners and
3 Evaluate the effectiveness of informal methods of
Superannuants Association of NSW (CPSA). The organisation
challenging state power.
promotes the interests of pensioners and low-income retirees.
When a booking fee was introduced for country train fares in
2006, the CPSA applied to RailCorp, the state-owned passenger
rail system, to see documents related to community consultation.
The Minister for Transport claimed that there had been extensive
consultation and that it indicated ‘overwhelming community
support’ for the booking fee. Previously, pensioners were entitled
to four free rail trips per year.
The CPSA’s application was made under the Freedom of
Figure 7.9 ACTU union campaign, Your Rights at Work: a multimillion- Information Act 1989 (NSW), which has since been repealed and
dollar campaign to fight WorkChoices
replaced by the Government Information (Public Access) Act 2009.
This legislation also gives the right to request changes to personal
Interest groups, including non-government records that are inaccurate, incomplete or out of date, and to
seek review of a decision not to grant access or to amend records.
organisations Other states and territories, and the Commonwealth, have similar
People can also form groups where they share political values freedom of information (FOI) legislation.
or aims, or have a specific goal of challenging a state decision. The application was denied, so the CPSA requested an internal
Individuals can join these groups and engage in activity of various review. The review found that there had been no community
types, or donate money to fund their activities. consultation about the booking fee.

External reviews freedom of information (FOI) the principle that people should be able
Reviews of government activities can also be undertaken externally. to have access to information relating to the administration of government
decision-making and information held by the government. FOI legislation
There are a number of avenues by which an external review can be governs the processes of obtaining this information, at state and federal level.
pursued. These include the following.
Administrative and other tribunals conveyancers people who deal professionally with the legal and practical
matters involved in the transfer of titles to property when real estate is
Administrative and other quasi-judicial tribunals are bodies
sold and purchased
that review specific administrative decisions of government
agencies. They offer a time-efficient, low-cost means of resolving
Privacy bodies
legal disputes and problems. They are different from courts, as
they have narrow areas of jurisdiction, are less formal, usually All individuals have a right to privacy. Most people would agree that
do not allow legal representation and are not bound by rules it is not a pleasant feeling to know that somebody who is not close
of evidence and so can take into account a variety of factors in to you has access to information about you.
finding a solution. In a broad sense, laws have been enacted at both state and
Some examples of tribunals in NSW are the NSW Consumer, federal level to prevent information about you from being released
Trader and Tenancy Tribunal, which deals with disputes between to companies, government departments or other citizens. The
consumers and businesses, and the NSW Administrative Privacy Act 1988 (Cth) gives you the right to make a complaint if you
Decisions Tribunal, which hears cases involving allegations think personal information about you, including health information,
of discrimination and professional misconduct, and reviews has been mishandled by a Commonwealth government agency or
administrative decisions of NSW government bodies. For a private sector organisation. There are legal responsibilities that
example, the Consumer, Trader and Tenancy Tribunal’s role is government departments must carry out in the collection and
to resolve disputes between tenants, landlords, traders and storage of personal information of individuals.
consumers in a timely and effective manner. For example, if you have been convicted of a criminal offence,
The Administrative Decisions Tribunal has six divisions and an there are limits on how long information about this can be used.
appeal panel. The divisions will conduct reviews of decisions by The Criminal Records Act 1991 (NSW) provides that after a person has
government agencies in the following categories: been crime-free for a certain amount of time, most minor offences are
➥ the community services sector, including child care and treated as ‘spent’ convictions. Once a conviction is spent, the person
disability services does not have to disclose it to prospective employers, insurance
➥ decisions of the Chief Commissioner of State Revenue, many agents, banks, and so on. Unauthorised release of information about
having to do with state taxation a person’s spent conviction is subject to penalties.
➥ professional conduct of legal practitioners and property At the state level in NSW, the chief Acts protecting privacy are
conveyancers the Privacy and Personal Information Protection Act 1998 (NSW) and
➥ equal opportunity claims referred to the Tribunal by the Anti- the Health Records and Information Privacy Act 2002 (NSW). Persons
Discrimination Board who feel that their personal information has been misused may
➥ retail tenancy and ‘unconscionable conduct’ claims against either request an internal review or complain to Privacy NSW,
retail landlords established under the state privacy legislation to help people to
➥ decisions of government agencies under a wide variety of laws protect their privacy.
(the General Division).
The courts
The most frequent applications for review heard by the General
Division of the Administrative Decisions Tribunal have to do Law courts at both state and federal level have the power to review
with access to Government information applications, privacy, administrative decisions and actions. As discussed in Chapter 2,
and licensing matters relating to firearms, the security industry, the term ‘judicial review’ is used to describe a process whereby a
passenger transport and the building industry. court with the relevant jurisdiction can review a decision made by a

PART II
government department only on the basis of whether the decision and some private sector agencies providing public services can
was lawfully made. Judicial review does not pronounce on the use the ombudsman’s office to deal with complaints against them
merits of the decision: that is, whether or not it was a good decision or their officers: for example, RailCorp, Junee Correctional Centre,
or the right decision in the circumstances. government and non-government schools, and agencies providing
What is legal can vary depending on the circumstances of each child care and residential care. The ombudsman does not have the
case, but as general rule, decisions are subject to the following power to impose any punishment or fine on a government agency

requirements: or department. He or she can, however, make recommendations to
➥ Natural justice: You will study this concept in greater detail in the the department in question or to the NSW Parliament.
HSC course. In this context, natural justice refers to the person Some of the main areas of complaint received by the office
affected having the opportunity to be heard, and the decision involve:
being unbiased. ➥ delivery of community services
➥ The decision must be authorised by the Act under which it was ➥ child abuse and neglect
made and must be based only on relevant considerations. ➥ the operation of the police force.
➥ The decision-maker must have jurisdiction to make the decision. Any citizen can make a complaint to the ombudsman, but it must be
➥ The decision must be justified by appropriate evidence. in writing. All complaints are taken seriously, but are only followed
➥ The decision-maker must have observed all procedures through if a prima facie case exists – that is, if the complaint would
required by law in making the decision, and there must have raise concern ‘on first view’. Such concern could only exist if there
been no errors of law. were witnesses to an event or if a citizen had very strong and
A person desiring judicial review must have standing: that is, he or irrefutable evidence.
she must be directly affected by the issue. There would be huge If a complaint is made in writing, the ombudsman’s office will
costs associated with judicial reviews if they could be ordered by investigate and assess whether the complaint is justified. If it
any interested persons, whether they were directly affected or not. sees that the complaint is justified, the ombudsman will make
If judicial review finds a decision flawed in one or more ways, recommendations for rectifying the problem.
the remedies that courts can issue will depend on the nature of the
error that was made by the decision-maker. They include:
➥ prohibition – an order that stops a decision from being made
or implemented
➥ certiorari – an order that reverses a decision that has already
been made
➥ mandamus – an order that compels the decision-maker to
perform certain types of public duties that have not been
performed
➥ injunction – an order that prohibits the decision-maker from
implementing an invalid decision, or compels the performance
of a duty in decisions where mandamus is not available.
The Office of the Ombudsman

Figure 7.10 One of the main areas of complaint received by the Office
In 1809, the Swedish Parliament created a new official known as of the Ombudsman involves child abuse and neglect.
the Justitieombudsmannen. This loosely translates as ‘citizens’
defender’ or ‘representative of the people’. The Office of the
Ombudsman was created by statute in 1974 in New South Wales,
Statutory bodies
and federally in 1977. Statutory bodies are authorities created by statute for a public
The office acts as a formal external control, with legal power purpose. The following statutory bodies can investigate complaints
to investigate complaints made by citizens. Public sector agencies and disputes of certain types.

Anti-Discrimination Board of NSW ICAC has the authority to ask the police service to assist in its
investigations, and is therefore able to search for and seize evidence
The Anti-Discrimination Board of NSW (ADB) is part of the NSW
where it sees fit. It does not have the power to prosecute offenders
Attorney-General’s Department and was established under the
(that is the job of the Director of Public Prosecutions). At the end of
Anti-Discrimination Act 1977 (NSW). Its role is to promote principles
an investigation it can report to parliament that corrupt behaviour
and policies of equal opportunity throughout NSW, to ensure
has occurred, who committed it, and what further action should be
that people are protected from discrimination on the basis of
taken. If a citizen feels that he or she has been wrongfully accused
characteristics such as disability, age, race and sex. It advises the
of corruption, he or she may seek judicial review in the New South
government and also provides an inquiry service to inform people
Wales Supreme Court.
about their rights and responsibilities under anti-discrimination
In 2005, ICAC investigated a claim that a private tutoring firm
laws. The Board will investigate and conciliate complaints when
was assisting English Extension II students with work that was
action is necessary. It has the power to issue fines for behaviour
ultimately submitted as part of their HSC assessment. Although
that violates anti-discrimination laws.
ICAC did not ‘prove’ that students had been assisted, it raised
Commissions of inquiry serious concerns about assessment tasks in the HSC that are of
a ‘take-home’ nature.
Commissions of inquiry are set up to investigate serious matters
at both state and federal level. They are not judicial proceedings,
but fact-finding exercises. Royal Commissions are commissions Review 7.5
of inquiry with particularly strong powers with respect to calling
1 Explain the process of internal review of a government
witnesses. In the past, such inquiries have investigated issues
agency’s decision. What are the potential problems with
such as Aboriginal deaths in custody (Commonwealth, 1987) and internal review?
corruption in the NSW Police Service (NSW, 1995).
2 Explain the function of freedom of information
Commissions of inquiry do not have the power to prosecute
legislation.
offenders. At the end of an inquiry, the commission will
3 Describe the role administrative and other tribunals play
produce a report containing recommendations, which may
in settling legal disputes. Give an example.
include recommending criminal prosecution of individuals.
4 Outline the ways in which people’s privacy is protected
The government may decide to act on the commission’s
in NSW.
recommendations: a number of police officers were sent to jail
5 What is judicial review? How does it differ from review
as a result of the NSW Royal Commission). However, it has been
of the merits of a decision?
argued that the inquiry into Aboriginal deaths in custody has failed
6 Outline the role of an ombudsman. How is an
to produce significant improvements in the conditions leading to
ombudsman limited in solving disputes?
these deaths.
7 Explain the importance of natural justice as the state
Independent Commission Against Corruption (ICAC) attempts to enforce laws.
While the Ombudsman has the power to investigate complaints

made by the public, the Independent Commission Against
Corruption (ICAC) has greater power. The Independent Commission Research 7.2
Against Corruption Act 1988 (NSW) created the ICAC as an
1 Follow the link at www.cambridge.edu.au/
independent statutory body to investigate alleged corruption in prelegal3weblinks to the Anti-Discrimination
government. ICAC attempts to protect the interests of the public, Board website.
prevent breaches of public trust, and influence the behaviour of
2 Choose ‘resources and links’ from the left-hand menu
public officials. and follow the link to ‘Legal cases from Equal Time’.
Some examples of corrupt behaviour include bribery, fraud and
3 Discuss two cases and evaluate the effectiveness of the
theft. ICAC has the power to investigate the activities of private
ADB in bringing about just outcomes. You should include
citizens if such behaviour affects the proper administration of a case that has been dismissed by the ADB.
public offices.

PART II
Media Clip
NSW Ombudsman calls for Taser overhaul
Vincent Morello
Sydney Morning Herald, 23 October 2012

NSW police need to overhaul their use of Tasers after numerous ‘We say quite clearly, these devices cannot and will not
incidents of brutality, misuse and two deaths involving the be used as a compliance device,’ Mr Scipione said at a media
weapons in the past two years, an ombudsman’s report says. conference on Tuesday.
NSW Ombudsman Bruce Barbour tabled his report – How He said the proper use of Tasers was ‘drilled’ into the minds of
are Taser weapons used by the NSW Police Force? – in state police officers, who lost their Taser accreditation if they used the
parliament on Tuesday. device inappropriately.
The report reviewed 556 incidents between June 2010 Police Minister Michael Gallacher said the recommendations
and November 2010 and found the devices were used would enhance the work of NSW police.
inappropriately on 80 occasions. The Police Association of NSW (PANSW) said assaults and
In 27 cases, police were not under serious threat and should injuries to officers had plummeted since the introduction of Tasers.
not have fired the weapon at all. ‘In most instances, an officer simply drawing their Taser is
Police tasered people who were handcuffed or fleeing, and enough to defuse a situation,’ PANSW president Scott Weber
in some cases victims were tasered repeatedly – actions that said in a statement.
Mr Barbour said should be outlawed. The ombudsman has asked the government to respond to
The report makes 46 recommendations about how police the report’s recommendations within three months.
should use a Taser and how they should improve Taser training NSW Coroner Mary Jerram will hand down her findings on
for general duties officers. Mr Curti on November 14.
‘(Taser) can present significant safety and medical risks, and The second Taser-related death canvassed in the report is that
there is a justifiable public concern about the potential for of Ba Thinh Le in October 2010.
unsafe and inappropriate use,’ Mr Barbour states in the report. Two police officers fired a Taser at Mr Le during an investigation
A recent coronial inquest into the death of Brazilian student into an alleged sexual assault at Sefton, in Sydney’s west.
Roberto Laudisio Curti, which was not considered in the As the stun gun probes hit him, he fell forward onto a road,
ombudsman’s report, heard the young Brazilian struggled with lost consciousness and could not be revived.
11 officers who fired their Tasers up to 14 times. The NSW State Coroner in November 2011 ruled that the
Some of those instances were drive-stuns, a practice cause of Mr Le’s death was undetermined.
Mr Barbour also condemned. An inquest into his death heard evidence that Mr Le was
Such usage involves applying the Taser directly to the skin, Hepatitis C positive, had drugs in his system and a high
as opposed to discharging the barbs from a distance. concentration of alcohol in his blood when he was tasered.
NSW Greens MP and justice spokesman David Shoebridge
said it was ‘remarkable’ the ombudsman’s report had failed
to consider the evidence given at the Curti inquest, which
wrapped up hearings on Friday.
‘One of the clear options for limiting Taser use by police is to
withdraw them from general duties officers and limit them to
specially trained squads,’ Mr Shoebridge said in a statement.
Mr Curti’s family issued a statement in response to the
ombudsman’s report.
‘The family said many of the recommendations related to
the way in which Taser was used on the night Roberto died,’
Mr Curti’s brother-in-law Michael Reynolds said.
‘The family feels that several of the ombudsman’s
recommendations are a step in the right direction.’
Police Commissioner Andrew Scipione said the report
highlighted areas where officers could ‘improve’ their use
of Tasers. Figure 7.11 The use of Taser guns by the police is a controversial issue.

➥ the Convention on the Elimination of All Forms of Racial
Political prisoners Forced recruitment
of children into Discrimination (CERD)
tortured
armies ➥ the Universal Declaration of Human Rights (UDHR).
The last declaration is the most widely known and longest
standing (1948) and aims to address some of the issues raised in the
following headlines.
Human rights bodies under the umbrella of the UN include
the Commission on Human Rights, now known as the Human
Rights Council, whose state members discuss and debate human
rights concerns. There are also committees that monitor each
of the conventions listed above, and that can rule on individual
Refugees face complaints relating only to a single convention. The UN Human
indefinite detention Human trafficking
on Manus Island big business
Rights Committee is one of these. It rules on individual complaints
Human Rights today-Amnesty International booklet.
pertaining only to the International Covenant on Civil and Political
Rights (ICCPR). State signatories to the First Optional Protocol to the
Figure 7.12 Headlines frequently refer to breaches of human rights.
ICCPR have agreed that their citizens can seek an opinion from the
Australian Human Rights Commission Committee regarding breaches of the ICCPR.

In 1991, a Tasmanian man, Nicholas Toonen, complained to
The Australian Human Rights Commission (AHRC) is a national
the Committee that certain sections of Tasmania’s Criminal Code
government body, formerly called the Human Rights and Equal
criminalised his sexual orientation. In the case, Toonen v Australia
Opportunity Commission. It was established by an Act of the
(1994), it was argued that the Tasmanian legislation breached
Federal Parliament, the Human Rights and Equal Opportunity
Articles 2, 17 and 26 of the International Covenant on Civil and
Commission Act 1986 (Cth); it is now called the Australian Human
Political Rights (ICCPR): namely, the right to privacy and the right
Rights Commission Act 1986 (Cth). The Federal Attorney-General is
to equal treatment before the law. The Human Rights Committee
the minister responsible for the Commission.
ruled that the Tasmanian law constituted a violation of individuals’
As detailed in Chapter 5, the Commission plays a central role in
privacy under Article 17 and that Tasmania should amend its
contributing to the maintenance and improvement of a tolerant,
criminal code.
equitable and democratic society. It provides information
The federal government responded by enacting the Human
through public education programs aimed at the community,
Rights (Sexual Conduct) Act 1994 (Cth) to override the offending
government and business sectors. It also holds public inquiries,
sections of the Criminal Code 1924 Act (Tas). Nonetheless, Tasmania
advises parliament, conducts research and investigates
was reluctant to change its laws. It took a High Court decision
discrimination complaints.
(Croome v Tasmania [1997] HCA 5), which held that Tasmania’s
law was inconsistent with the Commonwealth Act, to force an
The United Nations amendment to the Criminal Code.
International treaties and declarations containing key principles of

human rights include: Research 7.3
➥ the International Covenant on Civil and Political Rights (ICCPR)
1 Investigate the provisions of the human rights treaties
➥ the International Covenant on Economic, Social and Cultural
listed on this page.
Rights (ICESCR)
2 Briefly summarise the purpose of each of these treaties.
➥ the Convention on the Rights of the Child (CROC)
3 Compare and contrast the types of rights contained in the
➥ the Convention on the Elimination of All Forms of Discrimination
ICCPR and the types of rights contained in the ICESCR.
Against Women (CEDAW)

PART II
Chapter summary

➔ Law enforcement agencies at local, state and federal level have ➔ Disputes between individuals and the state can also be
the task of enforcing laws and rights within their jurisdiction. resolved using formal and informal methods. The state does
These include state and federal police, ASIO, Customs (ACBPS), not have unlimited or arbitrary power.
the Australian Crime Commission and the Australian High Tech ➔ The Australian Human Rights Commission and the Anti-
Crime Centre. Discrimination Board of NSW carry out vital roles in enforcing
➔ The nature of policing has changed dramatically since 2001 in legislation that protects these rights.
relation to terrorism, cybercrime and border protection. ➔ Cases such as Toonen v Australia and issues such as the use of
➔ Disputes between individuals can be resolved using various CEDs illustrate the ongoing need for law reform in relation to
legal (formal) and non-legal (informal) methods. human rights and their enforcement.
Multiple-choice questions Chapter summary tasks

1 State and federal police officers: 1 Outline the roles of the AHRC and the ADB of NSW. Explain why
a make and enforce laws individuals and the state require such bodies.
b enforce laws 2 Describe the role of at least three law enforcement agencies in
c investigate criminal laws in New South Wales NSW or Australia.
d none of the above
3 Explain how the role of one law enforcement agency has
2 The AFP’s role has changed since 2001.
a changed dramatically since 2001
4 Discuss the use of Taser guns by police forces to subdue and
b remained unchanged since 1901
detain criminal suspects. Find recent cases that support your
c been modified by NSW Police
views.
d been seconded by ASIO
5 Identify and describe a recent dispute between individuals that
3 When disputing parties present their cases to an independent
has been solved through mediation, arbitration or negotiation.
person who makes a decision that is legally binding, the
6 What is your opinion of the AHRC, the ADB of NSW or ICAC? Do
process is known as:
you think we need such bodies?
a negotiation
b mediation
c arbitration
d all of the above
4 Informal methods of challenging state power include:
a media, trade unions and external review
b trade unions, internal review, courts
c Members of Parliament, trade unions and media
d internal and external review and media
5 Statutory bodies include:
a the ADB, the AHRC and ICAC
b Amnesty International, the ADB and the ABC
c the ADB, the AFP and the media
d the ABC, the ADB and the ATO

Chapter 8
Contemporary issue: The individual and technology
Chapter objectives
In this chapter, students will: ➔ describe how the individual relates in cyberspace to other
➔ investigate the way in which the law has an impact on individuals, to institutions, organisations, corporations and
the relationship between individuals and technology in governments
cyberspace ➔ investigate the nature of the relationship between the
➔ identify the key features of the relationship between the individual, the legal system and cyberspace
individual and technology in cyberspace ➔ discuss the effectiveness of the legal system in addressing
issues that relate to the individual in cyberspace.
copyright digital dossier internet patents
cyberbullying disinhibition effect laissez-faire racial hatred
cyberspace extradition libertarians terrorism
cyberstalking Internet Service Providers online predators trademarks

(ISPs)

PART II
Chapter 8 Contemporary issue: The individual and technology
Relevant law
Communications Decency Act of 1996, 47 USC § 230 Cybercrime Act 2001 (Cth)
Copyright Act 1968 (Cth) Privacy Act 1988 (Cth)
Crimes Act 1914 (Cth) Racial Discrimination Act 1975 (Cth)
Crimes Act 1900 (NSW) Racial Hatred Act 1995 (Cth)
Crimes Amendment (Computer Offences) Act 2001 (NSW) Spam Act 2003 (Cth)
Criminal Code 1995 (Cth) Competition and Consumer Act 2010 (Cth)
Significant cases
Reno v American Civil Liberties Union, 521 US 844 (1997) United States of America v Ivanov, 175 F Supp 2d 367 (D Conn 2001)
Australian Broadcasting Corporation v Lenah Game Meats Department of Internal Affairs v Atkinson and Others
Pty Ltd [2001] HCA 63 (High Court of New Zealand, 19 December 2008)
Odd law
Companies have to be very careful about the representations they make about their products. In a United States District Court
in California, a man initiated legal action against Apple Inc., because they ‘conveyed the misleading and deceptive message that
the iPhone 4S’s Siri feature, a so-called voice-activated assistant, performs useful functions and otherwise works as advertised’.
The plaintiff ’s experience was that when he ‘asked Siri for directions to a certain place, or to locate a store, Siri either did not
understand what Plaintiff was asking, or, after a very long wait time, responded with the wrong answer’.

8.1 The scope of new The jurisdiction of cyberspace
technology Nearly three decades after the novelist William Gibson coined
the term ‘cyberspace’ in his 1982 story ‘Burning Chrome’, the
Governments face many challenges in trying to make regulations
internet has become so widely available that it has forever
and laws where technology is concerned. The main difficulty is
changed our lives. Today, people are spending more and more
that technology is often on the cutting edge of development and
of their time in cyberspace for entertainment, leisure, business,
therefore often gives rise to issues that have rarely or never been
communication, education, research and even political activism.
raised in political, legal and community discussions.
New developments in technology have long been the catalyst for
As Australians, we are exposed to technology every day –
great social, cultural and economic changes. However, the changes
from making EFTPOS transactions, shopping on the internet and
now being brought about by technological innovations relating to
emailing our friends, to being involved in discussions about the
the internet are affecting our lives with unprecedented speed and
ethics of stem cell research, genetically modified foods, and cloning
in unpredictable ways.
of animals or humans.
Cyberspace is the global online virtual world created by the
An important area of technology is information technology
interconnection of millions of computers on the internet. By the
– that is, the storage, sending and retrieval of information
second decade of the 21st century, cyberspace has emerged as a
through computer systems. ‘Information’ is a broad category
kind of parallel universe in which people live a part of their lives. We
encompassing data of all types. Information may be expressed in
now speak of our online and our offline lives. Like any other new area
mathematical form, as computer code, verbally, or in some other
of human activity, there is a need for law applicable to cyberspace.
type of language.
Currently, no government or court can claim cyberspace as its
One of the most important and interesting technological
exclusive jurisdiction. Its global nature poses particular challenges
developments, particularly in terms of the law, has been the creation
for the law.
of the internet. There are over 2.5 billion internet users in the world
In 1996, the US writer and political activist John Perry Barlow
and growth shows no sign of slowing. As a result, cybertechnology
published ‘A Declaration of the Independence of Cyberspace’.
and cyberspace are major areas of interest for citizens and law-
This short manifesto declared that government has no legitimacy
makers all over the world.
in cyberspace, and that those who ‘gather’ there have formed a
This chapter will focus on the individual in cyberspace and
democratic and egalitarian social contract that has no need of
explore some of the key issues and legal implications of new
external controls.
technology for the individual, as well as the evolution of law in
Despite the optimism of anarchists and libertarians, it
response to these issues and the challenges for law reform in
has become painfully apparent that cyberspace is no different
protecting individuals’ rights.
from any other area of human activity. There is the potential for
great good but also for great harm, and laws and regulations
are needed.
internet a global network of interconnected computer networks that

allows users to obtain and share information in a number of ways
cyberspace the ‘environment’ in which electronic communication occurs;

the culture of the internet
libertarians advocates of minimal government control or interference in

the lives of individuals
Figure 8.1 ATM transactions are now commonplace technology.

PART II
anonymously or using a pseudonym. Web-based email services
Refer to Chapter 8 on the Cambridge GO website and many online discussion forums allow you to create a user
for information relating to: name and hide your identity if you wish. While domain names
The history of the internet are actually identifiers for computers on the internet, and the
The birth of the World Wide Web IP number (physical address) of the computer being used can
usually be determined, there is software that can be used to

Visions and visionaries of the World Wide Web
Architecture of the internet encrypt internet activity or to hide identifying information
about where a website originated. This feature of cyberspace
Cyberterrorism.
has certain advantages for individuals’ privacy, but it also
provides opportunities for cybercriminals.
££ It facilitates creativity. The computers connected to the
internet do not just retrieve information as a television receives
programs from a network; they also permit information and
services to be created and supplied through the internet. They
can be used to create software programs that improve their
performance or enhance or change their role. This feature
makes the internet unlike any other electrical device or network
that has ever been developed.
££ It is global. The internet went from being a collection of
networks in the United States to being a global system.
Cyberspace lacks national boundaries. Like-minded people
can communicate with each other and join online communities
regardless of where they live in the world. However, the
negative side to the lack of national boundaries is that it is
Figure 8.2 John Perry Barlow, who wrote ‘A Declaration of the difficult for a nation-state to control what goes on within its
Independence of Cyberspace’ in 1996 territorial borders, if those activities are also taking place in
cyberspace.
Research 8.1
prelegal3weblinks to the Internet World Stats website
and list the top ten countries with the highest internet
penetration rate.
8.2 Legal issues

in cyberspace
The nature of cyberspace
There are at least three distinctive features of cyberspace that pose
unique challenges for legal regulation.
££ It facilitates anonymity. The internet has made it much
easier for persons to distribute information and messages Figure 8.3 At work in cyberspace
C hap ter 8 Contemp orar y issue: The individual and tec hnol o g y 163

Figure 8.4 The speed at which cyberspace grows means that the law struggles to keep pace.
Areas of legal concern relating other Commonwealth Acts. It created offences pertaining to
to cyberspace computers, data and the internet, now contained in the Criminal
Code (Cth). As these are federal offences, there must be a
‘Commonwealth connecting factor’: for example, the computers
Even in cases where jurisdiction is clear, there are difficulties with
are owned or operated by the federal government, the data is
enforcement of the law in cyberspace. Criminal and civil wrongs
held by the federal government, or the offender’s actions are
in cyber
space can sometimes be classified into the familiar
carried out via a ‘telecommunications network’ – which includes
categories, but they may also take on new characteristics. Some
the internet.
of the areas of law concerning cyberspace are as follows.
A hacker may also be charged under state law. For example,
in 2001, a former employee of the company that installed a
Cybercrimes computerised sewerage system for Maroochy Shire Council,
Queensland hacked into the council’s computers and caused
Hacking
one million litres of raw sewage to run into public parks and
Hacking is unauthorised access to data held in a computer or creeks in the Sunshine Coast area. He was convicted on various
computer system, changing the data, interfering with electronic charges stemming from his breach of s 408D of the Criminal Code
communication between computers, or impairing the security, 1899 (Qld), which prohibits unauthorised use of identification
reliability or function of stored electronic data. A person may information for the purpose of committing an indictable offence.
engage in hacking out of curiosity, for monetary gain, to alter data The legislation is not specifically about computer hacking.
for some other reason, or to maliciously spread a virus. Hacking He appealed to the Queensland Supreme Court, where
also has the potential to be used in an act of terrorism. convictions on two of the charges were set aside but the sentence
The Cybercrime Act 2001 (Cth) amended the Criminal of two years’ imprisonment was not changed (R v Boden [2002]
Code (Cth), as well as the Crimes Act 1914 (Cth) and several QCA 164).

PART II
Internet fraud
Review 8.1
Fraud is intentional misrepresentation or concealment of
1 List some of the positive aspects of the global nature information in order to deceive or mislead. On the internet, fraud
of cyberspace. can be carried out in a number of ways and can occur in conjunction
2 List some of the drawbacks, especially with respect to with hacking.

the enactment and enforcement of laws. A scam is an attempt to obtain money through deception. Many
scams, unique to the internet, have developed in recent years.
They can function through unsolicited email, websites promoting
pyramid selling (where people are offered the right to sell a product
Refer to Chapter 8 on the Cambridge GO website or service, as well as the right to sell the scheme itself in the same
for information relating to United States v Ivanov, way), and unsolicited advertisements that come up when a search
175 F Supp 2d 367 (D Conn 2001). is performed.
Perhaps the best-known email scams are the ones in which email
promises the recipient huge rewards for helping a government, a
bank, an organisation or a family in Nigeria (or some other country)
out of some legal or financial difficulty. This assistance invariably
involves transferring money electronically or supplying bank
account details.
Another type of scam is ‘phishing’, in which the recipient of email
that appears to be from a bank is asked to submit his or her account
details. The information is then used to steal the person’s money.
Fraud may also be perpetrated through the use of fake websites.
In Australian Competition and Consumer Commission v Chen [2002]
FCA 1248, the Australian Competition and Consumer Commission
(ACCC) sought declarations from the Federal Court of Australia
that a foreigner, Richard Chen, had breached key provisions of
the then Trade Practices Act 1974 (Cth) prohibiting conduct likely
to mislead or deceive consumers. Chen, an American, did not live
in Australia and all of his activity was conducted from the United
States. He operated three websites that appeared to be associated
with the Sydney Opera House, and purported to sell tickets to
performances there. The stated price for the tickets was twice the
price of genuine ones, and consumers who provided their credit
card details never received tickets. The Federal Court granted
the declarations, as well as an injunction requiring Chen to remove
the websites, take steps to prevent Australian residents from
accessing them, and stop operating misleading and deceptive
websites.
Legal Links
For further information on internet fraud see the AFP
website (the link can be found at www.cambridge.edu.au/
prelegal3weblinks).
Figure 8.5 Hackers are criminals.

dislike contains advertisements for pornography and other products
related to sex, illegal gambling schemes, pyramid selling, and
misleading or deceptive advertisements. Its method of distribution
means that inappropriate material can be sent to minors.
The Spam (Consequential Amendments) Act 2003 (Cth) amended the
Telecommunications Act 1997 (Cth) and the Australian Communications
Authority Act 1997 (Cth) to enable effective enforcement. The Spam
Act is enforced by the Australian Communications and Media
Authority (ACMA), a Commonwealth statutory authority responsible
for the regulation of radio and television broadcasting, telephone
communications, and the internet.
Research 8.2
1 Go to the Scamwatch and Best Scams websites
(refer to www.cambridge.edu.au/prelegal3weblinks for
links) and find definitions for the scams listed below:
– Online auction and shopping scams
– Domain name renewal scams
– Spam (junk mail) offers
– Free offers on the internet
Figure 8.6 People can be betrayed by spam. Senders often elicit money – Modem jacking
from gullible victims. – Spyware and key-loggers
– Ringtone scams
Spam – Up-front payment scams.
Spam is junk mail received electronically. Some spam is harmless but 2 Make a list of the other types of internet scams.
much of it is malicious and potentially damaging to the recipient.

Spam is also known as unsolicited bulk email. In other words, this is
email that the recipient has not asked for or granted permission to
have sent to him or her. It is bulk because it is sent to large numbers
of people, often through the use of mailing lists. It does not matter
what the content of the email is; if it is unsolicited it is spam.
Under the Spam Act 2003 (Cth), it is illegal to send, or cause to
be sent, unsolicited commercial electronic messages through
email, instant message services (IM), telephone text messages
(Short Message Service, or SMS), or multimedia message service
(MMS). It does not cover faxes, voice telephone calls or messages, or
unsolicited ads that pop up to be seen by an internet user.
The Act was passed as a result of public concerns about spam.
As discussed above, email can be used for the purpose of fraud. The
ways in which people’s email addresses and personal information
are collected and handled for the purpose of ‘spamming’ also raises
privacy issues. Although the Spam Act applies to any spam regardless
of content, a significant portion of the unwanted spam that people Figure 8.7 Despite legislation against spam, it still proliferates.

PART II
Intellectual property in cyberspace
Review 8.2
The term ‘intellectual property’ refers to creations of the mind that
1 Name three types of crime committed by means of
have commercial value. These include inventions, literary works,
the internet. Explain how each of these can cause
artistic works, music, software programs, databases, plant varieties,
harm to people.
trademarks and designs. Most of these things can be created or

2 What is fraud? How can it be committed by means of
published on the internet.
the internet? What are some other ways fraud can be
Intellectual property is the exception when it comes to
committed, besides on the internet?
international law and cyberspace. In many areas of law, international
3 What is spam? Is it merely an annoyance, or does it raise
treaties do not distinguish between offences committed in
serious legal issues? Explain, using examples.
cyberspace and otherwise; however, there are a number of
4 List legislation that has been passed specifically to deal treaties and international organisations that deal specifically with
with cybercrime. What other legislation has been used
intellectual property issues on the internet.
to prosecute crimes committed in cyberspace?
Intellectual property law protects the legal rights arising
from a person’s intellectual creations. It applies not to the ideas
themselves but to the expression of these ideas. So the idea
Research 8.3 must have developed into something tangible – for example a
software program or an essay – to qualify for protection. Three
Go to the ACMA website (refer to www.cambridge.edu.au/ types of intellectual property rights are copyright, trademarks
prelegal3weblinks for link) and:
and patents.
££ find out how to make complaints about spam
££ outline various ways in which spam is being fought copyright an exclusive right to publish, copy, publicly perform, broadcast,
in Australia. or make an adaptation of certain forms of expression, namely sounds,
words or visual images
Legal Links trademarks words, names, symbols, devices or any combination of these,
used to identify and distinguish the goods or services of one company
from those of another
For further discussion of spam and what is being done
internationally to tackle it, links to additional websites are
available at www.cambridge.edu.au/prelegal3weblinks.
patents rights granted for any device, substance, method or process
To see the current Australian spam legislation, follow the which is new, inventive or useful
link at www.cambridge.edu.au/prelegal3weblinks to the
ComLaw site and enter ‘Spam Act 2003’ into the Quick
Search field.
Research 8.4
Go to the website of the World Intellectual Property
Organization (WIPO) (refer to www.cambridge.edu.au/
Refer to Chapter 8 on the Cambridge GO website prelegal3weblinks for link).
for information relating to Department of Internal
1 Locate WIPO’s definition of intellectual property.
Affairs v Atkinson and Others (High Court of New
2 Make a list of the treaties regarding intellectual
Zealand, 19 December 2008).
property.

Copyright
Legal Links
Copyright is the type of protection given to work intended to
For further information, go to the WIPO site and read about convey information or enjoyment of literary form, such as books,
intellectual property treaties (refer to www.cambridge.edu. software, broadcasts, films and music. Material that has been
au/prelegal3weblinks for link).
produced in Australia is protected by the Copyright Act 1968 (Cth)
and also receives protection under the laws of other countries
that are signatories to the international treaties to which Australia
is a signatory. The international conventions that ensure that
any protection given to Australian creative works also applies
globally are:
££ Berne Convention for the Protection of Literary and Artistic
Works (1886)
££ Universal Copyright Convention (1952)
££ Rome Convention for the Protection of Performers, Producers
of Phonograms and Broadcasting Organisations (1961)
££ World Trade Organization Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS) (1994)
££ WIPO Copyright Treaty (1996)
££ WIPO Performances and Phonograms Treaty (1996)
New challenges for the law relating to copyright have arisen as a
result of digital technology – that is, information represented by
discrete signals. Computers are digital machines and cyberspace
is therefore a ‘digital environment’. Digital technology has made
it very easy to copy and share music and film, and the legal issues
relating to this are explored in Chapter 15.
Another major area of copyright violation involves computer
software that is copied and sold without authorisation, causing
losses of billions of dollars to the companies that originally created
the programs. Such unauthorised production is in breach of the
World Trade Organization agreements, negotiated and signed by
most of the world’s trading nations. If countries refuse to act against
intellectual property violations within their borders, other countries
whose companies are suffering loss as a result can ask the WTO to
take action.

Figure 8.9 Trademarks of major companies make them readily identifiable
Figure 8.8 WIPO Headquarters in Geneva, Switzerland (Twitter marks are a trademark of Twitter, Inc.).

PART II
Trademarks
Review 8.3
Trademarks are signs or symbols that give a person or corporation
the legal right to use, license or sell the product or service for which 1 What is a property right? (Refer to Chapter 3.) Explain
it is registered. A trademark distinguishes a person’s or company’s the specific nature of intellectual property rights, in
contrast to other kinds of property.
product from all others’ products. Some registered trademarks

have become famous images that will forever be associated with 2 What can be protected by each of the following? Explain
certain brands of goods. how each of these works.

– copyright
Patents – trademark
– patent
Patents are for the protection of intellectual property in inventions.
3 How are intellectual property rights affected by the
The aim of patent laws is to encourage people to continue to
increasing use of the internet? Discuss, with examples.
research or develop new products or technology. A patent gives
4 Outline some of the legal means of protecting
the owner the exclusive right to derive commercial benefit from
intellectual property in Australia and internationally.
the invention for the term of the patent, within Australia and its
territories. International agreements regarding patents, such as the
Patent Cooperation Treaty (1970), give our trading partners similar
rights and ensure that the patent rights of Australian inventors are 8.3 Privacy, safety and
upheld overseas.
Of these three types of rights – copyright, trademarks and patent
censorship
– copyright has the most relevance to cyberspace. Information
There are a number of ways in which individuals are vulnerable in
technology has greatly reduced the cost of reproduction of text,
cyberspace. These include:
images and multimedia products, and the internet has similarly
££ cyberbullying
reduced the cost of transportation and distribution. (Consider
££ cyberstalking
the difference between a truckload of books and the same
££ racial hatred
content published electronically.) The ‘culture’ of the internet has
££ exposure to violent, disturbing and/or illegal material including
been a further factor in problems relating to intellectual property:
child pornography
many resources are freely shared in cyberspace, with no or minimal
££ exposure to adult material inappropriate for children
commercial profit expected. While the ease of obtaining material
££ intrusions into privacy.
without paying for it clearly causes disadvantage to the people
In cyberspace, there are few barriers between individuals and
who produce that material, some have argued that with the rapid
potentially harmful content. In addition, people who have grown
development of cyberspace, we need to rethink the concept of
up with the internet and are comfortable using it and other forms
property and the laws that govern property of all types.
of digital technology may be less cautious than those who have
adapted to it and adopted it at a later point in their lives.
Refer to Chapter 8 on the Cambridge GO website for

cyberbullying harassment using cyberstalking repeated
information relating to:
digital media such as websites, harassment using email, text
££ cyberwarfare email, chat rooms, social messaging or other digital media
networking pages or instant with the intention of causing fear
££ cyberterrorism.
messaging or intimidation
Online, people tend to loosen up and reveal things that they

Legal Links would be less likely to divulge in their offline world. Psychologists
For further information on trademarks and patents, follow call this feeling of invincibility the ‘disinhibition effect’.
the links at www.cambridge.edu.au/prelegal3weblinks. Social networking sites such as Twitter and Facebook and
online communication media such as chat rooms require varying

degrees of public personal disclosure – that is, information of
a personal nature is shared in what is essentially a public forum.
The impression that friends are ‘chatting’ in a controlled, private
space is an illusion. Other people can access this information, either
immediately or at some later stage, as online information remains
indefinitely in cyberspace.
Another potential danger of revealing too much about oneself
is that false identities are easily created, and the person with
whom you are communicating may not be genuine. Parents may
be justifiably concerned about online predators, who assume an
identity in order to entice young people into harmful encounters
online or in the physical world.
For others, the disinhibition effect may contribute to behaviour
such as rude language, harsh personal criticism, or violent online
games. At the extreme end of the continuum, the disinhibited
behaviour may include threats, cyberbullying or cyberstalking.
Expression of racial hatred is illegal in Australia under the
Racial Discrimination Act 1975 (Cth). The Racial Hatred Act 1995
(Cth) amended this Act to extend its coverage, giving people a
mechanism to complain about racial hatred. In the offline world
racial hatred may occur through speech, gestures, images or
written publications. This law applies equally to cyberspace, at least
for people under the jurisdiction of Australian law. As with other
types of expression, it is relatively easy for anyone to encourage Figure 8.10 Facebook® is an online social networking site that requires
racial hatred in cyberspace. In late 2008, there were calls in Australia personal information.
to toughen laws on cyber-racism after a spate of occurrences on

social networking sites. See Criminal Code Act 1995 (Cth) Part 10.6
– Telecommunications Services 474.17 using a carriage service to
menace, harass or cause offence.
A person is guilty of an offence if:
a the person uses a carriage service; and
b the person does so in a way (whether by the method
of use or the content of a communication, or both) that
reasonable persons would regard as being, in all the
circumstances, menacing, harassing or offensive.
Figure 8.11 In late 2008, there were calls to toughen laws in Australia on
disinhibition effect the tendency to say and do things in cyberspace that
cyber-racism that was occurring, particularly on social networking sites.
the person would not ordinarily say or do in the face-to-face world
Research 8.5
online predators people with malicious intent, such as sex offenders,
paedophiles, who give false and misleading identities with the aim of Research the laws involving cyber-racism in Australia and
enticing their victims into harmful encounters online or in real life
evaluate their effectiveness.
Start with the Cyber-Racism section on the Australian
Human Rights Commission website (refer to www.
racial hatred abuse or denigration of a person because of his or her race,
or verbal abuse or denigration of a race generally
cambridge.edu.au/prelegal3weblinks for link).

PART II
Privacy concerns The Privacy Act 1988 (Cth) contains ‘Privacy Principles’ covering
federal government agencies and relating to the handling of
The information that we present about ourselves online, including citizens’ personal information such as social security, health
photographs, forms our ‘digital dossier’. This ‘digital dossier’ insurance and taxation. Amendments to the Act in 2000 extended
comprises all the information about a person, which is held in the privacy regime to parts of the private sector, relating to
how businesses should collect, store, use and disclose personal

multiple locations.
Governments and businesses have always collected information information. Some states and territories, including NSW, have
about individuals, but now the speed of data collection practices also enacted privacy legislation; others have privacy schemes for
has outpaced methods of protecting that data. government agencies based on the privacy principles contained in
There has been a trend towards the use of services and storage of the federal Act.
files, documents, email and other personal information online, in the There is currently no statutory tort for breach of privacy.
‘the cloud’, on sites that the user does not own or control; also, the However, in Australian Broadcasting Corporation v Lenah Game
user need not have knowledge of or expertise in their creation or Meats Pty Ltd [2001] HCA 63, the High Court held that there was
maintenance. Individuals have little control over how the most nothing standing in the way of developing one. Since then, there
powerful search engines use their information. Information, stories, have been several cases heard in state courts that point towards the
photos and anything else you may post on a website may be recognition of such a tort.
removed later, but they have already been recorded in an internet In 2008, the Australian Law Reform Commission (ALRC)
archive, as well as in a search engine ‘cache’ – a ‘snapshot’ that is published a report titled For Your Information: Australian Privacy
taken of the page as it originally appeared. Other people may also Law and Practice, in which it recommended extensive changes to
copy your words or photos and post them on their own websites or privacy laws and practices to take account of new technology, as
web pages. So your information acts like a ‘digital tattoo’: even when well as a way that individuals can bring a civil action for serious
it’s no longer wanted for display, it is not easily removed. breach of privacy. Although the federal Privacy Act is only 20 years
old, it was introduced before the advent of super computers,
the internet, mobile phones, digital cameras, e
commerce,
sophisticated surveillance devices and social networking websites
– all of which challenge our capacity to safeguard our sensitive
personal information. The Privacy Act has worked pretty well to
date, but it now needs a host of refinements to help us navigate
the Information Superhighway. These days, information privacy
touches almost every aspect of our daily lives, including our medical
records and health status, our finances and creditworthiness, the
personal details collected and stored on a multiplicity of public
and corporate databases, and even the ability to control the
display and distribution of our own images. In 2012, the federal
government passed the Cybercrime Legislation Amendment Act 2012
(Cth) to tighten up privacy rules by giving people more information
about the use of their personal details in cyberspace. However,
critics wonder whether this is enough and are concerned about
government moves to store the browsing history of everyone
in Australia.
digital dossier all the types of information about a person that he or she
has deliberately or unintentionally put onto the internet, held in multiple
Figure 8.12 Cloud computing is revolutionising cyberspace while locations
increasing security concerns.

Protecting children
One of the most significant concerns about cyberspace is the
need to protect children, not only from inappropriate content and
online predators, but from serious criminal offenders who victimise
children. Child pornography is a legal and moral problem that goes
beyond the legality of images or text on the internet or other media.
In the United States, laws to protect children from inappropriate
material must be drafted in such a way as not to violate the right to
freedom of expression contained in the First Amendment. Another
difficulty is that if a law is too broad in the scope of what should
be prohibited, it can prohibit too much – including content that is
unlikely to be accessed by children or to have anything to do with
the victimisation of children. This and other issues will be further
Figure 8.13 Sydney radio personality John Laws was a target of identify
examined later in the discussion of the proposed ‘clean feed’
thieves, who were able to raid his bank account.
legislation in Australia.
Review 8.4 Reno v American Civil Liberties Union,

1 How are cyberbullying, cyberstalking and cyber-racism 521 US 844 (1997)
different from their counterparts in the physical world?
In 1996, due to public pressure, the US Congress passed a law known
2 Should laws against these acts be drafted to relate as the Communications Decency Act of 1996 (CDA). Two provisions of
specifically to cyberspace, or are existing laws
the CDA prohibited the ‘knowing’ transmission on the internet of
adequate?
obscene or indecent sexual communications or images to people
3 List some non-legal ways that could be used to under 18 years of age.
protect against cyberbullying, cyber-racism and online
predators. Consider the following agents in your answer:
– parents
– teachers and schools
– older teenagers (e.g. siblings, friends or mentors
of younger children)
– software companies
– internet service providers.
4 How might someone’s ‘digital tattoo’ pose problems
for him or her in the future? List some hypothetical
scenarios, then outline ways that you can prevent this
from happening with respect to your online activities.
Legal Links
For further information on digital safety issues, see the
Australian government’s Cybersmart website (refer to
www.cambridge.edu.au/prelegal3weblinks for link).
Figure 8.14 Does digital security exist?

PART II
This was seen by many as a violation of the principle of freedom The Rudd Labor government that was elected in 2007
of expression. One of the groups that held this view was an continued to consider the ‘clean-feed’ proposal. The $70 million
advocacy organisation called the Electronic Frontier Foundation plan would block web pages listed in a ‘blacklist’ maintained by
(EFF), an international non-profit group based in the US and ACMA. It was argued that this would not only prevent internet
particularly concerned with preserving freedom of speech in the users from seeing unwanted and inappropriate material, but
context of the internet. John Perry Barlow, mentioned above, was would combat child pornography itself. Two potential types of

a founding member of the EFF and the CDA was the stimulus for his filter were canvassed. Either all pornographic material would
‘Declaration of the Independence of Cyberspace’. be blocked, or an ‘opt-in’ scheme would allow users to continue
Following a federal court’s ruling that the CDA violated the First receiving ‘adult material’.
Amendment, the US government appealed to the Supreme Court. The mandatory proposal was much more restrictive than
A broad coalition of individuals and groups had joined the American the voluntary ISP filter schemes operating in some European
Civil Liberties Union (ACLU) as plaintiffs in the original case, including countries, which block only child pornography. One version of
not only the EFF, but also organisations and trade unions of editors the scheme in Australia would include a wider range of material,
and publishers, high school journalism teachers, and Human Rights some inappropriate for children but not necessarily involving
Watch. The ‘Reno’ in the title of the case was Janet Reno, US Attorney pornographic or violent content. ‘Social themes’ upsetting to
General from 1993 to 2001. children could include divorce and euthanasia.
The Supreme Court, affirming the lower court’s decision, held It has been pointed out that criminals distributing child
that the indecency provisions of the CDA were an unconstitutional pornography seldom use sites that are accessible on the World
restriction of free speech. The court found that the terms ‘offensive’ Wide Web. Increasingly, they are using less public methods
and ‘indecent’ were vague, and the provisions of the CDA overly such as peer-to-peer networks, which allow single computers to
broad. It concluded that the CDA was not sufficiently narrowly communicate with each other; encrypted networks, or smaller
tailored to the goal of protecting minors from potentially harmful networks using codes that only the members know; or other
material. Moreover, there is no effective way to determine the age systems that prevent public access. Consequently, blocking
of an internet user. websites is not an effective means of stopping the spread of child
The court’s view was that online communication differs pornography.
significantly from broadcast media, in that a user will seldom Some ISPs dislike the proposal because it is too easily bypassed
encounter content ‘by accident’. The internet should therefore be by users, and because enforcement would be too onerous. Another
subject to less regulation. objection was the risk that the filter would block material that has
nothing to do with the type of content that the law aims to fight.
Legal Links Due to significant grassroots opposition to the ‘clean feed’ as well
as the Labor Government’s political problems, these proposals to
For full text of the decision in Reno v American Civil Liberties
filter the internet in Australia stalled.
Union, 521 US 844 (1997) refer to www.cambridge.edu.au/
prelegal3weblinks.
Internet Service Providers (ISPs) companies that offer customers access
to the internet
A clean feed?
World Wide Web a system of documents that are accessible on the
Similar concerns about offensive and obscene content have been internet and that are connected to each other through hyperlinks the user
can click on to be taken to another location. The World Wide Web is not
raised in Australia more recently. The idea of ‘clean feed’ legislation the same thing as the internet.
originated during the Howard federal government and involved the
establishment of a filtering scheme that would be imposed on all
Internet Service Providers (ISPs).

Figure 8.15 On 5 May 2008, a seminar about internet censorship was held at the Nobel Peace Center in Oslo, Norway. Debate continues around the world
about governments’ rights to introduce mandatory ISP filtering.
Interventionist approach to rights

Research 8.6
Follow the link to Barlow’s ‘A Declaration of the Other commentators argue that an appropriate role for
Independence of Cyberspace’, of 8 February 1996, governments is to ensure that the law deals with online
at www.cambridge.edu.au/prelegal3weblinks. phenomena such as race hatred and pornography, and to
1 What are the key points of the speech? ensure reasonable quality overall. These advocates do not trust
2 Discuss Barlow’s assertion that governments should the marketplace of ideas. They advocate a more active role for
keep out of cyberspace. governments in regulating quality on the internet. This approach
would involve:
££ enacting legislation and or international treaties
££ imposing obligations on ISPs to block certain content
8.4 Rights in cyberspace ££ strengthening enforcement agencies.
The Australian government took a more interventionist approach in
Laissez-faire approach to rights the debate about ‘clean feed’ regulation.
Other means of dealing with questionable material in
Some internet commentators advocate a laissez-faire approach to cyberspace have been suggested. Many of these methods
information, which means they do not think it should be regulated of improving the quality of information rely on the active
in any way. They argue that individuals are capable of determining involvement of online communities and of key actors and
the quality of internet content and that governments should not stakeholders, both private and public. These include not only
intervene in the ‘marketplace of ideas’. One of the organisations governments, law-makers, and law enforcement agencies, but
taking this line is the Electronic Frontier Foundation, which was also parents, teachers, software companies and other businesses.
founded in 1990 with the primary goals of defending free speech, Governments would need to take a leadership role, but would
privacy, and consumer rights. also need to give the other agents considerable freedom and

PART II
scope. Some of the ideas include the establishment of national
or international bodies for the accreditation of websites; greater
8.5 Current status and
use of reputation and industry ratings systems, as used by sources of law in cyberspace
YouTube, eBay and iTunes; greater use of brands and labels (‘trust
marks’); government funding of internet awareness and digital The sources of law in relation to cyberspace are as follows.
media literacy skill classes in schools; search engine filtering; and

encouragement of social norms, for example as Wikipedia has National
done with respect to the requirement of a ‘neutral point of view’
in all of its content. Statutes
In most cases, the law can only set minimum standards.
States have produced numerous laws to govern use of the
Making laws in relation to cyberspace is very difficult, as there is
internet within their borders. Many laws relating to cyberspace are
a dearth of international agreements. Most of the laws regarding
contained within more general statutes. For example, the Crimes
cyberspace are national laws that are tied to local values. Limits
Act 1900 (NSW) contains ss 308 to 308I, which set out computer
on national law enforcement remain despite the global nature of
offences, including hacking. These provisions were added in
the internet.
2001 by means of the Crimes Amendment (Computer Offences) Act
laissez-faire a French word literally translated as ‘allow to do’, used to 2001 (NSW).
describe economic philosophies that government should not intervene There are also Acts at federal and state level that specifically
in business; may also be used in a broader sense of minimal government
pertain to cyberspace activity, such as the Spam Act 2003 (Cth).
intervention in most aspects of society
Court decisions
Review 8.5 Superior courts can create precedents in relation to the legalities
of activities in cyberspace. As we saw, the US Supreme Court’s
1 How is the debate about government regulation of decision in Reno v ACLU that the indecency provisions in the
internet content in the US different from the form that
Communications Decency Act of 1996 were unconstitutional
it takes in Australia? How is it similar?
restrictions on free speech resulted in those statutory provisions
2 Do you think Reno v ACLU would be decided in the same being struck down. Although courts in one country are not bound
way today? Give reasons for your answer. How likely
by decisions in another country (that is, foreign decisions cannot
is it that an internet user might encounter content ‘by
serve as precedent), judges sometimes refer to cases from other
accident’? Give examples.
countries in their decisions.
3 What were the positions of the two sides in the ‘clean
feed’ debate?
International
4 Outline at least one argument for each side in the
philosophical debate about how governments should
Unlike other areas of law where issues cross national boundaries,
approach individual rights regarding internet content.
there are few specific international treaties that deal specifically
Be sure to provide reasons (evidence) for the claims that
with cyberspace. Given the exponential rise in internet use since the
each side might make.
1990s, one would expect that there would be many international
5 Think of at least one objection to the argument for each
treaties to deal with common issues faced by all states. This is yet
side’s view. Which view is the more plausible? Justify
to occur, however.
your answer.
Some international organisations and their current roles with
respect to governance in cyberspace are listed below.
££ United Nations: The UN has little control over the internet or
what happens in cyberspace, except in the area of intellectual

property. There are no UN-sponsored treaties or conventions could become an easy-to-remember name like ‘business.
that are specifically designed to govern cyberspace. Intellectual com’. In 1985 this was formalised as ‘Domain Name System’, or
property aspects of internet use are looked after by WIPO. DNS, and the top-level domain names such as .com, .net and
££ World Intellectual Property Organization (WIPO): WIPO .org were introduced. In 1998 IANA became part of ICANN.
is a specialised agency of the United Nations concerned with Today it manages over 20 million domain names, with around
intellectual property. 40 000 registered every day. Links to the websites of the
££ European Union (EU): The EU is an economic and political organisations listed above can be found at www.cambridge.
partnership of European nations that has regulatory edu.au/prelegal3weblinks.
powers in various areas of social and economic life. In 2003,
the EU reformulated its regulatory framework covering
communications, to cover ‘all electronic communication 8.6 Future directions
networks and services’, and began to review that framework in
2008 to ensure that it stays current. The EU has made a number Why laws are needed
of treaties relating to cyberspace. Parties to the Council of
Europe Convention on Cybercrime (2001), for example, include In order to combat cybercrime of all sorts, there must be enforceable
38 European countries, Canada, Japan, Montenegro, South laws. Cyberspace is a new and exciting development in society, but
Africa, and the US. arguably there is no reason to think people are any better able
££ World Trade Organization (WTO): The WTO looks after to regulate social behaviour there than in any other place, in the
trade matters between nations. This includes trade aspects absence of external authority.
of intellectual property, which are dealt with via the TRIPS In 1995, when eBay was founded, the company’s owners did not
agreement. The WTO also deals with ecommerce matters. believe that they needed to rely on government or laws to make
££ Internet Corporation for Assigned Names and Numbers their online business work. They had an online ‘feedback forum’
(ICANN): This non-profit corporation was established in where buyers and sellers could post praise and complaints about
1998 to coordinate the naming system on the internet one another and their transactions, and one ‘customer support
which is used to identify all websites. It has international person’ who was paid $100 a month to resolve disputes. However,
representation but is very much under US government with the growth of the company, scams began to proliferate.
control. ICANN’s role is strictly limited to the management Goods were offered but not delivered, hundreds of would-be
of the domain naming system. However, it has the potential buyers were affected, and it was only a matter of time before eBay
to become the most powerful organisation overseeing the faced a lawsuit by alleged victims of fraud. Without the threat
internet if in the future there is a wider representation of the of prosecutions to limit the relatively small number of dishonest
international community. users, cybercrime could ruin an online business. Governments are
££ Internet Assigned Numbers Authority (IANA): IANA is one needed, to create an environment where the rule of law prevails
of the oldest internationally organised institutions, having and where law enforcement mechanisms will deter those who
been established by the US Defence Information Agency break the law.
in 1972 for the purpose of assigning unique addresses to Governments provide public goods that enable individuals and
all computers connected in networks at that time. In 1973 businesses to use the internet effectively. These public goods are:
the addressing system known as the Internet Protocol, or ££ the cable network and communication laws
IP, became the accepted way of connecting all networked ££ criminal law
computers. In 1984 a simpler way of naming internet ££ laws governing property rights
addresses was worked out with the establishment of the ££ enforcement agencies.
name server. Up to this point every internet address was Essentially, the smooth functioning of the internet depends on
known by a long number such as 121.255.098.4. Now, simpler governments preventing harm and protecting rights. Countries
names could be assigned to these numbers to produce easy- whose governments do a poor job of this are finding that big
to-remember addresses. So, an IP address like 121.255.098.4 companies are refusing to do business there.

PART II
Strategies for governments Challenges to government control
of cyberspace
In their efforts to exert control in cyberspace, governments do
not have to be completely effective to be adequately effective. One of the greatest challenges for governments is that each new
Achieving perfect legal control is quite often just too expensive. technological innovation tends to make it easier for the law to be

violated in some way. Often there will be a race between people
Intermediaries using new technology to avoid the law, and authorities using
One way in which governments can exert control over content is by new technology against the law-breakers. It can be quite costly
enlisting local intermediaries such as ISPs and the companies that for governments to chase and shut down illegal operations in
control the physical internet connections. They can also influence cyberspace. Also, only developed (first world) countries have the
the policy of what goes on the local portals for search engines. By financial and other resources to do this.
utilising financial intermediaries, such as PayPal, banks or credit Another major difficulty for governments seeking to control
card companies, a government can wield huge influence over an content is the risk of censorship. As we have seen, this is of
industry – indeed, it can cripple it without going to court. particular concern to countries with explicit protection for freedom
Needless to say, some countries that have utilised these methods of expression. On the other hand, countries that have no qualms
are not known for having a high regard for freedom of expression or about limiting free speech, such as China and Saudi Arabia, have
for corporate independence from government. achieved unprecedented control over internet content within their
jurisdictions.
As there are many different legislative regimes in the world,
Prosecution of individual criminals
what is illegal in one country may be permitted in another. In the
Quite often the simplest way a government can assert control absence of effective international conventions to deal with content
over cyberspace is by physically arresting an individual suspected that has human rights implications, such as child pornography,
of cybercrime. The difficulty is that the person must be within the some nations have implemented measures such as ISP filtering.
territorial borders of the government that is seeking him or her.
Otherwise, extradition treaties can be used to remove the person
from the country where he or she has taken refuge.
Review 8.6
1 Why are strategies involving the use of intermediaries
extradition the handing over of a person accused of a crime by the
authorities of the country where he or she has taken refuge, to the
(such as ISPs, companies that provide physical
authorities of the country where the crime was committed infrastructure, and banks) problematic? List some of the
objections that could be made to these strategies.
2 Name three problems for governments seeking to make
Research 8.7 certain types of web content illegal.
1 Go to the OpenNet Initiative website (refer to www.

cambridge.edu.au/prelegal3weblinks for link) and look
at the information relating to global internet filtering. Global laws
2 In the ‘view country profiles’ selection tab, find some
countries that have implemented ISP filtering schemes.
The challenge of transnational cybercrime
Research the different schemes in use.
3 How do these schemes attempt to protect innocent Cybercrime is big business and it poses a challenge for
content providers and internet users while filtering out law enforcement agencies. Crimes such as data theft, data
objectionable material? tampering, and the creation of viruses and worms are
4 What are the types of objectionable material that enormously damaging. Companies also tend to under-report
they target? the effects of cybercrime on their business because they do
not want the adverse publicity.

ISPs are not capable of blocking criminal activity unless they the aims of the treaty are noble, it has not yet made a significant
have the specific details of which user is involved. In combating contribution to fighting cybercrime. Nations are still relying
cybercrime the enforcement agencies have to work quickly to deal on unilateral action and ad hoc cooperation with a few other
with criminal acts because it is easy for criminals to slip back into like-minded nations to fight cybercrime.
anonymity once they know they have been detected. However, the Convention on Cybercrime (Draft 25), along
Another type of crime on the internet is terrorism. with the recommendations of the Model Criminal Code Officers
Cyberterrorism is usually understood to mean unlawful attacks or Committee of the Standing Committee of Attorneys-General,
threats of attack on computer systems, with the intent to cause harm influenced the development of Australia’s Cybercrime Act 2001 (Cth),
or fear and to bring about some political or ideological objective. discussed earlier in the chapter.
For example, it might involve the disruption of infrastructure, such
as electrical systems or computer networks. terrorism violence or the threat of violence, directed at an innocent
group of people for the purpose of coercing another party, such as a
The only binding international treaty on cybercrime to have
government, into a course of action that it would not otherwise pursue
been formed to date is the Council of Europe’s Convention on
Cybercrime (2001), which entered into force in July 2004. However,
it has been difficult getting countries to agree to sign the
convention due to sensitivity about sovereignty and authorising
Legal Links
third parties to do cross-border searches. Also, there are civil For further information about the Convention on
liberties concerns that the treaty jeopardises free speech and Cybercrime, follow the link at www.cambridge.edu.au/
privacy rights. Forty-three nations had signed the convention as prelegal3weblinks.
of 2009, but only about a third of these had ratified it. Though
Figure 8.16 The laws that govern cybercrime have to constantly evolve in order to match the speed and growth of cyberspace.

PART II
ICANN’s potential 8.7 Conclusion
One organisation that has enormous potential to be the ultimate
global authority on the internet is ICANN. This non-profit Law’s effectiveness in cyberspace has been limited because
organisation is responsible for the domain name system (DNS). the internet is a global medium and laws are limited by national
The founders of ICANN intended it to be the ultimate authority for boundaries. The tension between global and local interests, as

the internet. However, the US government has had responsibility well as the cost of enforcing law with respect to the internet, has
for its oversight, under a memorandum of understanding been a hindrance. In addition, law enforcement is tied to its area of
between ICANN and the US Department of Commerce, from 1998 jurisdiction, and the anonymity possible on the internet has made
to 2009. Representatives of other countries and other observers it difficult to trace offenders. Often, law must use a case-by-case
have questioned why the US should have primary authority, approach, and prioritise cases according to which have the most
and argued that it should be more independent and therefore reasonable prospect of enforcement.
more international. When drafting legislation and agreements, both national
Some of ICANN’s achievements have included: governments and international organisations must ensure that the
££ decentralisation of the sale and distribution of domain names, new law or reform can accommodate the rapid pace of technological
which led to a significant drop in the price of registering a change, so that it is not made redundant or irrelevant in a short
domain name time. They must also avoid the unintended consequences of well-
££ establishment of an effective method of resolving trademark intentioned laws, balancing the protection of people directly or
disputes indirectly affected by activities in cyberspace with individual rights
££ reduction in the incidence of cybersquatting – that is, making a and community good.
profit from the use of someone else’s domain name. Given the international nature of cyberspace, its effective
Most of all, ICANN has ensured the stability of the internet so that regulation will require, at the very least, cooperation among
individuals, businesses and governments rarely worry about the states. A binding and enforceable international regime will require
internet collapsing. considerable effort, and quite possibly a voluntary relinquishment
of some national authority.
Figure 8.17 The ‘suit without a head’ image commonly associated

with international ‘hacktivist’ group Anonymous, accused by
some as having committed acts of cyberterrorism.

Chapter summary
➔➔ Cyberspace is an area in which the law is playing an increasing ➔➔ Efforts to protect children from indecent or inappropriate
but controversial role. The characteristics of cyberspace material on the internet can conflict with the protection
include global coverage, easy anonymity for users, and the of individual rights to free expression. Combating serious
facilitation of creative activity. criminal activity that makes use of the internet faces similar
➔➔ Crimes specific to cyberspace include hacking and spam. challenges, as well as the difficulty of enforcement.
➔➔ Fraud and violations of intellectual property rights are not ➔➔ Philosophical approaches to rights in cyberspace fall into two
specific to cyberspace, but they take on a distinctive character general camps: laissez-faire and interventionist.
in that context. ➔➔ While greater government control of cyberspace has
➔➔ Privacy and safety issues are of concern to many internet users, clear benefits with respect to fighting crime, democratic
and particularly to parents of young users. governments must ensure that individuals’ civil rights are not
➔➔ The ALRC has recommended the development of a statutory violated.
tort of breach of privacy, and other reforms to take account of ➔➔ International regulation of cyberspace is in its infancy.
new technology.
1 Two distinct features of cyberspace that will influence laws 4 Spam is:
relating to it are its: a the unauthorised duplication of goods protected by
a security and predictability intellectual property law
b anonymity and global character b an unsolicited commercial electronic message
c political progressivism and educational value c an attempt to gain money through some sort of deception
d democracy and communitarianism d the intentional misrepresentation or concealment of
2 It can be concluded from the US Supreme Court decision in information in order to deceive or mislead
Reno v ACLU that: 5 A digital tattoo is:
a Cyberspace requires some degree of government control. a a unique type of computer identifier used by some
b Laws that attempt to regulate internet content may restrict European countries
free speech. b a software program unique to the individual, which is
c Online communication is more like a conference call than a stored online somewhere in cyberspace
private conversation. c a type of internet scam
d All of the above. d information placed on the internet that is no longer wanted
3 The international organisation concerned with copyright law is: but that cannot be easily removed
a ICANN
b IANA
c the UN
d WIPO

PART II

1 Identify the various sources of law in cyberspace. Give examples. 7 List some of the problems arising from government efforts
2 Describe the various types of criminal offences that occur in to prevent the transmission of some types of information in
cyberspace. cyberspace.
3 List the various types of intellectual property and explain how 8 Explain why government control of cyberspace is constantly
cyberspace may pose unique problems for the law in relation challenged.
to them. 9 List the international organisations that have some authority
4 Describe the various ways in which privacy can be violated in for the regulation of cyberspace, and describe the function and
cyberspace. jurisdiction of each.
5 Explain how privacy is protected in Australia. 10 Outline the reasons why law is not always effective in
cyberspace.
6 List some of the problems arising from the free and
unrestricted transmission of information in cyberspace.
Topic review
Extended response
1 Evaluate the role of case law in shaping the regulation of the 4 Evaluate the usefulness of international treaties in governing
internet. Refer to two prominent cases in your answer. cyberspace.
2 Describe the features of the internet and explain the 5 Assess the effectiveness of government efforts to fight crime in
implications of these features on law-making in cyberspace. cyberspace.
3 ‘In our world, whatever the human mind may create can be
reproduced and distributed infinitely at no cost.’ Assess the
implications of this aspect of John Perry Barlow’s 1992 vision of
cyberspace.

Part III
Law in practice
30% of course time
Principal focus
Through examining current issues and examples, students will gain an understanding of the practical
operation of the law.

➔ How justice, laws and society are connected ➔ The effectiveness of the legal system in responding to and
➔ How law reform and development reflect changes in society dealing with issues
➔ Our reliance on the rule of law and its importance ➔ The role of legal mechanisms in effectively achieving justice
for individuals and society

PART III
Law in practice
1 Groups or individuals 3 Individuals or groups in conflict
suffering disadvantage with the state
➔ Children and young people ➔ Mohamed Haneef
➔ Women ➔ Outlaw motorcycle gangs (OMCGs)
2 Events that highlight legal issues 4 Criminal or civil cases that raise

issues of interest to students
➔ The Bali bombings
➔ The Port Arthur massacre ➔ File sharing and digital copyright
➔ Drug testing

Area 1: Groups or individuals suffering disadvantage
Chapter 9
Children and young people
Chapter objectives
➔ explore legal concepts and terminology relating to children ➔ investigate the place of the law in encouraging cooperation
and young people and resolving conflict with regard to children and young
➔ investigate the main features of the Australian and people
international legal systems in relation to children and ➔ investigate the role of the law in addressing and responding
young people to change with respect to children and young people
➔ analyse the legal system’s effectiveness in delivering justice ➔ find and use legal information from a range of sources
and addressing issues in society relating to children and ➔ develop the ability to effectively communicate legal
young people information and issues.
adoption order indictable offence tort
cautions juvenile warning
children prohibited person working with children check
doli incapax public space young person
foundling sanction Youth Justice Conferences
guarantor summary offence

PART III
Chapter 9: Children and young people
Relevant law
Family Law Act 1975 (Cth) Children (Criminal Proceedings) Act 1987 (NSW)
Education Act 1990 (NSW) Young Offenders Act 1997 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW) Children (Protection and Parental Responsibility) Act 1997 (NSW)
Births, Deaths and Marriages Registration Act 1995 (NSW) Commission for Children and Young People Act 1998 (NSW)
Australian Citizenship Act 2007 (Cth) Children’s Court Act 1987 (NSW)
Adoption Act 2000 (NSW) Anti-Discrimination Act 1977 (NSW)
Significant cases
Gillick v West Norfolk and Wisbech Health Authority [1985] 3 Re W (A Minor) [1993] Fam 64
All ER 402
Department of Health and Community Services (NT) v JWB & SMB

(‘Marion’s case’) [1992] HCA 15

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

15 years and younger, depending aged 16–18 years
on the legal context
9.2 Children, young people Figure 9.1 Under the law, a person aged 15 or younger is generally
and the law regarded as a ‘child’. In NSW, a person between the ages of 16 and 18 is
considered a ‘young person’.
Throughout the 19th century, children in poorer families were

How the law defines ‘childhood’ constantly threatened by the spread of disease. They lived in dirty,
and ‘young person’ overcrowded housing with very poor sanitation. It is estimated that
about half the funerals in London were for children under the age of
Traditionally, the legal age of adulthood was 21 years. In the past ten, many of whom had died from preventable diseases. The infant
20 to 30 years, most jurisdictions have lowered this age to 18 years. mortality rate was as high as 50 per cent for children in their first
Article 1 of the Convention on the Rights of the Child (CROC) states year. Many children also experienced violence on a regular basis.
that anyone under the age of 18 is a child unless the national law For many, poverty and crime were significant influences in their
specifies an earlier age. formative years. Joining a gang, crime and prostitution were ways
The Children and Young Persons (Care and Protection) Act 1998 of surviving until adulthood.
(NSW) defines a ‘young person’ as someone aged between 16 and 18. Children committing criminal acts were treated in the same way
These definitions are important because laws treat children as adult offenders. The concept of an age before which a person
and young people differently from adults. These laws are could not be held criminally responsible – doli incapax – did not
intended to: exist, and children as young as seven or eight were convicted of
➥ prevent them from being exploited serious criminal offences.
➥ protect them from the consequences of making uninformed Children were forced to work from a young age. The beginning
decisions of the industrial era saw the beginning of child labour in factories,
➥ protect others from being disadvantaged by dealing with a where they worked long hours, usually with dangerous machinery,
person who is a minor. for very low pay. They also experienced work-related diseases due
to hard physical labour or from working with industrial chemicals,
A history of the status of children unprotected.
and young people The concept of public education did not exist. The education
children received depended on the wealth of their family. Private
Historically, children had no legal rights until they reached tutors or governesses who taught the children at home were one
adulthood. It was not until the late 19th century that concern option for the rich, or boys could be sent to exclusive boarding
about the working conditions of children, and the broader effects schools.
that child labour had on the quality of many children’s lives, set in In 1870, the Elementary Education Act was passed in England,
motion significant changes. which introduced compulsory universal education for children aged

PART III
5–13 years. The churches were heavily involved in education, with The committee does not have the power to hear individual
many Anglican, Catholic and Jewish families preferring to send their complaints of violations of children’s rights.
children to a religious school. In Australia, the Church of England
initially assumed responsibility for the education of colonists. The Gillick case
Following disagreements between Anglicans, Presbyterians and Gillick v West Norfolk and Wisbech Health Authority [1985] 3 All ER
Catholics as to which religion had authority for this task, each colony

402 was a House of Lords decision. The Department of Health and
between 1872 and 1895 passed Education Acts making primary Social Security (DHSS) had distributed a flyer advising doctors that
education a state responsibility and stipulating that it would be they could lawfully provide contraception and advice to persons
‘free, compulsory and secular’. Many parents of limited economic under 16 years old without their parents’ consent. The local health
means needed their children to be working, and it wasn’t until the authority refused to promise Victoria Gillick, a mother of five
introduction of a minimum working age that children began to daughters, that they would not provide advice and contraception
attend school regularly. to her daughters without her consent. Gillick brought an action
By the end of the 19th century, governments, religious institutions against the health authority and the DHSS, based on her belief
and charities had become aware that children required specific that a child under 16 was too young to make such a decision
legislation to protect them from violence and abuse, and to give them without parental consent. Justice Woolf in the first instance held
greater opportunities to develop socially and emotionally. that Mrs Gillick was not entitled to declarations prohibiting the
doctors at the clinic from prescribing contraceptives or providing
doli incapax a Latin term meaning ‘incapable of wrong’; the presumption
advice to her daughters. The Court of Appeal allowed Mrs Gillick’s
that a child under 10 years of age cannot be held legally responsible for his
or her actions and cannot be guilty of a criminal or civil offence appeal, and the Department of Health and Social Security, on
Recognition of children’s rights

Two significant events in the 1980s that advanced the rights of
children and young people internationally and in common law
countries were the opening for signature of the United Nations
Convention on the Rights of the Child (CROC), and the Gillick case
in England.
Convention on the Rights of the Child
The UN Convention on the Rights of the Child (1989) sets out a

comprehensive set of rights for all children and young people.
It covers civil, political, economic, social and cultural rights, and
requires that all state parties act in the best interests of the child.
The Family Law Act 1975 (Cth) and other Australian legislation
endeavour to reflect that objective. The basic rights of a child, as
set out in Articles 1–40 of CROC, include the right to life, to have
one’s own name and identity, to be raised by one’s family and
to have a relationship with both parents, even if the parents are
separated.
CROC is the most widely ratified human rights treaty, with more
than 193 countries having ratified it. The exceptions are the United
States and Somalia. It is monitored by the UN Committee on the
Rights of the Child, which assesses state parties’ performance, Figure 9.2 The industrial era introduced young children to long work
reports to the UN General Assembly and makes recommendations. hours and dangerous machinery.
C hap ter 9: C hil dren and young p eopl e 187

behalf of the health authority, took the matter to the House of Registration and citizenship
Lords, which affirmed the appeal on the basis that a 16-year-old
Parents have the responsibility to register the birth of their child
was capable of consent in medical matters, provided that she
under the Births, Deaths and Marriages Registration Act 1995 (NSW).
‘has sufficient understanding and intelligence to understand
The parents have seven days after the birth to give notice of the
fully what is proposed’. In other words, children have the right
birth, and 60 days to complete the registration process. This puts
and the ability to make decisions to affect their lives, and they can
the existence of the child on the public record and gives the child a
do so competently as long as they understand the implications of
legal name, that of the father or mother in most cases, and therefore
their decisions.
affords to the child all legal rights and protections. The parent or
parents also assume responsibilities under the law for the child’s
Review 9.1 welfare. If a child is stillborn, the state Registrar of Births, Deaths
and Marriages must be notified within 48 hours.
1 What challenges did children and young people
If a child is a foundling, the person who has been granted
experience in the 19th century in England?
Give examples. guardianship of the child is responsible for having the child’s birth
registered. An adoption order made under the Adoption Act 2000
2 What is meant by doli incapax?
(NSW) must also be registered (Births, Deaths and Marriages Act 1995
3 Outline how the law defines children and young people.
(NSW) s 23). A child’s name may be changed, and generally the child
Use examples.
must consent to this change (Adoption Act 2000 (NSW) s 101; Births,
4 Read about the facts of the Gillick case by following
Deaths and Marriages Act 1995 (NSW) ss 28, 29).
the link at www.cambridge.edu.au/prelegal3weblinks
and comment on the implication of the decision by the foundling a deserted infant whose parents’ identity is unknown
House of Lords.
adoption order a court order that establishes a new legal relationship

between potential adoptive parents and a child eligible for adoption. It
Research 9.1 also severs the legal relationship that existed between the adoptive child
and his or her natural or legally recognised parents or guardians prior to
Go to the website of the Office of the High Commissioner the adoption process.
for Human Rights (refer to www.cambridge.edu.au/
prelegal3weblinks for link).
1 Write a one-page summary of CROC.
2 What is the significance of CROC? Does it bear any
relation to the Gillick case? Give reasons for your answers.
Civil law in relation to children

and young people
The Family Law Act 1975 (Cth) governs disputes between married
and de facto couples, including disputes relating to children. The
‘paramount consideration’ for orders relating to children made
under this Act must be the children’s best interests.
Many other aspects of the law applying to children come
under state jurisdiction. In New South Wales, these include the
following matters. Figure 9.3 Two girls with a member of their adopting family

PART III
positive and negative aspects of working, and that they especially
Legal Info liked getting paid and gaining experience and responsibility, the
report also showed some trends of concern:
The Australian Citizenship Acts (Cth)
➥ Children living in less disadvantaged areas were more likely to
1948 and 2007
work, and work decreased with increased social disadvantage.
The Australian Citizenship Act 2007 (Cth) replaced the Children with greater household responsibilities had fewer

Australian Citizenship Act 1948 (Cth). It sets out how a person opportunities to work.
becomes an Australian citizen, the circumstances in which ➥ Young workers were paid less than mature people doing the
a person may cease to be a citizen, and some other matters same jobs, possibly because they often work on an informal or
related to citizenship. Under the Act, any child born in casual basis and their work is outside regulatory requirements.
Australia is automatically an Australian citizen if at least
➥ High levels of harassment and injury were reported by the
one of the parents is an Australian citizen. Children born
children surveyed.
overseas to a parent who is an Australian citizen may apply
for registration as an Australian citizen by descent, if they
meet certain criteria. A child who is a permanent resident Research 9.2
and who has been legally adopted also automatically
acquires Australian citizenship. Go to the Young People at Work and Lawstuff websites
(refer to www.cambridge.edu.au/prelegal3weblinks for link)
to research other aspects of work for children and young
people. Summarise your findings in a few paragraphs.
Education
Children have the right to be educated, and it is compulsory for
children aged 6–17 to attend school under the Education Act 1990 Medical treatment
(NSW). Under s 22 of this Act, parents must send their children to
In Department of Health and Community Services (NT) v JWB & SMB
a government school or a non-government school registered with
(‘Marion’s case’) [1992] HCA 15, the High Court of Australia followed
the NSW Board of Studies, or register them for home schooling.
the decision in the Gillick case, holding that once a person has
Section 4 of the Act asserts that it is the duty of the state to ensure
sufficient maturity and intelligence to understand what is proposed,
that every child receives an education of the highest quality.
she or he is capable of consenting to medical treatment.
This common law test is subject to s 49 of the Minors (Property
Work and Contracts) Act 1970 (NSW), which protects a medical practitioner
Generally it is acknowledged that it is in the best interests of from liability in tort for treating a young person, if the young person
children that they remain in school and receive a formal primary has given consent to the medical or dental treatment and is aged
and secondary education. According to the Office of Industrial 14 years or over.
Relations in NSW, there is no minimum legal age limit for young Parents have the responsibility to seek proper medical care for
workers. If, however, they are under 15 years, they must receive their children, even if they have religious objections. The Children
authorisation from the NSW Department of Education and Training and Young Persons (Care and Protection) Act 1998 (NSW) s 174
to leave school. Young people in the workplace are covered by authorises a medical or dental practitioner to carry out emergency
all of the relevant workplace and safety legislation for workers treatment on a child or young person without parental consent.
in NSW. As legislation does not deal with a young person’s right to
The NSW Commission for Children and Young People, in its 2005 refuse medical treatment, this issue is governed by the common
Children at Work report, surveyed 10 999 children and young people law. If a child under 16 years refuses medical treatment, parents
in Years 7–10 living in NSW about their working experiences. The have a right to insist that it be performed, despite the Gillick test of
report gave an interesting profile of young workers throughout the competency (Re W (A Minor) [1993] Fam 64). A court can override a
state and the commission reaffirmed its findings in 2008. Although young person’s refusal of medical treatment if the refusal is not in
the survey found that the majority of children could list both his or her best interests.

victim of defamation, or suffers loss or damage as a result of
Legal Links some other wrongful behaviour, he or she is entitled to sue
To read the recommendations of the NSW Commission for the wrongdoer.
Children and Young People responding to the issues in the A child is also personally responsible for his or her own wrongful
Children at Work report, follow the link at www.cambridge. acts. The general rule is that parents are not liable for torts
edu.au/prelegal3weblinks. committed by their children.
Leaving home
Discrimination Young people do not have the right to leave their parents’ home
Children and young people are protected from discrimination before the age of 18. However, the law would not normally force
on the basis of age by Part 4G of the Anti-Discrimination Act young people over the age of 16 to stay at home against their
1977 (NSW). This Act also outlaws discrimination on the basis wishes. The following factors would be considered: maturity,
of sex, race, sexuality and other characteristics, and applies to accommodation, safe living environment, and the parents’ attitude.
discrimination in work, education and the provision of goods and

guarantor a person who gives torts civil wrongs involving
services. There are a number of exceptions, however, relating to
a formal promise that someone breach of a duty; torts include
superannuation, insurance, credit applications, vehicle safety and else’s contract will be fulfilled, negligence, defamation,
sport, and the Act does not affect the operation of laws relating often backed by some form of nuisance, and trespass to the
asset that will stand as collateral person, goods or land
to the legal capacity of children or of laws specifically designed
to secure the promise
to protect them.
Contracts Refer to Chapter 9 on the Cambridge GO website

Under the Minors (Property and Contracts) Act 1970 (NSW), people for information relating to:
under 18 years are generally not bound by a contract, lease or other ➥ family matters, including inheritance and parentage
transaction (ss 8, 17). The courts will not enforce such contracts, ➥ care and control
even if they do exist. ➥ Children and Young Persons (Care and Protection) Act
The exception to this, contained in s 19 of the Act, is a situation 1998 (NSW)
where a young person enters an agreement that is for his or her
own benefit and is a necessity, such as accommodation or food.
For example, a young person who leaves home at age 17 to take an
apprenticeship and has to sign a rental lease for accommodation,
Review 9.2
or needs to buy a car on finance for transport, will be bound by the 1 How does a child become an Australian citizen?
contract. 2 List a child’s or young person’s legal rights and
Some minors may be able to enter into certain contractual responsibilities in each of the following areas, along
arrangements if they have a parent or guardian who acts as a with the statutory or common law source of each of the
guarantor to ensure that the contractual obligations are fulfilled. rights and obligations:
The Supreme Court of NSW can confer the capacity to enter a a education
legal contract upon a minor (s 26). b work
c medical treatment
Torts d entering a contract.
There is no age restriction on taking legal action for a civil wrong.

If a child is injured as a result of someone else’s negligence, is a

PART III
Criminal law in relation to children ➥ the least restrictive sanction should be applied where possible
➥ children should be informed of their right to seek legal advice
and young people ➥ criminal proceedings are not to be started if there is an
appropriate alternative for dealing with a matter.
Under the Act, children and young offenders who have committed
an offence covered in the Act may proceed through a three-tiered

system of diversionary processes, comprising warnings, cautions
and Youth Justice Conferences.
A warning can be given by a police officer, either at the place
where the child was found offending or anywhere else. The child
must be told of the nature, purpose and effect of the warning.
No conditions can be attached to the warning, and no additional
sanctions imposed. The police officer must ensure that the child
understands the warning, and must notify the parents.
A caution is given by a police officer or a specialist youth officer
Figure 9.4 Between the ages of 10 and 14 a child may be found guilty of a
when the child admits the offence. It is used where the offence
criminal offence.
is more serious. The officer must determine whether a matter is
Section 5 of the Children (Criminal Proceedings) Act 1987 (NSW) appropriately dealt with by caution by considering the seriousness
clearly states the principle of doli incapax: ‘It shall be conclusively of the offence, the degree of violence involved and harm caused
presumed that no child who is under the age of 10 years can be to the victim, and the number and nature of any offences the child
guilty of an offence.’ This is the same in all jurisdictions in Australia. has committed. He or she must ensure that the child understands
Between the ages of 10 and 14 a child may be found guilty of a the nature, purpose and effect of the caution, and that he or she is
criminal offence, but the prosecution must rebut the notion of doli entitled to obtain legal advice and to choose to have a court deal
incapax and show that the child, at the time of the alleged offence, with the matter. A court may also give a caution. Before a caution is
could distinguish between right and wrong. From the ages of 14 to 17, given, the offender must be given a written notice of it.
children and young people are held fully responsible for their actions.
However, they are subject to a different range of criminal sanctions summary offences criminal offences that can be dealt with by a single
judge without a jury and do not require a preliminary hearing
than adults who have committed the same offences. Detention is a
last resort for a juvenile offender in all states and territories.
indictable offences serious criminal offences that require an indictment

sanctions penalties imposed on those who break the law, usually in the
(a formal, written charge) and a preliminary hearing; they are typically
form of a fine or punishment
tried before a judge and jury and are subject to a greater penalty
juvenile a child or young person, generally under 18 years of age,

warnings formal notices given to a young offender, usually for a first
although this may vary depending on the context
minor offence
The Young Offenders Act 1997 (NSW) cautions formal notices given to young offenders where the offence is
more serious than one appropriately dealt with by a warning
The Young Offenders Act 1997 (NSW) has the aim of providing
diversionary measures for young offenders as alternatives to court
appearances. The Act only applies to summary offences and to Youth Justice Conferences a measure to divert young offenders from
those indictable offences that can be dealt with summarily. The the court system through a conference that addresses the offender’s
behaviour in a more holistic manner
principles of the Act are that:

9.3 Mechanisms for
protecting the rights of
children and young people
Legal responses
The role of the United Nations

The Convention on the Rights of the Child (CROC) has been important
in putting the rights of children on the global agenda. Ratification
usually means a government passing domestic laws to give effect
to some or all of the principles of an international treaty. Once a
state has signed and ratified a treaty, the United Nations committee
structure monitors and reports on the extent to which that state is
complying with its international obligations.
The Committee on the Rights of the Child meets to examine
reports from ratifying countries. The 18 committee members are
independent experts in the field of human rights, who are elected
by the governments of ratifying countries. As mentioned above,
the committee has no coercive power. Australia has a responsibility
under the convention to report to the committee on the steps that
Figure 9.5 The Young Offenders Act aims to divert young offenders from it has taken to give full effect to the contained rights.
the court system.
A youth justice conference may be used for offences of the same The role of parliament and the courts
gravity as those for which a caution is imposed, or one that is more
Federal and state parliaments have passed numerous Acts that
serious, such as those involving harm to a victim. Conferences are
protect children and young people by restricting their activities
designed to encourage the offender to take responsibility for his or
and by placing responsibilities on adults to ensure the welfare
her own actions, to provide support services, to promote the rights
of children and young people. Certain rights of children have
of victims, and to involve families and others in the justice process.
also been enshrined in legislation, which in turn has created
Legal Links legal institutions and processes that promote and protect
these rights. The courts have also played a role, through cases
Go to the NSW Police Force website (refer to www.cambridge. that have affirmed the current law or changed the law through
edu.au/prelegal3weblinks for link) for more information on reinterpretation.
warnings, cautions and youth justice conferences.
Some of the legal institutions in NSW that have been set up to
protect children and young people are as follows.
The NSW Commission for Children and Young People

Refer to Chapter 9 on the Cambridge GO website for
information relating to: The NSW Commission for Children and Young People is a statutory
body set up in 1998 to promote respect for and understanding of
➥ Crimes Legislation Amendment (Police and Public
the interests and needs of children and young people.
Safety) Act 1998 (NSW)
The commission implements and monitors the ‘working
➥ Children (Protection and Parental Responsibility)
with children check’, the mandatory employment screening
Act 1997 (NSW)
by employers of job applicants in child-related employment, as

PART III
Figure 9.6 Child slavery and the use of children and young people as soldiers are continuing human rights challenges, despite international instruments
such as CROC.
outlined in the Children and Young Persons (Care and Protection) Act
1998 (NSW). The Commission for Children and Young People Act 1998 Review 9.3
(NSW) contains offences with penalties for employers who employ
1 Outline the main role of the NSW Commission for
a person in child-related employment without sufficient scrutiny Children and Young People.
of the person, or who knowingly employ a prohibited person
2 Describe what is meant by the ‘working with
in child-related employment. These requirements on employers children check’.
reduce the likelihood of prohibited persons having contact with
children in the course of their work.
The commission also makes submissions to government or Law Children’s Courts
Reform Commission reviews of legislation that affect children and Across NSW, there are 13 children’s magistrates sitting in seven
young people. An example of this is its submission to the Review of specialist Children’s Courts. Five of these courts are in metropolitan
the Young Offenders Act 1997 and the Children (Criminal Proceedings) areas. There are also five children’s registrars appointed under the
Act 1987 in December 2011. Some of these findings are discussed in Children’s Court Act 1987 (NSW) to assist in the administration of
this chapter. matters before the court. The court has a dual role: determining
matters of juvenile offenders that appear before it, and determining
‘working with children check’ a check by the NSW Commission for
care and protection matters concerning children on application to
Children and Young People on the appropriateness of a person in NSW to
work in child-related employment it by Department of Family and Community Services (Community
Services NSW).
Under the Children and Young Persons (Care and Protection)
prohibited person a person prohibited from working in child-related Act 1998 (NSW) ss 71 and 72, the court may make care orders if it
employment because of a conviction of a serious sex offence, murder of a
is satisfied on the balance of probabilities that the child or young
child, or an offence involving violence towards a child
person is in need of care or protection.

Community Services NSW Administrative Decisions Tribunal
Community Services NSW is responsible for the care and protection As discussed in Chapter 7, the Administrative Decisions Tribunal
of children in NSW. It carries out this role in cooperation with non- reviews administrative decisions of NSW government bodies.
government organisations and government agencies. Its activities Its Community Services Division deals with applications for review
include the provision of accommodation and support for children of decisions made by DOCS. The division also hears applications
and young people who need to live away from their families, the for declarations that a person seeking to apply for a job working
regulation of child care through licensing, and the funding and with children is not a prohibited person under the Commission for
regulation of adoption services. Children and Young People Act 1998 (NSW).
Legal Aid COAG National Framework
Legal Aid NSW provides a range of services to children and young In 2009 the Council of Australian Governments (COAG), an
people in NSW. It represents children and young people in a variety intergovernmental forum made up of the federal and all state
of matters, from welfare proceedings in the Children’s Court to and territory governments, published its National Framework for
family law matters in the Family Court. Its legal representatives will Protecting Australia’s Children 2009–2020. This initiative has the aim
also appear for children and young people facing criminal charges of fighting child abuse and neglect by preventing it in the first place
in the Children’s Court. – that is, by protecting the safety and wellbeing of children.
The NSW Ombudsman

Non-legal responses
The main role of the NSW Ombudsman is to act as an independent
review body that deals with individuals’ complaints about As children and young people cannot vote, it is difficult at times for
the administration of government agencies or the agencies’ their voices to be heard.
compliance with specific legislation. Traditionally, the office is seen There are some very effective non-legal mechanisms that keep
as representing the people’s interests, and its credibility comes from the issues of children and young people on the political agenda.
its reputation for impartiality, independence from government and They may be the first point of call, and can either provide valuable
confidentiality. information about a person’s rights or refer the person on to a
There have been calls for a specialist ‘children’s ombudsman’ relevant source.
that can take a more targeted approach to issues facing children
and young people in their dealings with government agencies. Trade unions
Another important role performed by the ombudsman’s office
Trade unions are organisations of workers who act together to
is investigating and reporting on ‘reviewable deaths’ of children
maintain their rights to good working conditions. The Australian
in NSW. A death is reviewable if the child or a sibling has been
Council of Trade Unions (ACTU) provides information about pay and
reported to DOCS at any time and for any matter in the three years
conditions, health and safety issues, apprenticeships and training,
prior to the child’s death. With the objective of preventing harm,
and negotiating employment contracts, for young people entering
abuse and neglect of children, the ombudsman’s office assesses
the workforce for the first time.
whether the child protection system could have prevented some
of these deaths. In 2010, 106 of the 589 children whose deaths were
registered in 2010 had a child protection history. This means that Kids Helpline
they had been the subject of a report to Community Services NSW
The Kids Helpline (refer to www.cambridge.edu.au/prelegal3
of risk of harm or significant risk of harm within the three years prior
weblinks for link to website) is just one of many organisations from
to their death.
which children and young people in crisis can seek advice. It offers
24-hour free telephone and online counselling and referral about
issues including family relationships, child abuse, mental health,
bullying, drugs and alcohol, eating and weight issues, as well as
specific issues faced by people from Indigenous, non-English-
speaking or rural backgrounds.

PART III
Stop Child Abuse Now
Review 9.4
Stop Child Abuse Now is a service provided by the Australian
1 Describe the role of the NSW Ombudsman in protecting
Childhood Foundation to educate the community about child
the rights of children and young people.
abuse. It provides a directory of services in every state to provide
help and support for people who have experienced child abuse, 2 Outline the role the Administrative Decisions Tribunal

can play in protecting the rights of children.
as well as parents and others who are concerned about their own
situation or want to report child abuse. A link to the website can be 3 What are the strengths and weaknesses of non-legal
found at www.cambridge.edu.au/prelegal3weblinks. mechanisms with respect to the rights of children?
Legal Links
The Worksite for Schools website (refer to www.cambridge.
Research 9.3
edu.au/prelegal3weblinks for link) provides fact sheets, Use the following websites to research the roles of these
case studies, job profiles and other information about work, institutions and organisations in protecting the interests of
specifically directed to young people. children and young people. Prepare a fact sheet on two of
your choosing.
➥ Committee on the Rights of the Child
➥ The NSW Commission for Children and Young People
➥ The NSW Children’s Court
➥ Community Services (formerly Department of
Community Services)
➥ Legal Aid NSW
➥ The NSW Ombudsman
➥ The Australian Council of Trade Unions (ACTU)
Refer to www.cambridge.edu.au/prelegal3weblinks for links
to these websites.
9.4 Responsiveness of
the law
As they grow through adolescence and into adulthood, young
people are more likely to take risks. At the same time there are
adults in society who abuse and exploit children and young people.
This means that children and young people will sometimes be at
risk of harm, or at risk of harming others. It is in this light that the
legislation and mechanisms in place to ensure justice for children
and young people will be evaluated.
Children and young people and the

criminal justice system
Figure 9.7 The ACTU provides information for children and young people If children and young people come into contact with the criminal
entering the workforce. justice system, it is usually through interaction with a police officer

The Seen and heard inquiry also examined how policing could
become more consistent with CROC provisions and recommended
that national standards should be implemented via legislation
or policy in certain areas of concern. Some of the main areas are
outlined below.
Refer to Chapter 9 on the Cambridge GO website

for information relating to young people and
public space.
Arrest and police interview

In some jurisdictions it is alleged that police rely heavily on arrest
to gather evidence or to further the interrogation of suspects. In
other words, arrest can be used as a method of investigation. This is
especially so for Indigenous youth.
Article 37(b) of CROC states that arrest should be a ‘last resort’,
not a routine practice, as it can be a very negative experience
for children and young people. The Seen and heard report also
recommended that for children at risk, welfare and health services
may be the more appropriate agencies to deal with the situation.
This is not to deny that arrest is appropriate when it is necessary for
a police officer to protect the community.
All suspects have the right to contact a lawyer and to have
Figure 9.8 Detention and other harsh sentencing options are reported as him or her present during questioning, as long as this does not
being ineffective deterrents to reoffending.
interfere with the police investigation. Persons under 18 can
when being arrested or questioned about some matter. This contact the Legal Aid Youth Hotline if they have been arrested
experience can influence their attitude to authority and to the and need legal advice. However, people do not always exercise
wider community in general. this opportunity because they are not aware of their rights,
Seen and heard: Young people and the legal process, a joint sometimes exacerbated by language difficulties, cultural
inquiry of the Human Rights and Equal Opportunity Commission differences or age. The Australian Law Reform Commission and
and the Australian Law Reform Commission conducted in 1997, others have recommended greater efforts by police to inform
examined the relationship of children and young people and the accused persons of their rights in terms that they can understand
legal process. Seventy-eight per cent of the 843 children and young and act on.
people surveyed said that the police rarely treated young people
with sufficient respect.
Sentencing of young offenders
It could be argued that children and young people on the
whole do not have a good relationship with the police. Another area of concern at the time of the Seen and heard report
Young people are frequently targeted for police intervention – was the sentencing of juveniles. Children and young people, more
for lacking ‘respect’, for being ‘rowdy’, for being part of the ‘rave than any other offenders, have the best chance of rehabilitation
culture’, or simply for being young and out in public.
and reintegration into society. As such, the sentence that
‘Young People and Public Space’ conference workshop
offenders receive should take into account the age of the offender
presented by the Youth Justice Coalition and Youth Action
and Policy Association, 2002 and the circumstances under which the offence was committed.

PART III
The report noted that research has indicated that detention serious matters and conferencing is not as easy to dismiss as a
and other harsh sentencing options are generally ineffective as soft option.
deterrents to reoffending. Dr Weatherburn went on to say that, ‘One can only speculate
Most jurisdictions do this. In New South Wales, the courts about the reasons for this but one possible explanation is that YJCs
follow guidelines under the Children (Criminal Proceedings) do not address the underlying causes of juvenile offending (e.g.
Act 1987 (NSW), which gives special consideration to juvenile drug and alcohol use, parental neglect and abuse, poor school

offenders. However, the report suggested that there was room performance, boredom and unemployment).’
for improvement in this area and that ‘[m] ore attention is needed The NSW Commission for Children and Young People supported
to social factors such as homelessness, family circumstances this in its submission to the Review of the Young Offenders Act 1997
… and so on in determining sentences for children’ and that and the Children (Criminal Proceedings) Act 1987 in December 2011.
sentences should take into account the special health and other It believes the current legislation does not meet the needs of
requirements of children and young people’. children and young people for the following reasons:
➥ Recent research has revealed a greater understanding of the
Youth conferencing development of the adolescent brain until the age of 25. It has
suggested that our understanding of the meaning of criminal
While youth conferencing generally deals with matters that
responsibility for children and young people may need to
would be dealt with summarily, it can, under the Young Offenders
be reassessed.
Act 1997 (NSW), be used for some indictable offences such as
➥ The report also goes on to say, ‘the attempt to combine the so
robbery and aggravated break, enter and steal. One of the
called “justice” and “welfare” models of juvenile justice in the
criticisms of well-intentioned laws like the Young Offenders Act
legislation has created a complex and sometimes contradictory
is that they are not being used for a sufficiently wide range of
amalgam of community based sanctions and controls alongside
offences, and therefore that some young offenders are missing
formal court processes and detention. It is possible that this
out on the benefits that conferencing offers. The Shopfront
has led to “net widening”, as police warn, caution or refer to
Youth Legal Centre, in its submission in response to the NSW
conferencing children who might otherwise have been dealt
Law Reform Commission paper on sentencing young offenders
with informally.’
in 2003, argued that:
➥ Lastly, it argues that the principles of restorative justice that
Youth justice conferencing is suitable for a wide range of offences, underpin youth justice conferencing are contentious and there
even very serious ones. It is not a ‘soft option’. Indeed, it could be
is insufficient evidence for the effectiveness of youth justice
said that conferencing works best in the case of relatively serious
offences because the young offender is obliged to consider the conferencing in its current form in reducing recidivism. This
consequences of his or her actions, in particular the harm caused supports the view expressed by Dr Weatherburn.
to the victim. In most cases, conferencing is a more effective
mechanism than court for achieving this.
A further criticism of the application of the provisions of Refer to Chapter 9 on the Cambridge GO website
the Young Offenders Act from recent findings suggests that for information relating to:
conferencing needs to be supported by additional rehabilitative ➥ Care and protection of children and young people
measures. According to the Director of the NSW Bureau of Crime ➥ Children and young people in the workplace.
Statistics and Research, Dr Don Weatherburn, in March 2012, ‘the

conference regime established under the NSW Young Offenders
Act (1997) is currently no more effective than the NSW Children’s International issues
Court in reducing juvenile re-offending among persons eligible
for a conference’. Children around the world are exploited and abused where the
Conferencing in Victoria produced lower re-offending figures laws of their countries fail to offer protection to them. There are
but it is also suggested that this may influenced by the fact approximately 250 million child labourers worldwide. In 2012 it
that Youth Justice Conferencing in that state considers more was estimated there were as many as 250 000 to 300 000 children

and young people involved in armed conflict, with up to 100 000 of ➥ There are laws under which police can deny children and
these believed to be in Africa. young people use of public space by asking them to leave or
In countries ravaged by war and famine, where family structures removing them: for example Part 3, Division 2 of the Children
have been destroyed, children lack the protection normally afforded (Protection and Parental Responsibility) Act 1997 (NSW).
to them within the family. Very recently in Australia, children sat in ➥ Children and young people are paid less for doing the same
immigration detention centres, having broken no laws, as a result of work as adults on junior rates of pay.
the previous federal government’s punitive laws relating to asylum ➥ It is argued that the criminal age of responsibility of 10 years is
seekers. In other countries minors are still being executed for the too low.
crimes they have committed.
corporal punishment the public space areas set aside
physical punishment of people, in which members of the
Australia’s obligations under the Convention especially of children, by hitting community can associate and
them assemble
on the Rights of the Child
As discussed earlier in this chapter, the Committee on the Rights
of the Child examines the reports of parties to CROC and their Refer to Chapter 9 on the Cambridge GO website
compliance with their obligations under it. The committee can for information relating to child executions.
report and publish adverse findings on countries that have failed
to enforce the rights of its children. States can choose to ignore or
comply with such findings.
Australia has been a strong supporter of CROC from the very
Research 9.4
outset, and has an extensive body of federal and state law in place Research an international human rights issue regarding
designed to protect and promote the welfare of children and young children and young people. Prepare a fact sheet outlining the
people. At the same time, there are still areas where Australia can issue. Issues could include child slavery, the use of children
do better. as soldiers in conflict or forced child labour. Use the Amnesty
The Joint Standing Committee on Treaties was established to website (refer to www.cambridge.edu.au/prelegal3weblinks
for link) and that website’s search function to get started.
inquire into and report on matters arising from treaties, proposed
treaty actions, any questions relating to a treaty referred to it
by either house of parliament or a minister, and other matters
referred to it by the Minister for Foreign Affairs. For example, in 9.5 Conclusion
1998 its Report 17 looked at domestic ramifications of ratification;
federal, state and territory progress in complying with CROC; the The rights of children have come a long way. Australian legislation
adequacy of programs and services for children’s health, education has established processes and institutions to recognise and protect
and welfare; the adequacy of legislation in addressing the needs the important role that children and young people play in our
of children; and further action required. Nonetheless, some have society. It is accepted that these individuals have special needs
argued that the development of a process for scrutiny of draft because of their age, and that their physical, intellectual, emotional
legislation for compliance with treaty principles should be a and social development depends on legal and social mechanisms
high priority. to allow them to flourish.
Other deficiencies in Australian law regarding CROC include: There is still cause for great concern about the exploitation and
➥ The defence of ‘lawful correction’ is still available in all states abuse of children internationally. The force of international law
and territories to parents who use corporal punishment on relies on the domestic measures taken to implement the rights
their children, except in NSW, where it has been limited by contained in treaties such as CROC, and the pressure brought to
legislation prohibiting force to the head or neck, and force bear by the parties, not only by the treaty-based human rights
causing harm ‘likely to last for more than a short period’. committees.

PART III
Figure 9.9 Many products sold throughout the world are still made using forced child labour.

Chapter summary
➔ Historically, children had no legal rights. This began to change ➔ The United Nations Committee on the Rights of the Child
gradually in the 19th century, with the introduction of free oversees the implementation of the Convention on the Rights
compulsory education and laws limiting children’s labour. of the Child.
➔ The Convention on the Rights of the Child was an important ➔ The NSW Commission for Children and Young People is an
development in promoting the rights of children and young independent body that conducts research related to children
people. It is the most signed of all international treaties. and young people. It also conducts ‘working with children’
➔ The law generally defines a child as a person under the age of checks.
16, and a young person as one aged 16 to 18. ➔ The Children’s Court has a dual role with respect to children
➔ The status and rights of children under the law are contained and young people. It hears criminal matters relating to young
mainly in legislation in the areas of work, education, offenders as well as care applications for children and young
discrimination, medical treatment, and contracts. people considered to be at risk of harm.
➔ All states in Australia have enacted care and protection ➔ The Department of Community Services (DOCS) investigates
legislation over the last 30 years. reports of children considered at risk of harm.
➔ Children and young people are given special consideration in ➔ Non-legal mechanisms for protecting the rights of children
respect to criminal law, which takes into account the age of the and young people include counselling services and other
offender at the time of the offence. community organisations.
➔ The Young Offenders Act 1997 (NSW) provides diversionary
measures for young offenders who have committed summary
offences and some indictable offences.
1 Which of the following is a feature of doli incapax in NSW? 3 Which of the following is not a reason for the law to treat
a Children and young people are responsible for their crimes children and young people differently?
from the age of 14. a to prevent them from being exploited
b There are certain crimes for which children and young b to protect them from the consequences of making
people are not responsible. uninformed decisions
c Children and young people under the age of 10 are not c to give them the best chance of finding appropriate
responsible for their crimes. employment
d People with mental disabilities are not responsible for d to protect others from being disadvantaged by dealing
their crimes. with a person who is a minor
2 Which of the following is the best definition for ‘young person’?
a a person under the age of 16
b a person between the ages of 12 and 16
c a person aged between 16 and 18
d a person aged between 18 and 25

PART III
4 Which of the following statements best describes Australia’s 5 Which of the following bodies monitors the mandatory

obligations under the Convention on the Rights of the Child screening of applicants for jobs in child care?
(CROC)? a Australian Council of Trade Unions
a Laws must be passed within Australia to implement all of b NSW Department of Family and Community Services
the provisions of CROC.
c NSW Commission for Children and Young People
b Australia can pass whatever laws it chooses to, as it is a
d Committee on the Rights of the Child
sovereign state.
c Australia can pass whatever laws it chooses to, as it is a
sovereign state, but it is obliged to pass laws to implement
the provisions contained in CROC.
d Australia will pass laws recommended by the United
Nations General Assembly.

1 Outline what changed in the treatment of children and young 5 Comment on the extent to which the United Nations can
people by the end of the 19th century. Explain why this regulate the implementation of the Convention on the Rights of
occurred. the Child throughout Australia and the rest of the world.
2 In three paragraphs, define child abuse and explain some of the 6 Outline the roles of the NSW Commission for Children and
issues in relation to it. Young People.
3 Provide examples of contexts where the criminal justice system 7 What challenges might confront Community Services NSW in
treats children and young people differently from adults. performing its role effectively?
4 Explain how the Young Offenders Act 1997 (NSW) is unique and 8 Identify at least two non-legal mechanisms that promote the
outline some of the recent criticisms made of the Act. rights of children and young people.
Topic review
Extended response
Critically evaluate how the legal system responds to the issue of
juvenile justice. Refer to strategies for crime prevention, issues
Marking criteria for the extended response
surrounding arrest and detention, diversionary schemes and court questions can be found on the Cambridge GO
proceedings for young people. website. Refer to these criteria when planning and
writing your responses.

Chapter 10
Women
Chapter objectives
➔ explore legal concepts and terminology with respect ➔ investigate the place of the law in encouraging cooperation
to women and resolving conflict with regard to women and the law
➔ investigate the main features of the Australian and ➔ investigate the role of the law in addressing and responding
international legal systems with respect to women to change with respect to women
➔ analyse the effectiveness of the legal system to deliver ➔ find and use legal information from a range of sources
justice and adequately address issues in society relating ➔ develop the ability to effectively communicate legal
to women information and issues
direct discrimination glass ceiling optional protocol
entered into force indirect discrimination poverty line
feminism state reservation
gender segregation opened for signature sexual harassment

PART III
Chapter 10: Women
Relevant law
Family Law Act 1975 (Cth) Australian Human Rights Commission Act 1986 (Cth), which
replaced the Human Rights and Equal Opportunity Commission
Anti-Discrimination Act 1977 (NSW)
Act 1986 (Cth)
Sex Discrimination Act 1984 (Cth)
Equal Opportunity for Women in the Workplace Act 1999 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth)
Women’s Legal Status Act 1918 (NSW)
Significant cases
O’Callaghan v Loder [1984] EOC 92-023

10.1 Introduction Historical roles and attitudes
For centuries, women have campaigned for change in order to have For many years, the attitude that women are different from men
their voices heard. Throughout history men have held most of the and inferior in significant ways has been reflected in the laws and
political power and owned most of the wealth in most societies. policies of many countries, including Western societies. These
Intended or not, policies and laws have favoured men in all facets of attitudes meant that women had only a short period of paid
society. Gender should not be a factor in determining the worth of employment – if any – until they married and took up the role they
an individual’s work, but women have been discriminated against were destined to fulfill: homemaker. Men almost exclusively held
in many areas and denied equality of opportunity, especially in the all positions of power and owned practically all property. It followed
workplace. that the position of women in society was one of subservience and
powerlessness. Women’s working lives involved domestic duties
10.2 Women and the law such as rearing children, preparing food, sewing and various other
tasks in the home.
This position was strongly influenced by biology. As most women
At both federal and state levels, there is a substantial body of
were always bearing children (no reliable and safe contraception
legislation and policy specifically relating to the rights of women. In
was available), they were left at home, dependent on their male
this unit of study, the changing status of women in Australia today
partners.
will be examined, as well as the legal and non-legal mechanisms for
Views of women’s essential nature extended to various aspects
achieving equality (primarily in the workplace). The unit will also
of social life, and sometimes attempts were made to explain or
include an evaluation of the effectiveness of these responses.
justify these views. Much was written and said by men about
Other issues relevant to the rights of women in Australia today
women, especially in Victorian England, from reasons as to why
will be covered in the HSC course in the unit on family law.
they belong in the home bearing children to analysis of their sexual
desires.
There have been signature times throughout the last 120 years
where women’s restricted roles were more prominently challenged.
The two World Wars saw women, through necessity, take on non-
traditional roles due to the shortage of men on the home front.
This was especially so during the Second World War. Women ran
farms, worked in factories, and generally maintained productivity
at home. Although this work was at times hard and challenging,
it was also liberating for many women, because for the first time
they understood their full potential outside the traditional roles
assigned to them in society. Women also began to question
why many areas of employment were denied to them, and more
importantly, why they did not receive equal pay. In 1943, an
Australian Women’s Conference for Victory in War and Victory in
Peace was held in Sydney. The participants drew up a program of
reforms for the government to incorporate into postwar Australia.
This document, the Australian Women’s Charter, contained 23
objectives such as the establishment of a national network of child
care centres, and equal pay. It is considered a ‘landmark manifesto’
of Australian feminism.
For many women, though, the end of the war meant room
had to be made for the returning soldiers, and they resumed their
Figure 10.1 Historically, women’s role was that of homemaker. domestic roles as wives, mothers and homemakers.

PART III
women still lack pay equity, suffer violence in the home and have
made few inroads into the upper echelons of senior management
in the workplace.
feminism the advocacy of rights for women on the basis of the equality of
men and women; there are many varieties of feminist ideas in political and
Chapter 10: Women

social thought
Review 10.1
1 Describe the social attitudes about women prior to the
20th century and give some reasons why these attitudes
permeated society.
2 Prepare a detailed timeline to outline the historical
development of the roles of women in society.
Progress and challenges for women
Education, training and workforce

participation
A person’s status in society is greatly influenced by opportunities
to acquire skilled employment. Historically, women who wanted
to enter professions had many barriers to overcome some of
which persist today. The formal education that most young girls
received was usually short in duration and assumed a future as
a homemaker.
Figure 10.2 During World War II, women took on roles in factories and on In the 19th century, there seemed no pressing reason for young
farms to help with the war effort.
women to complete their secondary education, let alone go to
The 1960s and 1970s was the next significant period of time when university. Those women who were able to attend university to
women questioned their secondary status to men and why they did study courses such as law and medicine did so in the knowledge
not have the same rights as men. The feminist movement of this that even if they passed their exams, they were not given degrees
time challenged, for example, discrimination in the workplace and and were effectively barred from practising in their chosen field.
liquor licensing laws in some states that said women couldn’t be This did not deter some women, whose thirst for knowledge and a
served in the public bar. Important pieces of legislation such as the chance to use their talents spurred them on anyway.
Family Law Act 1975 (Cth), the AntiDiscrimination Act 1977 (NSW) and Passage of the Women’s Legal Status Act 1918 (NSW) opened the
the Sex Discrimination Act 1984 (Cth) were products of this era. way to recognition of the right to enter professions. Many women
In 1975 the United Nations proclaimed that year to be who had successfully completed their degrees were able to do so,
International Women’s Year to promote issues relating to women and some were elected to parliament in the 1920s.
around the world. Today in Australia there is a significant body The participation rate of young women in education has
of law that protects the rights of women and promotes equality continued to increase significantly over the past 30 years, and in
of opportunity. Having said this, the status of women in society the decade 2001–2010 has increased marginally (see Tables 10.1
continues to be affected by particular issues and concerns, as and 10.2).
C hap ter 10: Women 205

Table 10.1 Education Participation Rate (a)(b), 15–24 years
2001 2002 2003 2004 2005 2006 2007 2008 2009 2010
Males % 56.1 56.1 55.9 55.9 56.2 56.1 56.5 59.7 57.8 58.4
Females % 56.0 57.9 58.5 57.8 58.1 57.5 57.9 58.1 58.3 59.8
(a) Includes persons enrolled in formal or non-formal learning.

(b) Males and females participating in education as proportion of persons aged 15–24 years for each sex.
Table 10.2 Apparent Retention Rate For Full-Time School Students, Year 7/8 to Year 12
2001 2002 2003 2004 2005 2006 2007 2008 2009 2010
Males % 68.1 69.8 70.3 70.4 69.9 69.0 68.8 68.9 70.8 73.2
Females % 79.1 80.7 80.7 81.4 81.0 80.7 80.1 80.5 81.4 83.0
Table 10.3 Apprenticeships and traineeships in-training by occupation group and gender, 2009
Occupation Women Men Total
Managers and administrators 1060 2250 3300
Professionals 1950 2860 4810
Associate professionals 16 190 15 140 31 330
Tradespersons and related workers 22 620 169 840 192 460
Advanced clerical and service workers 4990 1880 6870
Intermediate clerical, sales and service workers 64 710 27 500 92 210
Intermediate production and transport workers 5160 33 410 38 560
Elementary clerical, sales and service workers 12 850 7260 20 110
Labourers and related workers 7330 17 400 24 730
Total 136 850 277 540 414 390
Source: National Centre for Vocational Education Research, 2009
Women enrolled in higher education comprised 55 per cent of and trainees in the Tradespersons and related workers group
enrolments in 2010. However, women have been under-represented were men, whereas most new apprentices and trainees in the
in trade apprenticeships in Australia and are substantially under- Intermediate clerical, sales and service workers were women.
represented in the manual trades in Australia, with the number of
women in manual trades being less than 2 per cent in 2011. This
seems consistent with the level of occupational segregation seen
in NSW and throughout Australia today, especially in the trades.
Occupational segregation will be examined later. With respect to
labour force participation, women have made significant gains over
the past 30 years to 2009, with participation rising from 43.5 per cent
to 58.7 per cent. Across Australia, women still constitute the majority
of part-time and casual workers, and workers in these categories
often lack job security and other benefits available to those in full
time employment, such as parental leave and holiday pay. These
and other issues, such as pay equity and women in leadership roles,
will be discussed later.
Large proportions of all new apprenticeships and traineeships
for the 12 months to June 2009 were in the occupational groups
Intermediate clerical, sales and service workers and Tradespersons Figure 10.3 Women have been, and continue to be, under-represented
and related workers (see Table 10.3). Most of the new apprentices in trade apprenticeships in NSW.

PART III
Review 10.2 Refer to Chapter 10 on the Cambridge GO website
for information relating to:
1 Examine Table 10.3 above and outline the occupation
groups in which women were well represented and ££ marriage
under-represented in 2009. ££ the right to own property
££ the ability to sue and enter contracts
Chapter 10: Women

2 Give some possible reasons for women’s under-
representation in some areas of apprenticeships and ££ the right to vote
trainee commencements. ££ jury service.
Social security Women from non-English-speaking

In the early 20th century, the provision of welfare payments backgrounds
to people who were unemployed or otherwise experiencing
Migrant women throughout Australia experience the same
difficulty earning an income was not seen as a responsibility
barriers as other women, but the problems are compounded by
of the federal government. This changed with the Great
a language barrier, especially in the workplace. There is a high
Depression in the early 1930s, when it became apparent that at
concentration of migrant women in blue-collar jobs which are not
times people may be unemployed due to circumstances beyond
known for flexible working hours. Generally, migrant women have
their control.
less confidence in negotiating job-sharing or part-time options
Unemployment benefits today are available to women as
with their employers. Moreover, they are often less able to afford
well as men. There are also family allowance payments to assist
to work only part-time.
with the costs of raising children, and low-income families
Migrant women have been employed in factories in
may also receive rental assistance to help with private rental
substandard conditions throughout Australia. Because these
accommodation.
women have little English, they have not always been aware
All people who have carers’ responsibilities, for example for
of their rights. Some of these workplaces are characterised by
a disabled family member, can receive Carer Payment benefits
unsafe conditions, onerous shift work, bullying, inadequate
because their responsibilities affect their ability to earn an
toilet and rest room facilities, little attempt to have multilingual
income. The majority of carers are women. Most recipients of
health and safety signs, and pay that is lower than legal minimum
parenting payments are also women. A person, regardless of
marital status, can qualify for parenting payments if he or she has
primary responsibility for one or more young children and meets
certain income tests. Separated parents can receive financial
assistance with the cost of caring for their children, through the
Child Support Agency.
Studies have shown that over the long term, women fare
far worse financially than men after a divorce. In addition,
approximately 90 per cent of lone-parent families are headed
by women. The responsibilities of child care present significant
barriers to entering the workforce. While financial support from
the government is therefore vital, most people who are dependent
on welfare as their main source of income nevertheless live on or
below the poverty line.
poverty line the minimum level of income needed to meet basic

necessities and below which a household is defined as poor; the poverty
line is different in different countries
Figure 10.4 Migrant factory worker

wage. The trend towards contracting with labour hire companies
for casual workers has exacerbated the problems, as companies
Review 10.3
thereby avoid legal obligations that they would otherwise have 1 Explain some of the main issues in the workplace facing
to employees. women from non-English speaking backgrounds.
A large number of migrant women also carry out home- 2 Outline why women from non-English speaking
based work. While this work offers flexible hours and there is no backgrounds are more likely to be exploited in the
need to pay for child care, evidence suggests that many women workplace.
work long hours in poor conditions and are paid a pittance on a
piecework basis. In 1992, the federal government Inquiry into Equal
Opportunity and Equal Status for Women in Australia reported on
this situation in its publication Half Way to Equal. As documented in
Research 10.1
the submission of the Asian Women at Work Action Group to the Asian Women at Work (refer to www.cambridge.edu.
2007 National Industrial Relations Inquiry, and a July 2008 report au/prelegal3weblinks for a link to their website) has
by the Australian Human Rights Commission, the problems are still a membership of over 1300 migrant women workers.
very much in evidence. The group works to educate and empower Asian women
It has also been noted that immigrant women have an workers in Australia.
unemployment rate higher than Australian-born people, and for 1 Use a search engine to find websites that discuss the
those from non-English speaking backgrounds, it is even higher activities of Asian Women at Work.
than for immigrants fluent in English. 2 List the specific difficulties that migrant women face
Even those migrant women with a high level of educational at work.
qualifications usually cannot work in Australia without undertaking 3 What recommendations does the group make for
expensive bridging courses, sometimes on top of a recognised tackling these difficulties?
language course. As a result, many of these women must take jobs 4 What agents would be involved in these efforts and
that pay far less than the jobs they would have had in their original what are their roles?
countries, because their qualifications are not recognised.
Figure 10.5 Today, compared to non-Indigenous women, Indigenous women fall behind on most indicators of health and wellbeing.

PART III
Indigenous women
Review 10.4
The impact of colonisation on Indigenous women was devastating.
££ Outline some of the health and wellbeing issues
In addition to disease and massacre, it is generally accepted that
facing Indigenous women today.
there were many examples of young girls and women being
££ Assess why some of the attempts to resolve these issues
victims of sexual assaults by members of the non-Indigenous
have failed. Suggest possible reasons for this.
Chapter 10: Women

community. For the children of the Stolen Generation and their
families, the consequences of the practice of taking children from
their parents were great spiritual, physical and emotional suffering.
Today, compared to non-Indigenous women, Aboriginal women 10.3 Mechanisms for
fall behind on most indicators of health and wellbeing. The life
expectancy of Indigenous women is 65 years compared to 83 years
achieving justice for women
for non-Indigenous women.
Problems confronting women today include political and economic
Indigenous women are twice as likely to suffer from cervical
inequality; unequal access to education, training and development;
cancer and eight times more likely to die from it than non-
difficulty in gaining promotion; unequal pay; and sexual harassment.
Indigenous women. Diabetes resulting from dietary and lifestyle
issues is a major problem. Indigenous women between the ages of
35 and 64 are 33 times more likely to die from diabetes than non-
Legal responses
Indigenous women.
Their labour force participation rate was 51 per cent, compared International law
to 72 per cent participation for non-Indigenous women in 2009 The main treaty that addresses discrimination against women around
(see Table 10.4). With respect to educational indicators, Indigenous the world is the United Nations Convention on the Elimination of All
women fare significantly worse than non-Indigenous women Forms of Discrimination Against Women (CEDAW). It was opened for
and the general non-Indigenous population on retention rates signature in 1979 and entered into force in 1981.
to Years 11 and 12, post-school and tertiary qualifications. There The preamble of CEDAW acknowledges that the Charter of the
has been a slight improvement in some of these areas, but thus United Nations and the Universal Declaration of Human Rights affirm
far, many government attempts to overcome these entrenched that all human beings are born free and are equal in dignity and
disadvantages have failed. rights. It also acknowledges that under human rights treaties, states
Participation rate have responsibilities to ‘ensure the equal rights of men and women
90%
to enjoy all economic, social, cultural, civil and political rights’.
80% It affirms that, despite these various instruments, discrimination
70%
against women continues to exist around the world. The treaty
states that this discrimination:
60%
is an obstacle to the growth of the prosperity of society and
50% the family and makes more difficult the full development of the
potentialities of women in the service of their countries and of
40% humanity.
30%
opened for signature (of a entered into force (of a
20% treaty) having negotiations treaty) having become binding
concluded and ready for parties’ upon those states which have
10% signatures. Many treaties, consented to be bound by it
especially those convened by the
0% UN, will be open for signature
Indigenous Non-Indigenous Indigenous Non-Indigenous only until a certain date; others,
males males females females such as the Geneva Conventions, state a politically independent
Figure 10.6 Comparison of estimated Indigenous and non-Indigenous are open for signature indefinitely country
labour force participation rates (15–64 years of age) as at 2009

The Convention contains 30 articles. Articles 1–16 set out Domestic law
the main rights of women. Articles 17–22 outline the powers
Legislation protecting women from discrimination exists at both
and responsibilities of the Committee on the Elimination of
state and federal levels in Australia.
Discrimination against Women, the body set up to monitor the
Discrimination means treating someone unfairly because of
implementation of the treaty. Article 23 sets out the provisions
some characteristic. Discrimination on the basis of sex may be
governing the formal operation of the treaty, for example the time
considered to include discrimination because of someone’s marital
frame for its being open for signature and entering into force, and
status or because she is pregnant or likely to become pregnant.
how disputes about interpretation are to be resolved.
There are two types of sex discrimination: direct discrimination
As a signatory country, Australia has an obligation to ensure that
and indirect discrimination. Direct discrimination is a more
its laws and policies protect the rights of all women and promote
blatant form and is more easily identified: for example, where male
equality of opportunity.
employees are offered first choice for extra overtime ahead of
female employees.
Refer to Chapter 10 on the Cambridge GO website for: Indirect discrimination is usually harder to detect. It occurs
when there is a procedure, rule or practice that on the face of it is
££ information relating to the role of the United
the same for everyone and not discriminatory, but when carried
Nations in protecting the rights of women
out, actually discriminates against a particular group of people.
££ an extract from the United Nations Convention
Indirect discrimination can occur even when there is no intention to
on the Elimination of All Forms of Discrimination
discriminate. An example provided by the Australian Human Rights
Against Women
Commission is a situation where a manager offers a wage increase
Figure 10.7 More women than men interrupt their working lives for a period of time when they have children.

PART III
to all employees who have worked for the company for a number the workplace. The person being harassed may think that her (or
of years without interruption. On the face of it this may not seem his) advancement, or indeed continued employment, depends
discriminatory; however, given the fact that many more women on accepting such sexual overtures. This can make it difficult to
than men interrupt their working lives for a period of time when establish a case for the harassment, even if the person decides
they have children, this policy has the effect of treating women less later to make a complaint. In O’Callaghan v Loder [1984] EOC 92-
favourably than men. 023, Loder, who was the Commissioner for Main Roads, made
Chapter 10: Women

sexual advances to an employee, O’Callaghan. While the NSW
direct discrimination a practice indirect discrimination Equal Opportunity Tribunal recognised the power imbalance
or policy of treating a person or practices or policies that appear
and was sympathetic to O’Callaghan, it nevertheless held that
group of people less favourably to be neutral or fair because
than another person or group in they treat everyone in the same there is also an onus on the employee to make it known to the
the same position, on the basis way, but which adversely affect a employer if his or her conduct is unwelcome. The tribunal was not
of sex, race, national or ethnic higher proportion of people from
origin, age, sexuality or other one particular group
satisfied that O’Callaghan had made it clear to Loder that she was
characteristic offended by his behaviour; therefore, if Loder was not aware that
his conduct amounted to sexual harassment, he did not breach
Sex Discrimination Act 1984 (Cth) the law.

A person who has a complaint under the Sex Discrimination Act
Some but not all provisions of the Convention on the Elimination of
can take action through the Australian Human Rights Commission,
All Forms of Discrimination Against Women were implemented in
set up under the Australian Human Rights Commission Act 1986
Australian law through the Sex Discrimination Act 1984 (Cth).
(Cth) and formerly called the Human Rights and Equal Opportunity
The Act aims to eliminate discrimination on the basis of
Commission (HREOC). The Commission will investigate the
sex, marital status or pregnancy in a number of key areas such
complaint and organise a conciliation conference to try to resolve
as employment, education, the provision of goods, facilities
the complaint with the other party. If conciliation fails, the
and services, accommodation and housing, insurance and
complainant may make an application to the Federal Magistrates
superannuation. The Act explicitly included sexual harassment as
Court or Federal Court to have the complaint heard.
a form of discrimination in employment and education and makes
this behaviour illegal. sexual harassment any unwelcome sexual behaviour, such as
The other main aim of the Act is to promote community respect sexual advances, suggestive comments, unwanted touching, written
communication or gestures, especially in the workplace
for the principle of the equality of men and women.
The Act makes it illegal to:
££ discriminate against someone on the basis of sex, marital status
or pregnancy
££ dismiss someone from her or his job on the basis of the person’s
family responsibilities
££ the Australian Human Rights Commission
££ sexually harass someone.
££ a range of sex discrimination cases from 2006
Sexual harassment is any unwelcome or unwanted sexual behaviour
to 2007.
that makes a person feel offended or humiliated and where that
reaction is reasonable in the circumstances. It has nothing to do with
mutual attraction or friendship. It occurs when a woman is subject
Anti-Discrimination Act 1977 (NSW)
to unwelcome behaviour from others because of her gender. It can
include behaviour such as unwanted sexual advances, touching The broad-based Anti-Discrimination Act 1977 (NSW) makes
without consent, or making jokes or suggestive comments that are unlawful discrimination on the basis of sex, race, marital status,
gender-oriented. disability, responsibility as a carer, homosexuality, and age. It
Often there is a power imbalance between the harasser and also establishes the Anti-Discrimination Board, which is part
the harassed; usually the harasser occupies a higher position at of the NSW Attorney General’s Department, to oversee the

implementation of the Act. The Equal Opportunity Division of Equal Opportunity for Women in the Workplace Act
the NSW Administrative Decisions Tribunal hears complaints of
1999 (Cth)
discrimination.
Women who feel they have been discriminated against The principles of equal opportunity in the workplace reflect the
can make a complaint to the Anti-Discrimination Board, which right to equitable access to jobs, career paths, training and staff
will investigate the complaint and try to help the parties to development and equitable conditions of employment.
reach a solution. If the board cannot resolve a complaint, In essence, equal opportunity is about:
women can take their case to the Equal Opportunity Division ££ treating people with dignity and respect
of the Administrative Decisions Tribunal, established under the ££ unbiased management decisions
Administrative Decisions Tribunal Act 1997 (NSW), which can make ££ ensuring equal access in all areas of employment including
a decision like a court. recruitment, training and development, promotion, transfer,
Complainants generally must make their complaint within access to information, supervision and management of staff
12 months of the alleged incident and it must be in writing. and conditions of employment, with all selection based on
Fair Work Australia is another authority that addresses merit (the best person for the job)
discrimination in the workplace affecting all workers, including ££ recognition and respect for the social and cultural backgrounds
women. of staff and customers.

In other words, diversity is valued. The Equal Opportunity for
Women in the Workplace Act requires certain organisations to
Review 10.5 establish workplace programs to remove the barriers to women in
1 Describe the difference between direct and indirect the workplace, both when they enter and as they advance. Under
discrimination. the Act, any organisation that has 100 or more employees and that
2 Explain why indirect discrimination is difficult to is a higher education institution, a private sector company, a non-
establish and then prove. profit or community organisation, a private school or a union must
3 Outline the objectives of the Sex Discrimination Act develop and implement such a workplace program.
1984 (Cth). The Act’s objectives reflect the idea that in a just and fair world
there should be an equitable spread of both sexes in management
4 Define what is meant by ‘sexual harassment’. What
needs to occur before a complaint of sexual harassment and support jobs across all industries. At present this is not case. It
can be initiated? is also hoped that equal opportunity will provide much-needed role
models in managerial positions so that younger women will aspire to
these positions. As well, no woman can be considered for a particular
Table 10.4 Sex Discrimination Act 1984 (Cth) – complaints
job for which she is not suitably qualified. The Act is not about putting
received by ground, 2010–11
women in jobs ahead of men: s 2A(a) clearly states that one of its
Sex Discrimination Act Total % objects is ‘to promote the principle that employment for women
Sex discrimination 449 45 should be dealt with on the basis of merit’. This means that matters
such as selection and promotion of employees should be based solely
Marital status 30 3
on their qualifications, experience and ability to do the job.
Pregnancy 170 17
The Act also establishes the Equal Opportunity for Women in the
Sexual harassment 186 19 Workplace Agency to oversee the implementation of the Act.
Parental status/family responsibility 39 4
Victimisation 118 12
Government agencies
Aids, permits, instructs 3 – There are agencies at both federal and state levels that provide
policy advice on women’s issues. The federal Office for Women
Total 995 100
(OfW) is part of the Department of Families, Housing, Community
Source: Australian Human Rights Commission, Annual Report 2010–2011 Services and Indigenous Affairs. Its primary role is to provide policy

PART III
advice to the Minister for the Status of Women, and to ensure
that government and Cabinet decisions about legislation, policy Research 10.2
and budgetary matters are made with a view to their effect on
1 Go to the Lawlink website (refer to www.cambridge.
women. The OfW also administers programs to combat issues such
edu.au/prelegal3weblinks for link) and research some
as domestic violence and sexual assault, represents the Australian
decisions made by the Equal Opportunity Division
government at national and international forums on women’s
Chapter 10: Women

of the Administrative Decisions Tribunal in 2012.
issues, and has primary responsibility within the government for
2 Go to the publications section of the Anti-Discrimination
Australia’s obligations under CEDAW.
Board website (refer to www.cambridge.edu.au/
At state level in NSW, the Office for Women’s Policy is part of the
prelegal3weblinks for link), click on ‘publications’ and
Policy Development Division of the NSW Premier’s Department.
then ‘fact sheets’. Select a fact sheet that is relevant to
It advises the state government and works with other government
women and summarise women’s rights in this area.
agencies and non-government organisations to develop programs
and policies with positive consequences for women. The Office also
has responsibility for a Violence Prevention Coordination Unit, to
lead and manage government policy relating to the prevention of Refer to Chapter 10 on the Cambridge GO website
domestic and family violence. It funds the Women’s Information for information relating to the Equal Opportunity
and Referral Service, a confidential telephone contact number for for Women Agency.
information about organisations and services for women in NSW.
Figure 10.8 Some companies provide mentoring for high-achieving university graduates.

A fundamental challenge still facing the ACTU itself is the fact that
Review 10.6 women are still under-represented in the executive levels of the
1 Explain the role of the Office for Women and the Office major unions in Australia compared to their level of union
for Women’s Policy. membership.
2 List and discuss some issues that might be raised by Most recently, the ACTU has campaigned for paid maternity
these offices in the development of law and policy leave, which it believes is a fundamental human right and a
relating to: necessary measure to address the discrimination and disadvantage
££ requirements for businesses regarding conditions suffered by women who choose to be parents. At least 157 countries
of employment have some form of paid leave, and of the 30 member states of the
££ budget provisions regarding the funding of
health care
££ programs in which business leaders provide
mentoring for high-achieving university graduates.
Figure 10.9 The ACTU has in recent times campaigned strongly for better
rights for women in the workplace.
Non-legal responses
Legal mechanisms have been put in place to overcome the historical
and cultural barriers that women still face. There are also some very
effective informal measures that keep the issues of women on the
political agenda.
Role of trade unions

In the early part of the 20th century, unions were against women’s
full participation in the workplace. As women were paid less than
men, unions did not want a situation where employers were able to
exploit this cheap labour and force men out of jobs.
Today unions are strong advocates for the rights of women in
the workplace. The Australian Council of Trade Unions (ACTU) lists
the following achievements to which the union movement has
contributed:
££ the principle of equal pay for equal work
££ parental leave for women
££ improved child care
££ universal superannuation
££ anti-discrimination and affirmative action legislation. Figure 10.10 Workers protest against industrial relations reforms in Melbourne.

PART III
Mean hours of housework
per week by gender
Women
Chapter 10: Women

16.9 hrs
Men
12.7 hrs
Figure 10.11 Statistics show that women continue to do more housework

than men. (Source: Men Engaged in Shared Care Survey 2010, The Social Research
Centre and the Institute for Social Science Research, The University of Queensland)
Organization for Economic Co-operation and Development (OECD), Lobby groups

only Australia and the United States did not. Without paid maternity
There are non-government organisations (NGOs) throughout
leave, women face a lack of job security and income loss if they take
Australia that promote issues important to women. A well-known
time off after bearing a child. Paid maternity leave gives mothers
NGO is the Women’s Electoral Lobby (WEL), founded in 1972. WEL
time to bond with and breastfeed their babies without financial
is dedicated to ‘creating a society where women’s participation
considerations necessitating an early return to work.
and potential are unrestricted, acknowledged and respected, and
In 2011, the federal government introduced 18 weeks’ paid
where women and men share equally in society’s responsibilities
parental for working women. The scheme extends paid leave to
and rewards’.
either parent of a newborn child if he or she is the primary carer
WEL is a self-funded, non-profit organisation, not affiliated with
and earns less than $150 000 per year. The decision was welcomed
any political party, that lobbies governments, publishes research
by parents, the union movement, Sex Discrimination Commissioner
papers, participates in public debate, participates in legal cases
Elizabeth Broderick and commentators who have argued that law
where women’s human rights are at issue, and conducts campaigns
and policies making it easier for fathers to take a greater role in child
to raise awareness of these issues.
care are necessary in order for women truly to have choices.
Research 10.3
1 Visit the web page titled ‘engaging with women’s organisations’ on the Office for Women website (refer to www.cambridge.edu.
au/prelegal3weblinks for link) and research two national women’s organisations. Outline the main issues with which they are
concerned, and their objectives.
2 Visit the WEL homepage (refer to www.cambridge.edu.au/prelegal3weblinks for link) and research two policy positions of WEL.
Write a one-page report on what you discover.

10.4 Responsiveness of the Upon ratification, the Australian government entered a
reservation with respect to paid maternity leave, which it has now
legal system to efforts to complied with. It also entered a reservation stating that it ‘does
achieve justice for women not accept the application of the Convention in so far as it would
require alteration of Defence Force policy which excludes women
As we have seen in previous chapters, the law is constantly from combat duties’. Women in the Australian Defence Force now
evolving through legislation and the courts. It must reflect serve in combat areas but structural and cultural discrimination
the changing values of the society it is meant to regulate. Over is still very much evident in the defence forces. The Treatment of
the past 30 years, women in Australia have seen landmark Women in the Australian Defence Force review, released in August
legislation passed addressing the issues they face, especially in 2012, revealed that one in four women in the defence forces had
the workplace. experienced some form of sexual harassment. In may be some
In spite of the many improvements that women have time before such entrenched cultural attitudes towards women
fought for and achieved, there are still many areas that require are overcome. Due in large part to states reservations, there are
constant vigilance and persistence in order for change to still many areas where women experience discrimination and
occur. It is in this light that the legislation and mechanisms for violations of their human rights. It is believed that there are at
achieving justice for women will be evaluated. We will look at the least four million women and girls sold into sex slavery each
responsiveness of the law in relation to Australia’s international year and that approximately a quarter of all women experience
obligations under CEDAW, discrimination, equality of opportunity domestic violence. It is estimated that up to 130 million women
(especially in the workplace), and issues emanating from these are victims of genital mutilation. Literacy is still a major cause of
such as pay equity, gender segregation, sexual harassment and concern: two-thirds of all adults who are illiterate are women.
child care. This is a consequence of poor education opportunities for girls
compared to boys, especially in developing countries. Women
Effectiveness of international are also four times more likely to be infected with HIV/AIDS than
responses men, and up to 130 million women die from this disease each year.
Education about the spread of AIDS and programs that address
specific health issues relating to women are not adequate in many
Women around the world are exploited and abused as a result of
poorer countries.
their unequal position under the laws of their countries. The UN
At the same time, 179 countries have ratified CEDAW and have
Convention on the Elimination of All Forms of Discrimination Against
passed laws consistent with the treaty. Millions more girls now
Women (CEDAW) was a significant step forward in highlighting
receive a primary school education and millions of women have
the issues and getting states to commit to ending discrimination
been able to take out loans or now have the right to own or inherit
against women.
property in their own right. The issues listed above are now well
gender segregation the separation of people according to their gender established on the global agenda, whereas prior to CEDAW they
were isolated issues in different countries, the extent of which was
States can choose to comply with or ignore their international not effectively monitored.
obligations and usually act out of economic or political self-interest An optional protocol has been approved by the UN General
in determining their course of action. CEDAW is one of the treaties Assembly to provide an additional enforcement mechanism,
most ignored by states. Those states that have signed the treaty as exists with most other human rights instruments. This
have included many reservations, which allow them to refuse to would allow individuals and groups to be able to make a direct
comply with certain parts of the treaty. Hence, the Committee on the complaint to the CEDAW committee about alleged breaches of
Elimination of Discrimination Against Women is not able to declare the treaty. The optional protocol does not add extra rights. Rather,
a state to be in violation of the treaty where it has entered certain it tries to improve the enforceability of the existing instrument.
reservations. The committee can only continue to encourage states to The Australian government signed the optional protocol in
review their current reservations. 2008, thus sending a message to the international community

PART III
Chapter 10: Women
Figure 10.12 The 55th session of the Commission on the Status of Women entitled ‘Women 2000: Gender Equality, Development and Peace for the Twenty-
first Century’, at the UN Headquarters in New York.
about its commitment to the treaty. Australia has a good record The Australian Human Rights Commission argued that
with respect to laws and policies for women, compared to other Australia’s signing on to the optional protocol would provide the
countries in the world. The Sex Discrimination Act 1984 (Cth) is one will to correct such deficiencies, as individuals then would be able
such mechanism. to complain directly to the committee, putting added pressure on
Critical assessments have suggested that there are gaps in our the Australian government.
laws with respect to women. For example, the Australian Human
Rights Commission 1999 report Pregnant and Productive discussed reservation a statement made optional protocol an addendum
the idea that it is a right, not a privilege, to work while pregnant, by a state when signing or to a treaty, agreed to by the
ratifying a treaty, that allows it parties at a later date, to create
and pointed out gaps in the coverage of federal anti-discrimination to exclude certain provisions or enforcement provisions or to
legislation regarding that issue. Other critics have noted that the modify them as they apply to the interpret the treaty in light of later
state’s own practice developments
Sex Discrimination Act fails to take into account the fact that gender
may combine with other characteristics of a person (e.g. race,
disability or sexuality), resulting in different forms of disadvantage.
Effectiveness of domestic responses
In other words, it is not the case that discrimination is the same for
all women, regardless of their individual attributes. Moreover, its
reliance on complaints by individuals or groups directly affected,
Anti-discrimination legislation
rather than addressing discrimination at the systemic level, makes State and federal anti-discrimination Acts provide far-reaching
enforcement problematic (see Beth Gaze, ‘The Sex Discrimination protection to women who experience any form of discrimination in
Act after Twenty Years: Achievements, Disappointments, the workplace. There are few restrictions placed on women as to what
Disillusionment and Alternatives’, University of New South Wales Law work they do. This is to some extent due to discrimination law. Women
Journal, 2004, p. 53). today have moved into the workforce in unprecedented numbers.

The effectiveness of the legislation may, however, still be limited five women and one in 20 men experience sexual harassment
by a lack of knowledge of rights or reluctance to exercise those in the workplace. In 2009–10, its data showed that 21 per cent
rights. This can be for many reasons, such as fear of dismissal, failure of all complaints to the Australian Human Rights Commission
to recognise that there is a problem, or being unaware that such were under the Sex Discrimination Act, and that 88 per cent of
rights exist in the first place. those complaints related to sex discrimination in the workplace.
Most of the blatant forms of discrimination have disappeared The opportunity to engage in such behaviour has increased as the
due to complaints made against employers and the educative wide use of new technologies such as mobile phones, email and social
effect of the laws. Discrimination today is usually more subtle and networking websites creates new spaces in which sexual harassment
covert. Generally these types of discrimination involve systematic may occur. Conversely, the digital footprints these avenues leave
practices of disadvantage. If an employer has such a practice or also enables evidence to be gathered. The Australian Human
policy that does disadvantage women, it is not illegal if the court Rights Commission estimates that over two-thirds of those who made
believes it to be ‘reasonable’ (s 7B of the Act). This may go part of a complaint left their place of employment. Although unmeasured,
the way towards explaining the ‘glass ceiling’ that women have the economic cost to employers and the community as a result of
described as an impediment to their career progress. this staff turnover is a poor use of human resources. It also reflects
a residual lack of respect for female colleagues in the workplace, as
glass ceiling an invisible barrier that prevents women from rising in an
most of the complainants are women (see media clip below).
organisation through promotion; on the face of it, a company may not directly
discriminate, but subtle practices may still discourage women or prevent them In spite of some of the criticisms outlined above, the Sex
from being promoted to more responsible and better paid positions Discrimination Act has continued to evolve. In 1992, the Act was
amended to ban discrimination on the basis of the occupation or
There are other factors that limit the effectiveness of the identity of one’s husband or wife. The idea of ‘reasonableness’ as a
legislation in redressing grievances. Even if a complainant wins the defence for direct discrimination on the grounds of pregnancy was
case and is awarded damages, a woman may have to return to a also removed.
hostile work environment. On top of this, the cost – economic and In indirect discrimination cases, the onus of proof is on employers
emotional – may be extensive. to provide a defence as to why systems and policies alleged to
Proving that an employer or other person has discriminated be indirectly discriminatory are reasonable and necessary. The
against a complainant can be difficult, and most of the time not definition of ‘sexual harassment’ has also been strengthened, with
possible. At the same time, the Sex Discrimination Act has enabled the complainant only having to show that she or he ‘reasonably’ felt
some important cases to be won. In 1994, a woman won $160 000 offended, humiliated or intimidated.
after losing her career and a position as a partner in a law firm. This In 1994, amendments extended the scope of protection under
was the largest award under the Act at the time, but many would the Act. One of these measures was to simplify the definition of
argue that this is a small amount for a career. A study completed in ‘indirect discrimination’. The number of exemptions under the Act,
2012 by Paula McDonald at the Business School at the Queensland such as those relating to superannuation and insurance, has also
University of Technology and Sara Charlesworth of the University of recently been reduced.
South Australia, found that half of all financial settlements for sexual It should be noted that the difference between the anti-
harassment fell below $7000. These amounts are significantly lower discrimination and equal opportunity laws is that discrimination
than what might be achieved through the judicial system. Redress legislation is complaint-based, whereas the Equal Opportunity for
through the courts, however, is out of reach for most women due Women in the Workplace Act 1999 (Cth) is based on the introduction
to time and cost. of programs to eliminate discrimination at a systemic level. This Act
The provisions of the Sex Discrimination Act regarding sexual has failed to significantly improve the representation of women in
harassment have been effective in that the only requirement is senior management and boards of Australia’s top 200 companies.
to show that the unacceptable behaviour actually took place. While there have been some successes in introduction of equality
Complaints of sexual harassment remain high, but this could of opportunity programs in some workplaces, it seems that
also be attributed to women’s greater awareness of their rights. structural and cultural impediments to equality of opportunity for
The Australian Human Rights Commission estimates that one in women in the workplace continue to prove difficult to overcome.

PART III
Media Clip
Payouts in sexual harassment settlements hardly worth the trouble
Adele Horen
Sydney Morning Herald, 16 April 2012
Chapter 10: Women

DESPITE a reported payout of $850,000 to Kristy Fraser-Kirk in Of the 45 male complainants, 31 alleged the perpetrator was
the notorious David Jones case, half of all financial settlements a male. Ten of 238 female complainants alleged harassment
for sexual harassment fall below $7000, a study shows. by a woman. Overwhelmingly organisations and alleged
Some complainants receive no more than their legal perpetrators disputed the facts or interpretation, with only 13 of
entitlements to redundancy, termination and leave pay, it says. 199 organisations and seven of 114 individuals fully accepting
In almost 38 per cent of settlements, victims receive less than the complainant’s version.
$5000 and in only 6 per cent is the payout $50,000 or more. The report shows an inhospitable workplace environment
‘Making a formal complaint of sexual harassment is a painful that tolerated harassment was reported by one-quarter of the
and onerous process, and given these figures, the motivation complainants.
can’t be money,’ said Paula McDonald, the report’s co-author ‘There’s sometimes a view in the community that sexual
and an associate professor in the business school at the harassment is some sort of relational problem between one
Queensland University of Technology. The study, co-written person and another in the workplace,’ Dr McDonald said. ‘But
by Sara Charlesworth of the University of South Australia, also the way an organisation “does” gender – its policies, practices
reveals that where men complain of sexual harassment, the and culture – creates an environment that makes sexual
alleged perpetrator is usually another man. harassment more or less likely.’
The study examines all formal complaints for workplace Despite a recent high-profile harassment case against the
sexual harassment made to every state and territory anti- Commonwealth Bank and two senior managers that ended in
discrimination commission and the federal body, the Australian a scathing denunciation of the complainant, Vivienne Dye, by a
Human Rights Commission, over six months in 2009. Federal Court judge who found her complaints ‘untrue’ and her
Of the 284 complaints, 266 were accepted by the commission motivation a ‘venomous desire for revenge,’ Dr McDonald said
and settlements were reached in just over half. But not all the under-reporting of sexual harassment was a bigger problem
settlements involved money. than vexatious complaints.
Financial compensation was paid in just under three- ‘Lots of women experience sexual harassment sometimes for
quarters of cases, with an apology, statement of regret, or years and say nothing to anyone,’ she said.
acknowledgement of the harassment the next most common A telephone survey by the Australian Human Rights
outcome. Commission in 2008 of 2005 adults found only 16 per cent
In 10 per cent of cases the perpetrator resigned or was of those sexually harassed at work in the previous five years
dismissed. Sixty per cent of complainants had resigned or were reported it or made a complaint.
dismissed or made redundant. The study found the most common form of harassment
More than one-third of settlements involved organisations was sexually suggestive comments or jokes (74 per cent) but
promising to institute sexual harassment training programs or requests for sex or other sexual acts constituted 21 per cent,
changes to policy and practice. But it was unclear whether the unwelcome touching 37 per cent, and inappropriate physical
promises were kept because the commissions had no power to contact 29 per cent.
enforce the undertakings.

Figure 10.13 Kristy Fraser-Kirk’s reported $850 000 settlement in her sexual harassement case against former employer David Jones is not representative of
the amounts typically awarded to successful complainants.
can never be changed. Hence improvement of women’s rights

Review 10.7 and status in society will be generational, and the importance of
educative programs cannot be overstated.
1 Explain, with examples, why there is a need for treaties
Beth Gaze, in another article, argues that both legal and social
such as the Convention on the Elimination of All Forms of
change are essential:
Discrimination Against Women (CEDAW).
When women have equal access to economic resources, many other
2 What are reservations and how do they limit the
changes in their lives will follow. Girls and women in Australia are
effectiveness of CEDAW? still in a double bind. They are told that they have equality and
3 Evaluate the extent to which the Australian government can pursue a career and the opportunities offered by the world
has implemented the provisions of CEDAW. equally with boys, but when they get into the workforce they find
they face unequal pay, discrimination in access to good jobs and
4 Outline how the signing of the optional protocol for
advancement in the workforce, and that they are still assigned
CEDAW will strengthen the enforcement of the treaty. primary responsibility for childcare by a society that devalues both
motherhood and children, and is reluctant to provide adequate
public support for the care and education of all its children.
10.5 Conclusion Beth Gaze, ‘Twenty Years of the Sex Discrimination Act:
Assessing its achievements’,
The Alternative Law Journal 30(1), February 2005
Women have made substantial progress historically on many If we are to prosper as a nation, we cannot continue to
indicators. The law, however, is only a part of the solution. It is not disenfranchise 50 per cent of the population. It is in everyone’s
possible to legislate attitudes, and firmly held beliefs sometimes interest to make our society more just and more fair.

PART III
Chapter 10: Women
Figure 10.14 Gender-based inequality is an ongoing issue. According to the 2010 Gender Equality Blueprint, published by the Australian Human Rights
Commission, women chair only two per cent of ASX200 companies, hold only 8.3 per cent of Board Directorships, hold only four CEO positions and make
up only 10.7 per cent of executive management positions in Australia.
Review 10.8 Refer to Chapter 10 on the Cambridge GO website

Draw up a table with two columns headed ‘strengths’ and
‘weaknesses’, then list the strengths and weaknesses of the ££ pay equity
Sex Discrimination Act 1984 (Cth). ££ gender segregation of the workforce
££ patterns of employment
££ equal opportunity in the workplace.

Chapter summary
➔➔ Women historically were treated as second-class citizens. They ➔➔ Two legal mechanisms that exist to promote the rights and
were explicitly discriminated against in the areas of marriage, equality of women are the federal Office for Women and
property, the right to vote, the ability to sue and enter Woman NSW. These bodies attempt to influence legislation
contracts, and jury service. and policy as it applies to women.
➔➔ Today women enjoy the same rights as men in most of ➔➔ The ACTU and the Women’s Electoral Lobby are non-
these areas, but still experience economic, legal and social government groups that campaign on issues concerning
disadvantage. women, especially in the workplace.
➔➔ Women from non-English speaking backgrounds and ➔➔ The effectiveness of CEDAW is limited by the many
Indigenous women face additional barriers to equality of reservations by states. CEDAW’s strength is dependent on
opportunity. states affirming its principles in domestic legislation.
➔➔ The UN Convention on the Elimination of All Forms of ➔➔ The effectiveness of the Sex Discrimination Act 1984 (Cth) is
Discrimination Against Women is the international treaty limited by factors such as lack of knowledge of rights, reluctance
specifically addressing the many areas in which women to exercise them, and the difficulty of proving discrimination.
experience discrimination. ➔➔ The Sex Discrimination Act 1984 (Cth) has been strengthened
➔➔ In Australia, anti-discrimination and equal opportunity by amendments that extend its scope, and remove certain
legislation has been passed at federal and state level. The exemptions and defences. The only requirement in sexual
chief Acts discussed in this chapter are the Sex Discrimination harassment cases is to prove that the offensive behaviour
Act 1984 (Cth), the Anti-Discrimination Act 1977 (NSW), and the actually took place. The onus is on the employer to show why
Equal Opportunity for Women in the Workplace Act 1999 (Cth). indirect discrimination was ‘reasonable’.
➔➔ The Australian Human Rights Commission (formerly HREOC)
is a statutory body set up to administer the five federal anti-
discrimination laws, one of which is the Sex Discrimination Act
1984 (Cth).
➔➔ The Equal Opportunity for Women in the Workplace Agency
(EOWA) is a statutory body, one of whose main functions is to
oversee the development of equality of opportunity programs
within organisations required to report under the Equal
Opportunity for Women in the Workplace Act 1999 (Cth).

PART III
Chapter 10: Women

1 Which of the following statements about women’s historical 4 The Sex Discrimination Act 1984 (Cth) prohibits:
status is NOT true? a unwanted touching and dirty jokes at work
a Women have been seen as essentially different from men b indirect discrimination at work unless it is part of a
and therefore expected to have different social roles. ‘reasonable policy’
b Women’s jobs have been valued less and paid less. c discrimination against doctors’ wives because of their
c Events such as wars, despite their enormous social cost, husbands’ profession
have sometimes also provided opportunities for women. d all of the above
d Women have not always had the same rights as men 5 Australia’s signing the optional protocol for the UN Convention
because in the past, most women preferred the traditional on the Elimination of All Forms of Discrimination against Women
social roles. will allow which of the following to happen?
2 Which of the following statements relating to women’s a The federal government will be able to pass legislation
workforce participation is true? prohibiting discrimination.
a Part-time and casual workers usually have the same work b The Committee on the Elimination of Discrimination
conditions as full-time workers, and they are paid the same, Against Women will advise states on how best to
proportional to hours worked. implement the treaty.
b Workplace relations laws relating to pay and conditions are c The Committee on the Elimination of Discrimination
enforced more strictly in relation to labour hire firms and Against Women will recommend trade sanctions against
companies contracting to ‘outworkers’. states in breach of the treaty.
c Many migrants to Australia have difficulty getting jobs d Individual Australians will be able to complain directly
suited to their qualifications, which may not be recognised, to the Committee on the Elimination of Discrimination
and they may face the additional challenge of making time Against Women.
to learn English.
d Indigenous and migrant women have a lower
unemployment rate than other Australian women, but they
often have trouble getting part-time or casual work.
3 The Convention on the Elimination of All Forms of Discrimination
Against Women contains:
a anti-discrimination laws that can be adapted to suit a
country’s cultural traditions
b provisions condemning discrimination against women
and setting out ways in which states are to combat and
prohibit it
c provisions that can be enforced by the UN Security Council
or the General Assembly
d a preamble stating that women are biologically the same
as men and therefore not entitled to special treatment such
as safety precautions at work when pregnant

1 Explain why women were treated as inferior to men in early 7 Assess the effectiveness of non-legal mechanisms in improving
Australian society. the rights of women in the workplace.
2 Explain the particular barriers experienced by Indigenous 8 Explain the limitations that exist for a more effective
women and migrant women. implementation of the UN Convention on the Elimination of All
3 Describe the different types of discrimination that women Forms of Discrimination Against Women (CEDAW).
experience in Australian society. 9 Discuss the strengths and weaknesses of the Sex Discrimination
4 Define the term ‘equal opportunity’ and outline how it is Act 1984 (Cth). What reforms have taken place through
provided for in Australian law. amendments?
5 Outline the role of the main international mechanism that 10 Discuss the effectiveness of the Equal Opportunity for Women
promotes the rights of women around the world. in the Workplace Act 1999 (Cth) in removing barriers to equal
opportunity in the workplace.
6 How is the NSW Office for Women’s Policy different from its
Commonwealth counterpart?
Topic review
Extended response
1 Evaluate the effectiveness of the legal system in dealing with 4 Suggest some legal and non-legal mechanisms for addressing
discrimination against women. these consequences. Discuss.
Read the following quote to answer the questions below:
‘[The ideal worker] works full time and overtime and takes
little or no time off for childbearing or child-rearing. Though questions can be found on the Cambridge GO
this ideal worker norm does not define all jobs today, it defines website. Refer to these criteria when planning and
the good ones: full-time blue-collar jobs in the working-class writing your responses.
context and high-level executive and professional jobs for
the middle class and above. When work is structured in this
way, caregivers often cannot perform as ideal workers’ (Joan
Williams, Unbending Gender: Why Family and Work Conflict and
What to Do About It (Oxford University Press, New York, 1999),
pp. 91–4). Discuss.
2 What consequences do these expectations of the ‘ideal worker’
have for women?
3 Do these consequences also apply to men? If your answer is
‘no’, would your answer be different if more men took a more
active role in parenting?

People who have a mental illness

or an intellectual disability
Chapter 19 is available for teachers and

students in the Interactive Textbook

Area 2: Events that highlight legal issues
Chapter 11
The Bali bombings
Chapter objectives
➔ describe the features of international law enforcement ➔ evaluate the effectiveness of the law in achieving justice
➔ describe the interaction between domestic legal systems for victims
of Australia and Indonesia ➔ evaluate the effectiveness of legislation and other measures
➔ evaluate the effectiveness of using legal approaches introduced in response to terrorism
consistent with the rule of law ➔ locate quality information from authoritative sources
using the internet.
9/11 Osama bin Laden Jemaah Islamiyah ‘war on terror’
Al Qaeda Islamic extremists Central Intelligence Agency
rule of law superpower jihad

PART III
Chapter 11: The Bali bombings
Relevant law
Suppression of the Financing of Terrorism Act 2002 (Cth) Criminal Code Amendment (Terrorism) Act 2003 (Cth)
Border Security Legislation Amendment Act 2002 (Cth) Charter of the United Nations Amendment Act 2002 (Cth)
Telecommunications Interception Legislation Amendment Anti-Terrorism Act 2004 (Cth)

Act 2002 (Cth)
Anti-Terrorism Act (No. 2) 2005 (Cth)
Australian Security Intelligence Organisation Amendment
(Terrorism) Act 2003 (Cth)
Significant cases
R v Mallah [2005] NSWSC 317 R v Lodhi [2006] NSWSC 691
R v Thomas [2006] VSCA 165 R v Benbrika (Ruling No. 2) [2007] VSC 261

11.1 Introduction 11.2 9/11 and
The Bali bombings have been labelled by some as Australia’s 9/11.
global terrorism
On 12 October 2002, civilians were targeted by Islamic extremists
The Bali bombings occurred one year after the ‘September 11’
in the most-populous Muslim country in the world, Indonesia. How
terrorist attacks in the United States. 9/11 has been seen as a wake-
Australia responded to this global terrorist act had the potential
up call to the Western world to the demands of Islamic extremists
to damage its relationship with its largest Asian neighbour – a
and their ability to cause widespread fear. The terrorists who
relationship already soured by Australia’s intervention in the conflict
captured the planes and flew them into the World Trade Center and
in East Timor. Unlike the United States, Australia did not have the
the Pentagon belonged to Al Qaeda. Their goal was to strike at the
capacity to employ a ‘war on terror’ approach against Indonesia.
heart of the world’s most powerful nation. Al Qaeda’s leader, Osama
Instead, the Australian and Indonesian governments used the full
bin Laden, saw US involvement in the Middle East – especially
force of both their legal systems and their police enforcement
support for Israel – as an affront to Muslim interests, law and way of
agencies to tackle the terrorist threat on their doorstep. When
life. Bin Laden believed that Al Qaeda would be victorious in battle
compared with the ‘war on terror’ approach that the United
against the world’s last remaining superpower, the United States,
States pursued against Al Qaeda, the methods used by Australia
just as it had been when it fought the former USSR (the Union of
and Indonesia, which were consistent with the rule of law, were
Soviet Socialist Republics, dissolved at the end of the Cold War)
successful. The perpetrators of the Bali bombings were caught,
in Afghanistan.
tried, and sentenced. In the US, however, after many painful and
From the 1970s, terrorist acts were often front-page news,
costly years of the ‘war on terror’, Al Qaeda is still a threat to global
but they were acts confined to remote locations. The 9/11 attacks
security. If a rule of law approach had been followed by the United
changed all that. Terrorism became a global phenomenon, and
States, would this result have been different?
terror organisations mobilised membership cells all around the
world, prepared to strike at any target. Their goals were to cause
9/11 a term used to describe the terrorist attacks in the United States on
11 September 2001; otherwise known as ‘September 11’ maximum terror and panic while gaining a worldwide forum to
promote their cause.
In the face of increasing political and economic instability
‘war on terror’ the term used in 2002 by US President George W. Bush throughout parts of the Muslim world, terror organisations
to refer to his administration’s efforts to fight terrorism anywhere in the
have provided a refuge for many young Muslim men who feel
world using any means
disenfranchised by what they view as anti-Arab and anti-Muslim
Western policies. Some have been motivated by bin Laden’s 9/11
Al Qaeda an international Islamic extremist group, responsible for attacks attacks to carry out terror acts of their own against the United States
on military and civilian targets in various countries, the most notable and its allies. In the eyes of many Islamic extremists in Indonesia,
being the attacks on the US on 9/11
Australia was the most prominent US ally in the Asian region, and
Australian and other tourists on the popular island of Bali presented
a logical target for terrorism.
rule of law the principle that no one is above the law; the most important
application of the rule of law is that governmental authority is exercised in
accordance with written, publicly disclosed laws adopted and enforced in
accordance with established procedural steps (due process)
The Bali bombings
In the tourist district of Kuta in Bali just after 11 pm on 12 October
2002, a small bomb was detonated in the backpack of a suicide
Osama bin Laden Saudi Arabian-born leader of Al Qaeda until his death
in 2012 bomber at Paddy’s Bar. As people fled, another more powerful
car bomb of about 1000 kilograms was detonated 10–15 seconds
later in a white Mitsubishi van parked outside the Sari Club. This
Islamic extremists people who follow an extreme version of the Islamic bomb caused massive damage, leaving a one-metre-deep crater
religion, which sanctions the use of violence to achieve their objectives
large enough for three cars. A third bomb was detonated outside

PART III
Figure 11.1 The Bali bombings destroyed the Sari Club and Paddy’s Bar, which were popular with Australian tourists.
the US consulate in Bali; this was smaller and caused only slight
damage. A total of 88 of the 202 people killed were Australians.
Another 209 people were wounded, most suffering horrific burns.
Bali’s local hospitals could not cope with the number of injured and
many burns victims of all nationalities were flown to hospitals in
Darwin by the Royal Australian Air Force.
Figure 11.3 On 11 September 2001, the world entered an age of

global terrorism.
superpower a country that has terrorism violence or the threat

a dominant role in world politics of violence, directed at a group
and possesses military power in of people for the purpose of
excess of other countries. At the coercing another party, such
end of World War II (1945), the as a government, into a course
US and the USSR were known as of action that it would not
‘superpowers’ because of their otherwise pursue
huge armies and nuclear arsenals
Figure 11.2 Osama bin Laden
C hap ter 11: The B al i b omb in g s 229

Figure 11.4 Chaos reigned on the night of the Bali bombings.
They identified an Al Qaeda operative, Riduan Isamuddin, also

The reaction
known as Hambali, who had links with Abu Bakar Bashir. Requests
People from all around the world expressed anger over the Bali to take action from the US, the Philippines, Singapore and Malaysia,
bombings. The attack was seen by many as a sign that full-scale however, were ignored. At this stage, the Indonesian government
terrorist activity had reached Australia’s doorstep. The horrific was unwilling to publicly acknowledge that it had citizens involved
images of suffering and the harrowing accounts of the survivors in organised terrorism. After the Bali bombings, it had no choice but
were widely broadcast in the print, radio and television news media. to act decisively against the terrorist threat within its borders.
All the while, people struggled to comprehend the perpetrators’
motivations. At the government level there was worldwide
Jemaah Islamiyah a radical Central intelligence Agency
condemnation. Australian and Indonesian leaders both condemned Islamic organisation that has links the spy agency of the United
the terrorist acts and vowed to track down those responsible using with Al Qaeda States, responsible for, amongst
every legal means available to them. It was immediately clear that other things, gathering national
security intelligence
the Australian and Indonesian police would work cooperatively to
bring the perpetrators of the Bali bombings to trial.
While no terrorist group took immediate responsibility for the
Legal Links
Bali bombings, authorities around the world believed it to be the
work of the radical Islamic association Jemaah Islamiyah, known For an eyewitness account of the blast that night see the
as JI. Jemaah Islamiyah’s spiritual leader, cleric Abu Bakar Bashir, Sydney Morning Herald article of 14 October 2002.
was already under suspicion from the United States’ spy agency, the A large collection of articles, photo galleries and video
Central Intelligence Agency (CIA). The US government had earlier reports from 13–20 October 2002 has been posted by the
advised the Indonesian government that Jemaah Islamiyah posed a Sydney Morning Herald on its website.
serious terrorist threat in the region. According to a New York Times Links to these can be found at www.cambridge.edu.au/
report on 13 August 2002, the Americans believed there was new prelegal3weblinks.
evidence of a direct link between Al Qaeda and Jemaah Islamiyah.

PART III
for additional activities relating to the reactions to
the Bali bombings.

Review 11.1
1 What other types of extremism are there in the world
today? Discuss, with reference to the following factors:
££ economic privilege
££ oppression
££ political or cultural history.
2 Why are the September 11 attacks on the United States
seen as a ‘success’ by Al Qaeda?
3 What is Jemaah Islamiyah?
Figure 11.6 Abu Bakar Bashir, the spiritual leader of Jemaah Islamiyah
and a key figure in the Bali bombings
Indonesian and Australian relations

The Bali bombings had the potential to destabilise Australian and
Indonesian relations. Relations between the two nations had on
occasion been difficult since the Indonesian republic was founded in
1949. Tensions were exacerbated in 1999 when Australia sent troops
into East Timor to support the UN mission supervising the territory’s
transition to independence from Indonesia. The Bali bombings
threatened to create a further division between Australia and the
world’s most populous Muslim nation.
Indonesia had recently emerged from years of dictatorship
to become a democracy based on the rule of law. As a result,
in the wake of the Bali bombings, they were keen to cooperate
and behave in a manner expected of a democratic nation. The
Indonesian and Australian governments were able to cooperate in
their efforts to track down those responsible for the blast. Indonesia
also had economic motivations through its strong tourism links
with Australia, which it feared losing if it did not act quickly and
decisively. In addition, Indonesia needed to restore its reputation
after the poor handling of the killing of Australian journalists at
Figure 11.5 Riduan Isamuddin, also known as Hambali, was a key Al Qaeda
operative who helped to mastermind the 9/11 attacks on the United States Balibo in East Timor in 1975. Those responsible for the deaths of the
and had links with Abu Bakar Bashir. Balibo Five have still not been brought to justice.

11.3 Mechanisms for of the group in both the planning and its execution. Apparently,
Samudra had stayed in Bali for days after the Bali bombings to
achieving justice after survey the destruction. Two other men, both Amrozi’s brothers,
the Bali bombings were later arrested: Ali Imron and Ali Ghufron, also known
as Mukhlas.
Legal responses Indonesian authorities continued making arrests of people

implicated in the Bali bombings as late as July 2003. In one week in
early July they arrested nine suspected Jemaah Islamiyah militants
Australian–Indonesian enforcement and seized large quantities of bomb-making chemicals, which
cooperation indicated that more attacks were planned.
In August 2002, Riduan Isamuddin, alias Hambali, was
Within 24 hours of the Bali bombings, a team of investigative and
arrested by the United States. Hambali had been a close friend
forensic officers from the Australian Federal Police (AFP) arrived in
of Khalid Shaikh Mohammed, who planned the September
Bali to assist the Indonesian National Police. A joint operation was
11 attacks and was known as the ‘Osama bin Laden of south-
launched and an effective partnership was forged between the two
east Asia’. He was the most wanted terror suspect in the region,
enforcement agencies. The AFP called the investigation ‘Operation
representing an important link between the Al Qaeda network and
Alliance’ and at its height over 120 police officers from state and
Jemaah Islamiyah.
federal Australian police forces worked beside Indonesian and
The US authorities did not, however, follow the rule of law
international experts. ASIO officers were also involved. One of the
approach once they had Hambali in custody. Hambali was
biggest tasks faced was victim identification. This is an area in which
declared to be guilty, by public figures including the US president,
the AFP has particular expertise. AFP officers were also involved in
before sufficient evidence was found to substantiate his alleged
forensic investigation of the blast site to determine the nature and
crimes. In addition, the CIA held Hambali in a secret location for
origin of the bomb.
three years where he is widely believed to have been tortured.
Hambali was also detained in Guantánamo Bay, Cuba. Since the
Refer to Chapter 11 on the Cambridge GO commencement of the ‘war on terror’ the United States has held
website for additional activities relating to the suspected terrorists there for years without trial. (The United
Australian Federal Police and ASIO’s responses States held that the protections of the Geneva Convention did not
to the Bali bombing. apply to detainees and it is commonly accepted that detainees
were subjected to torture.)
How the United States handled Hambali had negative
consequences for the prosecution of the Bali bombers. First, the
The arrest of the Bali bombers United States refused investigators access to Hambali to question
After an extensive joint police investigation numerous arrests were him over the Bali bombings. It is widely believed that Hambali’s
made, which eventually led to 33 convictions. On 18 October 2002, evidence could have effectively convicted Abu Bakar Bashir
the 64-year-old cleric and spiritual leader of Jemaah Islamiyah, by linking him to the attack. Relatives of the victims of the Bali
Abu Bakar Bashir, was taken in for questioning. Bashir was an open bombings remain angry that the Unites States has not brought
admirer of bin Laden. Hambali to trial. The possibility of a trial is further complicated
The second major arrest occurred in November 2002: a by the fact of his illegal treatment in the aftermath of his arrest.
40-year-old mechanic named Ali Amrozi bin Haji Nurhasyim, In 2009, the newly elected US president, Barack Obama, announced
also known as Amrozi. A 32-year-old university graduate, Imam that Guantánamo Bay would close within a year of his taking office.
Samudra, was arrested after police traced his credit card details This has not yet occurred. What will happen to Hambali? One
from an ATM. The chief Indonesian investigator, General I Made possible answer to this question is that he could be released into
Mangku Pastika, stated that Samudra was most likely the leader the custody of the Indonesian government and tried there.

PART III
Figure 11.7 Ali Ghufron, also known as Mukhlas, Figure 11.8 Imam Samudra was the mastermind Figure 11.9 Amrozi – the smiling assassin – who
was found guilty and sentenced to death. of the Bali bombings and the only university did not show remorse during his trial
graduate among the bombers.
The trials jihad in Islam, a term meaning ‘struggle’; used without any qualifiers it is
generally understood in the West to refer to a ‘holy war’ on behalf of Islam
The trials of the Bali bombers attracted worldwide publicity. The
image that stands out from this period is of Amrozi repeatedly
smiling during his trial, which led to his being called ‘the smiling
assassin’. Amrozi was charged with buying the explosives and the
Research 11.1
van used in the bombing. On 8 August 2003, he was found guilty in
the Bali court. He was executed on 9 November 2008. Access the internet to search for the article ‘Hambali and
Imam Samudra was portrayed as the field commander of the Bali the Guantánamo Problem’ by Joe Boyle. It provides a point
of view on the difficult question of what to do with Hambali
bombings. He was put on trial, found guilty on 8 August 2003 and
once the detention camp is closed down.
executed on 9 November 2008. Samudra thanked prosecutors for
giving him the death sentence because, he said, it would bring him 1 Read the article and summarise the key points.
closer to God. In his evidence, Samudra said that the Bali bombing 2 Identify the reasons why releasing Hambali to the
was part of jihad. Indonesian authorities may not occur.
Abu Bakar Bashir faced trial a number of times for various 3 Write a one-page report on what you think should be
charges related to the Bali bombings. He was, however, acquitted done with Hambali once Guantánamo Bay is closed
of the most serious terrorism-related charges and was sentenced down. Provide reasons for your opinion.
to four years for sedition. He appealed this charge and further

trials followed. Bashir was eventually charged with conspiracy and
sentenced to two-and-a-half years. He was freed on 14 June 2006
and his conviction was overturned by Indonesia’s Supreme Court Research 11.2
in December of the same year. The most important information
missing from the prosecution’s case against Bashir was information Access the internet to ﬁnd the article ‘Long Trail of Clues
that could have been obtained from Hambali that would have that Led to a Bali Suspect’, by Jane Perlez. It details the steps
taken to track down and arrest Amrozi.
connected him to Jemaah Islamiyah. The Americans withheld
considerable intelligence information about Hambali from other 1 Read the article and make a list of the ‘clues’ that led to
Amrozi’s arrest.
nations’ intelligence agencies. This was in stark contrast to the
intelligence sharing between the AFP and the Indonesian police. 2 Use the internet to locate information about how the
Bashir was eventually arrested again in August 2010 for his law enforcement authorities were able to track down
and arrest Samudra and the other Bali bombers, Ali
suspected involvement in a series of terrorist scares, one of which
Imron and Ali Ghufron.
targeted President Susilo Bambang Yudhoyono. In June 2011, Bashir
was found guilty in the District Court in Indonesia of using violence 3 In different cultures, facial expressions and gestures can
mean different things. Locate some evidence that may
and threats of violence to create fear or terror. The four judges
suggest Amrozi’s ‘smile’ means something other than
sentenced Bashir to 15 years in prison. However, this sentence was
what we in Australia may take it to mean.
reduced on appeal to the Indonesian High Court in October 2011.
This could see Bashir freed by 2017.

The Commonwealth government, through its National Security
Review 11.2 office (refer to www.cambridge.edu.au/prelegal3weblinks for a
link to the website), launched a public information campaign and
1 In pairs, discuss why you think tensions increased
between Australia and Indonesia over East Timor a National Security Hotline in response to the Bali bombings. The
in 1999. goal of the campaign, the first phase of which commenced in
2 Identify who the Australian Federal Police worked December 2002, the second in September 2004 and the third in
with in Operation Alliance. August 2007, is to ensure that the Australian people are alert and
on the lookout for any possible warning signs of a terrorist attack.
3 Evaluate the reasons why a conviction against
Abu Bakar Bashir was difﬁcult to secure. Some criticised this campaign for causing unnecessary fear and
creating a culture of suspicion in which people were encouraged to
spy on and ‘dob in’ their neighbours. Muslim Australians reported
Non-legal responses feeling discriminated against in their day-to-day lives.

In 2005, arrests were made in Sydney and Melbourne after raids
by ASIO and the AFP, foiling a plot to carry out a terror attack on
Australian anti-terrorism campaigns
Australian soil. While a direct link has not been drawn between
The Bali bombings alerted the Australian government to the the public information campaign and these arrests, the campaign
possibility that a terrorist attack could occur close to or on has contributed to a new awareness by Australians of potential
Australian soil. One of the most significant non-legal responses to security threats.
the bombings highlighted the need for awareness on the part of all
Australians that an attack could happen here.
Memorials and victim support
One of the most important non-legal responses to the Bali
bombings was the collective grief expressed by the Australian and
Indonesian people. With 88 Australians killed and many others
seriously injured, many people knew someone, or knew someone
who knew someone, who had been involved in the bombings.
Public memorials act as a tribute to victims and a way to show
support for victims and their families.
Permanent public memorials have been erected in Bali, on the
former sites of both the Sari Club and Paddy’s Bar, and in Australia,
in Sydney (at Coogee Beach), Canberra, Melbourne and Perth. In
addition, Prince Charles opened a memorial globe with 202 doves
carved into it (representing the 202 people killed) in London. The
Sydney memorial is made up of three interlocking bronze shapes
that represent figures offering each other support. The Melbourne
memorial incorporates a fountain and reflecting pool that
incorporates 202 individual waterspouts.
Review 11.3
1 Identify the benefits of the Commonwealth
government’s National Security Campaign.
2 Identify any negative features of the Commonwealth
Figure 11.10 ‘Every detail helps’: the third phase of the National Security government’s National Security campaigns.
Public Information Campaign, launched in August 2007

PART III
Figure 11.11 Peace Park Memorial at the former site of the Sari Club
Figure 11.12 Bali Memorial at the former site of Paddy’s Bar
Figure 11.13 Bali Memorial, Sydney Figure 11.14 The names of the 202 people killed by the Bali bombers

11.4 Legal responses
to terrorism
The death penalty
The Bali bombings prompted much discussion of legal responses
to terrorism generally. One controversial issue that regained
attention was the morality and appropriateness of the death
penalty as a means of achieving justice. The Australian federal
government abolished the death penalty in 1973 and had taken
a national and international stance against it, in line with the UN
moratorium on the death penalty.
Some individual members of the Australian Labor Party
(ALP) took their party’s stated opposition to the death penalty
very seriously. Robert McClelland, Attorney-General in the Rudd
Labor government, expressed his opposition to the use of the
death penalty to deal with the Bali bombers. The Australian
government, however, was silent on the issue when the Bali
bombers were sentenced to death. Surveys showed that well
over 50 per cent of Australians were in favour of the Bali bombers
receiving the death penalty.
What repercussions does this have for Australians convicted of
capital offences in other countries? The Bali Nine, Australians on
death row in Indonesia for drug trafficking, would seem to have
little reason to believe their government would take a stand on
a human rights issue that directly affected them. However, after
Amrozi and his brothers were executed on 9 November 2008, the
Rudd government returned to publicly opposing the death penalty.
Figure 11.15 Former Labor Prime Minister Kevin Rudd was silent on the Human rights advocates, including the outspoken Julian Burnside,
issue of the death penalty during the execution of the Bali bombers. QC, have accused the government of hypocrisy on the issue.
Research 11.3
Using the UN website (refer to www.cambridge.edu.au/prelegal3weblinks for link) as a starting point, investigate the UN’s position
on capital punishment (the death penalty).
1 Locate the Universal Declaration of Human Rights. In what ways can this document be said to be ‘against’ the death penalty?
2 Identify the role of the UN Human Rights Council on this issue. (The Human Rights Council replaced the UN Commission on
Human Rights in 2006.)
3 Using both the UN website and a more general internet search, research the names of the countries yet to abolish the death
penalty. What reasons have these countries offered for not doing so?
4 Write a one-page report on whether you think Australia’s inconsistent position on the death penalty in relation to the Bali
bombers and the Bali Nine will harm our international reputation on this issue.

PART III
There has also been substantial long-term reform in the
Refer to Chapter 11 on the Cambridge GO website relationship between Australian and Indonesian enforcement
for additional activities relating to the Australian agencies. With a view to longer-term measures, the AFP has invested
Federal Police and ASIO’s responses to the Bali heavily in Indonesia – its Jakarta office constitutes the second
bombing. largest deployment of AFP officers in a foreign country. From here,
AFP agents can be deployed to any trouble spot in the region. The

AFP established the Jakarta Regional Cooperation Team (JRCT) to
International cooperation to combat assist the Indonesian National Police in their investigations into the
Bali bombings and the later bombing of the Australian embassy
global terrorism in 2004. The AFP has also helped develop the Jakarta Centre for
Law Enforcement Cooperation (JCLEC) to augment the Indonesian
In an international context, the cooperative approach taken by
law enforcement agencies’ ability to deal with terrorism, drug
the Australian and Indonesian police forces and governments was
trafficking and people smuggling. Over 2000 Indonesian police
highly effective. While the US-instigated ‘war on terror’ had failed to
have now completed programs offered by JCLEC.
destroy Al Qaeda or apprehend Osama bin Laden, the Australian–
The cooperation between the Indonesian National Police
Indonesian effort to bring the Bali bombers to justice was a success.
(INP) and the AFP culminated in the signing of a memorandum
The one area in which this international cooperation may be
of understanding in 2002 and a visit to Australia by the Head of
considered a failure was in the attempts to convict Abu Bakar Bashir
the INP in March 2003. AFP Commissioner Mick Keelty explained
of a major role in the bombings. As noted, this failure was largely
that together Australia and Indonesia were dedicated to making
due to the United States’ reluctance to share CIA intelligence gained
the region safer by addressing the threat of terrorism wherever
from Hambali.
it occurred. Australia was committed to providing the INP with
assistance in the areas of counter-terrorism, intelligence and
Figure 11.16 Former Australian Federal Police Commissioner Mick Keelty forensics.
was in charge of the AFP at the time of the Bali bombings.

££ Telecommunications (Interception) Legislation Amendment
Refer to Chapter 11 on the Cambridge GO website Act 2002 (Cth). This Act amended the Telecommunications
for additional activities relating to international (Interception) Act 1979 (Cth) and the Australian Security
cooperation in the aftermath of the Bali bombings. Intelligence Organisation Act 1979 (Cth) (‘ASIO Act’).
££ Australian Security Intelligence Organisation Legislation
Amendment (Terrorism) Act 2003 (Cth). This Act amended the
Research 11.4 ASIO Act 1979 (Cth), the Intelligence Services Act 2001 (Cth) and
the Telecommunications (Interception) Act 1979 (Cth).
Visit the website for the Jakarta Centre for Law Enforcement ££ Criminal Code Amendment (Terrorism) Act 2003 (Cth). This Act
Cooperation (JCLEC) (refer to www.cambridge.edu.au/
amended the Criminal Code 1995 (Cth) and other legislation.
££ Charter of the United Nations Amendment Act 2002 (Cth). This
1 What activities are undertaken by the JCLEC? Act amended the Charter of the United Nations Act 1945 (Cth),
2 Go to the Australian section of the ‘useful links’ web which approved the Charter of the United Nations and enabled
page. What information can be accessed from here? Australia to apply sanctions giving effect to certain decisions
3 Discuss how the Centre’s activities assist in the fight of the UN Security Council. (See Chapter 2 for information
against terrorism in our region. about the UN and the Security Council.) In particular, this
amending Act deals with Security Council decisions relating to
terrorism and the Commonwealth’s ability to freeze the assets
of certain parties.
Review 11.4 ££ Anti-Terrorism Act 2004 (Cth)
1 Why do you think the Australian federal government ££ Anti-Terrorism Act (No. 2) 2005 (Cth).
was silent on the issue of the death penalty when it Australia had already been a signatory to a number of international
came to the Bali bombers? treaties that deal with terrorism. Some key treaties are:
2 What was the accusation of Julian Burnside, QC, against ££ International Convention for the Suppression of Terrorist
the federal government? Why? Bombings (1997)
3 Identify the ways in which the AFP has cooperated with ££ International Convention for the Suppression of Financing of
Indonesian law enforcement authorities. Terrorism (1999).
More recently, Australia has signed the International Convention for
the Suppression of Acts of Terrorism (2005).
Anti-terrorism measures in Australia Since the Bali bombings, law enforcement authorities have
been on high alert to counter any attempted terrorist attack on
A major initiative that resulted from September 11 and the Bali Australian soil. As of 2009 there has been no successful terrorist
bombings was the implementation of anti-terrorism legislation attack on Australian soil. However, there have been a number
in Australia and a strengthening of the enforcement agencies of high-profile arrests and cases arising out of terrorism-related
responsible for homeland security. A number of terrorism-related charges. These include:
statutes were enacted by the Australian government to deal with ££ Zaky Mallah was the first person charged under the 2002
the perceived threat of a terrorist attack on Australian soil. legislation. In the NSW Supreme Court in 2005 he was found
A few of the key legislative changes were contained in the not guilty on two charges of preparing for a terrorist act
following enactments: when a jury found he had not planned to kill ASIO officers in a
££ Suppression of the Financing of Terrorism Act 2002 (Cth) suicide mission. He pleaded guilty to a charge of threatening
££ Border Security Legislation Amendment Act 2002 (Cth). This Act to kill a Commonwealth officer and was jailed for two-and-a-
amended legislation including the Customs Act 1901 (Cth) with half years: R v Mallah [2005] NSWSC 317.
respect to restricted areas; passengers, goods and mail in ££ Joseph Terrence Thomas, nicknamed ‘Jihad Jack’ by the
transit through Australia; airlines and other matters. media, was arrested in 2004. In R v Thomas [2006] VSCA 165,

PART III
his appeal was heard by the Victorian Supreme Court, Court of Schedule 6 of this Act gave AFP officers the power to request in
Appeal. Thomas had been found guilty in the Supreme Court writing that a person produce documents, if the officer considers
of Victoria of receiving funds from a terrorist organisation that the documents are relevant to the investigation of a serious
and possessing a falsified Australian passport (which he terrorism offence. The union expressed concern that these powers
had altered to hide the length of time he spent in Pakistan, could be used to demand any confidential information obtained
allegedly in contact with Al Qaeda). His counsel argued that for the purpose of articles or broadcasts, including sources’ names

confessions made out of court are not admissible unless and details, and could thus undermine journalists’ ability to do
voluntarily made, and that Thomas’s statements to the their job properly. In August 2012 Julia Gillard announced a COAG
AFP, without a lawyer present, should have been excluded. review of anti-terrorism laws.
The Court of Appeal quashed the convictions and ordered a Because of such provisions, some have argued that the anti-
later retrial. He was found not guilty of terrorism charges in terror laws point to the need for an Australian bill of rights. As
2008. See R v Thomas [2008] VSC 620 (29 October 2008) for discussed in Chapter 6, one argument against a bill of rights is that
sentencing for passport offences. it is not needed in Australia because rights are already protected
££ Faheem Khalid Lodhi, arrested in 2006, was the first person by existing statutes, and these statutes have been passed by a
to be convicted of preparing for a terrorist act. He was also responsible legislature that has the best interests of the nation
found guilty on two other charges and sentenced to 20 years’ in mind. Another argument against a bill of rights is that it would
imprisonment, with a 15-year non-parole period: R v Lodhi lead to the courts becoming ‘too political’ in their efforts to uphold
[2006] NSWSC 691. individual rights. But if parliament can’t be trusted to preserve
££ Abdul Nacer Benbrika was arrested in 2006, with 21 other individual freedoms in the laws it enacts, then not only does review
people in NSW and Victoria. In his trial before the Supreme of statutes by courts become more urgent, but it might also be
Court of Victoria, he was found guilty of the charge of being necessary to enshrine those freedoms in a bill of rights that cannot
a leader of a terrorist cell: R v Benbrika (Ruling No. 2) [2007] be overridden by legislation.
VSC 261.
11.5 Conclusion
Criticisms
The Bali bombings showed Australians that they are not immune
Some of the legislation passed by Australia, like that of some
to global terrorism. Unlike the ‘war on terror’ waged by the United
other countries including the UK and the US, has been criticised
States, the joint Indonesian-Australian response to the 2002 terrorist
as giving powers to the executive government that are far too
attack has seen the conviction of those tried and found responsible.
great. In particular, ss 23CA, 23CB and 23CD of the Crimes Act
Furthermore, Australia has gained a willing partner in the region
1914 (Cth) introduced by the Anti-Terrorism Act 2004 (Cth) have
with which to combat terrorism and illegal drug trade.
increased individuals’ risk of being detained or imprisoned without
Domestically, the Bali attack has led to the introduction of
evidence of their guilt being presented or proved in court. Laws
anti-terrorism legislation giving Australian law enforcement
permitting detention without charge conflict with Article 9(1) of the
agencies greater powers to deal with the threat of a terrorist
International Covenant on Civil and Political Rights.
attack on Australian soil. The new legislation has attracted
The ASIO Amendment (Terrorism) Act 2003 (Cth) introduced new
heavy criticism from legal scholars, civil liberties groups and
offences relating to involvement with terrorist organisations. The
others, who have argued that it undermines key legal rights. It
definition of ‘terrorist act’ is extremely wide, resulting in many
has prompted much debate about how best to protect Australia
innocent organisations potentially being classed as terrorist. It also
from terrorism outside and inside our borders, while preserving
places the onus on a defendant to show that he or she was not
fundamental freedoms.
reckless about whether an organisation was one of those banned
by the legislation.
The Anti-Terrorism Act 2005 (Cth) alarmed the Australian
journalists’ union, the Media, Entertainment and Arts Alliance.

Chapter summary
➔➔ The attacks on the World Trade Center and the Pentagon on ➔➔ Non-legal responses include the establishment of anti-
11 September 2001 (9/11) mark the beginning of terrorism as a terrorism media campaigns and the establishment of
global phenomenon. memorials to the victims of the bombings.
➔➔ The Bali bombings were carried out by Indonesian Islamic ➔➔ The Bali bombings revived debate about the death penalty.
extremists on 12 October 2002. Bombs were exploded at ➔➔ The Bali bombings saw the introduction of Australian anti-
Paddy’s Bar and the Sari Club, both popular with Australian terrorism legislation and the strengthening of the enforcement
tourists. agencies responsible for ‘homeland security’.
➔➔ While no group took immediate responsibility for the ➔➔ This legislation has come under criticism by those who believe
bombing, the radical Islamic association, Jemaah Islamiyah, it jeopardises civil liberties and key legal rights.
was suspected.
➔➔ Amrozi, Imam Samudra and Mukhlas stood trial for the Bali
bombings and were found guilty. They were sentenced to
death by firing squad and executed in November 2008.
1 Which of the following is NOT true of terrorism? 4 Which of the following was not a result of Australian–
a It can be utilised by fundamentalist religious groups or Indonesian cooperation since the Bali bombings?
political groups. a Australian police involved in the identification of victims
b It can be constituted by a threat of violence directed at a of the Bali bombings
population in order to induce a government to change its b the establishment of the Australian Federal Police
policies. c the establishment of the Jakarta Regional Cooperation
c It is intended to cause death, not fear. Team
d It was used prior to 2001. d the establishment of the Jakarta Centre for Law
2 Jemaah Islamiyah was: Enforcement Cooperation
a a peaceful Islamic organisation 5 Which of the following types of provision was contained in the
b a foreign terrorist organisation that established a branch in anti-terrorism legislation passed by the Commonwealth after
Indonesia the Bali bombings?
c under suspicion from the CIA for having links with Al Qaeda a detention of persons suspected of terrorism offences for
well before the Bali bombings the purpose of investigation
d the name of the Indonesian counterterrorism force b detention of illegal immigrants from countries known to
3 Which of the following alleged suspects responsible for the Bali harbour terrorists
bombings ended up walking free? c immunity of anti-terrorism legislation from judicial review
a Iman Samudra d immunity of any Commonwealth employee from
b Abu Bakar Bashir prosecution
c Amrozi
d Ali Ghufron

PART III

1 Outline the situation regarding global terrorism before the 6 Why are good relations between Australia and Indonesia
Bali bombings. important from the Australian government’s point of view?
2 What is the ‘war on terror’? 7 Who were the main suspects arrested for the Bali bombings?
3 What was known about Jemaah Islamiyah before the 8 What was controversial about the trial of Abu Bakar Bashir?
Bali bombings? 9 Why was the Australian government’s policy towards the death
4 Explain the connection between Hambali and the Bali bombings. penalty for the Bali bombers controversial?
5 Who is Abu Bakar Bashir and why was he a suspect? 10 What key changes in anti-terrorism legislation have occurred in
Australia since the Bali bombings?
Topic review
Extended response
1 Discuss the anti-terror legislation, with reference to the 4 Contrast the ‘war on terror’ and the ‘rule of law’ approaches
arguments for and against a bill of rights. taken in the fight against terrorism.
2 Outline how the Australian and Indonesian governments have 5 Describe the Australian government’s policy towards the
cooperated since the Bali bombings. death penalty.
3 Outline the key stages in the investigation of the Bali
bombings.
questions can be found on the Cambridge GO
website. Refer to these criteria when planning and
writing your response.

Chapter 12
The Port Arthur massacre
Chapter objectives
➔ describe the key features of Australia’s courts and ➔ investigate the relationship between society and the
parliaments legal system
➔ identify the relevant legal terminology in investigating and ➔ recognise differing perspectives on issues related to the
discussing case and statute law reform of gun laws
➔ evaluate the effectiveness of Australia’s legal system in ➔ locate quality information from authoritative sources
achieving reform of the gun laws using the internet.
Key term/vocabulary
conspiracy theories indictment on remand
homicide massacre suicide
Relevant law
Significant cases
R v Bryant (Supreme Court of Tasmania, Cox CJ, 22 Nov 1996)

PART III
Chapter 12: The Port Arthur massacre

12.1 Introduction 12.2 The Port Arthur
On Sunday, 28 April 1996, a young Tasmanian man called Martin
massacre
Bryant ate a meal on the deck of the Broad Arrow Café located at
the Port Arthur historical site. When he was finished he entered the
The events
café, took a rifle from his bag and started indiscriminately shooting. The facts of the Port Arthur massacre reveal the deliberate and
He then moved to the gift shop and then on to the car park, where intentional nature of Martin Bryant’s crimes. On the morning of the
he pulled out an automatic weapon, firing at the people there. massacre Martin Bryant left his home in Hobart and drove to Port
Driving up the road, he continued shooting. By the time he was Arthur, approximately one hour’s drive to the east. Port Arthur is
finished he had killed 35 people. one of Australia’s most significant historic sites, as it was the site of
The horrific massacre at Port Arthur sent shock waves around one of Australia’s most notorious convict settlements in the early
the nation. Mass murder on such a scale was something Australians 1800s. As was common, on the day in question Port Arthur was
had never experienced before. The Port Arthur massacre also set in overflowing with tourists.
motion a chain of events that eventually led to a complete reform On his drive to Port Arthur that day Martin Bryant stopped off at
of Australia’s gun laws. This reform revealed a significant division a guesthouse called Seascape Cottage, where he entered and killed
in Australian society between those for and against gun control. the owners, David and Noelene Martin. Bryant then drove to Port
Not everyone agreed with the reforms, or saw gun control as a Arthur, arriving at about 1.10 p.m. He parked his car and entered
solution to the incidence of violence. Other critics even suggested the Broad Arrow Café, where he purchased a meal and ate it on
that a conspiracy was in play and that the massacre had been the deck. After eating, Bryant returned the tray and returned to his
orchestrated as a catalyst for law reform. The swift response of table where he pulled an AR-15 semi-automatic rifle from his bag.
the Australian legal system to the problem of automatic weapons Entering the café, he began systematically shooting people at close
engendered enormous international interest, winning both praise range. He moved into the gift shop and did the same. Returning
and condemnation. In the United States, anti-gun coalitions took to his bag for additional ammunition, he reloaded and returned
heart and redoubled their efforts towards reform of gun laws, to shoot the people in the gift shop who had taken cover behind
while leaders in the gun lobby thundered out warnings that the US tables and furniture. In the first 90 seconds, 20 people were killed
government might try to do the same as Australia. and 12 were injured.
The effectiveness of gun law reform in Australia in the wake Bryant continued into the car park behind the café. People could
of the Port Arthur massacre stands in stark contrast to the failure hear the commotion and had taken cover behind the buses. He shot
thus far in the United States. In an international context, it also and killed another four people, wounding others. Bryant continued
contrasts with the failure to achieve an international agreement on shooting people on the grounds of the historic site, then got into
controlling the trade in small arms. Most of the small arms available his car and drove past the toll booth and onto the main road. Before
to every armed group, militia or criminal around the world are used exiting, he had killed seven more people, including Nanette Mikac
to maim, injure or kill innocent civilians. and her two young daughters, Madeline and Alannah, aged three
and six. Bryant chased Alannah behind a tree in order to kill her.
massacre the intentional killing of a large number of people in society
Bryant then drove up the main road to a service station located at
Figure 12.1 The Penitentiary at Port Arthur, near where Bryant went on his killing rampage

PART III
Figure 12.2 People gather to pay tribute to the victims who died in the Broad Arrow Café during the Port Arthur massacre.
a general store. He used the BMW he was driving – having killed burns from the fire, Bryant was charged with just one murder. Police
the driver and passenger and stolen it – to block a Toyota Corolla said additional charges would follow. On 22 May, Bryant appeared
from leaving the pump area. He forced the male occupant into the via a video link from Risdon Prison to the Magistrates’ Court for a
boot of the BMW, shot the female occupant of the Corolla, dragged remand hearing.
her body out of the car, got into the driver’s seat of the BMW and During the following weeks, the police investigated all the events
took off down the road with the male hostage locked in the boot. A of the day, which resulted in the final charges being laid against him:
police officer arrived soon after and went in chase of Bryant a few 35 counts of murder, 20 of attempted murder, four of aggravated
minutes later. assault, eight of wounding, three of causing grievous bodily harm,
Bryant returned to the Seascape guesthouse where he had one of arson and one of unlawfully setting fire to property.
begun his murderous killing spree earlier that morning. At the Because of the magnitude of the killings, in a place popular with
house he took his hostage inside and set fire to the stolen BMW. Australian and international tourists alike, the Port Arthur massacre
At around 2 p.m. police officers arrived but were forced to take attracted considerable media attention and debate. There was
shelter for a few hours in a ditch while Bryant fired on them with interest also in Bryant himself. What kind of person would do this?
an automatic weapon. At 9 p.m. a Special Operations police team Was he of sound mind? Those who knew Bryant were questioned
arrived from Hobart. An 18-hour stand-off ensued because Bryant by journalists eager to paint a picture for the public of who Martin
claimed he had hostages. The following day, Bryant set fire to the Bryant was. A number of conflicting stories emerged. Distant
house, taunting the police to come in and get him. Eventually, relatives provided an album full of photographs. Two of Bryant’s
Bryant ran from the house with his clothes alight and was captured ex-girlfriends provided some more. On 30 April the first photos
by police. He was arrested and taken to hospital under police guard. of Bryant appeared on the front pages of the nation’s press.
During the initial period of his police questioning, Bryant The Australian newspaper enhanced a photograph of Bryant that
admitted to hijacking the BMW car but denied having shot anyone. exaggerated the whiteness of his eyes to give him an eerie, spaced-
He also stated that he had not visited Port Arthur that day. Bryant out look. Debate about Bryant’s early life, history of gun use, state
also claimed that the guns found by police were not his. During a of mind and motivations remain today, as does curiosity about his
bedside hearing in hospital where he was being held because of his life in prison.
C hap ter 12: The Por t Ar thur massacre 245

Indictment and sentencing Research 12.1
On 5 July 1996, a total of 72 criminal charges were filed against Read the sentencing report in R v Bryant and write a report
Martin Bryant in the Supreme Court of Tasmania, in Hobart. Bryant that addresses the following questions.
did not enter a plea to any of these charges. 1 What comments did the judge make about Martin
The police obtained 551 statements from witnesses in their Bryant’s intellectual ability and mental health?
investigations into the events of that day in Port Arthur. In September 2 Evaluate whether the judge’s observations about
1996, Bryant’s lawyer convinced him to plead guilty, and Bryant Bryant’s upbringing, his social isolation, his intellectual
was convicted on 13 November 1996 of an unprecedented list of ability and his mental health had any effect on the
crimes. The judge commented that he found it difficult to imagine sentence.
a more chilling catalogue of crimes that were carried out in a coldly 3 What comment did the judge make about remorse on
premeditated way, yet whose victims were selected randomly. the part of Bryant?
The judge remarked on the continuing effects of the killings on 4 What comment did the judge make about Bryant having
survivors, the families and friends of those whom he had killed, the pleaded guilty? Did this affect Bryant’s sentence?
eyewitnesses, and the Port Arthur workers, ambulance officers and 5 What comments did the judge make in weighing up
police officers who had to cope with the injured and dead. Bryant’s crime with the mitigating factors such as his
On 22 November 1996, Bryant received 35 sentences of life upbringing, social isolation, intellectual capacity and
imprisonment without parole for the murders, plus 21 years for mental state?
each of the other counts in the indictment. 6 What was the final sentence?
indictment information presented for the prosecution of one or more

criminal offences; a formal written charge
Imprisonment
After his arrest, Bryant was held in hospital under police guard
while he was treated for his burns. While on remand for seven
for information relating to R v Bryant (Supreme
months, until the conclusion of his trial, Bryant was held in near-
Court of Tasmania, Cox CJ, 22 Nov 1996).
solitary confinement in a specially built cell at the medium to
maximum-security Risdon Prison. In 1997 Martin Bryant began
his formal prison sentence at the old Risdon Prison hospital and
became one of its most notorious inmates. He spent most of his
time up to 2006 alone in his cell. Though the prison authorities did
not consider Bryant to be mentally ill, they held the view that the
prison hospital was the safest place for him because he was the
most hated prisoner among the inmates. Apparently, he had been
the target of a number of assaults and many of the inmates had
made death threats against him.
In 2006, the Tasmanian government moved Bryant into the
newly constructed Wilfred Lopes Centre, a mental health facility
a few hundred metres from the prison. There are no guards inside
the 35-bed unit, only nurses, doctors and support staff, and most
inmates are not confined to cells but are free to wander around
the complex. The centre was substantially a hospital with a
Figure 12.3 Who is Martin Bryant? therapeutic environment.

PART III
Some relatives and friends of the slain Port Arthur victims were
Motive
outraged that Bryant would be serving his sentence in such a
facility. First, they objected because they felt they should have been Since the day of the Port Arthur massacre there has been
told of the move prior to its occurrence. speculation about Bryant’s motivation for the killing spree,
Second, they believed that it was inappropriate for someone focusing in large part on his childhood and his sanity. In 2006,
who had not been declared insane at the time of conviction to be

Bryant’s lawyer, John Avery, was reported to be writing a book
hospitalised. The previous year, the state’s chief forensic psychiatrist, about his former client. Extracts were published in the Bulletin
Dr John Crawshaw, had stated that Bryant did not meet the criteria magazine, along with transcripts of conversations between Bryant
for admission to the Wilfred Lopes Centre. and Avery, school reports, and psychiatric assessments. Avery’s
Their biggest objection, however, was the idea that Bryant behaviour and the magazine’s publication of the material were
would be free to move around hospital freely: they believed that he condemned by the legal community and many in the media as
should be confined to a prison cell for the rest of his life. both professionally questionable and inconsiderate of the feelings
In a leaked letter from Tasmania’s Director of Prisons, Graeme of victims and their families. In 2009, journalists Robert Wainwright
Barber, to Dr Crawshaw, the reasons for transferring Bryant to the and Paola Totaro published Born or bred? Martin Bryant, the making
Wilfred Lopes Centre were stated as concerns for Bryant’s health, of a mass murderer, again delving into his past.
wellbeing and safety, and the need to protect other inmates. Those One of the ideas about Bryant’s motives, put forward by the
opposed to the move questioned the validity of these concerns, defence psychiatrist, Paul Mullen, was that Bryant was inspired
given the recent $90 million redevelopment of Risdon Prison. Bryant by a lone gunman’s massacre of 16 children and one adult on
has been transferred back to maximum security Risdon Prison on at 13 March 1996 in the Scottish town of Dunblane. Other speculation
least one occasion, in response to the public outcry about his being has focused on Bryant’s below-normal intellect and resulting social
housed in the Wilfred Lopes Centre. isolation and anger, desire for attention, and a long-term grudge
Bryant has attempted suicide a number of times during his against his first victims, who had bought the Seascape property
incarceration. that he had wanted to buy.
As of May 2009, he has been held at the Wilfred Lopes Centre,
but in isolation.
remand (of an accused) in custody pending and/ or during his or her trial
Figure 12.4 Bryant’s move from maximum security at Risdon Prison
(below) to a mental health facility angered survivors and family members
of the victims of the Port Arthur massacre.

Conspiracy claims Review 12.1
From the beginning, conspiracy theories surrounded the Port 1 From the information above create a timeline of
Arthur massacre. These suggest that the massacre was actually events on the day of the Port Arthur massacre until
carried out by special operatives who framed Bryant. According to Bryant’s arrest.
some of the proponents of conspiracy theories, particularly those 2 Do you think people will ever know why Martin Bryant
who are strong opponents of gun control, the purpose of the did what he did? Why are a murderer’s motives a
massacre was to provide a platform for the federal government to continuing source of fascination?
bring about gun control law reform. 3 What are the arguments for and against Bryant serving
A more recent conspiracy theory is that the Port Arthur massacre part of his sentence in a mental health facility rather
was a plot; it would make it easier for terrorists to take over Australia than a prison? What facts does the answer depend on?
if all of our guns have been confiscated. Discuss in small groups.
These theories do not enjoy any credibility in legal or scholarly 4 If a convicted murderer is found to be sane, what are
circles. Their merit may be at least partly determined by noting the aims of the criminal sentence imposed? Justify
which organisations hold them. For instance, the Holocaust- your answer.
denying, Australian-based Adelaide Institute continues to peddle

the conspiracy line.
Review 12.2
Aftermath
1 Identify the various conspiracy claims that have
On 25 February 2011, Martin Bryant’s mother was interviewed on surrounded the Port Arthur massacre.
the television program 60 Minutes, in which she discussed her son’s 2 How valid do you think these claims are?
condition in prison. In the interview she also made the controversial 3 In what ways do these claims dishonour the memory
claim that she now thought that her son did not commit the crime, of those who died in the massacre?
despite having believed he had done so at the time. On 10 March
2012, Martin Bryant appeared in the headlines again (‘Bryant
painting prize outrage’, The Mercury) when a controversial painting
Research 12.2
of Bryant at the site of the killings was awarded a prize. This was a
challenge to the attitude of many people in Tasmania, who felt that The articles ‘Bryant is an Overweight Zombie’ and ‘Inside
the best way of dealing with the events on that day at Port Arthur in the Mind of a Mass Murderer’ both attempt to provide
1996 was to give the killer no publicity at all, particularly since this some insight into who Martin Bryant is and explain
his motivations (refer to www.cambridge.edu.au/
is what Bryant seems to have craved. Since 1996, many Tasmanians,
prelegal3weblinks). Answer the questions below.
particularly those affected in some personal way by the massacre,
have refused to even utter Bryant’s name. Nowhere on the site of 1 How does Bryant’s mother describe her son’s
imprisonment at Risdon Prison?
Port Arthur is there any mention of his name. There seems to be
an unwritten rule in Tasmania that the best way of honouring the 2 Do the comments made by the psychologist and defence
lawyer shed any light on what motivated Bryant?
victims of the massacre is to deny any place in public memory for
this mass murderer. 3 Is there any way to assess from the information in these
The video and full transcript of the 2011 interview can be found articles whether Bryant feels any guilt for his actions?
on the 60 Minutes website. 4 Why is Bryant’s decision to enter a guilty plea

considered a controversial one?
conspiracy theories speculation that there is a cover-up of the 5 Does speculation about a murderer’s motivations serve
information surrounding a significant event by government or other
authorities
any useful purpose? Discuss.

PART III
Figure 12.5 The Sporting Shooters Association of Australia opposed gun reforms.
12.3 Mechanisms for represents the interests of gun owners. The Association organised
achieving justice after the a protest march by 27 000 of its members through the streets of
Melbourne. However, public sentiment against weak gun laws
Port Arthur massacre meant that the Victorian government persevered with its reforms.
These state reforms were complemented at the federal level
Legal responses by the Hawke government’s establishment of the National

Committee on Violence, which produced a report in 1990
containing 30 recommendations. Among these recommendations
Gun law reform in Australia before 1996
was registration of high-powered rifles. The reforms that followed
By the 1980s there were approximately four million privately owned represented a significant step towards gun control in Australia.
guns in Australia and about 700 gun deaths each year. These guns In 1991, a gunman shot six people in a shopping mall at
were owned primarily for hunting and by farmers, who used them Strathfield, NSW with an ex-military semi-automatic rifle that he
to kill pests such as rabbits and feral animals. The majority of had easily obtained. Widespread outrage and debate followed. In
gun deaths occurred due to misuse of rifle-type guns rather than 1992, the NSW government introduced tougher gun laws. Many
handguns. The gun laws were fairly weak and varied greatly among pro-gun groups bitterly opposed these laws, particularly since
the states and territories. prior to the Strathfield massacre the NSW Liberal government had
The gun debate in Australia started in Victoria after two been ready to introduce softer laws. The tougher gun laws led to
separate incidents in which 14-year-old girls were accidentally the formation of the Shooters’ Party in NSW. The Shooters’ Party
killed by sporting shooters. As a result, the Victorian government has had a seat in the NSW upper house since then. Also in reaction
introduced a shooter’s licence, which, while fairly weak by today’s to the tougher laws, the SSAA began looking to the National Rifle
standards, was nevertheless the first serious attempt to place some Association (NRA) in the United States for ideas on how to counter
control on guns. the tougher legal regime for guns that was taking root in Australia.
Then in 1987, Australia experienced six gun-related massacres The NRA is a powerful lobby group with the goal of promoting
over the course of the year that resulted in a total of 32 deaths. Each firearm ownership rights, relying on a broad interpretation of the
of these incidents was premeditated and all were carried out by Second Amendment of the US Constitution, which gives people the
people who legally owned guns. The best-known of these occurred right to keep and bear arms.
in Melbourne: the Hoddle Street Massacre and the Queen Street Overall, the effect of the gun massacres that occurred in
Massacre. The Victorian government acted swiftly to introduce Australia between 1987 and 1991 was the development of public
tougher gun laws. This action was opposed by the Sporting concern about guns, which coincided with leaders who were willing
Shooters Association of Australia (SSAA), an organisation formed to to enact the necessary legal reforms to put the nation on the path of
promote sports such as target shooting and hunting, and which also a sensible gun control regime.

Gun law reform after the Port Arthur massacre
Review 12.3
By the 1990s, Tasmania was the odd state out in terms of gun
1 Make a list of Australian gun law reforms from
law reform. This made it quite easy for Martin Bryant to purchase
1980 to 1997.
the guns that he used to kill 35 people. In response to the public
outcry about gun control after the massacre, Prime Minister John 2 Investigate the gun massacres that occurred in
Australia in 1987.
Howard initiated a discussion on tougher gun law reforms. He was
backed by Deputy Prime Minister Tim Fisher. By the end of 1997, 3 Evaluate the effectiveness of the government’s
the state governments and federal government signed the National response to public concern about gun use.
Agreement on Gun Laws. This agreement stated that:

➥ gun ownership is a privilege and not a right
➥ semi-automatic weapons must be strictly controlled
Non-legal responses
➥ all guns must be registered
➥ guns must be stored securely
Alannah and Madeline Foundation
➥ there must be a 28-day cooling-off period when buying guns.
Such proposals seemed sensible to the average Australian; The deaths of 35 people at the hands of Martin Bryant shocked
however, some National Party parliamentarians and pro-gun lobby Australians. Of the stories that emerged from that day, the murder
groups, such as the SSAA, were horrified and did everything they of Nanette Mikac and her two young daughters, Alannah and
could to stop the proposed new laws. It was in this context that Madeline, aged 6 and 3 respectively, were particularly devastating.
conspiracy theories about the Port Arthur massacre sprouted. Some Australians were reminded of the fragile nature of human life and
gun enthusiasts began to argue that the Port Arthur massacre was a the destructive potential of guns.
government conspiracy and that Martin Bryant was set up, all with Walter Mikac lost his wife and daughters. These events had a
the aim of using it as an excuse to take guns away from all the law- profound effect on another Australian father of two young girls,
abiding gun owners in the country. Phil West, who, along with a small group of volunteers, established
Figure 12.6 When Prime Minister John Howard spoke to a hostile rally of pro-gun enthusiasts he was wearing a bullet-proof vest.

PART III
the Alannah and Madeline Foundation. The Foundation’s goal is to
keep children safe from violence. It does not receive government Refer to Chapter 12 on the Cambridge GO website
funding, but relies on fundraising events, private grants and for information relating to death tolls of the world’s
individual donations to continue its work. The Foundation worst shootings.
runs programs to assist with the recovery of children who have
witnessed or experienced violence, and to prevent violence and

suicide the intentional taking of homicide the act of killing
bullying in schools. It also acts as a children’s advocate before
one’s own life another human being
federal, state and local governments. HRH Crown Princess Mary
of Denmark is the International Patron of the Alannah and
Madeline Foundation. Legal Links
12.4 Responsiveness of A paper written in 2000, titled ‘Australia’s New Gun Control
Philosophy: Public Health is Paramount’, by Rebecca Peters
the legal system to the and Roland Browne in The Drawing Board: An Australian
Port Arthur massacre Review of Public Affairs, argued that Australia took a public
health approach to gun law reform instead of a criminal
justice approach. The authors argued that this led to a more
Gun law reform in Australia rational philosophy of gun control, which is more effective
in reducing the number of firearm-related deaths.
From 1998, Australia experienced a marked decrease in gun deaths
Go to www.cambridge.edu.au/prelegal3weblinks for a link
when compared with the 1970s and 1980s. Handguns, however,
to download the paper.
appeared as a new menace in 2002. In a shooting that occurred
at Monash University in Victoria that year, a student, who was a
licensed pistol shooter, fired handguns in an econometrics class,
killing two students and injuring four students and a lecturer.
Research 12.3
After the Monash shootings the Australian Crime Commission Follow the link at www.cambridge.edu.au/prelegal3weblinks
was formed. It is a statutory body that, in partnership with other and read the article ‘Death tolls from world’s worst shootings.’
law enforcement agencies, develops strategies for dealing with Despite Australia’s Port Arthur massacre being one of the
serious and organised crime. One of the first things on its agenda world’s worst single non-wartime shooting, the United States
was illegal trafficking in handguns. It had become apparent that can be said to have the most frequent occurrence of shootings.
there was an increase in illegal handgun use. 1 Draw up a table showing country, gunman, location,
While handguns were emerging as the new threat in crime, the weapons, killed and wounded.
total number of deaths per year from suicide, unintentional killings 2 How does Port Arthur compare with other similar
and homicide dropped dramatically. In the 1980s the deaths per massacres?
year from gun-related causes averaged 700. By 1999 they were 3 Identify similarities in location, motivation of the killer,
around 300 and by 2003, gun-related deaths had dropped to 290 and the availability of weapons.
per year. This trend has continued since. 4 Investigate the Second Amendment to the Constitution of
While Australia has directly addressed the problem of gun the United States. Why do you think gun law reform might
deaths, other countries, such as the United States, have not been be more difficult to achieve in the US in light of this clause?
as effective in meeting this challenge. Political leaders in the United 5 Refer to www.cambridge.edu.au/prelegal3weblinks for
States have not been successful in countering the strong pro-gun a link the to website of the National Rifle Association
culture supported by the extremely effective lobbying of the NRA. (NRA). See what information you can find about how the
Gun massacres remain a feature of life in the United States, and the NRA can continue to oppose gun law reform even in the
sale of firearms continues to grow every year. face of a massacre like the one at Columbine High school.

Research 12.4
1 View the 2002 documentary Bowling for Columbine. 3 For further information about the issue of guns in the
What are the main points it makes about guns in the United States, go to the website of the Brady Center to
United States? Prevent Gun Violence (an NGO) via www.cambridge.edu.
2 For further information about the film and about the au/prelegal3weblinks.
issue of guns in the United States, follow the link at www. 4 Research other media reports and academic reports about
cambridge.edu.au/prelegal3weblinks to the film’s website. the gun issue in the United States. What arguments and
tactics are being used by those groups arguing for gun
law reform?
Research 12.5
Go to the Australian Institute of Criminology website, read the abstract for ‘Firearm related deaths in Australia, 1991–2001’ (refer to
www.cambridge.edu.au/prelegal3weblinks for link), and answer the following questions:
1 What has been the percentage decrease in firearm-related 4 What was the most common weapon used?
deaths in the period 1991–2001? 5 What other weapon has seen increased use?
2 What proportion of deaths involved males? 6 Which accounted for the most deaths: homicide, accident
3 What age group has the highest risk? or suicide? What are the implications of this finding for
health professionals?
The government buy-back scheme

Research 12.6
As part of the reform of gun laws and culture in Australia, a buy-back The following newspaper articles from the Sydney Morning
scheme and amnesty were introduced by the Howard government Herald 2006 give two different perspectives on the
in the aftermath of the Port Arthur massacre. Money was given effectiveness of the guns buy-back scheme since 1996.
to people who willingly handed over guns that appeared on a list Follow the link at www.cambridge.edu.au/prelegal3weblinks
of prohibited weapons – in particular, semi-automatic rifles and to the Sydney Morning Herald website, locate the following
shotguns. Approximately 640 000 guns were collected under the articles and answer the questions below:
scheme. Victoria was the state to hand in the greatest proportion of ➥ Matthew Moore, ‘Buyback has no effect on murder rate’,
its registered weapons that were on the ‘prohibited’ list. 24 October 2006
The long-term effectiveness of this scheme has been closely ➥ Don Weatherburn, ‘Study no excuse to shoot down the
monitored, with conflicting reports emerging. Some have indicated law’, 26 October 2006
1 Read the two articles listed above and summarise their
that because Australia has not had a mass gun-related shooting
key points.
since Port Arthur, the buy-back scheme was a success. Other
2 Find the commentary of Gun Control Australia on this
reports have indicated that the scheme has had no real effect on
debate by searching for ‘Recent Reports on Australian
overall murder rates. The only area where the National Firearms
Gun Laws’ (10 January 2007) on the Gun Control
Agreement – the collective name for federal and state gun reforms
Australia website (refer to www.cambridge.edu.au/
– may have had some impact is in suicide rates. Part of the difficulty
in measuring the success of the buy-back scheme and its impact
3 Write a one-page report discussing the effectiveness of
on crime rates is that 90 per cent of homicides are committed with
the gun buy-back scheme.
unregistered firearms.

PART III
Figure 12.7 Guns handed in during the buy-back scheme in 1997 were destroyed at scrap-metal yards.
Research 12.7
During the 2012 presidential campaign in the United States there were a number of gun massacres. However, there were no calls to
tighten up gun laws in the US. This situation has changed somewhat in the wake of the Sandy Hook Elementary School shooting, and
in April 2013 the US Senate finally voted to debate gun safety legislation. The journalist, Paul McGeogh explains why he believes there
will be no reform in the United States. Former Australian Prime Minister John Howard argued that his gun reforms after the Port Arthur
Massacre were a success. The third article below analyses the claims that Australia’s post-Port Arthur gun laws were a success.
The following articles appeared in the press in 2012:
➥ Paul McGeogh, ‘In the US, the gun lobby calls the shots’, 2 Read John Howard’s article and outline his claims about the
29 July 2012. success of his reforms.
➥ John Howard, ‘Brothers in arms, yes, but the US needs to 3 Read the article by Dylan Matthews. Do his findings
get rid of its arms’, 1 August 2012. support John Howard’s arguments about the success of the
➥ Dylan Matthews, ‘Did gun control work in Australia?’, post-1996 gun laws in Australia?
2 August 2012.
4 Discuss the extent to which the law can be used effectively
1 Read the article by Paul McGeogh and outline his claims
to deal with the problem of guns.
about the role of the NRA in US political life.

Research 12.8
Search the internet to find the following articles about
a tragic shooting:
➥ Michelle Fenech and Rebecca Senescall, ‘Boy, 14, charged 3 Go to the Australian institute of Criminology website (refer
with murder over friend’s shooting’, Camden Advertiser, 8 to www.cambridge.edu.au/prelegal3weblinks for link) and
December 2008 find out how many people die from accidental discharge of
➥ ‘Man charged after Josef Cruickshank’s shooting death’, a firearm each year.
The Australian, 9 December 2008 4 Evaluate the implications for the legal system in dealing
1 What are the implications of this shooting for gun laws, the with accidental death from firearms. Suggest legal
policing of those laws and the education of young people? and non-legal ways that this type of tragedy could be
2 What has been the outcome of this case? Locate the minimised. For instance, is it a case of further reform of the
outcome by searching for further media reports and court relevant laws, greater police powers, education, or some
transcripts. other means?
Research 12.9
The problem of guns, or small arms as they are known in international law, is one that plagues the whole world. The main problem is
that too many guns are sold (both legally and illegally) to people in poor countries that are characterised by civil unrest and poverty.
Many of the thousand people killed by firearms each day are innocent women and children. There is an attempt to establish an
effective UN treaty on small arms, but without the United States’ backing, there is little chance of success.
1 Research the issue of gun violence around the world 2 Go to the UN website (refer to www.cambridge.edu.au/
by following the link at www.cambridge.edu.au/ prelegal3weblinks for link) and find out about progress on
prelegal3weblinks to the website of the International the small arms treaty.
Action Network on Small Arms (an NGO) and downloading
its report titled ‘Gun violence: The Global Crisis’.
12.5 Conclusion On the 14th anniversary of the Port Arthur massacre, the
effectiveness of the post-1996 law reforms was evaluated in an
It can be argued that Australia’s legal system has been effective in article by Simon Chapman and Philip Alpers that appeared in the
dealing with the issue of deaths from firearms since tough measures Sydney Morning Herald on 27 April 2010, titled ‘Tight gun controls the
were introduced in the aftermath of the Port Arthur massacre in most powerful weapon’. On the 16th anniversary of the massacre
1996. The dangers posed by both legal and illegal guns, however, the gun laws were again up for debate when the Justice Minister
are something that we can never become complacent about. Tragic admitted there were gaps in our gun control laws (refer to www.
accidents and suicides will continue to occur and there will still be cambridge.edu.au/prelegal3weblinks to listen to ‘Justice Minister
homicides committed with firearms. Since 2002, the proliferation admits gaps in gun control laws’). However, few people involved in
of handguns, both legal and illegal, has gained the attention of our gun law debates in Australia argue that we would be better off with
nation’s law-makers. It seems that gun-related issues are never far the US model of minimal gun control.
from resurfacing.
Our gun laws and enforcement measures need to be constantly
revisited to ensure they stay abreast of changing trends in the use
of firearms, both nationally and internationally. This is an issue in
which there is always room for further law reform.

PART III
Chapter summary

➔ The Port Arthur massacre on 28 April 1996 is the worst ➔ Before 1996, gun laws varied greatly among the states and
massacre in Australian history. territories. The Victorian government introduced tougher laws
➔ The Port Arthur massacre set in motion a chain of events that after the Hoddle Street and Queen Street massacres. These
led to gun reform in Australia at both state and federal levels. reforms were opposed by the Sporting Shooters Association
➔ The Australian government – when compared to the of Australia.
governments of other countries, especially the United States – ➔ After the Port Arthur massacre, a National Agreement on Gun
can be said to have acted quickly and decisively to enact gun Laws was signed by state and federal governments at the end
law reform. of 1997.
➔ Media coverage of the Port Arthur massacre was concerned ➔ From 1998, Australia has experienced a decrease in gun
with Martin Bryant’s motives and trying to understand how deaths. Despite this decrease, it is difficult effectively to
and why he would indiscriminately kill 35 people. measure the success of the gun buy-back scheme.
➔ On 22 November 1996, Bryant was sentenced to 35 life
sentences without the possibility of parole.
1 The high-powered semi-automatic weapons that Martin Bryant 4 The toughening of gun laws in Australia since 1996 has led to:
used on 28 April 1996 were: a no change in the number of deaths from firearms each year
a imported from the United States b a doubling of the number of deaths from firearms each year
b bought legally in Tasmania c a decrease of the number of deaths from firearms each year
c acquired illegally d the elimination of all deaths from acts of homicide using
d illegal under existing Commonwealth legislation a gun
2 Martin Bryant’s motive for his crime: 5 Achieving reforms of the gun laws in the United States is
a was that he had been bullied and abused as a child extremely difficult because:
b was that he had a hatred of foreign tourists a many politicians are against making tougher laws
c was that he was insane and did not really know what b the NRA has enormous cultural power and political clout
he was doing c arms manufacturers successfully lobby politicians against
d is not known for sure tougher laws
3 The most probable reason for the growth of conspiracy d all of the above
theories about the Port Arthur massacre is:
a Australian political leaders have refused to speak publicly
about the massacre.
b Martin Bryant was denied natural justice.
c Pro-gun groups here and overseas oppose attempts by
governments in Australia to toughen the laws on guns.
d Martin Bryant was not capable of using a gun.

1 Summarise the events on the day of 28 April 1996 in your 5 Outline some of the events that prompted gun law reform in
own words. Australia before 1996.
2 How was Martin Bryant brought to justice? 6 Outline the legal responses to gun-related deaths in Australia
3 Explain why Martin Bryant has been the subject of controversy before 1996.
since his imprisonment. 7 What was Tasmania’s attitude to gun law reform before 1996?
4 Explain why the Port Arthur massacre has generated claims of 8 What was the National Agreement on Guns and how did it
a conspiracy. propose to toughen up the gun laws in Australia?
Topic review
Extended response
1 Describe the massacre at Port Arthur in 1996 and outline the

responses of the police, the courts and the political leaders.
Marking criteria for the extended-response
2 Discuss the controversies surrounding Martin Bryant’s questions can be found on the Cambridge GO
sentencing and his imprisonment. website. Refer to these criteria when planning and
3 Evaluate the effectiveness of the Australian legal system in writing your response.
dealing with the problem of gun-related deaths.

4 Explain the difficulty of achieving reform on laws related to
small arms on the global level.
5 If gun law reform since 1996 has seen positive results in
Australia, why has the United States been unable to do the
same with its gun laws?

The Queensland floods


Area 3: Individuals or groups in conflict with the state
Chapter 13
Mohamed Haneef
Chapter objectives
➔ explore legal concepts and terminology with respect to ➔ investigate the role of the law in addressing and responding
Mohamed Haneef and the law to change in relation to terrorist threats
➔ investigate the legal system’s ability to address issues ➔ describe the legal and non-legal responses to Mohamed
relating to Mohamed Haneef Haneef’s case
➔ explore the differences in the laws in relation to ➔ evaluate the effectiveness of legal and non-legal responses
Mohamed Haneef in achieving justice for Mohamed Haneef.
Key terms
Australian Federal Police (AFP) ministerial discretion separation of powers
Commonwealth Director of Public pro bono surety

Prosecutions (CDPP)
reckless terrorism
guilt by association

PART III
Chapter 13: Mohamed Haneef
Relevant law
Anti-Terrorism Act 2004 (Cth) Migration Act 1958 (Cth)
Anti-Terrorism Act (No. 2) 2005 (Cth) Terrorism (Police Powers) Act 2002 (NSW)
Criminal Code Act 1995 (Cth) Crimes Legislation Amendment (Terrorism) Act 2004 (NSW)
Crimes Act 1914 (Cth)
Significant cases
Haneef v Minister for Immigration and Citizenship [2007] FCA 1273 Minister for Immigration and Citizenship v Haneef [2007] FCAFC 203

13.1 A brief history of the
Mohamed Haneef case
The case of Dr Mohamed Haneef is one of the most highly publicised
and politicised incidents in recent Australian legal history. The facts
of the case and the context in which it took place are not only
interesting from a social and political perspective, but also raise
a number of important legal issues for Australia relating to the
separation of powers, the presumption of innocence, and guilt by
association.
Dr Haneef, a medical doctor from India, first arrived in Australia
in 2006 on a temporary skilled working visa and was employed at
the Gold Coast Hospital in Southport, Queensland for almost a year
before his case became international news.
Dr Haneef’s arrest and detention on 2 July 2007 on suspicion
of terror-related activity (specifically in relation to the Glasgow
International Airport attack) caused a great deal of controversy in
Australia and India. He was the first person arrested and detained
under the Anti-Terrorism Act (No. 2) 2005 (Cth) and the first to have
his detention extended to 12 days under the Act without being
charged with a crime.
This chapter will explore the events that led to Mohamed Figure 13.2 The attacks on 11 September 2001 caused widespread fear
Haneef’s arrest and detention and analyse the legal responses and fuelled the ‘war on terror’.
to his case. In order to understand these events, it is necessary

to place them in the broader social and political context: a post-
Terrorism
September 11 context characterised by pervasive fear of further
terrorist attacks against Western democracies. This public anxiety Terrorist attacks are nothing new. Throughout history, individuals,
motivated governments to use the full force of their legal systems political and religious organisations have committed terrorist
and law enforcement agencies to tackle the terrorist threat on attacks in an attempt to achieve certain political and social
their doorstep. objectives. The word ‘terrorism’ is often politically and emotionally
charged. Terrorist acts are designed to coerce or intimidate a
government or other group into taking a course of action it
would not otherwise take. These acts are considered particularly
heinous because in addition to the crime of harming or killing
innocent civilians, they are intended to influence political events.
Most people believe that political change, on either a national
or international level, should take place as a result of discussion,
argument and negotiation, not violence.
As we saw in Chapter 11, terrorism has become a global
phenomenon. The brief list of major terrorist attacks below gives
some idea of the frequency and severity of attacks in the wake
of 11 September 2001. Not only did these events kill and injure
thousands of innocent people, they also fuelled a ‘climate of fear’
Figure 13.1 Dr Mohamed Haneef around the world.

PART III
Figure 13.3 Terrorist attacks in London, Madrid and Bali in the wake of the
September 11 attacks fuelled a ‘climate of fear’ around the world.
C hap ter 13: M ohamed Hane ef 261

➥ 12 October 2002 – Bali bombings at the scene, the car’s driver suffered severe burns to 90 per cent of
This attack took place in the tourist district of Kuta on the his body and later died, and a number of injuries were sustained by
Indonesian island of Bali, killing 202 people. Various members members of the public, including those who helped police detain
of Jemaah Islamiyah, a radical Islamist group, were convicted in the car’s occupants.
relation to the bombings. The attack was said to be the first such terrorist attack to target
➥ 11 March 2004 – Madrid bombings Scotland and was linked to a failed attack in London the previous
This attack took place aboard four commuter trains in Madrid, day. The London attempt had involved two separate car bombs in
Spain, killing 191 people and wounding a further 1800. the centre of the city, which were detected and disabled before
In total, 10 separate explosions were recorded. A loose group they could explode. The Glasgow attack occurred only three
of Moroccan, Syrian and Algerian Muslims was suspected of days after Gordon Brown, a Scottish-born MP from Glasgow, was
having carried out the attacks. Eighteen people, most from appointed Prime Minister of the United Kingdom.
north Africa, have been convicted in Spain for taking part in Within three days, eight people suspected of involvement in
the attacks. the Glasgow and London incidents had been taken into custody.
➥ 7 July 2005 and 21 July 2005 – London bombings The two men in the car at Glasgow International Airport, arrested
The 7 July attacks were a series of coordinated suicide at the scene, were identified as passenger Bilal Abdullah, a British-
bombings on London’s public transport system. The bombings born medical doctor of Iraqi descent, and driver Kafeel (‘Khalid’)
killed 52 people and injured a further 700. A group of British Ahmed, an engineer who was born in Bangalore, India, raised in
Muslims unhappy with Britain’s involvement in the Iraq War Saudi Arabia, and was studying for a PhD at Cambridge University
was later identified as having been responsible for the attacks. in the United Kingdom. A suicide note left behind indicated that
The 21 July attacks were a second series of four explosions on the two had intended to die in the attack.
the London Underground and on a bus. Fortunately, the main On 2 August 2007, Kafeel Ahmed died of the third-degree
explosive charges failed to detonate during this attack and no burns he sustained, while Bilal Abdullah was later found guilty
casualties were recorded. in the UK of conspiracy to commit murder and was sentenced to
➥ 1 October 2005 – second Bali bombings 32 years in prison. Kafeel’s brother, Dr Sabeel Ahmed, was also
These attacks occurred at two sites, Jimbaran and Kuta, on later sentenced in the UK to 18 months’ jail after pleading guilty to
the island of Bali. Twenty people were killed and 129 people failing to disclose information that could have prevented an act of
were injured as a result of three suicide bombers. As with terrorism. Sabeel had received an email message from Kafeel and
the bombings in 2002, Jemaah Islamiyah is believed to be details of his will before the attack, but was later cleared of having
responsible for the attacks. any actual knowledge of the bombings.
terrorism violence or the threat of violence, directed at a group of people

for the purpose of coercing another party, such as a government, into a Mohamed Haneef
course of action that it would not otherwise pursue
On 2 July 2007, two days after the attack, a 27-year-old junior
medical doctor, Dr Mohamed Haneef, was arrested by the
Glasgow International Airport attack Australian Federal Police (AFP) at Brisbane Airport, on suspicion
of a link to the Glasgow International Airport attack.
Following the spate of international terrorist attacks described Dr Haneef was the first person detained in Australia under
above, there was an attempted bombing at Glasgow International newly introduced anti-terrorism laws. His detention without
Airport in Scotland, in the afternoon of Saturday, 30 June 2007. charge by police became the longest in Australia’s recent history
The incident involved a Jeep Cherokee, loaded with canisters and the case became a cause for controversy in both Australia
containing explosive propane gas, which was driven into glass and India. Dr Haneef was eventually released and all charges
doors at the airport terminal entrance. The propane canisters withdrawn, but the case brought to light important questions
failed to explode; however, the car was set ablaze. The car was about the law and its application by both police and the Australian
prevented from entering the terminal by security bollards that had government, and its implications for Australian law will continue
been installed outside the entrance. Although nobody was killed into the future.

PART III
Background flat, which was registered to Mohamed Haneef. Dr Haneef
had left the SIM card with friends in his old flat when he
Mohamed Haneef was born in 1979 and raised in Mudigere, a small
departed from the United Kingdom in 2006, as it still contained
town surrounded by coffee plantations in the state of Karnataka,
credit. Sabeel Ahmed later moved into the flat.
India. Following his father’s death in a motor vehicle accident when
➥ One of the critical issues in the case was an allegation made
Mohamed was 18 years old, his family moved to Bangalore, the
by the AFP and Commonwealth prosecutors that the SIM card

state capital, where he completed his education and eventually
was actually found inside the Jeep Cherokee used in the attack.
attained a medical degree with first-class honours in 2002 from
This allegation later turned out to be false. It was revealed that
Dr B. R. Ambedkar Medical College.
UK police had originally told the AFP that the card was in the
After graduation, Haneef completed his internship in India,
Jeep, but this was later clarified. Some concerns were expressed
then moved to the United Kingdom, where he worked in a hospital
about AFP’s handling of the information.
at Runcorn, Cheshire in north-west England. After seeing an
➥ One-way ticket: When Dr Haneef was arrested at Brisbane
advertisement in the British Medical Journal, he applied to work in
Airport he had a one-way airline ticket to Bangalore, India, paid
Australia under Australia’s temporary skilled worker scheme and
for by his father-in-law. This created a perception that he was
obtained a job as a medical doctor at Queensland’s Gold Coast
attempting to flee the country and may have been involved in
Hospital.
the terrorist attacks. This perception was strengthened when
Dr Haneef arrived in Australia with his wife on 11 September 2006
it was discovered that Dr Haneef had received a phone call
and commenced work at the Gold Coast Hospital on 18 September,
from the brothers’ mother telling him that the police wanted
moving into a nearby apartment in Southport. His wife, Firdous
to speak to him about ‘some problem’ involving his SIM card.
Arshiya, later became pregnant and in March 2007 she returned to
However, this is still a tenuous connection.
India for family support during the final months of her pregnancy.
➥ As stated by Dr Haneef in his interviews with police, there was
Dr Haneef continued working at the hospital in Australia and on 26
another significant reason for his departure: he wanted to
June 2007 their daughter was born in Bangalore. Shortly afterwards
be with his wife and newborn daughter, who had been born
a series of events began that would change both their lives and
by caesarean section only days before and was not well. It is
leave a permanent mark on Australia’s legal history.
possible that he also felt frightened and alone in Australia after
Australian Federal Police (AFP) the federal police agency of the he learnt there could be a problem with his old SIM card, and
Commonwealth of Australia, set up to enforce the federal laws and to wanted the support of his family.
protect the interests of Australia both domestically and internationally
➥ Shared flat: In a formal court statement, the AFP claimed
that Dr Haneef had told them that he had lived in the United
Kingdom at his Liverpool flat with two of the suspects of the
Detention and allegations Glasgow attack. However, the record of Dr Haneef’s interview
The Australian Federal Police arrested Dr Haneef at Brisbane Airport with police shows that he told them that he had lived at the
on 2 July 2007, following information received from UK intelligence Liverpool flat with several named doctors, none of whom was
agencies that Australian police believed linked him to the Glasgow a suspect in the Glasgow incident. Dr Haneef had moved out
Airport attack. Some of the facts and allegations that influenced the of this flat before Sabeel Ahmed moved in. He had visited
AFP’s belief were: Cambridge on two occasions in 2004 while in the United
➥ Family relationship: Dr Haneef was a distant relative of both Kingdom to stay with Kafeel Ahmed, for a total of six days.
the driver involved in the Glasgow International Airport attack, The error was not corrected by the AFP.
Kafeel Ahmed, and Kafeel’s brother Sabeel Ahmed, who at ➥ Contact with suspects: The AFP also alleged that Dr Haneef
that stage was only a suspect in the case. Dr Haneef was the had been in continuing contact with both of the suspects of the
brothers’ first cousin once removed – that is, they shared the Glasgow attack. Dr Haneef’s laptop was seized by police and
same great-grandparents. details of financial transactions investigated. Links between Dr
➥ SIM card: During investigations into the Glasgow incident, UK Haneef and other terror suspects were also alleged, and later
police discovered a mobile phone SIM card in Sabeel Ahmed’s proved to be false.

At the time of Haneef’s arrest, the Federal Police Commissioner,
Mick Keelty, acknowledged that he ‘may have done nothing
wrong and may at the end of the day be free to go’. Despite this,
from the time of his arrest to the day of his release on 27 July,
Dr Haneef would spend a total of 25 days in detention, only to then
be released without any charge. During this time the then Federal
Minister for Immigration and Citizenship, Kevin Andrews, also made
the controversial decision to cancel Dr Haneef’s Australian working
visa, a decision that was later appealed in the Federal Court of
Australia and overturned.
The case resulted in intense media speculation and commentary
and eventually a full inquiry into the affair, ordered by the Federal
Attorney-General after the change in government following the
2007 federal election. A timeline of all the major events in the case Figure 13.4 The SIM card given to Sabeel Ahmed was one of the key issues
in the Haneef case.
of Dr Haneef is set out below.
Mohammed Haneef: A timeline of events
Date Event
11 September 2006 Dr Mohammed Haneef arrives in Australia with his wife, Firdous Arshiya, under a temporary skilled working visa.
18 September 2006 Dr Haneef commences work as a registrar at the Gold Coast Hospital in Queensland.
26 June 2007 Dr Haneef’s wife, Firdous Arshiya, gives birth to their first child in Bangalore, India.
29 June 2007 An attempted terrorist attack in London fails after car bombs intended to explode are discovered and disabled.
30 June 2007 Attack at Glasgow International Airport; a distant relative of Dr Haneef’s, Khafeel Ahmed, is identified as the driver.
2 July 2007 Dr Haneef is arrested by the AFP at Brisbane Airport as he is about to board a plane to Bangalore, India.
Dr Haneef is detained under Australia’s new anti-terrorism laws pending further investigation.
14 July 2007 AFP formally charges Dr Haneef for the offence of ‘recklessly providing support to a terrorist organisation’,
punishable by up to 15 years’ imprisonment.
16 July 2007 Brisbane Magistrates’ Court grants Dr Haneef bail under ‘exceptional circumstances’, with bail set at $10 000.
Federal Minister for Immigration and Citizenship Kevin Andrews decides to cancel Mohamed Haneef’s visa.
Queensland Department of Health suspends Dr Haneef’s employment without pay pending the outcome of the
charges. Dr Haneef remains in custody without exercising his bail.
18 July 2007 Dr Haneef’s barrister, Stephen Keim SC, confirms that he leaked a transcript of the initial AFP interview with
Dr Haneef to counter a campaign of damaging allegations by law enforcement agencies.
27 July 2007 Commonwealth Director of Public Prosecutions withdraws the charge after the $3.2 million investigation against
Dr Haneef, citing ‘no reasonable prospect of a conviction’. This followed an admission by the AFP the week before
that the SIM card was not found at the scene of the Glasgow attack as previously alleged.
Dr Haneef is released from custody.
29 July 2007 Dr Haneef voluntarily returns to India, no longer with a valid Australian working visa.
21 August 2007 Federal Court of Australia overturns the Minister for Immigration and Citizenship’s decision to cancel Dr Haneef’s visa.
21 December 2007 Full Court of the Federal Court of Australia confirms the judgement overturning the visa cancellation.
13 March 2008 Federal Attorney-General announces an inquiry into the case of Dr Haneef, called the Clarke Inquiry.
21 November 2008 Findings and recommendations of the Clarke Inquiry are presented to the government.
23 December 2008 Clarke Inquiry report is presented to the public.
15 December 2010 Dr Haneef is compensated by the federal government for an undisclosed sum.

PART III
Review 13.1
1 Describe the international events leading up to the 2007 Glasgow International Airport attack. What were some of the incidents
that had occurred in Australia and abroad?
2 What was some of the evidence that police alleged linked Dr Haneef to the Glasgow attack and attempted London bombings?

How were these claims argued and do you believe they were plausible?
3 Using the timeline above, describe in chronological order five of the most important events that occurred during the case of
Dr Haneef. Justify your selection.
13.2 Mechanisms for that is, short-term detention for named individuals without evidence
achieving justice in the or charges. The object of these amendments was ‘to prevent an
imminent terrorist act’ or ‘to preserve evidence of or relating to a
Mohamed Haneef case recent terrorist act’. Under a preventive detention order, a person
has the right to contact a lawyer, one family member or household
The laws applied in the case of Mohamed Haneef fall into three member, his or her employer, and one employee or business partner,
main categories: but only to let them know that he or she is safe and cannot be
➥ anti-terrorism laws which had allowed Dr Haneef to be detained contacted. The person being detained is not allowed to tell them that
for 12 days without charge he or she is under a preventive detention order.
➥ anti-terrorism laws under which Dr Haneef was eventually The Act also introduced new crimes with severe punishments,
charged, and later released after the charge was dropped including supporting or recklessly providing funds to a potential
➥ Australian migration law relating to the cancellation of terrorist. Under the new s 103.2(1)(b) of the Criminal Code (Cth),
Dr Haneef’s visa, and the later overturning of that decision. the individual did not need to know that the person receiving
These laws and other factors that were influential in Dr Haneef’s the funds was a terrorist, only that he or she was reckless about
case, including the reactions of politicians, the media and the the possibility.
community, are examined below.
reckless able to foresee negative consequences of doing something,
but carrying on with the act regardless. Recklessness implies a state of
Legal responses mind that is not as strong as an intention to do something, but for some
criminal offences it is considered equivalent to intention for the purpose
of establishing fault.
One of the features of the case that made it so controversial was the
use of recently introduced anti-terrorism laws.
The Anti-Terrorism Act (No. 2) 2005 (Cth) was passed by the
federal parliament in December 2005 amid much public and
Anti-terrorism laws and Dr Haneef
political debate. It and other laws were introduced in an effort to Following the terrorist attack at Glasgow International Airport in
hamper the activities of any potential terrorists in Australia, and June 2007, Mohamed Haneef became the first person in Australia
it included numerous provisions that were seen as a departure to be detained under the rules enacted by the Anti-Terrorism Act
from accepted standards of the criminal law and the separation of (No. 2) 2005 (Cth). Dr Haneef also became the first person to have
powers. They were widely criticised as being ‘rushed’, and in one his detention extended under the Act and the first to be charged
incident a confidential draft of the legislation was published online with supporting a terrorist organisation.
by the ACT Chief Minister, Jon Stanhope, who stated that ‘law of this Probably the most controversial aspect of the case was those
significance made in this haste can’t be good law’. Nevertheless, the first 12 days of Dr Haneef’s detention, as they involved detention
laws were passed without the full support of the parliament or the of a suspect without charge. Although the Anti-Terrorism Act (No. 2)
public, and without incorporating many of the amendments and 2005 (Cth) only permits detention without charge for 48 hours,
protections proposed. complementary state legislation implementing the preventive
Schedule 4 of the Act amended the Criminal Code 1995 (Cth). detention scheme could be passed, under which someone
The changes included the introduction of preventive detention – could be detained for up to 14 days without charge. This was

Figure 13.5 Dr Haneef’s barrister, Mr Stephen Keim SC
agreed between the Commonwealth and state governments for example a short period of detention following a person’s arrest
in September 2005. In NSW, the Terrorism (Police Powers) Act before he or she can practically be brought before a court, or when
2002 (NSW), as amended by the Crimes Legislation Amendment awaiting trial on remand following a charge if bail is refused by a
(Terrorism) Act 2004 (NSW), permitted exactly that, provided that court. It has been argued that state legislation that gives a state
the police obtained a preventive detention order from the NSW court a power that is incompatible with constitutional restrictions
Supreme Court to prevent an imminent terrorist act or preserve on federal courts (such as the power to grant a preventive detention
evidence of a recent terrorist act. order) is also a new and disturbing departure from the principles
Dr Haneef was not even permitted to contact his wife until he enunciated in Lim and in Kable v DPP (NSW) [1996] HCA 24.
had been held in detention for nine days. It was not until 14 July As discussed above, serious deficiencies were later discovered
2007 that the AFP made the decision, following consultation with in the evidence used by the AFP to detain Dr Haneef and repeatedly
the Commonwealth Director of Public Prosecutions (CDPP), to to extend that detention. The decision to charge Dr Haneef was
formally charge Dr Haneef under s 102.7(2) of the Criminal Code 1995 also controversial and involved questions about the quality of the
(Cth) with the offence of providing support to a terrorist organisation, evidence against him and the soundness of the decision by the
being reckless as to whether it is a terrorist organisation. AFP and Commonwealth prosecutors. This is particularly relevant
This new approach represents a significant departure from where the reliance on certain tenuous evidential links by the
accepted law regarding involuntary detention and the separation AFP and prosecutors, as outlined earlier in this chapter, suggests
of powers between the government and the courts. In the case that the case against Dr Haneef may have been one of guilt by
of Lim v Minister for Immigration [1992] HCA 64, the separation of association rather than any real evidence linking him to the
powers was interpreted by the High Court of Australia as preventing crime accused.
involuntary detention by the government except as a consequence Perhaps an earlier indication of this was evident in the granting
of a court’s finding of criminal guilt. Some exceptions are possible, of bail by the Brisbane Magistrates’ Court to Dr Haneef following

PART III
formal charges by the AFP. Under the terrorism legislation,
guilt by association criminal liability imposed for associating with
ostensibly for the protection of the public interest, bail could another person who commits a crime, rather than for committing that
only be granted for terrorism offences under ‘exceptional crime oneself
circumstances’. In an emotional hearing during which Dr Haneef
reportedly wept, Dr Haneef’s barrister, Stephen Keim SC, argued for
his release on bail, as the prosecution’s case was ‘extremely weak’. surety a sum of money provided to support an accused person’s

undertaking that he or she will return to court for hearing at a later date,
Commonwealth prosecutors argued that Dr Haneef should remain as a condition of granting bail; it is agreed that the money will be forfeited
behind bars. The magistrate made the decision to grant Dr Haneef if the accused fails to appear
bail on the condition that he would provide a $10 000 surety.
These deficiencies highlight some of the dangers inherent
in the anti-terrorism laws and their potential to severely restrict
a person’s liberty. Following the bail hearing, the Queensland
Department of Health suspended Dr Haneef’s employment
without pay pending the outcome of the charges. Although bail
was granted, Dr Haneef elected to remain in custody without
exercising his right to bail, probably due to the high dollar
amount required for bail and the government’s decision to cancel
Dr Haneef’s visa, as discussed below.
Commonwealth Director of Public Prosecutions (CDPP) independent

prosecuting agency established by a federal Act to prosecute alleged
offences under federal laws
separation of powers the doctrine that the powers and functions of the
judiciary are separate from those of the legislature and the executive
Figure 13.6 The media in Australia were highly influential in shaping public opinion in the Haneef case.

Migration law The government appealed to the Full Court of the Federal
Court but the judgement was upheld on 21 December 2007. In an
Another significant aspect of the case involved the cancellation
interesting comment in the case, Justice Spender had questioned
of Dr Haneef’s working visa under Australian migration law. In
the character grounds of associating with terrorists underpinning
Australia, the governing statute is the Migration Act 1958 (Cth). It is
the Minister’s decision. ‘Unfortunately I wouldn’t pass the character
enforced by the federal Minister for Immigration and Citizenship
test on your statement because I’ve been associated with people
and overseen where necessary by the federal courts.
suspected of criminal conduct,’ Justice Spender said to the
Dr Haneef had been granted a ‘business (long stay)’ visa under
Immigration Department’s counsel.
the Act, which was valid from 30 August 2006 to 30 August 2009
and was sponsored by his employer, the Queensland Department ministerial discretion power granted to a minister under an Act to make
of Health. On the day of Dr Haneef’s bail hearing, 16 July 2007, a specified decision or order
immediately following the decision to grant Dr Haneef bail, the

then Minister for Immigration and Citizenship, Kevin Andrews, used
his power of ministerial discretion under s 501(3) of the Act to Review 13.2
cancel Dr Haneef’s visa.
1 What were the three main categories of law applied
The direct consequence of the Minister’s decision was severe.
in the case of Dr Haneef?
As a result of his visa being cancelled, Dr Haneef effectively
became an ‘unlawful non-citizen’ under the Act, which meant that 2 What were the anti-terrorism laws applied in the case
of Dr Haneef and why were they controversial?
he became liable to detention by the Department of Immigration
pending his removal from Australia. In effect, this meant that if 3 Describe the legal events surrounding the cancellation
Dr Haneef accepted his right to bail and release from custody, of Dr Haneef’s Australian visa. Do you think that the
cancellation was justified on the facts?
he could be liable for further detention under different laws. The
grounds for this decision were questioned not only by Dr Haneef’s
legal team but by many commentators. The Minister had made
his decision on the basis that Dr Haneef had failed the ‘character
Non-legal responses
test’ necessary for the granting of the visa, based on a reasonable
suspicion that he had an association with terrorists. Dr Haneef’s
Media and politics
legal team brought the decision before the Federal Court of As is true of many high-profile cases, the Australian media were
Australia for review. highly influential in shaping public opinion with respect to the
The charges against Dr Haneef had been withdrawn by the case of Dr Haneef. Media coverage at the time was generally highly
Commonwealth Director of Public Prosecutions on 27 July 2007, critical of the government’s position and the lack of evidence in the
citing ‘no reasonable prospect of a conviction’, and Dr Haneef case and there was much analysis of the impact of the government’s
was immediately released from custody and his passport new anti-terrorism laws.
returned to him. The Minister stated that he was seeking advice Perhaps the most important event in the reporting of the case
on Dr Haneef’s visa and did not intend to detain him but that he occurred when Dr Haneef’s barrister, Stephen Keim SC, leaked a
had a responsibility to act in the national interest. Without a valid 142-page transcript of Dr Haneef’s initial interview with the AFP
Australian visa to remain, and most likely without any desire to to the media. According to Keim, the transcript clearly showed
remain after these events, Dr Haneef voluntarily returned to India ‘the very thin case that the police are claiming to have’. Both
on 29 July 2007. John Howard, then Prime Minister, and Mick Keelty, then Federal
However, the Federal Court case challenging the Minister’s Police Commissioner, expressed outrage at the leak.
decision went ahead and on 21 August 2007, Justice Spender Before the source of the leak was identified, Prime Minister
of the Federal Court of Australia set aside the decision on the Howard had publicly condemned it, saying, ‘Whoever’s been
basis that the Minister had erred in applying the wrong test of responsible for leaking this document is not trying to make sure
‘association’. Justice Spender also noted that the circumstances that justice is done. Whoever’s responsible for this is trying to
had since changed. frustrate the process and it should be condemned.’

PART III
Initially, Mr Keelty took the unusual step of publicly criticising Mr In addition, many other organisations provided valuable
Keim and suggested that he would pursue legal action to charge commentary and expert opinion to media reporters and in some
the source of the leak with contempt of court because the court cases staged demonstrations in support of Haneef. Some of these
proceedings had already begun and because the leak undermined organisations, including links to their respective websites, are listed
judicial process. below in the ‘Legal Links’ box.
Mr Keim, however, successfully argued that his client, ‘pursuant Members of the Australian public fiercely debated the case, with

to the legislation under which he was detained and questioned, some arguing that the federal government would not have treated
has a legal right to a copy of that document, and that document someone in this fashion if they knew he was innocent, and others
was provided to him, without any restrictions whatsoever. He was suggesting that the Howard government was trying to capitalise on
perfectly entitled, through me, to release that document.’ Mr Keim terrorism to gain support in an election year.
argued that the government was applying a double standard, in that
pro bono a Latin term meaning ‘for the public good’, used to describe
government authorities had also leaked parts of the transcript to the
work that is done by a lawyer or barrister on a voluntary basis and without
media to suggest that the case against Dr Haneef was stronger than it payment, where there are issues of community concern or significant
actually was. Mr Keim was later cleared of any professional misconduct effect on disadvantaged groups
and was given a civil rights award for his effort. He was also named an
‘Australian of the Year’ by the Weekend Australian magazine.
Following Dr Haneef’s release on 27 July 2007, in an interesting
comment on political influence in the case, prominent barrister
Lex Lasry QC stated that bungles in the case against Dr Haneef may
have been caused by political pressure in an election year. ‘I think
there were pressures probably on the offices of the DPP and to
some extent on the AFP, probably resulting in converting whatever
suspicion there was into a charge which was not supported by any
evidence. I think this case demonstrates a couple of things and one
of them is that politicians ought to keep out of these cases and leave
the police to do their work.’
Legal Links
The ABC closely covered the issues in the Mohamed Haneef
case as they developed. An episode of its current affairs
show Four Corners was aired on 1 October 2007 discussing
the issues in the case. Follow the link at www.cambridge.
edu.au/prelegal3weblinks to the Four Corners website which
is devoted to the Mohamed Haneef case and includes a
viewable copy of the original episode.
Community support
Throughout the case, a number of political organisations,
community groups and professionals provided assistance as well
as commentary.
The support of people in the legal community is evident from
the fact that Haneef’s legal team, including Stephen Keim SC,
agreed to represent him pro bono, that is, at no cost. Figure 13.7 Community support for Haneef during the case was strong.

Legal Links 13.3 Responsiveness
Visit the websites of the organisations listed below (refer to
of the law
www.cambridge.edu.au/prelegal3weblinks for links) and
investigate their purpose. Discuss the contributions each One of the most significant outcomes of the case of Dr Haneef
organisation may have made to the case of Dr Haneef. was the decision by the then newly elected Rudd government to
institute an inquiry into the whole affair, to establish the facts and
Australian Lawyers Alliance
determine what went wrong in the application of the laws. The
Amnesty International Australia
inquiry would include recommendations as to how to improve
Australian Muslim Civil Rights Advocacy Network
the law and law enforcement agencies, to prevent such a situation
Law Council of Australia occurring in the future.
International response The Clarke Inquiry

The Haneef case was not only controversial in Australia, but also
On 13 March 2008 the Commonwealth Attorney-General,
received widespread attention internationally, particularly in
Robert McClelland, announced an inquiry into the ‘arrest,
Dr Haneef’s home country, India and, not surprisingly, in the country
detention, charging, prosecution and release’ of Dr Haneef, to be
where the original terrorist attacks took place, the United Kingdom.
conducted by the former NSW Supreme Court Justice, the Hon.
In the United Kingdom, a Guardian editorial condemned
John Clarke, QC.
the ‘grubby’ Howard government’s ‘demonising’ of Haneef as
The Clarke Inquiry lacked a number of powers: for example it
‘irresponsible electioneering’ to push it to victory in the federal
had no power to compel witnesses to answer questions and was
elections of 2007. In India, The Hindu newspaper accused the
impeded by the classified status of documents and difficulties
Australian government of ‘high-handed action verging on
negotiating the national security concerns of the various agencies.
vengefulness’. The paper, usually more restrained, called the
Despite these limitations, the report included a number of crucial
investigation a ‘shambles’ and claimed the Howard government’s
findings and recommendations. One of the main findings was the
fight against terrorism was based on an ‘authoritarian mind-set and
conclusion that the material used as evidence in the case against
indeed bloody-mindedness’.
Dr Haneef was ‘completely deficient’. The report stated that the
The Indian government became heavily involved in the
main AFP officer responsible for the investigation, Commander
case following a direct appeal to the Indian Prime Minister by
Ramzi Jabbour, had ‘lost objectivity’ and was ‘unable to see that the
Dr Haneef’s wife, Firdous Arshiya. It was reported that Prime
evidence he regarded as highly incriminating in fact amounted to
Minister Manmohan Singh was so worried about Dr Haneef after
very little’.
this that he was unable to sleep. The Indian involvement resulted in
The report included numerous recommendations to improve
direct discussions between the two countries about the facts and
the effectiveness of the laws. The main recommendations
progress of the case and included a number of exclusive visits to
included:
Dr Haneef by officials from the Indian High Commission in Australia
➥ that the provisions of the Crimes Act 1914 (Cth) in relation to
while Haneef was still in custody.
terrorism offences, introduced by the Anti-Terrorism Act 2004
(Cth), be comprehensively reviewed by an independent
Review 13.3 reviewer
➥ that the government take steps to review and determine ways
1 How did the media shape public opinion in response to
the case of Dr Haneef? Were there any allegations about to clarify the roles and responsibilities of different government
political influence on the case? If so, describe them. agencies relating to counterterrorism and the information that
they collect
2 How did the national and international community
respond to the case of Dr Haneef? Were the responses ➥ that s 102.7 of the Criminal Code (Cth), under which Dr Haneef
negative or positive? was charged, be amended to remove uncertainties about the

element of fault or intention

PART III
➥ that the Minister for Immigration and Citizenship be informed In an interview with ABC Radio shortly after the release of
of the relevant evidence in a counter-terrorism case, to ensure the report, Dr Haneef said, ‘I’m very, very pleased and very
proper cooperation regarding visas relieved.’ Dr Haneef, then based in Dubai, said the Clarke Inquiry
➥ that ways to educate officers involved in counterterrorism cases had finally proved his innocence. While he said it was too early
about the various roles and responsibilities of agencies and to talk of a return to Australia, he suggested that an apology
departments, and about the investigation and prosecution of from the Australian government would be appreciated. He said

terrorist offences in Australia be developed. that the case had done great damage to his reputation, not only
For the most part, the government has agreed to the in Australia but also in India and around the world. Dr Haneef
recommendations made by the Clarke Inquiry. However, many of also said that he may seek substantial compensation for loss of
the recommendations are complex and will take time to implement. income and damage to his reputation.
At the time of publication, it remains to be seen which of these Dr Haneef’s legal team, including Bernard Murphy, chair of the
changes will be put into practice. national law firm Maurice Blackburn, and barrister Stephen Keim, SC,
have also gone on record several times calling for a public apology
Research 13.1 from the government. In December 2008, Queensland Premier
Anna Bligh broke ranks with the Labor Party to call publicly for a
Conduct an internet search based on the links in the
government apology to Dr Haneef.
Legal Links box below relating to the government’s
On 2 September 2009 Mick Keelty announced his intention to
response to the Clarke inquiry and answer the following
resign from the position of Australian Federal Police Commissioner.
questions:
While some, including the Commonwealth Attorney-General
1 Has the government made any changes to the
Robert McClelland, rejected suggestions that the fallout from
anti-terrorism laws following the findings of the
the Clarke Inquiry was responsible for his resignation, many
Clarke Inquiry?
others, including Dr Haneef’s lawyers, welcomed the decision,
2 Has the government implemented any of the
stating that the AFP had been an ‘organisational disaster’ under
recommendations of the report?
Mick Keelty.
In 2010, Dr Haneef returned to Australia for mediation talks
with the Federal government. His legal team negotiated a
Legal Links compensation payment that was undisclosed. It is estimated
A full copy of the official report of the Clarke Inquiry into the payment was somewhere in the $1 million category, despite
the case of Dr Mohamed Haneef can be found at the Law the government spending over $8 million during his 25-day
Council of Australia website (refer to www.cambridge.edu. ordeal. The federal government also issued a letter of apology
au/prelegal3weblinks for link). to Dr Haneef’s family. Kevin Andrews, who was the Minister for
The Australian government’s official response to the Immigration and Citizenship at the time, has refused to apologise
Clarke Inquiry is available on the Commonwealth Attorney- for his part in the case.
General’s website.
Review 13.4
1 Has Dr Haneef received any compensation from
Response to the Clarke Inquiry the Australian government for his time in detention?
Report 2 Has the government made any formal apology to
Dr Haneef or to the public for the AFP’s handling of
Following the public release of the Clarke Inquiry Report on the case?
23 December 2008 and the government’s response, a number of
events relevant to the case have taken place.

13.4 The future for Australia However, these threats cannot be seen in isolation from the impact
of such laws on the liberty of the individual and the rule of law.
The case of Dr Haneef provides a clear illustration of the dangers
The Clarke Inquiry included some damning condemnation of the
inherent in such laws and their potential for abuse. It remains to be
handling of the Haneef case and of the laws used to detain and
seen whether there will be changes to the laws as recommended
prosecute him. This is particularly true of the controversial anti-
by the Clarke Inquiry.
terrorism laws introduced in 2004 and 2005, as discussed above.
One final comment on the case was that of former Queensland
Media commentary and the involvement of interested groups
Premier Peter Beattie, speaking after Dr Haneef’s release on 27 July
has increased public awareness of the laws and shed light on some
2007. Congratulating the Commonwealth DPP for reviewing
of their deficiencies and the potential dangers that the changes to
and dropping the charges against Haneef, Beattie reiterated the
the law represent. The question that must be considered is whether
importance of people ‘having the guts to stand up and make the
these laws are truly necessary responses to terrorist threats.
point’ about unjust laws. The outcome of the case ‘proves the
system works … this is an indication that Australia is fair-minded’,
Figure 13.8 Protests against human rights abuses are common and are an
he said, and as such, it ‘vindicates the Australian way of life’.
important aspect of freedom of speech and freedom of assembly.

PART III
Chapter summary

➔ Recent terrorist attacks have changed legal and political ➔ The Commonwealth Director of Public Prosecutions eventually
systems around the world and governments have gone to withdrew the charges against Haneef, citing ‘no reasonable
various lengths to try to eradicate terrorism. prospect of a conviction’.
➔ Individuals such as Mohamed Haneef who are accused of ➔ The decision of the Minister for Immigration and Citizenship to
terrorist activities may be subject to questionable legal processes revoke Haneef’s visa was overturned by the Federal Court.
as a result of governments’ zeal to catch and prosecute. ➔ There was considerable media, legal and community support
➔ The Australian government recently introduced new anti- for Dr Haneef in Australia and internationally.
terrorism laws and Haneef was the first person to be detained ➔ While the laws have come under close scrutiny and criticism,
under the Anti-Terrorism Act (No. 2) 2005 (Cth) and the first to debate continues over whether they are adequate to deal
be charged with supporting a terrorist organisation. with terrorist threats while upholding the legitimate rights
➔ Some Australian counterterrorism laws can be in conflict with of individuals.
fundamental principles relating to the rights of individuals.
1 The granting of bail in the Mohamed Haneef case 4 The Minister for Immigration and Citizenship cancelled
demonstrates: Dr Haneef’s visa because:
a the seriousness of the charge a Dr Haneef had overstayed his visa.
b support for the anti-terrorism laws b Dr Haneef had given his relative his old SIM card.
c a lack of sufficient evidence c Dr Haneef was involved in the Glasgow International
d none of the above Airport attack.
2 Dr Haneef was charged on the basis of: d Dr Haneef failed the character test.
a a SIM card given to his relative 5 The new anti-terrorism laws challenge the rule of law because:
b involvement in the Madrid bombings of 2004 a Suspects like Dr Haneef can now be arrested arbitrarily and
c the cancellation of his working visa investigated for a terrorist activity.
d all of the above b State laws have been superseded.
3 The Clarke Inquiry found that: c Bail now has a higher threshold.
a Dr Haneef was guilty of aiding terrorism. d Sedition now has a new definition.
b The evidence against Dr Haneef was not sufficient.
c The AFP and ASIO had acted properly in the case.
d Minister Andrews had no right to cancel Dr Haneef’s visa.

1 Outline the alleged links between Dr Haneef and his cousins 4 Explain the circumstances of Dr Haneef’s detention for 25 days.
in the United Kingdom. Under what different laws was he detained?
2 What do you understand by the term ‘guilt by association’? 5 Do you think we need different laws for terror suspects?
How does this term apply to the Haneef case? Explain your response using the Haneef case as an example.
3 Comment on the Minister’s decision to cancel Dr Haneef’s visa.
What was the reasoning behind the decision and do you think
it was justified?
Topic review
Extended response
1 ‘Australia’s new terrorist laws severely erode civil liberties.’

Discuss this statement in light of the Haneef case.
2 Consider whether Dr Haneef should have received questions can be found on the Cambridge GO
compensation from the federal government. Explain why and website. Refer to these criteria when planning and
discuss what amount you think would be fair and reasonable. writing your responses.
Why are the details of compensation payments kept secret?

Julian Assange
Chapter 21 is available
for teachers and students
in the Interactive Textbook

Chapter 14
Outlaw motorcycle gangs
Chapter objectives
➔ explore the background and issues related to organised ➔ discuss the legal issues that these approaches will create
crime and OMCGs in Australia ➔ describe the legal and non-legal responses to OMCGs
➔ identify and apply legal concepts and terminology relating ➔ explore the different legal approaches adopted by federal
to OMCGs and the law and state legal systems in relation to OMCGs
➔ investigate the legal system’s ability to address issues ➔ evaluate the effectiveness of legal and non-legal responses
relating to OMCGs in achieving justice in relation to OMCGs in conflict with the
➔ explore the different possible approaches of the legal state and the public.
system to organised crime and OMCGs
Key terms
bookmaking digital piracy outlaw motorcycle gangs (OMCGs)
chapter draconian laws organised crime
coercive powers extortion patch
colours guilt by association task force
control order money laundering rule of law

PART III
Chapter 14: Outlaw motorcycle gangs
Relevant law
Serious and Organised Crime (Control) Act 2008 (SA) Crimes Legislation Amendment (Serious and Organised Crime) Act
(No. 2) 2010 (Cth)
Crimes Legislation Amendment (Gangs) Act 2006 (NSW)
Crimes (Criminal Organisation Control) Act 2012 (NSW)
Crimes (Criminal Organisations Control) Act 2009 (NSW)
Criminal Organisation Act 2009 (Qld)
Significant cases
The Milperra Massacre Trials R v Hawi [2012] NSWSC 332 (10 April 2012)
South Australia v Totani [2010] HCA 39 Wainohu v NSW [2011] HCA 24

14.1 Outlaw motorcycle March 2009, 185 gang members were charged with 527 offences
relating mainly to violence, drugs and weapons.
gangs in Australia The ACC estimates that there are currently 39 active OMCGs in
Australia, with approximately 3300 full members, and with strong
Recent high-profile incidents involving members of outlaw and complex criminal networks that operate in many illicit markets
motorcycle gangs have attracted the attention of the media, law throughout Australia. Reports suggest that the groups’ main areas
enforcement bodies and legislators across Australia. In March of criminal operations are manufacturing and distributing illicit
2009, a 29-year-old man, Anthony Zervas, was killed at Sydney drugs, money laundering and extortion.
Airport, the result of a brutal bashing. The incident involved an OMCGs are not specific to Australia but are present in many
attack by members of the Sydney-based Comanchero motorcycle countries around the world. Some of the best-known OMCGs
club against members of the widely known Hells Angels club. The internationally include the Hells Angels and the Bandidos. Some
man killed was returning to Sydney from a party in Melbourne 19 groups are estimated to operate in New South Wales alone, with
with his brother and a friend, both of whom were Hells Angels some other famous groups including the Comancheros, the Finks,
members. the Rebels and the Gypsy Jokers.
In 2012, Mahmoud ‘Mick’ Hawi was sentenced to 21 years jail for This chapter investigates some of the issues relating to OMCGs
his involvement in the very public incident. The sentencing judge and organised crime in general, and discusses some of the complex
stated that Hawi displayed ‘flagrant disregard’ towards law and for legal mechanisms that have attempted to deal with the issues.
the memories of so many innocent bystanders.
The incident continues to fuel public debate about the rising outlaw motorcycle gangs money laundering disguising
crime associated with outlaw motorcycle gangs (OMCGs) in (OMCGs) organisations whose money obtained from illegal
members use the structure of activities to make it appear legal
Australia, and potential for all-out war between members of rival a motorcycle club as a front for
motorcycle gangs, in particular, drive-by shootings. criminal activity
According to the Australian Crime Commission (ACC), a federal
extortion obtaining money or
statutory body established to investigate and combat serious property from a person or group
crime, OMCGs represent a ‘real and present danger to the Australian by force, intimidation or illegal
power
community’. In New South Wales between October 2008 and
Figure 14.1 On 22 March 2009, Anthony Zervas was brutally murdered at Sydney Airport. The incident sparked a full review of the
legislation relating to OMCGs in NSW.

PART III
Organised crime ➥ counterfeiting of money
➥ digital piracy
Organised crime can be defined as illegal activities organised ➥ illegal bookmaking and gambling.
by groups of criminals, most commonly for the purpose of OMCGs have been identified in Australia as operating in some of the
generating financial profit. The most well-known organised crime areas of organised crime listed above. However, it is important to
note that simply belonging to, participating in or associating with

groups in existence today are the Mafia (Sicily and the USA), the
Japanese Yakuza and the Mexican drug cartels. The Mafia has been one of these groups does not necessarily mean that a person has
popularised in television shows like The Sopranos and movies like committed any crime. It may only be a small number of individuals
The Godfather. In Australia, television series such as Underbelly and in such a group, rather than the organisation as a whole, who are
Bikie Wars recounted the gangland wars in Melbourne in the 1990s involved in any illegal activities. There is a serious danger that
and the Milperra (bikie) Massacre in 1984 in Sydney. all members might be ‘painted with the same brush’ without
Organised crime has a long history worldwide. Throughout justification or fair process. With motorcycle gangs in particular
history pirates, highwaymen and bandits have attacked trade routes this can be a significant problem: simply being a member of one
and roads to steal and profit from the goods being transported. of the many legitimate motorcycle gangs may arouse unfounded
Many people are familiar, for example, with the stories of the Kelly suspicion from the public, or even the police, that an individual is
Gang in 19th-century Australia. Smuggling and organised drug- involved in some kind of wrongdoing.
trafficking rings are also common in many countries. Some of the

organised crime illegal activities organised by criminal groups or
current criminal organisations in Italy and Japan can be traced back
enterprises, most commonly for the purpose of generating financial profit
over many centuries.
Today, organised criminal groups operate in various areas of
illegal business. The most common of these are: digital piracy unauthorised reproduction and distribution of digital
➥ drug manufacture and distribution music, software, videos or other material, often for profit
➥ extortion and money laundering

➥ prostitution
bookmaking the activity of calculating odds on sporting and other events
➥ people smuggling
and taking bets
➥ environmental crimes such as the dumping of toxic waste
Figure 14.2 Hong Kong gang members are arrested in a police operation.
C hap ter 14: O utl aw motorc yc l e gan g s 279

Motorcycle clubs
Legal Links
Motorcycle clubs are not new. The first motorcycle was invented The Motorcycle Riders Association of Australia (MRAA) is
in 1885 in Stuttgart, Germany and motorcycles were commercially a non-profit organisation founded in 1978 that represents
available by 1894. One of the oldest motorcycle clubs, the Yonkers the interests of Australian motorcyclists. It aims to promote
Motorcycle Club, was founded in Yonkers, New York in 1903. fair and sensible laws, road safety, and a better image for
There is nothing inherently wrong or criminal about belonging Australian motorcyclists.
to a motorcycle club. Many people join motorcycle clubs to share The American Motorcyclist Association (AMA) promotes
a common interest in motorcycles, or for recreational riding or the interests of motorcyclists generally and organises
competition, and members of clubs come from all walks of life. various motorcycling events.
Today, the largest motorcycling organisation worldwide is the A link to the website of the Australian Motorcycle
American Motorcyclist Association (AMA), which was founded in Grand Prix can be found at www.cambridge.edu.au/
1924. It represents people with an interest in motorcycling – or as prelegal3weblinks.
described by the AMA, ‘freedom on two wheels’. The AMA currently
claims to have close to 300 000 members and promotes various
motorcycling events in the United States and around the world. The
Review 14.1
AMA also acts as an advocate for motorcyclists before governments,
local and international law-makers, and the general public. 1 What are outlaw motorcycle gangs and how
There are hundreds of motorcycling organisations in Australia. widespread are they in Australia?
Clubs in NSW include the Ulysses Club, the Ambassadors and the 2 What is organised crime and how does it relate
Vietnam Veterans. The organisational structures of clubs vary, but they to OMCGs?
often have elected officers and directors, annual fees and a regular 3 What is the difference between OMCGs and
publication. The clubs often sponsor social events and organise everyday motorcycle clubs?
recreational or competition rallies. One of the biggest motorcycling
events in Australia is the Australian Motorcycle Grand Prix, an
international event held annually on Phillip Island, Victoria.
Figure 14.3 Motorcycle clubs have evolved over time in much the same way as the motorcycle itself.

PART III
Outlaw motorcycle gangs ‘1 per cent’, to clearly distinguish themselves from the norms and
values of mainstream clubs; other patches include symbols such as
Outlaw motorcycle gangs represent only a very small percentage of a skull and crossbones. The colours will also act as a crucial identifier
motorcycle groups. Some OMCGs have a long history, with one of for law enforcement agencies seeking to prove OMCG involvement.
the largest international clubs, the Hells Angels, first formed in 1948 The structure of an OMCG is often another important factor for
the law in identifying the group and its levels of membership under

in Fontana, California.
OMCGs began to emerge in Australia in the 1960s and spread the defined legal terms for such organisations. The history and
quickly across all states, with NSW now home to the greatest organisation of one such club, the Hells Angels, is discussed below.
number of clubs and club branches, known as chapters. The largest

chapter a local branch of a colours a motor cycle club’s
gang in Australia is believed to be the Rebels, with an estimated
motorcycle club standard vest showing the club’s
2000 members. patches on the back as a mark of
The history of OMCGs is different from that of mainstream identification
motorcycling clubs, and their roots can be traced back to the late patch a symbol or club logo
1940s, following the end of World War II. A number of motorcycling attached to the back of a
motorcycle club member’s vest
clubs began to emerge in the United States when servicemen
returned from the war. They formed clubs to mix with other returned
servicemen, to share their interest in popular motorcycling, and Research 14.1
possibly to escape the routine of returning to full-time work.
One of the first criminal incidents attributed to OMCGs was on Visit the website of the Australian Hells Angels and evaluate
4 July 1947, US Independence Day, when the AMA sponsored a the content of the site.
series of motorcycle races in the small town of Hollister, California. 1 Are there any references to criminal activity on the site?
One of the motorcycle groups involved was reported to have 2 What attitudes are conveyed by the photographs
initiated drag racing on the main streets of town, as well as drunken posted in the site’s photo gallery?
brawling. When one rider was arrested and locked in a police cell, an
estimated 750 riders challenged the local seven-man police force to
release their friend. The event became known as the Hollister riots.
In a now famous statement, an AMA spokesperson clarified that it
was only ‘1 per cent’ of the riders who had caused the trouble that
weekend, and that the other 99 per cent were law-abiding citizens.
This distinction between ‘1 per cent’ and ‘99 per cent’ is still used
by OMCG commentators today, and ‘1 per cent’ is sometimes even
used by OMCG members themselves as a mark of their identity.
It represents 1 per cent of bikies who operate outside the law.
Identity is important to OMCGs. Many motorcycle clubs, both
mainstream clubs and OMCGs, will have unique club ‘patches’ on
the back of their members’ vests. These patches feature the club’s
logo, name and often the initials ‘MC’ (motorcycle club), together
with the club’s local branch or chapter. These patches form what is
known as the club’s ‘colours’. For OMCGs, the club’s colours are very
important to both the club and its members. Sometimes in order for
a member to earn the club’s patches, the club might require a vote
and swearing of allegiance to the club, or the performance of tasks.
A member losing his (or her) colours, for example to the police or a
rival gang, might result in some form of penalty or even expulsion
from the club. Some OMCGs even have an additional patch with Figure 14.4 Club colours are made up of a number of patches.

Case Space
The Hells Angels
The Hells Angels Motorcycle Club originated in Fontana, The Sergeant-at-Arms is responsible for the behaviour of
California in 1948. Initially, it attracted soldiers returning from members at meetings and special events, such as funerals.
World War II, and later the Vietnam War. The name ‘Hells The Secretary-Treasurer controls finances, with duties such as
Angels’ had been in use by several US air fighting squadrons collecting fees and paying club expenses, and may sometimes
during both World Wars. act as intelligence gatherer if operations by police are pending.
The fact that many of the club’s founding members came The Road Captain organises and navigates mandatory bike
from military backgrounds influenced the structure of the club rides, including rest stops for food and petrol.
and formed the basis of the military style hierarchy and notions
It is believed that there is a code of conduct governed by
of territory or ‘turf’ that still exist today.
the Sergeant-at-Arms, which may differ slightly from chapter
Over time, the Hells Angels grew from a small club in to chapter. It lays down three major rules that apply to all
California to an international organisation with approximately members:
189 chapters in 22 countries.
1 No sexual assault.
An article published by Neal Hall in the Vancouver Sun in 2005
2 No use of heroin.
provided insight into the hierarchy of the Hells Angels Club
3 No ‘burning’ of drug deals (that is, attempting to ‘rip off’
and the social structure of its individual chapters. In his article,
a buyer or seller).
Hall cited the expert opinion of Sergeant Jacques Lemieux, an
Ottawa-based expert on the Hells Angels. In Australia, the official Hells Angels website displays a range
of activities based around the riding of motorcycles with prizes
According to Lemieux, each chapter holds weekly meetings
and giveaways. It features notices of events, email contacts and
known as ‘church’. The President is the absolute leader, and
a photo gallery. It does not list any rules for club members.
makes key decisions about the chapter’s activities. If absent, the
President is replaced by a Vice-President.
Figure 14.5 The Hells Angels chapter headquarters in New York

PART III
OMCGs and organised crime given by Monk for Oldham to be expelled from the gang and
his club colours removed. Oldham was found dead several days
As mentioned above, according to the Australian Crime Commission, later in an apparent suicide.
OMCGs present a visible threat of complex and highly functional ➥ In early 2007 more than 60 members of the Parramatta and
criminal networks. Although estimates vary, the cost of OMCG Granville chapters of the Nomads, previously affiliated with the
Comancheros, defected to the Bandidos. The defection caused

activities has been estimated at around $2.2 billion per annum.
They are reputed to be involved in: a new eruption of violence between the Comancheros and
➥ the manufacture and distribution of illegal drugs Bandidos, involving fire-bombings and drive-by shootings and
➥ money laundering and extortion resulting in some 340 arrests and 883 charges. NSW Police set
➥ trade in illegal firearms up Operation Ranmore to stop the escalation of violence.
➥ trade in stolen goods The increasing rate of drive-by shootings, which was more than 40
➥ violent crimes and motor vehicle offences. per cent higher in 2011 than in 2010, is one of the most serious crime
On the other hand, OMCG members claim that their clubs are trends in the state, the latest report from the NSW Bureau of Crime
legitimate motorcycle organisations and not used as fronts for Statistics shows. There were 100 such incidents in 2011 compared to
organised crime, as claimed by law enforcement agencies. Many 71 in 2010. The director of the Bureau, Don Weatherburn, said the
outlaw motorcycle gangs are believed to be involved in outwardly new figures showed drive-by shootings were a matter of ‘serious
legitimate businesses such as entertainment, private security, concern’ and are ‘right up there with the number one problem
finance, transport, natural resources and construction. we’ve got in NSW’.
One of the most important Australian cases in which OMCGs The above cases illustrate only the public, violent face of some
received widespread media exposure for violent criminal activity OMCG activities. The black market criminal activities of OMCG-
was also one of the largest criminal court cases in Australian history. related business, such the trade in illegal drugs or firearms, or illegal
The incidents occurred in a Sydney suburb in 1984, in what became financial activities like money laundering and extortion, are often
known as the ‘Milperra Massacre’. not as well known to the public.
Since the Milperra Massacre there have been many public and However, reports from Australia’s intelligence agencies suggest
violent incidents involving OMCGs across Australia. Some of the that crime associated with OMCGs is on the rise, and that OMCGs
most shocking recent examples include: are moving into the maritime and security industries. OMCGs
➥ In 1999 in Geelong, Victoria, two public bombings within are becoming more sophisticated. As with legitimate business,
24 hours were the result of violence following the torture and the competition for profit and territory can result in friction and
murder of a member of the Comancheros by the Bandidos and rivalry, and the reports suggest that there may be a consolidation
the torching of the rival gang’s Sydney clubhouse. of the smaller groups into larger and more powerful organisations
➥ In Perth in 2001, former WA Chief Detective Don Hancock and controlling criminal operations in Australia.
his companion were blown up by a car bomb planted by the As an issue of public and political concern in all Australian
Gypsy Jokers, following an incident where one of the Gypsy jurisdictions, OMCGs have received much attention from law-
Jokers’ members was shot and killed in a pub. makers. Some of the attempts by law-makers and members of the
➥ In 2006 there was a drive-by shooting of a Sydney nightclub public to address the problems, and some of the implications of
named ‘Gas’, in which 50 shots were fired into the doors by three those attempts, are discussed in more detail below.
men in balaclavas. About 150 people were inside when the

shooting broke out. It was alleged the shootings were OMCG-
related and a warning to the club’s owners that they should use
Review 14.2
their security guards to further the club’s drug operations. 1 How did OMCGs develop and what is their history?
➥ In 2006, Russell Oldham, the former Sergeant-at-Arms of the
2 What are some of the characteristics of OMCGs and
Bandidos, is believed to have shot dead his chapter President, what is their structure?
Rodney Monk, in a restaurant. The apparent cause of the
3 What are some of the recent cases involving OMCGs
murder was the affair Monk was having with his female parole and what issues do they present?
officer, against club rules, further exacerbated by an order

Case Space
The Milperra Massacre trials
The court case following the ‘Milperra Massacre’ was at the a 14-year-old girl caught in the crossfire while she sold raffle
time one of the largest criminal trials in Australian history. In tickets. More than 20 others were wounded.
total, 43 people were charged with seven counts of murder. The judge in the case. Justice Adrian Roden of the Supreme
The Milperra Massacre took place on Father’s Day 1984 in Court of NSW, named Ross as the instigator of the violence as
the Sydney suburb of Milperra. It involved two rival gangs, the ‘supreme commander’ of the Comancheros, and the person
the Bandidos and the Comancheros, and a number of other primarily responsible for the decision that members of his club
motorcycle gangs. The chief conflict between the Bandidos and go to Milperra in force and armed.
Comancheros was between Anthony ‘Snoddy’ Spencer, who left Ross was given a life sentence for his part in the violence, but
the Comancheros to become a Bandido leader, and William ‘Jock’ served only 5 years and 7 months. Seven other members of the
Ross, the President of the Comancheros. There was intense rivalry Comancheros gang received life sentences and 16 Bandidos
between them and other outlaw gangs for control of the cocaine served 14 years for manslaughter. No ‘biker’ testified in the cases
trade and the manufacture and supply of speed (amphetamines). and many of the details of the event are still unknown to this day.
The heavily armed gangs clashed in the car park of the As a result of the massacre, the Firearms and Dangerous
Viking Tavern in Milperra during a motorcycle swap meet. In Weapons Act 1973 (NSW) was amended to introduce a new
the resulting violence there was a murderous shoot-out that licensing regime for the control of firearms. (The legislation
saw four Comancheros and two Bandidos killed, along with currently in force in NSW is the Firearms Act 1996.)
Figure 14.6 Milperra Massacre, the aftermath

PART III
14.2 Mechanisms for Laws targeting individual crimes
achieving justice in All Australian states and territories have statutory offences under
relation to OMCGs which the members of OMCGs can be prosecuted for criminal acts.
For example, prosecutions of participants in the violent incidents
mentioned above would have been made under standard criminal

Recent media attention and public concern following some of the
laws like assault, murder, firearms offences or offences of dealing in
violent OMCG-related incidents have resulted in important, and
illegal drugs.
unprecedented, legislative responses.
One of the difficulties encountered by police in dealing with
One of the main difficulties is that OMCG activities are a nation-
OMCG criminal activities is that prosecuting for individual crimes
wide problem, but the problems often occur and are dealt with on
can seem inadequate to deal with the widespread nature of the
a state-wide basis. Each of the different jurisdictions in Australia has
problem. The police work and the evidence required to prosecute
elected to address the issue in different ways. In addition to the legal
the individual crimes on a case-by-case basis is time-consuming
responses, responses of the public and interested groups have helped
and resource-intensive. This is especially true with OMCGs, where
to shape the approach to OMCGs around the country.
a ‘code of silence’ among club members, combined with a fear
of speaking out on the part of both victims and other people
Legal responses associated with the clubs, means that the evidence needed to
convict will be very difficult to obtain.
Legal responses to OMCGs fall into three categories:
Convictions of only those individuals who can be proved
➥ enacting laws to prosecute individuals for the specific crimes
to have committed those crimes can have little impact on the
that they have committed, such as assault, drug offences or
wider organisational nature of OMCG activities. As a result, most
money laundering
jurisdictions in Australia have in place legislative frameworks that
➥ establishing police taskforces or increasing police powers to
focus more on criminalising the types of activities that OMCGs
gather intelligence on OMCGs and target their activities – for
might be involved in, and that target the businesses and profits of
example, in 2012 in NSW, police acting under Operation Kinnarra
those activities. These may feature:
were joined by Strike Force Raptor, other State Crime Command
➥ money laundering offences
squads, the Metropolitan Region Commands, the Riot Squad,
➥ trafficking and smuggling offences
the Police Dog Unit and the Rescue and Bomb Disposal Unit
➥ orders for reporting of financial transactions, or
to conduct simultaneous raids on 18 premises throughout
➥ legislation whose object is to deprive criminals of the proceeds
the Sydney metropolitan area. They included addresses at
or benefits derived from their offences, to prevent reinvestment
Cranebrook, Georges Hall, Auburn, Granville, Parramatta,
of the proceeds in further criminal activities, and to enable law
St Marys, Blackett, Merrylands, Rosehill, Constitution Hill,
enforcement agencies to trace those proceeds: for example the
Guildford, Pemulwuy, Pennant Hills and Bella Vista. This was in
Proceeds of Crime Act 2002 (Cth).
response to a number of drive-by shootings in Sydney’s south-
west by the Hells Angels and Nomads OMCGs.
➥ enacting laws that aim to criminalise the clubs themselves or
participation in the clubs (see the Crimes (Criminal Organisation
Control) Act 2012).
The implications of these different approaches are subject to
intense debate by politicians, law interest groups and other
interested parties.
Figure 14.7 Most jurisdictions in Australia focus of the types of illegal

activities in which OMCGs might be involved.

Taskforces and intelligence ➥ In March 2009, the NSW police established Strike Force
Raptor to target the illegal activities of OMCGs. By the end of
Another legislative response in Australia has been to provide
April, more than 50 arrests had been made and 120 charges
greater powers to law enforcement agencies to prevent, investigate
laid, and substantial quantities of amphetamines and
and disrupt OMCG or other organised crime activities. This often
firearms seized.
involves the setting up of special law enforcement agencies, or
➥ In New South Wales, Operation Ranmore was set up in 2007
taskforces, such as Strike Force Raptor and Kinnarra, which are
as part of a crackdown on OMCGs, enabling police to raid the
given special powers to investigate and prosecute the more serious
clubhouses of the Finks, Rebels, Lone Wolf and Fourth Reich
crimes. Some of these special powers might involve:
and obtain evidence to lay charges.
➥ telecommunications interception
➥ In Queensland, the OMCG Task Force Hydra was established
➥ the use of surveillance devices
to target OMCGs and resulted in a number of charges for
➥ search warrants
criminal activities.
➥ special coercive powers
➥ In Victoria, the Purana Task Force was set up in 2003 to
➥ sharing intelligence between state, national and international
investigate the Melbourne gangland killings, and made a
agencies.
number of critical arrests.
Some of these special powers are controversial because they
increase the traditionally accepted powers of government and
law enforcement agencies. They provide certain powers to police, Laws targeting organisations and membership
such as coercive powers to compel witnesses to give evidence, Probably the most controversial approach to OMCGs is the
that are normally held only by the courts. When these powers are introduction of laws that target or criminalise the clubs themselves
allowed, they will usually require a high degree of oversight to rather than the individual crimes committed. In effect, this approach
ensure they are not abused. Such laws raise important issues about ‘outlaws’ motorcycle gangs in the true sense.
the separation of powers, as introduced in Chapter 2 – that is, the This approach is most contentious where the law attempts to
doctrine that the powers and functions of the judiciary are separate criminalise individual membership of or association with such clubs.
from those of the other two branches of government. Civil liberties groups argue that criminalising people’s association
Due to reported increases in OMCG activity in recent years, with illegal groups would create unnecessary police powers and
in 2006 the Australian Crime Commission recognised OMCGs may start the cycle of police arresting other protest groups, such as
as a ‘high risk crime group’ and established the OMCG National environmentalist groups which may engage in illegal activity such
Intelligence Task Force to investigate OMCG membership and as trespass.
activities and establish national policies to address the issues. There are a number of fundamental legal difficulties with this
In 2008, this taskforce was replaced by the Serious and Organised approach and no two jurisdictions in Australia approach the issues
Crime National Intelligence Task Force, which has a strong focus on in the same way. The difficulties concern questions of precisely
OMCGs but also on other areas of organised crime. It also works how and by what process a group is defined as criminal, and what
with agencies in different Australian jurisdictions, and encourages level of individual involvement is criminalised. For example, would
collaboration. a group of four teenagers going into a store to shoplift a DVD be
a ‘criminal organisation’? Would all four be equally guilty? Who
task force a special group or coercive powers special powers
should determine this and what crimes should be covered?
committee of experts formed for sometimes given to a commission
the express purpose of studying a or police task force that allow The four main issues that must be determined are:
particular problem it to summon any witness to ➥ Defining an organisation – this includes how many people
give evidence or produce any
can form a group (for example, two or more; three or more)
documents – these powers are
usually only vested in courts and what activities or objectives make it illegal (for example,
committing a serious offence or obtaining some profit or
In addition to the federal government, a number of states have advantage from it)
set up operations and taskforces to deal with organised crime ➥ What is the criminal link – the level of criminal activity that
activities. For example: is required (for example, committed a past offence, intends to

PART III
commit an offence or comes together to commit an offence, or
rule of law the principle that no guilt by association criminal
simply poses a risk or threat of committing an offence) one is above the law; the most liability imposed for associating
➥ Process for determining – who can make the decision on important application of the with another person who
rule of law is that governmental commits a crime, rather than for
whether a particular group is a criminal organisation (for example,
authority is exercised in committing that crime oneself
the courts only, a government official, or simply the police) accordance with written, publicly
➥ Individual involvement – what involvement with the group disclosed laws adopted and

enforced in accordance with
a person must have to be considered criminal (e.g. leading the
established procedural steps
group, being a member of it, recruiting others, participating in (due process)
it, supporting it, or simply associating with a member of it).
Many commentators have acknowledged the risks that this
approach may pose to fundamental and accepted interpretations Research 14.2
of the criminal law, and especially to an individual’s civil rights.
Use the internet to search for recent media articles about
Some of the serious questions raised are:
OMCGs and answer the following questions:
➥ Should an organisation be criminalised if its members
only appear to be potential offenders, rather than actually 1 Are there any new police taskforces focusing on
OMCG activities?
committing or intending to commit an offence?
➥ Should government officials or the police have the power 2 Where are these taskforces based, what is their
to declare an organisation criminal, or should this only be jurisdiction (state, territory or federal), and what
powers do they have?
determined by a court? Should the organisation’s members
be given an opportunity to respond?
➥ Should a person be criminally liable for participating in such
Queensland approach
an organisation when he or she has not committed any other
offence? In 2007, the Queensland State Opposition introduced into the
➥ Should a person be criminally liable for simply associating state parliament the Criminal Code (Organised Criminal Groups)
with a member of such an organisation? Amendment Bill 2007. The bill’s purpose was to amend existing
Two central concepts of the law are brought into question by this laws to extend their coverage beyond parties to offences, and to
approach. The first is the rule of law, introduced in Chapter 1: that make it an offence to ‘participate’ as a member of an organised
is, the principle that laws should be applied in the same way to all criminal group. Its provisions included:
individuals. The danger of criminalising organisations, especially ➥ defining an organised criminal group as three or more people
where police or government officials can make the determination with an ‘objective’ of committing a serious crime for material
without court oversight, is that the law may be used to target benefit, or of committing a serious violent offence
individuals or individual associations, rather than being applied ➥ penalties of up to five years’ imprisonment for participation
equally to all. as a member of that organisation, if the person knew it was a
The second problem with the approach is that it affects a person’s criminal organisation and his or her participation contributed
fundamental freedom to associate by introducing laws of guilt by to the occurrence of criminal activity
association – under which a person may be found criminally liable ➥ defining ‘member’ to include anyone identifying himself or
simply by associating with another person who commits a crime, herself as a member, for example by wearing the club’s insignia,
even though that person has committed no crime himself or herself. patches or colours.
Three Australian states have recently attempted to enact laws Critics of the bill questioned the lack of connection between
with elements of the approaches outlined above. In Queensland, participation and actual criminal activity. The then Queensland
the first bill failed to pass in the Queensland Parliament but a Attorney-General and Minister for Justice, Kerry Shrine, described
second bill was passed, in 2009. In South Australia and New South the bill as ‘ill-conceived, unnecessary’ and ‘[extending the]
Wales, the bills were passed and enacted into law. Some of their basic principles of criminal liability to guilt by association’ where
provisions and associated issues are outlined below. ‘no specific act or omission by the accused is necessary’.

The bill did not receive enough support to pass. However,
following the violent killing of Anthony Zervas at Sydney Airport
in 2009, the Queensland government announced that it would
prepare new laws giving police the power to apply to the Supreme
Court for an order prohibiting identified members of an outlaw
motorcycle gang from associating with each other. This was
subsequently enacted in the Criminal Organisation Act 2009 (Qld).
In June 2012, Queensland police applied to the Supreme Court
under the Criminal Organisation Act to ban members of the Finks
club from associating with each other.
South Australian approach
Following numerous violent incidents involving OMCGs, including

the death of a gang member at an Adelaide nightclub, the SA
government enacted the Serious and Organised Crime (Control) Figure 14.8 Former SA Premier Mike Rann presents the new Act to
Act 2008 (SA). The SA laws aimed to disrupt activities of OMCGs the media.
and other criminal organisations and protect the public from
➥ The Police Commissioner can apply to the SA Magistrates’ Court
their violence.
for control orders prohibiting a person from associating with,
The Act gave unprecedented new powers to the government,
communicating with or being in the vicinity of specified people.
allowing it to declare an organisation a criminal organisation and
These orders can be made without the standard criminal onus
allowing police officers to make control orders preventing individual
of proof beyond reasonable doubt.
members of that organisation from doing specified acts or being
➥ A ‘senior police officer’ can prohibit a person or class of people,
in specified places. The laws are similar to some of the special
without court oversight, from being at a specified place or area
terrorism laws introduced by the federal government following the
or attending a specified event.
September 11 terrorist attacks. For example, the Anti-Terrorism Act
The Act has attracted much criticism for its severe restrictions and
(No. 2) 1995 (Cth) introduced two new Divisions into the Criminal
lack of adherence to long-standing principles of the criminal law. For
Code 1995 (Cth) allowing control orders and preventive detention
example, the Law Society of South Australia stated that ‘the legislation
orders to be made against individuals.
goes too far’, that it ‘undermines the presumption of innocence,
The SA Act is not restricted to OMCGs but can apply to any
restricts or removes the right to silence’, and does not allow courts
declared organisation. A ‘declared organisation’ is one whose
to ‘challenge possibly biased, unfounded, or unreasonable decisions
members associate for the purpose of organising or engaging
of the Attorney-General or Commissioner of Police’. Individuals may
in serious criminal activity, and that represents a risk to public
have no right to know the reasons for an order or to challenge the
safety and order, according to the SA Attorney-General.
truth or reliability of those reasons. In 2009, provisions of the Act
Some of the most critical provisions of the SA Act are:
were appealed to the Supreme Court of South Australia by members
➥ The Attorney-General can declare any organisation a criminal
of the Finks who had been charged under the Act. The Supreme
organisation without stating grounds and without right of
Court of South Australia declared provisions of the Act invalid and
appeal or court review. For example, the Finks have now been
the SA government is now appealing this ruling to the High Court
declared a criminal organisation.
of Australia. In 2010, the SA laws were thrown out by the High Court
➥ The Act creates an offence with a penalty of five years’
in a 6–1 verdict ruling that found the criminal association laws to be
imprisonment for anyone who associates more than five times
unconstitutional: South Australia v Totani [2010] HCA 39.
a year with a member of a declared criminal organisation. This
means a person can be deemed guilty by association as a result control order an order made by a court, government official or police
of any contact or meeting, even though that contact could be officer to restrict an individual’s liberty: for example, from doing a
specified act or being in a specified place
entirely innocent.

PART III
Figure 14.9 Motorcycle gangs tend to be targeted as a whole rather than as individuals when crimes are committed that involve their members.
of reforms specifically directed at OMCGs and organised crime.

Research 14.3 These included:
Research information about new Queensland legislation ➥ increased penalties for activities related to organised crime
targeting organised crime and answer the following questions: ➥ increased powers for police to apply for search and seizure
warrants, including the power to remove fortifications or
1 Has the law been passed?
surveillance cameras designed to stop police entry, powers
2 What changes does it make?
to pacify guard dogs and even to block drains (to prevent the
3 How does it differ from the 2007 bill discussed above?
flushing of drugs down the sink or toilet)
➥ new offences for recruiting another person to carry out or assist
in criminal activity
New South Wales approach
➥ the introduction of offences for knowingly participating
In New South Wales, there have been numerous amendments to in a criminal organisation. The definition of a criminal
the law and legislation since the 1984 Milperra Massacre. In 2005, organisation was almost identical to the one contained in
after several gang-related incidents, including the December the Queensland bill described above. Significantly, the NSW
2005 Cronulla riots, the NSW government introduced the Crimes Act did not include an offence for simply being a member of
Legislation Amendment (Gangs) Act 2006 (NSW) to bring in a series the organisation.

Immediately following the Zervas murder at Sydney Airport, any means. Declared gang members who continue to associate
NSW Premier Nathan Rees introduced new laws claimed to be can face two years’ imprisonment for a first offence or five years
‘tougher than South Australia’s’ and rapidly passed a new Act for a second.
through parliament to deal more specifically with OMCGs: the ➥ The Act contains new offences for recruiting members of
Crimes (Criminal Organisations Control) Act 2009 (NSW). Some of the a declared organisation, said to prevent establishment of
important changes are: younger ‘feeder groups’ for the organisations.
➥ Police can make an application to the Supreme Court to have ➥ It authorises new search warrants to make it easier for police to
an organisation declared criminal. This provision for court seize items connected to criminal organisations.
oversight stands in stark contrast to the SA law, where it is the As with the SA Act, some of the main concerns expressed were the
Attorney-General who can make the declaration. potential for immediate charges and control orders to undermine
➥ Membership of a declared organisation is an offence, as is the presumption of innocence, and concerns about rights to
‘association’ between members of a declared organisation who freedom of association. On the other hand, AFP Commissioner Mick
are under control orders. ‘Association’ includes either being in Keelty stated in an interview that he believed the new laws were
company with someone or communicating with someone by appropriate: ‘New South Wales does have a particular problem …
Media Clip
Police union warns of lack of bikie laws
Dan Oakes
Sydney Morning Herald, 20 June 2012
Outlaw motorcycle gangs are ‘making a mockery’ of the A spokeswoman for the Home Affairs Minister, Jason Clare,
legal system because of the federal government’s failure to said the government had tried to gain agreement for national
introduce national anti-bikie laws, says the union representing legislation, but had been stymied by the states. ‘We have asked
federal police. the states to refer the power to us to introduce national anti-
The Australian Federal Police Association says bikies are gang laws and give outlaw motorcycle gangs nowhere to hide,’
attaining ‘folk hero status’ while state governments struggle she said. ‘Unfortunately the states rejected our offer in April –
to introduce laws to crack down on the increasingly high- but it still stands.’
profile gangs. However, a spokesman for Victorian Attorney-General, Robert
In a letter to union members, the national president, Jon Clark, disputed this, claiming that the federal Attorney-General
Hunt-Sharman, said the federal government had failed to had raised no objections to plans by some states to enact
act on a promise to introduce national legislation that would uniform state-based laws, rather than federal legislation.
criminalise outlaw motorcycle gangs, allow authorities to The threat posed by bikies has been thrown into sharp relief
seize bikies’ assets, and provide for intelligence to be shared by recent public explosions of violence in a number of states.
by states. In 2009, a Hells Angel associate was beaten to death at
The gangs, ‘utilising their vast and suspicious “unexplained Sydney Airport in front of onlookers during a vicious brawl
wealth”, have been able to successfully challenge various state between Hells Angels and Comancheros.
laws in the High Court and thereby make a mockery of our legal Sydney has been rocked by a spate of drive-by shootings,
system’, Mr Hunt-Sharman writes. allegedly triggered by a feud between the Hells Angels and the
‘Whilst [they] get folk hero status (at least in their own Nomads, while late last year in Melbourne, Bandidos enforcer
minds), police are demoralised, having to use antiquated Toby Mitchell was shot five times in a busy Brunswick street at
legislation to combat these criminals, with the criminals 4.30pm.
getting away with murder. The South Australian and NSW governments have already
‘[The gangs] operate without regard to state or national had anti-bikie laws struck down by the High Court on the
borders. We need to ensure that there are nationally consistent grounds that they are unconstitutional. Queensland police have
laws, and this can only occur through leadership from the used new laws to apply to have the Finks declared a criminal
Gillard government.’ organisation.

PART III
of the number of outlaw motor cycle gangs that we’re aware of, 19 Media and politics
of them are situated in NSW,’ he said. ‘So of the nearly 40 gangs,
Media coverage, and the ability of media reports to shape public
nearly half of them are in NSW.’
opinion, have played a crucial part in political responses to OMCGs.
Violent incidents related to OMCGs are widely covered by the print
Review 14.3 and broadcast media, and politicians are often keen to reassure the

public that they are being ‘tough on crime’. This is most evident in
1 What are the three main legal responses to OMCGs the rapid response of the NSW government, following the Sydney
and organised crime?
Airport murder, to strengthen organised crime laws.
2 What are some of the advantages and disadvantages The media have enabled public discussion of the advantages
of each approach?
and drawbacks of the laws being proposed, and they have the
3 How does the legislation differ between Australian power to influence the way the issues are dealt with by legislatures
jurisdictions? Which approach or approaches do you and the police.
think are best and why?
Demonstrations
Update Various sectors of the public have voiced their opinions on OMCGs
and the law’s response through demonstrations. In March 2009
The High Court of Australia handed down a decision in 2011 that
about 700 members of clubs including the Hells Angels, Gypsy
has invalidated the Crimes (Criminal Organisations Control) Act 2009
Jokers, Rebels and Finks organised a ride through the towns of South
(NSW). The court found that the law was contrary to the separation
Australia’s Barossa Valley, accompanied by a police escort, to protest
of powers by undermining institutional integrity of the state’s
against the Serious and Organised Crime (Control) Act 2008 (SA). It
Supreme Court. The court also held that the law was outside of
took place in conjunction with the Gypsy Jokers’ annual ride, which
the legislative powers of the NSW Parliament. As the law conferred
had never before been open to other clubs. In a second peaceful
quite wide-ranging powers to enforcement authorities within
protest in May, about 300 members of different gangs converged
the state and pre-empted decisions that could be made in the
on Parliament House in Adelaide and presented a petition against
Supreme Court, it has been criticised as infringing fundamental
the new legislation. In response, SA Premier Mike Rann described
civil liberties. The NSW Parliament is considering its options
the laws as the ‘world’s toughest anti-bikie legislation’ and stated,
as to whether to repeal the law, amend it significantly or take a
‘We are talking about drug dealers on wheels and we are not going
completely different course of action in responding to the OMCGs
to bend or break because of [a] protest.’
(see Wainohu v NSW (2011)).
In another interesting form of protest, in response to
The NSW Parliament responded by enacting the Crimes (Criminal
Queensland’s Operation Hydra, aimed at curbing criminal OMCG
Organisations Control) Act 2012 (NSW). This Act is very similar to the
activities, a number of OMCGs met to discuss tactics to fight fines
2009 Act, but makes amendments to overcome the constitutional
issued to motorcyclists. One of the tactics was a campaign to fight
shortcomings of that Act. For instance, this new Act requires that
all fines in court to create backlogs in the system, with the aim
if an eligible Judge makes a declaration or decision under the Act,
of forcing police to reduce fines for traffic infringements.
this eligible Judge must provide reasons for the making of the
declaration.
Forming political parties
Non-legal responses In one unique response to the OMCG issue, members of the South
Australian public who were strongly opposed to the Serious and
In addition to the responses of law-makers and law enforcement Organised Crime (Control) Act 2008 (SA) and its implications for civil
agencies discussed above, there are a number of other responses rights decided to make their voice and concerns heard by politicians
to consider. These include those of the general public, the media, by establishing a new political party, the F.R.E.E. Australia Party.
politicians, interest groups, and the OMCGs themselves. Some of The party obtained formal political status on 19 March 2009
these responses are explored below. and is open to anyone who is registered to vote in South Australia.

Among its members are a number of motorcyclists concerned Following the Sydney Airport incident, both Victoria and the ACT
about the introduction of the Act. Party spokesperson Paul Kuhn stated that current laws were sufficient and they had no intention
said that the party opposes the Act, but is concerned about a of introducing new laws. Other states and commentators have
number of other issues as well. ‘The name of the party itself is FREE, claimed that this may create ‘safe havens’ and ‘legislative gaps’ for
which stands for Freedom, Rights, Environment and Education,’ he OMCGs to exploit, but there has been no evidence of this to date.
said in an interview with ABC News. Legal responses need to be carefully weighed, and their
implications considered, to avoid creating ‘draconian laws’ or
Review 14.4 sacrificing fundamental principles such as the rule of law, the
separation of powers and the presumption of innocence, or
1 Describe some of the non-legal responses to organised individual rights such as freedom of association and freedom
crime. How do they influence changes in the law? of movement. Laws departing from these principles require
2 What non-legal responses do you believe are most mechanisms for review. While it is too soon to assess the
effective in dealing with OMCG issues and why? effectiveness of these laws – not only in reducing criminal activities
and violence associated with OMCGs, but in ensuring justice for all
parties concerned – they will be judged on the facts over time.
Legal Links
draconian laws laws that are excessively harsh or severe – from Draco, a
A link to the F.R.E.E. Australia Party’s website can be found Greek legislator (7th century BCE) whose laws imposed cruel and severe
penalties for crimes
at www.cambridge.edu.au/prelegal3weblinks.
Research 14.4
Search for recent news stories related to OMCGs and answer
the following questions:
1 Have there been any recent incidents involving
Figure 14.10 The Freedom Rights Environment Educate Australia Party OMCGs in New South Wales or around Australia? What
has branches in South Australia, Queensland and New South Wales, and happened in those incidents?
hopes to soon become a national party.
2 What recent arrests or charges have been laid against
OMCG members? Do the articles suggest that the new
14.3 Responsiveness laws have been used or have been effective?
of the law 3 Have there been any problems or court challenges

associated with the new laws?
Public order and safety are usually cited as the chief reasons for
changing the law to address OMCGs. Due to the violence often
associated with many of their activities, OMCGs receive widespread
media attention, which results in often emotive public discussion.
Review 14.5
The political responses of some Australian jurisdictions have 1 How do the responses of different jurisdictions compare
focused on ‘ramping up the laws’, being ‘tough on crime’ and in addressing OMCG-related activities? Which legal
‘smashing criminal gangs’. responses do you think are the most effective and why?
The three main types of legislative responses to OMCGs and 2 How far should the law go in attempting to address
other organised crime are laws targeting their activities, laws the activities of OMCGs and other organised criminal
establishing police taskforces and special police powers, and groups? Do you think the responses have been
laws that criminalise the organisations or their members. Not all appropriate?
jurisdictions in Australia have introduced laws in the third category.

PART III
Chapter summary

➔ Organised crime is a problem for Australian society and for the ➔ Some of these approaches have ramifications with respect
law. It operates in many different industries and is associated to fundamental principles of the criminal law and individual
with many different illegal activities. rights.
➔ Motorcycle groups have been in existence for over a hundred ➔ Different Australian jurisdictions have adopted different
years and most were formed simply to share a common approaches to deal with the issues.
interest in motorcycles. ➔ The media, politicians, the public and OMCGs themselves have
➔ Outlaw motorcycle gang (OMCG) membership is a growing voiced their views on the issues and on the legal responses.
problem in Australia and there have been many recent public ➔ The law needs to balance the interests of all parties involved.
incidents involving OMCGs. ➔ It is too soon to assess the effectiveness of recent responses of
➔ There are different legal approaches to OMCGs, each with its the law to OMCGs.
own advantages and disadvantages.
➔ These include laws to prosecute individuals for specific crimes,
the establishment of taskforces, increased police powers, and
laws that criminalise the clubs or participation in them.
1 Organised crime can be defined as: 4 Under the South Australian Serious and Organised Crime
a illegal activities carried out by organised groups, usually for (Control) Act 2008 (SA), who can declare an organisation
financial gain criminal?
b illegal activities carried out by more than one person in a a the Police Commissioner
single incident, where timing is important b the Supreme Court
c activities such as rallies and protests organised by c the Premier
motorcycle gangs without a permit d the Attorney-General
d exercise of certain police powers without authorising 5 What is one reason for enacting controversial laws outlawing
legislation motorcycle gangs?
2 The largest area of organised crime activity is: a to encourage competition between state premiers for the
a digital piracy toughest anti-bikie laws
b extortion b to give greater powers to police to compensate for their
c drug trafficking low pay
d drunken brawling c to limit motorcycle transport, which has a high degree of
3 ‘Draconian’ laws are: road fatalities
a harsh, strict and punitive d to target organised crime, which can be difficult to fight
b enforced by both state and federal governments under ordinary laws against criminal acts
c enforced by state but not federal governments
d enacted by the United Nations

1 Discuss the problems of organised crime in Australia. What 4 Describe some of the recent changes to Australian laws to deal
types of activities are related to organised crime and how with OMCGs. How do these differ from previous laws?
widespread are they in Australia? 5 Do you think some organisations should be criminalised? What
2 Outline the origins of motorcycle gangs and OMCGs. Are they level of participation in criminal organisations do you think
different, and if so, how? should be prosecuted?
3 Outline the different legal approaches to OMCGs.
Topic review
Extended response
1 ‘Bikie gangs are like any other organisation or club. There

are criminals in all walks of life.’ Discuss this statement with
reference to the law and at least one OMCG. questions can be found on the Cambridge GO
2 Evaluate the responsiveness of the law in dealing with OMCGs. website. Refer to these criteria when planning and
Do you think the legal approaches are fair? Which approaches writing your responses.
do you think are most appropriate and why?

The Northern Territory Intervention


Area 4: Criminal or civil cases that raise issues
of interest to students
Chapter 15
File-sharing and digital copyright
Chapter objectives
➔ explore legal concepts and terminology relating to digital ➔ investigate the role of the law in addressing and responding
copyright and the law to changes in relation to digital copyright
➔ investigate the legal system’s ability to address issues ➔ describe the legal and non-legal responses to digital
relating to digital copyright copyright infringements
➔ explore the differences that exist between Australian and ➔ evaluate the effectiveness of legal and non-legal responses
international law in relation to digital copyright to digital copyright infringements.
Key terms
copyright file-sharing space-shifting
copyright infringement format-shifting technical protection measure
copyright notice intellectual property time-shifting
digital copyright internet piracy
extradition piracy

PART III
Chapter 15: File-sharing and digital copyright
Relevant law
Important legislation and treaties
Copyright Act 1968 (Cth) Copyright Amendment Act 2006 (Cth)
Copyright Amendment (Digital Agenda Amendments) Act 2000 (Cth) US Free Trade Agreement Implementation Act 2004 (Cth)
Significant cases
A&M Records Inc. v Napster Inc., 239 F3d 1004 (9th Cir 2001) MGM Studios Inc. v Grokster Ltd, 545 US 913 (2005)
Universal Music Australia Pty Ltd v Sharman License Holdings Ltd United States of America v Griffiths [2004] FCA 879
[2005] FCA 1242
Roadshow Films Pty Ltd v iiNet Ltd [2012] HCA 16

15.1 File-sharing, digital Historically, copyright law was confined to text-based material,
but over time it has expanded to include rights in a range of types
copyright and the law of works, including books, films, software and music. The arrival of
the internet over the past two decades has brought with it many
The internet has given people not only access to a whole world of challenges to traditional concepts in copyright law. Copyright law
information, but opportunities to use and interact with it in a way has had to adapt to the new digital environment, and ‘digital
that they never could before. Photos, music, videos and software copyright’ simply refers to copyright as it applies to this relatively
can be viewed and heard on our own computers or transferred to new medium. One of the most significant issues in this area is
other devices. The internet makes it possible to download these digital piracy occuring by means of file-sharing. File-sharing
files to keep or share, sometimes for a fee but sometimes without means distributing electronically stored information, often without
paying for it. In some cases, the act of downloading this material authorisation.
may infringe another person’s intellectual property rights.
download to receive data from a digital copyright copyright as
Digital copyright and intellectual central system to one’s own, local
network or computer
it applies to digital media
property
digital piracy unauthorised
This has become an area of concern not just for the owners of the intellectual property intangible reproduction and distribution of
material but also for law-makers on a domestic and international property that has commercial digital music, software, videos or
value and can be protected by other material, often for profit
scale. The concept of intellectual property in cyberspace was law, e.g. text, images, designs,
introduced in Chapter 8. As discussed, intellectual property law inventions and computer
protects a person’s rights in relation to intellectual works and other programs
file-sharing the practice of
intangible, or non-physical, property that the person has created. distributing electronically stored
Three types of legal protection for intellectual property are patents, information such as computer
copyright an exclusive right to programs, music and video files,
trademarks and copyright. publish, copy, publicly perform, especially through the use of
Copyright is the area of intellectual property law that protects broadcast, or make an adaptation peer-to-peer (P2P) networks
a person’s right to an original expression of an idea. It allows the of certain forms of expression,
namely sounds, words or visual
creator the right to do or prohibit certain acts relating to that images
expression: to reproduce it, publish it or make an adaptation.
File-sharing and internet piracy

Digital technology has enabled the average computer user to make
copies of almost anything with ease, much to the discomfort of
the music and movie industries. Digital copying is like oxygen in
cyberspace – that is, the internet itself is dependent on the ability
of users to upload, download and transmit digital text, files, web
pages and so on.
However, copyright infringement through unauthorised
file-sharing poses serious challenges for the laws of digital
copyright. It has resulted in ongoing legal battles involving
individuals, the music, film and television industries, and online file-
sharing services.
Popular portable devices that can easily transfer digital
music between computers have allowed users to obtain their
Figure 15.1 Copyright is one of the three types of protection entertainment for free, or for only a nominal cost. However, to
for intellectual property. the music industry and media networks, digital copying was

PART III
considered piracy. The term ‘pirate’ has been used in this sense purchased music from his or her own computer to a portable music
even before the first copyright laws were put in place in England device, or to upload the contents of a legitimately purchased CD
with the Statute of Anne in 1709. An early reference was made by into his or her computer’s digital music library. Prior to this time,
English writer Daniel Defoe in 1703. He said of people who were recording a television program onto a videotape for later viewing
distributing copies of his poem, ‘A True-Born Englishman’, on the or even making a music compilation on a CD or cassette tape still
streets: ‘It’s being printed again and again by pirates, as they call constituted copyright infringement.

them.’ It is claimed that some 80 000 copies were pirated on the Increasingly, easy access to ‘free’ file-sharing technologies began
streets of England, Ireland and the United States, and that this may to put significant pressure on the legal system to adapt. However,
even have contributed to Defoe’s fame by making his work available the absence of any adequate reform eventually led to costly legal
more cheaply to the general public. battles, both local and international, instigated by music industry
The term ‘internet piracy’ has been coined to describe the and other media bodies in an attempt to protect their copyright
downloading and/or distribution of unauthorised copies of music, and alleged loss of profit.
film, television programs, games and software via the internet. This Many of the legal issues relating to digital copyright and file-
can be done by various means such as file-sharing or peer-to-peer sharing continue unresolved to this day. These are discussed in
(P2P) networks, BitTorrent programs, pirate servers, or websites. more detail in the following sections.
It can also be done by people known as ‘hard goods pirates’, who
distribute illegal copies of copyrighted material recorded on DVDs, upload to send data from a local internet piracy unauthorised
system or computer to a central downloading or distribution of
CDs or videotapes for profit.
or remote system, for other users copyrighted material by means
Digital copying over the internet grew rapidly in popularity, as it to view, hear, or use of the internet
allowed users to obtain music and other media files freely, quickly,
relatively simply, in the comfort of their own homes, and in an easily
transferable and shareable format. It also allowed users to store and copyright infringement the peer-to-peer (P2P) networks
unauthorised use of copyright computer networks in which
transport their own music and media files much more easily than on
material in a manner that violates individual participants are
multiple CDs or DVDs, or the earlier and even bulkier videotape and the owner’s rights directly connected to each other,
cassette tape collections. rather than through a central
server
The music and other media industries were often accused of
being slow to catch on and offer accessible digital media solutions piracy (1) an illegal act of robbery
of a ship at sea, outside the
to meet this rapidly growing market demand. The law was also
jurisdiction of any state; (2) the
slow to change. For example, until 2006, it was still illegal under infringement of copyright
Australian copyright laws for someone to copy legitimately
Figure 15.2 Computer users often illegally download overseas television series before their release in Australia, and then watch
them on their laptops, or burn them to DVD.
C hap ter 15: Fil e -shar ing and digital copyr ig ht 299

coverage of digital copyright by the media and industry bodies, as
Review 15.1 well as important commercial responses to changes in the digital
1 Outline what is meant by digital copyright and how this media and file-sharing markets.
fits into the broader area of intellectual property law.
2 Describe what is meant by copyright infringement
and piracy and how these can occur in the digital
environment.
3 Explain how issues of file-sharing arose and why it has
become a problem for industry and for law-makers.
4 Discuss some of the changes to digital copyright that
needed to be made to the law and within the relevant
industries, in order to respond to the growth of file-
sharing technologies.
15.2 Mechanisms for

achieving justice in relation
to digital copyright
There are a number of legal mechanisms in place to protect
a copyright owner’s rights in his or her material. In Australia, Figure 15.3 Police photo of evidence seized during DVD piracy raids in
copyright law is complex and comes from many different Sydney (AAP Image/NSW Police)
sources, including legislation, international treaties on copyright

protection which are sometimes enacted into domestic law,
Legal responses
and an expanding body of case law. Many of these laws apply to
copyright in the digital environment and allow copyright owners
to bring civil action against those they believe to have infringed
Legislative protection in Australia
their rights. Many of the cases relating specifically to digital Copyright and other intellectual property matters are among the
copyright centre around the question of who actually infringed enumerated powers of the Commonwealth parliament (s 51(xviii)
copyright, and how their offence can be proved when it took place of the Australian Constitution) and are thus a federal responsibility.
in a digital environment. The Act that governs Australia’s copyright laws is the Copyright Act
In addition to civil action by the copyright owners, Australian law 1968 (Cth).
also provides for criminal prosecution of copyright infringement, The Copyright Act replaced an outdated Act based on older UK
coming under several categories of offence, with penalties including copyright law, and it brought together some of the principles from
fines or even imprisonment. Currently, these copyright offences are the case law on copyright at the time. The original Copyright Act
used mainly in relation to piracy of copyright material for trade or has been subject to many amendments since it was first brought
profit on a commercial scale. in, to respond to the changing issues in copyright law. It is known
In recent years, digital copyright issues have also attracted for being one of the largest and most complex Australian statutes
various non-legal responses. These include broad public education and currently runs to a total of 646 pages. Australian courts have
campaigns by government and non-government bodies and the had to decide how the Copyright Act should be interpreted and
establishment of government and industry organisations to monitor applied in greatly different contexts. As a result, trying to work out
and provide advice on digital copyright issues, or to provide a voice how copyright applies in a particular situation can require looking
for the various groups affected. There has also been high-profile at both the Copyright Act and previous court decisions.

PART III
Some countries, such as the United States and Canada, have Updating digital copyright protection
government systems for the registration of copyright. In Australia,
Since the year 2000, the Australian government has had to review
individuals do not need to do anything in order to get copyright
and amend the Copyright Act number of times to adapt it to social,
protection for their work: if a work meets the requirements for
economic and technological changes. Some of the most important
protection in the Copyright Act, it is automatically protected as
amendments are as follows.
soon as it is created, without the need for any registration.

For a person’s work to qualify for copyright protection under the Copyright Amendment (Digital Agenda Act) 2000 (Cth)
Copyright Act, the work must be:
This Act updated a number of provisions of the Copyright Act to
££ the type of thing to which copyright applies (e.g. an artistic
include recent changes in digital technology. It amended the
work or a musical work);
definition of ‘communication’ of a work to include the act of making
££ the result of some skill and effort (original and not merely
a work available online or transmitting it electronically, and to cover
copied from someone else); and
the technical processes that are used to do so. It also introduced
££ recorded or ‘fixed’ (for example on paper, a computer disk
prohibitions on making or distributing devices designed to break
or a CD).
technological protection measures, which are the digital ‘locks’
Many people also choose to add a copyright notice to their work to
put in place to limit copying or accessing of copyright materials. For
remind people that it is protected by copyright and to let them know
example, access might be available only by use of an access code
who is claiming copyright. However, for some forms of copyright,
or a process such as decryption or unscrambling, authorised by the
especially where copyright exists in the contents of a digital file, such
copyright owner.
as a music or sound file, it is often more difficult for the owner to label
the work as copyright protected. Some individuals or companies technological protection measures tools or ‘locks’ that copyright
now add what is known as a digital watermark to files containing owners use to prevent unauthorised copying or access to copyright
copyright material in order to ensure that information about the materials
copyright owner is retained within the file.
US Free Trade Agreement Implementation Act 2004 (Cth)

copyright notice a notice added to a work to inform people of who owns
the copyright and when the work was created, e.g. ‘© Random Business In 2004 Australia entered into an agreement with the United
Pty Ltd 2011’
States, called the Australia–United States Free Trade Agreement
(AUSFTA). As part of the agreement, Australia was required to
amend a number of its copyright laws to bring them more into
line with US laws and with certain international treaties. One
of the main amendments was to extend the expiration of an
owner’s copyright from 50 years to 70 years after the author’s
death. Another significant provision affecting digital copyright
was to limit the liability of internet service providers for copyright
infringements committed by their customers (Copyright Act 1968
(Cth) Part V, Division 2AA).
Copyright Amendment Act 2006 (Cth)
This Act introduced further amendments to Australian copyright

law that were required under AUSFTA. It also updated a number
of technological provisions that were widely seen as outdated or
unfair. Some of the most important amendments to the Copyright
Figure 15.4 In Australia, you do not need to do anything in order to Act 1968 (Cth) were as follows:
get copyright protection for your work: if it meets the requirements for
££ the introduction of new criminal enforcement provisions,
protection in the Copyright Act it is automatically protected as soon as
it is created. including on-the-spot fines for copyright infringement

££ provisions permitting the copying of music from format to International treaties on copyright
format or device to device for personal use, known as space-
Another important part of Australian copyright law comes from
shifting
international copyright treaties that aim to ensure that copyright
££ provisions allowing the recording of television or radio
is protected across international borders and that important
broadcasts for later viewing, called time-shifting
copyright issues are addressed similarly by different countries.
££ provisions allowing individuals to change the format of
This is particularly relevant to digital copyright, where works are
copyright materials for personal use, known as format-
constantly imported and exported between countries through
shifting, for example scanning photos into digital files or
the internet, through portable devices and through trade in music,
printing an article
software and films.
££ widening of the provisions on technological protection
In Australia, international treaties must be incorporated into
measures to make it an offence for individuals to use a device
domestic legislation before they can become binding, and so the
designed to unlock technological protection measures.
most important provisions of Australia’s international treaties
Although the Copyright Act has come a long way in addressing
should already be incorporated into the Copyright Act or other
some of the developments in digital copyright issues, there
relevant legislation. However, the international treaties themselves
are still a number of issues that have been left to the courts or
are important measures for ensuring copyright protection for
to future legislation to resolve. It is also important to note that
Australian copyright holders in overseas jurisdictions, and to protect
many apparently innocuous uses of copyright material, such as
overseas copyright holders from infringements by Australians within
downloading or uploading files containing copyright material via
Australia. Australian works are protected automatically in most
the internet or sharing them with friends on a personal website,
other countries. In the same way, works from most other countries
may still constitute infringement of another person’s copyright and
are automatically protected in Australia.
therefore may not be legal under Australian law.
As mentioned in Chapter 8, the main treaties relating to
copyright include:
space-shifting transferring format-shifting copying books,
music or a sound recording journals, photos or videos from ££ Berne Convention for the Protection of Literary and Artistic Works
from one format to another or one format to another format, (accepted by Australia in 1928)
from one device to another, for for example scanning a photo
££ World Trade Organization Agreement on Trade Related Aspects
example copying a music file from to digital format or printing a
a computer to a portable player newspaper article of Intellectual Property Rights (TRIPS) (accepted by Australia
in 1995)
££ Australia–United States Free Trade Agreement (AUSFTA)
time-shifting recording a (accepted by Australia in 2004)
television or radio broadcast
££ World Intellectual Property Organization Copyright Treaty
for later viewing or listening
(accepted by Australia in 2007).
Figure 15.5 Since 2000, the Australian government has had to review and
amend the Copyright Act a number of times to adapt it to social, economic Figure 15.6 Shawn Fanning, founder of Napster, a file-sharing website
and technological changes. that shook the foundations of the music industry

PART III
Case law on digital copyright Despite the outcome of the case, new file-sharing networks
quickly arose, with one called Kazaa emerging as dominant.
The difficulty in applying digital copyright law and the scale of
By 2004 Kazaa’s program had been downloaded 319 million
the file-sharing problem has led to a number of civil cases in
times. This resulted in some of the most brutal legal battles
recent years. As the internet is international by nature, the court
related to file-sharing. For example, in 2003 the US Recording
challenges have occurred worldwide, with some of the most
Industry Association of America (RIAA) launched a series of

important cases in the United States and in Australia. They have
lawsuits against some 261 individual users of Kazaa for copyright
involved complex legal arguments attempting to resolve how the
infringement through file-sharing. One of these lawsuits involved
laws apply to the different file-sharing technologies and where
a 12-year-old girl who was sued for US$150 000 per song for
the liability should lie for infringements committed using those
downloading songs like ‘If You’re Happy and You Know It Clap
technologies.
Your Hands’. The girl said she thought ‘it was OK to download
The first major legal battle relating to file-sharing and copyright
music’ because her mother had bought the Kazaa program for
infringement was in 2001 and involved an 18-year-old named
US$29.95. Eventually, Kazaa settled the case with the girl’s family
Shawn Fanning, who set up an online file-sharing service called
for the sum of US$2000.
Napster. Napster was one of the first internet services dedicated
The RIAA continued to bring civil actions against ordinary
to sharing mainly popular music and video files between users.
consumers who engaged in file-sharing, and by 2005 the RIAA
Complaints of copyright infringement had been received from
had sued 12 000 people. The main difference between Napster
some very high-profile recording artists, including Metallica and
and Kazaa was that Kazaa did not hold or store the files centrally,
Madonna. In the US case A&M Records Inc. v Napster Inc., 239 F3d
but supplied the software and the means for individual users to
1004 (9th Cir 2001), the US Court of Appeals for the Ninth Circuit
share files. One of the most significant cases against file-sharing
found that Napster had infringed copyright by allowing its users to
was launched against Kazaa in Australia in 2005 and this is
upload and download copyright-protected material on its central
discussed below.
network. Napster was forced to change its service and business
model to prevent its users from infringing copyright.
Case Space
Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 1242 (the Kazaa case)
A legal action was brought in the Federal Court of Australia in ‘curtail – although probably not totally to prevent – the sharing
2005 by 30 record companies, including major international of copyrighted files’, Sharman had not implemented them
labels such as Universal, EMI, Sony BMG and Warner, against because this would have been against its financial interest.
Kazaa’s Sydney-based developer and distributor, Sharman Because Sharman made its money from advertising on the
Networks. The record companies claimed that the Kazaa Kazaa system, it wanted to maximise file-sharing using its
software, by allowing users to download music for free over software to increase its advertising revenue.
the internet, encouraged copyright infringement on an Justice Wilcox acknowledged that Sharman ‘probably cannot
unprecedented scale. totally prevent copyright infringement by users’, and as a result
The Federal Court found that most of Kazaa’s music files did not order Kazaa to be shut down. Concerned to ensure
were ‘shared without the approval of the relevant copyright that the software should continue to be available for people
owner’. In his decision, Justice Murray Wilcox ruled that with who use it for legitimate purposes, the court allowed Sharman
its file-sharing technology, Kazaa was liable for copyright to continue distributing its file-sharing software, but only if it
infringement because it had ‘authorised’ users to infringe adopted certain technical measures to stop and discourage the
the record companies’ copyright. He found although there infringement of copyright using that software.
were technical measures that could have enabled Sharman to

Market and industry response
Despite attempts to put a stop to file-sharing activities, there has
been seemingly unstoppable growth in the market for file-sharing
technologies and portable devices with which to use them.
Supplementing the growth in portable music and video
devices has been the emergence of a large and competitive
market offering legitimate downloading services. In more recent
times, music companies and music retailers have been working to
prevent file-sharing by allowing access to a huge amount of music
for a small fee.
For a small fee, users are given access to authorised copyright
material in a format they request. One of the largest players in this
market has been the popular iTunes Music Store, launched in 2003
by the founder of Apple Inc., Steve Jobs.
By striking a deal with major record labels to offer a legitimate
file-sharing service, iTunes ensured that the music industry could
receive payment for their copyright material while giving users a
Figure 15.7 Niklas Zennstrom, the co-founder and CEO of Kazaa, creator
convenient and safe method of getting songs from the internet.
of Skype and co-founder of Joost
The store has since expanded to include copyright works from
other industries threatened by digital copyright infringements,
Research 15.1 including television shows, films, radio, software and digital books.
The popularity of stores like iTunes and its success in returning a
Another important case in the file-sharing wars was the
profit to the affected industries has shown that the traditional legal
US case of MGM Studios Inc. v Grokster Ltd, 545 US 913 (2005).
MGM argued that file-sharing software created and actively responses are not always the most effective.
marketed by Grokster encouraged illegal downloading of
movies. Research the file-sharing issues in this case and
discuss the results.
Non-legal responses
It is often expensive, lengthy and difficult for those in the music
industry to pursue persons who are illegally downloading files. It is
also debatable that pursuing ordinary computer users is an effective
option. Corporations have tended to take legal action against only
serial offenders, as a deterrent, and against those who are making a
profit through copyright infringement.
In addition, it would obviously not be possible for a company
to bring a lawsuit against every individual who is infringing
copyright. Instead, consumer markets have been forced to adapt,
to offer alternatives to illegal file-sharing to meet the growing
demand. A number of industry and non-industry bodies have been
Figure 15.8 A number of industry and non-industry bodies have been
established, seeking to educate the general public and to report on established to educate the general public on copyright and infringement
the ongoing developments. issues regarding media obtained over the internet.

PART III
Agencies and organisations
Legal Links
A number of organisations and interest groups in Australia
The website of the Attorney-General’s Department provides
contribute to the discussion about copyright and digital technology
information on copyright.
and provide research, advice and education to the public, businesses
and the government. Some of these are listed below. The website of the Australian Copyright Council provides

information on its activities.
Commonwealth Attorney-General’s Department The website of Electronic Frontiers Australia provides
information on current issues.
The Attorney-General’s Department holds responsibility for
Australia’s copyright laws. It provides information about copyright The website of Arts Law Centre of Australia provides
information on protecting intellectual property.
law and works closely with groups and organisations that have an
interest in the development of copyright law in Australia. Links to these websites can be found at www.cambridge.
Australian Copyright Council (ACC)
The ACC is an independent non-profit organisation that provides

information and advice about copyright in Australia. The Review 15.2
Council also produces publications, carries out research and
1 Identify the domestic and international protection that
makes submissions on copyright policy in Australia. It is funded
is provided for Australian owners of copyright materials.
by the Australian government and the Australia Council for
the Arts. 2 How does an artist receive copyright protection for his
or her material and how can other people identify it?
Music Industry Piracy Investigations (MIPI) 3 Why did traditional copyright law have to change to
include digital copyright protection and how did this
MIPI acts on behalf of the music industry in Australia to provide
affect ordinary computer users?
investigative services and copyright enforcement, and is highly
4 How has the music industry dealt with digital copyright
involved in educating the Australia public about the costs of music
infringers and how has the market responded?
piracy to the music industry.
5 Describe some of the measures taken by independent
Australian Federation Against Copyright Theft (AFACT) agencies to protect copyright.
AFACT was established in 2004 to protect the Australian television

and movie industry against the effects of copyright theft. It works
with industry, government and law enforcement agencies to Research 15.2
achieve its aims.
1 Look for some further information about the Kazaa case
on the internet. What were some of the arguments used
Electronic Frontiers Australian Inc. (EFA)
by the parties and do you think they were justified?
EFA is a non-profit national organisation, independent of Do you think the outcome of the case was correct?
government, representing internet users who are concerned about 2 Investigate some of the alternatives for legally
freedom of expression in the online environment and related issues. purchasing online media. Why do you think some
It aims to protect and promote civil liberties, advocate change in computer users continue to download using file-sharing
the law and educate the community about online social, political, technologies, and do you think this is justifiable? Why?
and civil liberties issues. 3 Look at the websites for each of the institutions and
agencies listed above and describe how each agency
Arts Law Centre of Australia is trying to educate the public about illegal copying
Arts Law Centre of Australia is a community legal centre that and file-sharing.
provides legal information, advice and assistance to artists, writers, 4 Which institutions and agencies do you think are more
photographers and musicians and others. successful in achieving their goal of minimising digital
copyright infringement? Why?

15.3 Responsiveness
of the law
As discussed above, there has been much recent change in both
domestic and international copyright law, as law-makers around
the world try to keep up with the rate of technological change.
There have also been many civil lawsuits brought by the music
industry in an attempt to curb the problem and deter future
copyright infringement, as well as criminal prosecutions for large-
scale piracy. This section considers some of those responses and the
future direction of the law.
Criminal law response to digital

copyright
So far this chapter has mainly looked at the use of the civil law in
response to digital copyright issues. But as mentioned above,
the Copyright Act provisions that make certain acts of copyright
infringement illegal, and in some cases include severe fines or
possible prison sentences. While prosecutions for digital copyright
infringements do not yet appear to be directed at the average
computer user, there have been some important cases that need
Figure 15.9 AFACT protects the film industry against piracy and copyright
to be considered. infringements in Australia.
For example, in November 2007, Jose Duarte, 21, became the
first person convicted in Australia for recording a film from a cinema
screen. In Sydney’s Downing Centre Local Court, Duarte pleaded
guilty to making an illegal copy of The Simpsons Movie using the
camera in his mobile phone and uploading it to the internet. The
film’s distributors confirmed that an illegal copy of the movie was
on the internet within hours of its global release but prior to its US
release. A criminal conviction under the Copyright Act recorded
against Duarte and he was fined $1000.
There have been many more recent examples of prosecutions for
copyright infringement, ranging from smaller violations to very large
and expensive piracy operations. Examples of these cases can be seen
on the AFACT website, whose address is provided in the link below.
A criminal case in Australia that received media attention relates
to the extradition of Australian resident Hew Raymond Griffiths for
trial in the United States on charges of copyright infringement for
illegal software distribution. This is discussed in the ‘Case Space’ on
page 307.
extradition the handing over of a person accused of a crime by the

authorities of the country where he or she has taken refuge, to the Figure 15.10 Prosecutions for digital copyright infringements are not yet
authorities of the country where the crime was committed completely directed at the average computer user, but this could change
in the very near future.

PART III
Case Space
United States of America v Griffiths [2004] FCA 879
In a case closely watched by the rest of the world, Hew in that country were affected by the person’s acts was seen by
Raymond Griffiths was accused by the United States of some to be a disproportionate response, and one that implied

being a ringleader in an internet software piracy network an inappropriate degree of influence over Australia by the
called Drink or Die. The case is of interest not just because foreign country. On the other hand, the decision to extradite
it sets a benchmark in the prosecution of digital copyright Griffiths was praised by some as an important step in enforcing
infringement, but also because it involves an Australian the international protection of copyright.
resident indicted by a court in the State of Virginia, in the
United States for copyright infringement under the US law.
The case highlights the serious consequences for internet
users worldwide if they are charged with infringement of
internationally protected copyright.
The US government sought to extradite Griffiths for his
infringements, despite the fact that he was not a fugitive and had
not committed a violent crime. Griffiths, who lived in a modest
house on the Central Coast of NSW, had not taken any money
for his activities. Drink or Die specialised in ‘cracking’ copyright-
protected software, movies, games and music by removing the
embedded codes, then distributing them free of charge.
The US government took the case for extradition to the
Federal Court of Australia, with lengthy proceedings involving
three Australian court cases. The US government was successful
in the Federal Court of Australia and in the Full Court on appeal.
Griffiths applied to the High Court of Australia for special
leave to appeal, which was refused. Pending the High Court
hearing of his application, he was held in custody in Australia.
In February 2007, Griffiths was extradited to the United States,
where he pleaded guilty in a Virginia court to criminal copyright
infringement. Griffiths was sentenced to 51 months in a US
prison. This sentence was reduced to account for time served in
Australian custody and in March 2008 he returned to Australia.
The extradition was a controversial topic in Australia, as it
led to questions about why Griffiths could not be prosecuted
in Australia, where he had also infringed Australian copyright
law. Extradition to a foreign country merely because businesses Figure 15.11 Hew Raymond Griffiths
Legal Links
The Australian Federation Against Copyright Theft (AFACT) provides news articles and updates on criminal prosecutions against movie
piracy and copyright infringements in Australia. Visit the website (a link can be found at www.cambridge.edu.au/prelegal3weblinks)
to view some of the current criminal cases under way against Australians who have infringed film copyright and some of the penalties
that have been applied.

15.4 The future of digital Issues are likely to multiply as internet technology continues
to change and technology expands into more areas traditionally
copyright in Australia protected by copyright. Although most of the civil actions to date
have centred around the music industry, the battle is now turning
Despite stronger legislation, a constant stream of court actions to film and video media and television networks. For example, a
and the arrival of alternatives to illegal file-sharing, the issue of civil case was commenced in 2008 by AFACT in Western Australia
digital copyright infringement has far from disappeared. For against internet service provider iiNet. It involves large movie
example, Australian music industry organisation Music Industry industry players such as Village Roadshow, Universal Pictures,
Piracy Investigations (MIPI) in 2008 carried out research into the Disney Enterprises and the Seven Network, and is important
extent of music piracy in Australia, which found that around internationally because it tests the liability of internet service
2.8 million Australians download music illegally, 75 per cent providers for the copyright infringements of their customers. In
of whom are downloading every month. Nearly 70 per cent of February 2010, Justice Cowdroy in the Federal Court found that
Australians agree that illegal file-sharing is stealing, but only iiNet was not liable for the copyright violations of its users. AFACT
half of all 14- to 24-year-olds agree with this statement. There appealed this decision with the Full Court of the Federal Court and
is a common perception that accessing ‘free music’ from home in the High Court but lost these appeals. The case was important
does not really hurt anyone, and as discussed above this is a because it tested the Australia–US Free Trade Agreement and has
perception that both the music industry and governments set a precedent regarding the responsibility of internet providers
have tried very hard to change. It is not only record companies for the downloading of media.
that are deprived of income by illegal distribution of music, but The law has had to adapt very rapidly in recent years to meet
also the musicians, composers and authors who created the some of the challenges for copyright law and digital technology.
musical works. Due to the ‘secretive’ nature of downloading, it The effectiveness of many of these laws is yet to be seen, as
is difficult to gain more updated statistics on downloading and cases will be played out in the courts in the coming years. As
who does it. technology continues to change and people become more
familiar with how to use it, as well as how to abuse it, the law will
Figure 15.12 The law has to constantly and rapidly keep adapting itself to
continue to adapt.
meet the challenges for copyright law and digital technology.

PART III
Media Clip
High Court decision shows government needs to act to keep pace with online environment
Roadshow Films Pty Ltd v iiNet Ltd [2012] HCA 16, 20 April 2012

Today’s decision by the High Court exposes the failure of ‘ISPs are becoming increasingly dependent on monetising
copyright law to keep pace with the online environment and legal content and therefore protecting its value.’
the need for Government to act, leading film and television Mr Gane said it was too early to comment on the details of
industry companies said following the announcement of the decision but that the copyright owners would be having
the decision. discussions with Government in due course.
The High Court ruled against leading film and television ‘We thank the actors’ union (MEAA), and songwriters,
companies who sued iiNet for failing to take action in response composers and publishers (APRA), who also had concerns
to known infringements by customers using its network. about the outcome of this case, for taking the time and effort
Representing the film companies, Australian Federation to express them to the court.
against Copyright Theft (AFACT) Managing Director Neil Gane ‘We would also like to acknowledge all content creators
said the judges in the case had unanimously recognised that whose movies, music, pictures and words we all enjoy and
legislative change was required to address the widespread for whom today’s decision must be extremely concerning,’
copyright infringements via Peer to Peer technology Mr Gane said.
in Australia.
‘Both judgements in this case recognise that copyright law
is no longer equipped to deal with the rate of technological
change we have seen since the law of authorisation was last
tested. They both point to the need for legislation to protect
copyright owners against P2P infringements,’ Mr Gane said.
‘The Judges recognise the significant rate of copyright
infringement online and point to the fact that over half the
usage of iiNet’s internet service by its customers (measured by
volume) was represented by BitTorrent file-sharing which was
known to be used for infringing activities,’ he said.
‘Now that we have taken this issue to the highest court in
the land, it is time for Government to act.
‘We are confident the Government would not want
copyright infringement to go on unabated across Australian
networks especially with the rollout of the NBN,’ he said.
Mr Gane also said the decision shows that Australian law
has been left behind by overseas developments in online
copyright protection.
‘In the three years since the case commenced, legislators,
regulators and courts around the world have mandated that
ISPs must play a central role in preventing online copyright
theft,’ he said.
‘Fortunately, many ISPs have come to the conclusion that
being involved in online copyright protection is in their
Figure 15.13 The Pirate Bay is one of many websites that facilitates
commercial interests.
peer-to-peer file sharing.

Media Clip
Most pirates say they’d pay for legal downloads
Andrew Ramadge, Technology Reporter, www.news.com.au

6 May 2010
MOST people who illegally download movies, music and TV ‘I think what it comes down to is freedom,’ he said.
shows would pay for them if there was a cheap and legal service ‘They just want to know that they’ve got the data, they can
as convenient as file-sharing tools like BitTorrent. watch it whenever they want, on whatever device they want,
That’s the finding of the most comprehensive look yet at they can watch it three months later, or a year later, and not
people who illegally download TV shows, movies and music in have any time limitations.’
Australia, conducted by news.com.au and market research firm If there was a legitimate online service that gave people the
CoreData. same freedoms offered by pirated media at a cheap price, Mr
The survey canvassed the attitudes of more than 7000 Crafti said many downloaders would switch to it.
people who admitted to streaming or downloading media from ‘They’d be happy to be signed up to it, to be able to not have
illegitimate sources in the past 12 months. to search BitTorrent and have to figure out which bad quality
It found accessibility was as much or more of a motivator version of it to get,’ he said.
than money for those who illegally download media using ‘While some people would still not pay for it, there’d be
services like BitTorrent. enough people who would pay for it to create and maintain a
More respondents said they turned to illegal downloads very sustainable media industry.’
because they were convenient than because they were free,
Stealing from the rich
when it came to all three types of media covered by the survey
Neil Gane, the executive director of anti-piracy group Australian
– TV shows, movies and music.
Federation Against Copyright Theft, said there was a need for
And more than two-thirds said they would pay for downloads
businesses to develop more flexible models – but they were
from a legitimate service that was just as convenient if it existed.
being hampered by piracy.
The hypothetical legitimate service was described as giving
‘This is something that consumers obviously want, and it’s
users access to TV shows, movies and music they wanted, when
something that legitimate businesses are striving for,’ he said.
they wanted them, without ads or copy protection.
‘[But] I think industry and government have to address the
The survey also found:
current rampant infringement that’s available online.
• T V shows are illegally downloaded more regularly, and by
‘Movie industries obviously want to make their content
more people, than movies or music.
available online, but they can’t compete currently with a free
• Gen Y is prepared to pay more for legal downloads of TV
alternative that’s perpetrated through theft.
shows and movies than any other age group, while people
‘Once there is a level playing field, I think you’ll begin to see a
between 31 and 50 are more likely to pay top dollar for music.
lot more flexible, innovative business models.’
• The most popular prices for legal downloads chosen by
Mr Gane also questioned whether pirates would really be
respondents were $1 per TV show, $2 per movie and 50c
prepared to pay for legitimate downloads, or were simply saying
per music track.
they would in order to justify their behaviour.
Freedom of use ‘We’ve always seen a Robin Hood type of attitude towards
David Crafti, president of the Pirate Party Australia political movie piracy and certainly when it comes to downloading and
group, said the survey results showed illegal downloaders were illegal file-sharing in general that it’s all about hurting the Tom
in fact frustrated consumers. Cruises of the world who are probably paid too much money in
‘People aren’t just looking for a free ride. They’re living in the the first place, and it’s essentially a victimless crime,’ he said.
modern world and expecting business models to keep up with ‘This type of Robin Hood attitude is often used to justify such
them,’ he said. behaviour that the majority know very well is illegal.’
Mr Crafti said restrictive copy protection measures that
The price is wrong
‘crippled’ many legal download stores – such as locking movie
Mr Gane also said some of the prices survey respondents said
or music files so they can only be played on specific devices –
they were prepared to pay for legal downloads were unrealistic.
turned users off buying media through legitimate channels.

PART III
Review 15.3
1 Identify the types of media that are illegally
downloaded.
2 Outline the reasons that people gave for these

downloads.
More than two-thirds of respondents in news.com.au’s 3 Explain what is meant by the ‘Robin Hood’ attitude.
survey said they would be prepared to pay for movies through 4 Do you think that people have unrealistic expectations
a convenient legal download service. about the prices that they are willing to pay? Justify
Almost half said they would pay $2 per movie, followed by your answer.
28 per cent who said they would pay $5 and a minority who
5 Given that this survey was carried out in 2010, do you
would fork out a premium price of $10.
think that people’s opinions are still the same? Why or
Mr Gane said the most popular price – $2 per episode –
why not?
wasn’t going to cut it for the film industry.
‘The average [cost of a] Hollywood movie in 2008 to make
and market was $108 million. So it’s a very expensive business
and it’s a very risky business. To expect to be able to purchase
a copy of that movie for $2 is a rather unrealistic ask,’ Mr Gane
Research 15.3
said. 1 Research some of the recent cases involving file-sharing
The expectation of getting something for nothing, or close
and digital copyright, including the Australian case
to nothing, was a by-product of the internet era and would have
between AFACT and internet service provider iiNet.
to change, Mr Gane said.
How do you think these cases are changing the
‘There’s almost a devaluation of quality content in the
effectiveness of digital copyright in Australia and its
internet space and this devaluation has perhaps been one of
the negative legacies of the digital age,’ he said. impact on ordinary computer users?
‘There is a cross-section of the online community who now 2 A controversial new international treaty on copyright
mistakenly almost believe this warped maxim that if it’s online infringement called the Anti-Counterfeiting Trade
it should be free.’ Agreement (ACTA) has been negotiated in response to
The Australian Federation Against Copyright Theft protects pirated copyright-protected works. Carry out research
the copyright interests of the film and television industry on this treaty and consider how it might affect Australian
in Australia and represents major studios including Village
copyright laws. Why is it seen as controversial?
Roadshow, Disney, Paramount, Sony, Universal, Fox and
Warner Bros. 3 Go to the AFACT website and write 2–3 paragraphs
Earlier this year the group lost a court case launched against about the information provided on this website.
internet service provider iiNet over the alleged copyright
infringements of its customers.
Australia’s Pirate Party is based on the Swedish group of
the same name, which won about 7 per cent of votes in the Review 15.4
country’s 2009 election.
1 Discuss whether and in what circumstances criminal
The local group says it is focused on civil liberties and
copyright law reform and plans to contest the next federal prosecution for copyright infringement is an appropriate
election. response.
According to the most recent statistics, from 2006, film piracy 2 Explain why the case of Hew Raymond Griffiths was
costs the movie industry in Australia about $230 million a year, important for Australia and outline the outcome of
with internet pirates blamed for up to $92 million of that. the case.
Mr Gane said that figure would only have risen in recent years
3 Discuss whether you think the responses to digital
as broadband speeds in Australia increased.
copyright infringement in Australia and around the
world have been sufficient and what actions you think
might be used in the future.

Chapter summary
➔➔ Digital copyright protects against the unauthorised use of Jose Duarte for recording a movie in a cinema and United
copyright material in an online environment. States of America v Griffiths, which involved an Australian
➔➔ Original material (also known as intellectual property) is distributing illegal software and other media for free.
protected by both domestic and international copyright laws. ➔➔ The average user of the internet does not see illegal
➔➔ The music and film industries have brought civil actions downloading as a serious crime.
against persons infringing copyright. Two of the leading cases ➔➔ Education of the public therefore plays an important role in
were the Napster and Kazaa cases in the US. dealing with the issue.
➔➔ Criminal prosecutions for copyright infringement have also ➔➔ In general, those operators that make profits from illegal
been undertaken, including NSW Local Court case against downloading will be pursued, rather than individual users.
1 What is the meaning of internet piracy? 4 Why was AFACT established?
a the downloading of movies without the owner’s permission a to lobby for the rights of Australians accused of internet
b the downloading of music without parental permission piracy in the United States
c the downloading and/or distribution of media without the b to represent Australians concerned about freedom of
owner’s permission expression and civil liberties
d the downloading and/or distribution of media without c to protect the music industry from illegal downloading and
parental permission educate the public about internet piracy
2 How are copyright owners protected from internet piracy in d to protect the film and television industry from illegal
Australia? downloading and educate the public about internet piracy
a by professional standards of ethics in the music and movie 5 Why is the case USA v Griffiths so important?
industries a It involved the creation of enormous wealth through illegal
b by state and territory laws downloading using the internet.
c by the Copyright Act 1968 (Cth) b It involved an Australian citizen being charged in an
d by Border Protection Command American court for crimes committed on the internet.
3 What effect has the Australia–United States Free Trade c It involved a case of mistaken identity, as the prosecution
Agreement had on the protection of copyright in Australia? assumed Griffiths was American.
a It has helped to develop more uniform copyright laws. d It involved an American citizen being charged in an
b It allows Australians and Americans to copy each other’s Australian court for crimes committed on the internet.
media for free.
c It has provided one copyright law for the whole world.
d It has provided an agreement that Australia and America
will play each other’s music on the radio.

PART III

1 Outline what is meant by internet piracy and illegal file-sharing 4 Outline some of the approaches of industry, organisations and
and what laws are relevant. the market to the issue. Which approaches do you think are the
2 Explain why stopping illegal downloading of material and file- most effective and why?
sharing is a problem for law-makers. 5 Propose a campaign to educate young people about digital
3 Discuss some of the approaches of law-makers to digital copyright, outlining some of the issues and consequences for
copyright issues. Do you think the law has effectively adapted infringing copyright in Australia.
to protect digital copyright?
Topic review
Extended response
‘Digital copyright is effectively protected in Australia.’ Critically
evaluate this statement with reference to some of the legal efforts Marking criteria for the extended response question
to protect digital copyright. Also discuss some of the non-legal can be found the Cambridge GO website. Refer
responses to the issue and their effectiveness. to these criteria when planning and writing your
response.

Chapter 16
Drug testing
Chapter objectives
➔ explore legal concepts and terminology in respect to drugs ➔ investigate the role of the law in addressing and responding
and drug testing to change in relation to drug testing
➔ investigate the ability of the legal system to address issues ➔ describe the legal and non-legal responses to drug testing
relating to drug testing ➔ evaluate the effectiveness of legal and non-legal responses
➔ explore the differences that exist between state and federal to drug testing.
law in relation to drug testing
Key terms
illicit drug privacy consent
prescription drug information privacy employment contract
legal drug bodily privacy

PART III
Chapter 16: Drug testing
Relevant law
Work Health and Safety Act 2011 (NSW) Road Transport (Safety and Traffic Management) Act 1999 (NSW)
Privacy and Personal Information Protection Act 1998 (NSW) Rail Safety Act 2008 (NSW)
Privacy Act 1988 (Cth) Defence Act 1903 (Cth)
Road Transport Legislation Amendment (Drug Testing) Act 2006 (NSW) Australian Sports Anti-Doping Authority Act 2006 (Cth)
Significant cases
BHP Iron Ore Pty Ltd v Construction, Mining, Energy, Timberyards, Endeavour Energy v Communications, Electrical, Electronic,
Sawmills and Woodworkers Union of Australia (WA Branch) [1998] Energy, Information, Postal, Plumbing and Allied Services Union
WA IR Comm 130 of Australia; Australian Municipal, Administrative, Clerical and
Services Union; Association of Professional Engineers, Scientists
Shell Refining (Australia) Pty Ltd, Clyde Refinery v CMFEU [2008]
and Managers, Australia (C2012/3396)
AIRC 510
Candido v Hi Fi Supermarket Pty Ltd [2003] AIRC 993

16.1 Introduction For example, a 2010 study conducted by the Australian
Institute of Health and Welfare, a federal government agency,
found that 15.1 per cent of people in Australia aged 14 years or
Recent surveys in Australia indicate that drug use is a regular part
older were daily smokers (this had declined from 16.6 per cent
of life for many people. The most common drug use in Australia
in 2007) and the overall daily drinking of alcohol declined. The
involves legal drugs such as caffeine, prescribed medicinal drugs,
survey also found that around 7.3 million people in Australia
alcohol and tobacco. Although less common, statistics indicate that
reported having used an illicit drug and almost 3 million had used
a significant number of people have also used prohibited drugs at
an illicit drug in the 12 months before the survey, an increase on
some point in their lives.
the 2007 findings.
Table 16.1 2010 National Drug Strategy Household Survey report, July 2011
Drug use 1993 1995 1998 2001 2004 2007 2010

Tobacco 29.1 27.2 24.9 23.2 20.7 19.4 18.1
Alcohol 77.9 78.3 80.7 82.4 83.6 82.9 80.5
Illicit drugs (excluding pharmaceuticals)
Cannabis 12.7 13.1 17.9 12.9 11.3 9.1 10.3
Ecstasy 1.2 0.9 2.4 2.9 3.4 3.5 3.0
Methamphetamines 2.0 2.1 3.7 3.4 3.2 2.3 2.1
Cocaine 0.5 1.0 1.4 1.3 1.0 1.6 2.1
Hallucinogens 1.3 1.9 3.0 1.1 0.7 0.6 1.4
Inhalants 0.6 0.4 0.9 0.4 0.4 0.4 0.6
Heroin 0.2 0.4 0.8 0.2 0.2 0.2 0.2
Ketamine n.a. n.a. n.a. n.a. 0.3 0.2 0.2
GHB n.a. n.a. n.a. n.a. 0.1 0.1 0.1
Injectable drugs 0.5 0.5 0.8 0.6 0.4 0.5 0.4
Any illicit excluding pharmaceuticals 13.7 14.2 19.0 14.2 12.6 10.9 12.0
Pharmaceuticals
Pain-killers/analgesics 1.7 3.4 5.2 3.1 3.1 2.5 3.0
Tranquillisers/sleeping pills 0.9 0.7 3.0 1.1 1.0 1.4 1.5
Steroids 0.3 0.2 0.2 0.2 - - 0.1
Methadone or buprenorphine n.a. n.a. 0.2 0.1 0.1 0.1 0.2
Other opiates/opioids n.a. n.a. n.a. 0.3 0.2 0.2 0.4
Any pharmaceutical n.a. 4.1 6.3 3.9 3.8 3.7 4.2
Any illicit 14.0 16.7 22.0 16.7 15.3 13.4 14.7
None of the above 21.0 17.8 14.2 14.7 13.7 14.1 16.6
Source: Australian Institute of Health and Welfare

PART III
In the general sense a drug can be defined as any substance that
Drugs and the law
alters bodily function, whether to treat or prevent disease or for
other purposes. Of course, the effect on a person will depend on Certain drugs have been restricted or prohibited by societies
the nature of the drug itself and the quantity and circumstances in since far back in recorded history. For example, one of the earliest
which it is used. recorded prohibitions was against the use of alcohol under Islamic
A drug’s effects might be minimal or temporary, such as,

sharia law, attributed to passages from the Qur’an from the 7th
for example, the stimulant effect of caffeine. However, in some century CE. In Europe Pope Innocent VIII issued a prohibition on
circumstances, drugs can result in serious side effects or long-term cannabis in 1484, and one of the first laws against smoking in public
health problems. Because of the negative effects of some drugs and places was issued in 1632 in the United States by the Massachusetts
the danger they can pose to users and the people around them, General Court.
societies have developed laws over time to prohibit certain drugs Even coffee has been prohibited at certain times throughout
or to restrict their use. history. For example, in 1675 King Charles II of England, concerned
More recently, technology has enabled testing for the presence that the increasing popularity of coffee in coffee houses across the
of drugs in situations where the drug is prohibited or deemed kingdom was causing rebellion among his people and producing
unsuitable: for example, in the workplace, when driving a car or in ‘very evil and dangerous effects’, issued a Proclamation for the
some public places. This chapter looks at some of the laws and cases Suppression of Coffee Houses. The law called for the closure of all
on drug testing in Australia and explores some of the issues relating cafés and prohibited the sale of coffee, tea and even chocolate. Not
to the application of those laws, and the effects of the laws on the surprisingly, the law was so unpopular that the people forced the
individual and on society in general. king to overturn it within just one week.
Australia today has both federal and state legislation relating to
drugs, as well as local laws. These laws cover various social aspects
of drug use and address issues including the trade and supply of
drugs, use and possession of drugs, and access to or treatment with
medicinal drugs.
The laws will differ depending on whether the drug is a
legal drug, for example aspirin, caffeine, tobacco, or alcohol;
a prescription drug, such as birth control, antibiotics or anti-
depressants; or an illicit drug, such as cannabis, heroin or ecstasy.
legal drug a drug that is not illicit drug also called an illegal
prohibited under the law, drug; a drug that is prohibited
although some other restrictions by law
may apply
Figure 16.1 A selection of mind-altering substances
prescription drug a type of

legal drug that can be obtained
only by a doctor’s prescription
Laws may restrict the sale, advertising or licensing of a drug,

prohibit its cultivation or trafficking, or impose restrictions on the
age of drug users or the places or situations in which the drug can
be used. For example, tobacco is a type of legal drug whose use
is subject to a number of conditions. A breach of these restrictions
will generally result in a fine. The current laws in Australia and
New South Wales that impose conditions on the sale or use of
Figure 16.2 Coffee has been prohibited at certain times throughout history. tobacco include:
C hap ter 16: D r ug testing 317

££ a prohibition on advertising tobacco products – Tobacco ££ higher taxes on cigarettes – Excise Act 1901 (Cth)
Advertising Prohibition Act 1992 (Cth) ££ making it an offence to sell cigarettes to persons under 18 years
££ compulsory health warning labels on cigarette packs – Trade old – Public Health (Tobacco) Act 2008 (NSW)
Practices (Consumer Product Information Standards) (Tobacco) ££ a prohibition on smoking in enclosed public places – Smoke-
Regulations 2004 (Cth); Competition and Consumer (Tobacco) free Environment Act 2000 (NSW).
Information Standard 2011; Tobacco Plain Packaging Act With respect to illicit drugs, different laws will apply depending on
2011 (Cth) the type of drug and the circumstances. Criminal offences range
from minor summary offences to more serious indictable offences,
with corresponding penalties from a recorded conviction or a small
fine to life imprisonment. Prohibited activities include use of certain
drugs, possession of specified amounts, cultivation, trafficking
and importation. Types of offences and the laws in which they are
contained include:
££ illicit drug offences under NSW state law, including a list of
prohibited drugs – Drug Misuse and Trafficking Act 1985 (NSW)
Figure 16.3 King Charles II of England attempted to prohibit coffee in 1675.
Figure 16.5 Under the Law Enforcement (Powers and Responsibilities) Act
2002 (NSW) s 148, police do not need a warrant to use sniffer dogs to
detect drugs in pubs, at entertainment events and on public transport in
Figure 16.4 Australian laws impose many restrictions on tobacco products. New South Wales.

PART III
££ importation of illicit drugs, including a list of prohibited drugs
– Customs Act 1901 (Cth) and Customs (Prohibited Imports)
Research 16.1
Regulations 1956 (Cth) There is international concern about drugs. Go to the
££ trafficking of illicit drugs – Crimes (Traffic in Narcotic Drugs and Australian Institute of Criminology website (refer to www.
Psychotropic Substances) Act 1990 (Cth). cambridge.edu.au/prelegal3weblinks for link) and read
about the United Nation’s response to drugs. Complete the

Drug testing following tasks:
1 Identify the domestic laws that reflect Australia’s
Many drugs, both legal and illicit, can alter perception, emotion, recognition of the United Nation’s bid to reduce
judgement or behaviour and as a result can interfere with the international drug trade.
way a person carries out tasks such as playing sport, driving a 2 Which bodies oversee international drug laws and
car or completing work duties. Driving a car under the influence treaties? What are their main objectives?
of alcohol or operating heavy machinery under the influence
of cannabis, for example, can endanger both the person and
others. This is one of the reasons that law enforcement agencies,
employers and others have begun to test individuals for the
Review 16.1
presence of drugs in particular circumstances, in order to deter or 1 How common is drug use in Australia? What types of
penalise their use. drug use are most common?
The drugs for which people may be tested include legal drugs 2 Describe some of the history behind drug laws
such as alcohol, prescription drugs and over-the-counter pharmacy throughout the world. What types of drugs have been
drugs, and illegal drugs such as cannabis, cocaine, amphetamines restricted by the law and why?
and heroin. The purpose of the testing, the practical limitations of 3 What are some of the laws in Australia that restrict or
the equipment being used and the costs associated with testing prohibit drugs? What are some of the penalties that can
will determine what tests are carried out. The methods used have apply for not complying with the laws?
varying levels of accuracy and intrusiveness. They include: 4 What are some of the methods used for drug testing
££ surveys or questionnaires and in what situations do you think they might be used?
££ interviews or clinical observation
££ assessment of a person’s clothes or belongings, using sniffer
dogs or scanning equipment
££ testing of bodily tissue (skin, hair, nails)
16.2 Mechanisms for
££ testing of bodily fluids (breath, saliva, blood, urine or sweat).
Technological advances in drug testing methods now enable more
achieving justice in drug
accurate results than in the past. testing
The legal implications of testing will depend on the method
used and the reasons that justify the testing. This can touch on Drug testing has been introduced or considered in many
areas of both criminal and civil law and raises issue of consent, different areas over the past two decades. These are discussed in
necessity, privacy and broader social policy. Through the court detail below.
system, trade unions have been challenging the rights of employers
to test workers. In August 2012, a full bench decision by Fair Work Legal responses
Australia (FWA) deemed that Endeavour Energy could not urine-
test its employees, as this was ‘unjust and unreasonable’, only oral Drug testing can be seen as an intrusive act. For this reason, in many
swab testing was allowed. This decision was a blow to organisations instances where it has been introduced, laws and policies have had
that had wanted to use urine testing as part of workplace health to be adapted, both to permit the testing and to provide a clear and
and safety frameworks. transparent process to follow.

Changes to the law will depend on the context of the drug The testing will usually involve two stages: a preliminary oral fluid
testing. For example: test plus a secondary test to confirm the results. Where a driver’s
££ Roadside testing of motor vehicle drivers might require a behaviour suggests impaired driving ability, police may order the
change in police powers and the introduction of new driving driver to undergo more intrusive testing by a medical officer, such as
offences. testing samples of blood and urine. Penalties for returning a positive
££ Different government employers might require changes to reading can vary depending on the circumstances and the drug,
their statutory powers to allow them to test certain employees including fines, suspension of licence or even a prison sentence.
for drugs. By November 2010, 75 000 motorists had been tested, with
Private-sector employers might require changes to their staff 2.2 per cent returning a positive test in 2010 (this figure was 2.9 per
employment contracts or the introduction of new policies cent in 2007). Given these results, and the safety implications for
and guidelines (such as the example of Endeavour Energy, all people using public roads, there appears to be general public
described above). approval of this type of drug testing, provided that the process and
methods used are fair and transparent.
Testing motor vehicle drivers

Probably the most visible instance where drug testing is used is for
Testing employees in the workplace
motor vehicle drivers. Safety on the roads is cited as the primary As Australia has no national comprehensive drug strategy or
reason for testing in this situation. legislation governing employers’ approach to drugs, the issue of
As this is an area of criminal law, it is enforced by the police force, drug testing in the workplace is largely governed by workplace
and any state or territory police officer in Australia can require a health and safety legislation, which varies from state to state.
person driving a motor vehicle to undergo a roadside breath test to
determine whether there is more than the permitted concentration Justifications for workplace drug testing
of alcohol in the blood. More recently, some states and territories, Four main reasons are commonly cited to justify testing individuals
including New South Wales, have introduced random drug testing for the presence of drugs in the workplace. Whether these
to identify drivers under the influence of other drugs, such as reasons are fair and just would need to be assessed according to
cannabis, ecstasy, speed or some prescription drugs that can impair the particular workplace context and the extent of the testing
driving ability. In 2006, the Road Transport Legislation Amendment proposed. They are:
(Drug Testing) Act 2006 (NSW) was passed to amend the Road ££ safety of the individual and others
Transport (Safety and Traffic Management) Act 1999 (NSW). This ££ productivity of an organisation or individual
authorised random testing of drivers. ££ health of individuals using drugs
££ integrity or reputation of the company or the group to which
the individual belongs.
Safety: The primary reason for drug testing in the workplace is
safety – ensuring that employees are fit to carry out their duties.
This is especially so in jobs where health or even lives can be
put at risk if employees are not alert, such as those involving the
operation of vehicles or equipment requiring precision. The use of
drugs that impair judgment poses a risk to the user’s own safety
and to the safety of other employees and/or customers or the
general public.
In New South Wales, under the Work Health and Safety Act 2011
(NSW), employers have a general duty to ensure the health, safety
and welfare of their employees while they are at work. Employers
often point to this duty to justify the introduction of workplace
Figure 16.6 ACT Police Breath Testing/Command truck drug testing programs.

PART III
Productivity: Another reason often cited for carrying out random Employees’ rights
drug testing in the workplace is that helping to identify workers
Employees themselves, however, may see this testing as an
who are using drugs can reduce the cost of time lost due to the
infringement of their rights and an invasion of their privacy. This is
effect of drugs, accidents in the workplace and absenteeism, as well
especially the case where more intrusive methods of drug testing
as the costs of health care or workers’ compensation.
are proposed, such as saliva or blood and urine samples. Other
Health: The current or long-term mental or physical health of the

important issues are:
individual may be used as a reason for drug testing, especially in
££ Who is to be tested: for example, whether it is targeted at one
schools, sport and the workplace. Drug testing might be used to
individual or random testing across the entire workforce
identify individuals who may need help with drug dependency
££ When and where: the time and place of testing, for example at
or other health problems related to their drug use. A significant
work or home, in private or in front of other people
question here is whether the health of the individual is rightly the
££ Refusal: what happens when a person refuses to take a test or
concern of an outside party or whether it is a private matter for
cannot take a test
the individual.
££ Information: what is done with the information received and
Integrity: One final justification for conducting drug tests relates
how long this information can be kept
to the integrity and reputation of the company or organisation
££ Penalties: whether the penalties that apply are reasonable or
to which the individual belongs. For example, over the past few
too harsh
decades, many athletes have returned positive test results for
££ Review: the reliability and independence of the tests and
performance-enhancing and other illicit drugs. As a consequence,
whether a person has a right to complain or review the process.
some sporting associations have claimed, their sponsors or the
If a company fails to consider these issues from the perspective of
general public are likely to have negative perceptions of their
its employees, the introduction of drug testing in the workplace
sport or association. Similarly, some companies, organisations,
can result in civil action. Some of the court judgements arising from
government bodies or even schools may be concerned that
these circumstances have served to clarify the processes that can be
reports of employees’ or students’ drug use will affect their
used to ensure that workplace policies are just. A few of these cases
reputation and the way their work practices, culture, discipline or
will be considered later in this chapter.
performance are viewed.
Figure 16.7 Workplace safety is one reason put forward to justify random drug testing in the workplace.

Workplace drug testing might be performed by or on behalf of Australian Defence Force
public or private sector employers or by the relevant government
All members of the armed services in Australia are subject to some
regulatory bodies for the industry. For example, drug testing
form of drug testing. Again, the safety of the employees and the
of coal mine employees might include drug testing by mining
general public is the primary concern, in addition to integrity and
companies or by the NSW Chief Inspector of Coal Mines. Some of
the Defence Force’s reputation nationally and internationally.
the industries where drug testing is carried out are outlined below.
Part VIIIA of the Defence Act 1903 (Cth) authorises drug testing
Railway employees of all armed services personnel as part of the Prohibited Substance
Testing Program. A person may also be required to undertake a
Employees of the State Rail Authority in NSW may be subject
drug test before appointment or enlistment.
to drug testing under the Rail Safety (Drug and Alcohol Testing)
Regulation 2008 (NSW). The most significant reason for this testing Airline employees
is the safety of drivers, passengers and the general public, given the
Some Australian airlines conduct pre-employment testing of
high possibility of danger should something go wrong.
some employees, particularly flight and cabin crew. Recent
Employees carrying out ‘rail safety work’, as defined in s 7 of
events have also resulted in the federal Civil Aviation Safety
the Rail Safety Act 2008 (NSW), include drivers, signal operators,
Authority (CASA) lobbying for the introduction of new civil
workers who couple or uncouple trains, those whose work
aviation regulations, to permit drug testing of employees in areas
in maintenance, repair or inspection of trains, equipment or
in which safety is critical including air traffic controllers, baggage
infrastructure, and those who manage and monitor safe working
handlers, refuellers and other ground staff. Under the Civil
systems or passenger safety. All of these employees are subject to
Aviation Act 1988 (Amended 2011), CASA has been given wider
the Regulation. These employees can be randomly tested before
powers to drug test airport workers.
or during their shifts where there is reasonable cause to believe
that there are drugs in their system, or where the employee has
been involved in an accident.
Media Clip
Airline staff test positive to alcohol, drug tests
Miles Kemp
Advertiser, 17 May 2012
DOZENS of aircraft engineers, airline cabin crew, refuellers, ‘CASA is heartened by the extremely low rate of positive
security staff and baggage handlers have tested positive in results as a percentage of the total number of drug and alcohol
drug and alcohol tests. tests conducted, but naturally would prefer to see no positive
The tests were conducted by the Civil Aviation Safety Authority. results,’ the spokeswoman said.
CASA was given the power to randomly test employees in ‘The drug and alcohol testing program will continue as part
sensitive areas of the aviation industry in September 2008. of a range of CASA surveillance activities aimed at maintaining
The Advertiser (Adelaide) applied for details of the testing Australia’s very high level of safety in aviation.’
under the Freedom of Information laws because CASA The results did not include mandatory tests after accidents
would only publicly release the number of random tests, or when employers suspected staff were drug or alcohol
not the results. affected. The staff were tested for drugs including cocaine,
In response, CASA released documents showing 41 people methamphetamine, ecstasy and morphine.
had been caught, with 13 later cleared of any wrongdoing. The 28 positive tests that resulted in further action included
A CASA spokeswoman said the results should be compared a refueller, a security guard, five aircraft engineers, eight cabin
with the number of tests carried out – 29 192 alcohol tests and crew, four baggage handlers, one service employee and five
22 443 drug tests. people whose employment categories were not recorded.

PART III
Figure 16.8 Two common areas in which random drug testing is conducted
international sporting competitions. The body that administers the

Review 16.2 scheme is the Australian Sports Anti-Doping Authority (ASADA),
1 What are some of the main reasons employers and the established by the Australian Sports Anti-Doping Authority Act 2006
public might want to introduce workplace drug testing? (Cth). It has the power to investigate anti-doping rule violations,
make recommendations on its findings, and present cases against
2 What are some of the most important issues for
employees who are facing a drug test? alleged offenders at sport tribunals.
The term ‘doping’ refers to the use of a drug to improve athletic
3 What types of workplace are subject to drug testing
performance, and drug testing of people in sport involves some
in Australia and do you think it is justified? What other
workplaces do you think should consider drug testing different issues from those usually present in the workplace.
of employees? It usually focuses on the detection of performance-enhancing

drugs, such as anabolic steroids, rather than on drugs that tend to
4 Why was the Civil Aviation Safety Authority keen to
introduce drug testing? impair work performance. The reasons for testing include ethical
and practical concerns about fair play between competitors, the
5 Which airline and airport employees have to undergo
reputation of teams and sporting codes, and the health and safety
these proposed tests?
of individual players and the fans who look up to them. As a result
6 Read the article on page 322 and answer the following
many governing sporting bodies have adopted drug testing in
questions:
order to stop so-called drug cheats and improve the integrity of
a How many employees were found guilty of drug use?
their sports.
b What was CASA’s reaction to this figure? Do you
The laws on drug testing in sport are generally different from
agree with this? Justify your answer.
those governing drug testing in the workplace. They include
state and federal legislation about testing standards and often
incorporate codes and policies drafted by individual sporting
Testing of athletes associations, such as those of football leagues. Independent bodies
Drug testing of professional athletes, such as rugby league players, such as ASADA and the Australian Sports Drug Medical Advisory
could be considered a category of workplace drug testing. Drug Committee assist in educating, setting standards, conducting and
testing for amateur or semi-professional athletes is generally a reviewing sports drug testing.
matter for individual clubs or sporting associations. The National The Australian Sports Anti-Doping Authority Act 2006 (Cth) was
Anti-Doping Scheme governs drug testing required of athletes who amended in 2008 to bring it into compliance with the World Anti-
have been selected to compete as representatives of Australia in Doping Code.

Media Clip
School drugs test a ‘waste of money’
Michael Turtle
ABC Online, 26 March 2008
A year-long study from the federal government’s advisory

group on drugs has found drug testing in schools would be
a waste of money.
The report was commissioned by the Australian National
Council on Drugs after debate in the community about
compulsory drug testing in schools.
It found that any testing system would be ineffective and
not always give the right results.
Report author Ann Roche says it would also have negative
effects like creating mistrust and stigma.
‘Level of use is actually quite low so you’re kind of looking for
a needle in a haystack, therefore there’ll be more error,’ she said.
‘To falsely accuse a young person of illicit drug use is really
problematic.’
The study found it would cost about $350 million to do a
saliva test for every student in the country and it says that
money could be better spent elsewhere.
Figure 16.9 Sports stars such as Olympic swimmer James Magnussen are
New South Wales Education Minister John Della Bosca says
subjected to rigorous drug testing to ensure fair competition.
he agrees with the report’s recommendations.
Mr Della Bosca says it would also be monumental waste
of taxpayer funds.
Testing in schools
‘Fewer than 2 per cent of our suspensions and expulsions
Reasons often offered for drug testing in schools are the immediate were resulting from drug use or drug selling in schools,’ he said.
and long-term health of students, and the safety of students in the ‘If students are suspended for using or possessing drugs
school environment. at school, part of their return to school program will involve
anti-drug counselling. This is a far more effective way of
There is little evidence that drug testing is or has been used in
dealing with illicit drug use.’
Australian schools to date, although it is widespread in the United
States. The issues and laws are different from those applicable in
sport or the workplace, as the vast majority of persons who would
be affected by drug testing in schools are minors – that is, people Review 16.3
under 18 years of age. While the school has a duty of care to protect
1 What are some of the main reasons for drug testing in
its students, persons under 18 lack the legal capacity to consent to
sport? Do you agree?
certain invasions of privacy. In Australia strict laws of privacy apply
2 Do you know of any cases in the media where athletes
to protect individuals’ rights.
have been accused of drug use? How do you think the
In 2008 a federal government report by the Australian National
legal and ethical considerations mentioned above in the
Council on Drugs thoroughly investigated the advantages
context of drug testing in sport might apply to the case?
and disadvantages of drug testing in Australian schools. After
3 What are some of the legal issues relating to drug
looking at all the issues, including the relevant legal and ethical
testing in schools?
considerations, the report concluded that drug testing of students
4 Do you think that drug testing in schools is necessary or
is not appropriate for Australian schools. The ABC News media clip
appropriate?
following discusses some of the issues raised in the report.

PART III
Other legal responses to drug testing the person freely consented to the physical procedure or the
disclosure of information. An individual’s right to bodily privacy
When drug testing is to be carried out, there are three parties to be is entrenched in both the common law and legislation in the
considered: the person being tested, the person (or organisation) form of prohibitions on criminal assault. It is also implied by the
carrying out the testing, and the general public. Parties’ rights and tort of trespass to the person. The law may consider a breach
of a person’s bodily privacy to be an act of assault or trespass

obligations can come from specific legislation. In sport, they can
also come from sporting codes of conduct. Relevant areas of law unless that individual has voluntarily consented. Only in rare
include employment law and criminal law. circumstances can a lawful invasion of a person’s bodily privacy
occur without this consent: for example, in some situations
of medical emergency where that person is unconscious or
Privacy and consent
otherwise incapable of consenting.
Australian privacy laws offer some protection to individuals Under the Crimes (Forensic Procedures) Act 2000 (NSW), testing can
required to undergo a drug test. Several different types of privacy be carried out on a person who is suspected of having committed
are relevant to drug testing: a crime. Generally, a forensic procedure can be carried out with the
££ information privacy – including rules about the collection informed consent of the person. Intimate forensic procedures (such
and handling of personal data and records as taking a blood sample) can be undertaken without the person’s
££ bodily privacy – protection from physically invasive consent, but only with an order of a magistrate or other specially
procedures, such as blood or saliva tests, without the authorised officer. Non-intimate forensic procedures (such as a self-
person’s consent administered buccal swab) can be carried out without the person’s
££ privacy of communications – protects information that a consent, by order of a senior police officer.
person sends or receives, such as mail, email, text messages or
phone conversations privacy a person’s right to be free from unwanted intrusion or public
scrutiny
££ territorial privacy – limits intrusions into certain environments,
such as video surveillance, searches or identity checks in the
workplace or in the home.
information privacy protection against inappropriate handling of a
In New South Wales, the Privacy and Personal Information person’s personal information, with rules for the collection and handling
Protection Act 1998 (NSW) sets out 12 Information Protection of personal data and records
Principles (IPPs) to protect information relating to individuals.

These principles relate to the collection, storage, access to,
bodily privacy protection from physically invasive procedures without
accuracy of, use and disclosure of information. It also provides
the person’s consent
complaint mechanisms to allow cases to be reviewed by the NSW
Privacy Commissioner. The agencies bound by the Act include
state government departments, statutory authorities, police and consent free and voluntary agreement by a rational person who is
local councils. able to understand and make a decision about the matter to which he
or she agrees
The main federal law protecting privacy of personal
information is the Privacy Act 1988 (Cth). It offers similar protection
as the NSW Act. Eleven IPPs apply to Commonwealth and ACT
government agencies that collect information about individuals.
Legal Links
Ten further IPPs apply to certain private companies (for example, The office of the NSW Privacy Commissioner is part of the
credit providers and credit reporting agencies, which have NSW Information and Privacy Commission. It provides
access to individuals’ personal tax file numbers) and to all health advice to employers and individuals on privacy issues
service providers. and privacy complaints (refer to www.cambridge.edu.au/
Central to the question of whether a person’s right to physical prelegal3weblinks for a link to the website).
privacy or to information privacy has been breached is whether

Employer and employee rights
Legal Links
In addition to the issues of privacy and consent, the rights of an
WorkCover NSW is responsible for overseeing workplace
employee are protected by his or her employment contract. This
health and safety laws in New South Wales. Information
may be a collective agreement negotiated by the employees at a
on WHS laws can be found on their website (refer to
company or by their trade union, or an individual contract applying to
www.cambridge.edu.au/prelegal3weblinks for link).
the individual worker. Workplace agreements are legal and binding
contracts and require both parties to abide by their conditions.
Where there is a requirement not to use certain drugs at or away
from work, or where drug testing is a requirement of employment Review 16.4
in a workplace, this will often be a term of an employment contract.
1 Describe and evaluate the ways that employees are
Where workers in a particular industry belong to a union, the
protected against random drug testing in the workplace.
union can assist employees in negotiating fair workplace conditions.
2 How are employers’ rights protected?
Unions usually have more power than individual employees to
change or negotiate employment terms, and can often provide the 3 Propose a constructive approach to a workplace drugs
most security against such things as dismissal where an employee and alcohol policy. What would you include in the policy
and why?
refuses to take a random drug test or tests positive.
For employers, employment contracts will often form the
basis for justifying the use of drug testing, as it can be claimed
that employees agreed to this when they first accepted the job.
Discussion with unions when drafting appropriate policies can
strengthen an employer’s justification for instituting drug testing
programs.
As mentioned earlier in this chapter, drug policies are often
instituted under the occupational health and safety (WHS) policy
of a workplace. In NSW, the Work Health and Safety Act 2011 (NSW)
places obligations upon employers to ensure that the workplace is
safe and fit to work in.
employment contract a contract between an employer and

employee(s) which sets out matters including the pay, hours, working
conditions, benefits and obligations of the employee and the rights and
responsibilities of the employer
Figure 16.10 Physical and information privacy are two issues linked to Figure 16.11 In some sectors, drug testing may become part of the
drug testing. interview process.

PART III
Non-legal responses and Commercial responses
organisations Another area of relevance is the emergence in recent years of a
market in drug testing. A number of companies in the commercial
When the introduction of drug testing in a workplace is proposed, sector now offer drug testing and consultancy services: for example,
a number of factors outside the law may need to be considered. assistance in legal compliance and drafting of drug testing policies.

These might include the degree of employee or community In addition, the manufacturers and retailers of commercially
support for the proposal, and whether there are other alternatives available drug testing products have an interest in the introduction
available such as targeted education programs about drugs and of compulsory drug testing in the workplace. Commercial interests
workplace safety, peer support, employee assistance or counselling may also include the interests of the company or organisation
programs for people affected by drugs. Other agencies may be itself in promoting or being seen to promote productivity in the
helpful in assessing the benefits and drawbacks of drug testing, workplace. Commercial interest is an important consideration in
and in addressing drug issues in other ways. These include trade the growth of drug testing in the workplace and should be carefully
unions, commercial interests, the media, or interested government weighed against the real necessity or reasonableness of the testing
and non-government organisations. in each individual case.
Community support Legal Links

Community reaction is important when considering drug testing. Medvet is an example of an Australian laboratory
As discussed at the beginning of this chapter, the community that conducts drug-testing services for Australian
would be unlikely to support, for example, a prohibition on caffeine businesses. Follow the link at www.cambridge.edu.au/
prelegal3weblinks to their website and read about how
or aspirin, or the testing of individuals for the presence of these
the laws you have learnt about apply.
substances.
Public support of drug testing proposals can often be critical
to their success. For example, in a 2004 survey conducted by
the Australian Government Office of the Privacy Commissioner, The media
respondents were asked about their attitudes towards random
A further consideration, especially where issues of integrity and
drug testing. Of the respondents, 16 per cent said that drug
reputation are important, is the media. The media can play an
testing of employees was never appropriate. The majority of
important role in informing the public about drug testing, and
respondents (59 per cent) saw random drug testing as appropriate
media coverage, both positive and negative, can be important in
only where necessary to ensure safety, and only 23 per cent
encouraging or discouraging its spread.
of respondents suggested that drug testing was appropriate
Media coverage is especially influential with respect to
whenever employers chose.
drug testing in sport. It can have a significant impact on the
perceived integrity of high-profile sports figures or sporting
Trade unions clubs. While the exposure and condemnation of illicit drug use
As discussed above, trade unions can play an important role in can be considered a positive consequence, media coverage
negotiating employment contracts and workplace drug testing and commentary can also have a detrimental effect on clubs or
policies. Unions may be able to provide additional support such even individual careers, especially where allegations of drug use
as mediation or counselling services, provide a voice for concerns cause long-lasting damage to reputation but are not based on
about the way a policy is being implemented, or help to persuade factual evidence.
organisations to change or update their drug testing policies
if required.

Government and non-government where drug testing is carried out by a company before the person
actually begins working for it.
organisations
While technological methods for performing drug tests have
A number of government and other organisations are instrumental improved, there is little evidence as to their effectiveness in deterring
in providing research, commentary, advice or assistance for the drug use or preventing injury or crime. For example, a 2006 review by the
public and for the parties involved. In addition to the NSW and NSW Ombudsman into the use of sniffer dogs, titled Review of the Police
federal Privacy Commissions and WorkCover NSW, some other Powers (Drug Detection Dogs) Act 2001, found no evidence that sniffer
organisations are listed in the ‘Legal Links’ box below. dogs deterred drug use or reduced drug-related crime. The review also
found that sniffer dogs were only successful in targeting drug dealers in
Legal Links 1.4 per cent of cases: in other words, they targeted mostly recreational
The Australian National Council on Drugs, as mentioned users, and only by chance might they detect a supplier.
above, provides advice and advocacy to government For employers and employees, one of the most important
and the public on drug-related issues and is influential in methods of oversight is provided by state and federal industrial
shaping national drug policy. relations systems that cover disputes between employers and
The Australian Drug Information Network (ADIN) serves employees. Judgements of these industrial relations tribunals
as a central point of access to alcohol and drug information have been able to provide some guidance on best practice in the
provided by prominent organisations in Australia and use of drug testing programs. The following case illustrates the
internationally. importance of consultation with employees when drafting a drug
The NSW Road Transport Authority provides information testing policy. It was one of the first Australian cases involving
and advice in relation to roadside drug testing of motor compulsory drug testing in the workplace. It was brought before
vehicle drivers. the Western Australian Industrial Relations Commission in 1998.
Links to their websites can be found at www.cambridge. More recent cases have tested the fairness and consistency
edu.au/prelegal3weblinks. of random employee drug testing policy. For example, in 2003 in
the case Candido v Hi Fi Supermarket Pty Ltd [2003] AIRC 983, the
Australian Industrial Relations Commission (AIRC) ruled that the
16.3 Responsiveness of dismissal of a salesperson for smoking marijuana at work was unfair
because the two other employees caught smoking marijuana were
the law only given a warning.
In another important case from the AIRC, Shell Refining (Australia)
As we have seen, there are a number of ways in which the Australian Pty Ltd, Clyde Refinery v CMFEU [2008] AIRC 510, the relevant union,
legal system addresses drug testing. There is legislation prohibiting while not disputing the role played by drug testing in workplace safety,
or restricting certain drugs and creating offences for certain dealings argued that the testing of urine samples detects drug use over a longer
with those drugs. There is legislation relating to drug testing in period than did oral samples – not merely recent use. Impairment
individual workplaces, for example in the Australian Defence Force resulting from drug use tends to last for hours, not days. Therefore,
or RailCorp NSW. Drug testing in sport is overseen by a different urine samples could be seen as an unnecessary invasion of privacy and
legislative regime and advisory bodies, as well as individual saliva samples should be sufficient. Shell’s position was that the policy
sporting codes and sporting tribunals. For other workplaces, more was designed to address habitual drug use as well as actual impairment,
general laws relate to issues of information privacy and bodily and that urine testing provides more information. The AIRC held that
privacy, especially in relation to consent. because urine testing has a longer ‘window of detection’, which may
While it is clear that workplace drug testing in New South Wales interfere with employees’ privacy, it would be unjust and unreasonable
is being carried out by various organisations in both the public and to use that method when a more precise method is available. Saliva
private sectors, the full extent of this practice and the effectiveness testing both indicates actual impairment and is unlikely to detect drug
of current laws in protecting the parties’ interests are difficult to use having no effect on employees’ performance. In the same case,
measure. Particularly in the private sector, the extent to which drug the Commission also found that it was appropriate for Shell to conduct
testing practices are routinely carried out is not clear, especially drug testing for some employees and not others.

PART III
Case Space
BHP Iron Ore Pty Ltd v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers
Union of Australia (WA Branch) [1998] WA IR Comm 130
The employer, a mining company, wished to introduce a agreed to review the policy if new technologies allowed for less

drug-testing program for all employees. While it had sought intrusive testing methods.
the input of employees and most of the employees had agreed
to the program, the union was opposed to it. The union argued
that there was no evidence that such a drastic program was
needed, as there had been no drug-related incidents, and a
positive urine test did not reliably indicate actual impairment
on the job. They said the drug testing constituted an
unreasonable intrusion into the privacy of the employees.
BHP argued that it needed to implement the program to
meet its obligations under the Mining Safety and Inspection Act
1994 (WA), which prohibited a person being in a mine while
under the influence of alcohol or drugs, and its OHS duty to
maintain a safe workplace.
The Commission found that BHP’s proposed drug testing
program was reasonable. BHP had undertaken a consultation
process, and the policy was acceptable to the majority of
employees. The Commission also considered it reasonable for
the company to put in place a compulsory drug testing scheme
rather than having to wait until a staff member showed signs
of impairment to test him or her. With respect to the invasion
of privacy, it was noted that safeguards against wrongful use Figure 16.12 BHP won the right to drug test some of its employees to
of the test results had been put in place and that BHP had ensure their safety when at work.
16.4 Conclusion and monitoring take place, and that the consequences of a positive
test result are fairly applied. As technologies evolve and drug
Drug testing continues to be an area of concern for many testing expands into different areas of society, the law will continue
Australians. As it is a relatively recent practice, states have to develop to provide greater clarity in relation to parties’ rights
attempted to adapt existing laws such as those relating to and obligations.
privacy and consent in order to afford protection for the parties

involved. Where laws have not been adequate, both legislators Review 16.5
and the courts have acted to ensure that drug testing policies
1 Explain why it is difficult to assess the effectiveness
remain fair, protect all the parties’ interests and decrease the
of drug-testing laws.
incidence of disputes.
Where drug testing policies are introduced, care is required to 2 What are some of the recent cases involving drug
testing in the workplace and what are the main points
ensure that the reasons for the policy are clear and justified, that the
arising from these judgements?
methods and processes are carefully considered, that consultation

Chapter summary
➔➔ Use of many different types of drugs is common in Australia, ➔➔ Drug use in sport is different from other contexts, in that
some of which are restricted or prohibited by law. prohibited substances are used to enhance performance.
➔➔ Drug testing has arisen as a way to prevent some of the ➔➔ Drug testing in Australian schools is generally believed to be
negative effects of drug use. unnecessary and inappropriate.
➔➔ Drug testing laws differ depending on the context. ➔➔ Non-legal considerations relating to drug testing include
➔➔ In the workplace, safety, productivity, health of employees community support, the views of employees and their unions,
and company reputation are the main reasons offered for and commercial interests.
drug testing. ➔➔ It is difficult to judge the effectiveness of drug testing and
➔➔ Issues of concern include privacy considerations and the applicable laws, but the courts have been able to provide
employees’ rights, especially if companies are thought to be some guidance on best practice.
implementing drug testing as a way of exerting control over
their employees.
1 What are illicit drugs? 4 Which type of privacy is most important to consider in drug
a drugs that the law restricts testing?
b drugs that you can only buy with a medical prescription a territorial privacy
c drugs that the law prohibits b bodily privacy
d all of the above c privacy of communications
2 For what reasons might employers randomly test workers d information privacy
for drugs? 5 What issue was the dispute about in Shell Refining v CMFEU?
a to keep samples of workers’ DNA on file a whether employees could take recreational drugs on their
b to see whether workers are able to carry out their work holidays
duties responsibly and safely b whether all employees should be tested
c to abide by laws set down by the government c whether urine or oral samples should be tested
d to show workers that drugs are not acceptable in the d whether all employees should be tested and whether urine
workplace or oral samples should be tested
3 Which of the following is NOT a reason for drug testing in sport?
a to ensure that no athlete enjoys an unfair advantage
provided by performance-enhancing substances
b to protect athletes’ health and safety
c to protect sporting clubs’ reputation and integrity
d to ensure that professional athletes are earning no
additional income from illicit drug dealing

PART III

1 Construct a table that shows some of the most important 4 Investigate a workplace where drug testing is used. Write a
considerations for employees and employers in drug testing. report of your findings including arguments for and against the
2 Outline some of the rights and obligations for each party and testing, any legislation that applies and any other issues.
describe the basis of these rights and obligations. 5 Evaluate the need for drug testing in various social contexts.
3 Explain how you would go about formulating a workplace drug 6 Do you think the police should become involved if someone
and alcohol policy. What would it include and how would you tests positive to a drug test? Justify your answer.
notify workers about this policy?
Topic review
Extended response
1 ‘The technology of drug testing is being permitted to shape the 2 Evaluate the effectiveness of the legal system in achieving
limits of human privacy and dignity. The situation should be justice for both employees and employers in the area of
the other way around’ (Privacy Committee NSW 1992). Evaluate random drug testing.
this statement, drawing on arguments for and against random
drug testing.
questions can be found on the Cambridge GO
website. Refer to these criteria when planning and
writing your responses.

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


Additional resources
Chapter 17
Migrants
Chapter objectives
➔➔ explore legal concepts and terminology relating to migrants ➔➔ find and use legal information from a range of sources
➔➔ investigate the place of the law in encouraging cooperation ➔➔ develop the ability to effectively communicate legal
and resolving conflict with respect to migrants information and issues.
➔➔ investigate the role of the law in addressing and responding
to change with respect to migrants
asylum direct discrimination overstayers vilification
bridging visa indirect discrimination penalty unit White Australia Policy
class action merits review people smuggling
Relevant law
Migration Act 1958 (Cth) Human Rights and Equal Opportunity Commission Act 1986 (Cth)
Racial Discrimination Act 1975 (Cth) Anti-Discrimination Act 1977 (NSW)
Racial Hatred Act 1995 (Cth) Discrimination Act 1991 (ACT)
Significant cases
A v Australia (1997) CCPR/C/59/D/560/1993

17.1 Introduction This chapter will look at some of the processes by which people
can legally migrate to Australia, and then at the legal and other
Australia has had a long history of migration since the arrival of mechanisms for protecting the rights and interests of migrants,
the First Fleet in 1788. Gold rushes and world wars have seen with an emphasis on multiculturalism.
Australia’s migrant intake swell, and have changed the nature

of Australian society. Multiculturalism
Like other countries, Australia has restrictions on the types
and numbers of people who can enter and settle permanently. Multiculturalism has enriched Australian society. It has given
In 2011–12, the number of new migrants who settled permanently the Australian people access to a diversity of such things as arts,
in Australia was over 180 000. literature, food and music that is widely appreciated. However, true
For 2012–13, the Australian migration program was set at multiculturalism needs to go further than this to produce a cohesive
190 000 places, made up of: and equal society.
££ 60 185 places for family migrants, sponsored by family members Multiculturalism as we know it today has developed over many
already in Australia years. First came the official policy of assimilation. Migrants were
££ 129 250 places for skilled migrants who gain entry because of expected to adopt the ‘Australian way of life’ and give up their own
their work or business experience, business qualifications, skills cultural practices. This policy operated from Federation in 1901 to
or sponsorship the mid-1960s. From then until the mid-1970s, the guiding principle
££ 565 places for special eligibility migrants who are former was integration. This change was partly because migrants who felt
permanent residents and have maintained close business, excluded by Australia made their views known at the polls, and
cultural or personal ties with Australia. the government paid attention. Reforms included some softening
Despite this history of migration and multiculturalism, newcomers of the White Australia Policy, and more resources dedicated to
to Australia have not always been treated equally under the law assisting people settling in Australia. Under integration, migrants
and have suffered many disadvantages. To maintain a harmonious, weren’t expected to abandon their own languages and cultural
healthy and well-balanced society, the law attempts to balance practices; these were seen as enhancing their full participation in
the rights and needs of migrants with public opinion relating to an integrated Australian culture.
the numbers and types of migrants who are granted visas and In the 1970s, the term ‘multiculturalism’ came into common
residency. These laws and processes are covered by an area of law use. Multiculturalism celebrates the cultural diversity of a society
known as immigration law. and the benefits that migration has brought to this society. In
1972, the then-Minister for Immigration, Al Grassby, called for the
17.2 Migrants and the law abandonment of the policies of assimilation and integration. He
called for a more tolerant approach to the cultures that existed in
Section 51(xxvii) of the Australian Constitution gives the Federal the community. The Australian government investigated the needs
Parliament the power to make laws about immigration. Permission of migrants and its findings were released in 1978 in the Galbally
to travel to, enter and remain in Australia is given by the federal Report, named for the chair of the committee that produced it,
government in the form of a visa. For those who wish to come Frank Galbally. The report declared that migrants were socially,
for a temporary period, visas are issued for studying, short work economically and politically disadvantaged, and that the only
placements and tourist travel. Current migration law is contained way to overcome this discrimination was to adopt a policy of
in the Migration Act 1958 (Cth). This Act has been amended many multiculturalism.
times and contains over 500 sections as well as 200 regulations.
In Australia the Department of Immigration and Citizenship
(DIAC) assesses all applications of people who wish to migrate
to Australia.
2 Cam br i d g e Le g al Studi es – HS C

and they must have proficient English skills. Thus the points test
Research 17.1 favours young, English-speaking professionals and tradespeople.
Go to the Department of Immigration and Citizenship There are several independent immigration schemes, including
website (refer to www.cambridge.edu.au/prelegal3weblinks business migration, employer nomination, investment-linked,
for link) and answer the following questions: and distinguishing talent schemes. In 2008, the Rudd Labor
1 What types of information does the site offer? government finalised the need to address the shortage of certain
skills in the different Australian states, reflecting their different
2 Choose one of the areas on the homepage and write
a review evaluating its ease of use for a prospective economic focuses.
applicant. As a result, the 2012–13 skilled migration program aimed at
delivering the skills needed in the economy, while increasing the
number of visas granted to those already in Australia and currently
in jobs. The Global Financial Crisis and its effects on the economy
Categories of migrants have seen a decline in the number of visas offered in the past few
years; however, the 2012 program offered more places than the
For people wanting to come to Australia on a permanent basis,
previous year.
there are two programs designed to help them in this move: the
migration program and the humanitarian program.
Family-sponsored immigration
The migration program The category of family-sponsored immigration covers people
who are sponsored by relatives to come and live in Australia.
The migration program is made up of three streams:
The sponsor must be an Australian citizen or a permanent resident
££ Skilled stream – this stream has a number of categories for
of Australia. Generally people who are sponsored by Australian
people who have particular work-related or business skills.
citizens will be favoured over those who are sponsored by
There are certain occupations which, at different times, will be
permanent residents.
in high demand in Australia due to a domestic shortage. These
In 2010, there were 54 543 family stream visas granted. Under
are listed on the ‘Migration Occupations in Demand List’ on the
the family migration program, certain people can apply to migrate
Department of Immigration and Citizenship (DIAC) website. In
to be with family members. These include spouses, fiancés, carers,
2012, these occupations included accountants, construction
dependent children and other relations under certain circumstances.
project managers, health care workers, architects, ships’
Spouses or de facto spouses of Australian permanent residents
officers, engineers and teachers.
can apply for a provisional visa. They may be granted permanent
££ Family stream – this is the category for people who can
residency two years after arrival in Australia if their relationship
be sponsored by a relative who is an Australian citizen or
is ongoing. Fiancés are granted a nine-month conditional visa, in
permanent resident.
which time they are expected to marry. Permanent residence may
££ Special eligibility stream – this allows former citizens or
be granted two years after the marriage.
residents wanting to return to Australia, and certain New
Carers are allowed to come to Australia to care for a relative with
Zealanders, to migrate to Australia.
special needs. Dependent children are allowed to come to Australia
to be cared for by their parents. Orphaned children and unmarried
Skilled stream relatives under the age of 18 are allowed to migrate to be with
Prospective migrants who can contribute to the economic family members if they have no one else to care for them.
wellbeing of Australia are accepted under the Migration Act Parents of Australian permanent residents may migrate to
1958 (Cth) as independent or skilled migrants. These people Australia if they pass the ‘balance of family’ test. Under this
must pass a points test which allocates points according to the criterion, half of their children (including stepchildren) must live in
age, qualifications, work experience and language ability of the Australia, or there must be more of their children living in Australia
applicant. An age limit of 45 years applies to independent migrants than anywhere else. Aged dependent relatives are allowed to
C hap ter 17: M igrant s 3

migrate to Australia if they are over retirement age and have
The migration process
been dependent on their Australian relative for a period of time
(usually three years). If a person has their parents, siblings and
General requirements
children living in Australia, they can migrate to Australia under the
remaining relative category. To be allowed to come to Australia, a person must meet certain
Applicants in all of the above categories must meet the requirements. Whether they are intending to stay for a short
general requirements. For most categories of family migration, period of time or an extended stay, all visa applicants must meet
the Australian relative sponsoring them must give an assurance the requirements of being of good character. A person who wishes
of support. This means that the relative must sign a contract to live in Australia on a permanent basis must also meet health
agreeing to provide financial support to the new resident for requirements and in most cases pass the points test.
two years. However, this assurance does not apply to dependent
children, fiancés or sponsors, as it is expected that the family Character requirements
member will support them anyway. With the exception of
All applicants must be of good character. The character
dependent children and spouses, any person applying for family
requirements are set out in the Migration Act 1958 (Cth). A visa will
migration must pay a bond and a Medicare levy before their
be denied to any person who has been sentenced to at least a year in
application will be considered. Australian residents who sponsor
prison for a criminal act, who has been involved in criminal activities
applicants under the family migration program can appeal to the
or associates with known criminals, who will likely commit a crime
Migration Review Tribunal if the application is rejected. A fee is
in Australia or will behave or encourage others to behave in a way
charged for each type of visa. The amount differs depending on the
that will bring contempt or hatred to members of Australia society.
visa. For example, the cost of a student visa in 2012 was $535 and a
prospective marriage visa was $2060.
The Citizenship Test
Special eligibility stream In the mid-2000s, after much public comment about the eligibility
of permanent residents wishing to become Australian citizens,
This stream provides an opportunity for eligibility if a person has:
the government announced that all migrants who wished to
££ spent 9 of his or her first 18 years in Australia as a permanent
take citizenship would have to undergo a test. This test would
resident
enable prospective citizens to demonstrate their knowledge and
££ completed three (3) months of service in the Australian Armed
understanding of being ‘Australian’. The conditions of citizenship
Forces at any time before 19 January 1981.
were set out in the Australian Citizenship Act 2007. It was amended
Spouses and dependent family members may be included in this
by the Australian Citizenship Amendment (Citizenship Testing) Act
application if they meet certain requirements.
2007 in September 2007 to allow the testing of prospective citizens.
The current Australian government reviewed this Act and
Review 17.1 the tests in 2008. In a report titled Moving Forward … Improving
Pathways to Citizenship, it was found that although there is a need
1 Identify which applicants may have their migration
sponsored by a relative who has permanent residency for some form of test, ‘the present test is flawed, intimidating to
in Australia. some and discriminatory. It needs substantial reform.’ As a result
2 Why do you think DIAC makes it easier for some family of the review, the test is undergoing several changes to eliminate
members to reunite than others? Do you agree with this its weaknesses.

policy? Justify your answer in half a page. The conditions of becoming an Australian citizen can be
3 Describe the problems that prospective migrants viewed on the Australian Government Citizenship website (refer to
encounter in trying to gain residency in Australia. www.cambridge.edu.au/prelegal3weblinks for link). Changes to

requirements and a practice test are found at this site.

££ the applicant’s education level
Legal Info ££ the skills possessed by the applicant
££ the applicant’s English proficiency
What happens if your character does not
££ the qualities of the sponsor (such as the sponsor’s citizenship,
pass the test?
employment and relationship to applicant).
David Irving is a British historian who has regularly been
denied a visa to enter Australia because of his views. Irving,
whose theories denying the Holocaust have caused outrage
Review 17.2
among Jewish communities and historians worldwide, 1 Outline the requirements that a person wanting to
was refused entry to Australia in 1993, 1996 and 2003. obtain a visa to come to Australia must meet.
Irving’s application for a visa was rejected after he failed
2 Describe the points test. What types of things are
the character test.
assessed?
In its decision the Australian High Commission in
3 Read the legal info box ‘What happens if your character
London said it could not be assumed Irving would abide
does not pass the test?’ and answer the following
by Australian law. In its report it cited Mr Irving’s defiance
questions:
and contempt for the law of other countries that he had
a Who has been denied a visa to enter Australia?
visited and that he had been deported and excluded from
For what reasons is he well known?
these countries. It could not be ruled out that he would not
behave differently in Australia. b Who denied him the visa? What reasons were given?
Irving was convicted in Germany in 1992 for defaming the c What problems has he met with around the world?
memory of the dead and was expelled from the country the d Should we allow someone whose views we disagree
following year. He was also deported from Canada in 1992 with to enter Australia?
for lying to an immigration adjudicator. He also owed the
Australian government $35 140 after previous failed appeals.
The humanitarian program

Health requirements
All applicants must meet strict health standards designed to protect

Offshore component
Australia from high health risks and costs, and overuse of health The humanitarian program comprises the following two categories
resources. These health standards are set out in the Migration for persons offshore (outside Australia):
Regulations 1994. To ensure that Australia’s health requirements ££ Refugee category – for people outside their home country who
are met, applicants and dependent family members will be asked are subject to persecution in their home countries and who are
to have a medical examination, an x-ray (if aged 11 or older), and an in need of resettlement
HIV/AIDS test (if aged 15 or older). ££ Special Humanitarian Program (SHP) category – for people
outside their home country who, although not meeting the
Points test criteria for refugee status, are subject to substantial persecution
People who wish to become permanent residents of Australia must or discrimination amounting to gross violation of human rights
complete a number of application forms and answer a range of in their home country. They must demonstrate family or other
questions. The answers are awarded points which, when added connections with Australia.
up, measure the desirability of the candidate in comparison to To meet the criteria for either of these categories, a person must
other applicants. Different categories of migration are assessed on be outside Australia. The refugee program allows migration
different features. Some of the things that are assessed in the points to Australia on the basis that the applicant is a refugee. To be
test are: considered a refugee, the applicant must meet the definition in the

UN Convention and Protocol Relating to the Status of Refugees (1951, just because a parent has been classified as a refugee; a spouse
1968) (the Refugee Convention): a person who is outside his or her cannot assume that he or she will be given asylum with his or
country of origin and has a well‐founded fear of persecution for her partner.
reasons of race, religion, nationality, membership of a particular Certain segments of the Australian community have expressed
social group or political opinion if he or she returns to that country concerns about a ‘flood’ of arrivals fraudulently claiming refugee
of origin. Refugees are different from migrants. Migrants have status or otherwise entering Australia illegally. In late 2001 the
choice as to when to leave their country, where they go and when federal government under John Howard responded to these
they return. Refugees flee their country for their own safety and concerns by making a number of amendments to the Migration Act
seek asylum in another country. They cannot return unless the 1958 (Cth). These changes made it harder not only for fraudulent
situation that forced them to leave improves. The humanitarian claims, but also for genuine claims for refugee status. The
program is designed for refugees and others deemed to be in legislation, and the policies adopted by the Howard government
special humanitarian need. to deter people entering Australia without authorisation, will be
Those in special humanitarian need who wish to come and live discussed below.
permanently in Australia can apply to be allowed to migrate on
humanitarian grounds. A person who can prove refugee status or Offshore resettlement
meet other humanitarian criteria is given a protection visa, which
The offshore resettlement program was implemented for refugees
allows him or her permanent residency in Australia.
and other ‘humanitarian entrants’ who applied for a visa from
Under its refugee program, DIAC aims to assist people in
outside Australia. The main categories of visa given under this
humanitarian need overseas to resettle in another country where
program included:
this is the only available option. It also aims to meet Australia’s
££ refugee visas – these visas are for people outside their home
international obligations onshore under the Refugee Convention.
country who satisfy the Refugee Convention definition of
In addition to the offshore resettlement program, discussed above,
‘refugee’ and who are in need of resettlement because they
there is also onshore protection.
cannot return to their own country or stay where they are
££ special humanitarian program visas – these are for people
Onshore component outside their home country who have experienced substantial
Persons who are already in Australia, either on temporary visas or discrimination amounting to a gross violation of human rights
without a visa, and who are found to be owed Australia’s protection in their home country. Their application must be supported by
under the Refugee Convention, are covered by the onshore a proposer, who is an Australian citizen, permanent resident, or
protection component. They can apply for a protection visa. The eligible New Zealand citizen
application will be assessed to determine whether the person meets ££ temporary offshore humanitarian visas – changes to the
the definition of a refugee under the Refugee Convention, under Migration Act 1958 (Cth) introduced in September 2001 created
Australia’s domestic laws, and taking into account all information two new categories of temporary offshore humanitarian visas.
about the conditions in the person’s country of origin. If the They were introduced to encourage asylum seekers to remain
application is refused, the person can seek a merits review of that in their country of first asylum, that is, the first safe country
decision from the Refugee Review Tribunal or the Administrative where they sought protection outside their home country.
Appeals Tribunal. The reviewing tribunal may exercise all of the These visas were only available to asylum seekers who had
powers of the original decision‐maker. It may then agree with spent less than seven days in a country where they could have
the decision, make changes to it, send back certain matters for sought and obtained protection. The two types of visa under
reconsideration, or set the decision aside and substitute a new one. this category were:
Proving refugee status can be difficult. DIAC considers each ➔➔ secondary movement relocation visa – available to asylum
application separately. Children will not be granted refugee status seekers who had moved from a safe first country of asylum,

but had not yet entered Australia. It was valid for five years arriving in Australian waters. In late 2012, the Gillard government
and people who held this visa could apply for a permanent and the Opposition were finally able to reach an agreement and
protection visa after four and a half years if there was a offshore processing was reinstated in Nauru and Manus Island. It is
continuing need for protection highly recommended that students keep up to date with changes
➔➔ secondary movement offshore entry visa – available to in migration policy as it is such a political issue.
asylum seekers who entered Australia at a place outside
Australia’s migration zone (such as Christmas Island, Onshore protection
Ashmore Reef or the Cocos Islands). It was valid for three
A person can be recognised as a refugee once they are in Australia
years and the people who held this visa were not entitled
by applying for a protection visa (PV). The asylum seeker must show
to permanent residence. Holders of this visa were eligible
that she or he satisfies the definition of ‘refugee’ and that Australia
for successive temporary protection visas if there was a
has an obligation to protect him or her. Australia is only obliged to
continuing need for protection.
protect an asylum seeker if:
££ the applicant has a well‐founded fear of persecution on
Offshore processing grounds covered by the Refugee Convention
Between 2001 and 2008, people who arrived without a visa at an ££ the applicant cannot be given effective protection in
excised offshore place were detained on Christmas Island or moved another country
to offshore processing centres. These offshore processing facilities ££ the applicant is excluded from the operation of the Convention
were established in Nauru and Manus Island (Papua New Guinea) (e.g. because of security concerns).
in September and October 2001 respectively. The facilities were set The type of protection visa given is either permanent or temporary,
up in cooperation with the governments of Nauru and Papua New depending on how the refugee entered Australia:
Guinea with the promise of assistance by the Australian government. ££ Permanent protection visas (PPV) – are for people who arrive
Asylum seekers were not detained under Australian law, or the in Australia with a valid temporary visa (such as a tourist or
laws of Nauru or Papua New Guinea, but instead granted special student visa) and then ask for refugee status. Applicants
purpose visas by those countries while waiting for processing and receive a bridging visa upon lodging a PPV application. In
resettlement or return. All asylum seekers in Nauru and Manus most cases, the bridging visa allows the applicant to remain
Island had their refugee claims assessed by either the UN High lawfully in the community until the PPV application is
Commission for Refugees (UNHCR) or the Australian government. finalised. Some bridging visas allow the applicant to work in
The result saw resettlement in countries such as Australia, Australia. Applicants are eligible for financial assistance for
New Zealand, Sweden, Canada, Denmark and Norway. basic living costs and health care while their applications are
The Rudd government ended the ‘Pacific Solution’ in 2008 being processed.
and the last remaining asylum seekers on Nauru were relocated ££ Temporary protection visas (TPV) – are no longer available but
to Australia. However, the processing of asylum seekers remains a were for people who arrived in Australia without a valid visa
problem for the Australian government and evokes much political and asked for refugee status. Applicants had to meet health
and social debate in Australia. In 2011 there were discussions and character requirements. The TPV gave them temporary
held between the Gillard Labor government and the Malaysian residence for three years. After three years, some could apply
government about refugees being processed in Malaysia but this for a PPV while others could only reapply for another TPV. The
did not make it through parliament and the entire concept of TPV provided only limited access to government assistance for
offshore processing resulted in a stalemate. settlement compared with other protection visas. TPV holders
Under a High Court challenge, the ‘Malaysian solution’ was were not automatically allowed to sponsor their families to join
deemed ‘unconstitutional’. While these debates were occurring them in Australia. They also needed special approval to re‐enter
in parliament and the court system, more and more boats were Australia if they left.

Media Clip
Taxpayers fork out up to $1 million to rescue people smuggling boats that issue
distress calls off Indonesia
Ian McPhedran
The Daily Telegraph, 12 July 2012
Three boats have been ‘rescued’ within 100km of the coast of Opposition immigration spokesman Scott Morrison said naval
Java in the past few weeks. and customs vessels were being co-opted by people smugglers
If an emergency is declared by a vessel near Java and to deliver their passengers for them to Christmas Island.
a navy patrol boat is dispatched from Christmas Island to ‘Despite distress calls being made by vessels within the
conduct the rescue, the cost is about $40,000 a day at sea for Indonesian search and rescue (SAR) zone and under the
the two-day job. co-ordination of Indonesian authorities, passengers are now
If a large warship such as a frigate is involved then the cost being ferried directly to Christmas Island,’ Mr Morrison said.
rises to about $570,000 a day at sea or $1 million for the two- But navy sources said the ruse would become even more
day operation. common if the Coalition’s ‘turn or tow back’ policy was involved.
Should a survey ship be the rescue vessel, the cost would be The patrol boat HMAS Childers arrived about 100km south
about $280,000. of Java yesterday morning to rescue a boat in distress with
Two patrol boats and a third navy ship, either a survey vessel 65 people on board. They were transferred to the navy boat
or a frigate such as HMAS Newcastle which will be on station and the customs vessel ACV Triton.
from July 24 to 31, are on permanent duty in the Christmas On Tuesday, the Childers responded to another distress call
Island area. but the boat showed ‘no visible signs of distress’.
If asylum seekers have to be moved from Ashmore Reef to The cost of border protection operations has risen
Christmas Island the cost is more than double. dramatically since 2009.
According to Defence, ‘full costs’ include personnel costs Another three boats carrying 153 ‘probable illegal
(salaries, allowances and superannuation), rations, fuel, explosive immigrants’ have arrived at Christmas Island in the past three
ordnance, general stores inventory, other suppliers expense and days, taking the tally so far this year to 5723 people on board
on-costs (representing partial recovery of overheads). None of 78 boats. Since the last election in June 2010, a total of 210
the costs include depreciation of the respective vessels. boats have arrived carrying 13,825 people.
People smugglers have ramped up the ‘SOS’ tactic and
have been calling for help even when vessels are seaworthy
and underway.
Review 17.3
1 Briefly describe the three streams of the migration program.
2 For whom is the offshore component of the humanitarian program designed? What are the two categories of people that
it covers?
3 What criteria must someone meet in order to be classed as a refugee?

Illegal immigrants and a variety of reasons why someone might not be able to obtain
the necessary documentation to establish refugee status before
asylum seekers departing. Applying for a passport or visiting an Australian embassy
Under section 14 of the Migration Act 1958 (Cth), people who are may simply be too dangerous.
in Australia without the correct visa are termed ‘unlawful non‐
citizens’. If they do not leave Australia voluntarily, they can be
Review 17.4
detained (s 198) and removed from Australia (s 189). Under these
circumstances there are strict time limits on further application for 1 What avenues are available to someone who has
a visa to re‐enter Australia (s 195). entered Australia without a visa, but fears persecution
There are two types of unlawful non‐citizens in Australia. The in his or her country of origin?
first includes those who enter Australia on temporary visas but do 2 What happens if a border applicant does not meet the
not leave when the visa expires. This group, known as overstayers, criteria for refugee status?
makes up the largest number of illegal migrants in Australia. The 3 Why might someone not obtain the correct visa if he
second group comprises people who arrive in Australia with no or she wants to seek asylum in Australia?
form of entry permit at all. Because a large proportion of these
people have travelled by boat to the northern shores of Australia,
they are sometimes called ‘border applicants’ or ‘boat people’. Laws and policies relating to illegal immigrants
The majority of these unauthorised entrants since the 1990s
Government concerns in 2001
have come from Afghanistan and Iraq. Many arrive as a result of
people smuggling. In 2000 and 2001, the Australian government under John Howard
All border applicants who are found to meet the criteria for expressed concerns about large numbers of illegal immigrants
refugee status now receive a PPV. Under the Howard government, coming to Australia by boat, and in particular illegal arrivals
they received a three‐year TPV, which allowed them to live and brought by people‐smuggling operations from Indonesia
work in Australia but not to sponsor a spouse or children to join to Australia (6640 people arriving on 83 boats). Some of the
them. They could not travel overseas to visit their families in a safe concerns were:
third country and then return. They had to wait 30 months from the ££ Illegal arrivals are a criminal risk and may pose a threat to
granting of the TPV to apply for a further protection visa. national security, a threat that could include terrorism.
People who were granted a TPV in the past can apply for a ££ Processing costs are high.
Resolution of Status visa, which gives access to the benefits of ££ They pose a health and quarantine threat, to persons and
the PPV. agriculture.
Holders of a PPV have access to social services such as the Adult ££ Illegal immigrants infringe Australia’s sovereignty.
Migrant English Program, age or disability pensions and family tax ££ People smugglers are criminals, often with links to organised
benefit. They can also sponsor their families through the offshore crime.
Humanitarian program. The legal responses of the Howard government to these concerns
However, the number of applications received is greater than will be discussed below. Whether or not these responses were
the number of available visas: for example, in 2010–11, more justifiable ways of addressing these concerns is a separate issue.
than 54 000 people applied but only 13 799 were granted visas. It is clear, however, that some of the ideas expressed or suggested
If someone does not meet the conditions for refugee status, he or in the media at the time relied on misconceptions and stereotypes
she can be removed from Australia. about illegal immigrants. These include:
The term ‘asylum seekers’ may be preferable to ‘illegal ££ Attempting to enter Australia without the proper entry permit is
immigrants’ when referring to border applicants. People fleeing unfair to asylum seekers who do go through the legal channels
their countries may face a death sentence there, and there are and ‘wait their turn in the queue’.

££ By voluntarily paying people smugglers, would‐be immigrants Legislation and efforts to target
contribute to the continuation of this exploitative and illegal
people smugglers
activity.
££ If they can afford to pay people smugglers, they have money Following the Tampa incident, a large number of amendments
and are not genuinely needy. to the Migration Act 1958 (Cth) were passed to deal with illegal
££ Economic opportunities in Australia and limited prospects immigration. Chief among these were amendments in 2001
in their home countries are the main factors behind illegal and 2005 that changed the status of some Australian islands
immigration. such as Christmas Island and Ashmore Island to ‘excised offshore
Whether illegal immigrants were perceived as wealthy ‘queue‐ places’. This means that they are not included as part of Australia
jumpers’ making a lifestyle choice or ‘economic migrants’ looking for purposes of immigration law. If people land on an excised
for a better life, a 2001 poll indicated that 77 per cent of Australians offshore place in order to enter Australia, they will be ineligible for a
agreed with the government that they should be prohibited from permanent Australian visa.
entering Australian waters, as occurred in the Tampa incident (see Other amendments limited the power of the courts to use
‘Legal Info’). the common law in favour of asylum seekers. Section 474 of the
Migration Act declares decisions made under that Act to be final
Research 17.2 – not subject to judicial review. Section 166 states that persons
arriving in Australia must present identification, and s 190 states
Go to the website of the UN High Commissioner for Refugees that they can be detained if they fail to do so.
(refer to www.cambridge.edu.au/prelegal3weblinks for link) It is not clear how making it more difficult for asylum seekers
and carry out the following research:
to gain entry to Australia, or measures against them such as
1 What work does this agency do? detention (discussed below), can be considered a reasonable
2 Profile its work in one of the identified geographic means of deterring people smugglers. Unscrupulous people
regions. taking advantage of others’ fear and desperation do not care
3 How does it help (i) asylum seekers and (ii) refugees? what conditions the others are sent to. As for the asylum seekers
Write a summary about one of the ‘asylum seekers in themselves, most do not know the content of Australia’s domestic
the news’ issues. policies, and others are willing to take the risk given the conditions
they are fleeing in their countries of origin. It has been suggested
Legal Info
The Tampa incident
In August 2001, a Norwegian tanker called the Tampa picked up 433 asylum seekers from a boat sinking in international waters
between Australia and Indonesia.
The Australian government ordered the Tampa not to enter Australian waters, but the captain defied the order and moved towards
Christmas Island. The Special Armed Services (SAS) was ordered to board the vessel, naval and air force patrols of international waters
between Australia and Indonesia were stepped up, and the government rushed in legislation to give it more certain legal backing.
The government refused to accept the asylum seekers, saying that as they had left from Indonesia they either should go back to
that country or be taken to Norway. The government declared that as Australia was a sovereign state and had a right to protect its
borders it should be allowed to decide who could enter Australia. The world watched as the stand‐off lasted for 10 days. Eventually,
Nauru and New Zealand took the group of people.
10 Cam br i d g e Le g a l Stu di es – HS C

that international cooperation and joint policing efforts against
Consequences of breaching
people smugglers has a greater chance of success and is more just
than taking action against the asylum seekers.
immigration laws
One such international initiative began in February 2002.
The then-Australian Foreign Minister, Alexander Downer, and Deportation and removal
his Indonesian counterpart, Dr N. Hassan Wirajuda, co‐hosted a Deportation is the forcible removal of a person from a country.
regional ministerial conference on ‘People Smuggling, Trafficking This action will only be valid if the person is an ‘immigrant’ or an
in Persons and Related Transnational Crime’ in Bali, designed to ‘alien’ under the Australian Constitution. Someone outside these
build regional cooperation on this issue. The ‘Bali Process’ has been categories cannot legally be deported under the Migration Act
ongoing, with a Regional Support Office set up in Thailand in 2012 1958 (Cth).
to help facilitate ongoing efforts. Section 200 of the Migration Act 1958 (Cth) gives DIAC the
Some amendments to the Migration Act do target people power to deport a migrant who is convicted of a criminal act and
smugglers. Sections 232A and 233(1)(a) provide for criminal sentenced to more than one year in jail. Those migrants who pose
penalties of 10–20 years imprisonment or 1000–2000 penalty a threat to the security of Australia can also be deported. DIAC
units, or both, for bringing illegal immigrants to Australia. only deports people under extreme circumstances. A person who
is being deported can appeal the decision to the Administrative
penalty unit a statutory financial penalty for an offence, arrived at by
multiplying a monetary amount by the number of penalty units for the Appeals Tribunal. A migrant who has become an Australian citizen
offence; the monetary amount can change over time without requiring cannot be removed.
amendments to the statute
Under the Migration Act 1958 (Cth), a person who is not given
legal permission to stay in Australia must be removed as soon as is
practicably possible. Thus, those applying for refugee status must
Review 17.5 successfully prove their claim or they will be removed.

A person who is removed must meet the costs of the removal,
1 Recount the Tampa incident. or owe the Australian government that amount. The person is not
2 How did the Tampa incident change Australian allowed to re‐enter Australia for up to three years. A person cannot
migration laws? be removed until all visa applications have been fully determined.
3 What has been the outcome for asylum seekers who are This can be a lengthy process, and applicants will often have
processed offshore? resided in Australia for many years as they pursue all avenues.
They may have formed relationships and had children during their
time in Australia. As a result, the removal can have severe impacts,
Research 17.3 both emotionally and financially.

Removal from Australia does not necessarily mean that the
Amnesty International and the Australian Federal Police person will be accepted into other countries. To stay in Australia,
websites have information about people smuggling (refer to
people should apply for a bridging visa, as they are available to
www.cambridge.edu.au/prelegal3weblinks for links).
unlawful non‐citizens. This visa will allow the applicant to stay in
1 What do the Australian Federal Police and Amnesty Australia while his or her application is assessed.
International agree on with respect to people
smuggling?
Extradition
2 What do they disagree about?
3 Write a one‐page report summarising the points made Extradition happens when a person who is currently residing in
and evaluating the arguments. one country and accused of a crime in another country is handed
over to that other country for trial or punishment. In Australia, the

laws controlling extradition are contained in the Extradition Act comply with visa conditions, or those who need to be detained for
1988 (Cth). The Act covers everyone who lives in Australia. A person the period of conducting health, identity and security checks.
will only be extradited if the crime of which he or she is accused Australia’s main types of detention centres are:
carries a punishment of one year in both Australia and the country ££ Immigration detention centres, which are used to detain
where it was carried out. The Australian government will detain the people in breach of their visa conditions, people refused entry
person to be extradited and hand him or her over to the officials at Australia’s international airports, and overstayers. Those
of the other country, to be taken there for trial (and punishment if currently operating in Australia are at Villawood (established
found guilty). in New South Wales in 1976), Maribyrnong (established in
The only person in Australia with the power to order an Victoria in 1966), Perth (established in 1981), and near Darwin,
extradition is the Federal Attorney‐General, and the Attorney‐ which accommodates mostly persons caught fishing illegally in
General will not do so if he or she has reason to believe that the Australian waters. There is also a detention centre on Christmas
accused will be tortured or sentenced to death. Extradition is also Island, used for unauthorised boat arrivals.
unlikely if a person is seeking refugee status in Australia because of ££ Immigration residential housing, which allows people to live in
political considerations. family-style accommodation while remaining in immigration
detention. There are residential housing facilities in Perth and
Detention in Sydney.
££ Immigration transit housing, which houses people who are low
The Migration Act 1958 (Cth) allows for the immediate detention of
security risk. There are facilities in Brisbane, Melbourne and
any person who is in Australia without a valid passport. This covers
Adelaide.
unauthorised arrivals, people who stay beyond the expiry of their
temporary visa and those who breach the conditions of their visa
(for example by working when the terms of their visa prohibit it).
Research 17.4
Between 1992 and 2008, asylum seekers who arrived in The majority of people held in detention centres have
Australia without a visa – both adults and children – were subject been Afghan, Iraqi, Iranian, Chinese, Indonesian, Sri Lankan,
to mandatory detention. For most, the detention ended only when Palestinian, Korean, Vietnamese and Bangladeshi.
they were recognised as refugees and granted a protection visa, Investigate one of these groups and find out what has
or when they were removed from the country. The government happened in their country of origin to make them leave,
how easy it has been to leave their country of origin, and the
brought in its detention policy in 1992 for the following reasons:
way they came to Australia.
££ It is easier to question a person about his or her application
if the person is kept in detention.
££ Applicants are less likely to become lost in the community
if they are detained during the application process. Review 17.6
££ It is easier to remove an unsuccessful applicant from a
1 Identify the circumstances under which a person can be
detention centre.
deported from Australia.
Between 2000 and 2008, the majority of people held in detention
centres were Afghan, Iraqi, Iranian, Chinese, Indonesian, Sri Lankan, 2 Write a definition of ‘extradition’. Under what
circumstances does extradition take place?
Palestinian, Korean, Vietnamese and Bangladeshi.
Although the current government retains detention centres 3 Which cultural groups make up most of the population
as an ‘essential component of strong border control’, it does not in detention centres?
automatically detain asylum seekers who arrive without a visa. 4 What are the types of detention centres and where are
Instead, detention centres are mainly restricted to unlawful non- they located?
citizens who pose a threat to the community, those who refuse to

Table 17.1 People in immigration detention centres (IDC) and alternative places of detention1 as at March 2013
Changes from
previous
summary
Place of immigration detention Men Women Children Total (28/2/13)
Christmas Island IDC 1093 1093 + 485
Curtin IDC 546 546 + 73
Maribyrnong IDC 81 13 94 +8
Northern IDC (Darwin) 371 371 − 70
Perth IDC 25 5 30 −1
Scherger IDC 195 195 − 117
Villawood IDC 337 49 386 +2
Wickham Point IDC 744 744 − 157
Yongah Hill IDC 298 298 + 56
Total in IDCs 3690 67 3757 + 279
Perth Immigration Residential Housing 5 5 6 16 +2
Port Augusta Immigration Residential Housing 18 16 25 59 + 11
Sydney Immigration Residential Housing 6 11 10 27 0
Adelaide Immigration Transit Accommodation 11 6 2 19 −3
Brisbane Immigration Transit Accommodation 28 15 18 61 −8
Melbourne Immigration Transit Accommodation 111 61 99 271 + 176
Total in Immigration Residential Housing and

179 114 160 453 + 178
Immigration Transit Accommodation
Alternative Places of Detention

581 214 363 1158 + 542
(Christmas Island and Cocos Keeling Islands)2
Alternative Places of Detention (Mainland) 292 332 588 1212 − 169
Restricted on Board Vessels in Port 0
Total 4742 727 1111 6580 + 830
People in Community under Residence Determination 902 623 1198 2723 + 521
1
Immigration detention as set out under s 189 or s 249 of the Migration Act 1958.
2
Includes detention in the community in private houses / correctional facilities / watch houses / hotels / apartments / foster care / hospitals
with a person designated under the Act.
Source: Department of Immigration and Citizenship

17.3 Mechanisms for The Australian Human Rights Act 1986 (Cth) established HREOC
(now called the Australian Human Rights Commission). The Act sets
achieving justice for out how a person can make complaints to the Commission, and
migrants other forms of legal redress for discriminatory conduct. It defines
‘unlawful discrimination’ as acts, omissions or practices that are
When people legally migrate to Australia, it is expected that they unlawful under the relevant parts of the federal Acts prohibiting
will be afforded the basic rights of all other Australian residents. discrimination on the basis of race, sex, age or disability. Migrants
In reality, however, this does not always happen. For a number of who believe they have suffered discrimination should contact
reasons, migrants in Australia may face limited access to services the Commission.
such as housing and social services. Many also find themselves If there is sufficient evidence that racial discrimination has
subject to unfair treatment because of their race, colour, descent, occurred, the Race Discrimination Commissioner will carry out an
national origin or ethnic origin. This behaviour can take the form of investigation. The Commissioner does not have the power to force
direct discrimination or indirect discrimination. people to stop their discriminatory behaviour and can only make
Under the International Convention on the Elimination of All recommendations and mediate to resolve disputes. If a dispute
Forms of Racial Discrimination, the government is obliged to stop cannot be resolved, it is referred to the Federal Court, which will
racist behaviour. State and federal governments have tried to make a legally binding decision and award compensation.
meet this obligation by passing legislation that prohibits racially

discriminatory behaviour and by establishing legal processes NSW legislation
and institutions to address these inequalities. However, access
The Anti-Discrimination Act 1977 (NSW) prohibits direct and indirect
to these legal processes is limited by availability, funding and
acts of discrimination in the areas of employment, the provision of
language problems. There are a number of forms of responses to
goods and services, education, and entry to or membership of a
discrimination, disadvantages and the other problems experienced
registered club. For example, in the area of employment, the Act
by migrants.
provides that no person should be denied promotion because of
his or her race.
Legal responses A migrant who feels that he or she has suffered discrimination
as covered by the Anti-Discrimination Act can contact the
Legal responses to migrants include state and federal laws as well Anti‐Discrimination Board. The Board will investigate the claim
as international treaties. Some of these are discussed below. and organise mediation between the two parties. If the claim is
particularly serious and is proved to have occurred, compensation
Commonwealth legislation will be awarded.
The Racial Discrimination Act 1975 (Cth) prohibits any behaviour

that discriminates against a person because of race. In addition, International treaties
this Act was amended in 1995 by the Racial Hatred Act 1995 (Cth) International law protects the basic human rights of all people,
to outlaw any act done because of a person’s or group’s race, and as such offers protection to migrants. This is important as
colour or national or ethnic origin and that is likely to offend, insult, ethnic minorities, who often make up migrant groups in a country,
humiliate or intimidate the person or group. A person who has may lack the political power to assert their rights. Human rights
been the victim of racially discriminatory behaviour must prove are protected under a number of treaties to which Australia is a
that he or she has been treated differently or unequally because party, including:
of his or her race, colour or ethnic origin. As with most cases of ££ the International Covenant on Civil and Political Rights (1966)
discrimination, it is a lot easier to prove direct discrimination than (ICCPR), which asserts the right to vote, freedom of expression
indirect discrimination. and the right to a fair trial

££ the International Covenant on Economic, Social and Cultural
Non‐legal responses
Rights (1976) (ICESCR), a treaty that protects the basic needs
that must be met (shelter, education and employment) for a Government bodies and associations
person to live a dignified existence
Australian Human Rights Commission (AHRC)
££ the Convention on the Elimination of All Forms of Discrimination
Against Women (1979) (CEDAW), which is discussed in As stated above, the Australian Human Rights Commission is a
Chapter 10 national government body, established by the Australian Human
££ the Convention Relating to the Status of Refugees (1951), Rights Act 1986 (Cth). The Federal Attorney‐General is the minister
discussed above responsible for the Commission. Through its public awareness
££ the Convention on the Elimination of All Forms of Racial and other educational programs aimed at the community,
Discrimination (1965) (CERD), which gives special protection government and business sectors, the Commission plays a central
to ethnic minorities, including migrants. role in contributing to the maintenance and improvement of
The UN Human Rights Committee or other UN committees can a tolerant, equitable and democratic society. The key message
hear complaints relating to abuse of human rights. For example, of the Commission is that the elimination of discrimination and
the Human Rights Committee hears complaints relating to the harassment are prerequisites for the enjoyment of human rights by
ICCPR, and CERD has its own supervisory committee that can all Australians. A core responsibility of the Commission is education
hear complaints. Each of these treaties contains an optional about human rights, along with the investigation and attempted
procedure which, if acceded to by a particular state, can be used resolution of complaints about breaches of human rights under
by individuals to lodge a complaint that their rights under the anti‐discrimination legislation.
treaty are being breached by that state. Australia acceded to the The National Inquiry into Children in Immigration Detention
First Optional Protocol to the ICCPR in 1991, which contains that was established to examine whether the laws requiring the
procedure, and recognised the complaints process under CERD detention of children and the treatment of children in immigration
in 1993. Australia has also acceded to the Optional Protocol detention met Australia’s obligations under international
to CEDAW. law, especially the Convention on the Rights of the Child (1989).
Recourse to these committees is only available when all The inquiry was conducted throughout 2002. It received over
domestic avenues have been exhausted. In Australia, this may 340 submissions and visited all immigration detention centres in
mean taking the matter before the High Court. The decisions of Australia. Public hearings were conducted in Victoria, Western
the UN committees are not enforceable. However, they carry Australia, South Australia, New South Wales and Queensland.
considerable persuasive force: see, for example, the discussion Experts with experience in dealing with children in detention gave
in Chapter 7 of the textbook on the Human Rights Committee’s
decision in Toonen v Australia.
Review 17.7
1 Write a definition of ‘racial discrimination’.
2 Distinguish between direct and indirect discrimination. Give examples of both, either in words or pictorially.
3 Outline the state and federal legislation that covers discrimination.
4 In what ways are migrants limited in their access to social security benefits? Do you think this is fair? Justify your answer.
5 What conditions must be satisfied before an individual in a particular country can take a claim of racial discrimination before the
UN Committee on the Elimination of Racial Discrimination?

oral testimony. In addition, the inquiry conducted confidential funding. The Immigration Advice and Application Assistance
focus groups with former detainee children and young people. Scheme does provide advice to asylum seekers during their
In its National Inquiry into Children in Immigration Detention Report application process, but cannot assist during appeals.
– A Last Resort?, released in May 2004, the Commission (then known Migrants in New South Wales who use the courts to settle non‐
as HREOC) found that Australia’s immigration detention policy failed migration disputes are able to apply for Legal Aid NSW if they meet
to protect the mental health of children, failed to provide adequate the eligibility criteria. These criteria include a means test regarding
health care and education, and failed to protect unaccompanied income, and may also include a merits test (whether the case is
children and those with disabilities. The recommendations of the likely to succeed). LawAccess NSW provides telephone information,
report centred on the following principles: referral and advice, including how to apply for Legal Aid. Legal Aid
££ Children can only be detained as a measure of last resort and for can also represent persons who claim they have experienced racial
the shortest appropriate period of time. discrimination. Migrants can also seek legal advice and assistance
££ The best interests of the child must be a primary consideration from community legal centres and, in some matters, from pro bono
in all actions concerning children. legal services.
££ Unaccompanied children must receive special assistance
so that they are in a position to enjoy the same rights as all other Supporting multiculturalism
children. Many associations have been established at both state and national
££ Children have the right to family unity. levels to promote the cultural heritage of different ethnic groups.
££ Children must be treated with humanity and respect for their The federal government has also established several bodies to raise
inherent dignity. awareness of multiculturalism and promote tolerance.
££ Children must enjoy – to the maximum extent possible – the The Australian Institute of Multicultural Affairs (AIMA) was
right to development and recovery from past torture and established in 1979 by the Commonwealth Parliament. Its
trauma. purpose was to raise awareness of cultural diversity and to
££ Asylum‐seeking children must receive appropriate assistance promote social cohesion, understanding and tolerance. AIMA
to enjoy their rights, including the right to be protected under was replaced by the Office of Multicultural Affairs in 1986. It was
the Convention Relating to the Status of Refugees. part of the Department of the Prime Minister and this meant
The Howard government was slow to respond to the that multiculturalism was given a national prominence. This office
recommendations of the report, drawing criticism from HREOC. has since closed.
In fact it was not until the end of July 2005 that all children had In 1989 a statement of policies and goals titled National
been released from detention centres. This only came about Agenda for a Multicultural Australia was produced by the federal
because Prime Minister Howard was put under pressure from his government. It is supported by all political parties to this day.
fellow members of the Coalition to release all children who were The agenda introduced many measures to help recognise the
still detained. However, in early 2013, at least 30 children were held cultural diversity of Australia, including the expansion of SBS
in Australia’s offshore detention centre on Manus Island. In May television services and the establishment of the National Office
2013, the Gillard government proposed moving the children to an of Overseas Skills Recognition.
onshore detention centre near Darwin. The National Multicultural Advisory Council (NMAC) was
established in 1994 with the task of recommending policies for
Legal assistance the implementation of multiculturalism in Australia. It ceased its
Pursuing legal rights is expensive for everyone; however, there operations in 1999. Before it stopped operating, NMAC released a
is very little legal or financial assistance available to migrants, report called Australian Multiculturalism for a New Century: Towards
prospective migrants and asylum seekers to pursue their Inclusiveness. The federal government responded to this report
applications or legal rights. To worsen matters, the NSW Refugee with the release of its own multicultural statement in 1999, A New
Advice and Casework Service had to close in 1996 due to lack of Agenda for Multicultural Australia.

The Council for Multicultural Australia was established in June Access to housing, social services and the law
2000 to assist with the implementation of the New Agenda. The
Migrants may experience discrimination in their search for
idea of multiculturalism has lost some of its force over the years,
somewhere to live and in their dealings with the suppliers of other
with cuts to government spending in some areas, such as English
goods and services.
language classes.
Some Australians have argued that because legislation Access to housing and other services
currently lacks sufficiently severe penalties for racist behaviour,
When renting accommodation, landlords have the right to choose
Australia’s multicultural policy has been limited in its
tenants but are not allowed to discriminate because of race.
effectiveness.
However it is often difficult to prove that someone was refused
tenancy because of race.
Group action
Migrants are usually low‐income earners and as such have
Often migrants can only force action by forming groups that difficulty renting adequate accommodation, especially in expensive
will organise demonstrations to protest unfair actions. They can cities such as Sydney. Getting the bond and other money together is
also ask for help from non‐government bodies such as Amnesty a hurdle. They have even greater difficulty in saving and borrowing
International, which will in turn lobby governments and the United the money necessary to purchase a home.
Nations on their behalf. This is very difficult because some cultures Poor English skills and lack of legal knowledge often mean that
only have very small numbers in Australia, separated by large migrants are unaware of their rights as renters and buyers. Waiting
distances, and so cannot create a very loud protest. Also, national lists for public housing are very long, and this only adds to the
and international organisations have many demands on their time problems faced by migrants trying to provide adequate housing for
and financial support. themselves and their families.
Mechanisms exist to help migrants overcome these problems.
Other non-legal responses For example, migrant resource centres run by sponsored
Federal, state and local governments have undertaken different community groups supply information and assistance to new
ways to help migrants minimise the difficulties of adapting to a new migrants. St Vincent de Paul, the Salvation Army and other
society. These include the following actions: charitable organisations provide emergency shelter, food
££ printing important information in many different languages and clothing.
££ providing this information in different languages on the
Social security
internet
££ providing interpreters where possible – a telephone interpreter Social security is available to migrants in Australia: however, aspects
service is available of the law regarding social security payments have undermined
££ providing special English classes for children and adults the effectiveness of this measure. With the exception of refugees,
(although with funding cutbacks many of these are provided migrants have to wait two years from the time of arrival before they
by volunteers) can access welfare payments, including unemployment, sickness
££ providing for recognition of overseas qualifications and student allowances. A 10‐year wait applies to aged pensions
££ developing multicultural policies and principles and disability allowances.
££ providing settlement programs to assist newly arrived migrants. Independent migrants are expected to support themselves,
Non‐government bodies such as church and community groups and family‐sponsored migrants must be supported by their
and migrant organisations also offer support and provide networks sponsor. Social security payments can only be claimed by a
to assist new migrants. migrant during this waiting period if their circumstances have
undergone unforeseen change that was out of their control, for
example if they are injured in an accident. This waiting period

has been criticised as being discriminatory, as it restricts access incriminate themselves if they do not understand the questions
to those in need and only serves to further isolate migrants being asked. Some ethnic groups say that the police discriminate
from society. against them: for example, Arabic and Asian groups have
complained that they are targeted by police.
Issues of court access
Challenging immigration decisions
While the courts should be a mechanism by which all Australian
citizens and residents achieve justice, there are factors that Everyone living in Australia is subject to Australian law. Migrants,
contribute to them being less than accessible to migrants. When however, are also subject to other processes within Australia,
dealing with legal issues, migrants face the problems of language including deportation, extradition and immigration detention.
barriers, unfamiliarity with the Australian legal system, fear of
police and authority figures, ignorance of the law and their rights, Bringing other cases before the courts
and financial issues. Migrants have the same rights as other people in Australia to take
Often the rights a migrant is entitled to in Australia are different a case to court. However, as discussed above, limited knowledge
from the rights that they had in their country of origin. This of legal rights and court processes, fear of police and financial
ignorance of the law often means that migrants will not try to issues will often mean that migrants will not pursue their rights
enforce their rights. Language difficulties not only add to this lack in court. This has led to criminal actions and civil injustices against
of knowledge; they also increase the reluctance to pursue their migrants (and other minority groups) being allowed to occur
legal rights. without penalty.
On the other hand, this ignorance of the law can see the
unintentional breaking of the law. Although ignorance of the law Use of interpreters
is no excuse for breaking the law, the punishment applied can be The Translating and Interpreting Service (TIS) is provided 24 hours
a harsh penalty for someone who was unaware of the law and a day by DIAC. It provides a free telephone interpreting and
whose language and cultural barriers prevented them from finding document translation service. It also provides free face‐to‐face
out about it. translation services for certain organisations such as medical
Taking a case to court can be expensive and many migrants are practices and trade unions. For a fee, other people can also access
socio‐economically disadvantaged and cannot undertake a court a three‐way interpreting service, which involves English‐speaking
case without financial assistance. Like other members of society, and non‐English‐speaking parties and the TIS interpreter. This can
migrants have access to legal aid, but resources are limited and they be done face‐to‐face or using telephones.
may not necessarily get a lawyer who can bridge the cultural and
language barriers. As a result, many migrants are reluctant to take
their case to court.
Review 17.8
Negative experiences that they may have encountered with 1 Outline the arguments against the detaining of
the court system in their home country only add to this reluctance. children in detention centres. Can you recommend any
Attending court can be an intimidating experience for anyone, arguments for keeping children in detention centres?
especially someone who is yet to get a full understanding of 2 How did HREOC respond to the outcry over children in
the Australian legal system and is still coming to terms with the detention centres?
language. The use of interpreters helps alleviate the problem, but 3 What were the findings of its report?
can draw out the whole frightening process, especially as legal 4 Outline some informal responses to migrants in
terms are very hard to interpret into different languages. Australia and assess their effectiveness.
Migrants will often be disadvantaged during police
investigations. Language barriers may cause some migrants to

17.4 Responsiveness of the In 1999, the IRT and MIRO were amalgamated and became the
Migration Review Tribunal (MRT), in an effort to make the review
legal system to migrants processes more efficient and economical.
and applicants
The review process
Migrants can use the legal system to appeal decisions about
If prospective family‐sponsored and independent migrants feel
their migration applications or status. As in all cases, the legal
that their applications have been decided incorrectly by DIAC,
system is limited in its ability to come to a solution that is
they can lodge a claim for further review in the Migration Review
acceptable to all parties. For various reasons, migrants are at a
Tribunal (MRT). They must pay a fee to do this. A court‐like hearing
comparative disadvantage in relation to the government. Thus the
will be conducted by the MRT. Written submissions and any
responsiveness of the legal system to migrants can be questioned.
evidence presented by the applicant and DIAC will be considered.
The MRT is also able to conduct its own investigation, calling
Administrative review of witnesses and requiring documents to be produced as evidence.
immigration decisions The applicant and DIAC may obtain legal advice, but are
not allowed to be legally represented during the hearing. DIAC
Prior to 1989, it was very difficult for prospective migrants to appeal has the resources to obtain legal advice from some of the most
decisions made about their applications. Challenging a government experienced law firms in Australia, so most applicants are placed
decision in court was a lengthy and expensive process. However, at a disadvantage during the court case. The MRT’s decision is
in 1985 a review of the Migration Act 1958 (Cth) was carried out considered binding.
by the Human Rights Commission, chaired by Commissioner Refugees and humanitarian program applicants who have
Fitzgerald. This review, called Human Rights and the Migration Act not been recognised as refugees may challenge an MRT decision
1958, was critical of the limited availability of independent review before the Refugee Review Tribunal (RRT). Their appeal must be
of migration decisions. lodged within 28 days of the original decision. The RRT operates in
Under its recommendations a system of merits review by the same way as the MRT. It cannot consider applications that have
independent tribunals was established. In merits review, a tribunal been refused because of an applicant’s failure to meet character
with the relevant jurisdiction will look afresh at the facts of a case, or health requirements (the Administrative Appeals Tribunal hears
consider whether the final decision was correct and change the these appeals).
decision if appropriate. The new review system consisted of two If an applicant fails in an appeal to the MRT or RRT, he or she
tiers: the Migration Internal Review Office (MIRO), whose role was may choose to challenge the decision in the Federal Court. This
to provide independent internal review of a decision, and the is not an avenue open to most unsuccessful applicants, as it is
Immigration Review Tribunal (IRT), which reviewed decisions by time‐consuming and expensive, and not advisable without legal
MIRO and had the power to review on merits. representation.
A review of the new system was followed by a 1992 report The Federal Court cannot make a decision based on a merits
that affirmed that it was working, but recommended that refugee review. It can only consider whether the correct decision‐
decisions should be handed over to an independent body. Thus making process was followed. (Chapters 2, 3 and 7 contain more
the Refugee Review Tribunal (RRT) was created in 1993 to review information on the differences between judicial review and merits
decisions regarding refugee applications. Appeals from the RRT review.) In October 2001, amendments to Part 8 of the Migration
can be heard by the Administrative Appeals Tribunal or the Federal Act 1958 (Cth) took away the power of the Federal Court to overturn
Court, but only on matters of law. This means that only the question an MRT decision unless the decision‐maker was found to have not
of whether the law has been correctly applied in the case can be acted in good faith (for example, showed bias) or did not have the
reviewed, as opposed to whether a different view based on the legal authority to make the decision. Under the amendment, class
facts could have been reached. actions are also not allowed.

The Administrative Appeals Tribunal (AAT) was established However, the only migration decisions that can be heard by the AAT
to hear appeals against Commonwealth ministers, officers and are those related to cancelling a business skills visa, deportation
authorities. In this capacity, the AAT hears appeals on decisions of a person for committing a criminal act, and the refusal of an
made by DIAC. The AAT has the power to conduct merits reviews application on character or health grounds or because a person
and allows the parties involved to have legal representation. has failed to meet ‘refugee status’ requirements.
Review 17.9
1 Explain the system of review.
2 Discuss the limitations of the review process.
3 Describe the role played by the Federal Court of Australia in the review process.
4 Summarise the case SZKCQ v Minister for Immigration and Citizenship (see below). Was this a merits review or a judicial review
of the RRT decision?
Case Space
SZKCQ v Minister for Immigration and Citizenship [2008] FCAFC 119
SZKCQ, a Pakistani national, claimed to fear persecution because of his membership of, and profile within, the Pakistani People’s
Party (PPP). He appealed in the Federal Court of Australia against a judgement of the Federal Magistrates’ Court, which had dismissed
an application for judicial review of a decision of the Refugee Review Tribunal. The Federal Magistrates’ Court had dismissed his
appeal on the basis that he was not a person to whom Australia had protection obligations.
At hearing, the RRT had asked the appellant, SZKCQ, to obtain confirmation from PPP officials of his standing and situation in the
party. On receiving two letters from officials, Mr A and Mr K, the Tribunal sent the documents to the Australian High Commission in
Islamabad, asking, among other things, for information from the letters’ authors as to how the appellant suffered as a result of his
work for the party. The Tribunal wrote to SZKCQ under s 424A of the Migration Act 1958 (Cth), stating that based on this information
it was not satisfied that he faced a real chance of harm and giving him 14 days to provide comments on the information. In the
Tribunal’s opinion the letter from Mr A was not genuine, and as Mr K made no reference to the appellant’s claim of imprisonment,
the evidence suggested he had exaggerated his role and the harassment he suffered. They wrote to the appellant of their decision
but the time between the date of the letter and the date it arrived was quite lengthy.
In his appeal SZKCQ contended, among other things, that the Tribunal had delayed the sending of its refusal by post so that he
did not have enough time to respond and had not ensured that he understood why the information referred to was relevant to the
review. The Federal Court judged that the Tribunal had failed to give enough time for the appellant to appeal the initial decision and
had not properly informed him. SZKCQ’s appeal was upheld and the RRT decision set aside.

Criticism of detention rose significantly and there was widespread community concern
about their treatment. In response to criticism from such bodies
It is important to remember that the reason for keeping applicants as the UN Committee on the Rights of the Child, HREOC undertook
in detention centres is as a form of immigration control and not as a National Inquiry into Children in Immigration Detention in
punishment. More recently, these detention centres have also been November 2001. Its report, A Last Resort, was released in 2004.
a way to encourage potential applicants to use legal channels to The inquiry found that Australian laws requiring the detention of
apply to live in Australia. However, there has been much criticism children have resulted in numerous and repeated breaches of the
both in Australia and internationally about the conditions in the Convention on the Rights of the Child (CROC), and that children so
detention centres and the government’s right to keep people in detained are at high risk of serious mental harm. It recommended
them for extended periods of time. the release of children and their parents, and the amendment
One criticism is that in practice, border applicants are more of Australia’s laws to comply with CROC. It also recommended
likely to be subjected to detention, whereas other unlawful non‐ that an independent guardian should be appointed for any
citizens such as overstayers are generally allowed to stay in the unaccompanied child, that minimum standards of treatment for
community while their applications to remain in Australia are children in detention should be codified in legislation, and that the
assessed. Another criticism is that only in certain circumstances amendments to the Migration Act 1958 (Cth) should be reviewed to
are bridging visas available to people in detention. They are only assess their impact on children.
granted to those people who have applied for refugee status, With increasing public protest and pressure, changes have
and then only for children, people over 75 years of age, spouses been slowly brought about, and the federal government elected
of Australians, and victims of trauma and torture. There have in 2007 has taken measures (and continues to) to rectify some of
also been criticisms relating to the fact that border applicants these issues.
who are detained only have the right to appeal to the Migration
Review Tribunal if they claim refugee status. In addition, people Review 17.10
in detention are often unaware of their legal rights. Although all
1 What criticisms of Australia’s detention policies have
people in detention must be given the opportunity to obtain legal
been made?
assistance upon request, they are not always informed of this right
by immigration officers. 2 What international convention was the benchmark
against which HREOC’s inquiry measured Australia’s
Many see detention as an abuse of human rights under
treatment of the children of border applicants?
international law. The UN Human Rights Committee has criticised
such things as the lack of review rights for those in detention. In
its decision in A v Australia (1997) CCPR/C/59/D/560/1993, the
Committee found that Australia had breached Article 9(4) of the Research 17.5
International Covenant on Civil and Political Rights (1966) (ICCPR).
What progress has been made on the issue of mandatory
Article 9(4) provides for the rights of people in detention to seek a
detention of border applicants and their children? Use a
determination on the legality of that detention without delay.
search engine to research news articles from 1 January 2008
Australia’s response to the Committee’s finding in this case to the present.
was to reject the findings, as well as the Committee’s view that
Key search terms could include various combinations of
compensation should be paid to Mr A. This response was criticised
the following keywords:
both nationally and internationally. In January 2008, in its annual
££ mandatory detention
inspection report of detention centres, HREOC (now known as The
££ Australia
Australian Human Rights Commission) stated that there had been
££ children
improvements, but there was still work to do.
££ asylum seekers
Australia has also been criticised for its detention of children of
££ human rights.
border applicants. From 1999, the number of children in detention

The effectiveness of legislation Research 17.6
sanctions against discriminatory
Go to the Australian Human Rights Commission website
behaviour (refer to www.cambridge.edu.au/prelegal3weblinks for
link). Choose one of the areas that are relevant to migrants.
The very existence of anti-discrimination laws indicates a
Prepare a fact sheet or brochure for migrants letting them
recognition that discriminatory behaviour exists and should know how their rights are protected in this area. Remember
be eliminated. The introduction of federal and state legislation that many migrants are not wholly fluent in the English
prohibiting hate speech and racial vilification strengthened these language, so your presentation of information should take
laws: for example, the Racial Hatred Act 1995 (Cth), discussed above; this into account.
the Anti-Discrimination Act 1977 (NSW) s 20C; and the Discrimination
Act 1991 (ACT) s 66.
The legislation also sends a message that racist attitudes and
behaviour are not acceptable in Australian society.
17.5 Future directions
Although federal and state governments have done much to
Limitations of the law recognise the needs of migrants and to minimise the difficulties
Despite these laws, several factors limit their effectiveness. Slow that they face in establishing permanent residency in Australia,
processing of complaints reduces the effect of the legislation. It can inequalities still exist and there is still a need for greater reforms.
take several years for a complaint to be finalised. As a result, some Possible reforms include the following:
migrants feel that it is not worth taking their complaint to the Anti‐ ££ increased funding for English language programs
Discrimination Board. ££ promoting public education about multiculturalism to reduce
Many people are also dissatisfied with the outcome of racially discriminatory behaviour and racist speech
their complaint and believe that the remedies available are ££ increasing the availability of, and access to, legal aid for migrants
not strong enough to stop further discrimination or send a ££ providing greater access to social security for migrants
strong message to the public. The NSW legislation provides ££ providing greater access to legal assistance for people in
heavy fines and imprisonment, but these penalties are rarely detention and increased availability of review of immigration
used. The Australian Human Rights Commission (AHRC) has the decisions
power to make determinations, but is not empowered to make ££ streamlining application processes for migration so that they
them binding on the parties involved. However, the AHRC will are the same around the world
investigate and conciliate when a dispute exists to try to bring ££ reforming the rules regarding mandatory detention.
about a satisfactory resolution.
Difficulty in proving that the discrimination took place and
that the treatment was based on race also means that migrants
are reluctant to bring a complaint. Problems continue in the
elimination of racial discrimination because of limited government
authority and continued racist attitudes in the community, as well
as language barriers and migrants’ ignorance of their rights.

Chapter summary Multiple-choice questions
➔➔ There are different categories of immigration available to 1 Which of these statements about migration in Australia is true?
people who want to come to live permanently in Australia. a Migration has been an important part of Australia’s history.
These include family-sponsored, work‐related, refugee and b Migration has only been occurring since 2001.
humanitarian categories. c Migration to Australia from Asia and Africa was encouraged
➔➔ Prospective applicants must go through certain procedures in by federal governments in the 1940s and 1950s.
their bid to migrate to Australia. d The Australian migrant population is made up mostly of
➔➔ New arrivals in Australia face disadvantages related to illegal immigrants who managed to jump the queue.
finances, employment opportunities, isolation and access to 2 Australia is a party to which of the following treaties?
legal services. a International Convention on the Elimination of All Forms of
➔➔ After the policies of assimilation and integration, Racial Discrimination
multiculturalism developed in the 1970s in response to b Convention on the Rights of the Child
identification of certain advantages brought to Australia c Convention Relating to the Status of Refugees
by migrants. d all of the above
➔➔ The refugee program allows immigration to Australia if the
3 Which of these statements about racial discrimination law is true?
person meets the definition in the UN Refugee Convention.
a Racial discrimination law falls under federal jurisdiction.
➔➔ Unlawful non‐citizens include overstayers and border
b Racial discrimination law only covers discrimination in the
applicants.
workplace.
➔➔ Concerns about illegal immigrants led to changes in legislation
c Racial discrimination law prohibits discriminatory
and policy from 2000 through 2013. The most significant
behaviour based on race.
of these involved amendments to the Migration Act 1958
d Racial discrimination law dates from the colonial period.
(Cth), some of which allowed for the mandatory detention of
4 Which of these statements about the Anti-Discrimination Act
unauthorised arrivals.
1977 (NSW) is true?
➔➔ There are procedures that must be followed before a person
a It only applies to Australian citizens.
can be deported, removed or extradited.
b It prohibits discrimination in the areas of employment,
➔➔ Detention of unauthorised arrivals in Australia, especially
provision of goods and services, education, and entry to or
children, has attracted strong criticism from human rights
membership of a registered club.
advocates and organisations.
c It prohibits discrimination on the basis of race or national
➔➔ Prospective migrants can have decisions on their applications
origin, but not sex.
reviewed under certain conditions.
d It was repealed in 2005.
➔➔ Responses to migrant issues include state and federal
legislation and international treaties. The legislation 5 What does the administrative merits review system involve?
includes the Racial Discrimination Act 1975 (Cth) and the Anti‐ a an unsuccessful candidate being allowed to seek merits
Discrimination Act 1977 (NSW). review from the Migration Review Tribunal if his or her
application is rejected by DIAC
b an unsuccessful candidate being allowed to appeal to
the High Court if his or her application is rejected by the
Migration Review Tribunal
c an unsuccessful candidate being allowed to appeal to the
Federal Court if his or her application is rejected by DIAC
d an unsuccessful candidate being allowed to appeal to the
Migration Review Tribunal, but only on questions of law,
not merits

Chapter summary tasks Marking criteria for extended response
1 Make a timeline of important dates and events in this chapter. Criteria Marks
2 Who is responsible for immigration law in Australia? Clearly outlines a range of legal issues facing 21–25
3 Explain what refugee status means, and who determines it. refugees and illegal immigrants and makes a
balanced judgement on the extent to which the
4 Discuss the amendments made to the Migration Act 1958 (Cth) different remedies available to refugees and illegal
in 2001. What changes were made? What were the reasons or immigrants achieve justice
motivations for the changes? Integrates relevant legislation, cases, documents and
media reports to discuss issues faced by refugees
5 Analyse how you think the Tampa incident affected Australia’s and illegal immigrants and evaluates remedies
international reputation. Justify your opinion in one to two available to them to achieve justice
paragraphs. Presents a sustained, logical and well‐structured
answer using relevant legal terminology
6 Define an unlawful non‐citizen. By what other names are
Clearly outlines some legal issues facing refugees 16–20
they known?
and illegal immigrants and makes judgement on the
7 How has the treatment of migrants changed over the past extent to which the remedies available to refugees
100 years? and illegal immigrants achieve justice
Uses a mix of relevant legislation, cases, documents
8 What does the term ‘multiculturalism’ mean? When did this and media reports to discuss issues faced by
term start to be used? refugees and illegal immigrants and evaluates
remedies available to them to achieve justice
9 In what ways do migrants face discrimination in the
Presents a logical and well‐structured answer using
following areas? relevant legal terminology
a employment opportunities
Outlines some legal issues facing refugees and illegal 11–15
b finding housing immigrants and makes a limited judgement on the
c being granted refugee status extent to which the remedies available to refugees
and illegal immigrants achieve justice
10 Summarise the review process for immigration decisions.
States some relevant legislation, cases, documents
11 Make a judgement about how effective legislative sanctions and/or media reports to describe issues faced by
have been against discriminatory behaviour. Justify your refugees and illegal immigrants and attempts to
evaluate remedies available to them
opinion.
Presents a structured answer using relevant legal
12 Propose other action, legal and non‐legal, which could be terminology
taken to eliminate racial discrimination.
Outlines some legal issues facing refugees and illegal 6–10
immigrants and identifies some remedies available
to refugees and illegal immigrants to achieve justice
Topic review Makes limited references to legislation, cases,
documents and/or media reports to outline issues
faced by refugees and illegal immigrants and
Extended response identifies remedies available to them
1 Outline the legal issues facing refugees and border applicants Presents a general answer which includes legal
information and terms
and evaluate the effectiveness of the legal system in
responding to the needs of each. Identifies a legal issue and/or identifies a remedy 1–5
available to refugees and illegal immigrants to
2 Is multiculturalism compatible with a strong national identity achieve justice
for Australians? Discuss. May make limited reference to legislation, cases,
documents and/or media reports to identify an issue
and/or remedy
Makes limited use of legal information/terms

Additional resources
Chapter 18
Aboriginal and Torres Strait Islander peoples
Chapter objectives
➔➔ identify and apply legal concepts and terminology ➔➔ locate, select and organise legal information from a variety
➔➔ discuss the effectiveness of the legal system in of sources including legislation, cases, media reports,
addressing issues international instruments and documents
➔➔ provide an explanation of the nature of the relationship ➔➔ account for differing perspectives and interpretations of
between the legal system and society legal information and issues
➔➔ describe the role of law in encouraging cooperation and ➔➔ communicate legal information using well‐structured
resolving conflict, and in initiating and responding to change responses
affirmative action dispossession native title reconciliation
assimilation equal opportunity nomadic treaty
dispersal martial law racial vilification
Relevant law
Australian Constitution section 51 National Parks and Wildlife Act 1974 (NSW)
Australian Constitution section 127 Aboriginal Land Rights Act 1983 (NSW)
Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) Anti-Discrimination Act 1977 (NSW)
Native Title Act 1993 (Cth) Racial Discrimination Act 1975 (Cth)
Native Title Act Amendment Act 2007 (Cth) Northern Territory National Emergency Response Act 2007 (Cth)
Native Title Act Amendment Act (Technical Amendments) 2007 (Cth)
Significant cases
Mabo v Queensland (No. 2) (1992) HCA 23 R v Williams (1976) 14 SASR 1
Wik Peoples and Others v The State of Queensland and Others Walker v NSW (1994) 69 ALJR 111
[1996] HCA 40

18.1 Introduction that Indigenous people needed looking after and were not able
to make meaningful decisions for themselves. Many of the laws
and policies were discriminatory, as was the public attitude
In this chapter, you will learn about the changing government
encouraged by them. This can be seen in a quote that appeared in
policies in relation to Indigenous Australians since 1788 and how
a 1901 edition of the Bulletin magazine:
their legal status has developed, with particular reference to the
1967 referendum. There has been a range of policies and laws If this country is to be fit for our children and their children to live
in, we must keep the breed pure. The half‐caste usually inherits the
designed to achieve goals of dispersal, protection, assimilation
vices of both races and the virtues of neither. Do you want Australia
and possibly self-determination up to the present day. The to be a community of mongrels?
effects of such policies will be considered, as well as an analysis
Each state government appointed a Protector of Aborigines.
of contemporary policies and legislation.
This role resulted from a recommendation of the British House
of Commons in 1838. In a report it was recommended that
History of government policy Protectors of Aborigines should be engaged with Indigenous
people and that they would be required to learn the Aboriginal
Australian students, through their school studies, have a good language. Their duties would be to watch over the rights of
understanding of Australian Indigenous populations and their Aborigines by guarding against encroachment on their property
history. From these studies, students are also aware that Aboriginal and protecting them from acts of cruelty, oppression and
and Torres Strait Islander peoples have not been treated as equally, injustice. How protective this role really was has been debated.
or fairly, as other Australians in many situations. In this topic, you For example, consider the statement made in 1937 by Mr A.O.
will look at the role of the legal system in their treatment. Neville, Commissioner for Native Affairs (formerly Chief Protector
The term ‘aboriginal’ is an indication of the treatment of of Aborigines) in Western Australia:
Indigenous Australians by the white settlers who came after 1788.
We have power under the Act to take any child from its mother at
The term ‘aboriginal’ is a generic one meaning ‘native’, and by any stage of its life … Are we going to have a population of one
applying it to the Indigenous Australians, the British showed that million blacks in the Commonwealth or are we going to merge them
they had no real interest in the groups of people who were the into our white community and eventually forget that there were
ever any Aborigines in Australia?
traditional owners of the lands that made up the enormous island
of Australia. When considering the laws and their outcomes, as outlined in Table
By looking at the map on page 47 in Chapter 2, it is clear that 18.1, we can see that the term ‘protection’ did have a very different
Indigenous people lived in distinct clans and language groups and meaning in the eyes of colonial and past Australian law.
therefore it is not accurate or fair to categorise Indigenous people
into one cultural group. When the First Fleet arrived, the belief at Review 18.1
the time was that Aboriginal and Torres Strait Islander people were
‘savages’, with no concept of land ownership. There were no fences, 1 Outline what you know about the operation of the legal
system in relation to Indigenous Australians prior to 1788.
landlords, tenants or farms to be observed, and so the British
government declared the land ‘terra nullius’ (land belonging to no 2 Identify the Latin term for ‘land belonging to no one’.
one, or uninhabited land). Why did the British have this belief about Australia?
A range of government policies and laws in relation to 3 Describe the three main policies of Australian
Indigenous peoples has been in place since 1788; these are governments in relation to Indigenous people from 1788
summarised in Table 18.1. The law-makers at this time believed to 1967. List one effect or outcome of each policy.

Table 18.1 Laws and policies relating to Indigenous Australians
Policy/law Effect/outcome
Dispossession/dispersal (1788–1800s) Massive reduction in the Indigenous population. Traditional
Since Indigenous people were not recognised as citizens, it was Indigenous areas converted to farming lands.
not a criminal offence to hunt, shoot and kill them. The general
belief was that Indigenous people would eventually ‘die out’.
1816 Martial Law (NSW) Aboriginal people could be shot on sight if armed with spears, or
1824 Martial Law (Tasmania) even if they were unarmed and within a certain distance of houses
or settlements.
Settlers were authorised to shoot Aboriginal people.
Protection (1869–1909) These Acts allowed the appointment of a ‘protector’ of Aboriginal

Aborigines Protection Act 1869 (Vic) people. This included the power to remove children from homes
to be placed in missions.
Aborigines Protection Act 1909 (NSW)
Vagrancy Act 1835 (NSW) Citizens could be sent to jail with hard labour for ‘lodging or
wandering in company with any of the black natives of the colony’.
Assimilation and integration (1900–1970s) The European majority attempted to teach the Indigenous
By this time, Indigenous populations were a long way from ‘dying population to be white. This was met with both submission and
out’, and the policy was to ‘Europeanise’ them. Leaving behind resistance. The 1967 referendum recognised that Aboriginal and
their language, culture, artefacts and traditions, and becoming Torres Strait Islanders should be counted in the census numbers
‘similar’ and ‘integrating’ into mainstream society. and transferred responsibility for Indigenous affairs to the federal
government.
18.2 The legal status of On 10 June 1838, they were brutally attacked and killed by stockmen
who were angry about the theft of their cattle. Twenty‐eight
Aboriginal and Torres Strait men, women and children were slaughtered, and the Governor of
Islander peoples before 1967 New South Wales ordered an investigation into the massacre. Such a
legal process was probably the first of its kind. Initially, 11 men were
The doctrine of terra nullius meant that in the eyes of the law, found not guilty of the crime. However, a second trial sent seven men
Indigenous Australians did not exist as citizens for hundreds of to their death by hanging. As a result of this event farmers perceived
years. The statements made by the Bulletin magazine and the Chief the message that if you did kill Aboriginal people, do not tell the
Protector of Aborigines highlight the legal status of Indigenous authorities and cover up any evidence; the result was that nearly all
people since 1788. There were no criminal laws for European people further massacres went unrecorded. In the ensuing years, Aboriginal
to abide by in terms of harming or killing Indigenous people and, people were seen as needing care and ‘guidance’ in decision making.
in the first 50 years or so, the government policy of dispossession State governments passed laws such as the Aboriginal Protection
and dispersal tended to condone violence. Indeed, martial law in Act 1869 (Vic) and the Aborigines Protection Act 1909 (NSW), which
both Tasmania and New South Wales allowed Aboriginal people to gave wide powers to govern where Aboriginal people could live
be shot and killed. One of the most significant and tragic events of and work, what jobs they could do and whom they could marry and
the 1800s occurred in New South Wales at Myall Creek, near Bingara. associate with. In New South Wales this also allowed for the removal
In May 1838, 40 Indigenous people set up camp on a cattle station. of children from homes to missions.
C hap ter 18: Ab or iginal and Tor res Strait Isl ander p eop l es 3

Indigenous Australians had no recognised legal status until 1838. established the Department of Aboriginal Affairs in response to
Until the 1967 referendum, the Constitution referred to Aboriginal the failure of the Gove land rights case. A royal commission into
people in two sections – section 51 and section 127. Section 51 gave Aboriginal land rights under Justice Woodward was established,
the responsibility for Aboriginal affairs to state governments. Since and its findings led to the drafting of the Aboriginal Land Rights Act
there were no federal laws governing the welfare of Indigenous 1976 (NT). This was the first legislation in Australia to establish a
people, different states interpreted their rights and legal status in land claim process by which traditional owners could claim various
various ways. While most Aboriginal people were killed or removed parcels of land that were listed as available for claim.
from Tasmania by the 1840s, New South Wales at the same time Between 1982 and 1992, Eddie Mabo and four other men
sentenced seven white men to death for the Myall Creek massacre. challenged the Queensland Government in the Supreme Court
Section 127 of our Constitution excluded Aboriginal people from (Mabo v Queensland 166 CLR 186, 8 December 1988), and the
the census. They were also denied fundamental citizenship rights. federal government in the High Court (Mabo v Queensland [No. 2]
These citizenship rights involved being able to enjoy individual (1992) 175 CLR), over their people’s rights to access Murray Island
freedoms such as freedom of speech, the right to stand for election (Mer). Although Eddie Mabo and one of his fellow plaintiffs died
and the right to education. during this time, in June 1992, the High Court ruled (by six judges
By the 1960s, as attitudes, beliefs and policies began to change, to one) that Australia was not terra nullius and that the Meriam
so too did the legal status of Aboriginal and Torres Strait Islander people clearly held native title to their land. The judgments of the
peoples. For example, the right to vote in federal elections was High Court in the Mabo case inserted the legal doctrine of native
granted in 1962 and in all state elections by 1965. The 1967 title into Australian law. In recognising the traditional rights of
referendum asked the non‐Indigenous population to change the Meriam people to their islands in the eastern Torres Strait, the
section 51 and to totally remove section 127 of the Constitution. court also held that native title existed for all Indigenous people in
Over 90 per cent of the population voted ‘yes’ to these requests Australia prior to the British Colony of New South Wales in 1788.
and, from this point on, Aboriginal affairs became a federal issue This decision altered the foundation of land law in Australia.
and Aboriginal and Torres Strait Islander peoples were counted in The federal government responded to this decision by passing
the census. the Native Title Act 1993 (Cth). The Mabo case and the ensuing
legislation, including the Native Title Amendment Act 1998 (Cth)
After the 1967 referendum significantly changed the legal status of Indigenous people in
relation to native title and allowed some people to access parcels
In 1968, Yolngu people from the Gove Peninsula, in eastern
of land throughout Australia to practise their traditional way of
Arnhem Land, sent a bark petition to the Commonwealth
life. It did not allow Indigenous people to ‘own’ these lands, as
Government protesting the removal of some 300 hectares of
this could mean restricting access to current owners. In December
land for bauxite mining without their permission. The petition
1993, during the passage of the Native Title Bill through parliament,
failed to move the federal government to recognise the rights of
Prime Minister Paul Keating said:
the Yolngu people and so the Gove land rights case (Milirrpum
... as a nation, we take a major step towards a new and better
v Nabalco Pty Ltd (1971) 17 FLR 141) commenced in the Northern
relationship between Aboriginal and non-Aboriginal Australians.
Territory Supreme Court in 1971. In his ruling, Justice Blackburn
We give the Indigenous people of Australia, at last, the standing
stated that if the Yolngu people did have any type of native title they are owed as the original occupants of this continent, the
rights, they would have been extinguished under common law. standing they are owed as seminal contributors to our national
life and culture: as workers, soldiers, explorers, artists, sportsmen
Thus, the doctrine of terra nullius prevailed and they could not
and women – as a defining element in the character of this nation
prevent mining on the land.
– and the standing they are owed as victims of grave injustices, as
In 1972, the Australian Labor Party, led by Gough Whitlam, was people who have survived the loss of their land and the shattering
elected after 23 years in opposition. That year, the government of their culture.

12 months (Jopson 2003). In addition, the Royal Commission into
Review 18.2 Aboriginal Deaths in Custody 1987 found that:
1 Describe the changing legal status of Aboriginal and ... the more fundamental causes for the over‐representation of
Torres Strait Islander peoples prior to 1967 and up to Aboriginal people in custody are not to be found in the criminal
justice system but in those factors which bring Aboriginal people
1993. Why do you think laws have changed?
into conflict with the criminal justice system in the first place.
2 Explain the importance of the 1992 Mabo decision for The view propounded by this report is that the most significant
the legal status of Aboriginal and Torres Strait Islander contributing factor is the disadvantaged and unequal position in
peoples. which Aboriginal people find themselves in the society – socially,
economically and culturally.
3 Evaluate the statement made by Prime Minister Paul
Keating in 1993 on the passing of the Native Title Bill. In the past few years, a range of measures and policies to counter
the statistics listed above have been put in place, including circle
sentencing, which tries to identify a more appropriate form of
Criminal law punishment, after an Aboriginal person has been found guilty in
ordinary court. While circle sentencing continues in Dubbo and
In the cases of R v Ballard (1829) and R v Murrell (1836), in which
Nowra, there are still criminal cases whereby Aboriginal people are
Indigenous men (Ballard and Murrell) were charged with murdering
not excused from the current criminal justice system of assigning
other Indigenous men, the defence counsel argued:
punishment.
The natives were not protected by the laws of Great Britain, they
were not admitted witnesses in Courts of Justice, they could
not claim any civil rights, they could not obtain recovery of, or Civil law
compensation for, those lands which had been torn from them, and
which they had held probably for centuries. It therefore followed Australia’s adversarial legal system means that taking civil action
they were not bound by laws which did not at the same time afford against another person or company can be an extremely costly
them protection. experience. The chances of winning a case with self‐representation
In both cases, the prisoners were dismissed. However, in the latter are extremely low and, as a consequence, very few Indigenous or
case, Justice Forbes reversed his decision and found the defendant non‐Indigenous people can afford to act as plaintiffs in civil cases.
guilty after consulting with three other judges. Throughout all of However, in 1996, as a result of the Mabo decision, the Wik people
the 20th century and into the 21st, Aboriginal and Torres Strait of Cape York challenged, in the High Court, the legality of pastoral
Islander people continue to be significantly over-represented leases or land formerly under pastoral leases.
in rates of arrest, charge and jail sentencing. It is estimated that The major difference between the Mabo and Wik cases was that
Aboriginal and Torres Strait Islander people are between nine and the Wik people were fighting against farmers who also felt they
15 times more likely to be arrested, charged and jailed for offences had legal rights and ownership. The High Court found in favour
commonly known as ‘the trifecta’ – offensive language/behaviour, of the Wik people. In a judgment known as ‘the Wik decision’ the
resisting arrest and assaulting police, and hindering police. Indeed, court found that native title could ‘coexist’ with pastoral leases.
in 2004, Aboriginal people (including people of Torres Strait This effectively meant that the Wik people could access their land
Islander descent) in New South Wales appeared in criminal courts for customary purposes and that this should not interfere with
four times more frequently than non‐Aboriginal people. In terms farmers or pastoralists. The court also determined that, should
of incarceration, 16 per cent of Aboriginal people who appeared in native title and pastoral leases come into conflict, the pastoralists’
court received jail sentences, compared to just 6 per cent of non‐ rights would prevail. The court explained that pastoralists had an
Aboriginal people. exclusive right to pasture, but not exclusive rights to possession
It has been estimated that if all Indigenous people who of the land. Following this judgment, the federal government
were sentenced to jail for fewer than six months were released, introduced the 10‐point plan for native title, with the Native Title
Indigenous jail population numbers would fall by 56 per cent over Amendment Act 1998 (Cth).

18.3 Mechanisms for Based on self‐reported height and weight, Indigenous people aged
15 years and over were 1.2 times more likely to be overweight or
achieving justice for obese than non‐Indigenous people. Indigenous Australians were
Aboriginal and Torres Strait 1.6 times more likely to report asthma as a long‐term health
Islander peoples condition (16 per cent) than the non‐Indigenous population.
Indigenous people were three times more likely to report some
form of diabetes than non‐Indigenous Australians. In 2004–05,
The mechanisms and methods available to Aboriginal and Torres
the prevalence of hearing conditions for Indigenous children was
Strait Islander people in contemporary times will be examined.
three times higher than for non‐Indigenous children.
Land rights, native title, Australian law and Indigenous customary
law will be discussed within the context of legal, social and political
changes since 2000.
Education
School retention (2011) – 49 per cent of Indigenous students
Areas of disadvantage for continued to Year 12 compared to 81 per cent of non‐Indigenous
Indigenous Australians students.
Compared to non‐Indigenous people, Indigenous Australians Care and protection of children

generally experience lower standards of health, education, The rate of removal of Aboriginal children from their families
employment and housing, and are over-represented in the still exceeds the removal of non-Aboriginal children per head
criminal justice system. This is seen in the statistics outlined below. of population. According to the Australian Institute of Family
This disadvantage was highlighted in the report of the Royal Studies, there are 10 times more Aboriginal children in care than
Commission into Aboriginal Deaths in Custody in 1991. In the non-Aboriginal children. As the availability of foster families in the
report, Commissioner Elliot Johnston QC stated: Indigenous community is very low, these children may experience
... the consequence of the history of Aboriginal people (since alienation from their culture, in addition to other disadvantages
European settlement) is the partial destruction of Aboriginal that are sometimes faced by children in care (social and economic
culture and a large part of the Aboriginal population and also
disadvantage, abuse etc).
disadvantage and inequality of Aboriginal people in all the areas
of social life where comparison is possible between Aboriginal and
non‐Aboriginal people. Employment
Unemployment (2011) – The unemployment rate was 18 per cent
Health for Indigenous adults compared to 5 per cent for non‐Indigenous
adults. This rate has improved since 2001 (when Indigenous
Life expectancy (2007) unemployment was 20 per cent) but risen since 2006 (when the
££ Indigenous males: 67 years (compared to all Australian males: rate was 16 per cent).
78 years)
££ Indigenous females: 73 years (compared to all Australian Criminal justice system
females: 83 years) Juvenile detention (2008) – Indigenous young people aged 10 to
17 years were 23 times more likely than non‐Indigenous juveniles to
General health (2004–05)
be detained in a juvenile justice centre. (Source: Australian Human
Indigenous people were nearly twice as likely to report their health Rights and Equal Opportunity Commission.)
as ‘fair or poor’ (22 per cent) compared to non‐Indigenous people.

Review 18.3 Research 18.1
1 With reference to the statistics outlined above, outline Follow the link at www.cambridge.edu.au/
the differences in life expectancy between Indigenous prelegal3weblinks to the Australasian Legal Information
and non‐Indigenous males and females. Institute website and view the cases on record.
2 Describe the differences in general health between 1 Choose three cases. Describe the events of each case and
Indigenous and non‐Indigenous people. the judge’s decision.
3 Discuss the reasons for the overall disadvantage differences 2 Evaluate the effectiveness of the law in dealing with
as outlined by Commissioner Elliot Johnston QC. racial vilification.
Racial vilification Anti‐discrimination legislation

The Racial Discrimination Act 1975 (Cth) was amended in 1995 Discrimination in this legal meaning refers to treating someone
to include the Racial Hatred Act 1995 (Cth) and allows citizens unfairly because they belong to a particular group of people.
to complain about offensive, abusive or racially motivated Discrimination includes harassment. Harassment is any form
behaviour. This legislation aims to balance two rights: the right of behaviour that is not wanted and not asked for and that
to communicate freely and the right to live free from racial humiliates, offends or intimidates. The Racial Discrimination
vilification. The Act prevents public offence, insult, humiliation Act 1975 (Cth) and Anti‐Discrimination Act 1977 (NSW) make this
or intimidation of people of a particular race, colour or behaviour towards Indigenous people unlawful. In May 2005,
national identity. some amendments were made to this legislation that allowed
A case that highlights the intent of this legislation is McMahon lawyers to lodge complaints to the Anti‐Discrimination Board
v Bowman [2000] FMCA 3 (13 October 2000). Mr Bowman shouted (ADB) within 12 months of the offence, rather than the previous
abuse from his front verandah to his Aboriginal neighbour, six‐month complaint period.
Mr McMahon, because he tried to retrieve his children’s ball from In addition, the ADB will be able to hear part of a complaint
Mr Bowman’s front yard. The magistrate noted that passers- rather than a complaint in total. This is designed to allow parts
by could have heard them. The respondent (Mr Bowman) was of a complaint to be dismissed if not covered by legislation, but
ordered to pay $1500 in compensation as well as the complainant’s remaining parts of the complaint will stand. Previously, whole
(Mr McMahon’s) legal costs. Follow the link at www.cambridge.edu. cases have been dismissed because some of the behaviour of
au/prelegal3weblinks to view this case. the respondent had not been covered by legislation. The Anti‐
There are exceptions to the Racial Discrimination Act, including: Discrimination Board of NSW, which is part of the Attorney
££ an artistic work or performance (for example, a play where General’s Department, was set up under the Anti‐Discrimination
racist attitudes are expressed by a character) Act 1977 (NSW) to administer that Act. The ADB’s role is to promote
££ an academic publication, discussion or debate (for example, anti‐discrimination and equal opportunity principles and policies
discussing and debating public policy such as immigration, throughout New South Wales.
multiculturalism or affirmative action for migrants) The ADB provides an inquiry service for people who want to
££ a fair and accurate report on a matter of public interest (for know about their rights or responsibilities under anti‐discrimination
example, a fair report in the media of an act of racial incitement law and accepts complaints of discrimination. More importantly,
or racially offensive conduct) the ADB informs the people of New South Wales about their rights
££ a fair comment if the comment is an expression of a person’s and responsibilities under anti‐discrimination laws and explains
genuine belief. how they can prevent and deal with discrimination. This is achieved
In the case of McMahon v Bowman, none of these exceptions through consultations, education programs, seminars, talks,
applied. participation in community functions, and the production and

distribution of information, through printed publications and the Government funding was provided to establish head and
ADB website (refer to www.cambridge.edu.au/prelegal3weblinks regional offices for the purpose of providing services such as
for link). health, substance abuse programs, and housing and economic
development programs. In March 2005, after a range of criticisms
Legal aid from the federal government and some personal issues with the
chairman, Geoff Clark, ATSIC was officially abolished. The Liberal/
‘Legal aid’ describes the provision of legal services to socially and
National coalition government replaced ATSIC with the National
economically disadvantaged people at no or very little cost to them.
Indigenous Council (NIC) but this body was widely denounced
The government pays for legal aid so that people who cannot afford
for its ineffectiveness, and member contracts were not continued
to pay a solicitor themselves are still able to access the legal services
by the Labor government after 2007. At the time of writing, no
they require. Legal aid in New South Wales is provided by a number
independent national body (funded by the government) exists.
of different organisations, including the Legal Aid Commission
of New South Wales, community legal centres generally and the
Aboriginal Legal Service. All of these are funded by either or both Government inquiries
of the Commonwealth and NSW governments. Legal aid assists
socially and economically disadvantaged people to understand and Aboriginal Deaths in Custody
protect their rights.
The Royal Commission into Aboriginal Deaths in Custody was
The legal system can only perform this protective role if
established in 1987 in response to the unacceptable number of
people have equitable access to it. Socially and economically
Indigenous deaths in police custody and jail in Australia.
disadvantaged people, including many Aboriginal people (and
In summary, the Commission found that there was no
people of Torres Strait Islander descent), may experience particular
evidence of foul play by police officers in each of the deaths.
difficulties in accessing the justice system. Legal aid plays a special
However, suspicions were raised and this caused serious damage
role in improving access to justice by providing a range of legal
to relationships between Aboriginal and Torres Strait Islanders,
services to Aboriginal people.
the police and the wider community. The Commission made 339
The Aboriginal Legal Service (NSW/ACT) Limited (ALS) provides
recommendations to assist in the reduction of custodial deaths.
legal aid services to Aboriginal Australians in New South Wales and
You can read the Commission’s findings at the Australasian Legal
the ACT in the areas of criminal and family law. It started operation
Information Institute website (refer to www.cambridge.edu.au/
on 1 July 2006 and has 23 offices across New South Wales and the
ACT. The ALS replaced the six Aboriginal and Torres Strait Islander
Legal Services (ATSILS) and their peak body, the Coalition of
Aboriginal Legal Services (COALS). The ALS won the government Land Councils and Trusts
contract to provide legal services to Indigenous Australians in New The Aboriginal Land Rights Act 1983 (NSW) was established to
South Wales and the ACT on 28 April 2006, and receives government provide a mechanism for compensating Aboriginal Australians for
funding to do so. their loss of land. The Act states that land was traditionally owned
and occupied by Indigenous Australians and that it is accepted
Special commissions that as a result of past government decisions, the amount of land
set aside for Aboriginal people has been progressively reduced
ATSIC
without compensation.
In 1989, the Commonwealth government legislated the Aboriginal The Act aims to compensate Aboriginal people in New South
and Torres Strait Islander Commission Act to establish a body Wales for their loss of connection to land. Therefore, a three‐tiered
known as ATSIC. The purpose of ATSIC was to grant more political network of Aboriginal land councils was established in New South
power to Indigenous people by allowing them greater participation Wales, consisting of the NSW Aboriginal Land Council, 13 regional
in Indigenous affairs. land councils and 120 local land councils.

Interestingly, this Act came into effect at about the same time since the abolition of ATSIC in 2005, a number of questions have
that Eddie Mabo was challenging the Queensland government, and arisen. According to Ms Jody Broun, Director General of the NSW
highlights the nature and operation of the Australian legal system Department of Aboriginal Affairs:
with respect to Indigenous land rights and native title. At this point The Commonwealth Government is now using SRAs [shared
it is worth differentiating between these two terms. relationship agreements] with Aboriginal communities to deliver
funding for projects that do not involve core services. SRAs are
voluntary written agreements around particular projects or
Land rights
activities which Aboriginal communities have identified as a priority.
Land rights granted to Indigenous people give legal rights to a SRAs set out the outcomes to be achieved, and the agreed roles and
responsibilities of the Governments and Aboriginal communities
parcel of land, but usually not exclusive rights to develop such land
involved in the activity. While the primary objective of SRAs should
as the owners see fit. A legal document or ‘title deed’ is handed be to bring benefits to Aboriginal communities, some Aboriginal
over to a community or organisation, and this land is usually passed leaders and State Government representatives have expressed
down to future generations, as it would have been prior to 1788. concerns that SRAs may require Aboriginal people to do things to
get services that non‐Aboriginal people do not have to do. There is
no clear evidence yet that this is the case. Aboriginal communities
Native title should be able to obtain benefits from SRAs, but this is dependent
Native title is not a grant by a government to land. Rather, it is the upon communities having good leadership and resources, and
being able to negotiate on an equal footing with government
legal recognition of Indigenous rights in Australian law and allows
officials. Finally, the power of protest can sway political parties to
access and coexistence for customary lifestyles and traditions to change policy or legislation, depending on the issue and the timing
be practised. of elections.
The NSW Aboriginal Land Council (NSWALC) works for the return
of culturally significant and economically viable land. It pursues
cultural, social and economic independence for Aboriginal
Self‐determination, including treaties
people by being politically pro‐active and voicing the position of Article 1 of the United Nations Covenant on Economic, Social and
Aboriginal people on issues that affect them. Some of the activities Cultural Rights (1966) states that: ‘All peoples have the right of
the NSWALC may engage in include administering funds from self‐determination. By virtue of that right they freely determine
mining royalties, acquiring new lands from the Crown and allowing their political status and freely pursue their economic, social and
or rejecting mining activities on Aboriginal land. cultural development.’ The following extract, written by social
commentator and journalist Tim Rowse, offers an opinion about
Political power Indigenous rights to self‐determination in Australia.
Political power refers to the ability to influence and directly control Citizens who are Indigenous are bearers of a right to self‐
determination which cannot be honoured by putting in their hands
government policy. One of the most obvious ways to control and
merely those instruments of self-determination that were afforded
influence policy is to have Aboriginal and Torres Strait Islanders as to all Australian citizens through the Australian Constitution. That
Members of Parliament (MPs). is because Indigenous Australians were not parties to the federal
In 2003, Linda Burney became the Member for Canterbury in compact of 1901. Giving Indigenous Australians the vote since
federation cannot in itself redress their omission from the founding
New South Wales. She was the first Aboriginal Australian to be
processes of nationhood.
voted into the 158‐year‐old NSW Parliament. She became the To admit them as parties to nation building, it would be necessary
eleventh Aboriginal MP and only the fourth Indigenous woman to negotiate changes to the Constitution that acknowledge their
elected to any Australian parliament. collective interests in some way.
Another way of wielding political power is through bodies This should have been the main business of the Centenary [of
Federation] in 2001. Thus, some advocates of a treaty now argue for
such as the NSWALC and ATSIC. While ATSIC was an arm of the
constitutional recognition of an Indigenous order of government
federal government, it was able to determine a range of strategies, – the instrument of their self‐determination as a distinguishable
policies and programs for Indigenous communities. However, people within the Australian nation.

John Howard’s opposition to the recognition of Indigenous
Australians as Indigenous, with their own unique culture, religion,
18.4 Responsiveness of the
customary laws and communities, is well known. He frankly legal system to Aboriginal
expressed his strong personal view in 1988, saying ‘Aboriginal and Torres Strait Islander
people should be brought into the mainstream of Australian
society’. He reiterated such a view in May 2002 while commenting
peoples
on the ‘disgraceful’ state of Indigenous communities, saying ‘There
The Australian legal system is based on an adversarial process,
are plenty of Aborigines, Indigenous Australians, who are fully
whereby opposing sides argue their cases with a judge acting as a
integrated. But there are still quite a lot who aren’t.’
‘referee’. The adversarial system is one of many justice systems used
around the world, and it is certainly not the only system. Aboriginal
Review 18.4 and Torres Strait Islander peoples traditionally had a customary
system of law and justice based on tribal elders settling disputes or
Read the opinions of author Tim Rowse. Do you agree
handing out punishments (see R v Williams on the following page).
or disagree with these opinions in relation to self‐
determination? Discuss your views in class.
Misunderstandings due to ignorance
Many Indigenous people have debated and discussed a treaty
and differences in points of view
between Indigenous and non‐Indigenous Australians. Such
The adversarial system is complex, expensive, time consuming and
a treaty could take many forms, such as a bill of rights, or an
quite foreign to Indigenous people. Indeed, many would argue that
agreement on a range of issues. The Treaty of Waitangi in New
it is difficult for any person without legal training to comprehend
Zealand between Maoris and the colonial powers settles the
all of the rules and processes. It is, therefore, easy to see that
differences that existed over land occupation, and there is still
misunderstandings due to ignorance are common. Some people
a possibility in Australia of a treaty being signed. In 2000, the
argue that Indigenous people are the proper owners of all land
former chairman of ATSIC, Geoff Clark, made the following
in Australia; others argue that Indigenous people should have no
comments about a treaty:
special rights. Thus, it is not easy for Indigenous Australians to
In fact what it can do is resolve all outstanding issues left in terms
gain the sympathy and support of ‘everyday Australians’ in some
of reconciliation. Proper recognition of Indigenous people’s rights,
equality and fairness are all wrapped up in the treaty. At the end of of their claims.
the day a treaty is a settlement.
Language and cultural differences

Review 18.5 Indigenous peoples have lived on the Australian continent
1 Clarify the difference between land rights and for at least 50 000 years and, prior to colonisation, there were
native title. approximately 500 different cultural and language groups. To
categorise Indigenous people into a single ethnic group would
2 Identify at least one problem for Indigenous
communities with the abolition of ATSIC. be similar to categorising Caucasian, Asian or Arab people into
one group. The European colonists did not grasp the concept that
3 Discuss the advantages and disadvantages of a treaty
there were significant differences between these groups in terms of
between the federal government and Indigenous
Australians. language, religion and culture.
There is evidence to suggest that not all Indigenous peoples were
nomadic. Some groups lived a sedentary lifestyle, with permanent

dwellings and clear physical boundaries. Indeed, as Eddie Mabo
successfully demonstrated, the Meriam people (on the Torres Strait Review 18.6
island of Mer) had a system of land ownership with identifiable 1 Outline Indigenous systems of justice and punishment.
boundaries, whereby land was passed down through generations.
2 Explain how non‐Indigenous systems of law and
As a general rule, Indigenous cultural beliefs emphasise the punishment may be harmful to Indigenous offenders.
group rather than the individual. Indigenous Australians have
3 Justify the decision of the court in the R v Williams case.
a strong connection to the land and the physical environment,
In your answer, consider whether being speared by
believing that life comes from the land and returns to it upon death. elders is sufficient punishment for manslaughter.
They see themselves as custodians of the land, looking after it for
future generations. This is in stark contrast to the non‐Indigenous
view of land as an asset that can be bought and sold for profit and
changed or developed to suit the needs of people at the time.
The extent to which governments
For Indigenous people living in rural and remote parts of have recognised and responded to
Australia today, English may not be their first language and issues and rights
interpreters are often needed if an individual faces police and
court proceedings. Placing an Indigenous person within four walls State and federal governments have recognised and responded to
for an extended period of time (such as in a prison) may be viewed Indigenous issues in a range of ways. It is difficult to identify the
as more cruel and inhumane than for a non‐Indigenous person most important issue, as opinions vary widely, but land ownership,
because of the different cultural backgrounds discussed. recognition of customary law and an apology from a federal
Customary law involves discussion, mediation and direct government for ‘stealing’ children from their homes will be dealt
action, and a physical punishment may be administered. While with in this section.
this may also be viewed as cruel and harsh, it means punishment What if gold, oil or some other precious resource was to be
is dealt with quickly and does not involve incarceration. The 1976 discovered in your backyard or house? Would you automatically
case R v Williams highlights the recognition of customary law by a want to sell your house and allow this resource to be extracted
South Australian judge. for huge profit? Perhaps you and your family were so attached to
Case Space
R v Williams (1976) 14 SASR 1
During the course of this criminal trial in South Australia, Justice custodial sentence if the prisoner returned to his lands for
Wells heard evidence that a woman taunted Mr Williams in customary punishment. The sentencing judge later gave
relation to customary secrets. They had been drinking together his reasons:
and an argument broke out between them, which led to the The fact was that he had very little English; it would have been
woman’s death at the hands of the accused. Mr Williams was impossible for him to have communicated with the staff of the
convicted of manslaughter. prison or with any fellow prisoners, or to have related to them
in any way ...
The court decided that the provocation by the woman
To condemn a tribal Aborigine to such a fate was something
was sufficient to reduce the murder charge to the lesser
which I wished, if possible, to avoid.
crime. Justice Wells decided against sentencing Williams
to imprisonment if he agreed to customary penalties dealt Williams was later speared through the legs as required by
by Aboriginal elders. Justice Wells ‘suspended’ a two‐year the elders.

your house that you would not dream of selling? Imagine that your
Deaths in custody recommendations
home had been part of your great-grandparents’ home, where your
grandfather and your mother grew up, for example. This situation has The 1987 Royal Commission into Aboriginal Deaths in Custody
some similarity to the issue of native title and land rights. Some citizens was established in response to the unacceptable number of
see the practising of Indigenous culture to be far less important than Indigenous deaths in police custody and jail. The Commission
the economic gains of farming, forestry, fishing and mining. How do handed down 339 recommendations, some of which will be
we decide whether access should be granted to Indigenous people? discussed here.
What if a major deposit of a mineral is discovered on land owned It is worth noting that the number of deaths in police custody
by an Indigenous community and they do not wish mining to occur, has fallen because of a range of changes made to police cells, one
despite large sums of compensation or royalties? The Gove land of which reduces the possibility of suicide. However, the number of
rights case commenced in the Northern Territory Supreme Court in Indigenous people in jail in 2005 and subsequent deaths in custody
1971. The court found that if the Yolngu people did have any type remains approximately 17 times higher than the number for non‐
of native title rights, the doctrine of terra nullius prevailed and they Indigenous inmates.
could not prevent mining on their land. One of the main recommendations for reducing deaths was to
In response, the Whitlam government established the reduce the number of Indigenous people going to jail in the first
Department of Aboriginal Affairs in 1972. The Aboriginal Land Rights instance. A diversionary program was suggested that involved
Act 1976 (NT) established a land claim process for traditional owners. punishment or rehabilitation rather than jail. Yet in 1997, a
The Mabo cases demolished the notion of terra nullius and established 15‐year‐old boy died in juvenile custody in the Northern Territory.
the Native Title Act; however, the Wik case and the government’s He had committed minor property offences, but was not placed
10‐point plan (Native Title Amendment Act 1998) now means on a diversionary program.
Indigenous people can be consulted on a land‐use issue, but they In 1992, the position of the Aboriginal and Torres Strait Islander
have no legal power to veto a decision about land. In relation to the Social Justice Commissioner was created by Federal Parliament in
issues of customary law and self‐determination, while some judges response to the findings of the Royal Commission and the National
have recognised social, cultural and legal differences, the High Court Inquiry into Racist Violence. It was also a response to the extreme
dismissed the 1994 appeal by Denis Walker, as explained below. social and economic disadvantage faced by Indigenous Australians.
In his Social Justice Report of 2000, Aboriginal and Torres Strait
Case Space Islander Social Justice Commissioner Dr William Jonas stated
that the past 10 years had seen Indigenous issues become highly
Walker v New South Wales (1994) 69 ALJR 111 publicised and discussed, and the wider community had become
more aware of a history of injustice.
Denis Walker claimed that he could not be guilty of a
Dr Jonas highlighted the reports of the Royal Commission into
crime of assault because he was not accountable under
Aboriginal Deaths in Custody and the recognition of native title as
Commonwealth or state criminal law. Mr Walker claimed that
exposing the foundational myths of our history. Australia was not
Australian governments did not have the power to make laws
for Aboriginal Australians without their consent. However, terra nullius and Indigenous people did suffer at the hands of our
on 16 December 1994, the High Court decided to dismiss custody system. Of particular importance was the documenting
Walker’s appeal against his conviction. The High Court was of the impact of the forcible removal of Aboriginal and Torres
not influenced by Walker’s counsel’s submissions. Chief Strait Islander children from their families, which occurred as
Justice Mason stated that the concept of justice demanded government policy up until 1972. Many non‐Indigenous
that the same conduct receive the same legal response Australians were unaware of such policy and the horrendous
regardless of the race of the person charged with an offence. impacts on families and individuals who were removed.

Forcible removal of children 18.5 Conclusion
from their families
In November 2007, the Australian Labor Party, under the
The Chief Protector of Aborigines in Western Australia commented leadership of Kevin Rudd, was elected to power in Australia. One
in 1937 that Australia had the power to take any child from its of the government’s earliest moves was to apologise to Indigenous
mother so that the nation could merge its ‘black’ population into the Australians for their treatment by Australians in the past. In an
‘white’. The National Inquiry into the Separation of Aboriginal and emotional address to the House of Representatives on 13 February
Torres Strait Islander Children from their Families was established in 2008, Kevin Rudd spoke of the ‘profound grief, suffering and loss’
May 1995 in response to efforts made by key Indigenous agencies experienced by Australia’s Indigenous people. Addressing a packed
and communities. They were concerned that the general public’s House of Representatives, Mr Rudd apologised on behalf of the
ignorance of the history of forcible removal was hindering the parliament for laws and policies that had ‘inflicted profound grief,
recognition of the needs of its victims and their families and the suffering and loss on these our fellow Australians’.
provision of services. Although the Rudd government has since been criticised
The inquiry looked at four main issues or ‘terms of reference’: by Indigenous leaders for the slow rate of policy change,
££ The first was to examine the past and continuing effects of this apology officially recognised inequalities and injustices
separation of individuals, families and communities. and began to heal the breach between Indigenous and
££ The second was to identify what should be done in response, non‐Indigenous Australians.
to change laws, policies and practices, to reunite families and More recently, the Gillard government proposed an ‘Act
otherwise deal with losses caused by separation. of Recognition’ to acknowledge Indigenous peoples in the
££ The third was to find justification for, and the nature of, any Constitution, for, as it currently stands, it has no recognition of
compensation for those affected by separation. Aboriginal and Torres Strait Islander peoples. When it was drafted at
££ The last looked at current laws, policies and practices affecting the end of the 19th century, Indigenous peoples were not consulted;
the placement and care of Indigenous children. This included nor were they mentioned in the final document. However, in order
looking into the welfare and juvenile justice systems, and for the Constitution to be changed, a national referendum must
advising on any changes in the light of the principles of be held. At this point in time, no date has been set for one; the
self‐determination. Minister for Indigenous Affairs, Jenny Macklin, has deferred any
The final report, entitled Bringing Them Home, made some referendum until there is greater public support.
recommendations:
££ Compensation for individuals and families affected, including
Review 18.7
reunion and counselling services. This included an apology
from all organisations involved in this policy. 1 Identify the basis of Denis Walker’s appeal to the High
££ Enacting legislation ensuring that Australia abides by the Court in 1976.
United Nations Convention on the Prevention and Punishment 2 Describe one or two of the ‘foundational myths’ referred
of the Crime of Genocide. Article II of that Convention states to by Dr William Jonas.
that genocide includes the forced transferring of children of a 3 Justify the request for the federal government to make
group to another group. It could therefore be argued that for an official apology to the stolen generation.
24 years, Australia was in breach of a UN convention.
Finally, and most importantly, the problems faced by Indigenous
people in accessing the legal system to achieve justice are very
complex, and an improvement in a range of statistics is not
necessarily satisfactory. Aboriginal and Torres Strait Islander
cultures have social and spiritual needs that are not catered for
within the policy of practical reconciliation.

Legal Info
Kevin Rudd’s ‘sorry speech’
I move: degradation thus inflicted on a proud people and a proud

That today we honour the indigenous peoples of this land, culture, we say sorry.
the oldest continuing cultures in human history. We reflect We the parliament of Australia respectfully request that this
on their past mistreatment. We reflect in particular on the apology be received in the spirit in which it is offered, as part
mistreatment of those who were stolen generations – this of the healing of the nation. Growing from this new respect,
blemished chapter in our nation’s history. The time has now we see our indigenous brothers and sisters with fresh eyes,
come for the nation to turn a new page in Australia’s history by with new eyes, and we have our minds wide open as to how
righting the wrongs of the past and so moving forward with we might tackle, together, the great practical challenges that
confidence to the future. Indigenous Australia faces in the future … Let us turn this
We apologise for the laws and policies of successive page together: indigenous and non‐indigenous Australians,
parliaments and governments that have inflicted profound government and opposition, Commonwealth and state, and
grief, suffering and loss on these our fellow Australians. We write this new chapter in our nation’s story together. First
apologise especially for the removal of Aboriginal and Torres Australians, First Fleeters, and those who first took the oath of
Strait Islander children from their families, their communities allegiance just a few weeks ago. Let’s grasp this opportunity to
and their country. For the pain, suffering and hurt of these craft a new future for this great land: Australia. I commend the
stolen generations, their descendants and for their families motion to the House.
left behind, we say sorry. To the mothers and the fathers, Follow the link at www.cambridge.edu.au/prelegal3weblinks to
the brothers and the sisters, for the breaking up of families access the full transcript of Kevin Rudd’s speech.
and communities, we say sorry. And for the indignity and

Chapter summary ➔➔ In 1995, the National Inquiry into the Separation of Aboriginal
and Torres Strait Islander Children from their Families was
➔➔ There has been a range of legal challenges and changes since
established to investigate the policy of forcible removal of
the 1960s, including constitutional change and land rights
Indigenous children. The report Bringing Them Home called for
challenges by the Yolngu people.
compensation, and reunion and counselling services for the
➔➔ The Mabo cases of the 1980s and 1990s were the first
victims, as well as an apology from the federal government.
successful legal challenges in Australia and led to the abolition
➔➔ Practical reconciliation has emerged as the federal
of terra nullius. The Native Title Act 1993 (Cth) was passed as a
government policy, and involves shared relationship
result of this High Court decision.
agreements. It has been widely criticised for lacking sufficient
➔➔ The Wik decision was also important for Indigenous people, as
funding and having a shallow understanding of the problems
it led to the concept of coexistence between pastoralists and
faced by Indigenous people in the past, present and future.
customary Indigenous practices.
➔➔ The Native Title Amendment Act 1998 (Cth), passed in response
to the Mabo and Wik cases, reduces the power and rights of Multiple-choice questions
Indigenous people. 1 What does the doctrine of terra nullius mean?
➔➔ Indigenous people experience a range of disadvantages in
a land unoccupied
areas such as health, education, employment and the criminal b land occupied
justice system. c legal systems in place
➔➔ Legislation has existed for over 20 years that outlaws racial
d land owned by colonial powers
discrimination and vilification, yet conflict continues between
2 What was the outcome of the Gove land rights case?
the Indigenous and non‐Indigenous population.
a It was dismissed on the doctrine of terra nullius.
➔➔ The Anti‐Discrimination Board of New South Wales and NSW
b Indigenous people were granted land rights for the first time.
Legal Aid provide support to Indigenous people.
c It allowed the Constitution to be changed.
➔➔ ATSIC was established in 1989 and abolished in 2005.
d It allowed coexistence on pastoral leases.
➔➔ The Aboriginal Land Rights Act 1983 (NSW) recognised
3 What is racial vilification?
that land was owned by Indigenous people prior to
a any behaviour designed to humiliate on the basis of race
1788. Currently, the NSW Aboriginal Land Council aims to
b condoning violence between racial groups
administer land now held on behalf of Indigenous people.
c proving that one race is superior to another
➔➔ Political power can be exerted in a number of ways, including
d a workplace quota system
direct representation in parliaments, peaceful protests and
through government agencies or departments such as ATSIC 4 How does native title differ from land rights?
or the NSW Department of Aboriginal Affairs. a Native title delivers exclusive access to land.
➔➔ Self‐determination is a concept that is difficult to define, but b Native title does not recognise the existence of
involves recognition of Indigenous customary law and the non‐Indigenous people.
rights of Indigenous people to practise their traditional way of c Land rights usually involve a title deed to land.
life, language and culture. d Land rights enforce coexistence with pastoralists.
➔➔ The different languages and cultures of Indigenous people may 5 On what type of process is the Australian legal system based?
or may not be recognised by the law. Some court cases, such as a inquisitorial
R v Williams, demonstrate a recognition of customary rights. b conciliation
➔➔ The Royal Commission into Aboriginal Deaths in Custody c mediation
handed down 339 recommendations in response to the d adversarial
unacceptable number of Indigenous deaths in police custody
and jail. There has not been a significant improvement in this
area since the report was published.

Chapter summary tasks Marking criteria for extended response
1 Describe the significance of the cases R v Ballard and R v Murrell. Criteria Marks
2 Explain the possible causes of the over-representation of Makes judgements about the effectiveness of the 21–25
Indigenous people in the criminal justice system. legal system in achieving justice since 1967, based
on valid criteria.
3 Explain what you understand by the term ‘coexistence’ in
Makes comprehensive use of relevant cases,
relation to Indigenous people and pastoral leases.
legislation and media reports.
4 Describe the major difference between the Wik and Mabo cases. Demonstrates excellent understanding of legal
5 Identify some statistics that highlight the disadvantage of access and the operation of the legal system.
Indigenous people. Presents a sustained, logical and well‐structured
answer to the question.
6 Outline the role of legal aid in improving access to the
Communicates an argument/opinion using relevant
legal system. legal vocabulary.
7 Explain two ways in which Indigenous people can gain Makes judgements about the effectiveness of the 16–20
political power. legal system in achieving justice based on valid
criteria.
8 Outline the different outcomes of the Williams and
Uses relevant research from cases, legislation and
Walker cases.
media reports.
9 Explain the reasons for the establishment of the National Presents a well‐structured answer to the question.
Inquiry into the Separation of Aboriginal and Torres Strait Uses appropriate legal vocabulary competently.
Islander Children from their Families and list some of its
Demonstrates an understanding of justice for 11–15
main findings. Indigenous people.
10 ‘Indigenous people should be able to determine their own Refers to relevant cases and/or legislation.
social, political and economic future.’ Discuss. Uses appropriate legal vocabulary.
11 Carry out research to see what progress has been made with Mentions justice for Indigenous people. 6–10
the ‘Act of Recognition’. Write a paragraph about this. Makes basic reference to cases and legislation.
Uses some legal vocabulary.
Demonstrates a limited understanding of some 1–5

Topic review aspects of the legal system.
Uses some elementary legal vocabulary.
Extended response
Evaluate the effectiveness of the legal system in achieving justice
for Indigenous people since 1967.

Answers to multiple-choice questions
Part I Part III
Chapter 1 Chapter 9
1a 2b 3c 4c 5c 1c 2c 3c 4c 5c
Chapter 2 Chapter 10
1a 2b 3c 4d 5c 1d 2c 3b 4d 5d
6 b and c 7a 8b 9 b and d 10 d
Chapter 11
Chapter 3
1c 2c 3b 4b 5a
1b 2b 3a 4a 5c
Chapter 12
Chapter 4
1b 2d 3c 4c 5d
1c 2b 3b 4b 5c
Chapter 13
Chapter 5
1c 2a 3b 4d 5a
Topic 1 – 1 a 2b 3b 4a 5b
Topic 2 – 1 c 2d 3b 4b 5d Chapter 14
Topic 3 – 1 d 2a 3c 4b 5b
1a 2c 3a 4d 5d
Chapter 15
Part II
1c 2c 3a 4d 5b
Chapter 6
Chapter 16
1c 2a 3c 4c 5d
1c 2b 3d 4b 5d
Chapter 7
1b 2a 3c 4c 5a
Chapter 8
1b 2b 3d 4b 5d
Answer s to mul tip l e - c hoice questio ns 333

Glossary
9/11 a term used to describe the terrorist attacks in the apprehended violence orders court orders to protect a
United States on 11 September 2001; otherwise known as person who fears violence or harassment from a particular
‘September 11’ person. In NSW, ‘apprehended personal violence orders’
access the right or opportunity to make use of something prohibit violence between members of the public;
‘apprehended domestic violence orders’ prohibit violence in
Act of Parliament statute law, resulting from a bill
the context of a family.
successfully passing through parliament and gaining
royal assent arbitration a form of alternative dispute resolution in which
the disputing parties present their cases before an arbitrator,
adoption order a court order that establishes a new legal
who makes a decision that is binding on the parties
relationship between potential adoptive parents and a child
eligible for adoption. It also severs the legal relationship that assimilation a policy based on the idea that the minority
existed between the adoptive child and his or her natural group should adopt the language and traditions of the
or legally recognised parents or guardians prior to the majority group
adoption process. asylum protection granted by a state
adversarial system a system of resolving legal conflicts, asylum seeker someone who has fled his or her own country
used in common law countries such as England and Australia, and applies to the government of another country for
that relies on the skill of representatives for each side protection as a refugee
(e.g. defence and prosecution lawyers) who present their ATSIC (Aboriginal and Torres Strait Islander Commission)
cases to an impartial decision-maker a legal branch designed to help Aboriginal and Torres Strait
affirmative action a policy designed to address past Islanders with the legal system, which was shut down in 2005
discrimination and thus improve the economic and Australian Federal Police (AFP) the federal police agency
educational opportunities of women and minority groups of the Commonwealth of Australia, set up to enforce the
Al Qaeda an international Islamic extremist group, federal laws and to protect the interests of Australia both
responsible for attacks on military and civilian targets in domestically and internationally
various countries, the most notable being the attacks on balance of power the power held by the political party
the United States on September 11 whose vote is needed to pass legislation; usually determined
alternative dispute resolution dispute resolution processes, in the upper house of parliament under the Westminster
such as mediation, arbitration and conciliation, that do not system of government
involve courts balance of probabilities the standard of proof required in a
anarchy the absence of laws and government civil case in order for a plaintiff to succeed in proving the case
appeal an application to have a higher court reconsider a against the defendant
lower court’s decision, on the basis of an error of law beyond reasonable doubt the standard of proof required
appellate jurisdiction the ability or power of a court to hear in a criminal case in order for the prosecution (the state) to
appeals of the decisions of lower courts and to reject, affirm obtain a conviction against the accused
or modify those decisions bicameral containing two chambers or houses of parliament
Apprehended Domestic Violence Order (ADVO) a court bill a drafted law that has not yet been passed by parliament
order used for the protection of a person involved in an bill of rights a statement of basic human rights and priveleges
intimate, spousal or de facto relationship
bipartisan having the support of the two major political parties

bodily privacy protection from physically invasive common law law made by courts; historically, law common
procedures without the person’s consent to England
bookmaking the activity of calculating odds on sporting and Commonwealth Director of Public Prosecutions (CDPP)
other events and taking bets independent prosecuting agency established by a federal Act
bridging visa a permit to stay in Australia for a temporary to prosecute alleged offences under federal laws
Glossary
period of time so that arrangements can be made either to complainant a person alleging that a sexual assault has been
leave or to apply for permanent residency committed against him or her
burden of proof the responsibility of a party to prove a case conciliation a form of alternative dispute resolution in
in court which the disputing parties use the services of a conciliator,
capital punishment the practice of sentencing a person who takes an active role, advising the parties, suggesting
to death by judicial process; also referred to as the ‘death alternatives and encouraging the parties to reach agreement.
penalty’ The conciliator does not make the decision for them
cautions formal notices given to young offenders where the concurrent powers existing at the same time; powers held
offence is more serious than one appropriately dealt with by by both state and federal parliaments
a warning consent free and voluntary agreement by a rational person
Central intelligence Agency the spy agency of the United who is able to understand and make a decision about the
States, responsible for gathering national security intelligence matter to which he or she agrees
chapter a local branch of a motorcycle club conspiracy theories speculation that there is a cover-
up of the information surrounding a significant event by
children generally persons aged 15 years and younger,
government or other authorities
depending on the legal context
contempt of court words or actions that show a disregard
civil jurisdiction the power of a court to hear matters
for the authority of the court or interfere with its powers
involving disputes between private individuals, and to award
civil remedies control order an order made by a court, government official
or police officer to restrict an individual’s liberty: for example,
civil liberties basic individual rights, such as freedom of
from doing a specified act or being in a specified place
speech and religion, which are protected by law
conveyancers people who deal professionally with the legal
civil litigation court action brought to remedy a wrong or
and practical matters involved in the transfer of titles to
breach of contract sport law
property when real estate is sold and purchased
class actions legal proceedings taken by many individuals
copyright an exclusive right to publish, copy, publicly
against the same defendant, arising out of the same cause
perform, broadcast, or make an adaptation of certain forms
coercive powers special powers sometimes given to a of expression, namely sounds, words or visual images
commission or police task force that allow it to summon any
copyright infringement the unauthorised use of copyright
witness to give evidence or produce any documents – these
material in a manner that violates the owner’s rights
powers are usually only vested in courts
copyright notice a notice added to a work to inform people
colours a motor cycle club’s standard vest showing the club’s
of who owns the copyright and when the copyright was
patches on the back as a mark of identification
created, e.g. ‘© Random Business Pty Ltd 2011’
committal hearings inquiries held in the Local or
coronial inquests investigations into deaths that have
Magistrate’s Court to determine whether there is enough
occurred in unusual circumstances, held in the Coroner’s
evidence against the defendant to warrant a trial in a higher
Court and overseen by a magistrate called the Coroner
court (this is called establishing a prima facie case)
corporal punishment the physical punishment of people,
especially of children, by hitting them
Gl ossa r y 335

corporations law legislation that regulates corporations digital dossier all the types of information about a person
and the securities and futures industry in Australia; it is that he or she has deliberately or unintentionally put onto the
administered by the Australian Securities and Investments internet, held in multiple locations
courts of equity historically, courts whose decisions were digital piracy unauthorised reproduction and distribution of
more discretionary and based on moral principles, and which digital music, software, videos or other material, often for profit
served as an antidote to the inflexibility of the common law direct discrimination a practice or policy of treating a person
credibility reliability, believability or group of people less favourably than another person or
cross-examination questioning of a witness called by the group in the same position, on the basis of sex, race, national
other side, to produce information relevant to one’s case or to or ethnic origin, age, sexuality or other characteristic
call the witness’s credibility into question disinhibition effect the tendency to say and do things in
customary law principles and procedures that have cyberspace that the person would not ordinarily say or do in
developed through general usage according to the customs the face-to-face world
of a people or nation dispersal the distribution of people over a wide area
customs collective habits or traditions that have developed dispossession the removal or expulsion of people from their
in a society over a long period of time traditional lands
cyberbullying harassment using digital media such as doli incapax Latin term meaning ‘incapable of wrong’; the
websites, email, chat rooms, social networking pages or presumption that a child under 10 years of age cannot be
instant messaging held legally responsible for his or her actions and cannot be
cyberspace the ‘environment’ in which electronic guilty of a criminal or civil offence
communication occurs; the culture of the internet domestic law the law of a state
cyberstalking repeated harassment using email, text download to receive data from a central system to one’s
messaging or other digital media with the intention of own, local network or computer
causing fear or intimidation draconian laws laws that are excessively harsh or severe –
damages monetary compensation for harm or loss suffered from Draco, a Greek legislator (7th century BCE) whose laws
declarations formal statements of a party’s position on a imposed cruel and severe penalties for crimes
particular issue; a declaration is not legally binding under Dreaming, The the source of Indigenous Australian
international law customary law
de facto relationship (from the Latin term meaning ‘existing elders older men and women of recognised wisdom and
in fact’): a relationship between two adults who are not authority, who are the keepers of traditional knowledge
married but are living together as a couple within Indigenous communities; they are responsible for such
defamation the act of making statements or suggestions things as initiations and the handing down of punishments
that harm someone’s reputation in the community when community laws are broken
defendant the person who is accused of a crime or a civil employment contract a contract between an employer and
wrong; in a criminal case, the defendant is also referred to as employee(s) which sets out matters including the pay, hours,
the accused working conditions, benefits and obligations of the employee

and the rights and responsibilities of the employer
delegated legislation laws made by authorities other than
parliament, who are delegated the power to do this by an Act entered into force (of a treaty) having become binding upon
of Parliament those states which have consented to be bound by it
digital copyright copyright as it applies to digital media equal opportunity the right to equivalent opportunities
regardless of race, colour, sex, national origin, etc.

equality the state or quality of being equal, that is, of having fiscal relating to government financial matters
the same rights or status forensic relating to the detection and investigation of crime
equity the body of law that supplements the common law format-shifting copying books, journals, photos or videos
and corrects injustices by judging each case on its merits and from one format to another format, for example scanning
applying principles of fairness a photo to digital format or printing a newspaper article
Glossary
estate all of the property that a person leaves upon death foundling a deserted infant whose parents’ identity is
ethics (1) rules or standards governing the conduct of a unknown
person or the members of a profession; (2) a major branch of freedom of information (FOI) the principle that people
philosophy, which investigates the nature of values and of should be able to have access to information relating to
right and wrong conduct the administration of government decision-making and
ex parte (Latin) ‘from one side’; in a case this means the other information held by the government. FOI legislation governs
side is absent or unrepresented the process of obtaining this information, at state and
examination in chief questioning of a witness by the federal level.
barrister who called that witness fraud a dishonest act, done intentionally in order to deceive.
exclusive powers powers that can be exercised only by the gender segregation the separation of people according to
Federal Parliament their gender
express consent consent given directly, either orally or General Assembly the main body of the United Nations,
in writing made up of all of the member states
external affairs power the power of the Commonwealth glass ceiling an invisible barrier that prevents women from
to legislate on international matters involving Australia; rising in an organisation through promotion; on the face of it,
interpreted by the High Court to mean that when the a company may not directly discriminate, but subtle practices
Commonwealth signs an international treaty or convention may still discourage women or prevent them from being
it has the authority to enact laws to give effect to this promoted to more responsible and better paid positions
international law within Australia guarantor a person who gives a formal promise that
extortion obtaining money or property from a person or someone else’s contract will be fulfilled, often backed by some
group by force, intimidation or illegal power form of asset that will stand as collateral to secure the promise
extradition the handing over of a person accused of a crime guilt by association criminal liability imposed for associating
by the authorities of the country where he or she has taken with another person who commits a crime, rather than for
refuge, to the authorities of the country where the crime was committing that crime oneself
committed half-caste whose parents are of different race and/or culture.
fairness freedom from bias, dishonesty, or injustice; a In the past in Australia, this reference was made to people
concept commonly related to everyday activities who had one European parent and one Aboriginal parent. It
federation the process of uniting several states to form was often used in a derogatory way.
a single national government Hansard a full account of what is said in parliament or in
feminism the advocacy of rights for women on the basis of parliamentary inquiries; named for English printer T. C.
the equality of men and women; there are many varieties of Hansard (1776–1833), who first printed a parliamentary
feminist ideas in political and social thought transcript
file-sharing the practice of distributing electronically harmonisation agreement among the laws of different
stored information such as computer programs, music and jurisdictions
video files, especially through the use of peer-to-peer (P2P) homicide the act of killing another human being
networks
Gl ossa r y 337

hung jury a jury that is unable to reach agreement Islamic extremists people who follow an extreme version
identity theft obtaining or using the identity of another of the Islamic religion that sanctions the use of violence to
person in order to commit a range of fraudulent activities, achieve their objectives
usually to obtain financial gain Jemaah Islamiyah a radical Islamic organisation that has
illicit drug also called an illegal drug; a drug that is links with Al Qaeda
prohibited by law jihad in Islam, a term meaning ‘struggle’; used without any
implied rights civil and political rights that can be inferred qualifiers it is generally understood in the West to refer to a
from the Constitution, rather than being expressly stated ‘holy war’ on behalf of Islam
in camera (Latin) privately; only specified persons such as the jurisdiction the powers of a court, depending on its
judge can be present during the testimony or proceeding geographic area, the type of matters that can be decided,
and the type of remedies that can be sought
indictable offence a serious criminal offence that requires
an indictment (a formal, written charge) and a preliminary jury a group of people who listen to all of the evidence in a
hearing; indictable offences typically tried before a judge and court case and decide on the verdict
jury and are subject to a greater penalty justice the legal principle of upholding generally accepted
indictment information presented for the prosecution of one rights and enforcing responsibilities, ensuring that equal
or more criminal offences; a formal written charge outcomes are achieved for those involved
indirect discrimination practices or policies that appear to juvenile a child or young person, generally under 18 years of
be neutral or fair because they treat everyone in the same age, although this may vary depending on the context
way, but which adversely affect a higher proportion of people kinship family relationships, including all extended family
from one particular group relationships; an important part of indigenous cultures and
information privacy protection against inappropriate values, which dictate how all people in the group behave
handling of a person’s personal information, with rules for the toward each other
collection and handling of personal data and records laissez-faire a French word literally translated as ‘allow to do’,
injunction a court order requiring an individual or used to describe economic philosophies that government
organisation to perform, or (more commonly) not to perform should not intervene in business; may also be used in a
a particular action broader sense of minimal government intervention in most

aspects of society
inquisitorial system a legal system where the court or
a part of the court (e.g. the judge) is actively involved in larceny taking another person’s property with intent to
conducting the trial and determining what questions to ask; permanently deprive the owner of the property; also known
used in some countries with civil legal systems as opposed as stealing
to common law systems law a set of rules imposed on all members of a community
intellectual property intangible property that has which are officially recognised, binding and enforceable by
commercial value and can be protected by law, e.g. text, persons or organisations such as the police and/or courts
images, designs, inventions and computer programs law enforcement agencies those bodies that have the role
internet a global network of interconnected computer of enforcing the law; they are created by Acts of Parliament
networks that allows users to obtain and share information and include the police and some government departments
in a number of ways legal drug a drug that is not prohibited under the law,
internet piracy unauthorised downloading or distribution although some other restrictions may apply
of copyrighted material by means of the internet legal system the system of courts, prosecutors and police
Internet Service Providers (ISPs) companies that offer in a country
customers access to the internet legislative powers the legal power or capacity to make laws

libertarian advocate of minimal government control or online predators people with malicious intent, such as
interference in the lives of individuals sex offenders, paedophiles, who give false and misleading
mandamus court order compelling a government official or identities with the aim of enticing their victims into harmful
organisation to perform a particular task encounters online or in real life
martial law law enforced by the military over civilian affairs; onus the burden or duty of proving the case to the court
Glossary
overrides civil law opened for signature (of a treaty) having negotiations
massacre the intentional killing of a large number of people concluded and ready for parties’ signatures. Many treaties,
in society especially those convened by the UN, will be open for

signature only until a certain date; others, such as the Geneva
mediation a form of alternative dispute resolution designed
Conventions, are open for signature indefinitely
to help two (or more) parties, in the presence of a neutral
third party, to reach an agreement opinio juris sive necessitatis (Latin) ‘opinion that an act is
necessary by rule of law’: the principle that for the practice
merits review analysis of the facts presented in a case, and
of a state to be customary international law, the state must
often the policy choices that led to the decision
believe that international law requires it
ministerial discretion power granted to a minister under
optional protocol an addendum to a treaty, agreed to by the
an Act to make a specified decision or order
parties at a later date, to create enforcement provisions or to
mitigation making the severity of an offence or a sentence interpret the treaty in light of later developments
milder or less severe
organised crime illegal activities organised by criminal
money laundering disguising money obtained from illegal groups or enterprises, most commonly for the purpose of
activities to make it appear legal generating financial profit
multiculturalism the recognition of cultural diversity and the original jurisdiction the ability or power of a court to hear a
right of all Australians to express and share their individual case in the first instance
cultural heritage; the term also refers to government policies
Osama bin Laden Saudi Arabian-born leader of Al Qaeda
and programs that recognise and support diversity.
until his death in 2012
native title the right of indigenous people to their
outlaw motorcycle gangs (OMCGs) organisations whose
traditional lands
members use the structure of a motorcycle club as a front for
natural justice the body of principles used to ensure the criminal activity
fairness and justice of the decision-making procedures of
overstayers people who come to Australia on temporary
courts; in Australia it generally refers to the right to present
visas but continue to stay when their visa expires
your case, the right to freedom from bias by decision-makers,
and the right to a decision based on relevant evidence pastoralists farmers raising sheep or cattle, usually on large
areas of land
negligence carelessness; a tort that involves breach of a duty
of care resulting in harm that could be foreseen patch a symbol or club logo attached to the back of a
motorcycle club member’s vest
negotiation any dialogue intended to resolve disputes and/
or produce an agreement on further courses of action patents rights granted for any device, substance, method or
process which is new, inventive or useful
nomadic a term used to describe people who tend to travel
and change settlements frequently peer-to-peer (P2P) networks computer networks in which
individual participants are directly connected to each other,
obiter dicta (Latin) comments from a judge in a case that are
rather than through a central server
not directly relevant to the case, and therefore not legally
binding (singular: obiter dictum) people smuggling the organised illegal movement of
people across international borders, usually for a fee
on remand (of an accused) in custody pending and/ or
during his or her trial
Gl ossa r y 339

piracy (1) an illegal act of robbery of a ship at sea, outside the public law the body of law governing relationships between
jurisdiction of any state; (2) the infringement of copyright individuals and the state, and the structure and operation
plaintiff the person who initiates a civil action of government itself (e.g. criminal, administrative, and
constitutional law)
pleadings written statements of the parties to a civil dispute
that set out the issues to be decided by the court public morality standards of behaviour generally agreed
upon by the community
political autonomy self-determination, independence
public space areas set aside in which members of the
poverty line the minimum level of income needed to meet
community can associate and assemble
basic necessities and below which a household is defined as
poor; the poverty line is different in different countries question of law a disputed legal contention that is left for the
judge to decide (e.g. whether certain evidence is admissible)
precedent a judgement that is authority for a legal principle,
and that serves to provide guidance for deciding cases that R ‘r’ at the beginning of a case name refers to Regina (Latin
have similar facts for ‘Queen’). Since Australia is a constitutional monarchy this
refers to our head of state, on whose behalf the prosecution
prescription drug a type of legal drug that can be obtained
case is run. When the head of state is a male, as was the case
only by a doctor’s prescription
in 1935, the ‘R’ stands for Rex, which is Latin for ‘King’.
prima facie (Latin) ‘on the face’; at first sight: having sufficient
racial hatred abuse or denigration of a person because of his
evidence established against a defendant to warrant a trial in
or her race, or verbal abuse or denigration of a race generally
a higher court of law
racial vilification a public act based on the race, colour,
privacy a person’s right to be free from unwanted intrusion
national or ethnic origin of a person or group of people
or public scrutiny
which is likely to offend, insult, humiliate or intimidate; types
private law the body of law governing relationships between of behaviour can include racist graffiti, speeches, posters or
individuals (e.g. contract law, torts, family law and property law) abuse in public
pro bono Latin term meaning ‘for the public good’, used rail gauge the distance between the inner sides of the two
to describe work that is done by a lawyer or barrister rails of a train
on a voluntary basis and without payment, where there
ratify to formally confirm that the country intends to be
are issues of community concern or significant effect on
bound by the treaty
disadvantaged groups
ratio decidendi (Latin) the legal reason for a judge’s decision
procedural fairness / natural justice the body of principles
used to ensure the fairness and justice of the decision-making reckless able to foresee negative consequences of doing
procedures of courts; in Australia it generally refers to the something, but carrying on with the act regardless.
right to know the case against you and to present your case, Recklessness implies a state of mind that is not as strong as
the right to freedom from bias by decision-makers, and the an intention to do something, but for some criminal offences
right to a decision based on relevant evidence it is considered equivalent to intention for the purpose of
establishing fault.
prohibited person a person prohibited from working in
child-related employment because of a conviction of a reconciliation getting two parties to correspond, or
serious sex offence, murder of a child, or an offence involving make peace
violence towards a child referendum the referral of a particular issue to the electorate
prohibition a court order that forbids a lower level court for a vote
from hearing or taking further action in a case or matter remand the keeping of an accused in custody pending and/
prosecutor the person formally conducting legal or during his or her trial
proceedings against someone accused of a criminal offence;

the prosecutor acts on behalf of the state or the Crown

reservation a statement made by a state when signing or social values ethical standards that guide people in their
ratifying a treaty, that allows it to exclude certain provisions thinking about aspects of their society
or modify them as they apply to the state’s own practice space-shifting transferring music or a sound recording
residual powers those matters on which the states can from one format to another or from one device to another,
legislate, as they are not referred to in the Constitution for example copying a music file from a computer to a
Glossary
responsibilities legal or moral obligations to others portable player
rights legal or moral entitlements or permissions special leave where the High Court grants approval for the
case to come before it in its appellate jurisdiction
rule of law the principle that no one is above the law;
the most important application of the rule of law is that specific performance an order requiring the defendant
governmental authority is exercised in accordance with to perform the acts that the contract obliged him or her
written, publicly disclosed laws that are adopted and to perform
enforced in accordance with established procedural steps sponsorship the support of an individual, event, or
(due process) organisation financially or through the provision of products
rules regulations or principles governing procedure or or services
controlling conduct standard of proof the degree or level of proof required in
s abbreviation for ‘section’ of any legislation; ‘ss’ is the order for the plaintiff (in a civil case) or the prosecution (in a
abbreviation for ‘sections’ (plural) criminal case) to prove their case
sanction a penalty imposed on those who break the law, stare decisis Latin term meaning ‘the decision stands’; the
usually in the form of a fine or punishment doctrine that a decision must be followed by all lower courts
Security Council the arm of the United Nations responsible state a politically independent country
for maintaining world peace and security state police law enforcement agencies with statewide
sedition words or acts said or done with the intention of jurisdiction
urging others to use force against the government statute law law made by parliament
self-determination the right to determine one’s own acts suicide the intentional taking of one’s own life
without external influence; the freedom of the people of summary offences criminal offences that can be dealt
a given territory to determine their own political status or with by a single judge without a jury and do not require a
independence from their current state preliminary hearing
self-executing (of a treaty) automatically becoming superpower a country that has a dominant role in world
binding on a state party to the treaty as soon as the treaty politics and possesses military power in excess of other
has been ratified nations. At the end of World War II (1945), the United States
separation of powers the doctrine that the powers and and the USSR were known as ‘superpowers’ because of their
functions of the judiciary are separate from those of the huge armies and nuclear arsenals.
legislature and the executive surety a sum of money provided to support an accused
sexual assault a general term for criminal offences involving person’s undertaking that he or she will return to court for
unwanted sexual contact; acts include unwanted touching or hearing at a later date, as a condition of granting bail; it is
groping, indecent acts of other kinds, and rape agreed that the money will be forfeited if the accused fails
sexual harassment any unwelcome sexual behaviour, to appear
such as sexual advances, suggestive comments, unwanted table to place on the table for discussion
touching, written communication or gestures, especially in tariff a tax that must be paid on imports or exports
the workplace
task force a special group or committee of experts formed
for the express purpose of studying a particular problem
Gl ossa r y 341

technological protection measures tools or ‘locks’ that upload to send data from a local system or computer to a
copyright owners use to prevent unauthorised copying or central or remote system, for other users to view, hear, or use
access to copyright materials values principles, standards, or qualities considered
terms of reference a set of guidelines used to define the worthwhile or desirable within a society
purpose and scope of an inquiry vicarious liability the legal liability imposed on one person
terra nullius (Latin) ‘land belonging to no one’; the idea or agent (e.g. an employer) for the wrongful acts of another,
and legal concept that when the first Europeans came to when those acts were done within the scope of the legal
Australia the land was owned by no one and thus was open relationship between them, such as employment
to settlement vilification public acts or speech showing or encouraging
terrorism violence or the threat of violence, directed at a hatred or contempt for a person or group on the basis of race
group of people for the purpose of coercing another party, or other characteristics
such as a government, into a course of action that it would ‘war on terror’ the term used in 2002 by US President
not otherwise pursue George W. Bush to refer to his administration’s efforts to fight
the state a term that is used to refer to the government and terrorism anywhere in the world using any means
the people that it governs warnings formal notices given to a young offender, usually
time-shifting recording a television or radio broadcast for for a first minor offence
later viewing or listening White Australia Policy the government policy of allowing
tort law the body of law that deals with civil wrongs only Europeans and English-speaking people to immigrate
including negligence, defamation, trespass and nuisance to Australia
tortious wrongful; constituting a tort or breach of duty ‘working with children check’ a check by the NSW
to others Commission for Children and Young People on the
torts civil wrongs involving breach of a duty; torts include appropriateness of a person in NSW to work in child-related
negligence, defamation, nuisance, and trespass to the person, employment
goods or land World Wide Web a system of documents that are accessible
trademarks words, names, symbols, devices or any on the internet and that are connected to each other
combination of these, used to identify and distinguish the through hyperlinks the user can click on to be taken to
goods or services of one company from those of another another location. The World Wide Web is not the same thing
as the internet.
treaty an international agreement concluded between
states in written form and governed by the guidelines young people in NSW, persons aged 16–18 years
of international law; treaties may also be referred to as Youth Justice Conferences meetings of all the people who
conventions or covenants may be affected by a crime committed by a young offender;
trespass to the person a tort involving direct contact with a used to help them to accept responsibility for their actions
person’s body without that person’s consent while avoiding the court system
tyranny rule by a single leader holding absolute power in a

nation-state
ultra vires (Latin) beyond the power or authority legally held

by a person, institution or statute to perform an act
United Nations a world organisation dedicated to world

peace and the sovereignty and equality of all its members

Index
9/11 226 Australian Customs Service 146

Australian Federal Police 145, 258
Index
Aboriginal and Torres Strait Islander Heritage Protection Act 1984 Australian High Tech Crime Centre (AHTCC) 147
(Cth) 104 Australian Human Rights Commission (AHRC) 109, 158, 211
Aboriginal and Torres Strait Islander peoples Australian Industrial Relations Commission (AIRC) 320
customary laws 7, 44–7, 140 Australian law, relevance to international law 55
dispute resolution 46 Australian Law Reform Commission (ALRC) 85, 113, 171
diversity 45 Australian Security Intelligence Organisation (ASIO) 147
enforcement and sanctions 46 Australian Sports Commission (ASC) 110
legal status 98 Australian Tax Office (ATO) 147–8
relevance of customary law 46–7
rights 140 balance of power 88
ritual and oral traditions 45 balance of probabilities 65, 193
significance of land and water bodies 46 Bali bombings 224–37, 257
spiritual nature 44 Indonesian and Australian relations 229
and terra nullius 44, 94, 97, 101 legal responses 230–1
see also native title non-legal responses 232–3
Aboriginal Land Rights Act 1983 (NSW) 103 barristers 71
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) 99 beyond reasonable doubt 65
access 11 BHP Iron Ore Pty Ltd v Construction, Mining, Energy, Timberyards,
Act of Parliament 30 Sawmills and Woodworkers Union of Australia (WA Branch) [1998]
Administrative Decisions (Judicial Review) Act 1977 (Cth) 42 WA IR Comm 130 321
Administrative Decisions Tribunal (ADT) 61, 154, 194, 211 bicameral 28
administrative law 61 bilateral treaties 49
administrative tribunals 154 bill of rights 130–2
adversarial system of trial 20 bills (parliament) 29, 31
alternative dispute resolution 149–10 binding precedent 23
American Civil Liberties Union (ACLU) 173 breach of contract 106
anarchy 14–15 Builders Labourers Federation 152
Anti-Discrimination Act 1977 (NSW) 111, 155, 205, 211–12 burden of proof 67, 69
Anti-Discrimination Board of NSW (ADB) 155–6
anti-discrimination legislation 216–18 capital punishment 78
anti-terrorism campaigns 232, 236 censorship 169–70
anti-terrorism laws 262 Cesan v The Queen; Mas Rivadavia v the Queen [2008] HCA 52 19
appeals 24 child executions 50
appellate jurisdiction 26 child protection 172–4
Apprehended Domestic Violence Order (ADVO) 80 children 186–98
Apprehended Violence Orders (AVO) 144 and civil law 188–90
arbitration 149–10 and criminal justice system 196–8
athletes, drug testing 315–16 and criminal law 191
Australia Act 1986 (Cth) 40 discrimination 190
Australia’s legal heritage 20 education 189
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd international issues 198
[2001] HCA 63 171 and the law 186–91, 195–8
Australian Citizenship Act 2007 (Cth) 189 and medical treatment 189
Australian Communications and Media Authority (ACMA) 166 registration and citizenship 188
Australian Competition and Consumer Commission 165 rights of 187–8, 192–5
Australian Competition and Consumer Commission v Chen [2002] Children’s Court 25, 193
FCA 1248 165 hearings 67–8
Australian Council of Trade Unions (ACTU) 153, 194 circle sentencing 140
Australian Crime Commission (ACC) 146 civil cases 69
I ndex 343

civil claim, process of 68 Court of Arbitration for Sport (CAS) 111
civil jurisdiction 62 court officer 71
civil law 106, 107, 188–90, 191 court reporter 71
civil law system 72–3 courts
civil liberties 38 and children 192, 193
civil litigation 106 and cyberspace law 175
civil procedures 65, 68–9 and dispute resolution 154–5
Clarke, Michael 105 of equity 20
Clarke Inquiry 266–7 Federal 25, 26–7
Combined Pensioners and Superannuants Association of NSW intermediate 26
(CPSA) 153 and law reform 88
commissions of inquiry 156 lower 24–5
committal hearing 25 and sexual assault 117–18
common law 20–3, 129 state and territory 24–6
common law system 72–3 superior 26
Commonwealth Electoral Act 1918 (Cth) 61, 98 credibility 67
Commonwealth of Australia Constitution Act 1900 (UK) 32 Crimes Act 1900 (ACT) 60
Commonwealth v Tasmania [1983] HCA 21 (‘Tasmanian Dam case’) 36 Crimes Act 1900 (NSW) 4, 60, 80, 84, 117, 144, 175
Communications Decency Act of 1996 (CDA) 172, 175 Crimes Act 1914 (Cth) 145
community justice centres (CJCs) 150 Crimes (Torture) Act 1988 (Cth) 55
Community Services NSW 194 criminal cases 67, 69
conciliation 149 Criminal Code 1995 (Cth) 145, 147
concurrent powers 33 Criminal Code 2002 (ACT) 60
Conflict Resolution Service (CRS) 150 Criminal Justice Sexual Offences Taskforce 115
consent 317 criminal justice system 196–8
conspiracy theories 246 criminal law 60, 107
Constitution 32–43 Criminal Procedure Amendment (Evidence) Act 2005 (NSW) 117
amendments 37 criminal procedures 65–8
and bill of rights 132 Criminal Records Act 1991 (NSW) 154
division of power 32, 33–7 criminal trial process 66–7
and High Court 39–42 cross-examination 67
judicial review 42 customary international law 49
separation of powers 38 customary law 7, 44–7, 140
constitutional law 61–2 customs 7, 9
contempt of court 106 cyberbullying 169
contract law 62–3 cybercrimes 164–6, 176, 178–9
contracts 190 cyberspace
Convention on the Elimination of All Forms of Discrimination Against current status and sources of law 175–6
Women (CEDAW) 55, 158, 209, 215–16 and government control 177–8
Convention on the Elimination of All Forms of Racial Discrimination and intellectual property 167–9
(CERD) 158 jurisdiction of 162–3
Convention on the Rights of the Child (CROC) 55, 156, 185, 189, 196 laws 176–9
copyright 167, 168, 290, 292–3 legal issues 163–9
international treaties on 294 nature of 163
see also digital copyright rights in 174–5
Copyright Act 1968 (Cth) 292 cyberstalking 169
Copyright Act (Digital Agenda Amendments) 2000 (Cth) 293 cyberterrorism 178–9
Copyright Amendment Act 2006 (Cth) 293–4
copyright infringement 290 damages 26, 62, 63, 68, 107–8, 138, 217
copyright notice 293 de facto relationships 77
Coroner’s Court 25 De Facto Relationships Act 1984 (NSW) 77
coronial inquests 25, 67 death penalty 233–5
corporations law 26 declarations 49–50
corrective services officers 71 defamation 24, 137
Council of Australian Governments (COAG) 194 defendants 72
court hierarchy 24–7 delegated legislation 30

digital copyright 298, 300–303 Firearms Act 1989 (NSW) 80, 278
digital dossier 171 forensic 82
digital piracy 273, 290 Fraser Island 41
Disability Discrimination Act 1992 (Cth) 112 fraud 26, 83, 84, 110, 147, 156, 165, 166, 176
discrimination freedom of expression 135–8
and children 190 freedom of information (FOI) 153
and women 210
Index
disinhibition effect 169 gender segregation 215
dispute resolution 144–58 General Assembly (UN) 52
alternative 149–50 Geneva Convention 49
individuals 148–51 genocide 48, 49
law enforcement agencies 144–8 Gillard government 77
legal methods of challenging power 154–8 Gillick v West Norfolk and Wisbech Health Authority [1985] 3 All
state 151–7 ER 402 187–8
District Court of New South Wales 26 Glasgow International Airport attack 258
doli incapax 10, 186 glass ceiling 215
domestic law 48–9, 210 global terrorism 224, 232–3
domestic violence 43, 80–1 ‘Gove land rights case’ (Milirrpum v Nabalco Pty Ltd (1971) 17
Donoghue v Stevenson (1932) AC 562 64, 129 FLR 141 98
download 290, 302–3 Griffiths, Hew Raymond 298, 299
Dreamtime 44 gun law reform 247–8, 249–50
drug testing 306–21 Gutnick v Dow Jones & Co. Inc. [2001] VSC 305 24
duty of care 64, 107, 112, 129, 316
hacking 164–5
East Timor 140, 231 Hansard 86
education 189, 205–6 harmonisation 85
employees’ rights 313–14, 317–18 Health Records and Information Privacy Act 2002 (NSW) 154
employers’ rights 317–18 Heaven v Pender (1883) 11 QBD 503 64
Equal Opportunity Act 1995 (Vic) 108 Hells Angels 276
Equal Opportunity for Women in the Workplace Act 1999 (Cth) 212 High Court of Australia 25, 27
equal opportunity in sport 108–9, 112 appeals from lower courts 42
equality 10 influence on Constitution 40–2
equity, development of 22 jurisdiction 39–40
estate 77 and native title 101–3
ethics 8, 9 role of 39–40
European Court of Human Rights (ECHR) 51 House of Representatives 29
European Union 131, 176 Howard, John 152, 248, 251, 264
euthanasia 129, 173 Howard government 104, 173, 250, 252, 270
examination in chief 66 human rights 50, 51, 55, 139, 209
exclusive powers 33–4 Human Rights Act 2004 (ACT) 55
express consent 107 Human Rights and Equal Opportunity Commission Act 1986 (Cth) 158
external affairs power 36 hung jury 85
external reviews 154–5 identity theft 84
extortion 272 Independent Commission against Corruption (ICAC) 156
indictable offences 24, 107, 191
fairness 10–11 indictment 244
procedural 11 Indigenous Australians see Aboriginal and Torres Strait Islander
Family Court of Australia 27 peoples
Family Law Act 1975 (Cth) 55, 77 Indigenous people, rights of 140
Federal Court of Australia 27 Indigenous women 209
federal courts 25, 26–7 individuals, disputes between 148–10
Federal Magistrates Court of Australia 26–7 Indonesian and Australian relations 229, 230
Federation 32, 33 Inglis, Greg 105
feminism 204 injunctions 39, 62
file-sharing 290–303 inquisitorial system 20
firearms 80, 144, 146, 154, 249–50, 251, 276, 277, 278, 279, 280 intellectual property 63, 165, 290, 292
I ndex 345

interest groups 153 law reform 76–89
intergovernmental organisations (IGOs) 54, 89 agencies 83–8
intermediate courts 26 changing social values 76–8
internal reviews 153 commissions 83–6
International Court of Justice (ICJ) 51, 54 courts 88
International Covenant on Civil and Political Rights (ICCPR) 50, 55, 158 definition 76
International Covenant on Economic, Social and Cultural Rights intergovernmental organisations (IGOs) 89
(ICESCR) 50 lobby groups 87–8
International Criminal Court (ICC) 51 mechanisms 88–9
international law 48–51 the media 86–7
customary 49 and native title 94–104
difference from domestic law 48–9 new concepts of justice 78–81
legal decisions 51 new technology 81–3
legal writings 51 non-government organisations (NGOs) 87
relevance to Australian law 55 parliamentary committees 86
sources 49–51 parliaments 88–9
treaties and declarations 49–50 and sexual assault 113–18
and women 209–10 and sport 105–12
international organisations 51–4 United Nations 89
Internet Assigned Numbers Authority (IANA) 176 Legal Access Services 27
Internet Corporation for Assigned Names and Numbers (ICANN) 179 legal aid 192
internet fraud 165 legal decisions and international law 51
internet piracy 290–1 legal heritage, Australia’s 20
internet service providers (ISPs) 173 legal methods of challenging power 153–8
legal practitioners 71
Jackson, Lauren 105 legal profession 70–1
Jemaah Islamiyah 228, 230, 231, 257 legal system 10, 72–3
judges 70 legal writings and international law 51
judge’s associates 70 legislation
Judiciary Act 1903 (Cth) 61 delegated 30
jurisdiction 23, 54 federal (native title) 104
state and federal courts 24–7 passing 29–30, 31
jury 65, 71–2 state (native title) 103
Jury Amendment (Verdicts) Act 2006 (NSW) 85 legislative powers 33, 35
justice legislative process 29–31
nature of 10–11 libertarians 162
new concepts of 78–9 lobby groups 87–8, 215
local court hearings 67
Keating, Paul 99 London bombings 257
Kids Helpline 194 lower court 24–5
kinship 45 appeals to High Court 42
laissez-faire 174 Mabo, Eddie 94, 99

Land and Environment Court 25, 151 Mabo and Others v State of Queensland (No. 2) [1992] HCA 23 94, 99,
larceny 26 101, 103, 104
law 8–9 Madrid bombings 257
characteristics of just 10 magistrates 70
children/young people 186–91, 195–8 Magistrates Court 24–5
global 178–9 hearings 67
meaning of 6 mandamus 39
private 60, 62 Marriage Act 1961 (Cth) 77
public 60–2 media 72, 86–7, 116, 151–2, 264, 319
rule of 12 mediation 46, 149
statute 20, 28–31 medical treatment and children 189
and women 204–9 Members of the Yorta Yorta Aboriginal Community v Victoria [2002]
law enforcement agencies 144–8 HCA 58) 102

migration law 263 personal liberties 134
Milperra Massacre 278 persuasive precedent 23
mitigation 46 Pharmaceutical Benefits Scheme (PBS) 77
Mohamed Haneef 258–72 piracy 298, 299
money laundering 272 plaintiffs 62, 72
motorcycle clubs 274 pleadings 68
multilateral treaties 49 police
Index
Murphyores v The Commonwealth (‘Fraser Island case’) [1976] federal 145
HCA 20 41 state 144
political autonomy 140
National Native Title Tribunal (NTT) 103 Port Arthur massacre 240–51
National Parks and Wildlife Act 1974 (NSW) 103 poverty line 207
native title precedent
as a collective right 104 doctrine of 22–3
definition 94 making and following 23
development 98–9 rules of 23
and High Court 101–3 prima facie 70
history of government policy 94–6 privacy 169–71, 317
and law reform 94–104 Privacy Act 1988 (Cth) 154, 171
legislation 103–4 Privacy and Personal Information Protection Act 1998 (NSW) 154
Mabo cases 94, 99, 101, 103, 104 privacy bodies 154
Northern Territory claims 98–9 private law 60, 62
operation of legal system 97–103 procedural fairness 11, 42
policy/law 95 prohibited person 193
Wik case 102, 103 prohibition 39
Native Title Act 1993 (Cth) 101, 102, 103, 104 property law 63
natural justice 11, 42 Property (Relationships) Act 1984 (NSW) 77
negligence 129 public law 60–2
negotiation 149 public morality 76
New Zealand 130, 131
non-English speaking women 207–8 R v Brislan; Ex parte Williams [1935] HCA 78 41
non-government organisations (NGOs) 54, 87, 153, 215, 320 Racial Discrimination Act 1975 (Cth) 99, 113, 129, 170
NSW Bar Association 115 racial hatred 170
NSW Commission for Children and Young People 192 rail gauges 33
NSW Law Reform Commission 85–6, 109–10 ratification 49
NSW Rape Crisis Centre 115 ratio decidendi 23
referendums 32
obiter dicta 23, 43 remand 244
ombudsman 155, 156, 194 Reno v American Civil Liberties Union 521 US 844 (1997) 172
online predators 170 residual powers 34
opinio juris sive necessitatis 49 responsibilities
organised crime 273, 276–7 definition 128
original jurisdiction 39 individual, in relation to the state 133–8
Osland v R [1998] HCA 75 42, 43 legal basis of 129
outlaw motorcycle gangs (OMCGs) 272–85 rights 128–40
bill of 130–2
parliament(s) in cyberspace 174–5
and law reform 88–9 definition 128
members 152 implied 136
and native title 101 Indigenous people, rights of 140
role and structure 28–9 individual, nature of 129–32
and sexual assault 116–17 individual, in relation to the state 133–8
and sport 111–12 international protection of 138–40
parliamentary committees 86 interventionist approach 174–5
patents 167, 169 legal basis of 128–9
peer-to-peer (P2P) networks 291 moral vs legal 129–30
see also human rights
I ndex 347

Roach v Electoral Commissioner [2007] HCA 43 61 statute law 20, 28–31
Rogers v Bugden and Canterbury-Bankstown (1993) ATR 81-246 107 legislative process 29–31
Rome Statute of the International Criminal Court 49 role and structure of parliament 28–9
Roper v Simmons, 543 US 551 (2005) 50 statutory bodies 155–8
Royal Commissions 89, 156 Stewart, Brett 105
Rudd government 77, 101 Stop Child Abuse 195
rule of law 12 summary offences 24, 191
rules 7, 9 superior courts 26
Supreme Courts 26
safety 169–70
same-sex relationships 77 tariffs 33
sanctions 12, 46 Tasers 144, 157
Security Council (UN) 53 Taylor v Moorabbin Saints Junior Football League and Football
sedition 85 Victoria Ltd [2004] VCAT 158 108
self-determination 139 technological protection measures 293
Senate 29 technology 162–79
sentencing 244 future directions 176–9
separation of powers 32, 38, 262, 284, 285 and law 175–6
Sex Discrimination Act 1984 (Cth) 55, 110, 205, 21, 217 and law reform 81–2
sexual assault legal issues in cyberspace 163–9
and the courts 117 privacy, safety and censorship 169–74
and law reform 113–18 rights in cyberspace 174–5
and media 116 scope of new 162–3
and parliament 116–17 terms of reference 83
sexual harassment 211, 219 terra nullius 44, 94, 97, 101
Shell Refining (Australia) Pty Ltd, Clyde Refinery v CMFEU [2008] AIRC terrorism 178, 226, 232, 236, 256–7
510 328 legal responses 233–7
social security 207 territory courts 24–6
social values 76–7 tipstaff 70
solicitors 71 tort law 63, 106
South Australia v Commonwealth (the ‘First Uniform Tax case’) torts 188
[1942] HCA 14 40 Trade Practices Act 1974 (Cth) 165
sovereignty 48, 52, 97, 179 trade unions 152–3, 194, 214, 319
spam 166 trademarks 167, 168
special leave 42 treaties 49–50
specific performance 63 trespass to the person 107
sponsorship 105 tyranny 15
sport
Australian Human Rights Commission (AHRC) 109 ultra vires 36
Australian Sports Commission (ASC) 110 uniform tax case 40–1
and contracts 112 United Kingdom (UK) 130, 131
Court of Arbitration for Sport (CAS) 111 United Nations (UN) 51–4, 158
and the courts 110–11 Charter 49, 51, 139
and equal opportunity 108–9, 112 Convention on the Elimination of All Forms of Discrimination
harm suffered in 107–8, 112 Against Women (CEDAW) 55, 158, 209, 215–16
law 106 Convention on the Rights of the Child (CROC) 55, 158, 187, 192, 198
and law reform 105–12 and cyberspace 175–6
NSW Law Reform Commission 109–10 General Assembly 52
and parliaments 111–12 and human rights 50, 139–40, 158
standard of proof 65, 67, 69, 107 International Court of Justice (ICJ) 51, 54
stare decisis 22, 51 and law reform 89
state 7, 163, 192, 209 Security Council 53
state and sovereignty 48–9 United States 130, 131
state, disputes with 151–3 United States of America v Griffiths [2004] FCA 879 299
state courts 24–6 Universal Declaration of Human Rights 50, 209
statute 129 Universal Music Australia Pty Ltd v Sharman License Holdings Ltd

[2005] FCA 1242 (the Kazaa case) 295
US Free Trade Agreement Implementation Act 2004 (Cth) 293
values 9
vicarious liability 107
Vienna Convention on the Law of Treaties (1969) 49
Index
warnings 191
Whistleblowers Australia (WBA) 152
White Australia policy 33
Whitlam, Gough 99
Wik case 102, 103
witness 71
women 202–20
achieving justice 209–18
anti-discrimination legislation 217–18
Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW) 55, 158, 209
domestic responses 217–18
and domestic violence 43, 80–1
education and training 205–6
historical roles and attitudes 204–5
Indigenous 209
international responses 215–16
and the law 204–9
legal responses 209–13
non-English speaking backgrounds 207–8
non-legal responses 214–15
social security 207
workforce participation 205–6
work and children 189
Work Choices legislation 89
workforce participation 205–6
World Intellectual Property Organization (WIPO) 176
World Trade Organization (WTO) 176
World Wide Web 173
Yorta Yorta native title case 102

young offenders 197
Young Offenders Act 1997 (NSW) 79, 191
young people 186–98
and civil law 188–90
and criminal justice system 196–8
and criminal law 191
discrimination 190
education 189
international issues 198
and the law 186–91, 195–7
and medical treatment 189
registration and citizenship 188
rights of 187–8, 192–5
youth conferencing 197
Youth Justice Conference 79, 191
I ndex 349



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Cambridge Legal Studies

ISBN 9781107650787 © Paul Milgate et al 2013 Cambridge University Press

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ii Cam br i d g e Lega l Studi es – Preli m i n a r y

ISBN 9781107650787 © Paul Milgate et al 2013 Cambridge University Press

About the authors x

Part I: The legal system

1.1 The meaning of law 6

2.1 Australia’s legal heritage 20

3.1 Public law and private law 60

ISBN 9781107650787 © Paul Milgate et al 2013 Cambridge University Press

4.1 What is law reform? 76

Topic 1: Law reform and native title

Topic 2: Law reform and sport

Topic 3: Law reform and sexual assault

Available in the Interactive Textbook

Topic 4: Young drivers and the law

Part II: The individual and the law

6.1 What are rights and responsibilities? 128

iv Cam br i d g e Lega l Stu di es – Preli m i n a r y

ISBN 9781107650787 © Paul Milgate et al 2013 Cambridge University Press

7.1 Introduction 144

8.1 The scope of new technology 162

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Additional information on the individual and technology

Part III: Law in practice

AREA 1: Groups or individuals suffering disadvantage

9.1 Introduction 186

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10.1 Introduction 204

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Additional information on groups or individuals suffering disadvantage: Women

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C H AP T E R 17 – G R O U P S O R I N D I V I D UA L S S U FFE R I N G D I SADVAN TAG E: M I G R A N T S

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C H AP T E R 18 – G R O U P S O R I N D I V I D UA L S S U FFE R I N G D I SADVAN TAG E:

vi Cam br i d g e Lega l Stu di es – Preli m i n a r y

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C H A P T E R 19 – G R O U P S O R I N D I V I D UA L S S U FFE R I N G D I SADVAN TAG E: PE O PLE W H O

AREA 2: Events that highlight legal issues

11.1 Introduction  228

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12.1 Introduction  244

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AREA 3: Individuals or groups in conflict with the state

13.1 A brief history of the Mohamed Haneef case 260

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CHAPTER 21 – INDIVIDUALS OR GROUPS IN CONFLICT WITH THE STATE: JULIAN ASSANGE

A brief history of the Julian Assange case

14.1 Outlaw motorcycle gangs in Australia 278

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ISBN 9781107650787 © Paul Milgate et al 2013 Cambridge University Press

11.1 Introduction 228

12.1 Introduction 244

15.1 File-sharing, digital copyright and the law 298

16.1 Introduction 316

Answers to multiple-choice questions 333