C R I M E  

IMPORTANT LEGISLATION Crimes Amendment (Computer Offences) Act 2001 (NSW) Crimes Act 1900 (NSW) Copyright Amendment Act 2006 (Cth) Crimes Act 1914 (Cth) Criminal Code 1995 (Cth) Anti-Terrorism Act (No. 2) 2005 (Cth) Drug Misuse and Trafficking Act 1985 (NSW) Summary Offences Act 1988 (NSW) Customs Act 1901 (Cth) Road Transport (Safety and Traffic Management) Act 1999 (NSW  

SIGNIFICANT CASES R v Thomas Sam; R v Manju Sam (2009)  R v Munter (2009)  Boughey v The Queen (1986)  DPP v Newbury and Jones (1977) R v AEM; E v KEM; R v MM (2002) R v Rivkin (2003) R v Whybrow (1951)  

  

1. THE NATURE OF CRIME   ⇒ 1.1 THE MEANING OF CRIME 

o A crime is any act or omission of duty, resulting in harm to society that is punished by the state 

o Same laws reflect the changes that society has already accepted o Some laws try to change behaviours and beliefs of society o Criminals laws do a bit of both o Most crimes are the result of moral and. ethical judgements by a 

society about an individual’s behaviour  o When a crime is committed it is deemed to be committed against all 

of society as well as any victim  ⇒ 1.2 THE ELEMENTS OF CRIME  

o Before an act can be brought to trial, the police and prosecutors need to prove that the elements of the particular offence are present  

o These are actus reus and mens rea o ACTUS REUS 

- Means the guilty act - Refers to one physically committing a criminal act - Prosecution proves accused carried out the act - Easiest element of prosecution to prove - Must have been voluntary - Also includes omissions or failures to act - Actually, did the act, not just think about it 

o MENS REA - Means guilty mind - Refers to a person’s intention to commit a crim - Prosecution must prove accused was aware that their actions 

were criminal, prove accused intended to commit a crime - THREE LEVELS OF MENS REA 

  

     ⇒ 1.3 STRICT LIABILITY OFFENCES 

o Prosecution only has to argue that the illegal act took place, actus reus o No mens rea needs to be proven o Example is traffic offences and selling alcohol to minors  o Generally restricted to minor offences 

 

⇒ 1.4 CAUSATION o Providing a sufficient casual link between the accused’s actions and 

the result o Relevant in proving actus reus and requires prosecution to prove a 

substantial link between the act and the crime  ⇒ 1.5 CATEGORIES OF CRIME  

o Crimes are categorised in many ways - Type of offence - Jurisdiction - Seriousness of the offence - Parties to a crime 

o OFFENCES AGAINST THE PERSON - Some form of injury or harm to an individual - Types of injury include:        

     

o OFFENCES AGAINST THE SOVEREIGN  - Political offences against the state or heads of state - Such as treason and sedition - Laws protect structure, authority and integrity - Prevent head overthrow - TREASON 

● Common law in England ● Defined as acts against the sovereign (monarch) ● Enacted into Australian law 

- SEDITION ● Type of crim against the state ● Promoting discontent/overthrow of government  

● Law says you can’t urge another person to use force or violence to overthrow  

● Criticism for halting freedom of speech o ECONOMIOCAL OFFENCES 

- Result in someone losing property or money - Largest area of criminal law - Types in include: 

     

        

     

o DRUG OFFENCES - Acts involving prohibited and restricted drugs - Focus on the movement of drugs  - Illegal drugs are prohibited by law - Offences include, possession, use, growth/cultivation, selling 

o DRIVING OFFENCES - Also known as traffic offense - Don’t need to prove mens rea - Offences include: speeding, driving w/o license, ignoring road 

signs, driving above BAL o PUBLIC ORDER OFFENCES 

- Acts that disturb public order in some way - Society deems them as inappropriate or offensive 

- Bad language, having a knife, damaging public property, riots in public places 

o PRELIMINARY OFFENCES - To plan to commit a crime - It may have been interrupted or unsuccessful - There are two types: - ATTEMPTS 

● Attempting to commit a crime - CONSPIRACY 

● Two or more. People plot to commit a crime o REGULATORY OFFENCES 

- Like local laws that address day to day situations - Determined by government  - Examples are watering garden during water restrictions, 

travelling without a valid ticket  

⇒ 1.6 SUMMARY AND INDICTABLE OFFENCES  o SUMMARY OFFENCES 

- Less serious offences, resulting in a lesser. Change - Heard in a local court before a magistrate - Brought on a charge called a ‘summons’ penalty no greater than 

two years in prison o INDICTABLE OFFENCES  

- More serious offence - Heard in the District Court with committal hearing in Local Court - Heard before a jury and judge gives a sentence 

 SUMMARY  INDICTABLE -Less serious offence that is tried by a magistrate in Local Court  

-More serious offences tried by a jury and a judge  

-Judgement and punishment determined by a magistrate  

-Judgement determined by a jury: punishment by judge 

-Charge usually laid by a police officer or government officer  

-Charge brought by public prosecutor working for the state 

 ⇒ 1.7 PARTIES TO A CRIME  

o Crimes are usually committed by more than one person o Responsibility or involvement may be more or less than others o Law allows this by distinguishing between roles o Level of responsibility determines punishment  o PRINCIPAL IN THE FIRST DEGREE 

- Person who carries out the criminal act - Receive the highest penalty - Referred to as the perpetrator 

o PRINCIPAL IN THE SECOND DEGREE - Assists others in the commission of a crime - Present during the act - Does not have to be physically there, could be on phone  - Referred to as an accessory  

o ACCESSORY BEFORE THE FACT - Helped others commit the crim be planning or preparing before 

o ACCESSORY AFTER THE FACT - Helps criminals after the act is committed - Was not present or aware beforehand 

 ⇒ 1.8 FACTORS AFFECTING CRIMINAL BEHAVIOUR 

o People often commit the same crime but for a different reason o Study of this is known as criminology o PSYCHOLOGICAL FACTORS 

- Mental illness affecting behaviour - State of mind may be raised in a trial - Psychological factors contribute sentencing decision or 

sentencing programs o SOCIAL FACTORS 

- Family situations or personal relationships - Social groups people associate with - The environment a person has been raised in can have influence 

o ECONOMIC FACTORS 

-Punishment is usually less severe, such as a fine of a good behaviour bond or community service 

-Punishment is usually imprisonment or a hefty fine 

- Substantial reason for committing crimes - People from disadvantaged backgrounds more likely to commit 

crime - Poor education and lack. Of skills - Criminals are often unemployed or unskilled - View criminal acts as financial benefit   

o POLITICAL FACTORS - Offences against the sovereign or state are influences by politics - Have political connotations  - Public order offences may have political aspects 

o GENETIC THEORIES - Used to believe that physical characteristics affect criminal 

behaviour - Not a definite factor 

o SELF INTEREST  - Driven by the individual profiting from the crime - Driven by greed and self-interest rather than underlying 

socioeconomic or political factors   

⇒ 1.9 CRIME PREVENTION o To prevent criminal activity, crime prevention in various forms occurs o SITUATIONAL CRIME PREVENTION 

- Difficult for criminals to commit crimes - Involves two approaches 

● Planning and architectural design, which considers the influences of physical environments on crime 

● Focused (situational) approached, which rest on rational choice theory, which views. Offenders as actors who weigh up potential gains, risks and costs 

- May not always prevent crime, it may better people from committing a crime 

- Decreasing the awards of a crime, e.g. ink in tags releases dye onto clothing  

- Increases the risks of getting caught.  o SOCIAL CRIME PREVENTION 

- Addressed underlying social factors - Funding in education - Improving people’s living conditions - Altering societies life  

- to prevent crimes - Works on social problems than lead to criminal behaviour - Nurses have been trained to recognise signs of domestic 

violence  

2. CRIMINAL INVESTIGATION PROCESS 

 ⇒ 2.1 POLICE POWERS 

o Laws need someone to enforce them o Ensuring adhesion and enforcement lies with the police o Executive arm of the government and are separate from legislature o Police are responsible for detection, prevention and maintenance of 

public order o Role of police in CRIMINAL INVESTIGATION process is to investigate, 

make arrests, interrogate and gather evidence o NSW police force are given special legal powers in Law Enforcement 

(Powers and Responsibilities) Act 2002 o Main police powers include: 

▪ Detain and question suspects ▪ Search property and seizure of evidence ▪ Reasonable force if necessary ▪ Use specific technologies to assist 

investigation ▪ Arrest and interrogate suspects ▪ Recommend if bail should or shouldn’t be 

granted o Special powers are controversial because they conflict with citizen 

rights o Sometimes a warrant is needed to use such power o Must follow a code of practice called CRIME – custody, rights, 

investigation, management, evidence o Police must treat EVERYONE fairly 

 ⇒ 2.2 REPORTING CRIME 

o Citizens are important in reporting crimes o Programs are implemented to create community participation in 

reporting crime, e.g. Crime Stoppers o Helpful if people want to remain anonymous  

o Some people are hesitant in reporting crime o Citizens reporting crime is very encouraged 

 ⇒ 2.3 INVESTIGATING CRIME 

o Not all reported crimes get investigated o Resources are directed to more serious crimes o Investigation process is long, includes establishing a crime, finding 

offender, gathering enough evidence o GATHERING EVIDENCE 

▪ Police’s role to gather evidence and support a change 

▪ Taking witness statements ▪ Must happen quickly before witnesses forget ▪ Evidence containment or comprised is 

inadmissible evidence ▪ Evidence gathered is relevant to the case ▪ Evidence must be obtained in a lawful manner ▪ Evidence Act 1995 NSW 

o USE OF TECHNOLOGY ▪ Technology helps to gather evidence and 

prove charges ▪ Many advances in technology have allowed 

for crimes ▪ DNA evidence is helpful for convictions ▪ If suspect refuses DNA sample, a warrant can 

be obtained to use reasonable force o SEARCH AND SEIZURE 

▪ In LEPRA, police can ‘search people and seize and detain things’ 

▪ Have power to search and seize without warrant 

▪ Must have reasonable grounds to search someone 

▪ In some situations, a count warrant must be obtained to. Exercise these powers 

o USE OF WARRANTS ▪ A warrant is a legal document issued by a 

magistrate or judge to authorise a police officer to perform arrests, search and seizure, phone tap 

▪ In NSW, certain search. And seizures require a warrant 

▪ LEPRA sets out circumstances. For use of a search warrant  

▪ Police must have substantial reasons for a search warrant 

▪ Need a warrant to enter private property without consent 

 ⇒ 2.4 ARREST AND CHARGE 

o ARREST AND CHARGE ▪ Police can’t detain people unless they lawfully 

arrest them ▪ Police can arrest a person if: 

● They believe has committed or is about to commit a crime 

● Witness a person ● Have arrest warrant  

▪ In CRIME, police must inform person being arrested of the reason 

▪ Police should use the minimum amount of force to arrest a person 

▪ Can only be in detention for a specific amount of time 

▪ Arrested must be charged or released o SUMMONS 

▪ In minor matters or summary offences ▪ A summons or court attendance order may be 

issued ▪ Gives details of charge, when and where it will 

be heard and consequences of not attending o WARRANTS 

▪ An order or legal document that is issued by the court, magistrate, judge or law enforcement agency to do something, like search or arrest 

 ⇒ 2.5 BAIL OR REMAND 

o In more serious matters, accused once charged may be detained o Police must bring them before a. court as soon as practicable for a bail 

hearing o Should they be released on bail or remain in custody until trial o BAIL 

▪ Bail is the temporary release of an accused person awaiting trial 

▪ There are conditions such as. money or promises, surety  

▪ May use ankle monitoring devices ▪ There are restrictions on granting bail ▪ Outlined in Bail Act 1978 (NSW) 

o REMAND ▪ If bail in denied, magistrate determine 

accused should remain in custody until trial ▪ Held on remand in police custody ▪ It is a period spent in custody awaiting trial ▪ If found guilty, time in remand is taken off 

total time of sentence  ⇒ 2.6 DETENTION AND INTEROGRATION  

o LEPRA sets out lawful conditions under suspects can be detained for questioning  

o Only detain suspect for four hours, must be charged or released o Suspect is questioned whilst in detention o Known as interrogation o Suspect has the right to silence o Interview is often recorded 

  

3. CRIMINAL TRIAL PROCESS  

⇒ 3.1 COURT JUDISDICTION o Once a charge is laid, a hearing or trial will need to take place o Takes place in the appropriate court o Court depends on: 

▪ Seriousness ▪ Heard first time or on appeal ▪ Nature of the offence ▪ Age of the accused ▪ Type of hearing (bail or committal) ▪ Offence under state or federal law 

o LOCAL COURT ▪ Presided over by a magistrate 

▪ Hear civil matters up to $100, 000 ▪ First point of call for most crimes ▪ Created under Local Court Act 2007 (NSW) ▪ Deals with summary offences and conduct committal 

proceedinngs ▪ No jury, only magistrates ▪ Bail hearings are held here ▪ Cannot hear cases on appeal ▪ Limits on sentences it can pass 

o CORONER’S COURT ▪ Local court deals with manner and cause of a person’s death ▪ Outlines in Coroner’s Act 2009 (NSW) ▪ Ascertain dead person’s identity, place, sate, manner, medical 

cause ▪ Investigate deaths in unusual circumstances ▪ Coroner findings will often be used as later evidence ▪ They do NOT try people 

o CHILDREN’S COURT ▪ Established under the Children’s Court Act 1987(NSW) ▪ Cases connected with care and protection of children ▪ Not a public case ▪ Offenders under 18 

o DISTRICT COURT ▪ Established under District Court Act 1973 (NSW) ▪ Is a trial court ▪ Head before a judge and jury ▪ Has appellate jurisdiction ▪ Civil matters up to $750, 000 ▪ All indictable offences but NOT murder and treason ▪ 12 jurors, jury decide the verdict, judge determines sentence ▪ More formal than Local, takes longer 

o SUPREME COURT ▪ Hears most serious matters ▪ Supreme Court Act 1970 (NSW) ▪ Has original jurisdiction of murder, major drugs, commonwealth ▪ Has appellate over lower courts ▪ Appeals in Court of Criminal Appeal 

o COURT OF CRIMINAL APPEAL ▪ Appellate branch of Supreme Court ▪ Highest court of appeal in general criminal matters 

o LAND AND ENVIRONMENT COURT ▪ Interprets and enforces environmental law ▪ Same status as Supreme Court 

o HIGH COURT OF AUSTRALIA ▪ Top of Australian court hierarchy ▪ Original jurisdiction in limited Commonwealth matters ▪ Appellate jurisdiction over all lower courts 

▪ Must seek. Leave for a High Court Trial ▪ Deals with cases that interpret Australian Constitution and 

constitutional validity  ⇒ 3.2 ADVERSARY SYSTEM 

o Relied on a two-sided structure o Present case to an impartial judge or jury o Applied to both civil and criminal matters o Determines decision based on evidence and arguments o Strict laws are imposed on evidence 

 ⇒ 3.2 LEGAL PERSONNEL  

o 1. JUDGE OR MAGISTRATE ▪ Preside over court case ▪ Make determinations based on evidence ▪ Umpires of the court case ▪ Ensure procedural fairness ▪ Rules must be followed 

o 2. PROSECUTOR ▪ In criminal trials the State prosecutor ▪ Brings action against the accused,  

must try to prosecute the offender o 3. BARRISTERS AND SOLICITORS  

▪ Solicitors specialise in certain law area ▪ Solicitor may represent accused in a lower court ▪ Barristers are more common in higher courts ▪ Barristers deal specifically with criminal law ▪ Barristers provide legal advice and present case in courts 

 o 4. JUDGES ASSOCIATE o 5. COURT REPORTER o 6. ACCUSED o 7. MEDIA o 8. WITNESS o 9. JURY o 10. PUBLIC GALLERY 

      

      ⇒ 3.4 PLEAS AND CHARGE NEGOTIATION 

o After the accused is charged, the trial process begins o Accused must enter a plea of guilty or not guilty o Significant impact on how charge is dealt with o PLEA is a formal statement of guilty or innocent by the accused  o Reduction. In the sentence o Tactic used is charge negotiation o Accused pleads guilty but to specific charges only o CHARGE NEGOTIATION is an agreement between the DPP and 

accused that involves the acceptance of a guilty plea, usually in exchange for something else 

o FOR: decreases cost and time delays, beneficial to all parties o AGAINST: bullying or manipulation of the accused to forfeit their right 

to a fair trial  ⇒ 3.5 LEGAL REPRESENTATION 

o Most defendant can afford legal representation o Court prefers people to have legal representation in order to ensure a 

fair trial o 1979 – NSW government created Legal Aid Commission Act to 

provide legal assistance and representation to people who are socially and economically disadvantaged to ensure they have appropriate representation 

o Provides free brief legal advice sessions to anyone  o Must undergo a means test, access income/assets o Also do a merits test o Not all cases are covered by legal aid o Legal Aid either provides a legal representative or contributed to cost 

for a private lawyer o Funded by Commonwealth 

 ⇒ 3.6 BURDEN AND STANDARD OF PROOF 

o A person is innocent until proven guilty o Prosecution must prove the accused is guilty 

o The BURDEN OF PROOF (onus) is on PROSECUTION o Prosecution must meet STANDARD of proof o Criminal matters must prove BEYOND REASONABLE DOUBT o Must prove that there is no doubt that the accused is guilty o Civil is on the balance of probabilities  o DPP decides if the jury will be convinced by evidence and convict the 

accused   ⇒ 3.7 USE OF EVIDENCE 

o Bound by Evidence Act 1995 (NSW) o Evidence must be relevant and legally obtained o Admissible (good) and inadmissible (bad) o Can be physical evidence o One of the most important types in witness evidence o Witnesses take an oath to tell the truth o May be an expert witness – give a testimony based on their expertise  

 ⇒ 3.8 DEFENCES TO CRIMINAL CHARGES 

o Most defences involve denial, justification or excuse for accused’s acts o Revolve around mens rea of the offence o Allow court to consider circumstance that justify acts or limit culpability o COMPLETE DEFENCES 

▪ Justify the defences actions ▪ Result in charges being dropped or an acquittal ▪ MENTAL ILLNESS/INSANITY 

● Accused proves their mental state ● Difficult to prove insanity ● May be found not guilty on terms of insanity, not formed 

mens rea ▪ INVOLUNTARY BEHAVIOUR OR AUTOMATISM 

● Actions could not have been controlled, e.g. epileptic fit – mens rea cannot be established  

▪ SELF DEFENCE OR NECESSITY ● Carried out a crime in order to defend themselves or 

someone else ● Duress 

o PARTIAL DEFENCES ▪ Accused claims that there were mitigating factors ▪ May reduce sentence of acquitted ▪ PROVOCATION 

● Actions result of another’s actions ● Accused proves victim forced them to act that way  

▪ SUBSTANTIAL IMPAIRMENT  

● Reduce murder to manslaughter ● Low IQ, mental retardation ● Suffers from mental impairment  

 ⇒ 3.9 ROLE OF JURIES INCLUDING VERDICTS 

o A central part of the adversary system o Reflect historical right of an accused person to be judged, impartially, 

by a group of their peers, based on evidence o Juries hear the most indictable offences with a not guilty plea o District Court or Supreme Court o It is a panel of randomly selected citizens whose job is to say innocent 

or guilty o Typically involves 12 members o CHALLENGING JUROS 

▪ Both prosecution and defence can challenge the panel selection or jurors or individuals 

▪ PEREMPTORY CHALLENGED  ● Where the legal team rejects a juror because they 

believe that for some reason the juror will be prejudices ● Suspected of bias ● May be acquainted with defender. Or may have been a 

victim of a similar crime o ELIGIBILITY FOR JURY DUTY 

▪ Citizens over 18 in Australia ▪ Difficult to gain exemption ▪ Jurors are paid for attendance ▪ People who speak no English, emergency service people, 

disabled, convicted criminals and legal professionals are exempt 

o JURY ROLE ▪ Before a case begins jurors are sworn in ▪ Role of juror is to listen to the evidence that is allowed to be 

presented, apply the law as directed by the judge and come to a verdict as to the accused’s guilt or innocence 

▪ They can make notes ▪ Can’t talk to anyone but fellow jurors about the case ▪ May ask for clarification on matters ▪ Must be alert and focused ▪ Role is to be unbiased and impartial ▪ Juries elect a foreperson to speak on their behalf ▪ Jury should not be influences by media or their own personal 

beliefs when deliberating a verdict  o VERDICT 

▪ A jury has to reach a verdict of guilty or not guilty and present that verdict to the court 

▪ If there is no verdict reached it is called a hung jury. They are dismissed and a retrial begins 

▪ A prolonged of repeated trial is BAD! ▪ In 2006 NSW Parliament amended the Jury Act 1977 to allow 

majority verdicts 11:1 or 10:2 in cases where reasonable time for deliberation has passed and the court is satisfied that a unanimous verdict will not be reached  

▪ Removed the power of rogue or unreasonably fair jurors who are unrepresentative of the community 

o EFFECTIVENESS ▪ PROBLEM 1: juries sometime investigate for themselves. This 

causes a mistrial, jury. Is dismissed, trial starts again. A couple jurors did this in Bilal Skaf Case 

  

▪ PROBLEM 2: jurors don’t understand what a judge is saying. At the end the judge sums up. The case, but phrases may not be understood  

  

▪ PROBLEM 3: juries can’t be forced to listen. May make bad decision. Argument for. No juries, only judges 

  

▪ PROBLEM 4: social media makes jury trials difficult. This may cause bias as they know things that aren’t presented in the trial. 

 

4. SENTENCING AND PUNISHMENT   

⇒ 4.1 STATUTORY AND JUDICIAL GUIDELINES o There are numerous laws, rules, guidelines and cases on how 

sentences areto be determined o The Crimes (Sentencing Procedure) Act 1999 is the primary source of 

sentencing law in NSW o The maximum penalty is decided by parliament and listed in 

legislation  o Maximum penalties differ depending on the crime o A court may not import a prison sentence unless it is satisfied that no 

other penalty is appropriate o JUDICIAL DESCRETION 

▪ The power of a judge or magistrate to make a decision within a range of possibilities based on the particular circumstances of a case 

▪ Can. Be guided by precedents in cases with similar facts ▪ Case law is often cited by prosecution or defendant in a 

sentencing hearing  ▪ Some judgements are. Persuasive and sentencing principles have 

been handed down by a higher court must be followed o GUIDELINE JUDGEMENTS 

▪ A judgement issue by the court, on the application of the Attorney-General, that will set out sentencing guidelines for a particular offence 

o MANDATORY SENTENCING ▪ An automatic sentence set out by parliament that must be 

imposed by judicial officers ▪ Aimed as a deterrent  

  ⇒ 4.2 PURPOSES OF PUNISHMENT  

o Sentencing is traditionally the means through which the. state and the community punish an offender 

o Notion of punishment is misleading o Crimes (Sentencing Procedure) Act 1999 (NSW) o SECTION 3A 

▪ The purposed for which a court may impose a sentence on an offender are as follows: 

▪ A) to ensure that the offender is adequately punished for the offence 

▪ B) to prevent crime by deterring the offender from committing similar offences 

▪ C) to protect the community from the offender ▪ D) to promote the rehabilitation of the offender ▪ E) to make the offender accountable for his or her actions ▪ F) to denounce the conduct of an offender ▪ G) to recognise the harm done to the victim of the crime  

o All purposes are important when considering a sentence o Some are more important than others depending on circumstances o DETERRENCE 

▪ Something that discourages of is intended to discourage someone from doing something 

▪ Deterrence relates to passing a higher sentence in the hope that fear of punishment might help prevent future offences 

▪ There are. Two types of deterrence  

● Specific deterrence: punishment against an individual offender aiming to deter them from committing crime in the future by showing that ‘crime does not apply’ 

● General deterrence: punishment attempting. To make an example of an offender in order to send a message to the rest of the community that the law is serious about punishing people for this offence 

▪ Deterrence is a relatively simple concept that people can easily relate to, there. Is very little evidence to suggest it is effective  

o RETRIBUTION ▪ Refers to punishment considered to be morally right or deserved 

because of the nature of the crime ▪ Related to the concept of revenge/getting even however it is the 

society seeking retribution on behalf of the victims ▪ Aims to ensure the punishment is proportionate to the crime but 

not violent or physically harmful to the offender ▪ Main justification for inflicting punishment on an offender ▪ When someone is being sentenced, a judge will take into 

account. The effect the crime had on the individual and their family  

o INCAPACITATION ▪ Aims to discourage future offences by the offender by attempting 

to alter the views of the offender ▪ Encourages offender to eliminate factors that contribute to the 

conduct, fostering renunciation of the crime by the offender ▪ Main aim is to prevent recidivism by helping criminals choose not 

to return to the same behaviour  ▪ May include a number of sentencing option and programs i.e. 

drug counselling, drug rehab, alcohol programs and anger management courses to give 

▪ Gives the offender skills needed to function in society  ▪ Rarely is the prime consideration for very serious offences ▪ There is some evidence that rehab programs have some success ▪ Aims to protect the community from the offender ▪ Makes offender incapable of committing further offences ▪ Also known as imprisonment ▪ It is a severe penalty  

 ⇒ 4.3 FACTORS AFFECTING SENTENCING DECISION  

o A judge must take into account individual factors, facts of offence, the circumstance and seriousness 

o Sets out numerous factors for judicial officers to consider ▪ Aggravating factors which are circumstances that make the 

offence less sever and can lead to a reduced sentence ▪ Mitigating factors which are circumstance that can make the 

offence less severe and can lead to a reduced sentence   

▪ Any other objective or subjective factor that affects relative seriousness of the offence (objective factors refer to the circumstances of the crime, and subjective factors refer to the circumstances and state of mind of the offender) 

▪ Whether or not the accused pleaded guilty ▪ Whether or not the offender assisted law enforcement authorities ▪ A victim impact statement from victim(s) of the offence  

o Section 21A of the Crimes (Sentencing Procedures) Act lists the aggravating and mitigation factors to be taken into account 

o Aggravating and mitigating factors need to be carefully balanced  o Involved arguments from both prosecution and defence o Importance of factors, depends on circumstances in each case o AGGRAVATING FACTORS 

▪ Factors that make the offence more serious/severe ▪ Relate to how the offence was committed, the characteristics of 

victim or characteristics of offender  ▪ Make the crime less excusable or more appalling  ▪ Examples include: 

● Offence – involved violence, cruelty or weapons or any threat, motivated by hatred or prejudice, caused injury, harm or damage, committed in company or organised crime 

● Victim – if victim was vulnerable or targeted for their occupation, multiple victims  

● Offender – offender. Abused a position of trust, power or authority when committed offence, or if offender is reoffending/had prior convictions 

o MITIGATING FACTORS ▪ Work in defendants’ favour by explaining cause of their conduct ▪ Subjective about the mind of the accused or their behaviour ▪ Examples include: 

● The offender is of good behaviour ● No prior convictions ● Offender is youthful or inexperienced and was easily led ● Offender pleaded guilty or assisted police ● Offender shows honest remorse or has good prospects 

of rehabilitation and is considered unlikely to reoffend ● Offender was somehow provoked or was under duress 

 ⇒ 4.4 ROLE OF VICTIM IN SENTENCING   

o Most crimes involve a victim who suffers some kind of harm as a result of the offender 

o May be direct or indirect o Victims can be involved in criminal trial process from reporting crime 

and assisting police to testifying at trial or submitting a victim impact statement as a witness 

o Victims of crime are recognised and guaranteed certain rights under the Victim Rights and Support Act 2013 (NSW) 

o Requires respect for a victim’s dignity, victim’s compensation, protection from accused, protection of identity and certain rights  

o Victim impact statement is a voluntary statement written by the victim about the impact that the crime has had on them 

o Allows victim to participate in the process by letting the court know how it impacted them 

o Only permitted for serious offense involving violence or death or harm  o Presented after they are found guilty, but it is before sentencing o Statements may influence sentence o Relate to personal harm to the victim, include physical and 

psychological harm o Can be controversial as they are subjective  o Family statements might remove judge’s impartiality o Are a valuable part of the sentencing process 

 ⇒ 4.5 APPEALS 

o A convicted person has the right to appeal their case o A party appealing is known as the appellate or application o Two types of appeals in criminal cases are 

▪ Appeal against conviction – an appeal where the appellant (defendant) argues they. Did not commit the offence of which they have been found guilty of 

▪ Sentence appeal – an appeal against the severity or lenience of a sentence  

o APPEALS AGAINST CONVICTION ▪ Appellant argues they did not commit offence ▪ Difficult for appeal to succeed ▪ Usually involved an argument that there was some error in the 

handling and prosecution of the case ▪ If successful, defendant/appellant may be acquitted, or a retrial 

may be ordered  o SENTENCING APPEALS 

▪ Appeals by offender against severity of sentences or by prosecution against leniency of sentence 

▪ May be made alone or in conjunction with an appeal against conviction 

▪ Judge can either set aside a sentence, vary a sentence of dismiss an appeal 

▪ Sentence may be reduced or increased – it is a risk to appeal o Type of appeal allowed will depend on the court they were tried in 

 

⇒ 4.6 TYPES OF PENALTIES  o Courts can apply many different penalties o Crimes (Sentencing Procedures) Act 1999 (NSW) lists the various 

penalties that can be imposed o Depends on how magistrate/judge weighs factors o NO CONVICTION RECORDED 

▪ If they are found guilty, a conviction is done to harm them ▪ In sentencing the Judicial Officer may record conviction against 

offender or pass sentence with no conviction recorded  ▪ For less serious offences, there may be no conviction recorded  ▪ Particularly for young offenders or first-time offenders 

o CAUTION ▪ Before a charge is laid, police have the power to issue a person 

with a caution ▪ It is a formal warning without charge, issued by police for less 

serious offences ▪ It is done in hope that they will not reoffend and have learnt a 

lesson ▪ Each caution is kept on police record ▪ Can only be issued if offender admits to offence 

o FINES ▪ Most common sentencing option used in Australia ▪ It is a monetary penalty imposed for infringement of a law ▪ Applies for less serious offences ▪ Issued outside court most times ▪ Referred to as ‘on the spot fines’ ▪ Maximum fine is set out and based on penalty units  ▪ WDO allows people to pay their fines in other ways ▪ Sometimes it can be for serious offences 

o BOND  ▪ A compulsory condition, imposed on an offender for a period of 

time, which the offender undertakes to comply with ▪ In exchange for a more lenient sentence  ▪ A good behaviour bond involves the offender undertaking to be 

of good behaviour for the bond period ▪ Other conditions include: 

● Attending family counselling  ● Attending anger management courses ● Avoid places or people  ● Drug and alcohol rehab program  

o SUSPENDED SENTENCE ▪ A sentence of imprisonment imposed but suspended on the 

condition of good behaviour ▪ Imprisonment is suspended as long as they have good behaviour  ▪ Only imposable if imprisonment is up to two years  ▪ Breach of bond is very serious 

o PROBATION ▪ Bond with probation attached ▪ It is when the type. Of good behaviour bond where the offender 

is released on condition of good behaviour but placed under some form of supervision, such as daily reporting to a judicial officer 

▪ Must adhere strictly to bond conditions ▪ Applies when there is higher danger of reoffending  ▪ But detention is too severe 

o CRIMINAL INFRINGEMENT NOTICE ▪ Allows police to issue an on-the-spot fine for certain offences ▪ It is a notice issued by police outside of court alleging a criminal 

infringement and requiring payment of a fine ▪ Removes burden on court system by allowing police to ussie fine 

for minor offences ▪ No conviction is recorded for the notice ▪ If it goes to court, it is probably more severe  

o COMMUNITY SERVICE ORDERS ▪ It is a penalty where the offender is sentenced to serve specified 

hours of work in the community ▪ Instead of detention or imprisonment  ▪ Means of punishing or shaming the offender whilst allowing for 

rehabilitation ▪ It is cost effective and beneficial to the community whilst still 

penalising the offender ▪ Gives offender the chance to be rehabilitated outside of prison 

 o HOME DETENTION  

▪ For non-violent criminals ▪ For 18 months’ imprisonment or less ▪ Offender might apply to serve sentence while confined in their 

home ▪ Offender needs to be assessed before this can happen by the 

court ▪ Compliance is supervised. By electronic monitoring of offender, 

probation and parole officer monitor the order and conduct of visits 

▪ Certain conditions may be added ▪ Particular controls and restrictions may be put in place ▪ Offer many benefits as they are more cost effective, provide 

rehabilitation, keep offender out of prison, allow families a normal life 

o INTENSIVE CORRECTION ORDER/PERIODIC DETENTION ▪ Form of imprisonment that allows offenders to serve a period of 

time each week or month in prison ▪ 2010, replaced by ICO 

▪ It is an alternative to custodial sentence where an offender has restricted movement and must attend a rehabilitation program 

▪ ICO has strict conditions ▪ Aims to reduce the likelihood of reoffending which periodic 

detention failed to address  o FORFEITURE OF ASSETS  

▪ If offender obtains money or property from the offence, it may be ordered to be recovered 

▪ May be obtained through theft, fraud, money laundering, drug trafficking or tax evasion 

▪ Criminal Assets Recovery Act 1990 (NSW) ▪ Allow assets to be restrained, seized or forfeited  ▪ Discourages reoffending as they do not benefit from their crime 

o IMPRISONMENT  ▪ Is the most severe sentence that can be imposed ▪ Considered the last resort ▪ Crimes (Sentencing Procedure) Act 1999 (NSW) says ‘a court must 

not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.’ 

▪ Deprives a person of their liberty and removes them from the community  

o DIVERSIONARY PROGRAM ▪ Court program set up to divert certain offenders from more 

traditional crime processes in order for rehabilitation to not offend again 

▪ Many programs support offenders who have committed crimes due to drug and alcohol abuse 

▪ It is an alternative to the court system that focuses on the rehabilitation of offenders 

 ⇒ 4.7 ALTERNATIVE METHODS TO SENTENCING 

o Attempt to combat some of the issues associated with recidivism and more traditional forms of sentencing 

o CIRCLE SENTENCING ▪ Only for adult Indigenous Australians ▪ Designed for repeat offenders or serious crimes ▪ Based on Indigenous customary law and more traditional 

Indigenous forms of dispute resolution ▪ Has full sentencing powers of a court ▪ Directly involves Indigenous people in the sentencing process to 

make it more meaningful  ▪ Aims to improve understanding between indigenous communities 

and the courts to reduce recidivism  ▪ A form of sentencing for some adult Indigenous offenders where 

sentencing is conducted in a circle made up of local community members and a magistrate 

o RESTORATIVE JUSTICE ▪ Involves the bringing together of the offender and the victim of 

the offence ▪ Provides opportunity for the offender to take responsibility for 

their actions ▪ Can be confronting and difficult for both parties  ▪ They are voluntary and will usually accompany a form of 

traditional sentencing ▪ It is a form of sentencing involving. a voluntary conference 

between the offender and the victim of the crime  ⇒ 4.9 POST-SENTENCING CONSIDERATIONS 

o In NSW the administration of imprisonment and other sentences is governed by the Crimes (Administration of Sentences) Act 1999 (NSW)  

o SECURITY CLASSIFICATION  ▪ Correctional centres are divided into three security classifications ▪ Maximum, medium and minimum ▪ MAXIMUM – security centres that hold offenders who committed 

the most serious crime and whose escape would be highly dangerous to the public 

▪ MEDIUM – inmates can move around more freely but within high walls or security fences 

▪ MINIMUM – there are fewer barriers to escape and inmates will be allowed more open conditions 

o PROTECTIVE CUSTODY ▪ Offered to offenders who are vulnerable to attack from other 

prisoners ▪ Often people such as. police, politicians or offences against 

children o PAROLE 

▪ The conditional release of a prisoner from custody after the completion of a minimum term of the sentence 

▪ Fundamental purpose is to provide offender with an incentive for rehabilitation  

▪ They are put under direct supervision of a parole officer ▪ They must report to their parole officer as directed  ▪ Conditions may include a good behaviour bond, not reoffending, 

gaining employment, receiving special treatment of counselling ▪ Intended to assist offenders in their gradual reintegration into the 

community after release from imprisonment  o PREVENTATIVE DETENTION  

▪ Keeping a person in custody even though they have not committed any offence, to prevent some future harm that they may commit 

▪ Detained even though no offence was committed  o CONTINUED DETENTION  

▪ Ongoing detention of a person after they have already served the full sentence for their offence  

▪ This is to ensure the safety and protection of the community  ▪ To facilitate the rehabilitation of serious sex offenders  

o SEXUAL OFFENDERS REGISTRATION ▪ State and federal databases who have been convicted of certain 

sexual offences ▪ Designed to assist police with the registering and case 

management of those who have committed sexual offences against children 

▪ Established under Child Protection (Offenders Registration) Act 2000 (NSW) 

▪ Used to protect the community o DEPORTATION 

▪ Under Migration act 1958 (Cth) ▪ A migrant in Australia who is not a citizen may be deported if they 

are tried and convicted ▪ They will be deported and prohibited from ever returning to 

Australia  

5. YOUNG OFFENDERS   ⇒ 5.1 AGE OF CRIMINAL RESPONSIBILITY 

o The law treats children and young people differently from adults o There are a number of reasons for this including: preventing children 

and young people from being exploited, protecting them from the consequences of making uninformed decisions and protecting others from being disadvantages by dealing with a person who is a minor 

o Children and young people can be less responsible than others due to relative youth or inexperience 

o HISTORICAL BACKGROUND ▪ Under common law it describes that a child is doli incapax 

meaning incapable of wrong ▪ It is the presumption that children are incapable of having 

criminal intent ▪ Under common law this is a rebuttable presumption 

meaning the presumption of doli incapax can be proven beyond reasonable doubt 

▪ Most countries have adopted a minimum age of criminal responsibility  

o CHILDREN UNDER 10 YEARS OLD ▪ The Children (Criminal Proceedings) Act 1987 (NSW) lays 

out the minimum age of criminal responsibility  ▪ For children under 10 doli incapax is a conclusive 

presumption ▪ No child under 10 can be found by law to have committed 

an offence 

▪ Conclusive presumption is a legal presumption in favour of one party that is final and cannot be rebutted by the other party 

o CHILDREN 10-13 YEARS OLD ▪ The rebuttable presumption of doli incpax ▪ Once a child is 10, this presumption can be rebutted ▪ Children of this age might have the mental capacity to 

understand the seriousness of their act  o YOUNG PEOPLE 14-17 YEARS OLD 

▪ Once a person is 14, doli incapax can no longer apply and the offender can be found criminally responsible  

▪ 14 and over are deemed mature enough to know when their actions are wrong and to know not to commit an offence 

▪ Full criminal responsibility, publicly triable in adult courts does not occur until a person reaches 18 years old 

▪ Under 16 cannot have a criminal conviction recorded against them unless it was indictable 

   ⇒ 5.2 RIGHTS OF CHILDREN WHEN QUESTION OR 

ARRESTED o Children and young people require some special protections when 

dealing with the police that are not afforded in ordinary circumstances to adults 

o QUESTION OF YOUNG PEOPLE  ▪ Must provide their name and address ▪ May exercise their right to silence  ▪ Law assumes young people don’t know their rights and may 

not fully understand the law therefore a responsible adult other that a police officer must be present  

o ARREST AND INTERRORGATION  ▪ Conditions are in LEPRA ▪ Police know or believe that the person has committed an 

offence ▪ Police have a warrant ▪ Certain conditions be adhered to ▪ Upon arrest of a child or young person, guardians/carers 

should be notified asap ▪ Children and young people may incriminate themselves 

without realising they are doing so and must be warned  ▪ May take fingerprints  ▪ Cannot take DNA unless court allows 

 ⇒ 5.3 CHILDREN’S COURT PROCEDURES AND OPERATIONS 

o Deals with the criminal matters of children and young people under 18 o Deals with matters of care and protection if children and young people 

referred to it by the Department of Community Services 

o Presided over by a magistrate o Children’s Court can hear the following matters: 

▪ Any offence other than a serious indictable offence committed by a child 

▪ Committal proceedings of any indictable offence o Children 

▪ Have rights equal to those of adults ▪ Are responsible for their actions but require guidance and 

assistance ▪ Education should proceed without interruption ▪ A child should reside in their home  

 ⇒ 5.4 PENALTIES FOR CHILDREN 

o Purpose of rehabilitation is given primary weight o Consistent with UN Convention of the Rights of the Child o Penalty must be no greater than that of an adult o Children should be assisted with reintegration into the community to 

sustain family and community ties o Children accept responsibility for their actions and if possible, make 

reparations o Penalties will often be significantly less than in ordinary law  

 DISMISSAL  The court can dismiss a charge without 

punishment or conviction, but may decide to issue a caution to the offender  

CONVICTION  The court can decide whether to record a conviction, but for children under 16 no conviction can be recorded  

ADJOURNMENT  The sentencing can be adjourned or deferred for up to 12 months, to assess the child’s prospects of rehabilitation and reconsidered at that later date  

BOND  Release the child on a good behaviour bond for up to a maximum 2 years with conditions that the court sees fit to impose  

YOUTH JUSTICE CONFERENCE 

Release subject to the child complying with a youth justice conference outcome plan  

FINE  A fine of up to 10 penalty units ($1100) but the court must take into account the child’s age and ability to repay it  

 ⇒ 5.5 ALTERNATIVE TO COURT 

o There are programs for children and young offenders that offer an alternative to the formal criminal justice process 

o Aims to encourage rehabilitation o Reduce recidivism and reduce burden of more minor youth offences 

on court system o WARNINGS 

▪ A notice given to a young offender (usually for a first minor offence) that is recorded by police, but no conditions attached; the offender must be told the nature, purpose and effect of the warning 

o CAUTIONS ▪ A formal, recorded alternative to prosecution where the 

young offender admits to the. offence and consents to receiving a formal police caution; it can later be taken into account in the Children’s Court, but not in an adult court 

▪ Discourage further offending ▪ May be later taken into account  

o YOUTH JUSTICE CONFERENCES ▪ Allows offender to take some responsibility for their actions, 

to promote better family understanding of the issues ▪ Increase the rights of victims in. criminal justice process 

o EFFECTIVENESS The Young Offenders Act has been well received by commentators. It embraces the welfare model of juvenile justice and encourages offender rehabilitation over traditional means of dealing with crime. It uses diversionary measures to find solutions to juvenile offending. Repeat offenders can also be dealt with by the Act, for example through a second and/or third appearance at a youth justice conference. One of the criticisms of the Act, however, is that it is not being used for a wide enough range of offences and therefore is excluding some young offenders from the benefits that conferencing offers. For example, the Shopfront Youth Legal Centre, in response to a 2003 review of the sentencing of young offenders carried out by the NSW Law Reform Commission, argued that youth justice conferencing 

PROBATION  A bond with a probation order of up to two years  

COMMUNITY SERVICE ORDER 

Severe penalty of up to 100 hrs under 16  

SUSPENDED CONTROL ORDER 

Similar to a suspended sentence, a court may impose a control order for up to 2 years  

CONTROL ORDER  Most severe penalty similar to an adult sentence of imprisonment involving detention in a JJC  

could be suitable for even very serious offences (refer to www.cambridge.edu.au/hsclegal3weblinks for the full response). It is not a ‘soft option’, and possibly works best for more serious offences because the young offender is obliged to consider the consequences of his or her actions, in particular the harm caused to the victim. As mentioned below, conferencing also needs to be supported by well-resourced rehabilitative programs.  

        

6. INTERNATIONAL  CRIME  

 ⇒ DEFINITIONS 

o International Crime is a broad term covering any crime that is punishable by a state, but has international origin or consequences, or a crime recognised by the international community as punishable  

o State Sovereignty is the authority of an independent state to govern itself (e.g. to make and apply laws; impose and collect taxes; make war and peace; and form treaties with foreign states) 

o Crimes Against International Community is a most serious crime, of concern to the international community as a whole, and recognised by the international community as requiring punishment  

o Transnational Crime is crime that occurs across international borders, either in origin or effect.  

 ⇒ 6.1 CATEGORIES OF INTERNATIONAL CRIME  

o International crimes are crimes that involve some form of international borders in the commission or. Planning of the crime, or in some way involve a breach of the criminal standards set by the international community  

o It is broadly divided into crimes against the international community and transnational crimes  

o CRIMES AGAINST THE INTERNATIONAL COMMUNITY  ● Collection of offences that are recognised by the 

international community ● They are of universal concern ● Include some of the most extreme crimes possible that 

are condemned by the majority of the international community and may be punishable internationally 

● Crimes may be highly politically motivated, or they may have been ordered or committed by the state itself 

● States can be unwilling or unable to prosecute ● It is important for all states condemning. Crimes against 

the international community is that criminals may then be unable to escape prosecution simply because they have fled the jurisdiction 

● Other states condemning the action have a right to prosecute the offender under universal jurisdiction  

● UNIVERSAL JURISDICTION where a state claims a right to prosecute a person for actions committed in another state, based on the common international opinion that the alleged crime is. so serious that normal law of criminal jurisdiction does not apply  

● INTERNATIUONAL CRIMINAL COURT o Established in 2002 in the Hague Netherlands o Significant development in the law of crimes 

against the international community o Rome Statute established the International 

Criminal Court o Gives ICC jurisdiction over three broad categories 

of international crime  o ICC is a last resort o Intended to complement existing national criminal 

justice systems  o Can only prosecute a case when state courts 

cannot or are not willing to do so .  o ICC can only exercise jurisdiction where: 

▪ Accused is a national of a member state of the treaty 

▪ Alleged crime occurred in the territory of a member state  

▪ The situation is referred to the ICC by the UN Security Council  

● GENOCIDE o Article 6 of Rome Stature o Gives ICC criminal jurisdiction over acts of 

genocide that occurred after July 2002 o Defined as killing members of the group, causing 

serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculates to bring about the physical destruction in whole or in part, imposing measures to prevent births within the group, forcibly transferring children of the group to another group 

o It has long been condemned by international community  

o First treaty was the Convention on the Prevention and Punishment of the Crime of Genocide signed in 1948 

● CRIMES AGAINST HUMANITY o Acts committed as part of a ‘widespread or 

systematic attack’ against any civilian population o Article 7 of Rome Statute  

● WAR CRIMES o Action carried out during the conduct of a war 

that violates accepted international rules of war o Geneva Conventions set standards for 

humanitarian treatment of the victims of war such as civilians, the sick and wounded, prisoners of war and medical or religious personnel

o Article 8 of Rome Statute o Includes:

▪ Torture or inhuman treatment  ▪ Wilful killing or wilfully causing great 

suffering or serious injury  ▪ Extensive and military unjustified 

destruction or property ▪ Intentionally directing attacks at civilian 

populations ▪ Intentionally directing attacks at 

humanitarian personnel or equipment  o TRANSNATIONAL CRIMES 

● Crimes that take place across international borders ● Similar to domestic crimes but have movement across 

international borders as an element of the criminal act ● May originate in one country but be completed in 

another ● Include: 

o Human trafficking o International fraud and white-collar crime o Transnational internet crimes o International terrorism o Creation and trafficking of child pornography 

● Causes of transnational crimes might include o Difference in socio-economic conditions between 

countries o Desire for prohibited goods or services o Difference in political or ideological viewpoints o Hope that transnational element will prevent 

detection  o Opportunistic desire for power  

● Usually be prosecuted under the law of one or another country’s domestic jurisdiction

● Elements of the crime are only complete when the border has been crossed

● Target country will often be the enforcer  ⇒ 6.2 DEALING WITH INTERNATIONAL CRIME  

o Combines domestic and international measures o DOMESTIC MEARSURES 

● Limited by jurisdiction ● Australian law enforcement cannot operate in a foreign 

country ● Ability of the Australian legal system to respond is 

inhibited unless there is cooperation with foreign countries 

● Specific circumstance where exceptions may be possible  o Intrusion is granted by host country 

● Most significant development is the signing and ratification of the Rome Statute  

● Legislation introduced Offences against Humanity and Related Offences 

● Any crime outlawed by Rome Statute is also a crime in Australia 

● Australia is a state party to the ICC and actively participates in discussions among the state parties 

● Most significant development is the signing and ratification of the Rome Statute 

● Australian government uses the Australian Federal Police (AFP) to enforce Commonwealth criminal law and to protect Ausrtralia’s interests from a crime in Australia and overseas 

● The CommonwealthAttoreny-General’s department plays varied roles, reports and provides advice on Australia’s compliance with international obligations, oversees operation of legislation relating to transnational crimes, provides advice on implementation 

● Australia Crime Commision is statutory. Body that combats serious organised crime of national concern and delivers specialist law enforcement  

o INTERNATIONAL MEARSURES ● Divided into the following categories 

o Cooperation among government through international treaties and international organisations targeted at specific types of international crime 

o International courts and tribunals to deal. With enforcement of international law 

o Cooperation and intelligence sharing between national and sub-national agencies to tackle problems of trans-border crime 

● CRIMES AGAINST THE INTERNATIONAL COMMUNITY o International efforts are. Aimed at preventing or 

prosecuting crimes against the international community 

o ICC was established in 2002 ▪ Launches investigations, prosecutions 

o Extradition treaties ▪ A country surrenders a convicted criminal 

to another country facing criminal charges or sentencing  

▪ Generally governed by a series of bilateral agreements with other countries 

● TRANSNATIONAL CRIMES o The international criminal police organisation 

(INTERPOL) is the world’s largest international police organisation ▪ Improves cooperation between police and 

around the world ▪ Mission is to prevent or combat 

international crime o The united nations convention against 

transnational organised crime s regarded as the main international instrument in the fight against transnational organised crime 

ASSESSING EFFECTIVENESS:  Transnational crime  

In transnational crime, there are often complex organised criminal groups at work using sophisticated measures to avoid detection. Authorities around the world have to combat a number of crimes, including identity fraud, internet crime, paedophilia rings and the trafficking and smuggling of people and contraband. Some states may lack the skills, training and resources to combat such crimes or may be unable to do so due to political unrest or high levels of state corruption. Such states may become targets or breeding grounds for transnational crime affecting other states, making it very difficult to combat the problem. The main areas for efforts against transnational crime to address include:  

➔ the extent of international cooperation between states: the provision of adequate resources, and the effectiveness of coordination among international agencies, including the exchange of information  

➔ the level of compliance among weaker or poorer states: states where the rule of law may be weak become targets by organised crime groups.  

To be successful, states will require cooperation and the sharing of skills, resources, funding and intelligence on an unprecedented scale. To date, some important measures, both domestic and international, have been put in place to cope with transnational crime and they have had some success. However, as with domestic 

crime, transnational crimes are unlikely to disappear any time soon, and, as the world changes, an increased effort will be needed to tackle the issues they present. The Pacific Transnational Crime Coordination Centre (PTCCC) in Samoa is a proactive step in combating transnational crime in the region. It acts as a ‘one-stop’ agency for the flow of information for the Transnational Coordination Units (TCUs) set up around the region. However, having adequate resources to gather and disseminate intelligence will be an ongoing challenge especially for states where the upholding of the rule of law is tenuous.  

Crimes against the international community  

Clearly the most significant development in combating crimes against the international community has been the establishment of the ICC, which followed numerous specific ad hoc tribunals set up to cope with crimes committed in specific situations, such as Rwanda and Yugoslavia.  

Generally, ad hoc war crimes tribunals have been reactive and extremely resource-inefficient if the number of prosecutions is a measure of performance. The International Criminal Tribunal for the Former Yugoslavia (ICTY) has had more success than any other such body, having indicted close to 260 people, with all but one of these cases having being dealt with. This is a victory for international justice, but the cost has run to billions of dollars. Eventually ad hoc war crimes tribunals will run their course as matters are resolved or remain unprosecuted and the ICC is used to prosecute more recent offences.  

A permanent court such as the ICC is symbolically very powerful, and sends a message that leaders or other criminals can no longer hide behind immunity in their own state when they have committed appalling acts. Also, the threat of later prosecution may act as a deterrent, stopping rogue leaders using any such tactics. It also offers enormous support to victims of the crimes by attempting to bring to justice those responsible for these atrocities. The ability of the ICC to deal with these issues is, however, questionable.  

The tribunals and the ICC have not been without criticism. In particular, the courts are established to deal with these atrocities after they have been committed, and there is valid criticism that international law and the international community have been too slow to stop these atrocities before they occur, or even while they are occurring. Short of intervention by the UN Security Council, which has been rare, there is also no international force or police that can capture such offenders, especially when they remain inside their own state. This is particularly evident, for example, in the conflict in Darfur, Sudan, where charges by the ICC were not laid against President al- Bashir until 2008, five years after the atrocities began. This was some 15 years after the world had witnessed the gruesome genocide in Rwanda, where 500 000 people were killed within just 100 days: the international community had condemned this and vowed never to let such a thing happen again.  

In Sudan, at the time of publishing, President al-Bashir is still in office and has not been apprehended. In addition, the Security Council has referred the situation in 

Libya to the ICC, and more than likely will also wish to refer the situation in Syria as it continues to unfold in 2013. However, Syria is not a party to the Rome Statute, and these situations must be referred by the Security Council – Russia and China, both strong allies of Syria, have veto power on the Security Council, so they would probably block such a referral.  

The enormous cost of such investigations and prosecutions also needs to be borne by member states. As such it is never likely to be possible for the international community to prosecute all the offenders who commit these crimes. So the ICC is primarily focused on the ‘main players’ orchestrating the commission of the crimes outlined in the Rome Statute. As is the case with other international tribunals and courts, it must prosecute those ‘most responsible’. The Special Court for Sierra Leone (SCSL) was mandated to prosecute those most responsible for crimes committed during the Sierra Leone civil war, but only nine have been convicted. On 26 April 2012, the former President of Liberia, Charles Taylor, was convicted of crimes relating to his role in the conflict and was later sentenced to 50 years’ imprisonment.  

It should also be noted that Australia, with a refugee intake from areas of the world where war crimes and crimes against humanity have occurred, has shown little political will to investigate the possibility of such people living within the Australian community. Having signed and ratified the Rome Statute, Australia is in fact obligated to do so.  

Having said this, a permanent court, with established investigative and court mechanisms as well as permanent staff, is a step towards greater efficiency. The effectiveness of any international institution will usually come down to the sum of its parts. While the ICC now has over 110 member states, it lacks some of the world’s most important and influential countries. These include some of the world’s major powers (such as the United States, China and India), as well as some very influential countries (such as Pakistan, Vietnam and Indonesia).  

Most objecting states claim that joining the ICC would violate their state sovereignty. As discussed above, one of the biggest advantages of the Court is that it can act independently of state jurisdictions where they are unwilling or unable to do so. However, critics claim that in many cases states fear subjecting themselves to investigation of their own affairs – India over Kashmir, or China over Tibet or Xinjiang, for example. Nevertheless, the ICC only has jurisdiction for crimes committed after its establishment, and it still has jurisdiction over any individuals from non-member states who commit crimes against or in the territory of a member state. Supporters of the Court argue that the danger of crimes against the international community occurring again without independent oversight or responsibility ought to outweigh the national interests of state parties.  

In 2012 the ICC successfully prosecuted its first case. Congolese warlord Thomas Lubanga Dyilo was found guilty of war crimes.  

 

 

 

THEMES AND CHALLENGES CRIME  The role of discretion in the criminal justice system 

- Discretion acknowledges that the law can be a blunt instrument in delivering justice 

- It allows individual circumstances to be taken into account when applying the law 

- It is considered important if the criminal justice system is to balance the rights of the community with the rights of individuals – the accused and victims – if it is to address the tension between there competing interests 

- Discretion can also be used in a biased or corrupt way undermining justice - Discretion is a part of most steps in the criminal justice system - There are many people in authority who have discretionary power in the 

exercising of their roles - Police have discretionary powers of arrest in certain matters and they also 

have discretion in the exercising of their powers when carrying out their duties 

- DPP has discretion with respect to what matters they will prosecute - They examine if there is enough evidence and if it is in the public interest to 

prosecute - Magistrates and judges have discretion in matters pertaining to bail, rules of 

evidence and procedure as well as in sentencing matters - They also have discretion in matters on appeal 

 Issues of compliance and non-compliance in regard to criminal law 

- Majority of individuals within a society obey the law most of the time - Individuals also enjoy the freedoms and protection as well-organised and, at 

times, well-regulated society gives - The majority complies with the law - The law can also enforce compliance and sanction violations in behalf of 

society where individuals do not comply  - Some of the reasons people don’t comply include greed, self-interest, thrill, 

peer pressure, addiction, mental illness, political need or necessity - There is no set pattern and the specific reason for an individual’s 

non-compliance may vary - Issue that can be critiqued could include the ways in which the CJS tries to 

ensure greater compliance through o Crime prevention 

o More effective investigation of crime o The purposes of punishment to reduce criminal behaviour o Emphasis on rehabilitative initiative with young offenders o Measures to combat transnational crime 

 The extent to which the law reflects moral and ethical standards 

- Crimes are actions that individual societies have decided should be illegal - For this reason, jurisdictions will differ in what actions will constitute a crime, 

and crime will change over time - Most crimes are the result of moral and ethical judgements by society, about 

behaviour that may be deemed harmful and therefore warrant sanctions by the state 

- What currently exists in international law, statute and common law is a reflection of our public morality  

- The ways the laws may change to respond to shifts in public morality, and the areas today that are in a state of flux, reflect the moral and ethical standards of our community  

- Examples include o Specific domestic legislation and international treaties concerning 

international crime that reflect a degree of public morality o Areas where there have been law reforms of changes to the law as a 

result of shifting public morality  The role of law reform in the criminal justice system 

- Agencies of law reform such as Law Reform Commissions, Parliament, Courts and other non-legal measures can be examined here with examples of how they have reformed the law 

- Examples include o Laws of sexual assault o Majority of verdicts in juries o Guidelines in charge negotiation, alternative methods of sentencing 

such as circle sentencing, restorative justice o Youth justice conferencing or other alternatives for young offenders o Alternatives to full-time imprisonment such as periodic detention, 

home detention or community service orders o International crime – ICC, INTERPOL or AFP o Failure of the existing law to deal effectively with sexual assault 

matters o Rehabilitation, rates of recidivism o Gathering of evidence – DNA, surveillance, remote witness facilities, 

transcript evidence; balancing police powers with the rights of individual; reliability and process of such evidence contributing to delays of court system 

 The extent to which the law balanced the rights of victims, offenders and society  

- Picks up on part of the principal focus of the topic, the ‘tension between community interests and individual rights and freedoms’ 

- Society’s needs may be outweighing the rights of individuals in life of anti-terrorism legislation or restriction in bail laws 

- The law and order debate that has been ongoing in some areas has gained the upper hand in the balancing act  

- Police powers against suspects - Criminal trial balancing the rights of victims, offenders and society - Right to a fair trial - Criteria for judges when sentencing is also a feature of this balance and 

ongoing tension - This balance is reflected in the decision to grant bail, charge negotiations 

and the ability of the international criminal justice system to bring offenders of mass atrocities to justice 

 The effectiveness of legal and non-legal measures in achieving justice  

- Legal measures include all institutions and processes enabled by law to deal with aspects of the CJS 

- Non-legal measures must also be critiqued as a change agent that can help improve, develop awareness of, or pressure law-makers to regulate or deal with an area of concern within the CJS 

- Broad areas of criminal law may be chosen that outlines the statute/common law responders such as young offenders, international crime, or the sentencing process 

- Non-government organisations, the media and so on can also be highlighted here and their role outlined and evaluated 

 

 

 

 

H U M A N   R I G H T S 

IMPORTANT LEGISLATION 

Universal Declaration of Human Rights (1948)  International Covenant on Civil and Political Rights (1966) International Covenant on Economic, Social and Cultural Rights (1966) Salve Trade Act (1807) Great Britain  Slavery Abolition Act (1833) Great Britain Charter of the United Nations (1945) The Constitution of the United States of American (1787) US The United State Bill of Rights (1789) US General Act of Brussels (1890) Trade Unions Act (1871) UK Representation of the People Act (1918) UK Education Act (1870) UK Public Instruction Act (1880) NSW UN Declaration of the Rights of Indigenous Peoples (2007) African Charter on Human and People’s Rights (1981) American Convention on Human Rights (1988) Stockholm Declaration (1972) Rio Declaration (1992) Kyoto Protocol (1997) Treaty of Versailles (1919) Declaration on the Right of Peoples to Peace (1984) 

1. THE NATURE AND DEVELOPMENT OF HUMAN RIGHTS   ⇒ KEY TERMS 

o STATE SOVERIGNTY; the power of a state to have control over its territory and its subjects 

o NATURAL LAW; law created by higher powers or by higher reasoning, not created by humans but it simply exists 

o HISTORIC DOCUMENTS  

- Magna Carta 1215; imposed on King John to ensure his power would be limited  

- UN Declaration of Human Rights 1948; most comprehensive historical document covering human rights  

 ⇒ 1.1 THE DEFINITION OF HUMAN RIGHTS 

o The universally recognised interests, powers, liberties and entitlements associated with respect for human dignity 

o In a general sense, basic rights and freedoms believed to belong to all human beings 

o They are entitlements that we deserve and enjoy simply by virtue of our humanity 

o They are designed as universal, inalienable and inherent in all people o They are a collection of fundamental standards decided upon by the 

international community for the treatment of individuals  o Aim to protect people from injustice and prevent discrimination o Universal Declaration of Human Rights (UDHR) a declaration of rights 

adopted by the United Nations in 1948; the first universal acceptance of the idea of human rights and the reference point of all subsequent human rights treaties 

⇒ 1.2 DEVELOPING RECOGNITION OF HUMAN RIGHTS 

o Recognition is a relatively recent historical development  - SALVERY 

● A type of forced labour in which a person is considered to be the legal property of another 

- UNIVERSAL SUFFRAGE ● The right of all citizens to cote in political elections, 

regardless of status, gender, race or creed - TRADE UNION 

● An organised association of workers formed to protect and further their rights and interests 

- LABOUR RIGHTS ● Rights at work, including rights to safe working 

conditions, minimum wages, paid leave or to join a trade union 

- UNIVERSAL EDUCATION ● Free and compulsory education for all children 

- SELF-DETERMINATION ● The right of people of a territory or national grouping to 

determine their own political status and how they will be governed 

- RIGHT TO PEACE ● The right of citizens to expect their government to do all 

in its power to maintain peace and work towards the elimination of war  

o THE ABOLITION OF SLAVERY - Slavery used to be considered integral to society and the 

economy  - Move to abolish slavery and slave trading began as early as 12th 

century - A political movement called abolitionism began in the 18 th 

century and gradually grew - The Slavery Abolition Act 1833 (UK) ensured that slavery was 

officially abolished  - There became an agreement between countries that slavery was 

no longer accepted  - After WW2 the member states of the UN made a clear statement 

that slavery was prohibited under Article 4 of the UDHR   

o TRADE UNIONISM AND LABOUR RIGHTS - Conventional labour became the only legal means of securing 

large groups of workers - In Europe regulations of workplace was based off status - In Europe, labour law as protection for workers, including 

demands for better conditions and the right to organise arose with the Industrial Revolution 

- Trade unions first emerged with the industrial revolution in response to appalling work conditions and lack of safety, low wages and long hours 

- Many trade unions struggled - The first Trade Union Congress took place in 1868 UK - Similarly, unions in Australia began to form  - Joined to form the Australian Labor Party (ALP) - The International Labour Organisation (ILO) was created 

(international agency of the UN, created with the aim of improving conditions for workers around the world 

- Labour rights were finally enshrined in the UDHR under articles 23 and 24 

- Treaty of ICESCR (1966) and ongoing ILO work have further defined those rights and sough to implement them around the world 

 o UNIVERSAL SUFFRAGE 

- Suffrage is also known as the right to vote - Usually only a limited number of men could vote - New Zealand was the first nation to allow women to vote - Australia granted this in 1902 - Race became a voting problem - Indigenous Australians were denied their voting right in 1962 - Right to vote is recognised in article 21 of the UDHR  

 o UNIVERSAL EDUCATION 

- Is the idea that all humans have a right to an education - Without it, people cannot understand the society they live in - UDHR article26  - Push grew in the 19 th century  - Laws were passed in Australia making education free, secular 

and compulsory  - Compulsory for people 6-15 to attend school 

 o ENVIRONMENTAL RIGHTS 

- Increasing focus on the possibility of universally recognised environmental rights 

- It is a right to a clean and safe environment  - Based on developments in “intergenerational equity” - There is no universal recognition but there are protocols and 

treaties to address specific environmental issues and threats  

o PEACE RIGHTS - Right to live in a peaceful world where war, environmental 

devastation and risk of nuclear fallout are removed or deduced - UDHR article 2 - Known as Collective right 

 o SELF-DETERMINATION 

- It is a collective right - Right of people of a territory or national grouping to determine 

their own political status and how they will be governed - Article 15 - Internal is to give a group some autonomy but stay within the 

country where they can control their destiny - External is to become a separate state/country  

 

⇒ 1.3 FORMAL STATEMENTS OF HUMAN RIGHTS o UNIVERSAL DECLARATION OF HUMAN RIGHTS 

- Pressure for an international bill of rights had been growing - WW2 finally stirred the world into action - With the formation of UN in 1945, human rights were brought to 

centre stage - Formal statement of universal rights was needed, and work 

began to develop one - UDHR was the first declaration written by the UN - Declaration was adopted on 10 December 1948 - It was adopted as a declaration rather than a fully binding treaty 

for the purpose of defining ‘fundamental freedoms’ and ‘human rights’ 

- UDHR is soft law  - It has inspired more than 200 international treaties, conventions, 

declarations ad bills of rights - It has become part of international customary law 

 o INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 

- ICCPR - Creates an obligation on states to respect the civil and political 

rights on individuals.  - Equality between men and women, right to life, right to freedom 

of movement, right to a fair trial and right to innocence - ICCPR contains monitoring and periodic reporting arrangements 

for member states - It has been ratified by 168 states 

 o INTERNATIONAL COVENANT ON ECONNOMIC, SOCIAL AND 

CULTURAL RIGHTS - ICESCR - Came into force in 1976 - Created an obligation on states to work towards granting 

economic, social and cultural rights to individuals - Includes labour right, living rights and the right to education - Overseen by the UN Committee on Economic, Social and 

Cultural Rights    

2. PROMOTING AND ENFORCING HUMAN RIGHTS  ⇒ 2.1 INTERNATIONALLY: STATE SOVERIEGNTY  

o Sound democracies have developed respect for human right o Some countries however who continue to justify mistreatment of 

citizens  o They are able to rely on state sovereignty  o The nature of the UDHR, ICCPR and ICESCR puts responsibility on 

sovereign states to uphold their commitments or face consequences  o Treaties oblige countries to comply through reporting and also 

allowing other states and citizens to complain   ⇒ 2.2 THE ROLES OF 

o THE UNITED NATIONS - There are 5 organs of the UN  

● The General Assembly (UNGA) consists of representatives from all member states with equal voting power (in theory). It is the main forum for international discussions, deliberation, declarations and recommendations, relating to the issue of human rights.  

● The Security Council (UNSC) UN organ that is charged with maintenance of international peace and security. Exercises power. Through legally binding resolutions and can authorise military actions, sanctions and peace keeping missions. It had 5 permanent members that have the power to veto and 10 non-permanent members. They have the power to intervene in the most serious of human rights abuses by states.  

● Economic and Social Council (ECOSOC) promotes international economic and social cooperation and development. It includes various committees and acts as the central forum for discussion of economic, social, environmental and humanitarian issues 

● Secretariat is the main administrative body of the Un, provides information, studies, tasks and facilities needed by the Un. It is headed by the Secretary General 

● International Court of Justice (ICJ) is the principal judicial organ that settles international disputes submitted to it by member states and produce advisory opinions on 

matters of international law. Cases rarely relate to human rights issues 

- Office of the High Commissioner for Human Rights (OHCHR)  - UN Human Rights Council (UNHCR) - Human Rights. Committee assesses compliance with ICCPR and 

allows individuals to bring complaints - All UN bodies have a role to play in the promotion/protection of 

human rights  - They facilitate the role of the UN in the development and 

recognition of international human rights standards through the International Bill of Rights  

- UN is a vast organisation with substantial power  

o INTERGOVERNMENTAL ORGANISATIONS - IGO’s are international organisations that have various member 

states - The UN is the most important  - Other examples are: 

● World Trade Organisation ● International Monetary Fund ● International Police  

- IGO’s include the promotion of human rights in their state’s goals 

- The Commonwealth of Nations promotes democracy, the rule of law and human rights 

- Members can be suspended for human rights violations  

o COURTS, TRIBUNALS AND INDEPENDENT  - They have the power to hear matters involving human rights 

abuses - International Court of Justice 

● Organ of the UN  ● Its role is to hear and judge disputes between states and 

to issue advisory opinions on matters of international law ● ICJ requires the consent of state parties to hear matters 

and so has very little jurisdiction ● The court is unable to hear cases brought by individual 

people or private organisations ● It is restricted to states 

● It has very little power or enforcement with Security Council members being able to veto any enforcement action 

● The court has, however, issues important judgements that carry the weight of international law and act as significant guides to future actions 

- International Criminal Court ● Prosecutes international crime  ● It was preceded by various tribunals, known as ‘ad hoc’ ● ICC is not a court specifically for human rights violations ● It does however prosecute and hear matters relating to 

the most serious international crimes ● It has jurisdiction to hear crimes of aggression, but the 

international community is still in the process of agreeing of the definition of this term 

● ICC has jurisdiction to prosecute individual people rather than states 

- European Court of Human Rights ● To apply and protect human rights of the citizens od 

Europe ● Considers cases brought by individuals , as well as by 

organisations and states ● It is extremely influential and compliance has been 

incorporated into the treaties of EU  

o STATUTORY AUTHORITIES  - Human Rights Committee  

 o NON-GOVERNMENT ORGANISATIONS 

- These are independent and without representation of any government  

- They have been growing in numbers - International Committee of the Red Cross (ICRC)  - Amnesty International - Play a key role in informing the global community about human 

rights violations and progress - They help ensure greater government compliance by 

investigating, researching, documenting and publishing cases of human rights violations 

- One of the oldest and more important NGOs is the International Committee of the Red Cross (ICRC) 

- They are strictly concerned with international humanitarian law 

- The importance of the ICRC is recognised internationally  - It works closely with the International Federation of Red Cross 

and Red Crescent Societies o THE MEDIA 

- They have a crucial role of ‘naming and shaming’ – bringing events and situations of Human Rights abuses to the attention of the people 

- The right to information through media is recognised as a human right (Article 19 UDHR) 

- The influence of the media is also recognised by violators  - Media freedom is severely restricted in many countries  

 ⇒ 2.3 IN AUSTRALIA: THE INCORPORATION OF HUMAN 

RIGHTS INTO DOMESTIC LAW o There is no one document where all human rights can be found  o Rights that correspond with internationally recognised human rights 

are drawn from different sources o These include international treaties, Australian Constitution, common 

law, statute law o INCORPORATION INTO DOMESTIC LAW 

- When an international treaty is negotiated, states indicate their agreement to the principles of the treaty by signing it 

- A treaty must be ratified by a state before it becomes binding and enforceable  

- The rights and obligations of the treaty need to be incorporated into Australian law in some way  

- Parliament will usually pass legislation that echoes the words of the treaty or amends existing law 

- Australia ratified the Rome Stature of the International Criminal Court in 2002, the Commonwealth Parliament simultaneously passed the International Criminal Court Act 2002 (Cth) and the International Criminal Court (Consequential Amendments) Act 2002 (Cth) to enact the provision of the treaty into Australian law .  

 ⇒ 2.4 THE ROLES OF 

o THE CONSTITUTION, INCLUDING THE DIVISION OF POWERS AND SEPARATION OF POWERS 

- Plays two important roles in protecting human rights for Australians: 

● Lays down the system of Australian government through which human rights are recognised, including separation of powers and division of powers 

● It is the source of some specific human rights  - DIVISION AND SEPARATION OF POWERS 

● Separation is preventing one person or group from gaining total power by dividing power between the executive, the legislature and the judiciary 

● Division is how powers are divided between the federal and state governments 

o STATUTE LAW - While many laws have been adopted via ratification, some have 

also been established independently by state or federal parliaments 

- Statute law is a powerful tool in human rights protection and many laws have been wide-reaching  

- Rights laid out in statute are not fixes – they too can be removed by a later Act or Parliament  

- Some of the most important include: ● Racial Discrimination Act 1975 (Cth) ● Sex Discrimination Act 1984 (Cth) ● Australian Human Rights Commission Act 1986 (Cth) ● Disability Discrimination Act 1992 (Cth) ● Age Discrimination Act 2004 (Cth) 

Anti-Discrimination Act 1977 (NSW) 

 o COMMON LAW 

- It is the body of law made by judgements of the courts - It has evolved and been passed down over centuries, 

independently of government and carries the power to protect human rights 

- Many Australian statutes are silent on many aspects of the law - Some fundamental rights are the. presumption of innocence and 

the right to a fair trial  - Common law does not offer absolute protection of human rights 

because common law rights are not fixed - Common law cannot be relied upon to develop new rights as 

judgements are only determined on a case-by-case basis  

o COURTS AND TRIBUNALS - All courts and tribunals have some role in applying and enforcing 

human rights laws - Courts also play a role in interpreting and developing human 

rights law - AUSTRALIAN HUMAN RIGHTS COMMISSION 

● It is an independent national body, established by the Human Rights Commission Act 1986 (Cth) 

● AHRC has a responsibility to; receive and investigate complaints about discrimination  

● Promote public awareness about human rights and provide legal advice, conduct public inquiries into human rights issues and produce recommendations, give advice and make submissions to parliament and government on the development of laws, policies and programs  

- HIGH COURT OF AUSTRALIA  ● Can set precedents that are binding on other courts and 

to overturn state or Commonwealth legislation where it conflicts with the Constitution 

 o NON-GOVERNMENT ORGANISATIONS 

- Play a vital role in researching and reporting on human rights issues, making submissions to state and Commonwealth parliaments or law reform bodies 

- They are important in protecting individual’s rights, shaping public and political opinion and exposing violations by governments and individuals  

 

o THE MEDIA - Plays an indispensable role in the ‘naming and shaming’ of 

governments and human rights  - It has a significance influence on public opinion and government 

action - The rights of Australia report to disseminate information and the 

right of the public to receive information are not enshrined in law - The freedom of political communication is protected by the 

Constitution, but in Australia there is not yet any general rights to freedom of speech 

- Australia reporters, particularly those from the ABC and SBS also play an important role in investigating and reporting on human rights on both a regional and worldwide basis 

   

o A CHARTER OF RIGHTS (ARGUMENTS FOR AND AGAINST)   

    

          

3. INVESTIGATE A CONTEMPORARY ISSUE WHICH ILLUSTRATES THE PROMOTION AND/OR ENFORCEMENT OF HUMAN RIGHTS   ⇒ 3.1 ISSUES COULD INCLUDE HUMAN TRAFFICKING  Description of Human Rights Issue - Human trafficking is the commercial trade or trafficking in human beings for 

the purpose of some form of slavery, usually involving recruiting, transporting or obtaining a person by force, coercion or deceptive means. People are taken for forced labour or debt bondage or for sexual slavery. 

- It is a complex crime that involves some of the most serious violations of human rights 

- Can involve a line of criminal activity from recruitment, harbouring of victims, transport and sale, obtaining or buying a person 

 International Legal Responses  - 1956 treaty on the Supplementary Convention on the Abolition of Slavery, 

the Slave Trade and Practices Similar to Slavery  - Protocol of The Protocol to Prevent, Suppress and Punish Trafficking in 

Persons especially Women and Children came into force in 2003 o It was the first legally binding instrument with an agreed definition of 

Human Trafficking  o Has created greater awareness of this global issue and better 

cross-border cooperation in investigating and prosecuting violations 

o In 2015, 117 states ratified the treaty - EFFECTIVENESS: legally binding in 117 nation states according to ‘UN’s 

2009 Global Report on Trafficking in Persons’  - INEFFECTIVENESS: many countries still do not have the legal instruments or 

the political will to implement the law. Issue of state sovereignty   

Domestic Legal Response - Australian Government established a human trafficking strategy in 2003 and 

has dedicated $60 million to tackling the problem - Australia ratified the Protocol to Prevent, Suppress and Punish Trafficking in 

Persons especially Women and Children with effect from October 2005 - Human trafficking provisions have been added under the Criminal Code in 

the Criminal Code Amendment (Trafficking in Persons Offences) Act (2005).  - Increases training for AFP in detecting and investigating human trafficking  - Additional funding and training for prosecution of HT - Targeted Communication Awareness Strategy that gives information about 

trafficking  - Cooperation with regional and international agencies in tackling the sources 

of human trafficking  - Serious problems is the issue of protection visas and threat of deportation of 

victims, deprive system of witnesses and effect punishment   

International Non-Legal Responses - UN and ILO (int. labour org.) and other NGOs are involved in combatting 

slavery and human trafficking  - UN established Global Initiative to Fight Human Trafficking  

o Increase awareness about human trafficking  o Assist non-state actors in anti-trafficking campaigns  o Reduce demand for exploitation of people and vulnerability of 

potential victims - ILO established a Special Action Programme on Forced Labour in 2001 to 

raise global awareness of forced labour  o Done studies and reports on aspects of human trafficking  

- NGOs include Anti-Slavery International  o International NGO founded in 1839 and based in UK, aims to draw 

attention to human trafficking and slavery - American Anti-Slavery Group, iAbolish 

o Anti-slavery NGO that works on awareness, advocacy and aid  

Domestic Non-Legal Responses - In Australia the A21 NGO make an indispensable contribution to fighting all 

forms of modern slavery  - The media informs the public about the existence and nature of modern 

slavery  LEGISLATION -Divisions 270 and 271 of the 

MEDIA -ABC 2019 ‘Cyntoia Brown, 

CASES -R v. Wei Tang: brothel owner 

DOCUMENTS -‘UN’s 2009 Global Report on 

THEMES AND CHALLENGES HUMAN RIGHTS 

 The changing understanding of the relationship between state sovereignty and human rights 

- Look at how state sovereignty can be used to both promote human rights and undermine human rights 

- Sovereignty assumes that the government of a nation has the sovereign right to make any laws they like within their borders  

- Human rights law has undermined the idea that sovereignty is a barrier to external intervention 

- Responsibility to Protect is a UN doctrine that makes it every government’s responsibility to protect the human rights of their citizens 

- If they government cannot do this, it is the international community’s responsibility to assist them 

  Issues of compliance and non-compliance in relation to human rights 

- Examine why nation states comply and they put themselves outside the law - Monitoring and enforcement mechanisms such as international courts and 

tribunals aim to hold people accountable for violations of human rights  - Mutual benefit is when nations realise that they have much to gain from 

following the international law  

Commonwealth Criminal Code Act 1995 - The Protocol to Prevent, Suppress and Punish Trafficking in Persons especially Women and Children - Supplementary Convention on the Abolition of Slavery, the Slave Trade and Practices Similar to Slavery  

sex-trafficking victim’ - Sydney Morning Herald ‘Just one in five cases of modern slavery are known to police’   

that brought five women to Australia under unlawful conditions of debt bondage and slavery  -R v McIvor and Tanuchit: possessing and using a slave of five Thai women   

Trafficking in Persons’ -OHCHR document on Human Trafficking talks about the effectiveness of UN and treaties on abolishing human trafficking  

The development of human rights as a reflection of changing values and ethical standards 

- Moral and ethical standards have led to a change in values and a determination to do everything to build a new world order where human rights are respected and upheld 

- Historic events such as UN Charter, UDHR etc promoted a dramatic shift in the international community 

- Human rights laws are now a major branch of international law  The role of law reform in protecting human rights 

- Human rights treaties are the form of enforcement  - The rule of law in countries  

 The effectiveness of legal and non-legal responses in protecting human rights  

- Political will – the effectiveness often depends on the political will of the leaders of major world powers to take action to strengthen the enforcement mechanisms to protect human rights.  

- Public opinion – a public that is informed and made aware of human rights issues can pressure their leaders to promote human rights. NGOs, IGOs and the media play a critical role in the areas of research, documentation, education and lobbying. In many cases, little would be achieved without these groups playing these roles.  

G L O B A L E N V I R O  

P R O T E C TI O N 

 IMPORTANT LEGISLATION 

Environment Protection and Biodiversity Conservation Act 1999 (Cth) Environmental Planning and Assessment Act 1979 (NSW) Protection of the Environment Operations Act 1997 (NSW) Convention on Wetlands of International Importance (1971) UN Convention on International Trade in Endangered Species of Wild Fauna and Flora (1975) UN Convention on the Law of the Sea (1982) Convention on the Conservation of Migratory Species of Wild Animals (1983) Vienna Convention for the Protection of the Ozone Layer (1985) and Montreal Protocol  UN Convention on Biological Diversity 1993 and Cartagena Protocol on Biosafety UN Framework Convention on Climate Change (1994) and Kyoto Protocol 

1. THE NATURE OF GLOBAL ENVIRONMENTAL PROTECTION 

 ⇒ 1.1 THE DEFINITION OF GLOBAL ENVIRONMENTAL 

PROTECTION o GEP and the law associated with this is concerned with the “protection 

of the natural environment and those aspects of the built environment recognised as world cultural heritage”  

o These involve - Ecosystems and their constituent parts, including people and 

communities - Natural and physical resources - The qualities and characteristics of locations, places and areas 

- Heritage value of places - Social, economic and cultural aspects of a thing  

o In order to evaluate GEP in terms of ecologically sustainable development we use 

- Precautionary Principle ● Where there are threats of serious of irreversible damage 

to the environment, lack of full scientific certainty shall not be used as a reason for postponing measures to prevent environmental degradation 

- Biodiversity ● If an action or a lack of an action affects biodiversity, then 

it is ineffective - Intergenerational equity 

● Refers to development that meets the needs of both the present and future generations. Current decision makers need to think about the future implications of their decisions. A failure to do this is therefore an ineffective response 

- Intragenerational equity  ● It is the fair and just treatment of people within a 

generation. o Current legal interpretations of what. Constitutes he environment 

reflect a gradual change in social attitudes o No longer does. the law focuses on landowner rights, they take a more 

holistic view of components, causes and. effects o The definition in the Environment Protection and Biodiversity 

Conservation Act 1999 (Cth) of environment is  - Ecosystems and their constituent parts, including people and 

communities - Natural and physical resources - The qualities and characteristics of locations, places and areas - The heritage values of places - The social, economic and cultural aspects of a thing mentioned. 

Above  ⇒ 1.2 THE DEVELOPMENT OF GLOBAL ENVIRONMENTAL 

LAW o Global environmental law did not exist prior to the Stockholm 

Convention in 1972  o Some nations had laws for the environment, but it did not address 

global environmental issues  o In the mid-1960s, GEP became a wider issue 

o Rapid population expansion and consumerism since WW2 started this concern 

o Environmental awareness began to increase markedly during the 1970s 

o During the 1970s there was an oil crisis that led to the development of the Organisation of the Petroleum Exporting Countries  

o The OPEC rose to prominence when it imposed an oil embargo in 1973 which triggered dramatic increases in the price of oil and caused growing concerns about. The reliance on non-renewable energy sources 

o Led to the realisation that unsustainable use of the environment would lead to exhaustion of fossil fuels 

o There was shift in the anthropological/ethnocentric view towards an ecological view  

o The effectiveness of this protection varies between states o On a global scale, regulations protecting the environment differ 

greatly o The United Nations Conference on the Human Environment 1972 

states that the natural resources of the earth including air, water, land, flora and fauna…and must be safeguarded for the benefit of the present and future generations  

o Intergenerational equity is the primary focus of environmental lawyers o Environmental law attempts to  

- Resolve ongoing and longstanding environmental problems - Address new problems that are constantly emerging  

o LOCAL ACTIVISM AND DOMESTIC LEGISLATION - Localised. Issues generally form the basis for community 

reaction. And pressure - Any event that impacts on a person’s day-to-day life can prompt 

them to take action - Concern about pollution begins after seeing real life results - Domestic legislation emerged in the 1970s in Australia - Environmental Planning and Assessment Act 1979 (NSW) or 

Environment Protection and Biodiversity Conservation Act 1999 (Cth) 

- ‘Green’ politics emerged 1970s causing environment, govt. imp. o INTERNATIONAL CONFERENCES AND TREATIES 

- Social changes and high-profile pollution and ecosystem disasters created a push for change which led to emergence of international conferences and multilateral treaties 

- The 1972 Stockholm conference was the first one to address broadly define environmental issues 

- There is a conference every 10 years now that holds a global environmental focus  

 ⇒ 1.3 THE NEED FOR GLOBAL ENVIRONMENTAL 

PROTECTION o ENVIRONMENTAL IMPACT OF CONSUMPTION AND 

DEVELOPMENT  - Human activities have global dimensions - 1 million hectares of forest are cleared per year in Indonesia - The effects of this deforestation include the removal of a major 

by which carbon dioxide build-up in the atmosphere is minimised  

- Many toxins go into landfill  - UN Environment Programme estimates that 50 million tonnes of 

electronic waste containing chemicals are discarded each year - Consumerism is a very prevalent issue in society when assessing 

the need for GEP - Because technology is evolving so rapidly, there is a challenge 

inn integrating environmental protection measures as they could hinder economic growth  

o INTERDEPENDENCE AND COOPERATION - Nations must cooperate if there is to be a comprehensive 

response to the need for GEP - There must be a mutual dependence on each sovereign nation - Some countries are hesitant due to the economic ramifications 

which discourages other nations, therefore there is no cooperation for GEP 

- Report from Marine Nation 2025 said the oceans contributed to $44 billion to Australia’s GDP in 2013 

o What remains without a global approach is a piecemeal nation – state approach which does not address issues to do with global commons 

o Global commons are the earth’s unowned natural resources, such as the oceans, Earth’s atmosphere, and outer space 

o No one is responsible for their upkeep and protection o Each country produces toxins and emissions that affect the 

atmosphere  o Many countries have laws about emissions (Clean Air Act 1972 (NZ), 

1956 (UK) and 1963 (USA)  o To protect the atmosphere all countries need to legislate to provide 

emission targets and standards as well as consequences o Global attempts include the Kyoto Protocol (1995) which is a legally 

binding piece of international law that sets targets for emissions  

o Kyoto is aimed at reductions in CO2 emissions o Some countries have withdrawn and not ratified it making it more 

ineffective    

⇒ 1.4 THE IMPORTANCE OF ECOLOGICALLY SUSTAINABLE DEVELOPMENT: BIODIVERSITY, INTERGENERATIONNAL EQUITY, INTRAGENERATIONAL EQUITY, THE PRECAUTIONARY PRINCIPLE 

o ORIGINS - In 1983 the UN asked a commission to study the consequences 

of environmental degradation on economic and social development  

- An influential report in 1987 called Our Common Future was produced about tackling the problems of environmental degradation 

- In order to achieve ecologically sustainable development (ESD) both individuals’ lifestyles and governments’ policies regarding humans’ environmental impact would have to change 

o CENTRAL PRINCIPLES OF ESD - 4 principles of ESD are found in agreements produced by Rio 

Conference these include biodiversity, intergenerational equity, intragenerational equity and precautionary principle 

 - BIODIVERSITY 

● Biological diversity is the variety of life forms within an ecosystem, a biome or the planet 

● The complete range of types that are possible within an ecosystem  

● It is important for agricultures they can better withstand disasters  

● Diverse ecosystems, species and habitats are more sustainable over the long term  

● A variety of genes is important ● The UN Convention on Biological Diversity sets out three 

main goals ● Conservation of biological diversity, sustainable use of 

resources, and the fair and equitable sharing of the benefits from the use of genetic resources 

- INTERGENERATIONAL EQUITY  ● It is the equality between generations 

● The idea that ecosystems and the environment should not be passed on in any worse condition from one generation to the next 

● It must meet the needs of both present and future generations, reflecting the idea that the decision-makers at a particular time – as well as the individual consumers and citizens at that time have a responsibility to those who will be living in the future 

- INTRAGENETATIONAL EQUITY  ● It refers to the fair and just treatment of groups of people 

within a generation. It is accomplished through policies that endeavour to raise the standard of living of disadvantaged peoples and nations and to ensure that the management and use of the environment does not exploit them 

● Individuals cooperate in eradicating. Poverty as a necessary condition of sustainable development  

● They have a duty to reduce and eliminate wasteful patterns of production and consumption 

● International actions involving the environment should address the interests and needs of all countries and refer to the special situations and needs of all developing countries 

- PRECAUTIONARY PRINCIPLE ● Where there are threats of serious or irreversible 

damage, lack of full scientific certainty shall not be sued as a reason for postponing … measures to prevent environmental degradation 

● When an activity raises the risk of serious harm, but there is uncertainty about how likely the risk and how serious the harm, a cautious approach is the best way to avoid that harm 

● It also refers to omissions, or the refusal to act 

2. REPONSES TO GLOBAL ENVIRONMENTAL PROTECTION 

 

⇒ 2.1 THE ROLE OF THE NATION STATE AND STATE SOVEREIGNTY 

o A state has a defined border and population and is recognised as a single entity 

o State sovereignty is the implicit recognition under international law that a state has authority over its citizens and territory and can govern itself 

o States will consent to behave in a particular way because it is in their interest 

o International environmental protection is crucial to the economy however, nations prioritise the economy over the environment 

o State sovereignty enables nations to implement international agreements, but also to reject them if they so chose 

 ⇒ 2.2 THE ROLE OF THE UNITED NATIONS 

o Several programs in the UN have been devised to deal with environmental issues 

o The main ones include Food and Agriculture Organisation, United Nations Development Programme and the International Maritime Organisation 

 o UNITED NATIONNS ENVIRONMENT PROGRAMME (UNEP) 

- Established in 1972 after the Stockholm Conference - It aims to address the interlinkages. Between the economic, 

social and environmental dimensions to ensure a more sustainable future 

- It encompasses ● Assessing global, regional and national environmental 

conditions and trends ● Developing international and national instruments and 

guidelines ● Acting as an advocate and educator, both within the UN 

and with international organisations, national governments, NGSs, private corporations and society 

● Assisting the transfer of knowledge and technology for sustainable development 

● Hosting several environmental convention secretariats   

o INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE (IPCC) - Open to all UN members of WMO - IPCC involves reviewing and assessing the most recent scientific 

information from around the world relating to climate change 

- It does not conduct the research, just brings it to the people  

o UNESCO - Primary function is to promote international dialogue and 

cooperation in the fields of science, communication, education and culture 

- Focuses on promoting sustainable development and biodiversity along with overcoming poverty and preserving cultural heritage  

 ⇒ 2.3 THE ROLE OF INTERNATIONAL INSTRUMENTS 

o International instruments are documents setting out commitments or obligations of states and sometimes other parties such as international organisations 

 

o They are classified as either hard law or soft law o Hard law has legally binding consequence  o Soft law imposes moral obligations on states  o A protocol is a negotiated instrument that supplements a treaty or 

agreement o It contains specific actions to be taken to fulfil the terms of the treaty  o The Montreal Protocol is an addition to the Vienna Convention on the 

Protection of the Ozone Layer o Kyoto Protocol is an addition to the UN Framework Convention on 

Climate Change o Most international agreements despite being termed ‘hard’ have 

become weak compliance mechanisms (with the exception of the Montreal Protocol 

o A treaty or protocol may contain enforcement mechanisms, but their effectiveness is questionable  

o States’ ability to exercise their sovereignty will sometimes mean that a country will refuse to comply with its international obligations  

 ⇒ 2.4 THE ROLE OF COURTS AND CONFERENCES 

o COURTS - Before the UN and the ICJ there was no court or tribunal in place 

to settle environmental conflicts between states ● In 1928 and 1935 US and Canada referred to a matter to 

the International Joint Commission ● It involved a sulphur dioxide emission from a zinc and 

lead smelter located in the town of Trail ● Canada was required to pay damages to Washington 

and in 1935, the two parties decided to enact a special agreement or ‘convention’ for the settlement of difficulties arising from smelter operation 

● The Trail Smelter Case (US vs. Canada) 1941 highlights the responsibilities of neighbouring states for damage caused by transboundary pollution 

- With the establishment of the ICJ, a form for such disputes did not rely on a creation of an ad hoc for each and every environmental dispute 

- Only states can be parties to a case before the ICJ - ICJ can decides a case only where the parties to a dispute have 

consented to its jurisdiction, either by special agreement (treaty) or the state parties to the Statute of the International Court of Justice recognises its jurisdiction as compulsory in relation to any other state 

- Environmental disputes have dominated the ICJ 

- UN did not recognised importance of global environmental issues till 1993 when they established the Chamber for Environmental Disputes.  

- A problem with the ICJ is that its jurisdiction depends on whether two or more nation states have consented to be bound by it 

- The Ecuador vs. Columbia Aerial herbicide spraying case highlights how the judicial processes of the ICJ did promote a resolution considered acceptable by both parties 

- CASES THAT HAVE BEEN HEARD ● Nuclear Test Cases (1974-75) between Aus and NZ v 

France. It did not proceed to the merits stage ● Nauru v Australia (1992). Australia failed to. Remedy the 

damage caused by phosphate mining ● Australia v Japan in the Whaling Case (2013). ICJ ruled in 

Australia’s favour. Sydney Morning Herald on 17 July noted “After all of the papers and speeches, the case boils own to one question: is Japan’s Antarctic whaling allowed under the IWC’s scientific permit clause 

o CONFERENCES - Before 1972, international instruments were reactionary - Under the guidance of the UN the first international conference 

to focus on the global environment was organised in Stockholm 1972  

- The same mega conference has been held every decade to look at global environmental issues 

- Often relate to a particular treaty or convention - STOCKHOLM CONFERENCE 1972 

● According to the UNEP, conference’s main aim was to consider ‘the need for a common outlook and for common principles. To. Inspire and guide the peoples of the world in the preservation and enhancement of the human environment’ 

● Produced the Stockholm Declaration which is credited with providing the impetus for sustainability  

● Declarations have no binding effect, but they do have an undeniable moral force and provide practical guidance to states 

● Stockholm Declaration set out the following four key themes 

o States have a responsibility to manage their environment and they are accountable to their neighbours 

o All people have a right to an adequate environment  

o There is a need for intergenerational equity o There is a need for the international cooperation 

● Stockholm’s success lies in its foundations 

- NAIROBI CONFERENCE 1982 ● Urged ‘all governments and people of the world… to 

ensure. That. Our small planet is passed over to future generations in a condition which guarantees a life of human dignity for all’ 

 - RIO CONFERENCE 1992 

● Called a Earth Summit ● Hoped to produce a range of binding environmental 

agreements but the different perspectives made it difficult to reach any consensus 

● Rio produced the framework for domestic and international law aimed at GEP 

● The Rio Declaration and Agenda 21 came out of it ● They are comprehensive voluntary. Plans of action to 

help all levels of government work towards sustainable development  

- JOHANNESBURG 2002 ● Aim was to put the guidelines and framework into. 

Practice ● Focus was on establishing timelines and enforcement 

mechanisms ● Increased ratification of Kyoto occurred  

- RIO EARTH SUMMIT 2012 ● Did not do much, just said we need to act ● NGOs were unanimous in their condemnation of the 

conference outcomes  ⇒ 2.5 THE ROLE OF INTERGOVERNMENTAL 

ORGANISATIONS o IGOs are organisations were the members are nation states o UN is the largest IGO in the world o The European Union is an organisation made up of many of the 

countries of Europe and has developed an Environmental Section whose function is implementing environmental policies  

o The Organisation for Economic Cooperation and Development (OECD) has a primary focus on the economic growth, employment and living standards of its member nations 

o The Organisation of Petroleum Exporting Countries (OPEC) o The International Whaling Commission (IWC) 

- They established whaling moratoria   ⇒ 2.6 THE ROLE OF NON-GOVERNMENTAL 

ORGANISATIONS o NGOs are voluntary groups made up of individuals with a common 

interest 

o Do not rely on government funding and are therefore considered independent 

o International law does not recognise the rights of NGOs to participate in treaties or declarations 

o NGOs rely on applying political pressure to those in government o Greenpeace, WWF o NGOs encourage consumer boycotts and are effective in this way o Many NGOs are community based or local issues o They research and publicise environmental issues and educate the 

public  o Greenpeace in 1995 occupied the Brent Spar oil rig operated by Shell 

Oil in the North Sea led to public boycott and bans on disposing in the ocean 

 ⇒ 2.7 THE ROLE OF THE MEDIA 

o Media is one of the most powerful forces o Has the potential to shape popular opinion and determine it o Plays a large role in the protection and degradation of the 

environment  o Media encourage exploitation by promoting mass consumption o Also has positive role o It can inform people about the ill treatment of the earth  o Puts pressure on the governments o Power of the media was highlighted in the Franklin Dam protest 

movements of the early 1980s which culminated in the case Commonwealth v Tasmania 1983  

o The media was used to present their version of the situation and was successful 

 ⇒ 2.8 THE ROLE OF AUSTRALIA’S FEDERAL STRUCTURE 

o STATE POWERS AND LEGISLATION - Under the Australian constitution, the power to legislate on 

environmental issues can be considered a residual power (belongs to the states) 

- The creation of the NSW Land and Environment Court. In 1979 indicated a major shift in policy and direction 

- Many acts have been put in place ● Clean Air Act ● Clean Waters Act ● Pollution. Control Act ● The Heritage Act 1977 ● Pesticides Act 1999 ● Environmental Planning. And Assessment Act 1979 

o FEDERAL POWERS AND LEGISLATION - The main federal environmental law is the Environment 

Protection and Biodiversity Conservation. Act 1999 (Cth) - Provides the legal framework for the protection and 

management of nationally and internationally importance 

animals, plants, ecosystems and places as matters of national environmental significance 

o RELATIONSHIP BETWEEN FEDERAL AND STATE ENVIRONMENTAL LAW 

- Australia’s three-tiered system (federal, state and local) has resulted in fragmentation of environmental authority 

- The IGAS set out. The agreed areas of responsibility between Commonwealth and all state and territory governments 

- In 2007 the federal and NSW governments signed a bilateral agreement which allows for the Commonwealth to accept an. Environmental assessment done by the state  

 

 3. REPONSES TO GLOBAL 

ENVIRONMENTAL PROTECTION 

 ⇒ 3.1 THE ROLE OF THE LAW IN RELATION TO GLOBAL 

THREATS TO THE ENVIRONMENT o Laws aim to prevent, mitigating or remedying damage that human 

activities have caused to the environment o Law must encourage cooperation and resolve conflicts between 

parties o A treaty must be implemented into Australian law for there to be any 

effect o Effectiveness is lessened by state sovereignty o Voluntary nature of int. law and the difficulty of enforcement means 

effectiveness is diminished 

Federal government powers include international agreements, customs and quarantine 

   

  State governments powers include forestry, fisheries, waste management and pollution control 

 

    Local government powers include building controls and zoning 

o Int. law is importance because it sets guiding principles o REALLY effective when incorporated into domestic law o Domestic laws can be developed to incorporate principles of 

international law o Domestic laws are enforceable and act as an incentive for companies 

and individuals to protect the environment o Trans-border pollution is more complex and require international law 

 

   

o International law works most effectively when it is not only directly implemented by domestic law but also supported by domestic initiatives. The failure of the Rio Summit to produce any hard law. Commitments highlights the role of sovereignty and the ‘consensus theory’ in the formulation of global, holistic international initiatives aimed at addressing global environmental threats 

 ⇒ 3.2 LEGAL RESPONSES TO CONFLICT BETWEEN THE 

DEMAND FOR RESOURCES AND GEP o Includes international and domestic law and the ICJ o A resource is a source of supply from which benefit is produced o This could include natural resources and human resources o NON-RENEWABLE RESOURCES 

- Cannot be replaces quick enough in relation to demand  - Examples include fossil fuels, fishing grounds, old growth forests, 

uranium and helium o RENEWABLE RESOURCES 

- Those that can be replenished by natural or human management and therefore useable for future generations  

- Examples include wind and solar energy, fish farms and forest plantations  

o The need to resolve conflict between resource use and global environmental protection is at the core of sustainable development  

o The legal system must take into account an enormous range of competing interests (developers, financial institutions, NGOs, corporations, governments and future generations) 

o Resource consumption has increased due to a number of factors 

ISSUE  INTERNATIONAL LAW  AUS. DOMESTIC LAW Biological Diversity  Convention on Biological 

Diversity (1992) Environmental Protection and Biodiversity Conservation Act 1999 (Cth) 

Marin Pollution  International Convention for the Prevention of Pollution by Ships (1973) 

Protection of the Environment Act 1983 (Cth) Environmental Protection Act 1981 (Cth) 

- Increased global population - Increased GDP in countries with large populations - Increased consumerism and development in these countries with 

wealth creation o The use of resources is regulated in relation to damage to the 

environment (Kyoto sets limits on GHG emissions) o Whilst not stopping the use of coal (Australia approving Adani) it is a 

way for government to be forces to find other renewable sources of energy if it is to meet the target reductions, therefore more countries are using solar and wind as sources of energy rather than coal 

o However, there are issues with state sovereignty in having countries take this matter on board  

o United Nations Conference on Sustainable Development held in Rio in 2012 aimed to: 

- Secure renewed political commitment for sustainable development 

- Assess the progress and implementation gaps in meeting previous commitments 

- Address new and emerging challenges o CASE EXAMPLE 

- Mining (resource extraction) ● A flood of toxic chemicals were released into the Ok Tedi 

River from a failed tailings dam which killed fish or was eaten by local residents 

● Local villagers took Ok Tedi Mining and BHP toi court over the damages 

● An out of court settlement was made of $28 million and ordered rehabilitation of the contaminated site 

● The site closed in 2012 and until its closure was still leaking chemicals into the river 

● Experts estimate that it may take 300 years to remove all contaminates from the area  

- Gulf of Mexico Oil Spill ● Oil spill in the Gulf of Mexico in 2010 where a well head 

blowout caused 4.9 million barrels of oil to flow into the gulf 

● Rig operators were responsible for paying $4.525 billion in fines and other payments 

● Final settlement is not expected until 2014 and charges were laid under the US’s Clear Water Act 

● The response by the law to this case was very resource efficient especially when used in comparison to the next case 

● It also afforded restoration and clean-up of the damage to the environment  

- Exxon Valdez Oil Spill 1989 ● Tanker Exxon Valdez ran aground where 370000 tonnes 

of crude oil spilled into the pristine waters 

● Exxon blamed the Captain; however, the ship had failed to repair the broken radar which would have alerted any potential collision 

● There were numerous appeals through the US court system against the original damages which were substantial  

● Exxon argued the amount as they said it was an accident  ● An example of the impact was widespread reduction in 

salmon in the area, which was a main source of income to the local fisherman 

● The total amount of damages by the end of the legal processes does not reflect the loss and impact of the spill 

● In terms of resource efficiently this case does not show the efficiency of the US courts especially its appeals 

● Sceptics believes that Exxon used its considerable wealth to influence the court 

● Due to the size of the company individuals were up against, the only way they could access the legal system was through class action, therefore accessibility was limited as Exxon could afford to extend legal proceedings as they had unlimited financial resources to do so 

● Other legal responses include the Oil Pollution Act of 1990 (US) which included a clause that prohibits any vessel that after March 1989 has caused an oil spill of more than 1 million gallons in any marine area, from operating in Prince William Sound  

● Inn April 1998 Exxon argued in a legal action against the Federal government  

● Exxon claimed OPA was a regulation that was unfairly directed at Exxon alone 

● Whilst this is a good response by the US, the fact that from 1989 to 2002 there were 18 ships that had spilled over 1 million gallons of oil is concerning  

● This is more than1 ship a year spilling more than a million gallons of oil into the ocean   

 ⇒ 3.3 AUSTRALIA’S RESPONSES TO INTERNATIONAL 

INITIATIVES FOR GEP o Australia has traditionally been proactive in its GEP responses o Under the division of power, the states have responsibility for the 

environment  o But as seen in the Tasmanian Dam Case, the federal government can 

use its external affairs power to implement international obligations o Australia is influences by both hard and soft law as well as the 

conferences and findings of IGO o AUSTRALIA HAS RESPONDED BY 

- Being a signatory to many international laws created 

- Taking matters to international courts and tribunals (ICJ – Aus vs. France) 

- Developed the commission for the conservation of southern bluefin tuna 

- Member of the international whaling Commission (IWC) - Created NSW Land and Environment court - Created vast amounts of domestic legislation from international 

law - Proposed various sites for the world heritage listing including 

Great Barrier Reef, Lord Howe Island - Created national parks, state parks and marine parks - Federal court and federal circuit court have jurisdiction over 

commonwealth environmental laws - Cites was ratifies by Australia in 1976 and enacted in the Wildlife 

Protection Act 1982 (Cth) - Ramsar Convention Environment Protection and Biodiversity 

Conservation Act 1999 (Cth) in conjunction with the National Framework and Guidance for describing the ecological character of Australia’s Ramsar wetlands 

- Biodiversity Convention was ratified by Australian in 1993 and enacted as the Environment Protection and Biodiversity Conservation Act 1999 (Cth) 

- UN Climate Change Convention and Kyoto Protocol was ratified UNCCC in 1994 and Kyoto in 2007 – enacted as the Carbon Tax 2012 however the Abbot government repealed the carbon tac and replaced it with ‘direct action’ policy passed by the government in November 2014 

- Montreal Protocol was ratified in 1989 with the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (Cth) 

o ISSUES FOR AUSTRALIAN RESPONSES - NGO’s play an important role in advocating and placing 

pressure on government in relation to environmental issues - Citizens and community representatives also contribute to this 

pressure - However, like the government, individuals are also concerned 

about jobs and employment  o One important key to responding to global issues is for nations to 

think beyond issues that directly effect its citizens (better at responding locally) 

o Tensions between sovereignty and international environmental protection may need to be addresses by governments recognising that they interest are linked at a global level and by particular threats 

o For Australia, given out coastal environment, global warming and rising sea levels may present immediate and urgent threats 

-   ⇒ 3.4 BARRIERS TO ACHIEVING AN INTERNATIONAL 

RESPONSE TO GEP 

Barrier of State Sovereignty Issues/examples Kyoto Protocol USA has not signed & Canada withdrew

despite being heavy GHG emitters. Developing nations don’t have to meet target reductions and can increase GHGs in line with development. – What constitutes a developing country?? China?? What are TNCs doing and how are they using this as a loophole to continue cheap production in developing nations without env. controls.

CITES Penalties are lower than money than can be made smuggling endangered wildlife. Lack of unified approach globally in terms of penalties, training of border security staff etc

International Whaling. Commission (IWC) Allows some nation states to continue whaling including Japan – for scientific purposes. Japan offers financial support countries to join IWC and vote in line with them to continue practise of whaling. Marine sanctuary of Southern Ocean overridden by Japan & IWC. Aust v Japan ICJ (2013), but Japan proposing ignoring ruling and beginning whaling again.

Domestic Agencies e.g LEC NSW Variation of severity of penalties in different countries therefore not unified global approach. CITES cases, Greentree case

ICJ • Only nation states can take matters to the ICJ

• All parties must recognise the authority of the ICJ for the case to proceed

• Cannot investigate an issue without a nation state taking the matter to the ICJ

• Has a very general jurisdiction unlike the International Tribunal on the Law of the Sea (ITLOS) which is more specific, but all parties need to agree to the authority of that tribunal too

Example: Australia v France & NZ v France

International Tribunal on the Law of the Seas

• All parties in the dispute must recognise the authority of the court prior to or during the commencement of the trial

• Heard 20 cases since inauguration (1996 – 18 years)

• Very specific (doesn’t include ocean sea floor/bed)

• Open to more than state parties Example: SOUTHERN BLUEFIN TUNA CASES (PROVISIONAL MEASURES) (Australia and New Zealand v. Japan) 1999

Common law nation states choosing which elements to enact

Great Barrier Reef – world heritage site – Australia created the Great Barrier Reef Marine Park Authority; however this authority has limited jurisdiction over the matters that occur within the boundaries of the reef. For example: the expansion of Abbot Point Port in Far North Queensland for coal shipment and the creation of Carmichael Mine which will see an additional 600 vessels travel through the marine park. And: The Kyoto Protocol set targets for the reduction of greenhouse gas emissions, but Australia has only focused on CO2 emission reduction with responses like the carbon tax.

Australia • Howard government refused to sign the Kyoto protocol – Rudd signed in 2008 so now we have a legal obligation to reduce emissions – Gillard govt created carbon tax as way of meeting targets

• Abbott govt (2013 - ) Repealing Carbon Tax to be replaced by the Direct-Action Plan (Commonwealth Department of Environment – Minister)

• Allowing logging in old growth forests in Tasmania (2014) (Abbott)

• Removing the existence of the office of Climate Change

o A key barrier to achieving international environmental protection is 

resolving the tension between the need for coordinated action and states wished to protect their own interests. It is universally recognised that deep cuts in greenhouse gas emissions must be made, but who should shoulder the burden? Developing and industrialised countries have different view on what is fair. Frequently, in order to simply get a global response, conditions and enforcement mechanisms are watered down.

• Denying climate change exists (hence previous point)

• NSW allowing shooters into National Parks and recreational fishers into marine parks (deal between liberals & shooters party in election)

• Expansion of Abbot Point port to increase coal shipping through the GBR from FNQ (Galilee Basin, west of Bowen)

World Heritage Sites - Australia • Abbott applied for a minimal

reduction in world heritage site in Tasmania in 2014 – shows that UNESCO and World Heritage Committee can be applied to by Nation States not only to make a site, but to change and even declassify

Canada • Removed Carbon Trading Scheme

USA • Obama govt has proposed

widespread changes to emission targets – used executive power to bypass senate

Syria • World heritage site being destroyed

due to warfare

Afghanistan • Destruction of Buddas by Taliban

THEMES AND CHALLENGES GLOBAL ENVIRONMENTAL PROTECTION  The effect of state sovereignty on international cooperation and the resolution of conflict regarding environmental protection 

- Sovereignty plays a crucial role in determining nation-states’ cooperation with international initiatives 

- Sovereignty is a fundamental right of nation-states, as is clearly stated in Article 2 of the Charter of the United Nations 

- Nation-states may sign and ratify international agreements, but unless they incorporate them into the domestic arena, they are of little effect 

- International law aimed at environmental protection relies heavily on the willingness of nation-states to act in accordance with global needs, or their perception that it is in their own best interests to do so 

 Issues of compliance and non-compliance  

- The means of enforcing compliance with international agreements are limited - Without the enforcement mechanisms that exist at a domestic level, 

compliance at an international level often involves intense negotiations and compromise 

- The means of enforcing compliance are limited, yet enforcement is the cornerstone of the law’s effectiveness 

- Both individuals and nations decide to comply or not with the law depending on a range of factors, such as ethical considerations, fear of consequences, and what is in their best interests 

- Overcoming the effects of climate change by reducing greenhouse gas emissions is clearly in everyone’s best interests, but international compliance is limited by economic considerations 

- Differences in the circumstances of developed and developing nations means that they have different perceptions of a just and fair agreement that will limit industrial development 

 The effect of changing values on environmental protection 

- People’s attitudes towards environmental protection have changed radically over the past 50 years but these changes have certainly not been uniforming across the planet 

- Cultural characteristics as well as material and economic circumstances are different  

- Information about the environment has influenced these changes in values and attitudes 

- Environmental catastrophise, species extinction, dwindling resource supplies and pollution have a strong effect on people’s wellbeing 

- Communication technology and the media allow people to view events in distant locations and can strongly influence the way they view such issues 

- Social attitudes give rise to pressure placed on governments and businesses by voters and consumers to implement change  

- A major example of changing values is the emergence of ESD as the basis for environmental protection, particularly the idea of considering future generations when making decisions involving the environment. Since the GFC (global financial crisis) of 2008 there has been a shift in the priorities placed on global environmental protection as people feel that current economic concerns override the need to make allowances for future contingencies 

  The role of law reform in protecting the global environment  

- Scientific data indicate that there are significant reasons to change current practice, but the law reform process often reflects priorities that are inconsistent with such data 

- With respect to the environment, the process of law reform means that both domestic and international law must be continually updated to take into account factors such as:  

o  changing values that will influence government actions  o resource depletion and corresponding changes in the prices and 

markets for non-renewable resources  o the failure of existing law  o new technology 

 The effectiveness of legal and non-legal responses   

- The general objective of non-legal efforts towards global environmental protection is to influence the legal system 

- Non-legal efforts such as the campaigns of NGOs are generally more effective when they gain widespread community support so that genuine pressure can be placed on decision-makers (governments and corporations) to introduce measures aimed at protecting the environment 

- Agenda 21 is credited with being the blueprint for the 21st century, but it is only soft law 

- Some people consider it to be of immense importance as a guide, while others claim that it is impotent because it lacks any form of enforcement process 

- The effectiveness of international legal measures must be assessed according to their stated aims, for example whether they contain achievable targets 

S H E L T E R  

IMPORTANT LEGISLATION  Real Property Act 1900 (NSW) Conveyancing Act 1919 (NSW) Landlord and Tenant (Amendment) Act 1948 (NSW) Racial Discrimination Act 1975 (Cth) Anti-Discrimination Act 1977 (NSW) Landlord and Tenant (Rental Bonds) Act 1977 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Sex Discrimination Act 1984 (Cth) Australian Human Rights Commission Act 1986 (Cth) Privacy Act 1988 (Cth) 

Community Land Management Act 1989 (NSW) Crown Lands Act 1989 (NSW) Home Building Act 1989 (NSW) Privacy Amendment Act 1990 (Cth) Disability Discrimination Act 1992 (Cth)  

Housing Act 2001 (NSW) Age Discrimination Act 2004 (Cth) Retirement Villages Amendment Act 2008 (NSW) Commonwealth State Housing Agreement 2009 (Cth) National Consumer Credit Protection Act 2009 (Cth) Retirement Villages Regulation 2009 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Australian Consumer Law 2010 (Cth) Conveyancing (Sale of Land) Regulation 2010 (NSW) Residential Tenancies Act 2010 (NSW) Strata Scheme Management Act 2015 (NSW) Strata Scheme Development Act 2015 (NSW)  

1. THE NATURE OF SHELTER  ⇒DEFINITION OF SHELTER 

o Something that provides a cover or protection as from weather or danger or a place of refuge 

o It is a fundamental human right o Access to shelter is important to ensuring other essential human rights 

can be enjoyed o Shelter is 

- Safe - Secure - Protection from poverty - Provides identity - Provides for civil liberties 

o Physical and emotional wellbeing depends on shelter o There is no single area of the law that deals with everything to do with 

shelter o It is spread across a number of different areas of the law 

 ⇒ 1.1 RIGHT TO SHELTER 

o UDHR Art 5 states that everyone has the right to a ‘standard of living’ which includes housing that is adequate for the health and wellbeing of themselves and their family 

o This is not binding o There are some binding agreements in Australia o Article 11 of ICESCR recognises that every person has the right to 

adequate housing  o Council for Homeless People (CHP) is a NGO for homeless people o Arguments against shelter are that it is not government responsibility 

 ⇒ 1.2 OBLIGATION TO PROVIDE SHELTER 

o Human obligations are defined and guaranteed by international customary law and international human rights treaties, creating binding obligations on the states that have ratified treaties 

o Human rights include housing rights o They do not directly apply in Australian law although they may affect 

the development of common law, statutory interpretations and some aspects of administrative decision making 

o All people have a ‘legitimate expectation’ that admin decision makers (housing NSW) will act in accordance with Australia’s human rights obligations 

o Aus. Government have not looked at housing rights, nut instead provide welfare for people in need 

o This led to the inadequate funding and a failure to fix the widespread violations of the right to adequate housing  

o Governments have seen providing housing as a choice rather than a legal obligation 

o Different laws do not provide formal processes to protect  o DOMESTIC LAWS 

- Real Property Act 1900 (NSW) - Conveyancing Act 1919 (NSW) - Conveyancing (Sale of Land) Regulation 2005 (SW) - Environmental Planning and Assessing Act 1979 (NSW) - Auctioneers and Agents Act 1941 and 1992 (NSW) - Landlord and Tenant (Amendment) Act 1948 (NSW)  - Landlord and Tenant (Rental Bonds) Act 1977 (NSW) - Residential Tenancies Act 1987 (NSW) - Housing Act 2001 (NSW) 

o Issues concerning housing are the responsibility of both the Federal and State governments  

o Federal powers are limited under the Commonwealth Constitution s51 o Federal parliament has no direct powers to make laws about housing 

and can only do things through indirect power o Most laws for housing are made by states o Governments in Australia introduced policies and created against to 

assist disadvantaged (social housing) o NSW government provides and manages public housing through 

Housing NSW to enable those on a low income to obtain shelter o Legislation protects the rights of purchasers, vendors, landlords and 

tenants o UN Special Rapporteur on Adequate Housing 2014 found that there 

were some significant issues in fulfilling the ICESCR - Widespread issue of homelessness given out affluence - Issue of housing affordability - Fall in the amount of public housing available - Lack of legal protection for the most vulnerable members of 

society o Australia failed to implement its legal obligation  

⇒ 1.3 TYPES OF SHELTER o There are many different types of shelter o It can be categorised as housing that is acquired by individuals or 

provided by the government (private and public) o Many types exist and is usually determined by a person’s 

socioeconomic status, income, family size, age, disability and portability 

o FREEHOLD TITLE – is where the owner has the rights to control who occupies, can use and sell property. There are 3 ways of obtaining a house 

- Separate dwelling – owner lives in the house and owns the house and land; Real Property Act 1900 (NSW), Conveyancing Act 1991 (NSW) 

- Company title – a company is formed. Each owner only has a right to live in their unit.. Decisions about units shared spaces decided by a majority vote; Corporations Act 2001 (NSW) . No one really owns anything, the company does 

- Strata Scheme – owner can own and lease their own property. The Owners’ Corporation controls and manages shared space. Strata Scheme Management Act 1996 (NSW) 

o LEASEHOLD TITLE – the private landlord’s tenant has exclusive rights to occupy (can even exercise their right against the owner) 

- Private Rental Housing – Residential Tenancies Act 2010 (NSW0 - Share houses – multiple tenants in one house - Residential 

Tenancies Act 2010 (NSW)  - Fixed Residential Parks – caravan parks residents who rent a 

fixed caravan – Residential Parks Act 1998 (NSW)  o Housing NSW (Housing Act 2001) provides ‘social’ public housing – 

divided into public housing division and community housing division  - PUBLIC HOUSING DIVISION – public housing tenants (landlord 

is Housing NSW) – 85% of social housing  - COMMUNITY HOUSING DIVISSION – (NGOs that are registered 

under the Housing Regulation 2009 (NSW) Landlord is an NGO - other 15%  

● Non-government housing Associates – community housing tenants 

● Non-government cooperative societies – cooperative housing tenants 

● Non-government church-based agencies – community housing tenants 

o Contractual License – where individual ‘pays to stay’ but has non-exclusive right to occupy according to a regular Common Law Contract – Consumer Claims Act 1993 (NSW) 

- Lodgers – occupy a room in the owner’s house - Borders – a lodger with meals and services - Non-fixed residential park e.g. caravan park residents who own a 

caravan and park it on site for a few months  o These have not been as regulated but there is some improvement o The development of the Boarding Houses Act 2012 (NSW) covers 

boarders and lodgers, but not those in residential parks and holiday parks, which has addressed the fact that previously existing law didn’t protect these people very well  

o Retirement villages fall into all. The area mentioned above o ‘Aged Care’ facilities come under the Aged Care Act 1997 (Cth) o Non-contractual license – guest who only has permission to occupy 

not a right  o Squatters – trespasser who has no permission to occupy o Only have one proper right – that the owner uses only reasonable 

force to remove them o Racial title – government has the right to control who owns property  o The government (crown) has ultimate power to make laws that affect 

the ownership of land o Can also confiscate so long as compensation is paid ‘on just terms’ 

2. LEGAL PROTECTION AND REMEDIES WITH SECURING SHELTER 

 ⇒ 2.1 PURCHASING RIGHTS 

o SEPARATE DWELLING OR SHARED SPACE - They do not join onto other buildings - Shared space refers to properties that are not completely 

separate from the neighbours - Any shared space is known as common property - In a separate dwelling it is clear exactly what area belongs to the 

owner - Shared space requires strangers to share walls, stairwells, 

laundries, driveways and gardens - A home is likely to be the most expensive purchase people make 

in a lifetime - If things go wrong – the results can be tragic - Laws provide protection for both the vendor (seller) and the 

purchaser during exchanges involving property - There are standard contracts of sale - Real estate agents are regulated. In their practice - Solicitors (conveyancers) are trained to safeguard against issues 

that might be encountered - Office of Fair-Trading NSW has set up the Building Services 

Corporation (BSC_ with the aim of protecting consumers  o PRIVATE TREATY OR AUCTION 

- Only wo ways to purchase property - Auction – the auctioneer accepts the highest bid. Uses a stroke 

of the auctioneer’s mallet to close the deal - Private Treaty – sale negotiated directly between the purchaser 

and vendor with or without a real estate agent  o SYSTEMS OF REGISTRATION 

- The word title refers to the rights and control of ownership - If you have title over it, you own it and have the right to sell it or 

lease it - There are two systems of title 

● The ‘Old System’ (Original) 

● ‘Torrens’ title (invented because of problems with the old one  

- OLD SYSTEMS TITLE ● Old way of determining ownership in England ● Was passed on to the colony of NSW ● Under the Old System, the selling and buying of land 

created a ‘chain of ownership ● A deed would be drawn up when land was. Bought or 

sold ● Problems in include: ● If a deed was lost, proof of ownership was lost ● If a deed contained false info, it was invalid and again 

the chain was broken  - NEW SYSTEMS: TORRENS TITLE 

● Replaced old system in 1863 ● Est. in the Real Property Act 1900 ● Upon transfer of a property to a new owner the 

purchaser has the title registered at the Lands Title’s Office 

o CONTRACTS - Must be in writing and signed by both parties - Must set out the price and deposit and other standard details - Easements provide. legal right to access e.g. shared driveways - Covenants provide for the use of property in a restricted way - Generally, people can’t pay cash for a home and borrow the 

majority - Mortgages secure a loan as it is a security to pay a debt; handing 

over the title deeds to a property to a lender until a loan is repaid 

● Bank has the right of foreclosure - Info of the financial history of a loan applicant is obtained - Info is controlled by the Privacy Act 1988 (Cth), which limits the 

type of info available so that only relevant information is provided  

o PROTECTION OF BUYERS - Buyer is often the more vulnerable person - There are a number of legal protections put in place to protect 

buyers - The Contract  

● Standard. Contract for the sale of property is under the Conveyancing Act 1919  

● Says that both parties to a sale of a property must. Read and understand every detail in the contract before signing  

● Generally, once the contract is signed, the principle of caveat emptor (let the. buyer beware) applies 

● This means the buyer cannot take the issue to court if the situation turns out to be different than expected 

● If it is covered in the contract, it is assumed that both parties have agreed to it 

● There is some extra legislative protection under the Contracts Review Act 1980 (NSW) which allows the Supreme Court change things and cancel agreements  

- Gazumping ● This is when the vendor (seller) agrees to an offer from a. 

buyer (purchaser) BUT then accepts a higher offer from another buyer 

● This is good for the vendor but. Bad for the buyer ● RESULT: buyer could spend money searching, having 

survey plans drawn up, organising building inspections only to have the vendor sell it to someone else 

● The government tried to ban it by amending the Conveyancing Act 1919 (NSW) but it was unsuccessful  

● However, once contracts are exchanged, a five-day cooling off period gives the buyer a chance to back out after paying 0.25% of the. purchase price to the vendor 

 ⇒ 2.2 LEASING  

RIGHTS  OBLIGATIONS Beginning of a tenancy  

- Tenant cannot be discriminated against 

- Tenant cannot be charges more than four weeks rent as a rental bond  

 During the tenancy  

- Tenant has a right to privacy and the landlord must not interfere with the reasonable peace, comfort and privacy of the tenant 

- If the landlord does not do urgent repairs, the tenant may be able to arrange for the work to be done and be reimbursed  

Beginning of a tenancy - Tenant is required to complete 

their part of the condition report and return a copy to the landlord within 7 days 

  During the tenancy 

- Basic housework/maintenance  - Pay the rent on time - Seek the landlord’s written 

consent before sub-letting the premises 

    

  

- If the tenant believes that a rent increase is excessive, they can apply to the CTTT 

- Tenants are able to ‘sublet’ and a landlord cannot unreasonable refuse this 

 At the end of a tenancy 

- If the landlord is not complying with the terms, the tenant can end the lease early w/o penalty 

- The tenant can end the lease early on the grounds of ‘undue hardship’ 

- If the tenant does not owe the landlord money, the rental bond should be refunded in full 

- Where there is a ‘break fee’ in the agreement, all the tenant has to pay if they move out early 

- A tenant who disagrees with being listed on a ‘tenancy database’ can apply to the CTTT to get it removed/amended 

       At the end of a tenancy 

- When the tenancy signs a fixed term tenancy agreement, they are committing to stay for the full term 

- Breaking the tenancy agreement during the fixed term can be costly, tenant may have to pay rent until a new tenant is found or until the fixed period ends 

RIGHTS  OBLIGATIONS Beginning of a tenancy 

- As long as the landlord is not unlawfully discriminating, the landlord may rent to whoever they like 

- Additional terms can be added to the tenancy agreement  

- Rental bond can be requested from the tenant  

- Landlord can make a claim against the bond for certain reasons after the tenancy ends 

 During a tenancy 

- Landlord is only allowed to enter the premises at certain times for certain reasons and in most cases have to give the tenant notice 

  

Beginning of a tenancy - Fill out the condition report 

which is a record of the general condition of the property  

- Under the Environmental. Planning and Assessment Amendment (Smoke Alarm) Regulation 2006 the owner has to make sure the smoke alarms are installed 

    During a tenancy 

- Keep the premises in a reasonable state of repair, they also need to comply with building health and safety laws 

- Must give 60 days notice before increasing the rent  

 ⇒ 2.3 SECURING OTHER TYPES OF SHELTER 

o Other types of shelter include aged care, residential parks, squats, borders and lodgers 

o AGED CARE - The Treasury (intergenerational Report 2010) suggests that by 

2050 8.1 ,million people will be over 65 - Different types of aged care include Retirement Villages and 

Nursing Homes - RETIREMENT VILLAGES 

● Regulated by the Retirement Villages Act 1999) and the Regulation Retirement Village 2009 target retirees who can live independently 

● Residents may be owners or renters - NURSING HOME 

● Comes under Aged Care Act 1997 (Cth) which states how the cost and occupancy is arranged 

● Federal Government Department of Health and Ageing oversees residential aged care facilities 

● Constant challenge inn nursing homes is the quality of care 

● The Caring for Older Australian 2011 Report found several areas of ineffectiveness: difficult to navigate, limited services, lack of choice, financial side is inequitable 

- LEGISLATION ● Aged Care (Living Longer and Better) Act 2013 ● Aged Care (Bond Security) Amendment Act 2013 ● Australian Aged Case Quality Act 2013 

 At the end of a tenancy 

- If the rent is 14 days behind or more, landlord can serve the tenant with a termination notice 

- Landlord can apply to the CTTT for the tenant to be evicted if they have a history of paying the rent late 

- Landlord can ‘list’ a person on a tenancy database if the tenant breaches the tenancy agreement  

 At the end of a tenancy 

- If landlord wants the tenant to vacate, they must give the tenancy a termination notice which MUST be in writing  

- Minimum period of notice for termination is 14 days 

- Landlord must NOT list a tenant on the tenancy database unless they are advised in writing  

o RESIDENTIAL PARKS - Include caravan parks and manufactured home estates  - 2013, NSW government decided to change the name from 

residential parks to residential communities under the Residential (Land Lease) Communities Act 2013 

o SQUATS - Occupation of property without legal right to do so  - Under the Enclosed Lands Protection Act 1901 (NSW) it is illegal 

to enter enclosed lands without consent from the owner - Squats are pretty organised  - They are uncomfortable, insecure and even dangerous  - Squatters are trespassers and can be evicted by anyone who has 

possession of the property  - There are no legal rights for squatters - The Doctrine of ‘Adverse Possession’ allows a squatter who has 

been living there for 12 years AND the owner has no contract, to claim TITLE to the land 

 ⇒ 2.4 DISPUTE RESOLUTIION 

o COURTS - When buying or selling, a contract will specify the rights and 

obligations of the purchaser and vendor  - If one party fails to fulfil any of the obligations, the other party 

can sue for breach of contract - This is done before a court and the court can decide to force the 

person to fulfil their promises made in the contract OR to compensate the other person 

- Courts are more formal and have stricter rules to settle disputes - They are fairly expensive 

o TRIBUNALS - Tribunals are used extensively in dispute resolution for shelter 

issues - NCAT is the tribunal for shelter – formerly/formally known as the 

Consumer, Trader and Tenancy Tribunal (CTTT) - NCAT workload is divided into 

● Tenancy: represents majority of cases ● Social Housing: Tenant vs. Housing NSW ● Strata Scheme: Under Strata Schemes Management Act 

1996 ● Residential Parks: under Residential (Land Lease) 

Communities Act 2013 ● Residential Villages: regulated under the Department of 

Ageing and Aged Care - Initially mediation may be required - Then parties are required to use conciliation or attend a hearing - Tenancy makes up about 15% of the tribunal’s total workload - Most common dispute – renting  

- Legal help includes:  ● NSW Fair Trading ● Law Access (NSW) ● Tenants (NSW) 

- Discrimination Watch group Australia (2011) believes that CTTT was discriminating against tenants 

- Prevents Real Estate Agents from impartially representing their tenants’ rights 

- Agents are basically controlled by the landlord and fail to represent their tenants and uphold their rights  

o ALTERNATIVE DISPUTE RESOLUTION - Attempts to resolve any issues that are causing a dispute before 

the matter goes to a. hearing in court or tribunal - Two key methods: - MEDIATION: Process where parties voluntarily sit together with 

an independent and neutral - NEUTRAL EVALUATLON: similar to mediation but the evaluator 

takes a more active role. The evaluator can act as a guide to resolving the dispute by assessing the strengths and weaknesses of each party’s case 

o GOVERNMENNT ORGANISATIONS - NSW FAIR TRADING deals with: - Renting by providing information to tenants, landlords and real 

estate agents about their rights and responsibilities. They also fund some community organisations to provide advice and advocate/represent tenants. Rental bonds go through Fair Trading, but are held by the Rental Bond Board 

- Buying and selling as buyers can check if a Real Estate Agent or Conveyancer is properly licensed  

- Strata Schemes where Fair Trading provide info on anything to do with Strata Schemes (Management, solving disputes) 

- THE RENTAL BOND BOARD is the independent. Custodian of rental bonds paid by tenants to landlords for residential tenancies 

- Landlords must lodge tenants’ bond money with the Board - Fair Trading NSW deals directly with the day to day functions of 

the Board (lodgement process, refunds) - NSW DEPARTMENT OF PLANNING  

● Renovations are controlled by local councils ● Can reject plans if they contravene rules ● Home owners are not free to alter their home 

- HOUSING NSW ● Operates under the Housing Act 2001 ● Manages tenants in public housing  ● Funds. Community housing ● Provides rental assistance ● Administer the Mortgage Assistance Scheme  

o NON-GOVERNMENT ORGANISATIONS 

- Salvation Army and the Wesley City Mission provide emergency housing assistance for those who find themselves w/o shelter 

- The Council to Homeless Persons protects. Homeless people and people who are at risk of being homeless 

- The Tenant’s union was formed in NSW to advise tenants of their rights and help them if a dispute with Landlord is brought before the CTTT 

- The Real Estate Institute provides help to the owners of properties in NSW 

o MEDIA - Media and reports are on lots of different issues - The media plays a. counterproductive role when it comes to laws 

or issues - ‘Housing. Trashed by Tenants’ (Daily Telegraph 2011) - ‘NSW Public Housing Freeloaders Targeted’ (Daily Telegraph 

2013)     

  

3. CONTEMPORARY ISSUES CONCERNING SHELTER 

 ⇒ 3.1 AFFORDIBILITY  

o Refers to a person’s ability to pay for their housing  o Housing affordability is different to affordable housing  o Housing affordability has changed considerably since the 1980s o In the 80s, average house price was 3x average yearly earnings, now it 

is 12x o The ratio of housing debt to disposable income rose from 37% to 

189% in 2017 o Over 3.1 million mortgages households are currently experiencing 

mortgage stress o 1/200 houses in Sydney and 1/100 in Illawarra were affordable for low 

income earners o Bank West ‘Key Worker’ Housing Affordability Report (2011) found 

that “key workers” looking to buy a house couldn’t afford it o Sydney was the second most unaffordable city out of 400 cities in 9 

countries around the world o As house prices increase, so do rent prices o Housing market has a $4.2 trillion capital value  o Australian houses are ‘overvalued’ by 46% 

o ANZ estimates that there is a shortage of about 230,000 dwellings o GOVERNMENT POLICIES 

- Responsibility for supply of residential land and housing rests with the governments at all levels 

- Land release, zoning, planning and approvals, infrastructure o GOVERNMENT GETS IT WRONG 

- First Home Owners Grant was good inn theory - In reality the grants did not benefit the first home buyers but 

rather people selling to first home buyers - Supply of housing is also influenced by the huge amount of 

government revenue  ● Capital Gains Tax ● Stamp Duties ● Council Rates 

- These taxes are based on the property value and means government don’t want to make the changes to reduce the cost as they will lose money 

o Current tax policies and programs has distorted the residential property market substantially  

o Governments should look at whether the ‘negative gearing’ tax breaks are causing an unhealthy focus on housing as an investment 

o This leads to people owning multiple homes, removing them from the market and causing affordability issues 

o BETTER POLICIES - National Affordable Housing Agreement (NAHA) provides a 

framework for all different levels of government to  ● Improve housing affordability ● Reduce homelessness ● Reduce housing disadvantage for Indigenous people 

- NAHA is supported by the Commonwealth Specific Purpose Payment 

- National Rental Affordability Scheme (NRAS) provides tax incentives for people to build new homes that will rent out for lower prices 

o COMMONWEALTH GOVERNMENT HAS DONE - First Home Owner’s Savings Account - National Housing Affordability Fund (NHAS) 

National Rental Affordability Scheme (NRAS) - National Housing Minister was appointed - First Home Owner Grants (New Homes) Scheme - Commonwealth Rent Assistance 

o NSW BEREJIKLIAN GOVERNMENT  - Recognises housing affordability is biggest issue - Appoints former RBA governor Glenn Stevens to advise on 

housing affordability - Declares houses $50K cheaper because of govt. initiatives (gain 

of 42, 000 homes in 5.5 years since the Coalition took power) o NSW BAIRD GOVERNMENT  

- Established affordable housing find $1.1 billion fund - Attempted to introduce social housing policy 

o Majority of Australians aspire to home ownership o It should be an aspiration that through prudent management of 

household finances they are able to realise o Currently there is a significant problem with housing affordability in 

Australia  o In certain regions of the country the problem is particularly acute o Though much has been written on housing affordability in the 

Australia context, it has proved difficulty to secure agreement about the right much of responsibilities for housing policy among the various tiers of government and how best to address housing affordability 

o Affordability problems manifest in Australian cities o It is negative for economic productivity and competitiveness, social 

cohesion and environmental sustainability  o Government need to look at the consequences of the housing impacts 

of public policies that shape the future of our cities  ⇒ 3.2 HOMELESSNESS  

o There are shared community standards about the minimum housing that people have a right to expect according to the expectations of the community 

o The idea of homelessness therefore differs from country to country o Often the nature of homelessness is ‘under the radar’ and difficult to 

measure o Financial downturns can sometimes mean that people who have been 

financially secure in previous years may find themselves in crisis o In Australia we divide homelessness into categories into primary, 

secondary and tertiary o Primary Homelessness (roofless) – includes people without 

accommodation e.g. living on the streets, sleeping in parks, squatting, or using cars for temporary shelter 

o Secondary Homelessness – includes people moving between different types of temporary shelter e.g. people staying with friends or relatives, people in emergency accommodation provided under programs like the SAAP (supported accommodation assistance program), the NAHA (national affordable housing agreement) and SHS (specialist homelessness services) 

o Tertiary Homelessness – includes those people living in boarding houses (especially unregistered ones) on a medium to long-term basis (13+ weeks). These people do not have their own bathroom, kitchen or the security of tenure that ‘tenants’ have 

o The law relates to homelessness in a few different ways o Most importantly homelessness exposes a person to lots of legal 

interference, including criminal laws o POSITIVE – in NSW ‘vagrancy’, ‘drunkenness’ and a number of related 

offences were abolished by the Summary Offences (Repeal) Act 1999  

o NEGATIVE – homeless people remain highly visible to police and are particularly likely to be the subject of criminal proceedings. ‘No home, no justice’ report 2005 found that homeless people were more than twice as likely as persons with housing to have experiences a criminal law problem  

o In 2013 the government decided to widen its definition of ‘homelessness’ to include people who don’t have a safe place to live e.g. people living in crisis accommodation 

o Via the Homelessness Bill 2013 (Cth)  o However, this Bill was criticised as “a piece of shoddy legislation that 

achieve on serious public policy objective beyond defining homelessness and expressing aspirations that a broke government can’t pay for  

o This bill never resulted in the legislation being passed – the bill lapsed in November 2013 

o As a result of getting more people off the streets there is extreme overcrowding in temporary accommodation as it has increased 400% 

o Supported Accommodation Assistance Program (SAAP) funds NGOs to provide accommodation to homeless people and those at risk 

o Government funded homelessness agencies are operating at FULL capacity 

o In recent political times, there is great attention on homeless people o In 2008, the Federal Government released the white paper, ‘The Road 

Home’  - It was a national plan to deal with homelessness - It added an extra $1.1 billion over the following four years - It was a 12 year plan to halve homelessness by 2020 - It has not been achieved yet - It was to be achieved by three strategies 

● Turning off the tap: intervene early to prevent homelessness, including a policy of “no exits into homelessness” from prison, hospital and mental health services 

● Improving services: homeless people will spend less time in emergency accommodation with the focus on moving them into long-term housing  

● Breaking the cycle: an increase in the availability of affordable housing will attack homelessness in the long-term 

o While the government provides funding and programs for homelessness the actual provision of services is mainly provided by the community and NGOs 

o NGOs play an important role in helping homeless people o Media can be negative when addressing homelessness  o At the same time, it can be positive and getting the word out about 

the extent of homelessness in Australia  o As there are Indigenous kinship groups it is hard to tell how many 

indigenous people are really homeless 

o Indigenous people experience high rates of secondary homelessness in which people make use of others’ homes 

- Causes overcrowding which breaks lease requirements  o Indigenous people are unlikely to live on their own and are more likely 

to rely on government or social housing to live  

⇒ 3.3 SOCIAL HOUSING  o Includes:  

- Public housing - Community housing  - Cooperative housing 

o Provisions are under the Housing Act 2001 (NSW) which through the Land and Housing Corporation regulates public housing in NSW 

 HOUSING ACT 2001 

 o Social housing is one mechanism used by Local, State and 

Commonwealth Governments to respond to the housing affordability problem in NSW 

o ‘Social Housing’ in NSW is divided into 3 subsectors: - Public housing – about 130, 000 properties managed by 

Housing NSW and about 85% of social housing in NSW - Community housing - about 21, 000 dwellings managed by 

non-profit community housing organisations and about 15% of social housing in NSW 

- Aboriginal housing – about 9,000 dwellings (note this is not in the syllabus but cooperative housing is) – an example of this is Coomaditchie in Port Kembla 

 

Public Housing Division  Community Housing Division NGOs that are registered under the Housing Regulation 2009 

Public Housing Tenants   

 Landlord is Housing NSW  Landlord is NGO Makes up about 85% of those in Social Housing 

Makes up about 15% of those in Social Housing Government is moving towards community housing replacing the ‘old-fashioned- public housing  

Non-government Housing Associations 

Non-Government Cooperative Societies 

Non-government Church-based Agencies 

Community Housing Tenants 

Cooperative Housing Tenants 

Community Housing Tenants 

o PUBLIC HOUSING   - Historically it was aimed at providing affordable properties to 

low- and middle-income working families so workers could live closer to their workplace and the government could subsidise the rent/accommodation 

- In the 80s, the Housing Commission refocused its housing priorities 

- Now the focus has changed towards households with special needs or in challenging circumstances 

- Households in social housing now generally: ● Have VERY low incomes ● Have other special needs ● Receive a government pension as their MAIN source of 

income (97%) - There is a waiting list (NSW Housing Register) which is based on 

the level and type of need of the household - Generally, social housing providers will house clients in the 

following order ● People approved for emergency temporary 

accommodation ● People approved for priority housing  ● Elderly people  ● Everyone else in order you came onto the list 

o 2009 The National Affordable Housing Agreement (NAHA) with the aim to improve housing affordability, reduce homelessness and reduce housing disadvantage for indigenous people. Part of this agreement was for the States to improve their social housing systems (extra $6.2 billion for this) 

o 2010 Housing NSW launched a program called Housing pathways to simplify the social housing waiting list system. Under Housing Pathways, a single State wide waiting list has been created for both public and community housing. This combines the separate waiting lists into one 

o Direct response: 2008 stimulus package which aimed to increase the supply of Social Housing ($5 billion)  

o Indirect response: 2007, the Commonwealth government introduced the ‘National Rental Affordability Scheme’ (NRAS). Aim was to increase the supply of new affordable rental dwellings 

o Each state has its own public housing authority  o In NSW this is Housing NSW which operates under the Housing Act 

2001and manages all issues to do with public housing - It provides money for building and repairs - It decides on whether applicants are eligible 

o The rights and responsibilities of the government as landlord and of the tenant are covered by the RTA 2010 

o Any disputes between the landlord and tenant are dealt with by the Social Housing Division of the CTTT 

 

o ISSUES AND INEFFECTIVENESS - The NSW government announced controversial reforms called 

‘Reshaping Public Housing’ in 2005 which aimed to: ● End the policy of “public housing for life” ● Allocate all public housing to those with the strongest 

housing need - This followed some negative media from members of the 

government about the public housing system that caused further damage to the system and its image 

- These changes were criticised for inequity and ineffectiveness - Critics pointed out that public housing is already targeted to the 

poorest people  - The government’s policy has been to meet the needs of the 

most disadvantaged applicants and then encourage them to move back into the private housing market when their situation improves 

- Tenants have said that this approach leads to lower quality of life for people living in public housing ‘estates’ 

- The View from the Estates, Shelter NSW 2011 – suggested a mix of people with different needs in public housing estates so that it isn’t a breeding ground for hopelessness 

- Between 2000 and 2010, NSW saw a 7.3% decrease in the supply of public housing  

- There were more than 225, 000 households on the waiting list for social housing  

- NSW Ombudsman has found that people at risk of losing their rental properties are being provided with public housing and are then evicted from their public housing for the VERY SAME REASONS that made them eligible for public housing  

- There is a stigma around public housing - Community perceptions of the public housing system have 

changed - Image of public housing sector in the wider community is 

generally negative - The idea that public housing has in the government and the 

community is of poorly maintained houses with difficult tenants - This means that when a government wants to build new public 

housing estates, the local residents fight the decision - Media often covers public housing negatively  

 ⇒ 3.4 DISCRIMINATION 

o Discrimination against people seeking shelter is an issue that has received some attention in recent years, especially given: 

- The current rental market - A general change in values towards equal opportunities in all 

areas of life – not just the workplace 

o If there is evidence to prove that a person misses out on a rental property because of discrimination by a landlord, they are in breach of the Anti-Discrimination Act 1977 (NSW) 

o The vendor/agent/landlord may: - Refuse the person’s application for accommodation; offer the 

person accommodation on less favourable terms - Evict the person or subject the person to other detriment  

o The Anti-Discrimination Act 1977 (Cth) makes it unlawful to discriminate on certain grounds e.g. race, age, gender, disability 

o It is unlawful to discriminate where a person is treated. Less favourably on grounds that relate to an ‘associate’ of the person – for example: a landlord giving notice of termination because the tenant’s boyfriend was Aboriginal 

o There are some areas which contain exemptions where you can discriminate: 

- Special services or facilities would be required by the person with a disability  

- Providing those services of facilities would cause an ‘unjustified hardship’ to the accommodation provider 

o The Anti-Discrimination Board (ADB) investigates and conciliates complaints under the Act 

o The Equal Opportunity Division of the Administrative Decisions Tribunal (ADT) will hear cases of alleged discrimination and has the power to fine the offender 

o At a Commonwealth level there is a suite of antidiscrimination legislation, which applies Australia wide: 

- Racial Discrimination Act 1975 - Sex Discrimination Act 1984 - Disability Discrimination Act 1992 - Age Discrimination Act 2004 

o The Australian HR Commission investigates and conciliates complaints made under these laws 

o INDIRECT DISCRIMINATION – causes of direct discrimination are increasing rare 

- A more common form of discrimination is indirect discrimination - It occurs when there is a requirement that is the same for 

everyone BUT which has an unequal effect on particularly groups - Examples include 

● Having an across the board ‘no pets’ policy which excludes tenants who have service dogs 

● Requiring all applicants to have a proven rental history for a minimum of years, which could exclude young people from trying to rent a property  

o AREAS OF INEFFECTIVENESS - Inadequate legal protection of private rental tenants 

● Shelter NSW has expressed serious concerns about the ability of landlords to hide discriminatory actions 

● Residential Tenancies Act 2010 continues to allow landlords to terminate tenancy agreements without grounds 

● this means that a landlord may choose to evict a tenant on the grounds of discrimination but a. ‘without grounds’ eviction notice can camouflage this 

- Difficulties in proving discrimination  ● Due to the indirect nature of a lot of discrimination that 

happens in regards to shelter, it is very difficult for people who are trying to asset their rights under the anti-discrimination legislation 

● Often due to the lack of black and white evidence and confusion between actions of the landlord 

- Fears of retaliation ● People who have experienced discrimination can be 

reluctant to lodge complaints due to fear of victimisation ● A person who has been discriminated against might fear 

backlash from other real estate agents and landlords in that area “Don’t rent to her” 

● There are reports of real estate agents falsely informing Aboriginal applicants for tenancies that the. advertises properties are no longer available and then showing them to others[ 

● This puts Indigenous Australians at further risk of homelessness  

o The original Sex Discrimination Act didn’t ban discrimination based on sexual orientation, so in 2013, the government changed this and introduced the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013  

o Pauline Hanson’s Muslim ban was proved to be illegal                    

          

THEMES AND CHALLENGES SHELTER  The role of the law in encouraging cooperation and resolving conflict in regard to shelter 

- International law sets international benchmarks with respect to the rights of shelter and encourages states to work proactively in providing adequate and affordable shelter 

- The legislative framework that exists with respect to purchasing shelter and leasing is ultimately aimed at encouraging cooperation and resolving conflict 

- Standard form contracts when purchasing shelter have made clearer the obligations of all parties 

- The rights and obligations of landlords and tenants are clearly provided for in the Residential Tenancies Act 2010 (NSW) 

- The creation of NCAT provides an accessible and cost-effective avenue for the resolution of tenancy disputes 

- This includes disputes in relation to social and other forms of housing - The mediation and conciliation process used in the resolution of disputes 

arising from discrimination in the acquiring of shelter encourages all parties to come to an agreement themselves 

 Issues of compliance and non-compliance 

- The development of the Torrens title system provided greater certainty in establishing the ownership of properties when being sold 

- This has strengthened compliance in this area as opposed to the Old System method still in use for some properties 

- The Residential Tenancies Act 2010 (NSW), which amended the previous legislation, improved the rights of tenants through what some would argue is a better balance of rights between landlords and tenants 

- NCAT has improved compliance with the law because it makes the law more accessible to all and makes orders with respect to breaches of the Residential Tenancies Act 2010 (NSW) 

- The standard form contract has improved the rights of buyers in the conveyancing process because of the mandatory disclosures that must be made by the vendor 

- Boarders and lodgers lack effective legislative protection and as a result are the more vulnerable residents in society 

- There are many examples of landlords making false and misleading statements about the state of premises 

- Comparing aged care is problematic and it is difficult to ensure that resident’s rights are clear and compliance issues are being met 

- Enforcement of discrimination provisions in state and federal law is a challenge for authorities 

- Proof can be hard to establish, and the monetary payout may deem the process not worth pursuing 

- Strata schemes can produce entrenched and ongoing conflict as a result of people living in close proximity to each other 

- Improved compliance has resulted from the clearer guidelines established under the S trata Schemes Management Act 1996 (NSW) 

 Laws relating to shelter as a reflection of changing values and ethical standards 

- Public morality has evolved to the extent that there is universal recognition of a right to shelter in international law 

- Values and ethics imply that governments in Australia have an obligation to put in place legislation and policies to ensure all people have the ability to acquire adequate and affordable shelter 

- The improved rights of tenants are a reflection of the acknowledgement that tenants traditionally have been in a more powerless position than landlords  

- The Charter of Care Recipients’ Rights and Responsibilities – Residential Care for all aged care accommodation is an acceptance that older people have a right to quality care and accommodation 

- The suite of discrimination legislation reflects that the community accepts that the government has a role to play to ensure that the more marginalised and disadvantaged people in society have a right not to be discriminated against when acquiring shelter 

  The role of law reform in protecting the rights of those seeking shelter 

- Improved rights for tenants are reflected in the reform of the rights of tenants in 2010 

- The evolution of standard form contracts has ensured greater protection for buyers of property with respect to the disclosures that must be made by the vendor 

- The federal government is proposing to consolidate all federal discrimination legislation into a single Act to improve the enforcement of discrimination provisions 

- The New South Wales Government has been lobbied over the years to improve the rights of boarders and lodgers. At present this has not occurred  

 The effectiveness of the legal and non-legal responses in achieving just outcomes in regard to the provision of shelter 

- Non-legal measures are featured throughout the shelter topic - Non-legal measures need to be discussed in the light of their ability 

to pressure governments, highlight issues, undertake research and publicise issues concerning shelter  

- These measures can promote greater compliance, initiate law reform, educate the wider community and promote values and ethics around shelter for the poor and marginalised 

- Non-legal measures can be ignored, in particular if mainstream society is uninterested in the area of focus, they are promoting 

- Governments are more likely to respond depending on how the issue is tracking in the electorate 

- For example, the need for boarders and lodgers to be given greater legislative protections has been well established but so far state governments have taken no real action