HSC Legal Studies

Topic 1: Crime
Latin Terms:
Actus reus - guilty act
Mens rea - guilty mind
In situ - in the place (evidence must be in situ)
Doli Incapax - incapable of wrong

1. The nature of crime

Meaning of Crime
Any act or omission of duty that results in harm to society and which is punishable by
the state.
Parliament makes laws------- Police enforce the------- Judge interprets them

Actus Reus - Guilty act

Mens Rea - Guilty mind

Case Study 1.1 - Hyam v the DPP (1974) 2 AII ER 41

Hyam deliberately set fire to a house in England where a woman, her son and two
daughters slept. The two daughters died in the fire. The court found Hyam guilty of murder
because even though she didnt intend to harm the two daughters, she deliberately
exposed them to serious danger which full knowledge of what that involved. The court said
this was sufficient evidence of mens rea which is necessary to be guilty of murder.

Strict Liability Offences

Crimes where only actus reus needs to be proved
Many traffic offences are strict liability offences
Eg. speeding (only need to prove that the act was committed, the state of mind does
not matter)
http://www.abc.net.au/news/2016-06-14/adeel-khan-found-guilty-of-mother-and-baby's-
manslaughter/7507284

Causation
Causation must be shown for a crime to be proved
 The act committed must have caused the specific injury complained of
Eg. part of proving a murder is that the actions of the accused person actually
caused the death of the victim

Case Study 1.2 - Blaue v R (1975) 1 WLR

The victim was stabbed and on reaching the hospital she refused blood transfusions
because of her religious beliefs as a Jehovahs Witness. The victim died as a result of
refusing treatment. Did the accused cause the death of the victim? The accused was
convicted of manslaughter for the stabbing because the stabbing was an operative and
substantial cause of death.

Categories of Crime
Offences against the person - acts which harm other people
Offences against the sovereign - acts which aim to harm the governing bodies of a
country
Economic offences (property/white collar/computer) - acts against peoples
property or finances
Drug offences - include possession, trafficking, cultivation, manufacturing or
importation of illegal drugs
Driving offences - eg. speeding not wearing a seatbelt etc.
Public order offences - acts that occur in a public place and are seen as offensive
or disruptive to the general population
Preliminary crimes (attempts and conspiracy) - to try and commit an act or
omission or plan to do so - The Crimes act 1900 states that attempting to commit a
crime is the same a successfully committing the crime

Summary Offences - less serious (minor) offences that are heard and decided by a
magistrate sitting without a jury, eg. driving offences and offensive behaviour
Indictable Offences - serious criminal offences and may be heard by a judge and jury, eg.
murder, sexual assault and malicious wounding

Parties to a Crime
The principal in the first degree - the person/s who actually committed the crime
The principal in the second degree - the person/s who were present or assisted
the principal in the first degree in committing the offence
 The accessory before the fact - the person/s who helped plan the offence but was
not there when the crime was committed
The accessory after the fact - the person/s who helped the principals after the
crime had been committed, eg. drive a getaway car

Factors Affecting Criminal Behaviour

Social and Economic Factors - people more likely to commit crimes if they have
come from poor or disadvantaged backgrounds. People surrounded by/brought up
with criminals are also more likely to commit crimes themselves because they see it
as socially acceptable
Genetic factors - theories state that some people are born criminals, that is their is
some people whose genetic make-up gives them a tendency to commit crimes
Political factors - some people act in a criminal way because they feel that the law
they are breaking is wrong, or the action that they are protesting against is wrong
Self-interest - some people may be involved in criminal behaviour for their own
personal or economic gain, economic gain is often a major factor in committing a
crime

Crime Prevention: Situational and Social

Situational: creating situations where it is difficult for people to break the law
Social: changing the social factors which cause people to be criminals (eg. people of
disadvantaged background or surrounded by criminals)

2. Criminal investigation process

Police Powers
Search and seizure - power to search people and places and seize and take
evidence, police must have a warrant to search a property for crime investigations,
police can search anyone who is reasonably suspected of possessing stolen or
illegal goods
Access to information - The Computerised Operational Policing System (COPS)
was introduced in NSW in 1994 giving police the ability to cross-reference details of
all persons of interest
Interrogation - Police have the right to ask questions but a suspect need not answer
except in special circumstances, eg. driver must produce licence on request
Electronic surveillance - police may tap phones if they obtain a warrant first,
however no warrant is needed in the case of sieges, kidnappings or hostages. There
 are many surveillance cameras around highly populated areas which are lowering
crime rates in those areas
Medical examinations - police can order an arrested person to undergo a medical
examination
Detention - The Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
allows police to keep a suspect for four hours for investigation

Case Study 1.3 - The detention of Mohamed Haneef, July 2007

Haneef was detained by police for 14 days without charge upon arrival to Brisbane after
being suspected of being involved in attempted Glasgow terrorist attacks. He was granted
bail however his visa was cancelled for not passing the character test so he was detained
in a migrant detention centre until his hearing. Was the powers of detention interfering with
the individuals rights? The federal government set up an inquiry in 2008 to investigate the
circumstances around this case. It found that Dr Haneef was wrongly charged.

Fingerprints and photographs - police have the power to take photographs and
fingerprints of arrested people for identification
Police discretion - police must decide, because of limited resources, which areas to
patrol, which crimes to target and what reports to investigate

Reporting Crime
Crimes go unreported for many reasons including:
Reporting a crime may bring the victim's own illegal actions to police attention
Victims may know the alleged offender (feelings of loyalty
Feelings of humiliation or shame
Belief that reporting does not lead to an arrest/conviction
Some criminal activities are more likely to be reported than others.

Investigating Crime
Gathering evidence - after a crime is discovered, police investigate the matter and
further and gather relevant evidence, eg. interview witnesses
Use of technology - police often use technology to gather evidence, eg. phone taps,
video surveillance, DNA collection
Search and seizure - police have the power to search people and their belonging or
premises and take away property that is illegally held or is to be used as evidence
 Use of warrants - written authorisation issued by a judge or magistrate which gives
the police power to take the action authorised by it, eg. arrest warrant, search
warrant

Arrest - to seize a person by legal authority and take into custody

Charge - formal accusation of one committing a crime
Summons - an order for when you are required to appear before a judge or magistrate in
court, or the writ containing the order
Warrants - legal document authorising an act
Bail - temporary release of accused awaiting trial, often on the condition that a sum of money
is lodged as a guarantee
Remand - time spent in custody awaiting trial
Detention - when a person is kept for questioning and investigation
Interrogation - formally questioning a suspect

Rights of the Suspects

Right to silence
Rights regarding privacy
Right to communication
Right to a lawyer
Illegal evidence, eg. a confession must be voluntary to be legal

3. Criminal trial process

Court Jurisdiction
The Local Court (Lower Courts)
Hears summary offences
Hears committal proceedings for indictable offences
Conducts coronial inquiries
Conducts Childrens Court hearings
Divert some drug offenders from the court system to receive treatment

District Court (Intermediate Courts)

Hears indictable offences such as manslaughter, armed robbery or malicious
wounding
Hears appeals from the Local Court

Supreme Court (Superior Courts)

 Hears very serious indictable offences, such as murder or arson

Court of Criminal Appeal

Has three or five judges
Hears appeals from the District and Supreme Courts about the severity of the
sentence or on questions of fact or law
Hear appeals from the local court on questions of law ONLY

High Court of Australia (Federal Courts)

Hears appeals from the NSW Court of Criminal Appeal on questions of law
Hears appeals in federal criminal matters from the Federal Court

Adversarial Court System

Two opposing side present their case to an impartial judge or magistrate
Strict rules of evidence involving hearsay and opinion
Presumption of innocence
Witnesses are examined orally and can only answer the questions asked
Past record of accused can only be examined during sentencing
Case is called a prosecution
The party who takes the case to court is called the prosecution and is usually the
state
Party whom the case is against is the defendant
After the case is decided, the court can sentence the wrongdoer if found guilty
Confessions cannot be used in court unless done so voluntarily
The accused does not have to say anything in court

Legal Personnel
Magistrate - decides cases in local courts (ensure trial is conducted legally and is fair,
decide on questions that arise about law, impose punishment for guilty verdicts)
Judge - decides cases in higher courts ie. District or Supreme court (ensure trial is
conducted legally and is fair, decide on questions that arise about law, impose punishment
for guilty verdicts)
Police prosecutor - specially trained officer who usually prosecutes a case in the local court
(examine witnesses, presents evidence and proves alleged offender guilty)
Director of Public Prosecution (DPP) - responsible for prosecuting indictable offences
heard summarily or in front of a jury
Public Defenders - legal practitioners appointed by NSW government to represent accused
people in District or Supreme Court (only available to those granted legal aid)
Pleas - formal statement of offender as guilty or innocent in response to a charge

Charge Negotiation - negotiations during a criminal trial between the accused and the
prosecutor that the accused agrees to admit to the crime in return for a lesser or reduced
sentence

Legal Representation
In Australia, an accused person does not have an automatic right to legal
representation however they do have the right to a fair trial which in most cases could
not be achieved if the defendant does not have legal representation

Case Study 1.4 - Dietrich v the Queen (1992) 177 CLR 292
Dietrich was charged with several drug offences but was refused legal aid unless he
pleaded guilty. During the trial, where he defended himself, he complained that he did not
understand the court process. Dietrich was found guilty and appealed it to the High Court.
The High Court found that a judge should refuse to hear a case where a poor person has
been accused of serious crime and been refused legal aid if injustice is likely to occur.

Legal Aid Commission

Free or cheap legal services to those on limited incomes
The cost of legal representation is very high and is often not something that ordinary
people can afford for an extended period of time
Offer free legal advice for 15mins on any legal issue
Legal aid is only granted in certain circumstances and the person must pass a
means, merits and jurisdiction test
Means Test: an assessment of a persons ability to afford their own representation.
Merits Test: the likelihood of the case succeeding. Legal aid may not be granted if
there is a strong case against the accused.
Jurisdiction Test: the case must fall into defined areas of law
Growing pressures on the Legal Aid budget has caused a cap to be imposed on the
aid that will be granted
Burden of Proof - in criminal matters, the responsibility of the prosecution to prove the case
against the accused, the burden of proving a particular defence such as mental illness may
be on the accused
Standard of Proof - the level of proof required in a criminal case for a party to succeed in
court. The accused must be proved guilty beyond reasonable doubt

Use of Evidence, Including Witnesses

Evidence is presented to the court through witnesses
Witnesses are people who know something about the case and who give evidence in
court about what they know
Prosecution witnesses may include the police who investigated the case and
arrested the alleged offender
There are certain rules about what questions lawyers can ask and which questions
must be answered
Hearsay evidence: witnesses may only tell the court what they heard or saw, not
what someone else told them happened
Opinion evidence: a witness cannot give their opinion
Witnesses giving evidence are to give an oath to tell the truth, perjury is an illegal
offence

Defences to Criminal Charges

Complete Defences:
Defences that completely clear a person of the crime
Mental illness

Case Study 1.5 - R v Porter (1936) 55 CLR 182

Porter was separated from his wife and looking after their 11 month old son. He was
suffering from depression and sleeplessness. He travelled to Sydney to reconcile with his
wife and threatened to kill himself and his son. She contracted police and upon arrival they
found the son dead and and Porter about to kill himself. Porter was charged with murder.
The jury found that Porter did intend to poison his son however did not appreciate the
wrongness of this action and was found not guilty on the grounds of mental illness.

Self-defence
Necessity (necessary to avert serious danger)
 Case Study 1.6 - R v Dudley and Stephens (1884) 14 QB 273
A ship was sinking and abandoned. Dudley and Stephens were in a lifeboat with two
others. By the 18th day, they had been without food and water for 5 days. On the 20th
day, Dudley and Stephens killed one of their companions, who was near death, and all 3
remaining survivors fed off the corpse. They were found on the 24th day. Evidence
suggested that the men would have died if they had not killed their companion and that the
victim would have almost certainly died anyway. The judges however said the defence of
necessity was not available for murder.

Duress/coercion (admits to committing the crime knowing it was wrong but claims
they were frightened of threats and the like so much that they committed it anyways)
Consent (accused acted with the victims consent)
Partial Defences to Murder:
Generally reduce liability of the defendant from murder to manslaughter, partial
defence does not completely free the defendant but reduce their liability
Provocation (aggravated or provoked by the victim)

Case study 1.7 - The Queen v Damian Karl Sebo (2007) Supreme court of QLD
Damian sebo admitted to killing his girlfriend but claims he was provoked by her bragging
about cheating on him with other men. The jury accepted that Sebo was sufficiently
provoked by his girlfriend to find him guilty of manslaughter not murder, receiving 10 years
imprisonment.

Diminished responsibility (claims the accused was not in complete control of his/her
mind when the crime was committed)

Case Study 1.8 - Chayna v The Queen (1993) 66 ACrimR 178

Andre chayma killed her two daughters and sister-in-law. The defence claimed substantial
impairment or responsibility. Jury returned with a verdict of murder. Was Chayna suffering
from diminished responsibility (was she in full control of her mind)? At the Court of Criminal
Appeal the verdict was changed to manslaughter.

Role of Juries
Jury, not the judge, decides on the guilt or innocence of the accused
Juries are selected as governed by the Jury Act 1977 (NSW)
 Criminal cases usually have twelve jurors, however under the amendments to the
Jury Act 2006, the court can empanel up to fifteen jurors for lengthy trials however
ultimately only twelve will determine the verdict
Jurors are selected from the electoral role
Jury service is compulsory unless you are exempt
Both the prosecution and defence may reject jurors
Juries can reach a verdict easily or it can sometimes takes days

Case Study 1.9 - Unanimous or majority verdicts?

There are calls for allowing majority verdicts rather than unanimous verdicts (everyone in
agreeance). Arguments for majority verdicts include: need for unanimous verdict means
more chance of retrial when juries dont reach unanimous verdict and hung jury rates
have doubled in recent years. Arguments for retaining unanimous verdicts include:
majority verdicts compromise the standard of proof of beyond reasonable doubt if one
juror has doubt and there is a greater risk of convicting the innocent.

4. Sentencing and punishment

Statutory and Judicial Guidelines
There are numerous laws, rules, guidelines and cases on how sentences should be
determined
The Crimes (Sentencing Procedure) Act 1997 (NSW) is the primary source for
sentencing
Legislation that prescribes an offence usually also prescribes the maximum penalty
Most maximum penalties are found in the Crimes Act 1900 (NSW)
Judicial discretion: power of a judge to make a decision within a range of
possibilities based on the particular circumstances of a case
Mandatory sentencing: removal of judicial discretion by legislation, by setting a
minimum or mandatory sentence for a particular offence or type of offender

Purposes of Punishment
Deterrence:
Specific deterrence: punishment against an individual offender aiming to deter them
from committing it again, showing that crime does not pay
General deterrence: punishment attempting to make an example of an offender to
send a message to the rest of the community
Retribution:
Punishment considered to be morally right or deserved because of the nature of the
crime
Mainly for society and victim
Punishment should be proportionate to the crime
Rehabilitation:
Designed to reform the offender so they dont recommit
Alters the views of the offender
Eliminates factors that contributed to the conduct
Prevent recidivism (repeated acts of criminal behaviour post treatment or
punishment)
Incapacitation:
Restricting the freedom of an offender so that they are incapable of committing
further offences
Home detention
Community work
Licence cancellation
Imprisonment

Factors Affecting Sentencing

Aggravating Factors:
Circumstances that make the offence more serious and often leads to increased
sentence
Offence (did it involve violence, cruelty or weapons etc.?)
Victim (was the victim old, young, disabled or targeted for their occupation eg. police
officer?)
Offender (did the offender abuse a position of authority or trust?)

Mitigating factors:
Circumstances that make the offence less serious and often leads to reduced
sentence
Often subjective
Offender of good character and has no priors
Offender is youthful or inexperienced
Pleaded guilty or assisted police
Shown honest remorse
Was provoked
Role of Victims in Sentencing
Reporting crimes
Assisting police
Testifying at trial
Submitting victim impact statement
Victims Rights Act 1996 (NSW) requires you to respect the victim's dignity (eg. in
difficult cases such as sexual assault)
Victim impact statements can be very controversial as they can be subjective yet
have significant effect on sentencing

Appeals
Can be made against the conviction or the sentence
Prosecution can appeal the leniency of the sentence but generally not against an
acquittal

Case Study 1.10 - R v Jurisic (1998) 45 NSWLR 209

Jurisic pleaded guilty in Local Court to 3 charges of dangerous driving occasioning bodily
harm. Each charge carried a maximum sentence of 7 years imprisonment. At the sentence
hearing in the District court he was sentenced to 18 months imprisonment served as home
detention, with minimum term of nine months. Also disqualified from driving for one year.
DPP appealed on the grounds that the sentences were inadequate and in the Criminal
Court of Appeal Jurisic was sentenced to 2 years jail, minimum of 1 year and disqualified
from driving for 2 years.

Types of Penalties
Many types of penalties available to courts such as fines, imprisonment and
diversionary programs ie. rehab

Traditional Penalties:
No conviction record - find accused guilty but opt to dismiss the charge without the
conviction being recorded
Caution - offender is warned by police rather than arrested and charged
Fine - offender is ordered to pay a sum of money
Bond - offender is released but agrees to be on a bond of good behaviour
 Suspended sentence - offender is sentenced to a term in prison but the sentence is
not executed
Probation - like a bond but the offender almost always requires to be supervised by
a parole officer
Criminal infringement notice - notice issued to people by police imposing a fine for
some minor crimes ie. offensive language
Community service - required to do unpaid work for the community
Home detention - offender is confined to their home or a restricted area for a period
Periodic detention - offender required to serve their prison sentence on consecutive
weekends
Forfeiture of assets - ordered to give up their property to the gov. If a court finds
that it was gained from proceeds of a crime
Imprisonment - offender detained in prison for at least the non-parole period

Diversionary Programs
The Drug Court - aims to rehabilitate drug offenders so they are no longer
dependent on drugs
Traffic Offenders Program (TOP) - person charged with driving offence is referred
to the program by magistrate, it involves 8 lectures over a seven week period and an
assignment must be completed for each lecture
Circle Sentencing and Restorative Justice - address the causes of the criminal
behaviour and allows offender to rectify the harm they created, circle sentencing is
for Aboriginal offenders where they are brought before a circle of people involved
with the offence and community elders

Post Sentencing Considerations

Security classification:
Prisoners are given security classifications under the Crimes (Administration of
Sentences) Regulation 2008
High-risk categories, present a special risk and are contained in maximum security
prisons, approx 37% of NSW prisoners are in high security prisons
Medium-risk categories, , contained in medium security prisons
Low-risk categories, confined in open security prisons and arent constantly
supervised, in NSW 29% are in open institutions
Security classification is very important as it determines in which prison they serve
their sentence and what rehab programs they have access to
Protective Custody:
Prisoners who may be subjected to violence and harassment from other prisoners
can be placed in protective custody - separated from prisoners who they fear
Because of race, sexual preference, disability, the crime they committed or for
informing on other prisoners
Such protection restricts the opportunities for those in custody to work and to access
education programs

Parole:
Allows prisoners to leave prison before completing their whole sentence
Conditions are attached and if broken will be sent back to prison
It encourages prisoners to behave well and undertake rehabilitative activities

Preventive detention:
Detention of people without charge because they are suspected of terrorist activities
(havent been found guilty of criminal offence)
Detention of serious offenders who are at risk of reoffending (aka continued
detention)
Crimes (Serious Sex Offenders) Act 2006 (NSW) provides that serious sex offenders
can continue to be detained after their sentence has expired if they are seen as a
threat to the community
It protects the community from possible harm

Sexual Offenders Registration;

People who have been convicted of serious sexual offences must register at the
police station closest to their residence and provide them with certain information
Period of registration is a minimum of 8 years for an adult and 4 for a juvenile
Serious sex offenders may be supervised or electronically tagged are their prison
release
Monitors offenders so their chance of reoffending are minimised

Deportation:
Forcible removal of a person from a country and returning them to their country of
origin/home country
People who arent Aus citizens and have lived here less than 10 years and are
convicted of a serious criminal offence may be deported
Protects Aus citizens from possible harm from offenders reoffending
Effectiveness of sentencing and punishment;
To evaluate effectiveness you should discuss the factors which help ensure justice
and those factors which may limit the achievement of justice in the sentencing and
punishment process, for example see page 55 of excel

5. Young offenders
Age of Criminal Responsibility
Under the Children (Criminal Proceedings Act 1987 (NSW), no one under the age of
ten can be charged with a criminal offence (not old enough for mens rea)
Doli incapax - incapable of wrong
Between the ages of 10 and 14 the concept of doli incapax can be argued with
In the above situation the prosecution must prove that the child knew that what they
were doing was wrong, not just naughty

Case study 1.11 - The death of Corey Davis, 3 december, 1999

Corey Davis, 6 years old, was allegedly thrown into the Georges River in Sydney. The ten
year old boy who threw him in the river allegedly yelled bad luck! as Corey who could not
swim thrashed in the water. The 10 year old boy told the police yeah, I pushed him in, so
what?. The boy was charged with manslaughter. The defence produced witnesses
including psychiatrists who gave evidence that his mental age was at least 2 years
younger than his actual age. Jury found him not guilty.

Rights of Children when Questioned and Arrested

Children have the same rights as adults when questioned or arrested
Except they have extra protections that adults dont
These protections are contained in the Law Enforcement (Powers and
Responsibilities) Act 2002 (NSW) which include:
- parent/guardian must be notified when child taken into custody
- Children have the right to an independent adult as support during any
police procedure such as interview or search
- Police must tell a child their rights and assist the child in exercising
them
- Children under 10 cannot be strip searched and any children older
than 10 should have a support adult present
- Child in custody cant be kept in same cell as adult
- Police cannot take photo or fingerprint of child under 14
 - Police may not take bodily sample of a child without court order

Childrens Court
Unless a child is diverted from court proceedings under the Young Offenders Act
1997 (NSW), most charges against people under 18 are heard in a childrens court
hearing
Operations of the Childrens Court is governed under the Children (Criminal
Proceedings) Act 1987 (NSW)
Proceedings are similar to summary hearings except there are additional protections
for children including:
- It is a closed court (no public allowed at hearing)
- Media may attend but may not publish the identity of the offender
- Magistrate will take reasonable measures to ensure the child
understands the proceedings
- The conviction is not recorded if the child is under 16
Committal proceedings for serious indictable offences (of children) are heard in the
Childrens Court, but trial and sentencing hearing is heard in appropriate court

Penalties for Children

If a child is found guilty, then the Court must follow principles of sentencing from the
Children (Criminal Proceedings) Act 1987 (NSW), some principles include:
- If possible, child's education continue uninterrupted
- If possible, for a child to live at home
- Penalty imposed on a child should not be greater than that given to an
adult for equal offence
Most penalties and sentencing options are similar to those available for adults
including:
- Dismissal of charges
- Imposing a fine
- Placing defendant on bond
- Probation
- Community service order
- Suspended sentence
- Imprisonment
- Referral to a youth justice conference
- Adjournment for rehab purposes
- Referral to the Youth Drug and Alcohol Court
Alternatives to Court
Options below are available for summary offences and less serious indictable
offences

Warnings:
A child can be given an on the spot warning by Police for minor offences, doesnt
form part of the childs criminal history

Cautions:
Police can issue a more formal warning in the form of a caution
Cautions can only be given if the child admits to the offence
A record of the caution is kept and may be seen by the Childrens Court if a further
offence is committed
Child may be cautioned up to three times

Youth Justice Conferences:

Introduced by the Young Offenders Act 1997 (NSW)
Present at the conference are: the offender, parents,, the victim, a supporter for the
victim and a mediator
Aims to come up with an agreement which may include an apology to the victim,
reparation to the victim or rehab for the offender

Youth Drug and Alcohol Court:

Similar to Drug Court but for young offenders
Gives offenders an opportunity to undergo extensive rehab before sentencing
Successful completion of the courts program means a lighter sentence

Effectiveness of Criminal Justice System with Young Offenders

Factors helping ensure the effectiveness:
Law regarding the age of criminal responsibility is effective as children do not have
the mental capacity
Children are given greater protection at every stage
Children are given greater protection when questioned by police
Sentencing principles for young offenders ensure they arent treated as harsh as
adults
Sentencing alternatives to court are available
Factors which limit the effectiveness:
Some argue the age of criminal responsibility is too high
Some laws regarding police enforcement may have an unfair impact on children
Some see sentencing alternatives as soft options which only encourage young
offenders to reoffend
Youth justice conferencing does little to address the cause of youth crime

6. International crime
Crimes Against International Community
Crimes committed by individuals and states which are seen as wrong by the
international community
Includes: war crimes, crimes against peace and humanity, genocide, terrorism and
slavery
Laws against these crimes are usually contained in declarations and conventions of
the UN and are linked to human rights and responsibilities
Terrorism - violence by an individual or group against a perceived international
enemy, aimed at provoking fear
Genocide - acting with the intent to destroy, in whole or in part, a national, ethnic,
racial or religious group

Transnational Crimes
Crimes that occur within a state's legal system but contain in international element
Usually means that the organisations or people involved are responsible for the same
crime in other countries
These crimes are handled under both the criminal system of a country and through
international criminal provisions
Main transnational crimes include: hostage-taking, terrorism, drug trade and
pornography

Crimes committed outside Jurisdiction

Eg. piracy and aircraft hijacking
Take place in international waters or airspace and dont come under clear-cut
jurisdiction of any nation
These crimes are covered by treaties, including extradition treaties
Piracy and aircraft hijacking are also governed by UN declarations
Dealing with International Crime
International Instruments:
A formal legal document which has legal force under international law, ie. treaty or
convention
Many international measures have been developed with respect to international
crime
An important measure recently ratified is the Rome Statute (1998) which established
to International Criminal Court (ICC)

Customary International Law:

This consists of principles and procedures that have grown up through general usage
to the point where they are accepted as being fair and right internationally

International Tribunals:
There are several international tribunals which have been developed to hear cases
involving international crime
International Court of Justice (ICJ) - judicial organ of the UN, only hears cases
between nations
Case example heard in the ICJ: Nicaragua v United States of America (1986)
Effectiveness of the ICJ depends on the cooperation it receives and that is restricted
by the consensual nature of international law
International Criminal Court (ICC) began operating in 2002 and has the role of
bringing justice to victims of international crimes
The ICC is a permanent court, separate to the UN, set up by the Rome Statute
(1998)
The ICC allows individuals to be tried for crimes against humanity

Sanctions:
Actions taken by the international community towards a state which i seen to be
attempting to or has broken international law
5 main types of sanctions:
- Moral sanctions - other states express their disapproval towards
offending state
- Political sanctions - breaking of diplomatic relations
- Economic sanctions - offending state being punished economically,
including refusal to trade with specific countries etc.
- Financial sanctions - state being refused financial assistance
 - Physical sanctions - use of force, which can result in war
Sanctions may coerce states into following international law
There are limits on sanctions as they can often harm the citizens of the offending
state, not its leaders

Extradition:
When a person is handed over from one state to another state because that person
is accused of a crime in the latter state, it's based on an agreement between the
states
Not all offences are covered by extradition treaties
Eg. Treaty on Extradition between Australia and the United States (1974)

Effectiveness in Dealing with International Crime

Due to the consensual nature of international law, enforcement of the laws can be difficult
Many international treaties encourage nations to cooperate with each other in order
to stop transnational crimes
Crimes such as terrorism are hard to prevent, as the perpetrators are usually well
organised
Measures to combat terrorism may infringe the individual's basic human rights. Eg.
Mohamed Haneef
The crime of genocide is often only discovered after it has occurred
Effectiveness of the ICJ depends on the cooperation it receives and is restricted by
the consensual nature of international law
War crime tribunals are infrequent and have rarely led to real convictions
Imposing sanctions on a state may harm other states
Sanctions often harm the citizens of the offending state
Extradition is an effective enforcement procedure if states sign extradition treaties
and obey them
Cooperation between nations has led to the arrest and conviction of some
transnational crimes, however it does not occur frequently enough to deter many
transnational crimes

Legislation:
Crimes Act 1900 (NSW) - defines crimes and sentences
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) - allows police to
detain a suspect for four hours for questioning
Jury Act 1977 (NSW) - Juries selected as outlined in this legislation
Jury Amendments (Verdicts) Act 2006 (NSW) - amendments to the Juries Act 1977
(NSW)
Crimes (Sentencing Procedure) Act 1997 (NSW) - primary source for sentencing
Victims Rights Act 1996 (NSW) - requires you to respect the victim's dignity (eg. especially
in cases like sexual assault
Crimes (Administration of Sentences) Regulation 2008 - Prisoners are to be given
security classifications
Crimes (Serious Sex Offenders) Act 2006 (NSW) - provides that serious sex offenders can
continue to be detained after their sentence has expired if they are seen as a threat to the
community
Children (Criminal Proceedings Act 1987 (NSW) - no one under the age of ten can be
charged with a criminal offence
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) - outline rights of
children when being questioned or arrested
Young Offenders Act 1997 (NSW) - diverts children from court proceedings
Children (Criminal Proceedings) Act 1987 (NSW) - governs the proceedings of the
Childrens Court
Childrens Court Act 1987 - established Childrens Court
 Topic 2: Human Rights
Terms:
Habeas Corpus - people cannot be imprisoned without good reason

1. The nature and development of human rights

Definition of Human Rights
A right is something which you are entitled to
Human rights are fundamental rights to which every human is entitled to
It is generally recognised that human rights are:
- Universal
- Indivisible(all human rights are equally important)
- Inherent (its a birthright)
- Inalienable (people cannot agree to give them up)
Types of human rights include:
- Civil and political (protect individuals from the
arbitrary exercise of power by a state, eg. right to life
and freedom from slavery)
- Economic, social and cultural (concerned with the
material and cultural wellbeing of people, eg. right to
social security, equal pay for equal work, education)
- Environmental and peace rights and right to self-
determination (these are collective rights which mean
they dont necessarily belong to an individual, but
rather people's, self-determination is people governing
themselves)

Developing Recognition of Human Rights

Term human rights only developed recently - 1940s however the concept of them
has its roots in ancient times
Development of concepts of human rights has been influenced by:
- Idea of state sovereignty
- Natural law doctrine
- Historic constitutional documents and international agreements
- Movements to recognise certain human rights
Natural Law Doctrine:
The philosophy is based on the idea that certain natural laws exist which apply to all
humanity and which maintain the basic dignity of human beings
Theorists argued that certain fundamental natural laws applied to humans and could
not be taken away by a king or any other power
Natural law has contributed to concepts of human rights by promoting the idea that
humans have certain fundamental freedoms that cannot be taken away

Historic Constitutional Documents:

Human rights have gradually been recognised through various documents which
have become part of the constitutions of individual nations as well as through
international agreements
Magna Carta 1215 and English Common Law
- English law (aus was based on this) first recognised that the king had
limited powers on individuals in the Magna Carta
- It included principles that:
- Everyone has the right to freedom
- Anyone accused of a crime must be brought before the courts
- There must be equality before the law
- Property cannot be confiscated by the king without
compensation
- English common law developed rights protecting rights of individuals
including: the writ of habeas corpus
Declaration of Rights 1689 (UK)
- Principles of the Magna Carta and English common law found clearer
expression in the Declaration of Rights 1689
- This document established parliament's supremacy over the king
- Also established some individual rights including:
- Freedom of speech
- Protection against cruel and unusual punishment
Declarations of America and France
- Increasing emphasis individuals right to be free from the arbitrary
power of the state can be seen in both the:
- American Declaration of Independence 1776
- French Declaration of the Rights of Man and the Citizen 1789
- These two documents represent systematic attempts to enshrine
individual human rights and freedoms in the law of nations
Movements Recognising Human Rights:
Movement for protection of human rights has been influenced by the struggle for:
- The abolition of slavery
- Trade unionism and labour rights
- Universal suffrage
- Universal education
- Self-determination
- Environmental rights
- Peace rights

Abolition of Slavery:
Slaves were used extensively in ancient times
Was a system in which individuals had no personal rights
They could be bought and sold and were often physically, emotionally and sexually
abused
Britain and other colonial powers took slavery for granted until late 18th century where
there were growing awareness of natural rights and political liberty
- Emancipation Act 1833, abolished slavery throughout British colonies
- France was first to pass a decree abolishing slavery, Declaration of
the Rights of the Man and Citizen 1789
- 13th amendment of the US Constitution outlawed slavery in 1865
- Slavery Convention of 1926 was negotiated
- New supplementary convention on Abolition of Slavery in 1965
- Slavery banned under Article 4 of the Universal Declaration of Human
Rights

Trade Unionism:
One outcome of the Industrial Revolution which began in 18th century Britain was the
emergence of trade unions
They are associations of employees that were created to protect the rights of workers
Holds enormous collective power; where single employees have very limited power
but many workers together combined in a single cause have a great deal of power
- Universal Declaration of Human Rights, Article 23 (4) states everyone
has the right to form and to join trade unions for the protection of his or
her rights
Universal Suffrage:
Refers to the right to vote
In the most voting was only opened to male and the wealthy people
By the 1890s there were womens suffrage societies in all Australian colonies
South Australia became the first jurisdiction in Australia to grant women the right to
vote in 1894
Voting rights for Federal Parliament were won in 1902
British women were not entitled to vote until 1928
However ATSI groups did not have to right to vote until 1962
- Right to vote is now protected under Article 21 (3) of the Universal
Declaration of Human Rights

Universal Education:
The concept of universal education is the right of all to a basic education
Any kind of formal education was rare in most nations before the 19th century
People of all social class recognised education as a means of ensuring the future of
their children
Australian colonies made several Acts that made education free and compulsory for
all
However the standards of education in developing countries remain poor today
The UN has invested large amounts of money to improve the level of basic education
throughout the world
- The right to education is protected under Article 26(1) of the Universal
Declaration of Human Rights

Customary rights - those widely accepted in the community

Legal rights - those afforded to people by the legal system
Moral rights - Moral behaviour may simply define as that which is good, eg. the individual
has a moral right to life as its immoral to kill others

Self-determination:
The right of peoples to govern themselves and choose their own form of government
It involves the right of colonised people to establish their independence
Right for people within a nation to freely choose their form of government
It is linked to the principle of sovereign equality of all UNs member states, no matter
their size or power
 - Right to self-determination is protected under the Charter of the United
Nations 1945
Most controversial aspect of self-determination is the right claimed by indigenous
peoples to control their own traditional land and economy
This right is referred to in the Declaration on the Rights of Indigenous Peoples 2006
which was adopted by the UN General Assembly in 2007

Environmental Rights:
Encompass the right to a clean, healthy and sustainable environment
Environmental law protects the right of future generations to the same level of
environmental quality as the present generation enjoys
Kyoto Protocol, commits State Parties to reduce greenhouse gases emissions
Australian government signed this protocol in 2007 and ratified it immediately
- The Stockholm Declaration (1772)
- Rio Declaration (1992)

Peace Rights:
The right of people to have their government maintain peace and eliminate war
- The Charter of the United Nations 1945 obliges nations to settle
disputes by peaceful means and to refrain from acts of war
- Peace was recognised as an international right by the Declaration of
the Right of Peoples to Peace 1984
- Treaty on the Non-Proliferation of Nuclear Weapons 1968, prohibits
signatories from buying or building new nuclear weapons and commits
signatory nation who already have nuclear weapons to disarmament

Formal Statements of Human Rights

WW1 and WW2 led to wider recognition of human rights
Charter of the United Nations 1945 and the Universal Declaration of Human Rights
1948 marked the beginning of true international recognition of human rights
Charter of the United Nations 1945 established the UN and promotes respect for
human rights
The International Bill of Rights is made up of three documents:
- The Universal Declaration of Human Rights 1948 (UDHR): lists human
rights to which everyone is entitled
 - The International Covenant on Civil and Political Rights 1966
(ICCPR): protects civil and political rights and was drawn up to give
legal force to part of the (UDHR)
- The International Covenant on Economic, Social and Cultural Rights
1966 (ICESCR): gives legal force to second part of UDHR and
protects economic, social and cultural rights
Other treaties dealing with specific human rights include:
- The Convention on the Rights of the Child 1989
- The Declaration on the Rights of Indigenous Peoples 2006
- The Declaration on the Right of Peoples to Peace 1984

2. Promoting and enforcing human rights

State Sovereignty
States are in complete and exclusive control of all the people in their state
Domestic affairs and the government of a state are under the control of the state
Means that international law cannot interfere with what happens in that state without
the states consent
Popular sovereignty - people themselves were sovereign, they could delegate their
power to a parliament and revoke the power if necessary
Eg. In France in 1789, the people drew up the Declaration of the Rights of Man and
the Citizen which said that the state could not interfere with the rights of ordinary
citizens

Role of state sovereignty in protecting human rights:

To assess the role of state sovereignty in promoting and enforcing human rights, you need
to consider that the protection of human rights internationally undermines the idea of national
sovereignty because it means interfering with a nation's domestic affairs. Some countries
without democratic processes may rely on sovereignty as a rationale to justify mistreatment
of their own citizens. In extreme cases, such countries may commit human rights abuses
with impunity, with little or no avenue for their citizens to respond. In such cases, state
sovereignty may be used as a shield by states against outside interference in their own
affairs.

Role of the United Nations

Established through the UN Charter 1945
Article 1 of the Charter outlines the 5 core purposes of the UN - one of which is to
promote respect for human rights
 The Office of the High Commission for Human Rights (OHCHR) offers support and
expertise to the various human rights monitoring bodies and systems within the UN
The UN Human Rights Council, has 47 member states responsible for promoting
human rights globally, Human rights council can also request that the UN Security
Council takes action to stop human rights violations
UN General Assembly - one of the principal organs of the UN
UN Security Council, chief decision-making arm of the UN

Role of Intergovernmental Organisations (IGOs)

Powerful instruments for protecting against human rights abuses within member
states
Membership conditions require respect for human rights and a good human rights
record
Ability to sanction member states varies
Association of Southeast Asian Nations (ASEAN) - promotes and protects human
rights

Role of Courts
International Criminal Court (ICC):
- Permanent international court and hears cases relating to the most
serious of international crimes and gross human rights abuses
- Eg. genocide, war crimes and crimes against humanity
- First permanent court allowing individuals to be tried for crimes
against humanity or human rights infringements
- Will only investigate cases not being prosecuted by a national judicial
system
- Rome Statute - the treaty that established the ICC

Role of Tribunals
Ad hoc international tribunals
- There have been 2 ad hoc tribunals in recent years set up by the
Security Council
- These tribunals allow individuals to be prosecuted for crimes against
humanity

Role of Independent Statutory Authorities

 There are 8 human rights treaty bodies that monitor compliance with the chief
international human rights treaties signatory states
Eg. the Committee on the Rights of the Child (CRC)
Eg. the Committee on Migrant Workers (CMW)
The roles of these treaty bodies include:
- Considering the reports made by states to the bodies, states are
required to report to these bodies about their treaty compliance
- Considering individual complaints or communications
- Publishing general comments on the treaties and organising
discussions and forums on their purposes and themes

Role of NGOs
An organisation that works towards a certain cause and operates separately to any
government
As concepts of human rights has grown domestically and internationally, interests in
human rights protection has grown among ordinary citizens - establishment of NGOs
for human rights has increased also
NGOs developed the International Bill of Rights and the UN Charter 1945
NGOs working in the field of Human Rights are Amnesty International and Human
Rights Watch

The Media
Media plays an extremely important role in raising awareness of human rights
abuses around the world and rallying public and government action to end them
The growth of 24hr news channels and the internet means that news can now be
broadcasted immediately around the world
The media plays has both a positive and negative influence on the reporting human
rights abuses

Effectiveness of International Responses in Promoting and Enforcing Human Rights

Limits to the effectiveness of international law in protecting human rights:
- Not all countries are parties to human rights treaties
- Lack of adequate enforcement mechanisms
- Enforcement by consensus (enforcement of international law relies on
consensus)
- Reliance on state reporting
- Lack of Security Council action
 - War crimes tribunals (tribunals may actually help entrench the conflict
rather than end it)
- Lack of funding
- Informal recognition of NGOs
- Effectiveness of media (media is effective because it can quickly
mobilise action however people may get compassion fatigue from
being exposed to abuses so much)

Incorporation of Human Rights in Australian Law

Protection of human rights in Australia has been generally of high standard in
comparison to other countries
Human rights are protected in Australia through the following methods:
- The Australian Constitution
- Common law
- Statute law
- Non-interference
- Courts and tribunals
- Bill of Rights enacted within the ACT and Victoria
- Proposed Australian Charter (or Bill) of Rights

The Australian Constitution:

Under the division of powers, the federal government has exclusive powers over
international affairs (only the Aus government can enter international agreements)
Because of this division of powers, state and territory governments can act to mirror
international human rights through their legislation, but cannot ratify human rights
agreements themselves
The Australian federal government has agreed to uphold the human rights standards
of a number of international treaties including:
- The International Covenant on Civil and Political Rights (ICCPR)
- The International Covenant on Economic, Social and Cultural Rights
(ICESCR)
- The Convention on the Rights of the Child (CRC)
- The Universal Declaration of Human Rights (UDHR)
- The Convention Against Torture (CAT)
The separation of powers in Australia maintains the independence and separation of
each arm of government ensures basic civil and political rights are protected and that
no one can hold too much power
 A small number of human rights are guaranteed under the australian Constitution
including:
- Right to vote
- Right to trial by jury
- Right to freedom of religion
- Right to just compensation for land acquired by the government

Compared to other countries, Australias constitutional guarantee of human rights is

quite limited

Common Law
Under common law certain rights are protected concerning procedural fairness
The right to a fair trial Dietrich v R 1992, however this right also states that there is
no right to legal representation.
The presumption of innocence e.g Woolmington v DPP 1935 the prosecution must
prove guilt of the prisoner there is no such burden laid on the prisoner to prove his
innocence and it is sufficient for him to raise a doubt as to his guilt he is not bound to
satisfy a jury of his innocence
Recognition of customary native title to land Mabo v Queensland 1992
No one shall be held in slavery or servitude

Statute Law
Statute law along with non-interference remain the main way that human rights are
protected within Australia
Bodies such as the NSW Anti-discrimination Board and the federal Australian Human
Rights Commission (AHRC) have been established by legislation to examine cases
where rights have been violated
AHRC administers federal human rights legislation, investigate and conciliate
complaints about abuses of human rights in legislation under its jurisdiction
AHRC does not have the power to make legally binding decisions
Parliamentary committees and law reform bodies investigate protection of human
rights in Aus eg. the federal parliament's Human Rights Subcommittee

Non-interference
Many human rights exist for australian citizens simply because the law does not
interfere with them
Eg. freedom to movement, people are free to move around within certain restrictions
Courts and Tribunals
Australia is a signatory to many human rights treaties
Generally these have no force unless legislation has been passed enacting the
provisions of the treaties
Eg. the Racial Discrimination Act 1975 (Cth) enacts the provisions contained in the
Convention on the Elimination of All Forms of Racial Discrimination (1965)
However many of the human rights treaties that Australia has signed has not been
made part of domestic law
Several state tribunals across Australia have the right to make legally binding
decisions protecting certain human rights
Eg. the NSW Administrative Decisions Tribunal (ADT)
Both the ACT and VIC courts can hear and make decisions about the abuse of
human rights contained in their legislative Charter of Rights
International humans rights law can have an effect on Australian law, even when
there is no domestic law enacting its provisions
In areas where there is no domestic legal protection for rights in Australia, people
whose rights have been adversely affected can lodge a complaint with various
international bodies - this has happened in many cases (eg. cases 2.1)

Cases Study 2.1 - A v Australia, UNHCR (1997)

Mr A arrived as a refugee in Australia from Cambodia and was detained for 4 years while
his status of refugee was being determined. He complained that his rights had been
violated by the Australian federal government. The UNHRC agreed that Mr As rights had
been violated under the ICCPR, however Australia rejected the finding arguing that the
UNHRC was wrong.

NGOs
Many NGOs work in Aus to protect human rights domestically, some are:
- Amnesty International
- Red Cross
- The Australian Human Rights Centre
- NSW Council for Civil Liberties

The Media
Plays an important role in reporting human rights infringements
Charter of Rights
A document which sets out the basic to rights to which every human should be
entitled
A Charter of Rights (aka Bill of Rights) can either be:
- Entrenched: the Charter of Rights is part of the constitution, main
issue is that it may need t be changed due to changing social values,
however the government can do little about this, but means citizens
are protected no matter who is in government
- A Legislative Charter of Rights: is passed by a parliament in the
same way any other law is passed, opposite issues to entrenched

Lists the arguments for and against an Australian Bill of Rights:

For: Against:

- Common law has not protected - Human rights are already

human rights adequately adequately protected through
international agreements, common
and statute law

- Charter of Rights would protect - Charter of Rights can only protect

minority groups ie. Aboriginals people within the limits of the rights
it lists

- Common law is too slow to meet - It may mean that the judiciary would
contemporary needs take on a political role because it
would have to decide whether the
law infringed on the charter of rights

- It would protect people from - An entrenched charter 1of rights is

government interference with basic difficult to change
rights

- It would adopt a major - A legislative charter of rights is too

recommendation of the National easy to change and can be
Human Rights Consultation amended according to the policies of
Committee the party in power

3. Contemporary issue illustrating enforcement/promotion of human rights

See Treatment of Refugees assignment

 Topic 3: Consumers
Latin Terms:
Caveat emptor - let the buyer beware (eg. the concept of caveat emptor operated)
Laissez faire - leaving things to take their own course, without interference

1. Nature of consumer law

Developing Need for Consumer Protection
Changes to consumerism
Pre-industrial revolution, everyone provided their own goods or knew the sellers of
the few things they needed to buy
During industrial revolution, people worked in factories to receive money to buy
goods or services, wide range of new goods became available
Became easier for people to be misled or sold defective products
Concept of caveat emptor operated
Governments thought they shouldnt interfere with private negotiations
Notions of caveat emptor and laissez faire didnt provide protection for consumers
State became increasingly involved
Factories and Shops Act 1912 (Cth) deals with misleading and deceptive adverts.
Sale of Goods Act 1923 (NSW) goods should be of merchantable quality
Advances in tech meant more advertising and use of credit meaning more hazards
Production of goods became more efficient, luxury items became cheaper
Increase in consumption caused greater concern for consumer protection
World-wide consumer attitude led to establishments of consumer groups such as
Australian Consumer Association in 1959
 International Organisation of Consumer Unions IOCU was established in 1960 led to
international recognition of consumer rights and more extensive laws in Aus
Basic consumer rights list was established in 1962 containing 8 basic rights including
the right: to safety, to be informed, to choose, to be heard, redress etc.
Globalisation (growing economic and social interdependence and the movement of
goods and services world-wide) brings many challenges to consumer protection

Case Study 3.1 - Donoghue v Stevenson (1932) AC 562 (House of Lords)

Mrs Donoghue visited cafe with a friend whose ginger beer has a decomposed snail in the
bottom causing gastro. Court decided that it was the manufacturer, not the seller, who
owed a duty of care to potential consumer, Mrs Donoghue was paid damages.

Definition of Consumer
Person who acquires goods or services in a transaction for his/her own personal or
household use
Trade Practices Act 1974 (Cth) people who acquire goods for under $40 000

Objectives of Consumer Laws

Equalise bargaining power between consumers, sellers and manufacturers
Protect rights of consumers
Assist in resolving disputes between consumers and suppliers
Provide redress when problems between consumers and suppliers arise

Types of Contracts
Contracts are legally binding agreement
2 main types:
Contract for goods and services
Contract for credit

Elements of a Contract
Offer and acceptance - one party offers something and the other party accepts it
Consideration - exchange of value
Intention to enter legal relations - the intention of both parties to enter into legal
relations
Written and oral contracts - oral contract (only enforceable after contract is carried
out) or written contract has been made between the parties
Terms of Contracts
Promise contained within the contract. Terms can be categorised as:
An express term - actually spoken or written into a contract
An implied term - a promise that a statute or common law puts into the contract eg.
if someone enters a contract to buy a chair, its implied that its fit to sit on
A condition - a term fundamental to the contract, without condition contract does not
exist eg. someone enters contract to buy the chair for $30 but only pays $15 when it
comes to it then there is no contract
A warranty - part of the contract but no fundamental

Exclusion Clauses
Incorporated into contracts to try and limit a party's liability that would otherwise
breach the contract
Often only apply in very particular circumstances

Implied Standards
Competition and Consumer Act 2010 (Cth) and Fair Trading Act 1987 (NSW) imply
terms into consumer contracts relating to the standard of goods
There are 5 basic standards implied into a contract;
- The person supplying the goods has the right to do so
- The goods fit the description
- The goods are of merchantable quality
- The goods are fit for their purpose
- The goods match any samples that were provided
Voluntary standards (developed by Standards Australia) are standards that suppliers
may follow so that they can assure consumers of the quality of their products
Mandatory Standards are standards that are made compulsory by legislation such as
Competition and Consumer Act 2010 (Cth)
Suppliers of goods that are banned or do not comply with mandatory standards may
be fined up to $1.1 million for corporations or $220 000 for individuals

Case Study 3.2 - Australian Competition and Consumer Commission v Skippy

Australia Pty Ltd (2206) FCA 1343
 After receiving information from the ACCC, the DPP laid several charges against Skippy
Australia for allegedly failing to meet mandatory standards on some of their products. The
Federal Court found the products of topic did not comply and was fined $860 000.

Unjust Contracts
Regulated by the Contracts Review Act 1980 (NSW) which defines unjust
Courts look at the circumstances surrounding entry into the contract
Some factors include:
- Age, literacy and education of the parties
- Mental capacity and state of intoxication of the parties
- Way in which the contract is expressed
- Whether any undue pressure was applied to either party
- The opportunity for negotiation

Statutes and common law will not enforce contracts if one party, because of
language problems, does not understand the contract
Remedies for breach of a contract include: repair, refund, replacement, payment for
damages rescission and modification of product, special orders or performance and
injunctions

Case Study 3.3 - Blomley v Ryan (1956) 99 CLR 362

Ryan, while intoxicated, contracted to sell his farming property to Blomley for a price well
below market value. The court ruled that it was an unjust contract and so would not be
enforced, this was decided under common law rules.

Role of Negligence in Consumer Protection

Consumers enter contracts with the seller, not the manufacturer
Third parties to a contract (not an actual party of the contract) who may suffer loss
because of a breach of the contract cannot have it enforced
The law of torts provides a way for third parties to a consumer contract to receive
damages for loss
If a consumer suffers damage because of the negligence of a manufacturer, the law
of torts provides a remedy, see Case Study 3.1
Competition and Consumer Act 2010 (Cth) stipulates that manufacturers and
importers must make certain guarantees, one of which is merchantable quality
 Consumers can claim against manufacturers despite there being not contract
Amendments to the Trade Practices Act 1974 in 1992 allows consumers who are
injured as a result of defective goods may claim compensation from the manufacturer
That person does not need to prove negligence, breach of contract or breach of
statutory duty

Regulation of Marketing and Advertising

Statutory Controls:
General Standards - consumers relying on producers advertisements to be honest and
ethical, the general standard expectation can be enforced by common law
Competition and Consumer Act 2010 (Cth) and the Fair trading Act 1987 (NSW)
operate to protect consumers from unfair advertising and marketing practices
^^ These pieces of legislation state that sellers of goods and services cannot engage
is misleading, deceptive or unconscionable (unfair) conduct

They also prohibit practices such as bait and switch advertising, harassing customers
to buy certain products, unordered goods etc.
Other legislation include Motor Dealers Act 1974 (NSW) which states that motor
dealers must provide certain information to potential buyers of second hand cars

Case Study 3.4 - ACCC v Prouds Jewellers Pty Ltd (2008) FCA
Prouds advertised jewellery using price comparisons such as was $199/ now $99.99,
however, the products advertised had not been offered for sale at the was price
immediately prior the sale period of now prices. The Federal Court ruled that it was
misleading advertising and in breach of the Trade Practices Act 1974 (Cth). Prouds
consented to implement a trade practices compliance program.

Direct Commerce - goods being advertised at consumers homes ie. door-to-door or

telephone sales
Product Certification - process confirming the goods/services meet relevant or necessary
standards eg. ticking that a product meets health standards or claiming that their products
are green

Non-statutory Controls:
The Advertising Standards Bureau (ASB) administers a national system of
advertising self-regulation
 The ASB can investigate through the Advertising Standards Board or Advertising
Claims Board complaints about most forms of advertising
Other self regulatory codes include:
- Australian Association of National Advertisers (AANA) Advertiser
Code of Ethics
- AANA Code for Advertising and Marketing Communications to
Children
These codes must be adhered to be advertisers
Advertisers benefit from ensuring advertisements meet community standards as
consumers are more likely to be influenced by the ad if they trust its integrity
Complaints can be made to these bodies above who can order withdrawal of the
advertisement
The effectiveness of non-statutory controls is often called into question as some
argue that self-regulation is not sufficient to regulate the industry
Non-statutory controls work in conjunction with statutory controls

Case Study 3.5 Myth-busting Coke Adverts get Busted

Coca-cola released a series of advertisements stating that various myths such as coke
making you fat, being packed with caffeine and causing tooth decay had been busted. The
ACCC found the advertisements to be totally unacceptable and likely to mislead
consumers that coke cannot contribute to weight gain, obesity and tooth decay. The
ACCC stated that this highlighted the failure of the advertising industry to self-regulate
effectively.

Occupational Licensing
A permit to practice in a particular profession or occupation
Many occupation require specific knowledge and people cannot practice that
profession without the appropriate license
This allows consumers to know they are dealing with qualified people
Occupational licensing occurs through either state or self-regulation
Self-Regulation:
- When a particular trade/occupation imposes its own licensing restrictions on
workers in that occupation
- Adopting codes of practice which list obligations of members in that
occupation
 - Eg. most accountants are members of the Certified Practicing Accountants
Australia (CPA Australia)
- The effectiveness of self-regulation is often called into question by the finding
of the Advertising Standards Bureau that some Coca-cola were found
acceptable when the same adverts were later found totally unacceptable by
the ACCC
State Regulation:
- In some industries, permission to practice is regulated by the state
(government regulation)
- Licenses to repair motor vehicles are granted under the Motor Vehicles
Repair Act 1980 (NSW) and are renewed yearly
- The Motor Vehicle Industry Repair Authority (MVIRA) oversees the granting
of licenses
- Travel agents must be licensed under the Travel Agents Act 1986 (NSW)

Combined State and Self-regulation:

- Co-regulation is used in the law industry
- In 1994 the Legal Services Commissioner was established through
amendments to the Legal Professions Act 1987 (NSW) because of
complaints by consumers of the ineffectiveness of the Law Society and the
Bar Association in investigating complaints against legal practitioners

Advantages of Occupational licensing:

- Consumers know they are dealing with skilled reliable people
- Regulation can enforce businesses to examine their practices
- Licensing enhances the reputation of the whole industry

Disadvantages of occupational Licensing;

- May be time consuming
- Can create monopolies
- Self-regulatory frameworks may not be sufficient to adequately protect
consumers

2. Consumer redress and remedies

Consumer redress refers to the way consumers can achieve a just outcome for a
consumer transaction where they were wronged
Ways consumers can gain redress:
 - Self-help
- State government organisations
- Federal government organisations
- Industry organisations
- Tribunals and courts
- NGOs
Remedies available to consumers are numerous

Awareness and self-help

In many cases the best method for redress is to go directly to the person/business
that wronged you
Most businesses rely on good customer relations and so are willing to replace, repair
or refund for defective items
Consumers have the right to a refund if goods are defective
Awareness is vital to consumers and they should be aware of their rights and be
careful when choosing products

State Government organisations

After self-help, the next best sensible method for redress is to approach the body
which can mediate between the consumer and retailer
Mediation/conciliation can be used where a neutral third party makes suggestions in
an effort to bring the two parties to an agreement
The NSW Office of Fair Trading can supply free written information about consumer
rights and will answer enquiries via phone or email
Has the primary responsibility for investigating complaints about unfair or dishonest
commercial practices
This organisation also can mediate /negotiate with the business but cannot order
them to do anything
Other NSW state government bodies which can provide redress include:
- The Legal Services Commissioner (addresses complaints against lawyers)
- The Health care Complaints Commission (address complaints about health
professionals)
- The NSW Food Authority (ensures compliance with the Food Act 2003
(NSW))

Federal Government Organisations

 The Australian Competition and Consumer Commission (ACCC) - provides
information and guidance to consumers
The Australian Securities and Investments Commission (ASIC) - responsible for
enforcing laws regarding financial services, provide advice to consumers about how
to resolve difficulties they have with a financial service
The Australian Communications and Media Authority (ACMA) - responsible for
regulation of broadcasting, the internet and telecommunications

Industry Organisations
There are many industry organisations that have been established and are willing to
pressure a member who is not dealing with a consumer complaint adequately
Eg. Certified Practicing Accountants of Australia (CPA of Australia) - supervises
accountants
Eg. the Advertising Standards Bureau (ASB) - regulates the advertising industry
Some industries have set up their own dispute settling mechanisms for consumers,
including mediation and if necessary arbitration
Arbitration is when an independent third party listens to the parties dispute and
makes a decision based on the merits of the case
The Financial Ombudsman Service (FOS) - hears complaints about a wide range
of financial services including banking, credit, insurance and investment
If self-help does not work with the financial service when a consumer is unhappy, the
ombudsman will offer mediation
The Telecommunications Industry Ombudsman (TIO) - deals with disputes
regarding telecommunication services

Role of Courts and Tribunals

If the above redress remedies fail, then the consumer can have the matter
determined by a tribunal or court
The Consumer, Trader and Tenancy Tribunal (CTTT):
- Replaced the Fair Trading Tribunal in 2002
- Established by the Consumer, Trader and Tenancy Act 2001 (NSW)
- Has 9 divisions with three specific to consumers: commercial division,
motor vehicles division and the general division
- Can hear disputes concerning motor vehicles with monetary limit of
$30 000 except for cases of new cars which they can order any sum
- CTTT provides quick and inexpensive alternative to court
 - Before the hearing, the tribunal must try bring an agreement between
the parties through conciliation
- Does not have to follow the rules of evidence
- Has to follow rules of procedural fairness
- Legal representation is not usually permitted
- Has power to make a wide range of orders which can be enforced by
courts if necessary

Case Study 3.6 - Scratching the Surface

A consumer complained to the above tribunal to have her new car replaced as it had
defective paintwork on it. The tribunal determined that the car failed the merchantable
quality test and required under the Sale of Goods Act 1923 (NSW) that a new car be
provided to the owner. This was appealed to the Supreme Court by the car Company, but
he judge rejected the argument and said the Consumer Claims Act 1998 allows the
tribunal to order a business to replace goods related to the issue.

NSW and Federal Court systems can hear a wide range of civil matters
NSW Local Courts can hear matter involving amounts of up to $60 000
District Court can hear matters of amounts between $60 000 and $750 000
Supreme Court's hears amounts over $750 000
Courts are often slow and expensive
Courts should be regarded as a last resort
Appeals from the CTTT can be made to the Supreme Court
Class Action: where several people who have been wronged take someone else to
court jointly
Many individuals were unwilling to pursue their case as it was generally a small
complaint and the process of court is to expensive
A High Court decision in 1995 increased the possibility of class action in NSW

Role of Non-governmental Organisations (NGOs)

Provide valuable advice and support to consumers
Two main NGOs include:
- Choice: publishes choice magazine which analyses products
- The NRMA: advises member consumers about their rights against
vehicle sellers and manufacturers
Role of Media
Provide information about faulty products and unfair practices conducted by
businesses
May conduct publicity campaigns on behalf of dissatisfied customers
Advertise new products

Consumer Remedies
Individual remedies:
Court based
Courts may award a number o0f remedies to a successful complainant:
- Damages (monetary compensation
- Injunctions (forbidding or commanding a particular action)
- Special order (rectification of the wrong)
Alternate Dispute Resolution (ADR) - mediation (third party assists in bringing an
agreement) and conciliation (conciliator takes active role in resolving the dispute)

Benefits to Society:
Criminal prosecutions represent social remedy rather than individual
All society benefits from the punishment
Deter offending traders from committing similar offences
Special orders compel businesses to publish corrective advertising

Process, remedies Advantages Disadvantages

1. Awareness and self- - Very inexpensive - May not result in a
help - Quick solution
- refund - Awareness mean
- replacement consumers make wise
- repair decisions in the first place
- Consumers can get their
desired result

2. State and Fed Gov - Very inexpensive - Mediation cannot order

organisations and Mediation - Quick suppliers to do something
- refund - Solution often suits both
- repair parties
- replacement - Desirable result is
reached

3. Industry organisations and - Usually free - May operate to protect

Arbitration - Quick industry rather than
- compensation - Mediation also usually consumer
- refund available - Limited amounts can be
- specific performance - Order is given if no awarded
solution reached

4. The consumer, Trader and - Inexpensive - Limited jurisdiction

 Tenancy Tribunal - Quick - Not as quick and cheap
- refund - Often desirable result for as self-help or mediation
- repair consumer
- replacement
- contract set aside
- wide range of orders

5. Courts - Result can be reached - Very slow

- wide range of orders
- damages
- injunctions and specific orders
for specific performance
- Criminal prosecution
- Corrective advertising
- Wide range of remedies
incl. Damages
- Availability of class action
so less expensive for
individuals
- Very expensive - often
more so than the actual
matter under dispute is
worth

6. NGOs - Can increase consumer - These organisations are

awareness not able to provide
- Can prevent consumer remedies themselves
problems from occurring
- Can place pressure of
businesses

3. Contemporary issue concerning consumers

Credit
The use of Credit:
The purchase of goods and services in advance of future payment
Usually through personal loan or credit card
Consumers pay extra for using credit but its better for the economy as people are
buying more stuff
Problem with credit is some people are lured into buying goods with credit that they
are unable to pay for
Law Relating to Credit Contracts:
Credit contracts are regulated by law so people cant over commit
Consumer Credit Code - set of uniform national rules about consumer credit
transactions
Credit Consumer (NSW) act 1995 (NSW) - adopted the Consumer Credit Code
Types of Credit covered by the Consumer credit Code:
Covers almost all consumer credit transactions
Areas not covered by Consumer Credit Code:
- Credit provided for less than 62 days
- Employee loans
- Investment for business purposes
- Credit provided by pawnbrokers or trustees of estates
The Notion of Security:
Security is an asset which a credit provider has a claim if the borrower fails to pay
their debt
Credit providers generally dont lend the money without security
Mortgages is an agreement where property is provided as security for a loan
Can claim the property if fails to repay
Guarantor is a person who agrees to pay the debts of another person if they fail to
pay the debt
Under the Consumer Credit Code , a guarantor must be supplied with a copy of the
credit contract as well as their rights and obligations

Motor Vehicles and Credit:

Most motor vehicles are bought using credit
When buying a second-hand car from a private owner, consumers should be careful
that there isnt still money owing on that car
Consumers can call the Register for Encumbered Vehicles (REVS) to check whether
there is still money owing to a car

Rights and Remedies of Borrowers:

Borrowers (people borrowing money) are protected in consumer credit transactions
in a number of ways including the areas of:
- Advertising - when advertising credit, the credit provider cannot make
false or misleading representations, must say annual percentage rate
- Fees and charges - details of fees and charges regarding credit
contracts must be disclosed in the contract
- Variation of Contract - if a borrower cannot meet repayments
because of illness, unemployment or for another reasonable cause,
they can then apply to the credit provider, than courts to have the
contract varied

- Unjust Contracts - the Consumer, Trader and Tenancy Tribunal can

change or cancel unjust credit contracts and action can be taken
against anyone who profited from the unjust contract. May be deemed
unfair if: unfair tactics were used against borrower, terms of the
contract are harsh/oppressive or the annual percentage rate or charge
is excessive
 - Overcommitted Borrowers - Courts and the Consumer, Trader and
Tenancy Tribunal have made decisions which say that it is unfair for
credit providers to lend money to a borrower who has no reasonable
ability to repay the loan
- Linked Credit Providers - When a person buys goods from one
company, they sometimes have another company who is there to
provide credit and the two are linked

Rights and Remedies of Credit Providers:

If consumers fail to meet obligations than credit providers also have various remedies
Consumers are obliged to meet all repayments and supply correct information
If consumer fails to supply information of existing debts then they have committed an
offence
If the borrower fails to make repayments than the credit provider can take possession
of the mortgage
If they are going to repossess the house than the creditor must:
- Give one month notice to the borrower
- Obtain a court or tribunal order
- Give notice to the borrower within 14 days of repossession and keep
the goods for a further 21 days during which the borrower can try and
repay the loan
A borrower cannot sell a mortgage without the consent of the credit provider
A mortgage cant usually repossess if more than 75% of the mortgage property has
been paid off and the amount of credit is less than $10 000
To sue the borrower for still owing money, the credit provider must provide one
month notice of the intention to sue
Borrower must be given default notice for not repaying and that includes thirty day
notice of them intending to sue or repossess

Regulations of Credit Providers:

Failure to comply with the Consumer Credit Code can lead to penalties of up to
$500,000
Privacy Act 1988 (Cth) controls the extent to which credit providers can exchange or
access information about consumers

Effectiveness of Legal and Non-legal Responses:

 Most responses involving credit use are legal responses as most aspects of credit
transactions are regulated by the Consumer Credit Code
Non-legal responses include the negotiation of credit contracts
Consumers should shop around for the best credit contract for themselves and
ensure they understand all the terms and conditions
Consumers may be able to negotiate with the credit provider
Legal avenues such as the CTTT are available if negotiations are unsuccessful

Factors that Ensure the Effectiveness of Legal and Non-legal Responses:

Consumers can enjoy use of item before being able to afford it in full
Availability of credit is good for the economy - more consumption
Most consumer credit contracts are well protected under the Consumer Credit (NSW)
Act 1995 (NSW)
The Register of Encumbered Vehicles (REVS) help ensure consumers dont buy a
second hand car that is in risk of repossession
The CTTT can vary an unjust credit contract
Borrowers are obliged to give correct information so the provider is also covered if
payments arent met
Credit providers who break the Consumer Credit Code can be penalised

Factors that Limit the Effectiveness of Legal and Non-legal Responses:

Some consumers overcommit themselves and find that they cant repay the money
they owe - though credit providers should not lend the money if this is likely to occur
Credit providers can vary fees and charges with thirty days notice, the fees and
charges may be substantially higher than those first agreed to by the borrower

Product Certification
Process that confirms that a product or service meets relevant/necessary standards
More common so businesses can claim that their product meet certain safety, health
or environmental standards
They do this so consumers are conscious of those factors and will buy these
products because of the standards they meet
Businesses cannot make false or misleading claims
Common law, Competition and Consumer Act 2010 (Cth) and the Fair Trading Act
1987 (NSW) contain provisions that sellers cannot engage in misleading conduct
Remedies for a sellers false claims includes refund or order to publish corrective
advertising
 Various government authorities responsible for ensuring claims of product
certification are true
Food Authority (each state has their own) ensure foodstuffs comply with the law
NSW Food Authority ensures compliance with the Food Act 2003 (NSW)

Case study 3.7 - Fuze Sparkling Apple Juice Products: Prosecution by the NSW
Food Authority, August 2008
Company P and N Beverages Australia Pty Ltd produced a range of soft drinks with high
fruit juice content claiming they were 99% apple juice, had a certain amount of vitamin C
and no preservatives. NSW Food Authority prosecuted the company in the Local Court for
these claims being false. They pleaded guilty to 11 charges under the Foods Act 2003
(NSW) and was fined $76 000. Appealed severity to district court who reduced fine to $60
000 as there was little intention to mislead.

Effectiveness of Legal and Non-legal Responses:

Two legal responses for product certification include:
- Action can be take by the NSW Food Authority who make
false/misleading claims
- Action can be taken by the ACCC against companies who
misrepresent their products
Non-legal responses:
- Process of product certification is often undertaken by NGOs
- Effectiveness of product certification relies on consumer awareness
- Reputational damage to businesses who fail to certify their products

Factors that Ensure the Effectiveness of Legal and Non-legal Responses:

Product certification assists consumers to know the products they are buying meets
standards claimed for it
Businesses that certify their products meeting requirements can increase sales as
consumers are more willing to buy certified products
Its illegal for companies to make product certification claims that are false and
consumers have many resources and remedies if false claims are made
Businesses who make false claims not only face consumer claims but also
reputational damage
Factors that Limit the Effectiveness of Legal and Non-legal Responses:
Effectiveness of product certification relies on consumers being aware of what the
certification stands for
Well known certification marks such as the Heart Foundation tick make product
certification effective for both consumers and businesses
Certifications not as well known such as the Good Environmental Choice Australia
(GECA) arent as effective as consumers are not aware of its significance
There has been a large increase in the number of complaints about exaggerated
green claims
The ACCC has limited power to deal with false product claims

Marketing Innovations
Several marketing innovations have increased significantly in recent years, being
telemarketing and product placement

Direct Commerce:
Refers to to practices where goods are advertised and bought by a consumer from
their own home (ie. door-to-door sales)
Includes buying products via mail or internet
Has increased enormously in Australia over past years particularly via phone calls
Advantages to consumer include convenience as well as wider range of goods

Telemarketing: Do Not Call Register:

People who dont want telemarketing calls can contact the Do Not Call Register and
list their private or domestic fixed line and mobile numbers
Under the Do Not Call Register Act 2006 (Cth) it is an offence for a telemarketer to
call a number listed on this register or else will face penalties if they cant justify the
call

Case Study 3.8 - 24x7 Direct penalised for ringing numbers on the Do Not Call
Register
The Australian Communications and Media Authority (ACMA) found that 24x7 Direct Pty
Ltd that found that it had made numerous calls to numbers on the Do Not Call Register
and therefore failing to comply with the Do Not Call Register Act 2006. They were fined
$8800.
Cooling-off Periods:
The Fair Trading Act 1987 (NSW) imposes a five working day cooling-off period for
all such direct commerce contracts
Cooling-off period is a time during which a party to a contract can decide not to go
ahead with the purchase without a penalty
During this time the consumer can cancel the contract but must do so in writing
The supplier then has 28 days to collect the goods

Product Placement:
Refers to the placement of a sponsored product or brand into the content of
entertainment
Eg. Reeses Pieces favourite food in the film E.T The Extra-terrestrial, this product
enjoyed an estimated 60% surge in sales following the release of the film
In some countries product placement is illegal
Product placement advertising for cigarettes and tobacco products is prohibited in
nearly all forms of media
Generally, product placement is permitted if it is disclosed
If a product is been advertised through product placement then the media outlet must
tell the audience that it is being advertised

Legal Responses:
Direct commerce, including telemarketing is subject to the same advertising and
consumer laws as all other forms of selling goods
A cooling-off period applies to many direct commerce transactions under the Fair
Trading Act 1987 (NSW)
The Do Not Call Register Act 2006 (Cth) makes it an offence to call numbers on this
register
Product placement of cigarettes and tobacco products is prohibited in nearly all forms
of media
Product placement advertising for products other than tobacco is permitted but must
be disclosed
Non-legal responses include the laws and standards that need to be complied with
by businesses for both direct commerce and product placement, both government
and industry organisations assist businesses to comply with these regulations

Factors that Ensure the Effectiveness of Legal and Non-legal Responses:

Direct commerce and product placement are regulated by several laws
 The ACMA is willing to take legal action against businesses that fail to comply with
laws relating to marketing innovations

Factors which limit the Effectiveness of Legal and Non-legal Responses:

The effectiveness of laws which protect consumers against unfair or unwanted
practices by direct marketeers relies on consumers being aware of the protection the
law offers and upon their willingness to make complaints
Enforcement of product placement disclosure laws relies on compliance by
broadcasters and, because it is a covert and insidious form of advertising, consumers
may not even be aware of that occurring

Technology
Technology is constantly developing which poses problems for existing laws
Three main areas where technology has raised concerns for consumer protection
includes internet shopping, GMOs and privacy

Internet shopping:
Also called e-commerce
Difficult for the legal system to protect consumers from deceptive practices or
defective goods with online shopping
Difficulties include foreign suppliers, accuracy of information and privacy
Foreign Suppliers:
When online consumerism involves foreign suppliers, australian domestic laws do
not apply
Even if the country does have similar laws to Australia, the consumers access to
quick and inexpensive redress forms, is limited
Consumers can contact the ACCC who may be able to use contacts with overseas
consumer protection authorities
The consumer can also contact the relevant regulatory consumer body in the country
of the supplier
Neither of these options is likely to provide a quick or certain outcome for consumers

Information Accuracy:
Information given by suppliers on the internet may be inaccurate and insufficient
Internet consumers must rely on information provided by the business itself as to its
identity
 Internet sites can be changed or deleted quickly meaning that it is very easy for
suppliers to simply remove or move their website so that a dissatisfied consumer
can no longer find the trader

Privacy:
Aus privacy laws will not provide protection when dealing with overseas suppliers

Responses to Problems Posed by E-commerce:

There have been a number of responses so far and there are still a number being
formed
Recent reforms and possible future reforms include industry self-regulation,
government responses, consumer self-protection and education

Industry Self-regulation:
Internet Industry Association (IIA) has developed a code of practice which requires
internet businesses to provide information about the identity and location of the
supplier as well as refund policies, delivery times and cost etc.
Dispute settling mechanisms are also provided by the code
The above mechanisms are similar to those provided by other industry organisations
such as the Financial Ombudsman Service (FOS)
Internet Industry Code of Practice became operational in 2000

Consumer Self-protection:
Consumers can protect themselves from being cheated/disappointed by:
- Comparing products online and in-store with similar products
- Checking the supplier is reputable
- Checking refund and return policies, delivery times and costs etc.
- Using credit cards online only if the retailer has secure
payment system
- Checking privacy provisions
Best way to protect consumers is to educate them about risks of e-commerce and
steps they can take to protect themselves
Government bodies such as the ACCC and the NSW Office of Fair Trading have
issued consumer education material about e-commerce

Government Responses:
Responses to consumer protection on the internet:
 - The Ministerial Council of Consumer Affairs (MCCA) reviews
consumer protection legislation with the view of having standardised
laws across the country to remedy interstate issues easier
- The Australian Guidelines for Electronic Commerce were released by
the Federal Department of Treasury and update guidelines that give
guidance to businesses about how to deal with consumers in e-
commerce transactions
- The Electronic Transactions Act 1999 (Cth) gives electronic
transactions the same weight in law as paper transactions
- ACCCs Scamwatch site establishes cross-border redress
- Australia has negotiated with other countries and international
organisations to establish rules and conventions to regulate e-
commerce
- In 2010 the Australian Government considered joining the United
Nations Convention on the use of Electronic Communications in
International Contracts which was adopted by the UN General
Assembly in 2005

GM Foods:
GM food production has dramatically increased in past years
This raises two issues involving safety and labelling

Safety of GM Foods:
Consumer concern is if they are dangerous to human health
Aus law has addressed the issue by developing a mandatory standard for their
production
Under the Food Standards Australia New Zealand (FSANZ) Food Standards Code it
is illegal to supply any food produced using gene technology unless approval is
granted by FSANZ

Labelling of GM Foods:
Labelling in general of all foods protects the consumers rights to make informed
decisions about purchases
In aus, all foods using gene technology must be labelled

Privacy:
NSW and Federal government have laws to protect privacy of individuals
 These laws are contained primarily in the Privacy and Personal Information Act 1998
(NSW) and the Privacy Act 1988 (Cth)
Cth law has more comprehensive protection as it applies to bodies Australia wide
There is other legislation and codes to protect the privacy of consumers in certain
situations
Under the Privacy Act 1988 (Cth) there are guidelines to protect the privacy of
personal information supplied to commonwealth agencies, credit providers and any
body which holds or uses tax file numbers
The National Privacy Principles contained in the Privacy Act 1988 (Cth) are a set of
principles covering the collection, storage, use and disclosure of personal information
Both state and federal Privacy Commissioners have the power to investigate
complaints from individuals about breaches of the legislation

Legal Responses:
Electronic Transactions Act 1999 (Cth)
Free trade agreements with other nation states
Non-legal Responses:
The Australian Guidelines for Electronic Commerce 2006
Consumers being able to contact the ACCC who may be able to assist with overseas
organisations
Internet Industry Code of Practice 2000
Consumer awareness and self-protection
Scamwatch and www.fraud.org

Legal Responses to GM Foods:

Illegal to supply foods produced using gene technology without approval from Food
Standards Australia New Zealand (FSANZ)
Mandatory labelling of all GM foods

Non-legal Responses to GM Foods:

It is up to consumers to read labels and make informed decisions about their
consumption of GM Foods

Legal responses to issues of Privacy:

Privacy and Personal Information Act 1998 (NSW)
Privacy Act 1988 (Cth), containing National Privacy Principles
Other legislation for particular industries
 Privacy codes of practice developed by specific organisations

Non-legal Responses to issues of Privacy:

It is up to consumers to be careful about the information they provide to organisations
and to make complaints if they feel their privacy has been invaded

Factors that Help Ensure the Effectiveness of Legal and Non-legal Responses:
It is within the interest of e-commerce trader to follow guidelines that protect
consumers
Consumers are best protected through their own awareness
Mandatory labelling and FSANZ standards means that only safe GM foods are
available to consumers and are labelled
There is legislative framework to protect the privacy of consumers
There are provisions for international review and investigations
Factors which limit the Effectiveness of Legal and Non-legal Responses:
Difficult for consumers to access quick inexpensive forms of redress if they are
engaging in e-commerce internationally
Some foods containing GM products are not labelled
Many small businesses are exempt from the National privacy Principles

Case Study - Commercial Bank of Australia v Amadio

An elderly Italian couple who were not fluent in English were listed as security for the
debts of one of their sons building companies. The mortgage included a guarantee that
the parents would be liable for the debts of the company. Their sons explanation to them
was inaccurate and the bank did not explain it to them. The bank claimed nearly $240000
from the parents after the sons business liquidated. The contract was set aside on the
basis of unconscionable dealing by the bank.

Case Study - Beale v Taylor

The defendant advertised a car for sale as being a 1961 Triumph Herald 1200 believing it
to be true. The claimant inspected and checked the car and saw a metal disc at the rear of
the car with 1200" on it and purchased the car. He later discovered that the car was made
up of a rear 1961 Herald Triumph 1200 welded to the front of an earlier model Triumph
 Herald 948. It was held to be a breach of Section 13 despite the fact that claimant had
inspected the car as he relied on the description in the advertisement and the metal disc at
the rear of the car.

Legislation:
Factories and Shops Act 1923 (NSW) - deals with misleading and deceptive
adverts.
Sale of Goods Act 1923 (NSW) - goods should be of merchantable quality
Trade Practices Act 1974 (Cth) - relates to certain trade practices
Contracts Review Act 1980 (NSW) - protects consumers against unfair contracts
Fair Trading Act 1987 (NSW) - consumer protection when dealing with services that
arent corporations, imply terms into consumer contracts
Competition and Consumer Act 2010 (Cth) - hhhhhhhhhhhh
Contracts Review Act 1980 (NSW) - operate so that unjust contracts are not
enforceable, only applies to consumer contracts
Motor Dealers Act 1974 (NSW) - motor dealers must provide certain information to
potential buyers of second hand cars
Motor Vehicles Repair Act 1980 (NSW) - used to grant licenses to repair motor
vehicles
Travel Agents Act 1986 (NSW) - grants licenses to travel agents
Legal Professions Act 1987 (NSW) - regulates the legal profession
Food Act 2003 (NSW) - ensures that the food industry adheres to safe food
production
Consumer, Trader and Tenancy Act 2001 (NSW) - established the Consumer,
Trader and Tenancy Tribunal
Consumer Claims Act 1998 - allows tribunals to order a business to replace goods
related to the issue
Credit Consumer (NSW) act 1995 (NSW) - adopted the Consumer credit code
protects most consumer credit transactions
Privacy Act 1988 (Cth) - controls the extent to which credit providers can exchange
or access information about consumers
Do Not Call Register Act 2006 (Cth) - it is an offence for a telemarketer to call a
number listed on this register
Electronic Transactions Act 1999 (Cth) - gives electronic transactions the same
weight in law as paper transactions
 Privacy and Personal Information Act 1998 (NSW) - law to protect privacy of
individuals

Relevant Cases:
Donoghue v Stevenson (1932) AC 562 (House of Lords) - need for consumer
protection
Australian Competition and Consumer Commission v Skippy Australia Pty Ltd
(2206) FCA 1343 - implied Standards
Blomley v Ryan (1956) 99 CLR 362 - unjust contracts
ACCC v Prouds Jewellers Pty Ltd (2008) FCA - regulation of marketing and
advertising
Myth-busting Coke Adverts get Busted - regulation of marketing and advertising
Scratching the Surface - role of tribunals
Fuze Sparkling Apple Juice Products: Prosecution by the NSW Food Authority,
August 2008 - product certification
24x7 Direct penalised for ringing numbers on the Do Not Call Register -
telemarketing/ Do Not Call Register
 Topic 4: Family
Terms:
De facto couples - couples who live together as though married but arent legally married
In Loco Parentis - in the place of parents
Decree Nisi - court order stating the date a marriage will end unless good reason not to is
provided
Decree Absolute - court's final order officially ending a marriage

1. The Nature of Family Law

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

Difficulty in Defining Family

In modern Aus, there are many people living in many different personal relationships
which they regard as family
What constitutes as family has had major changes in the last 30 years
Australian Bureau of Statistics (ABS) defines family as: two or more persons who
are related by blood, marriage (registered of de facto), adoption, step or fostering and
who are usually resident in the same household
Types of families existing in Australia and numbers according to the 2006 census:
- Nuclear Family: a husband, a wife and their children (46% of
households - includes both married and unmarried couples)
 - Couples without children: (38% of households)
- De Facto couples: (with or without children 15%)
- Blended families: couples with children from previous relationships
- Extended family
- Single-parent families: (16%)
- Same-sex couples: (in 2001, approx 20 000 couples living together)
- ATSI customary law marriages

Legal Requirements of Marriage

Legal Definition of Marriage:
The union of a man and a woman to the exclusion of all others, voluntarily entered
into for life
This definition was given in common law in the case Hyde v Hyde and Woodmansee
(1866)

Case Study 4.1 - Hyde v Hyde and Woodmansee (1866)

John Hyde, a Mormon Englishman, brought an action to divorce his wife because of her
committing adultery after she married another man. She had married another man after
John had been excommunicated from the Mormon Church. They were supposedly
divorced according to the law upheld by Mormons, hence the adultery. Due to it potentially
being a polygamous union, it was not exclusive of all others, so Mr Hydes marriage was
not valid.

Marriage is a matter of federal law

The definition above is contained in the Marriage Act 1961 (Cth)
According to this definition, characteristics for a marriage to be valid include:
- Union of a man and woman
- Voluntarily entered into
- For life
- To the exclusion of all others

Case Study 4.2 - Corbett v Corbett (1970)

Arthur Corbett applied for a divorce after finding out that the woman he thought he married
was actually a man who had undergone a sex change. He applied on the grounds that the
marriage had not been consummated. The court decided that they could not be divorced
because they were never married in the first place because the union was not between a
 man and a woman as the man who had undergone a sex change was still legally male.

Requirements for a Valid Marriage:

Other requirements for a valid marriage outlined in the Marriage act:
- Marriageable age: legal age to marry is 18 but 16 and over can seek
special permission from court to marry
- Prohibited degrees of relationships: may not marry ancestor,
descendant, brother, sister (including full blood and half-blood) or
adopted siblings
- Notice of marriage: 1 month notice of intent to get marriage must be
given to the celebrant
- Valid marriage ceremony: must have two witnesses at the
ceremony, must have an authorised celebrant
- Marriage certificate: issued by celebrant after the ceremony and is
legal proof according to the law

Void Marriage:
Declared void if:
- One of the parties is already married
- The parties are related to each other
- One party did not really consent to the marriage
- One of the parties was not of marriageable age

Alternate Family Relationships

ATSI customary law marriage:
- One entered into according to tribal custom rather than according aus
law
- Not recognised by Aus law, usually treated as de facto relationships
- Advantage to been called de facto is that they can divorce much
quicker and easier
- Disadvantage is they have less of a social status
Single-parent families:
- Increased rates of single parents in recent years can be attributed to:
- Increased divorce rate
 - Change in social attitudes making unwed mothers more
socially acceptable
- Greater financial dependence of women
- Increased government assistance for such families
- Under the Family Law Act 1975 (Cth), amended in 1995 and 2006,
children have the rights to:
- Know and be cared for by both parents whether live together or not
Blended families:
- Married or de facto couple with children from previous relationships
- Stepfathers and stepmothers are not legally responsible for the
children of their partner, nor do they have the same rights (ie.
discipline) as the natural parents
Same-sex relationships:
- Until 1999, same-sex relationships were not recognised by the law at
all
- In 1999 amendments were made to the De Facto Relationships Act
1984 (NSW)
- Was renamed the Property (Relationships) Act 1984 (NSW)
- In 2003, NSW gave its powers to make laws about de facto
relationships to the commonwealth government
- Now treated the same as all de facto relationships
Polygamous relationships:
- Where a person has more than one spouse at one time
- Not legal under Australian Law
De Facto Relationships:
- Man and woman live together as a couple though not legally married
- Numbers of de facto relationships have increased dramatically in the
last 40 years
- The Family Law Amendment (De Facto Financial Matters and Other
Measures) Act 2008 (Cth) operates for de facto relationships if:
- The relationship has existed for two years
- There is a child of the relationship

Jurisdiction in Family Law:

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

Legal Rights and Obligations of Parents and Children

Children:
Child is a person under 18
Children generally dont have legal rights until the child is born
Aus has ratified several international treaties that deal with the treatment of children
Eg. The UN Convention on the Rights of the Child (CROC), contains forty articles,
most of which outline a right of a child
CROC has been incorporated into Australian law in a limited way
Breaches of the CROC can be reported to the Australian Human Rights Commission
4 basic principles of the CROC are:
- Non-discrimination
- Best interests of the child
- Right to life, survival and development
- Right to have views expressed and respected

Parents and Children:

There's both state and federal legislation which aims to ensure that parents fulfill their
duties
These laws establish that children have certain rights
When examining these rights, it is clear that there are corresponding responsibilities
and obligations between parents and children
Name and Nationality:
- Parents are obliged to register their children after birth with the
Registrar of Births, Deaths and Marriages, under the Registration of
Births, Deaths and Marriages Act 1973 (NSW)
- This gives the child a legal name
- Under the Australian Citizenship Act 1948 (Cth), any child born in
Australia is automatically a citizen if one parent is an Australian citizen
or permanent resident
Discrimination:
 - All children have the right to be treated equally before the law
- All children are given the same rights under the Status of Children Act
1996 (NSW)
Care and Control:
- Children have the right to know and be cared for by both parents
under the Family Law Reform Act 1995 (Cth)
- Parents have the responsibility to control their child and are
responsible to some degree for their behaviour
Discipline:
- Parents have the right to administer moderate and reasonable
discipline to their child
- Moderate and reasonable is determined by common law
Education:
- Parents are obliged under the Education Act 1990 (NSW) to send their
kids to a registered school or provide approved home school
- As of amendments to the education act in 2010, students are required
to complete school until year 10 and then to continue either full time
education, training, paid employment or a combination of these until at
least 17 yrs old
Religion:
- Parents have the right to choose the religion of which their children will
be brought up
Medical Treatment:
- Until the child is 14, the parent must seek medical treatment in the
child's best interest even if it goes against religious beliefs
- The Children and Young Persons (Care and Protection) Act 1998
(NSW) gives doctors the power to carry out necessary medical
treatment without parental consent
- Under the Minors (Property and Contract) Act 1970 (NSW), people
over the age of 14 can legally give consent
Contracts:
- People under the age of 18 cannot be bound by contract unless its for
their benefit under the Minors (Property and Contract) Act 1970
(NSW)
Autonomy of Children:
- As children become older they become able to make more decisions for
themselves
 - Some decisions they can legally make under the age of 18 are:
- Consent to medical treatment at 14
- Work at age 15
- Leave home at 16
- Consent to sexual intercourse at age 16
- Drive on a provisional license at 17

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

2. Responses to Problems in Family Relationships

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

Legal Consequences of Separation

Children:
 - Laws regarding the care after the parents of the children separate are
contained in the Family Law Act 1975 (Cth) which changed
substantially by the Family Law Reform Act 1995 (Cth)
- Under the Family Law Act 1975 (Cth), disputes concerning children
must aim to achieve the best interests of the child (heavily influenced
by the CROC)
- When determining best interests, there are two main considerations:
- The childs right to maintain a meaningful relationship with both
parents
- The need to protect them from physical and psychological
harm
- Other considerations include the childs view and relationships
with each parent
- Separating families are required to attend family dispute resolutions
and follow a parenting plan
- If an agreement cannot be made, the court will enforce a parenting
order that deals with matters including the childs living arrangement,
parental responsibility, maintenance, communication etc.
Property:
- If the separating couple reach an agreement to the allocation of
property, then they can apply to the Family Court for a consent order
- If they cannot however reach an agreement, the Family Court will start
at a 50/50 split and adjust as they consider:
- Financial and non-financial contributions
- The effect of the property allocation order on the earning
capacity of each party
- Each partys age, income and financial resources
- Whether each or either party is caring for a child under 18
- Courts aim to be as fair as possible, and have this power under the
Family Law Act

Dealing With Domestic Violence

Any act whether verbal or physical, of a violent or abusive nature that takes place
within a domestic relationship
It can be caused by psychological problems, social problems and financial problems

Violence Between Spouses:

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

Case Study 4.3 - R v Yusuf Aytugrul (2009)

Ms Bayak had moved to escape her ex-boyfriends stalking and harassment before he
found her new address and came and stabbed her to death. This case highlights how
despite increased police powers and court emphasis on preventing domestic violence,
many women still do not feel safe and are not thoroughly protected by the law.

Violence Against children:

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

Effectiveness:
ADVOs are quick, easily accessible, inexpensive and fully supported by criminal law
However, it has been argued that they do little to deter persistent offenders, and they
are only effective if policed
Laws have slowly evolved in response to circumstances not considered before

Factors ensuring effectiveness of the law in Factors that limit the effectiveness of the
protecting domestic violence victims law in protecting domestic violence victims
 - AVDOs are quick, inexpensive, - The extent of domestic violence
flexible and protect the victim in the shows that legal measures do not
future prevent it from occurring

- The number of AVOs issued - Some attitudes still minimise the

annually (22 000) shows that victims seriousness of domestic violence
are willing to take action to stop it means its difficult to prevent
happening again domestic violence from occurring

- Classification of some offences as - Fear of negative responses from the

domestic violence offences means Family Court when applying for
that women can quickly be protected parenting orders may make some
from further violence women reluctant to raise issues of
family violence

- The 2010 establishment of the - Number of domestic violence

Domestic Violence Death Review homicides shows that for these
Team may reduce murders victims, other legal responses have
stemming from domestic violence been inadequate

Roles of Courts and Dispute Resolutions

The Family Court of Australia deals with complex issues regarding marriage, divorce
and children, it provides legally binding resolutions to such matters
The adversarial nature of courts intensifies the conflict, and thus mediation aims to
reduce litigation (courts) to resolve such disputes
They can determine parenting plans
Division of property after separation
NSW state courts have a role in:
- Adoption
- Wills, inheritance and succession
- Most aspects of domestic violence
- Surrogacy and birth technologies
- Care and protection of children
The Family Court of Australia was established under the Family Law Act 1975 (Cth)
This and the Federal Magistrates Court (Federal Magistrates Act 1999 (Cth)) are
known as family law courts
 The Family Court of Australia is a superior court and only hears more complex
matters (ie. complex financial matters)
Most divorces are solved through mediation, reducing pressures on courts time and
save people money
Some people find meditation unsatisfactory in achieving justice

Role of NGOs
NGOs often provide support for families, examples of NGOs:
- Wedley Mission
- Dads in Distress
- Womens Legal Centre
They provide mentoring, support, counselling, relationship advice, assistance in
managing conflict and emotional support for children as their parents separate
Many of these organisations are dependent on donations and goodwill of volunteers
Supply compulsory mediation for separating families

Role of the Media

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

Effectiveness of the Law in Achieving Justice for Parties Involved in Relationship

Breakdowns

Factor which enhance the effectiveness Factors which limit the effectiveness

Parties to a marriage

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

- Agreement about divorce is - Some argue divorce is too easy to

 encouraged so costs and trauma are obtain
reduced

Parties to a De Facto Relationship

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

Parents

- 2006 amendments mean that - 2006 amendments are used by

parents generally have equal shared some to lessen maintenance
parental responsibility payments

- Family violence provisions protect - Family violence provisions may be

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

Children

- Childrens rights rather than parents - Theres allegations that family

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

Other People

- Other people with an interest in the

children can apply to the court to
see the children

3. Contemporary Issues Concerning Family Law

Recognition of Same-Sex Relationships
Homosexual couples have only recently gained legal recognition; though face many
other problems such as being discriminated by insurance companies, and being denied
the right to marriage.
 Legal Responses Non-legal responses

In the Family Law Amendment (De The Australian Human Rights

Facto Financial Matters and Other
Measures) Act 2008 (Cth), separating
de facto homosexual couples are able
to bring property and maintenance
matters to the Family Court or Federal
Magistrates Court
Changes to the Health Insurance Act
1973 (Cth) in 2008 allows same-sex
couples and their children to register
as a family for Medicare and have the
same entitlements
Commission holds inquiries and gives
recommendations to the government
regarding legislation that does not
comply with UN human rights treaties.
In the report Same-Sex: Same
Entitlements, they had recommended
amending federal laws to remove
discrimination
Groups such as the Australian Marriage
Equality and Gay and Lesbian Rights
Lobby have lobby the government and
media to address discrimination

Effectiveness

The federal government passed Marriage Amendment Act 2004 (Cth) reaffirming
that marriage is between a man and a woman, reinforcing their opposition to same-
sex marriages
The law has gradually been changing, though is hindered by religious beliefs as
seen when the government had come close to fully allowing same-sex adoption in
the Adoption Amendment (Same Sex Couples) Act 2010 (NSW)

Changing Nature of Parental Responsibility

Previously, the law had focused on parental rights in a separation i.e. custody and
control over their children, though this has shifted to highlight parental responsibilities
more than anything else. It focuses on shared parental responsibility, family dispute
resolutions, and toughening the definition of family violence.

Legal Responses Non-legal responses

The Family Law Amendment (Shared Community institutions and nationwide

Parental Responsibility) Act 2006 organisations such as Relationships
makes courts take primary and Australia can help separating parents
additional considerations. Primary are negotiate their own parenting
the two main rights, whereas additional agreements
 include the childs wishes, parental DadsLink is a group that focuses on
financial abilities, and so on fathers and their relationships with their
Terminology changes in the legislation children
from custody to residency to living
with are intended to remove any notion
of parents owning and totally controlling
their children

Effectiveness

Such laws have equalised mothers and fathers and emphasised childrens rights to
echo CROC
Law also needs to ensure that parental responsibilities entails more than the child
merely spending half his or her time with each parent

Surrogacy and Birth Technologies

Birth technologies such as IVF and surrogacy raise questions about paternity and the
rights of inheritance. Laws relating to surrogacy differ from state to state, creating
consistency. Commercial surrogacy is illegal in NSW under the Assisted Reproductive
Technology Act 2007 (NSW) though altruistic surrogacies (no reward payments) are
largely unregulated.
Note: The surrogate mother has exclusive custody rights; she cannot be forced to give
up the child.

Legal Responses Non-legal responses

The Status of Children Act 1996 (NSW) Various organisations and lobby
created the presumption of paternity, groups have opposed surrogacy as it
which states that when a woman gives a means of same-sex couples
becomes pregnant by using donor raising children (they have desired
sperm from someone other than her surrogacy be restricted to infertile
husband, the man is presumed not the heterosexual couples)
father of the child born.
In the case of B v J (1996) the childs
father refused to pay maintenance as
his name didnt appear on the birth
certificate; this was rebutted
 Effectiveness

The law has been ineffective in clarifying the rights and responsibilities of
commissioning parents and birth parents, the rights of the child, and removing
inconsistencies between states
There is much need for law reform as these technologies challenge long-standing
views on families and parents

Care and Protection of Children

All of Australia has passed laws regarding family violence (specifically the Children and
Young Persons (Care and Protection) Act 1998 (NSW) for NSW) in order to address
child abuse and neglect. According to the NSW Ombudsman to the Wood Enquiry,
number of at risk of harm reports have been steadily increasing since 2006.

Legal Responses Non-legal responses

Certain professionals are required to Organisations such as the Salvation

report to Community Services if they
suspect child abuse, and a caseworker
will make an assessment to determine
the extent of risk. Police and
representatives from the NSW
Department of Health will protect the
child
Police have powers to arrest the
suspect
Army provide extensive support and
educational services to children in
need e.g. child care centres,
counselling services, emergency
housing
Anglican Church has established
Professional Standards Unit that
investigates complaints involving clergy
and ancillary staff in the sexual abuse
of a child
Child Abuse Prevention Service
(CAPS) aims to educate the
community about child abuse issues
and raise awareness

Effectiveness

In 2007, more than 150 children who has previously been reported to Community
Serviced died at the hands of their abusive parent or carer
 There is no national framework for child protection, and dwindling financial
resources and staff cuts have left the Department of Community Services unable to
adequately protect and support families of victims of child abuse

Legislation:
Marriage Act 1961 (Cth) - defines marriage
Family Law Amendment (De Facto Financial Matters and Other Measures) Act
2008 (Cth) - determines a de facto relationship
De Facto Relationships Act 1984 (NSW)
Property (Relationships) Act 1984 (NSW)
Registration of Births, Deaths and Marriages Act 1973 (NSW) - parent are
obliged to register their babies
Australian Citizenship Act 1948 (Cth) - who is an Australian citizen?
Status of Children Act 1996 (NSW) - gives all children the same rights
Family Law Reform Act 1995 (Cth) - children have the right to know and be cared
for by both parents
Education Act 1990 (NSW) - Parents are obliged to send their kids to school or to
homeschool them
Minors (Property and Contract) Act 1970 (NSW) - people over the age of 14 can
give medical consent, under 18s cannot be bound by contract
Children and Young Persons (Care and Protection) Act 1998 (NSW) - gives
doctors power to carry out necessary medical treatment without parental consent
Adoption Act 1990 (NSW)
Crimes (Domestic Violence) Amendment Act 1982 (NSW) - introduced ADVOs
Federal Magistrates Act 1999 (Cth) - established the Federal Magistrates Court

Cases:
Hyde v Hyde and Woodmansee (1866) - common law that defines a marriage
Corbett v Corbett (1970) - applies for a divorce, but were never legally married
because he married a man that underwent a sex change but he was still legally male
R v Yusuf Aytugrul (2009) - man stalked and stabbed his ex-girlfriend to death
Bulfor v Bulfor (1919) - husband promised to pay his wife 30 pounds per month
while she was in England due to sickness. The parties divorced and the question was
raised as to whether the agreement was enforceable. Agreement was not
enforceable because they did not intend to enter legal relations