Jack Morgan

Legal Studies
Study Notes 2010

LAW AND SOCIETY

LAW AND JUSTICE LAW = A COMPROMISE BETWEEN DOMINANT AND SUBSIDIARY CULTURES

Influences on the law

In democratic nations rules of law ensures that no group exercises
arbitrary power. Everyone is considered equal before the law, with
the individual enjoying value and dignity. No one is to be above the
law. Violations of this have occurred in Darfur and North Korea.
According to former HC Justice Kirby “People simply won’t accept
things that are handed down, they’ve got to be convinced that the
system is rational and fair.”
The law changes in response to changes in community attitudes,
its evolution constant, for example in intellectual property cases and

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fro common law developments like Mabo. In addition to change, the
law needs continuity for people to be able to follow it… The election
of different lawmakers every few years helps instigate change.
The Australian legal system embodies principles of:
• Rule of law, as demonstrated in the case of Justice Einfeld,
achieved through
○ Separation of Powers
○ The Independent Commission Against Corruption.
The transparency it provides is essential to people’s
commitment to the law
• Independence of the judicature
• The right to a fair trial
• Individual rights concerning arrest and questioning
procedures
• Provision of legal aid for the disadvantaged
• The right of a person not to incriminate themselves
• The right of the accused to provide a defence free from state
interference
• The right of the accused to be informed of the crime with
which they are charged
• Freedom of the media
• Active political parties
• Separation of powers into the executive, legislature and
judiciary
• A government free from corruption (the ICAC).
The law is enforceable and publically known, serving the purpose
of regulating society in order for it to function most productively and
harmoniously, and being implemented by sovereign states. The law
is a mechanism of change, e.g. racial discrimination.
In Australia citizens are able to challenge the law formally through:
• Appeals to higher courts
• The Ombudsman’s Office
• Administrative tribunal applications
• Special inquiries and/
• Privacy bodies.
Influences on the law
• Social influences – moral, intellectual and cultural inclinations
of lawmakers affecting their decisions, largely based around
media constructions.
• Cultural influences – religion and tradition affect the content
of the law, e.g. laws on adultery, generally from the
dominant culture…
• Morality – law reflects the morals of lawmakers, and the
morals that they perceive the public as holding – e.g. few
politicians are in favour of euthanasia despite 80% of the
population being so.
• Political influences – parties in power have a tendency
towards passing legislation that reflects their own views, e.g.
the ALP being pro social justice but breaching such principles

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on recent refugee policy so as to secure conservative
electorates.
• Economic influences – those with economic power exert
greater influence over the government having greater access
to political leaders. The law often consequently reflects their
interests. Indeed the mining sector played a key role in the
downfall of PM Rudd.

The nature of law

Law as a reflection of society
In a democratic state laws a created by politicians with the
ultimate intent of accruing public support, and therefore reflect
dominant social values. In this way law is a reflection of past and
present society.
This motivation ensures law’s consistency with community values,
thus remaining relevant, reasonable (a subjective term) and hence
obeyed.
Until as recently as the Australia Act 1986 Australia maintained
some residual judicial ties to Britain, illustrative of the changing
nature of the legal system, once welcoming all British laws under
the doctrine of reception…
An appropriate example of continuity and change is of:
• Indigenous customary law, illustrating continuity & change.
○ Non-recognition of ATSI law was based upon British
society’s ignorance of Indigenous Australian’s social
structure, seeing no evidence of organisation.
○ Christian evangelist’s views then saw reservations
established for ATSI people’s protection, society
perceiving them as if an endangered species.
○ Missionaries encouraged ATSI people to move away
from their traditional customs, society judging them
primitive.
○ Social Darwinism’s acceptance saw colonists seek to
breed out ATSI people and then post WWII reflections
on Nazi genocide prompted more emphasis on ATSI
people’s rights.
○ By 1992 the High Court decision on the Mabo case
reflected another shift in society’s sentiment, towards
multiculturalism and social equality.
Similarly:
• In family law the concept of marriage:
○ Catholic belief held divorce to be forbidden
○ Mid-19th century law permitted divorce, but made it
easier for males to obtain it, as men held a monopoly
over social institutions
○ The notion of science and widespread education saw
ecclesiastic influences decline, and in 1959 the law
changed to grant couples the right to divorce

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○ Finally, in 1975 the concept of a no-fault divorce freed
the system of any bias and stigma.

Customary, common and civil law systems

Customary law systems
Customary law systems are those where laws are based upon
common practice, the law regulating behaviour for optimum social
function. Customs – rules of behaviour, hence laws, are adopted
where modes of behaviour become traditional, breaches frowned
upon. ATSI people have practiced their customary laws for
thousands of years…
Recent recognition of native title in the Mabo case, for example,
illustrates increasing recognition of ATSI people’s customary law
systems, the High Court recognising it to some, undefined extent.
Customary law’s shortfall is how knowledge is localised and not
written down, hence its actual content can be uncertain or the
source of dispute, as in Mary Yarmirr v Northern Territory
(1998) with debate between tribes as to the ownership of the
Croker Islands.
Common-law systems
Based on case law, this system allows for the development of
general legal rules from specific judgements, although in recent
times its importance has been superseded by Statute law.
Based on the principle of stare decisis (doctrine of precedent),
common law employs the adversarial method of presentation, with
lawyers arguing their case before a judge and jury who ultimately
judge which series of events is more credible. Importantly also, the
notion of equity is used as a guide towards justice.
Civil law systems
This is based upon Roman law, wherein the edicts of officials, the
decrees of the Senate and edicts of emperors were the basis of law.
The spread of this system is attributable to Napoleon’s conquests,
and as a legal framework is characterised by:
• Moralistic approaches to legal principles, being influenced by
scholastic views
• Extensive codification, i.e. writing down of laws and equitable
application. Derived from a mistrust of judges, this saw the
judge have to apply a code without resort to precedent
• Absence of a doctrine of precedent, decisions not being
binding upon other cases. Instead the judge plays and
interventionist role, asking questions of witnesses, etc.
• Reliance upon submissions, written submissions bear more
weight than verbal arguments before the judge, witnesses
rarely appearing to be cross-examined, rather sending in
written statements.

Doctrine of natural justice

Natural justice refers to whether a person have been treated fairly
by the legal system, i.e. procedural fairness, including:

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• Right of people to participate in proceedings where they
have a significant interest, often economic
• Administrative law’s requirement a person be given a reason
for a decision against them
• The right of a defendant to a hearing and present evidence
• Freedom from bias on the judge’s part, who sidelines
personal opinions, judging on the discernable facts
• The right of party’s to cross-examine the other’s witnesses,
to test their reliability as a source of evidence
• The right of a defendant not to have previous criminal
offences raised during proceedings, given the prejudice it
inflicts upon their presumption of evidence.
The case of Byrne v Australian Airlines Ltd (1994) invoked
principles of natural justice where Byrne was not given the
opportunity by his employer to defend himself against charges of
theft.
Similarly Waterhouse v Bell (1991) found it unjust for Ms
Waterhouse to be denied a licence to train horses owing to her
husband’s poor reputation, with a perceived bias in the decision-
making process.

re Pinochet (1999)
Here a decision by the House of Lords was overturned on the
basis that one of the judges on the case was affiliated with a
Human Rights charity, which was one of the plaintiffs, and
therefore the ruling against General Pinochet was made by a
biased jurist.

Natural justice differs from natural law in that it concerns

procedural fairness, against abuses of power (e.g. film: The Castle)
while natural law considers laws instilled by God, the Bible, etc…
McKinley 1998 terms the doctrine of natural justice as the
“centrepiece of the common law system for the protection of
individual rights against arbitrary state power”.

The purposes of different types of law

• Domestic & international law
○ Domestic law operates within a set jurisdiction, matters
spanning jurisdictions requiring public international law
– those laws regulation nation-to-nation behaviour.
Domestic law’s function is to
 Protect citizens from violence
 Punish and reform those who violate the law
 Protect citizens’ property and economic rights
 Adjudicate serious disputes
 Endorse moral positions
 Regulate economy
 Assist industrial dispute resolution

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 Prevent discrimination
 National defence, protect sovereignty
○ International law facilitates international consisting of
cooperation as opposed to military conflict. Allocated
also the role of promoting world order, ad hoc war
crimes, for example, have been established…
Examples include the 1988 continental shelf
agreement between the UK and Ireland, and the
Antarctic Treaty of 1959.
Public international law’s limitation is that it only
concerns nation-to-nation relationships, interest
groups, firms and individuals being excluded. A lack of
enforcement also leaves little avenue for peaceful
resolution of disputes, e.g. North Korea breaching the
Nuclear Non-Proliferation Treaty, but only being
punished economically.
The ineffectiveness of international law is highlighted
by how ratification involves domestic recognition,
implying unenforceability…
• Public & private law
○ Public law involves laws concerning the operation of
government & government departments, i.e.:
 Constitutional law relating to government
structure, operation and activity, according to
the constitution
 Administrative law and decisions relating to
government department decisions
 Criminal law has a higher standard of proof than
civil law: beyond reasonable doubt, owing to its
greater seriousness. Here the state prosecutes
cases, as the criminal is held to have wronged all
of society.
Public law seeks to create a framework for the
standards of behaviour a society expects from
members, and the power society is willing to grant to
leaders.
○ Private law involves actions from individuals and firms,
mainly in civil areas of:
 Contract law concerns those legally binding
agreements between parties, consisting of an
offer, acceptance and consideration.

Carlill v Carbolic Smoke Ball Company (1893)

Here Carlill purchased a smoke ball, the consideration of a
contract involving a guarantee that users would not contract
influenza. Having contracted influenza Carlill requested the 100
pounds associated with the guarantee, but it was refused on the
basis that it was a mere marketing tool. In court Carlill argued the
company had made a 100-pound offer, which she had accepted by

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purchasing the product, thus a contract had been entered into, she
gave her side of the consideration, but they failed theirs. The court
agreed, establishing a precedent for contract law.

 Tort law is a civil wrong characterised by

behaviour that had predictable bad
consequences that the defendant failed to
prevent from occurring, with the remedy of an
injunction or compensation.

Fraser v Booth (1949)

Fraser sought an injunction against Booth on the basis of Booth’s
training of hundreds of pigeons, constituting a nuisance to Fraser.
Booth took out a counter-injunction to stop Fraser from disturbing
his birds. Judging Fraser not to be a difficult or odd person, the
court found the birds to constitute a nuisance to Fraser, interfering
with Fraser’s right to physical comfort, ordering the birds be
removed.

 Property law regulates all things able to be

owned, tangible & intangible, including the right
to use, enjoy and dispose of one’s property.
• ATSI customary law
○ Laws were based upon kinship and highly religious in
nature, strange to many westerners, e.g. the hunting
of many animals being taboo.
○ ATSI laws are not written, but based upon stories
passed down orally.

The nature of justice

–JUSTICE IS HIGHLY SUBJECTIVE AND DEPENDS ON ONE’S STANDPOINT. FOR EXAMPLE THE
LAUREN HUXLEY CASE INVOLVED HER BEING ASSAULTED. WHILE THE PERPETRATOR RECEIVED A
24-YEAR GAOL SENTENCE, SHE MUST LIVE WITH HER DEBILITATING INJURIES FOR LIFE…
Access
People’s capacity to access the legal system pertains directly to
justice, insofar as inequitable access is a barrier to equality and
fairness – central concepts to justice. Access is dependent upon
• Knowledge of the law
• Accessibility of legal representation, i.e. legal aid
• Time delays in the court system.
Given that people lack a right to legal representation under
Dietrich v the Queen (1992), there is potential for injustice in the
legal system, although state-funded legal aid seeks to improve
access.
Time delays are a worrying concern owing to:
• Witnesses becoming unreliable as memory fades
• A person charged with a crime and held on remand, but then
found innocent has been subjected to a considerable
injustice

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• Stress is imposed upon parties & their families
• In commercial cases a firm may be unable to operate with
delays on a ruling.
The high expense of legal representation acts is a way in which the
legal system institutionalises inequality. Litigation costs mean only
the wealthy can actively protect their rights. Otherwise the poor are
dependent on Legal Aid, to which they have no guarantee, must still
pay some fees and enjoy access to generally poorer quality
representation.
The appearance of unrepresented persons in court creates a
dilemma for a judge: to do nothing and consciously see to
inequality, or to step in a role of a lawyer, taking sides to protect a
party’s rights, and thereby compromising impartiality in arguments.
Another side is that by not intervening procedures take longer, and
court delays get even longer, another matter reductive to access.

Indigenous Australians
ATSI people are thoroughly disadvantaged in the Australian legal
system, being:
• 6 times more likely to be charged with a criminal offence
than non-ATSI people
• ATSI children being 20 times more likely to be imprisoned
than non-ATSI children
• Having a 15% higher rate of remand (in Victoria)
• Being 13% more likely to have a prison sentence.
These disproportionately high levels are indicative both of ATSI
people’s comparative disadvantage, and of some level of
discrimination by the judiciary.

Equity
Equity involves a correction of justice where law fails to consider
individual circumstances – a concept including the intentions of the
lawmaker. Historically in England the rules of equity were those
used by judges to correct anomalies in common law that more
generally were unjust, despite being right in the precedent case…
Another principle of equity is that people’s intentions are more
important than actions, e.g. if a contract can be interpreted in
multiple ways it is appropriate to find the correct interpretation by
looking at the parties’ behaviour.
Fairness
Fairness refers to the principle that all people should be treated as
equals, with fair outcomes – an ultimate aim not always achieved by
equality (treating people the same). An example is the special
treatment of ATSI people by the court system.
Equality
Equality involves treating people as equals before the law,
deserving of the same treatment as others, e.g. anti-discrimination
legislation.
Human rights

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Legal Studies
Study Notes 2010
The basic entitlements of all humans, human rights are essential to
the just function of society and any law that removes them is by
nature unjust.

Does formal equality before the law hide

institutional inequality?
Institutionalised inequality is where an inequitable situation has
remained so for so long it is nearly customary, e.g. ATSI
disadvantage, NESB migrants, etc. society’s acceptance of such
outcomes reinforces the inevitability of such a situation. Owing to
formalised (legislated) equality’s existance there is a common
misconception that it exists, ignoring the reality of inequitable
outcomes among such marginalised groups. While theoretical
equality exists, therefore, institutionalised inequality prevails,
unaddressed and not widely known of, formal equality thus hiding a
deeper problem.
Presently many of the highest jobs in the nation are held by
women, despite their widespread inequality in barriers such as the
glass-ceilling. With a female PM, Governor-General, Premier and
Mayor of Sydney it could be asked to what extent do such highly
visible, arguably political, stations reflect overall social trends.
Examples of institutionalised inequalities include
• The wealthy’s access to superior legal advice
• Punishments not being case-specific, e.g. fines having
disproportionate impacts
• Aspects of the legal system not being culture approriate, e.g.
migrants & ATSI people having difficulty
understanding/playing the “justice game” (Geoffrey
Robertson QC).

In practice “morals have got nothing to do with the law” Rather the
law is “a game played by privileged men dressed in 16th century
costumes”
Andrew Fraser,
disgraced barrister.

HUMAN RIGHTS
“THE FOUNDATION OF INTERNATIONAL HUMAN RIGHTS IS LOVE […] WE CAN SEE ENOUGH IN
OTHER PEOPLE TO UNDERSTAND THAT THEIR LIVES ARE SUFFICIENTLY SIMILAR TO OUR OWN THAT
WE SHOULD DO UNTO OTHERS AS WE WOULD HAVE THEM DO UNTO OURSELVES”
– FMR HC JUSTICE M. KIRBY
Definition
Human rights are those basic, inherent, inalienable, indivisible and
universal entitlements of humans essential for human dignity and
justice. Features:
• Inherent because they are a birthright
• Inalienable because they cannot be removed

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Study Notes 2010
• Universal because they apply to all persons.
Human rights are also indivisible (equally important) and
interdependent upon each other.
According to Nicholas Cowdery: “IT IS PLAINLY NOT POSSIBLE TO HAVE LAW AND
ORDER WITHOUT HUMAN RIGHTS; BUT IT MUST BE REMEMBERED ALSO THAT IT IS REALLY NOT
POSSIBLE TO HAVE HUMAN RIGHTS WITHOUT LAW AND ORDER – UNDER JUST RULE OF LAW”.
The nature & development of human rights
• Natural law
○ Early Christian teachings asserted the existence of
Natural Law – descended from God’s teachings evident
in the Bible and Ten Commandments (Saint Aquinas).
○ Being from God, natural law was above the state, and
so positive (state) laws were held as of lower authority.
○ The concept of natural law undermines state-
sovereignty by holding them accountable to a higher
power, and as such was attacked by positivists who
saw the state as answerable only to its citizens.
○ Now states are considered answerable to the higher
authority of the international community, with natural
law concepts strongly integrated into legal systems.
• State sovereignty
○ The principle that nations have the right to self-
governance and non-interference by other nations in
their internal affairs.
○ Amidst the French and American revolutions the
concept of popular sovereignty emerged, where the
people exercise sovereignty power by electing
governments of their own choosing.
○ Contemporary sovereignty is based upon the notion
that governments represent the will of their people and
thus should be free to do what they choose.
○ This concept has been invoked to protect individual
nations from international scrutiny for international law
violations.
• Historic constitutional documents/rulings
○ Magna Carta (1215)
 Placed a limit on the absolute power of the
monarch
○ English Common Law
 Allowed for some individual rights, e.g.
• Due process of law
• Habeas corpus
○ English Bill of Rights (1688)
 Brought about a transfer of power from monarch
to parliament, guaranteeing no imprisonment
without trial, free speech in parliament and
making a monarch need parliamentary approval
for raising an army, among other provisions…

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Legal Studies
Study Notes 2010
○ American Bill of Rights (1791)
 Recognised essential human rights.
○ The (French) Declaration of the Rights of Man (1789)
 This was the first attempt at creating a universal
human rights framework, applying not just to
citizens of France.
• Contemporary human rights documents
○ The Universal Declaration of Human Rights (1948)
 Set out the fundamental and unalienable rights
of all human beings, in 30 articles.
 While not legally binding itself, some view it as a
piece of international customary law.

Movements for the recognition of individual human

rights
Abolition of Slavery
In light of French & American revolutions modes of thinking, many
Christians came to see slavery as against the teachings of the
Church and campaigned against it – known as abolitionists. In 1833
Britain banned slavery across its colonies in the Emancipation Act
1833 (UK) – the only motive being the achievement of humane and
liberal principles.
Slavery is prohibited under article 4 of the Universal Declaration of
Human Rights.
The Slavery Convention of 1926 formally prohibited slavery
internationally.
Trade unionism
The Industrial Revolution instituted movements for worker’s rights
with the appalling treatment of workers it prompted. Unions came to
represent worker’s rights on a collective level, with higher
bargaining power. Society’s recognition of worker’s rights to
organise to improve their conditions was a step demonstrating
society’s values to be changing, as new technologies unleashed new
possibilities for the abuse of workers by employers…
Trade unionists were initially seen as revolutionists (banned under
“Combination Acts”), in light of the French Revolution, but the
Tolpuddle Martyrs (1834) helped institute recognition of the rights of
worker’s to seek better working conditions.
Trade union rights now exist in article 23 (4) of the Universal
Declaration of Human Rights.
Universal Suffrage
Initially in NSW voting was restricted to adult males with
substantial property holdings (1842), constituting only 10% of the
population. Gradually the right to vote extended to all adult-male
citizens, and then women in Federal elections by 1902, through the
activities of the suffragettes. All states recognised women’s right to
vote in state elections by 1928.

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Legal Studies
Study Notes 2010
Universal suffrage is protected under Article 21 (3) of the Universal
Declaration of Human Rights.
Universal Education
The Industrial Revolution gave rise to a desire among people for
their children to enjoy a superior standard of living – the best
avenue for this being their education. All classes recognised that
only an education could offer children greater upward social
mobility, and so most countries have public education systems.
The Industrial Revolution also necessitated more widespread
education of the workforce…
The Public Schools Act 1866 (NSW) established a system of state
public schools across NSW.
The right to universal education is protected under Article 26 (1) of
the Universal Declaration of Human Rights and ILO conventions.

Distinguishing between rights

•Moral rights – things that people are morally entitled to, e.g.
one’s right to non-interference of others in one’s affairs
• Customary rights – where custom or common practice
dictates one’s entitlement to something, e.g. the elderly to
have the young give them their seat on public transport
• Legal rights – entitlements clearly given by Common, Statute
or Constitutional law or are enshrined in a Bill of Rights, e.g.
the right to life.
Domestic and international rights
• Domestic rights – those established under domestic law,
applying only to that jurisdiction, e.g.
○ Anti-Discrimination Act 1977 (NSW)
• International rights – those created under international laws,
that are universal, applying equally to all human beings, and
inalienable, but only enforceable in a nation where are
ratified into domestic law, e.g.
○ The International Convention on Civil and Political
Rights.

Types of international rights

• Civil & political rights (1st generation)
○ The subject of articles 3-21 of the Universal Declaration
of Human Rights and of the International Convention
on Civil and Political Rights (ICCPR).
○ These protect individuals from the arbitrary power of
the state.
○ Most Civil & Political Rights are negative, in that they
say what the state cannot do, rather than the state’s
obligations.
○ The case of Toonen v Australia (1994) consisted of
Toonen complaining to the Human Rights Committee
about Tasmania’s prohibition of homosexuality

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Study Notes 2010
breaching the ICCPR. The Committee’s findings
enacted domestic reform.

Toonen v Australia (1994)

Toonen, a practicing homosexual living in Victoria complained to
the Human Rights Committee that his human rights were breached
by the Victorian criminal code that prohibited homosexuality. The
Committee found that, despite been unlikely to be prosecuted, the
illegality of this breached Toonen’s human rights – a ruling that
saw the Commonwealth parliament pass the Human Rights
(Sexual Conduct) Act 1994 (Cwlth), decriminalising homosexuality.

• Economic, social and cultural Rights

○ The International Covenant on Economic, Social and
Cultural Rights (ICESCR) of 1976 is designed to ensure
that people receive all that is necessary for them to
maintain human dignity, i.e. rights such as:
 Equal pay for equal work
 Work and free choice of work
 Form and join trade unions
 Strike
 Receive social security
 Receive special protection and assistance for the
family
 Have an adequate standard of living.
• Solidarity rights (3rd generation)
○ Belong to individuals and humanity as a whole,
including entitlements such as peace and the
healthiness of the natural environment
(intergenerational equity). These are recognised under:
 The Declaration on the Right to Development
 A non-binding resolution of UN General Assembly
in 1984, asserting the right of people to peace.
 The Stockholm (1972) and Rio (1992)
Declarations were agreements on the pursuit of a
more environmentally sustainable future. More
recently the 2010 Copenhagen Summit failed to
see polluters agree to sufficiently reduce their
CO2 emissions.
• Collective Rights
○ Entitlements of an entire group of people, for example
freedom from genocide and self-determination.
○ Some individual rights are also collective in nature, e.g.
freedom of religion & association.
○ An example of self-determination is Arnhem Land,
controlled by its Indigenous People, but sovereign
territory of Australia.

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Legal Studies
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The recognition and protection of Rights in
Australia
• The Australian Constitution – specifically protects rights to
○ Freedom of religion (s116)
○ Right to vote (s24)
○ Trial by jury in criminal matters (s80)
○ The right to have property confiscated “on just terms”
(s51[3])
• Common law – rights under Common Law are mere privileges
considering their easy repeal by Statute Law. An example of
such a privilege is the presumption of innocence.
○ Common Law is also a barrier to the granting of rights
in cases such as Dietrich v The Queen (1992), and
McInnes v R (1979) where legal representation is
held not to be a right, despite it’s disadvantaging
nature, despite establishing a right to a fair trial.
• Statute law – when Australia enters into an international
agreement, domestic law is modified to embody the agreed
to principles. This is most evident in Administrative
(protection from government abuses), Anti-Discrimination
and Criminal (i.e. fair trial, public hearing, etc) law.
Recognition is most evident in:
○ Administrative law – those dealing with the rights &
duties of citizens dealing with government bodies.
 This protects individuals from abuses of power by
the government – with all courts in the hierarchy
having powers to overturn unjust decisions.
• Tribunals such as the NSW Victims
Compensation Tribunal also see to the
compensation of victims of crimes which
adversely affect their financial
circumstances
○ Anti-discrimination laws – these have prohibited
discrimination against individuals on the basis of a
variety of criteria.
 These include the Anti-Discrimination Act 1977
(NSW) and a host of other Federal Acts including:
• The Sex Discrimination Act 1984 (Cwlth)
• The Racial Discrimination Act 1975 (Cwlth)
and/
• The Human Rights (Sexual Conduct) 1994
(Cwlth).
• Criminal law
○ The rights of victims and perpetrators of crimes have
come to be increasingly recognised. This is clear in:
 Victims

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Legal Studies
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• Nicholas Cowdery [QC] claims “SOCIETY, WHICH
PROVIDES AND CONDUCTS THAT PROCESS, HAS AN
OBLIGATION TO ASSIST THEM THROUGH IT”.
• The UN Declaration of Basic Principles of
Justice for Victims of Crime and Abuse of
Power (1985) dictates the minimum rights
of victims of crime.
• The Victims Rights Act 1996 (NSW)
provides for the basic rights of victims of
crime as well.
• The advent of Victim Impact Statements
allowing victims and input into sentencing
procedures
• The Criminal Injuries Compensation Act
giving birth to the NSW Victims of Crime
Compensation Tribunal
 Offenders
• International law also provides for the
rights of defendants and the imprisoned…
An Australian Bill of Rights
In 1985 the Australian Human Rights Bill failed to pass in the
Senate and was withdrawn. Justice Kirby asserts the rigidity of the
Australian Constitution, “one of the most difficult in the world to
amend”, makes governance in need of “alterations and of fresh
thinking”, all on the subject of Australia’s low propensity to accept
constitutional amendments.
In 2010 Commonwealth Attorney-General McClelland announced
the Federal government not to be introducing a bill for a referendum
on a Bill of Rights, despite 80% of respondents being in favour.

For Bill of Rights Against Bill of Rights

Australian law affords inadequate Rights are already well protected.

HR protection.
Universal rights would see greater
recognition.
The people would be empowered.
Australia’s HR observance would be
brought in line with the international
community.
Australia would meet international
obligations.
Protecting minority’s rights would
enhance Australian democracy.
Rights would ascend above politics.
Government policy and decision-
making would improve.
Acceptance and understanding
The political system guarantees HR
protection.
Politicization of the judicature.
The Westminster tradition of
parliamentary sovereignty would be
undermined.
Restricts rights by limiting them to a
single definition.
Would fail to consider changing HR
concepts.
Heightened expense.
Rights merely being listed would
make no difference to the protection
of fundamental freedoms.

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would be promoted.
The Bill would serve educative
functions.

Present recognition and enforcement of human rights in

Australia
“IT DIDN’T REALLY SEEM RIGHT FOR ME TO BE LOOKING AT HUMAN RIGHTS IN OTHER
COUNTRIES AND FORGETTING THEM IN MY OWN”
–FMR HC JUSTICE M. KIRBY
Indigenous Australian’s rights in particular have come to increase
over past decades, with recognition of their customary rights. These
are include

• Yanner v Eaton (1999)

○ The High Court found Yanner had a customary right
to hunt crocodiles, overriding Queensland licence
legislation.
• R v Anunga (1976)
○ Requires an interrogator and “prisoner’s friend” to be
present for interrogations of non-English fluent ATSI
people – a right to an interpreter among non-English
speakers.
• R v Izumi (1996)
○ Found Izumi’s police interview, which sounded like a
confession to be inadmissible as evidence, given that
how she used the word “kill” varied from the more
mainstream meaning. Those not fluent in English
therefore have the right for this to be taken into
account.

The International protection and enforcement of

Human Rights Law
Protection of Human Rights under international law
• United Nations Charter 1945
○ Articles 1, 55 and 56 of this document safeguard
human rights amongst UN member nations
○ In a 1971 recommendation the ICJ held the UN
Charter’s human rights provisions to be legally binding
on member nations.
• International Bill of Rights
a. Universal Declaration of Human Rights 1948
b. International Covenant on Civil and Political Rights
1966
c. International Covenant on Economic, Social and
Cultural Rights 1966
• Regional treaties
○ The European Convention for the Protection of Human
Rights and Fundamental Freedom 1953

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○ The African Charter on Human and People’s Rights
1981.
• International Customary Law
○ Many argue the Universal Declaration of Human Rights
to have been integrated into international customary
law, thus being jus cogens (compelling law).
Enforcement of International Human Rights law
• Charter-based bodies – international organs granted
authority by the UN Charter
• Treaty-based bodies – international organs granted authority
by various treaties.
• Specialised agencies
• Regional organisations
• NGOs
Charter-based bodies
The Commission on Human Rights is the main charter-based body
concerned with human rights enforcement, with activities such as:
○ Making studies
○ Preparing recommendations
○ Drafting international treaties & resolutions
pertaining to human rights and/
○ Investigating alleged human rights abuses, from
individuals, groups, NGOs and countries.
 Investigation takes places through specially
established Working Groups or Special
Rapporteurs.
Other charter-based bodies include:
○ The Sub-Commission on the Prevention of Discrimination
Against and Protection of Minorities
○ The Commission on the Status of Women.
Treaty-based bodies
These treaty-derived organs include the:
• Human Rights Committee (monitoring ICCPR 1966)
HRC
• Committee on Economic, Social and Cultural Rights
(monitoring ICESCR 1966)
CESCR
• Committee on the Elimination of Racial Discrimination
CERD
• Committee Against Torture CAT
• Committee On the Elimination of Discrimination Against
Women CEDAW
• Committee on the Rights of the Child
CROC
These committees use enforcement measures such as:
• Reporting procedures
• State versus state complaints
• Individual complaints against states, e.g. Toonen v
Australia (1991) and A v Australia (1997).

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It is highly significant to note that with UN organs like the Human
Rights Committee it is an inevitability that those member nations
judging others will sometime have their own serious breaches taking
place domestically, something able to make resolutions VERY
shallow…
Specialised agencies
• United Nations High Commissioner for Refugees (UNHCR)
est. in 1951, to provide international protection to refugees.
• International Labour Organisation (ILO) est. 1919 to protect
workers’ rights
Regional organisations
Groups enforcing regional human rights treaties, e.g. the European
Court of Human Rights enforcing the European Convention for the
Protection of Human Rights and Fundamental Freedom 1953. These
are often more effective than global organisations in obliging human
rights observance, given the more immediate benefits/sanctions
that they are able to offer.
Non-Government Organisations
Provide independent information to treaty monitoring committees,
while also being able to bring attention to abuses and raise
awareness through the media. An example is Amnesty International.

Non-legal measures for promoting human rights

Human rights abuses are brought to the attention of enforcement
mechanisms through non-legal institutions such as:
• International human rights organisations
• Political institutions
• The media
• Lobby groups
• Business firms.
Thee media in particular raises public awareness of abuses,
thereby giving rise to the condemnation that often proves central to
their being addressed. Similarly the mechanism of the internet
offers a means for human rights promotion, as Google in China has
demonstrated – serving as a mechanism for the organisation of
protests and spread of human rights information.
Non-legal institutions apply pressure to governments through
• Letter writing campaigns
• Bad publicity in the media and/
• Public demonstrations.
An example of such an Institution is Amnesty International, a very
large NGO that raises awareness of human rights situations –
claiming very few nations do not commit violations, Australia not
being one of them. Amnesty International, grounded strongly in the
internet, makes particular use of letter writing to human rights
abusers to remind them that they are answerable to a higher
standard for their actions – an international community that is
interested and concerned over their breaches.

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Human Rights Watch is another such organisation, lobbying
governments to take action against those violating human rights.
Similarly the NSW Council for Civil Liberties seeks to instil the more
specific observance of citizens of NSW civil rights.

Effectiveness of Human Rights law

The acceptance of human rights by non-European nations is
essential for the more widespread recognition and enforcement of
them. This is essential as state sovereignty prevents other nations
from imposing their will: countries must on their own initiative ratify
human rights for international law to be enforceable within them…
While being universal and beyond the power of the state to
eliminate, human rights require the intervention of the state to
actually enforce them, and it is here that the law falls short. A lack
of international enforcement more than economic sanctions means
nation-states can abuse their citizens with impunity as international
law is enforced against perpetrators by the perpetrators themselves
– a farce.
Neither the International Court of Justice nor the International
Criminal Court may enforce their rulings, rather weakly requesting
the perpetrator obeys them, essentially naively asking the offender
punish themselves – reprehensibly ineffective.

Sidenote: the Gaza strip

The blockade of the Gaza strip by Israel preventing humanitarian
aid vessel to help the Palestinians, who have been denied their
right to an identity by the international community in its failing to
label the area as part a nation… This constitutes the denial of the
Gaza people’s collective right to self-determination.

Case Study 1): International Human Rights Issue

Myanmar Speech Transcript
Firstly, before I start the subject of my speech is the struggle for
civil and political rights in Myanmar – denied for 48 years by its
military government. In this speech I will explore the struggle for
human rights in Myanmar, the illegality of their denial, and
evaluate the means by which the international community
responds to the arising challenges. Please also note that I am
unable to cite legislation from the Burmese government because
in Myanmar most laws are not discoverable, and as a dictatorship
they are often not even bothered with. Also please note that the
country names Myanmar and Burma are interchangeable,
although the state is officially called the Union of Myanmar.
Please also note that in Burma laws are not discoverable and its
military dictatorship rarely bothers even passing them through
parliament…
a)

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• Good morning/afternoon. Since 1962 the Union of Myanmar
has been subject to military rule, with the civil and political
rights of its people unconstitutionally suspended.
• In 2008 the United Nation’s General Assembly officially
expressed grave concern at breaches of human rights
including:
 Use of violence against peaceful protesters
 Use of torture and otherwise cruel punishments
 Restrictions on “freedom of movement,
expression, association and assembly”
 Discrimination and violence against ethnic
minorities and/
 Forced labour.
• A major human rights breach by the Burmese government is
the house arrest of Aung San Suu Kyi, the democratically
elected, but arbitrarily detained Prime Minister of 1990.
• Suu Kyi is the leader of the National League for democracy.
Alongside 2,100 other political “prisoners of consciences”
and Amnesty International, she seeks a democratic
government.
• Suu Kyi’s house arrest denies her freedom of movement, her
children’s access to their mother and the right of the
Burmese people to the leadership of their democratically
elected leader.
• Since 1992 a United Nations Commission of Human Rights,
Special Rapporteur has been monitoring human rights in
Myanmar.
b)
• The human rights situation in Myanmar violates a number of
international laws and agreements, and the Bill of Rights of
all eight Burmese state constitutions.
• Despite having only ratified these conventions [PPT] on
human rights, Burma has managed to breach all agreements
to which it is a signatory.
• For example Suu Kyi’s detention breaches articles 2, 7 and 9
of the Convention on the Rights of the Child, with her sons’
access to her being restricted for a number of years.
• Furthermore, of the thirty articles of the Universal
Declaration of Human Rights, which Myanmar has signed,
the junta stands accused of breaching all but four, as
handout one demonstrates.
• While not actually binding upon signatories, this Declaration
has become integrated into international customary law,
with many articles jus cogens, and so constitutes another
breach of international law.
• Additionally as a signatory to the ASEAN charter, Myanmar is
obliged to respect the human rights of its people. It’s failure
to do so constitutes a breach of obligations to ASEAN.

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• Lastly, irrespective of its UN membership, the Burmese
government fails to abide by articles 1, 55 and 56 of the UN
charter, which a 1971 ICJ advisory ruling found to be legally
binding on all member states.
• Myanmar’s human rights conduct is therefore in breach of
 Its own constitutions
 The UN and ASEAN charters
 The Universal Declaration of Human Rights and
 All international agreements to which it is a
party
c)
• The international community has responded with varying
success in curbing Burma’s abuses.
• Symbolically the UN General Assembly strongly condemned
and expressed grave concern at the military junta’s human
rights violations.
• In response individual nations like Australia and the US
applied economic sanctions, but with limited success.
• Having historically denied the legitimacy of the Burmese
government, cutting diplomatic ties the US government has
recently revived political links with the Burmese government
to more effectively lobby for human rights, as in handout.
• This response demonstrates recognition of the
ineffectiveness of disassociation and the effectiveness of
international pressure in instituting domestic reform.
• Myanmar’s dictatorship has also evaded accountability to
the ICJ and ICC by refusing their jurisdiction in agreements
and specific cases.
• This highlights the ineffectiveness of international law’s
enforcement institutions, in holding nations accountable.
• In response ASEAN created the Asian Intergovernmental
Commission on Human Rights to oversee the observance of
basic human rights among its members.
• But lacking the powers of a court to deliver sanctions and
meeting only six-monthly, it is ineffective.
• ASEAN would enjoy greater success in by following the
example of the powerful European Court of Human Rights,
holding extensive powers over members.
• The main difficulties encountered by the international
community in its enforcement effort is that economic
sanctions have barely changed the junta’s status quo.
• The greatest barrier in holding the junta accountable is
national sovereignty. An entitlement to non-interference in
their internal affairs by other nations, this concept facilitates
violations.
• Myanmar’s junta lacks any entitlement to national
sovereignty having assumed power illegally. As the UN
General Assembly acknowledges “the will of the people is
the basis of the authority of government” and the elections

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of 1990 demonstrated the legitimate government not to be
the junta.
• Accordingly other nations ought to abandon policies of non-
interference with the internal affairs of Myanmar.
• A future difficulty, will be determining the legitimacy of any
moves towards democracy and then the restoration of the
human rights of the people of the Myanmar.
• Myanmar allows us to appreciate the importance of human
rights protection in Australia. In Australia, Statute and
Common Law, as well as the Australian Constitution secure
the human rights of citizens.
• An independent judiciary and a democratically elected
parliament are central to the security of human rights in
Australia, and it is through the use of these, and just laws,
that the people of Myanmar may secure their human rights.

Case Study 2) Domestic Human Rights Issue

Asylum Seekers
Australia is historically a nation of immigrants. This has not
prevented the Federal Government’s close regulation of entry into
Australia since it’s founding as a nation, with the Immigration
Restriction Act 1901 (Cwlth).
Since the Migration Act 1958 the Immigration Department has
had discretionary powers with which to detain asylum seekers,
until their identity is confirmed. Indeed the Migration Amendment
Act 1992 made this detention to be compulsory.
With both domestic and international law defining an asylum
seeker as a person fleeing persecution in their home country, the
government is arguably breaching principles of natural law by
affording those fleeing bad treatment with similarly arbitrary
penalty.
The continual flow of asylum seekers into Australia demonstrates
mandatory detention not to act as a deterrent, their flow also
evidencing them to be bona fide refuges, fleeing persecution. It is
morally wrong for such people who have suffered persecution to
endure it AGAIN in the place to which they’ve fled to avoid it…
With it not a criminal offence to enter Australia without
authorisation, the detention of asylum seekers is one issued upon
them WITHOUT A CHARGE. This is a breach of the UDHR: “No one
shall be subjected to arbitrary arrest, detention or exile.”
Mandatory detention also breaches the Declaration’s 14th article
(1): “everyone has the right to seek and enjoy asylum from
persecution in other countries.” Treatment of asylum seekers is
also in breach of
• The 1984 Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishments

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○ No person should be returned to a country where
they may experience torture
 Immigration officials are free to return asylum
seekers to the country they flee at any time
• The 1966 International Covenant on Civil & Political Rights
○ All individuals have a right to life
 The return of asylum seekers to the country of
their persecution with inevitably cause deaths
○ All individuals have a right to live free from arbitrary
arrest
 Not being charged with anything, detained
asylum seekers are detained arbitrarily
○ Asylum seekers have a right to have cases heard in
court without delay
 Delays of 12 months exist for any court case
involving asylum seekers
• The 1989 Convention on the Rights of the Child
○ It is a responsibility of the state to prevent the
imprisonment of children.
 Many children have been imprisoned.
○ Children should not be arbitrarily deprived of their
liberty (article 37 (b))
 Many children have been imprisoned in the
absence of a charge and without adequate
legal access.
○ Children ought not be separated, without good
reason, from their children (article 9).
 Families are regularly separated in detention
centres (also contrary to ICCPR)
○ The state is obliged to provide for the education of
children (article 28)
 Education is not being adequately provided to
detained children.
• The 1951 Convention Relating to the Status of Refugees
○ Refugees should not be punished for illegally entering
a country.
 The government gets around this by basing
detention upon the confirmation of their
refugee status…
• The 1967 Protocol Relating to Refugees

Note that Australian state sovereignty prevents any enforcement

of such principles… The facts that most Australian international
commitments are not ratified by law, the Constitution safeguards
few human rights and no Bill of Rights exists means that the High
Court has had no choice but to find it legal for refugees to be
detained indefinitely, as well as children. Such rulings are contrary
to principles of natural justice, and (retired) HC Justice Kirby

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identifies a case challenging the detention of asylum seeker
children to be the toughest of his career, with “a manifestly unjust
outcome” reached through his application of the law as it is
written (as opposed to how it ought to be).
It is highly significant to note that Australia ratified CROC on the
proviso it did not have to comply with article 37(c), thereby
allowing for the imprisonment of asylum seeker children…
Contrary to the government’s stance of refugees posing a
national security threat, the Director-General of ASIO concedes not
a single boat to have contained a single genuine security risk.

The present refugee situation has all asylum seekers lacking

documentation being automatically detained. The Immigration
Minister possesses an excessive level of discretion over cases, all
met with limited accountability, hedging high culpability. It is not
uncommon for the psychological anguish of despair and
helplessness among detainees to translate into serious mental
health issues like depression, post-traumatic stress disorder and
other forms of psychological damage, with the longest period of an
asylum seeker in detention being 7 years…
Detention has a disproportionate effect upon children espousing
mental illness symptoms of mutism, anti-social behaviour,
bedwetting, fasting, post-traumatic stress disorder and self-harm.
While contemporary government actions have been taken, with
the removal of most children from detention, etc, the issue
remains a foremost one. Questions of social justice remain and the
fact that the government has not legislated to PREVENT further
imprisonment of children, evidences non-commitment and perhaps
present measures to have been solely of political motivation.
Questions remain about the inadequacy of provisions for the
education of detained children, while overcrowding poses a
widespread problem as centres are reaching maximum capacity
and opportunities for judicial review have access impediments (12
month waiting time – naturally spent in detention – detainment
without a charge being contrary to international treaty obligations)
…
Australia’s “problem” must also be put into perspective, with a
mere 17th of the volume of asylum seeker applications of the UK in
2002, accepting a mere 1.6% of world refugees. Additionally if
Australia is not to honour its own human rights obligations then its
criticisms of other serious offenders like Myanmar bear little
weight.

“I’VE SEEN MANY THINGS IMPROVE IN AUSTRALIA IN MY LIFETIME, AND IF YOU’VE SEEN THAT
THEN YOU KNOW IT CAN BE DONE”
–FMR HC JUSTICE M. KIRBY

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FOCUS STUDY: CRIME
THE CRIMINAL LAW SYSTEM “WHERE LAW ENDS, TYRANNY BEGINS”
–Pitt 1770
Types of Crime
• Crimes against persons
• Economic crimes
• Crimes against property
• Crimes against the state
• Drug offences
• Public order offences
• Traffic offences
• Victimless crimes
• Preliminary offences.
Crimes against persons
Homicide
Where a person is unlawfully killed. A causal relationship must be
established between the actions of the accused and the death. A
distinction is made between deliberate and careless actions –
considered in sentencing.
Homicidal situations
1. An Act took place with a deliberate intention to kill, e.g. R v
O’Grady (2000)
2. There was a deliberate Act designed to inflict serious harm
that caused death.
3. There was a reckless indifference to human life resulting in
death – the accused’s knowledge of this must be
demonstrated.
Constructive murder is where, not wanting to, in the commission of
another crime one kills.
From 2003-2005 only 71 murders occurred – not a common crime.
Manslaughter is killing where there is a defence:
• Involuntary manslaughter – the accused lacked intent but
acted negligently.
• Voluntary manslaughter – the accused intended to inflict
death, but mitigating factors existed.
Manslaughter occurred in the case of R v Clarke (2001) & R v
Marsh (2001) where in the robbery of Ms Bui’s handbag the
defendants accidentally drove over her head.
Infanticide involves a mother killing her child within 12 months of
its birth while death by reckless driving is a charge where driving
was in some way careless and irresponsible – max penalty of 14
years. Similarly on the road failing to stop after hitting someone is
punishable by up to 10 years imprisonment under the Crimes
Amendment (Road Accidents) Act 2005 otherwise known as
Brendan’s law, after the case of small boy Brendan dying in such
circumstances. The quick passing of this law demonstrated high
responsiveness… Similarly “Byron’s case” prompted the Crimes

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Amendment (Grievous Bodily Harm) Act 2005 or “Byron’s Law” to
make the assault of a pregnant woman occasioning the death of her
unborn baby to be classifiable as murder (formerly a foetus being a
person only after its first natural breath…).
Australia has a murder rate of 1.5 per 100,000.
Assault
The use or threat of use of physical harm to another person. The
assault is known as battery, but cases make no distinction – e.g.
Barton v Armstrong 1973.
The 2007 media article “Time to get tough” records between 2006-
07 832 non-domestic assault of persons over 65, illustrating
predatory tendencies among criminals and a need to tougher
deterrence…
The Crimes (Domestic and Personal Violence) Act 2007 (NSW)
made domestic violence be separately dealt with by a criminal law…
Assault is acceptable in cases of consent and self-defence.
Sexual Assault
Sexual contact with someone lacking consent, or the capacity to
give his or her consent, e.g. minors (statutory rape). Consent is
irrelevant under duress, given mistakenly or if they do not know
they are giving consent. Aggravated sexual assault involves the use
of excessive force, the victim being an unconsenting minor, or the
victim being of a disability.
Enforcement is an issue, only 10% of matters reported to the
police ending in conviction, owing to the highly emotive state of
victims. Enforcement is particularly low considering how few even
report to the police… This is because offences reported some time
after the fact are notoriously difficult to prove, being a matter of
conflicting testimonies.
Improvements on court procedures include
• Victim’s entitlement to have testimony videoed to avoid the
double-trauma of court in retrials…
• Sensitive evidence like photos no longer being accessible for
the gratification of the perpetrator…
• Support persons being available for victims…
A proposal has been made for the establishment of a special Rape
Court.
The Crimes Amendment (Child Pornography and Abuse Material)
Act 2010 NSW removed the artistic merit defence to a child
pornography charge, renaming it “abuse material” in recognition of
its high reprehensible nature, and clarifying definitions for more
effective enforcement.
Economic crimes
The Crimes Act 1900 outlines over 200 economic crimes, with
codification, application of national consistency and keeping pace
with technological change upheld by the recent Crimes Amendment
(Fraud, Identity and Forgery Offences) Act 2009 NSW. This also
covers offences committed in other jurisdictions where the effect is

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within NSW (i.e. via computers, international identity theft
syndicates, etc).
Crimes against property
• Larceny or theft – the removal of someone’s property without
consent. It must be proved that the accused intended to
steal the item – as in R v Potsik (1973).
• Breaking and entering – when a person illegally enters a
property to commit an offence.
• Robbery – the accused takes a person’s property directly
from them or their vicinity. It is more serious given the
frequent involvement of violence or threats of violence.
Armed robbery is where a weapon is used, as in R v Henry
et ors (1999).
White-collar crime
Committed by professionals in the context of business.
• Tax evasion – fraudulent completions of a tax return or use
of suspect techniques to illicitly reduce taxation liabilities.
• Computer crime – use of computers for the purpose of
stealing, defrauding, spreading viruses and breaching
copyright.
• Insider trading – where a person with special knowledge of a
company uses this knowledge to buy or sell securities, giving
an unfair advantage on financial markets, e.g. R v Rivkin
(2003).
Crimes against the state
Sedition and treason are held as acting against the entire state,
and are treated as such, often having very harsh penalties, e.g. R v
Sharkey (1949). The Anti Terrorism Act 2005 (Cwlth) was a
reaction to global terrorist threats, construing it treason… The
Terrorism (Commonwealth Powers) Act 2002 (NSW) deferred such
powers from NSW to the greater power of the Federal government.
altogether the NSW Terrorism (Police Powers) Act (NSW) 2002 and
above Federal legislation provide for:
• Increased police powers in searches, e.g. covert search
warrants
• Preventative detention
• Control orders against suspects, e.g. David Hicks
• Creation of the offence of belonging to a terrorist
organisation.
The case of R v Lodhi (2006) involved conspiracy to commit
terrorism, with the collection of documents for such purposes…
Note the recent anti-gang (bikies) laws of NSW: the Crimes
(Criminal Organisations Control) Act 2009 has a response similar to
anti-terrorism laws.
Public order offences
Activities that disrupt the normal function of society, e.g. indecent
behaviour, offensive language, public drunkenness… These
highlight how moral views influence the standards of the law, as in a

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case in Dubbo of an ATSI youth being acquitted of swearing at
police.
The Graffiti Control Act 2008 provides magistrates with the
capacity to order community cleanup work, recognisant of the law
being an imprecise instrument, cleanup and education being more
effective than harsh penalties. However cleanup must be fast to
prevent further tagging, something impossible in our sluggish legal
system.
Traffic offences
Offences largely dealt with administratively, being the most
commonly committed crime, e.g. failure to stop at a red light.
Drivers have the right to challenge a fine in a local court, most
offences being strict liability (no intent needing to be proved).
Drink-driving is harshly punished under the Traffic Amendment
(Penalties and Disqualifications) Act 1998, with sentencing
guidelines published by the Court of Criminal Appeal in recognition
of a reluctance among judges to implement high sanctions.
Drug crimes
Those crimes concerning the sale, production or possession of an
illicit drug, e.g. possession of an illicit substance, regulated under
the Drug Misuse and Trafficking Act 1985. Systems like the
Cannabis Cautioning Scheme and MERIT scheme bring in more of a
rehabilitation emphasis…
Preliminary offences
• Attempts – it is an offence to commit a criminal act. The
Crimes Act 1900 (with the exception of murder) gives
attempts the same penalty as carried-out crimes. It is
difficult for prosecutions to achieve convictions for attempts,
the closer the crime was to being committed, the easier. An
example of the attempt is R v Mohan (1976).
• Conspiracy – where two or more people agree to jointly
commit a crime. Charges can be laid even where the planned
Act didn’t occur. Planning constitutes actus reus as well as
mens rea.
Victimless crimes
Crimes such as gambling are argued as being victimless because
their commission directly harms no one.
Regulatory offences
Those offences regarded as so minor that they barely classify as
crime, and as such are strict liability offences.

Sources of Criminal law

Common law
Where no statute exists, judges use discretion based upon notions
of common-sense, which often forms precedent – common law, on
the principle of stare decisis (to stand by what has been decided).
They also interpret the meaning of statute laws…
Statute law

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Laws made by parliament to outlaw actions deemed criminal.
Ministers and departments may be delegated authority to also
create regulations, rules and orders…
Australian constitution
This establishes state governments as the source of criminal law –
creating issues of consistency.

Court Structure
•Local Court – presided over by a magistrate, created under
the Local Courts Act 1982 (NSW). The Local Court:
○ Hears and rules on summary offences (w/o jury)
○ Conducts committal hearings in indictable offences to
establish prima facie (as in Saffron v DPP (1989)).
Local Courts hear 98% of criminal cases first.
• Children’s Court – hears matters with the accused under 18
at the offence, or less than 21 when charged for such an
offence. The court is closed to the public, and doesn’t
sentence offenders to adult prisons, hearing a total 2% of
criminal cases.
• Coroner’s Court – enquiries into
○ The cause and manner of a suspicious death
○ Causes of property-damaging fires
Rules for the admission of evidence are more liberal, with the
Coroner’s aim not being a conviction but determining the
sufficiency of evidence for criminal prosecution.
• Drug Court – established in 1999 this Court hears drug-
related matters, recognising the fact that substance used is a
major contributor towards criminal behaviour. The media
case of “Applause for former drug users who turn their lives
around” (2009) illustrates the effectiveness of the court in
discouraging drug taking. A system of substance testing and
non-imprisonment on condition of non-drug-taking gives
scope for reducing recidivism, the system being reasonable
using a points system… In this way it hands responsibility to
the offender while rewarding non-drug-taking with 1)
applause & encouragement and 2) non-custodial sentences…
The BCS finds the court to be effective, with those passing
through it 58% less like to reoffend than otherwise. DPP
Cowdery and every justice in the program recognises it to be
highly effective.
• District Court – created by the District Court Act 1973 (NSW),
judges are appointed by the governor. Most serious criminal
matters are heard here.
• Supreme Court – established under the Charter of Justice
1823 (UK) this hears the most serious of indictable offences
and appeals from lower courts. The court also hears “stated
cases” – appeals from errors of law in lower courts. The
prosecution is also able to appeal too lenient sentences, as in
R v Peterson (1984).

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• Court of Criminal Appeal – the original judges is unable to
hear appeals. Only appeals on indictable charges are heard
here, in the interest of effective resource allocation.
• High Court – possessing no original jurisdiction in criminal
law, appeals concern:
○ Matters of public importance
○ The delivery of justice
○ Cases where earlier rulings caused confusion
Constitutional challenges are also heard.

Definition of crime
An Act or omission that harms society and the individuals within it,
for which a punishment has been determined by the law and is
enforced by the state.
Criminal law aims to prevent behaviour regarded as unacceptable
by society.
Factors affecting criminal behaviour
People may not comply with the law because
• They believe non-compliance does not harm society
• They are disadvantaged and see less reason to follow the
law, as it barely benefits them
• According to differential association theory, those with
exposure to law-breaking have more of an inclination
towards non-compliance (Sutherland & Cresey)
• Of a genetic predisposition towards anti-social, law-breaking
behaviour
• Of membership in a political group engaging in protest
• Of their own self-interest and/or greed.

Typical criminal – below 30 (63%), male (86%), low academic

achievement, poor, single, unemployed/unstable work.

Elements of a crime
• actus reus
• mens rea
• A causal link between the accused’s actions and the crime
committed.
Mens rea
“Guilty mind” – a person’s intention to commit a crime (not
relevant in cases of strict liability, where only actus reus has to be
proven). The prosecution must prove that the accused was aware
their actions would result in the probable conduction of a crime. R v
Meli (1954) demonstrates the importance of intent as an element
of a crime, while DPP v Morgan (1975) demonstrates the level of
intent required to constitute a crime.
Actus reus
“Guilty act” – the performance of the criminal act. It must be
proven that the alleged Act was committed by the defendant, rather
than just thought of.

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Causation
The link between the act and the crime, as in R v Blaue (1975).

Doli Incapax
This Latin concept involves a presumption children aged 10-14 to
lack capacity to form intent unless otherwise proven by the
prosecution. This was demonstrated in the case of R v LMW
(1999) where intellectually disabled LMW (12) threw Corey Davis
off a bridge, the court being unable to establish intent.

Parties to a crime
• Principal in the first degree – the person who carries out a
crime, known as a perpetrator.
• Principal in the second degree – a person who assists in a
crime, being present as it is committed but not the main
participant. They receive the same punishment as the
perpetrator.
• Accessory before the fact – a person who helps others
commit a crime, aiding in preparation, but is not present in
the actual crime. They can receive the same penalty as the
perpetrator.
• Accessory after the fact – a person who aids criminals after
the crime, not being present during the crime or aware of it
beforehand. They receive a lesser punishment.

Defences to a criminal charge

•Complete defence – a justification excusing the defendant’s
conduct, giving an acquittal.
• Partial defence – an excuse for conduct amounting to a
reduction in the charge or punishment.
Complete defences
• Mental illness – the defence of insanity means that the
defendant lacked the mens rea in the completion of the
crime. Here the defence must prove insanity, and the
prosecution disprove it, e.g. R v M’Naghten (1843). In
determining this the McNaughten test must be applied, i.e.
whether the defendant did not understand the nature &
quality of the act they committed, e.g. R v Sorrell (2003).
• Self-defence – a person is allowed to use reasonably
necessary force to subdue somebody threatening one or
others. Crucial to this is the defendant’s perception of the
necessity of the level of force used. For this, actus reus and
men rea must be admitted to, as in Marwey v R (1977), a
case which also demonstrates inconsistencies in law between
states, occurring in Queensland with a penalty of
manslaughter, where in NSW a full acquittal would occur…
Similarly McInnes v R (1971) found a knife used (against
an unarmed person) in self-defence to constitute

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unreasonable force, even where used accidentally and
without intent.
• Compulsion – where the defendant was forced to commit a
crime:
○ Necessity – the crime committed is not as bad as the
consequence of not committing it, e.g. US v Holmes
(1842) and Dudley & Stephens v R (1884).
○ Duress – a person forced the defendant to commit a
crime against their will as in the case of J. Killick’s
helicopter escape from Silverwater Gaol with a pilot at
gunpoint.
• Automatism – the accused was not in control of their
actions during the commission of the crime, e.g. if in a
condition of somnambulism. If proven this is a complete
defence as there was no mens rea, as noted by Lord Denning
in Bratty v A-G (1963) (UK), Justice Stephen in R v Tolson
(1889) and Justices Dean and Dawson in R v Falconer
(1990).
Partial defences
• Consent – where the victim consents to a crime being
committed against them, e.g a defence to murder being
euthanasia.
• Provocation – where the victim’s actions cause the accused
to lose control of their actions. This is only valid in reducing
murder to manslaughter and includes recently codified
battered women’s syndrome. Green v R (1997) found
homosexual advance also to constitute provocation.
○ The victim must have caused the criminal behaviour
○ The provocation was bad enough to justify an ordinary
person’s similar action.
This is illustrated in the case of DPP v Camplin (1978)
where the minor Camplin employed the defence of
provocation against a charge of murder after being
sodomised and taunted by the victim.
• Substantial impairment of responsibility – when a
person has an abnormality of the mind that impairs mental
responsibility – easier to prove than insanity. This is where
the accused is not consistently insane, e.g. R v Byrne
(1960).
• Mistake – the accused admits to a crime, claiming it to have
been accidental.

The Criminal Process & Discretion

According to Nicholas Cowdery: “DISCRETION IS JUDGEMENT … EXERCISED BY
APPLYING PRINCIPLES AND VALUES TO FACTS”. Because law does not foresee all
forms of crime Cowdery tells us: “DISCRETION MUST BE EXERCISED IN THE
ENFORCEMENT AND APPLICATION OF THE CRIMINAL LAW”.

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Discretion is exercised by different people from the second a crime
is committed until that moment a defendant is acquitted or finishes
their penalty.
Reporting
Members of the public must report crimes for investigation to
occur, programs like Neighbourhood Watch being designed to
encourage this through teamwork. Crimes are not reported due to:
• Fears of revenge
• Suspicion of police
• Fears of the legal system
• Protection of self-image
• Unhappiness with police attitudes
• People not wanting to be a witness
• Being unable to report the crimes
Investigation
Police determine whether a crime deserves investigation, this
consisting of interviews, forensic study and surveillance. Not all
crimes as seen as worthy of investigation, e.g. fraud under $10,000.
Police then determine how to proceed – caution, arrest, etc,
sometimes asking a prosecutor on the sufficiency of evidence.
Arrest
Police can arrest if;
• They believe a crime has or is about to be committed
• They witness a crime
• They have an arrest warrant.
They must inform the suspect of their arrest and the reason for it,
as well as physically touching them, for that arrest to be valid.
Note that the Crimes Legislation Amendment (Possession of Knives
in Public) Act 2009 (NSW) provides police search powers for such
weapons in the possession of persons in public, on reasonable
grounds, unlike Victoria where arbitrary searches are permissible –
inconsistency…
Interrogation
The police must caution a suspect prior to interrogation, and they
enjoy a right of silence.
Initial bail
Police must determine whether to issue a court attendance notice,
or to hold an offender on remand.
Prosecution
Prosecutors proceed only after a case passes a three-test rule,
imposed by the Director of Public Prosecutions Act 1986 (NSW):
1. Prima facie test
2. Reasonable prospect of convictions by a reasonable jury
3. General public interest in the proceedings.
Legal Aid (if relevant)
The NSW Legal Aid Commission exercises discretion in whether an
applicant passes and availability of funds and merit test… It denial
in the case of Ivan Milat recently demonstrates the merit test being
failed where an appeal has no hope…

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Committal hearing
The Magistrate must recognise prima facie. The media case of
“More in jail as Australia tinkers with justice system” demonstrates
there to be a tendency among prosecutors not to exercise their own
discretion in deciding whether to prosecute, and rather leaving it to
see a judge’s reaction. In the above article Magistrate Moloney
expressed annoyance at this tendency, and a friend to the
defendant in the (discussed) case of Melani expressed
disillusionment with the incompetant police to prosecuted such a
frivolous case.
Bail/remand
The offender decides whether or not to pursue bail.
The judge exercises discretion in determining whether to allow
bail, considering the seriousness of the crime, likeliness of
reoffending, chance of witness tampering, history of the defendant
and possibility of their fleeing. Discretion also exists in the
conditions of bail, e.g. in R v Wakefield (1969). Here the
defendant plead guilty and for the remorse shown bail was granted
for Wakefield to arrange his affairs before sentencing. Upon his
changing his appeal to not guilty, however, the judge withdrew bail
accordingly, considering the defendant to now have a greater
propensity to flee.
Some more serious charges have a presumption against bail, only
granted in exceptional circumstances, e.g. breach of an ADVO.
The media article “Jumped bail, on the run” cites bail as being
handed out too readily with 4,000 people skipping it in 2005. It
claims people to be able to have limited faith in the legal system
with offenders able to “just walk off”.
Similarly concerns exist about the propensity of those on bail to
reoffend, and continue damaging the community. In 2007 the
Attorney-General proposed those on bail who are suspected of
further offensive behaviour to have bail rescinded.
Plea
Defendant decides whether to plead guilty or not guilty. The
prosecutor decides whether to offer a plea-bargain, and the
defendant whether to take it. Plea-bargaining is sometimes
employed where it is necessitated by witness’s fears of the
perpetrator, as in the case of Moustafa Dib for murder, a first
rejected by the judge on his discretion, but accepted as it was at
least a means to a prison term…
Hearing
Judge decides on points of laws, the following of precedents and
the admissibility of evidence – under the Evidence Act 1995 (NSW).
Deliberation
Judge/jury exercises discretion as to whether evidence is sufficient
to prove the accused’s guilty beyond reasonable doubt.
Sentencing
Judges exercise discretion in determining how severely to punish
an offender, in between statutory minimums and maximums,

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although contemporary criticisms, as in media case “Maximum
sentence used a minimum”, reside in it’s rare use, only 5 times from
1999 to 2008, something the article claims negates the point of
having a maximum sentence.
Judges follow the guidelines of the Sentencing Act 1999 (NSW).
Appeal
The convicted defendant decides whether or not to appeal, and
appellate courts whether to accept the case…
Parole
The Parole Board grants parole on the basis of an inmate’s
contrition, likelihood of recidivism and behaviour in the serving of a
sentence.

Case Study: Response to Cronulla riots

The Law Enforcement (Powers and Responsibilities) Act 2003
consolidated police powers after the 2003 anarchy of the Cronulla
riots. In the interests of public order this provided police powers to
• Set up road blocks
• Establish alcohol free zones, closing licensed premises
• Lockdown suburbs for 48 hours
• Establishing legislative presumptions against bail for rioters
• Increased penalties for assaults inflicted in large scale
public disorder – riot and affray.

The Criminal Trial ADVERSARIAL

TRIALS
Summary hearings
The magistrate makes a ruling, the matter being unimportant, and
deals with the case quickly.
Committal hearings
Indictable offences have prima facie established in the Local Court,
then move to a higher court. The Attorney-General may make an
“ex officio” decision on individual cases to qaive this, sending a case
straight to the Supreme Court.
Plea
Defendants plead either guilt or not guilty, not guilty seeing a trial
take place. Plea-bargaining seeks a guilty plea in exchange for
softer sentencing terms or charges. While not considering the
victims, these speed up the criminal process.
Plea bargaining can see scare tactics to prompt admissions of guilt
with overcharging, etc.
Evidence
There is a presumption of innocence with the prosecution having
the burden of proof of beyond reasonable doubt. In the case of R v
Bartho (1978) CJ Gibb stated a jury to be able to find someone not
guilty, even where not satisfied of their innocence.
Jury
Reducing required verdicts to 11-1 or 10-2 by the Jury
Amendments (Verdicts) Act 2006 (NSW) has reduced the

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preponderance of hung juries. This reduces the instance of retrials
but also lowers the standard for someone to be found guilty…
The proposed selection of jurors from driving licence lists rather
than electoral rolls illustrates a push towards making juries a better
cross-section of society.
Lawyers enjoy the right of peremptory challenge with jurors to
ensure impartiality.
Jurors can misconduct themselves, e.g. visiting the crime scene in
the case of R v Skaff (2006).

Personnel
Police
Investigate crimes, arrest perpetrators and gather evidence to use
at trial. Police Prosecutors prosecute in the Local Court. Police also
inform relatives of victims of their death or injury, protect dignitaries
and conduct community programs – such roles fill important social
functions.
Prosecutors
Represent the Crown in court, seeking to prove the guilt of
defendants. Appointed by the DPP they are independent of
parliament and play a role in assessing the viability of prosecutions
– chance of winning and public interest. They maintain the ethic of
the Bar and help the court discover the truth – no unfair tactics.
Defence lawyers
Represent clients before the court to the best of their ability, trying
to cast doubt on the prosecutions case by discrediting evidence and
introducing favourable evidence. Their personal views are
irrelevant, and they observe clients wishes, maintaining lawyer-
client privilege.
Presiders
Magistrates preside in Local Courts, appointed by the independent
Chief Magistrate. Judges are appointed after success in a long
barrister career, and:
• Ensure cases are conducted according to rules of evidence
• Excluding illegally obtained, irrelevant or misleading
evidence
• Ruling on points of law
• Advising the jury on their role and points of law
• Passing sentences.
Both Presiders remain impartial, basing ruling on the law and facts
presented.

Legal Aid
Under Dietrich v the Queen (1992) legal representation is not a
right of defendants, despite recognition of its disadvantaging
nature. The NSW Legal Aid Commission offers 15 mins of free legal
advise and subsidised legal representation to the disadvantaged.
Requests for legal aid are subject to a means, merit, jurisdiction and

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availability of funds test. A cap exists on the level of aid able to be
given to individuals.

International crime INSTITUTIONS LIKE INTERPOL AID IN DEALING WITH INTERNATIONAL

CRIMES.
Types of international crime
• Crimes committed in other jurisdictions (requiring
extradition)
• Transnational crimes
• Crimes against international law, prosecuted by the ICJ.
Crimes in other jurisdictions
One’s geographical position when committing a crime determines
it’s jurisdiction, and if this is left, through special treaties, one
jurisdiction is able to request that the other send the criminal to
face prosecution. In the case of R v Skase the absence of such a
treaty meant Skase was not extradited… Contrastingly Australia is
willing to extradite people in its jurisdiction to others, for example
the case of Croatian war-crimes perpetrator Snedden.
Laws can be made to restrict citizens from doing things in another
jurisdiction, e.g. mercenary activities.
Transnational crimes
Covering multiple jurisdictions, these are difficult to prosecute as
laws are inconsistent across jurisdictions. Cooperation is necessary
and can be very successful, e.g. the Lockerbie bombings (1988), the
Wonderland Club (2000) and Operation Achilles.
Crimes against international law
The International Criminal Court (2002) deals with
• Crimes against humanity
• Aggression
• War crimes
• Genocide
• Crimes established by treaties
Along with special ad hoc tribunals it hears cases of international
crimes breaches and has issued 8 arrest warrants. It resides in The
Hague, recently hearing the Trial of Charles Taylor of Liberia (2010)
on the matter of Sudan…

Sources of international law

Treaties NATIONS HAVE NO COMPULSION TO
SIGN

• Bilateral treaties – two nations

• Multilateral treaties – over two nations.
Countries, to outlaw international crimes, have to assume
responsibility by signing and ratifying a treaty.

ISSUES AND REMEDIES IN CRIMINAL LAW

Social Order
Social order is the aim of criminal law, created through:
• Education – teaching unacceptable behaviours, ethics

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• Regulation – inappropriate behaviour is controlled
• Coercion – people fear the consequences of not complying.

Crime prevention COWDERY CLAIMS THIS TO BE FAR MORE EFFECTIVE THAN

PUNISHMENT.

Situational crime prevention

• Increasing the risk of detection
○ Heightened police presence
○ Highly visible policing
○ Deliberate targeting of repeat offenders
○ Targeting of crime hot spots
○ Lighting of dark areas
○ Surveillance
○ Encouraging vigilance
• Making crime more difficult
○ Direct barriers, e.g. bars and vehicle immobilisers.
○ Security entry to buildings, e.g. burglar alarms
○ Risk management, e.g. plastic cups at sports events
○ Restrictions on weapons
• Reducing the rewards of crime
○ Etched property identification
○ Regulation & inspection of second-hand dealers
○ Reducing incentives
○ Instant reactions, e.g. graffiti
○ Specifics laws, e.g. public drinking.
Social crime prevention
Seeks to reduce factors that underlie criminal behaviour, e.g.:
• Poor parenting
• Truancy
These can be reduced through
• Youth diversionary programs – necessary amidst high (30%
+) youth unemployment
• Intervention in disadvantaged families with young children
• Keeping children in school
According to DPP Cowdery “crime prevention starts with providing
health, housing, employment…”

Enforcement through punishment

Purpose of punishment
• Incapacitation – protects society from criminals by
detaining them in prison where they cannot reoffend.
• Deterrence – where criminal behaviour is deterred through
sanctions, as in R v Tideman (1976). It both deters others
(general) and the criminal from offending (specific).
• Retribution – punishing satisfies the desire of the victim
and their family for revenge in a non-violent setting.
• Rehabilitation – reducing recidivism through creating
opportunities for prisoners to live crime-free lives. It is

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believed most effective with minor crimes. Rehabilitation is
encouraged through 1) plea bargaining with admission of
culpability, 2) remorse considered for sentencing & parole, 3)
education being offered in jail.
• Reintegrative shaming (restorative justice) – shames
offenders by bringing them into contact with their victims,
achieving in them an appreciation of the effect of their crime.

Sentencing
Sentencing hearing
The trial judge considers the defendant’s:
• Criminal record
• State of mind
• Displays of remorse
• Mitigating & aggravating factors.
Evidence
Only presented evidence may be considered, in addition to
information of the defendant’s criminal record (only crimes with a
conviction).
Prosecutor & defence council’s roles
The prosecutor seeks the highest penalty through:
• Referring to past offences
• Reinforcing the right of the victim to justice
• Reminding the judge that the sentence should deter others.
The defence offers any justifications for conduct and proffers
character witnesses.
Role of victim
Victims have the right to create a Victim Impact Statement,
commenting on the crime’s impact upon their life – making the
court accessible to victims.
Factors affecting sentencing
• Purpose of punishment
○ Retribution
○ Deterrence
○ Rehabilitation
• Circumstances of the offence
○ Use of a weapon
○ Threat or actual use of violence
○ Level of planning
○ Need for a crime’s deterrence
• Circumstances of the offender
○ Age
○ Past convictions
○ Mental/physical disabilities
○ Other people’s dependency upon them
○ Help given to police
• Aggravating & mitigating factors (from section 21a of the
Crimes (Sentencing Procedure) Act 1999)

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○ Aggravating
 The victim was young, elderly, disabled, a judicial
officer, teacher, volunteer…
 The offender is in a position of trust, e.g. doctor
 Gratuitous violence
 Use of a weapon
 The offence being committed in the victim’s
home
 The offence being motivated by religion, race,
ethnic origin, sexual orientation, age or disability
 The offence was committed for financial gain.
○ Mitigating factors
 Youth (inexperience)
 Poverty
 Past abuse
 Mental/physical disabilities
 Plea (guilty or not guilty)
 Aid given to police
 Influence of drugs/alcohol
 Injury to others of the crime was insubstantial
 Provocation
 Offender being under duress
 Lack of a criminal record
 Good character
 Offender having good prospects for rehabilitation
 Expression of remorse
 The offender pleaded guilty
 Assistance given to law enforcers.
Discretion in sentencing
Discretion is based around what a judicial officer deems right.
Guidelines must be followed – set by higher courts, and above
maximum sentences cannot be imposed. Mandatory sentencing
prevents discretion from being exercised, thus making the law more
clear-cut. This was trialled in the Northern Territory where it
delivered unsatisfactory results, similarly in the USA it caused a
compulsive thief to be imprisoned for over a decade for the theft of
a pizza slice. As these examaples demonstrate, mandatory
sentencing fosters manifestly unjust outcomes…

The case of R v Jurisic (1998) was one in which the sentencing

options for dangerous driving occasioning death were obviously too
light, the recourse of this being legislative reforms offering judges
more discretion. In the meantime the Court of Criminal Appeal
issued its own judicial guidelines for such cases…

Penalties
Benefits of methods

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• Fines – worked out as penalty units (inflation…) and offer a
revenue source. They are arguably inequitable, affecting
different people with varying capacities to pay.
• Bonds – subjects likely criminals to the influence of the
courts and discourages recidivism.
• Probation orders – discourages recidivism.
• Community service orders – allows social benefit to derive
from criminality and does not subject offenders to hardened
criminals.
• Home detention – keeps offender away from hardened
criminals, prevents the disruption of families with the
stability discouraging recidivism, and the offenders look after
themselves. This is also appropriate to the elderly, for
example the recent case of Ella James accidentally running
over and killing a child. The judge gauged no value in
imprisoning her, rather ordering home detention..
• Periodic detention – minimal disruption to offender’s family
and work lives – less recidivism.
• Imprisonment – incapacitates offenders, but exposes them to
other criminals (differential association…) and is very
expensive to maintain.
• Non-custodial gaol terms.
The media article “Better results with suspended sentences”
asserts recidivism as 25% less likely where non-custodial sentences
are given, but despite effectiveness only represent 4.6% of
punishments given by magistrates. They mean offenders are not in
gaol acquiring new skills, but working, although gaol still plays a role
for hardened criminals.
Note that since the Crimes (Life Sentences) Amendment Act 1989
(NSW) a life sentence has meant a sentence for the rest of an
offender’s natural life.
It is important to note that rehabilitation is not undertaken on
prisoners whose term is for less than 6 months, hence high
recidivism among these in the “University of Crime” which some
term “Correctional Facilities”. Additionally rehabilitation is
inadequate on prisoners… According to disgraced barrister Andrew
Fraser “you rehabilitate yourself. Gaol doesn’t rehabilitate yourself”.
Note his reciting of how he sought to achieve a university degree
while in gaol, but “it took a year before anybody came to see me
about my suitability for education” – “I rehabilitated myself before
going to gaol”. Note how in Fullham (low security) gaol, Mr Fraser
notes that even when a painting job was available, and the picking
up of new skills a possibility, the goal-system instead paid for
professional painters owing to OH&S regulations…
Punishment is sometimes highly inappropriate, for example in the
case of Daniela Dawes who killed her autistic son after years of
struggling to care for him. the trial judge found her to have suffered
enough…
Prisoners’ rights

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• Very limited privacy, e.g. being subject to random strip-
searches
• Limited access to relatives
• Guards have a duty of care, e.g. food provision
• Under the Felons (Civil Proceedings) Act 1981 (NSW) they
can sue for mistreatment
○ Officers cannot be sued except for malicious treatment
○ Other inmates can be sued for assault…
Outlawed sanctions
• Capital punishment – removed from all jurisdictions by 1984,
having received bad publicity in the Ronald Ryan case of
1967. Australia is a signatory to the International Covenant
on Civil and Political Rights, forbidding such sanctions.
• Corporal punishment – phased out in the 1980s…
• Human rights infringing punishments – the International
Covenant on Civil and Political Rights requires signatories to
outlaw cruel and unusual punishments.
Post-sentencing decisions
Security classification
New inmates go through a Reception, Screening and Induction
Program to identify their immediate needs & issues, i.e. risks of
suicide, drug addictions …
Classifications
• Maximum security External physical barrier with
towers
• Medium security External physical barrier
• Minimum security No barrier, no constant
supervision.

Classification Description Security requirement

A1 Special security risk Maximum security

A2

B Serious offender Medium security

C1 Trusted offender, Minimum security

needing little
C2 supervision and
suitable for day work
C3

E1 Has escaped or tried Classified as A range

to escape custody
E2

Prisoners at substantial risk in prison of being attacked or harmed

are placed in protective custody at their own initiation, segregated
from other inmates. The prison at Berima specialises in this.

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Parole
The conditional release of prisoners from prison before the
completion of sentences. The Crimes (Sentencing Procedure)
Amendment (Standard Minimum Sentencing) Act 2002 establishes
minimum sentences for offences.
Prisoners have no right to parole, needing to show their suitability
for release. The Parole Board grants this, considering levels of
contrition and likelihood of reoffending.
Eligibility for parole is not an option for sentences under 12
months, and is at a judge’s discretion for terms between 12 and 24
months. Otherwise at least the last 6 months of a term must be able
to have parole, for reintegration into society.
Parole benefits the community in ensuring offenders are
supervised & supported during reintegration, reducing recidivism.
Progress must be made while in gaol for prisoners to be considered
for conditional release, although this poses questions about the
victim’s right for retribution.
Restorative justice
A radical new way of deterring crime has been from a move away
of traditional targets of retribution and incapacitation towards more
effective means of rehabilitation and offender accountability.
Restorative justice programs, as their name indicates, are
concerned with setting things right and of providing reassurance to
victims, while showing offenders firsthand the consequences of their
actions. In this way recidivism is reduced by emotively SHOWING,
not just telling and judging.
Involving conferencing between offenders and victims with
sympathetic friends & families, restorative justice diffuses conflict
through open, emotive discussion. Conference sees the resolution of
problems without counsellors or mediators, but rather by providing
a constructive forum for discussion. They allow for victims and
others to confront the offender, express feelings, ask questions, and
have a say in the outcome. In sum, they have a practical input.
Offenders hear how they have effected others, and are able to
apologise, make amends, agree to restitution or
personal/community service work.

Combating international crime

Technology has facilitated the emergence of new forms of crime,
which have had to be combated by law-enforcers. The Wonderland
Club is such an example. The ICC and ad hoc courts hear cases
breaching international criminal agreements, whose prescribed
crimes affect all humans, e.g. the looming cases of Milosovic and
Karadic.
Extradition
Occurring between states and nation-states, an extradition hearing
is necessary after requests are lodged. The precursor to the process
is a bilateral extradition treaty. Hearings ensure that:
• The offence exists in both jurisdictions (is not ridiculous)

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• The defendant will receive what is considered to be a fair
trial (with reasonable sanctions).
The case of Tony Mokbel’s extradition from Greece raises
questions of resource efficiency, with his extradition costing up to
$450,000 with the use of a luxury private jet, an example of the
squandering of resources.

MORALITY, EFFECTIVENESS AND REFORM IN CRIMINAL LAW

Morality in law
As public morality changes, criminal law to changes, being
reflective of society’s values and beliefs of right & wrong.
Robertson v Samuels (1973) demonstrates the relevance of
morality to definitions of criminality, as does the former illegality of
homosexual activity. Often religion is the basis of law, creating
issues between cultures.
“Morals have got nothing to do with the law”. Lawmakers have
“not only lost sight of the moral side of” law “but they’ve lost sight
of the practical aspect of it, and they’ve lost sight of society’s view
of it” (disgraced barrister Andrew Fraser).
Commitment to the law
This is dependent upon people’s education and upbringing, with
respect for the law being dependent upon the law reflecting the
morality of its subjects – e.g. ATSI people towards western laws.
According to Aquinas people have a moral obligation to obey laws
that are just, in that they:
• Serve a common good
• Evenly distribute burden
• Show no disrespect to God
• Do not exceed lawmakers’ powers
Our legal system extends an obligation for all laws to be followed,
but in times of oppression it may be suitable to break them, e.g.
Mandela.
Rule of law and judicial transparency(s51 constitution) is essential
to ensuring people’s commitment to the law.

Effectiveness of criminal law

Effectiveness for the individual (THE INDIVIDUAL IS THE: VICTIM, DEFENDANT &
FAMILY)
Equality
The results of a defence council’s quality as a determinant of a
verdict raises questions of inequality between rich and poor – note
the common saying “justice is something you get when you’re
money runs out”.
Additionally plea-bargaining can lead to inconsistency in the
punishment of crimes and legal aid is unable to cover all of the
disadvantaged. The Mango Tree Murder Case (R v Tang) raised
issues about this where three of the four perpetrators took plea-

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bargains, the fourth presumed by a naïve jury to on this basis be
guilty…

Accessibility
This is dependent upon
• Cost
• Time
• People’s knowledge of the legal system
The case of Dietrich v the Queen (1992) raises questions about
the accessibility of the legal system, with legal aid not being a right.
Delays with defendants being held in remand for years raise issues
of fairness, with them not being convicted but incarcerated… The
media case of “More in gaol as Australia tinkers with justice system”
evidences more defendants to be being held on remand, increasing
strain on the prison system, immorally as such people have had
nothing against them proved.

Enforceability
For a law to be enforceable the offence must be able to be
detected and the perpetrator ascertained.

Resource efficiency
Methods such as plea-bargaining are necessary for courts to
reduce their burden upon the government budget, typically also
reducing a sentence by an average of 20%. Plea-bargaining also
raises questions about the rights of the victim, in this way not
having a say in the prosecution of someone that wronged them… In
this way the rights of the victim can be undermined. The same can
be true of the rights of the defendant if they are pressured/tricked
by the DPP into confessing despite innocence, just so as to avoid the
perceived possibility of getting off worse… In this sense plea-
bargaining can simultaneously improve and reduce the
effectiveness of the law. The improvement is for society’s resources,
the reduction being in terms of the defendant’s & victim’s rights…
Crime can also be prevented through cheaper measures like
diversionary and crime prevention programs, but is rarely done so
owing to political preferences towards appearing “tough on crime”.
Efficiency can be measured in police clearance rates, prosecutors
in conviction rates, corrective services in recidivism rates.
Concerns exist as to the efficiency of the present system, with
Chief Justice Gleeson in 2007 noting criminal trials to be getting
longer and more complex owing to the increasing tendency of
appeals to be based upon judge’s directives to the jury, and as such
the increasing complexity of their directives…

Protection and recognition of individual rights

Presently the legal system affords some individuals
institutionalised inequality. The socioeconomically disadvantaged,
owing to impaired access to legal representation, are afforded less

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of an ability to defend themselves from criminal charges. Many legal
mechanisms conducive to efficiency also facilitate the undermining
of the entitlements of individuals. For example plea-bargaining gives
scope for 1) victim’s suffering not being considered and 2)
defendants being outsmarted/pressured into pleading guilty,
irrespective of guilt, in the interests of minimising punishment…
Justice is thus potentially undermined on two fronts.
The fact that a fifth of defendants are mentally ill or below normal
intelligence means the system also to have a propensity towards
imprisoning the mentally ill. Given no right to legal representation
exists, pursuant to Dietrich v the Queen (1992), many go
unrepresented, something contradictorily in breach of the Dietrich
case’s other finding that a right to a FAIR trial does exist.
Defendants do have rights such as to a presumption of innocence
and to trial by jury, although their protection is by no means the
priority of the system. Similarly victims have a right to an input into
the trial by testifying as a witness, and may play a role in
sentencing through Victim Impact Statements, as well as having a
right to be notified about the progress of their trial... These are also
easily deprived by plea-bargains, often without consultation…
Once question raised by the present system is also of the right of
innocent defendants to compensation for their ordeal. Naturally
those found “Not Guilty” are all innocent in practice, and so a line
has been drawn at affording NO compensation, although ex gratia
payments can be made, as in the Lindy Chamberlain case.
Convicted offenders also have a right to not be punished twice,
hence the partial recognition of the infliction of ATSI customary law
punishments and the provision of protective custody to paedophiles
in gaol, as specialised in at Berima gaol…
Victims rights are although by some definitions breached by the
granting of parole, the decisions for which are made by the Parole
Board independent of them…

Effectiveness for society

The law must maintain the collective values and traditions of
society, with criminal being dealt with quickly, in a way consistent
with the wishes of society.

Resource efficiency
This includes the efficiency of the police, court and prison systems.
Examples of the facilitating of resource efficiency include plea-
bargaining, the increasing of police accountability and the fact that
the disagreement of a single juror can no longer cause a jury to be
hung… With every effort at streamlining consideration must be
given to the overall effectiveness of the system, be it in reducing
victim participation in court processes or in the lowering of the
standard needed from juries to obtain a conviction. A balance must
be reached.

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Programs like the Drug Court offer more effective faculties for
reducing recidivism, strain on the court system, and thereby
improving both accessibility and resource efficiency for society. It is
regrettable that it is only accessible to those nearby, an inequality
meaning others do not have the option of using it…

The law as a reflection of community standards

1. What standard is the law expected to uphold? Do we expect
the law to uphold public morality?
2. Does the law respond effectively to changes in community
attitudes?
3. Are the executive, legislature and judicature in touch with
the community?
The electoral power of the public is a crucial element in influencing
the legal system. It must be noted that there is no single, dominant
community view. The law embodies an amalgam of values and
variety of standard. Deviations are illustrated by the contemporary
Dr Patel case with some victim’s families expressing satisfaction at
justice being delivered, others dissatisfaction.
Fundamentally the adversarial system means everybody will never
be pleased, something compounded by there being several parties
extra to the defendant or table’s table. What can be achieved is a
result pleasing to the majority, as well as principles of common
decency being upheld…

Opportunities for enforcement, appeals and review

The DPP was only established in 1983 – an entity to further
scrutinise cases…
Appeals are an entitlement of the convicted, in the event of too
harsh a sentence, the emergence of new evidence or an error in law
from the presider, although appeals are not a right.
Criminal law is inconsistently enforced as evidenced by a 2007
media report “One burglary in 10 is solved, reveals auditor”.
Evidently break & enter is not rated highly by police, it actually
being left to their discretion as to whether to attend crime scenes.
The article notes police command in 2006 set out to reduce break &
enters by 8,000, only doing so by 2,500, a fact illustrating difficulties
and non-commitment in enforcement. Additionally 30% of the said
crimes are not reported, and are difficult to solve owing to the
absence of witnesses and clear suspects…
The law is under constant review by Law Reform Commissions,
Parliamentary working groups, and reinterpretation by judges. An
example is Jurisic’s case where people guilty of culpable driving
were getting too lenient sentences. Discretion was given to Judges
so as to give scope for greater penalties…

Balancing individual and community rights and values

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A balance must be reached to not disadvantage defendant,
breaching their rights in the process – as done in R v Anderson
(1990).
Both the individual and community have rights and values, and
neither should breach the others without good justification. One
example of the application of this principle is R v Dincer (1983)
where Dincer, a Muslim cleric, killed his daughter for eloping with a
non-Muslim. His defence to murder was provocation, accepted by
the court, considered as a partial defence and mitigating factor.

An effective legal system requires:

• Entitlements to a fair and unbiased hearing
○ Parties have the right to equal treatment in the
presentation of evidence
○ Parties have access to an impartial arbiter
○ Parties have been equally treated by the police in
investigations, and the courts treat offenders
consistently in sentencing
○ Separation of powers.
○ The system pursues this through provision of
 Trial by jury (one’s peers) for indictable offences
 Courts presided over by impartial arbitrators
 The state’s burden of proof being “beyond
reasonable doubt”
 The use of the adversarial trial process giving
opportunities for the correction of mistakes &
challenging of evidence
 Provision of legal aid
 Provision of interpreters, etc, to non-English-
speaking-persons
 One’s right to appeal.
• Effective access to mechanisms for resolving disputes
○ The system, in addition to outlawing behaviours, must
provide avenue for the enforcement of the law and
faculties for dispute resolution.
○ The system pursues this through
 The provision of specialised courts and tribunals
 Broadening lower court’s jurisdiction
 Introducing Community Justice Centres with wide
jurisdictions.
• Timely resolution of disputes
○ “Justice delayed is justice denied”
○ The legal system cannot be effective where time
delays delay the exaction of justice, be it in the
punishment of the guilty defendant or the acquittal of
the innocent accused

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 Jack Morgan
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Study Notes 2010
○ Speed is especially important where a defendant is
being held on remand, more so considering their non-
entitlement to compensation if innocent...
○ The system pursues this through
 Trial process streamlining
 The permitting of judges giving directions to aid
incompetent/inexperienced defence teams
 Reforms like the hand-up brief procedure to
reduce procedural delays
 The use of lower courts to establish prima facie
about whether a prosecution case is sufficient for
the process to continue.
• Recognition of prevailing values & basic human rights
○ For people to be committed to following the law, and
reporting crime, they must be satisfied that it is fair. As
such the law must reflect what the majority of people
believe right...
○ The system pursues this through
 Law reform to remove statutes embodying
outdated values and attitudes
 Establishment of anti-discrimination legislation
 Balancing police powers to investigate crime with
suspect’s rights.

Indigenous Australians
ATSI people are thoroughly disadvantaged in the Australian legal
system, being:
• 6 times more likely to be charged with a criminal offence
than non-ATSI people
• ATSI children being 20 times more likely to be imprisoned
than non-ATSI children
• Having a 15% higher rate of remand (in Victoria)
• Being 13% more likely to have a prison sentence.
These disproportionately high levels are indicative both of ATSI
people’s comparative disadvantage, and of some level of
discrimination by the judiciary.

Effectiveness of current penalties in achieving their

objectives:
Nicholas Cowdery [QC] DPP:

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• “CRIMINAL LAW CANNOT AND WILL NOT PREVENT CRIME – IT MERELY CREATES IT ”
(by defining it)
• “WE NEED TO PROVIDE DISINCENTIVES TO PEOPLE TO COMMIT CRIME – SOME
ENCOURAGEMENT FOR PEOPLE TO KEEP WITHIN THE RESTRICTIONS WE HAVE
COLLECTIVELY IMPOSED.”
• He claims effective diversionary schemes to include:
○ NSW Drug Court
○ NSW Youth Court
○ MERIT scheme
○ Community Conferencing
○ Circle Sentencing for ATSI people
○ RAD for alcoholics.
These are effective for their emphasis upon rehabilitation
rather than just punishment.
• In assessing effectiveness we must ask: “WHAT ARE WE TRYING TO
ACHIEVE? ARE WE ACHIEVING WHAT WE WANT?”
• Cowdery claims: “IF MORE RESOURCES WERE APPLIED TO PREVENTION, THEN
WE MIGHT NEED FEWER POLICE AND PRISONS AND LESS INVOLVEMENT OF THE
MECHANISMS IN BETWEEN.”
• Cowdery cites some relevant statistics, including:
○ NSW has over 10,000 inmates
○ Average daily costs for inmates are $210
○ Between 1995-2004 prison population outstripped
normal population growth by 29%.
○ Recidivism over two is around 43.5% among prison
inmates – prison is therefore highly ineffective as a
deterrent.

Crime trends (Bureau of Crime Statistics and Research)

Over the 2009 March quarter (in the 24 preceding months):
• Robbery with a firearm fell 32.8%
• Fraud rose 10.1%
• Break & enter fell 4.8%
• Sexual assault remained stable
• Vehicle theft fell 11.1%.

The media would have it that crime spirals are occurring and
frequently accuse the legal system as not punishing offenders
seriously enough owing to sensational stories being better for
business.
The media case of “Police accused of ignoring crime to deflate
statistics” (2010). The Bureau of Crime Statistics head alleged the
Newcastle Police Station to have rejected the 17% of sexual assault
cases where victims have decided not to press charges, for the
expressed purpose of giving a more favourable impression of their
performance. This is attributable to rising needs for improvements
in crime reduction…

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Study Notes 2010
Prison
• Prison rates have risen 43%
• To avoid racial gang conflict groups are segregated
• Gang leaders are isolated from their power base
• Over a third of inmates suffer mental illness for the
treatment of which prisons lack
• Media Article “More in gaol as Australia tinkers with justice
system” 2009:
○ If inmate numbers continue to rise at present rates, a
new prison will be needed annually
○ Presently $2.6 billion is spent on prisons annually,
NSW alone having a prison population of 10,500, with
NSW expenditure growth outstripping growth in
police funding. This is suggestive of courts taking a
hardline approach…
○ Over 70% of present of present inmates have
previously served gaol time for another offence.

Criminal law reform

Agencies of reform
• Australian Law Reform Commission – reforms Federal law,
the Commonwealth Attorney-General referring “references”
to the ALRC. 75% of recommendations from the ALRC are
adopted by parliament.
• NSW Law Reform Commission – established in 1966, this
gives recommendations to NSW parliament.
1. NSW Attorney-General gives a “reference” to the
NSWLRC
2. The NSWLRC appoints commissioners to investigate
the referral
3. Commissioners research and publicise that the
referenced law is under review
4. Action plan for the reform research is created
5. Research conducted
6. Research report written
7. Report release to public, inviting submissions
8. Final report published including submissions
9. Report sent to Attorney-General for consideration.
Parliament & courts – sources of reform
Parliament often enacts the recommendations of Law Reform
Commissions, as well as having organs like the Law & Justice
Committee. In the form of Common Law, courts are able to widen
definitions of crime…
Informal sources of reform
• Individuals
○ Letters to MPs
○ Organise a petition
○ Participate in a demonstration

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Study Notes 2010
○ Written submission to law propositions
○ Civil disobedience
• Pressure groups with lobbying or demonstrations…
• The media and its stance on issues, being able to place
political pressure…
Sources of the need for reform
As societal values change, so to must the law, to maintain its
relevance to society. The changing nature of society has also seen a
drive for change, especially from increasing ethnic diversity. One
such change is people no longer having to swear on a Bible…
Additionally it is worth noting with young offenders, gaol time is
not a solution according to the theory of differential association
being more likely to see them engage in further criminality – their
offences being mere property offences…
The system is arguably responsive, as illustrated by the quick
passing of the Crimes Legislation Amendment (Police Pursuits) Bill
2010 (Skye’s law) which increased the penalties for evading police
custody, inspired by the death of infant Skye in a high speed car
crash with persons fleeing police custody, demonstrating law reform
in the face of community pressures for change, sparked in the first
place by media representation of the issue.

Changes in the legal framework

Failure of laws
When laws become obsolete they are amended, replaced or
repealed by parliament, upon the recommendation of Law Reform
Commissions.
International Law
The Commonwealth Government, through external affairs powers,
has the capacity to sign international agreements that take
precedence over state laws (e.g. Tasman Dam case…).
New Technology
The emergence of computers has driven changes in criminal law to
prohibit new forms of economic crimes, such as fraud. Similarly DNA
profiling raises many questions of present laws… Contrastingly it
has also enhanced the capacity of police to solve many crimes, but
also raise privacy concerns.

Example of a criminal justice issue:

The criminal justice issue.
Since 1989 (R v Applebee (1989)) DNA profiling has been
accepted as an admissible form of evidence for identifying the
perpetrators of crimes, indictable and summary. This forensic
technology has played an elemental role in both implicating and
exonerating suspects, but in this function its usage raises serious
social justice questions.
Should DNA samples from absolved suspects be retained?
Should those asked for a sample be told that their DNA could be
used to link a relative to a past crime? To what extent does the

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suspects presumption of innocence extend to their ability to refuse
to give a DNA sample?1 Such dilemmas, surround the issue of DNA
profiling as an element of criminal investigation.2
The spread of DNA profiling in Australia.
While DNA has become increasingly recognised and utilised as an
effective crime detection mechanism in both the investigation and
prosecution of criminality, the media has generated confusion and
conviction as to its nature. While depicting DNA evidence as “too
conclusive” (the Hon. R. Dyer)3 the media also offers conflicting
views on the prejudicial effect of such evidence upon the judicial
system.4 Since introduction, this confusion has led to a perception
of DNA profiling being a “magic proof” of guilt.5
Confusion has indeed spread to the courtroom, the case of R –v-
Tran (1990) holding that conflicting technical DNA evidence be
ruled inadmissible due to its misleading effect upon the jury.6
A major concern around the use of DNA profiling in the
prosecution of crimes is the level of forensic expertise required to
appreciate aspects of the evidence. This arises in cases where the
defendant contests the evidence, and relevant experts are called
in. Since R –v- Pantoja (1996) scientific conflicts “are to be
resolved by the jury, not the judge.” This case also raises the issue
that a number of profiling techniques exist, able to give conflicting
results.
Dr Jeremy Gans7 also raises a number of issues, including how
refusing to offer a sample is indicative of guilt; testing laboratories
can accidentally contaminate evidence and the easily plant-able
nature of DNA evidence.8
Being very much a contemporary issue due to its only recent
conception, DNA profiling is in a way a threat to the right to
privacy of Australian citizens.

1 Podcast: “Criminal Invstigation and Your DNA”, Interviewer: Jacky Angus, Expert: Dr
J. Gans, Melbourne University, 2008.

2 Here DNA profiling itself is held to be a criminal justice issue, based upon how it is
the source of so much legal, ethical and moral contention.

3 The Hon. Ron Dyer, Standing Committee on Law & Justice: “Review of the Crimes
(Forensic Procedures) Act 2000”, Hansard, 2002.

4 With particular respect to jurors. (see appendix articles 1 & 2 for an example)

5 See appendix article 1: “DNA no magic proof for juries”, 9/3/04, SMH

6 “DNA Identification in the Criminal Justice System”, by Gans and Urbas, the
Australian Institute of Criminology.

7 University of Melbourne

8 Podcast: “Criminal Invstigation and Your DNA”, Interviewer: Jacky Angus, Expert: Dr
J. Gans, Melbourne University, 2008.

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How has the issue of profiling been addressed?
DNA profiling is regulated by the Crimes (Forensic Procedures) Act
2000 (NSW), an Act that has undergone frequent reform, (being
amended 18 times)9 the extent of which is demonstrative of the
level of debate around DNA profiling – as does the fact that it was
introduced 11 years after DNA had first come to be used as
evidence. The Act identifies three main sources of reform: an
inquiry by the Standing Committee on Law and Justice; a review by
the Attorney-General; and permanent monitoring by the NSW
Ombudsman’s Office.10
Debate has largely occurred in the NSW Parliament Standing
Committee on Law and Justice, with numerous reports collated
upon the issues encompassed by DNA profiling. Here not only has
Parliament played a legal role through passing the legislation, but
is playing an active reform role through review of the legislation,
addressing the problems with it, and advising Parliament on their
resolution.
The NSW Ombudsman’s Office plays the role of administering
and addressing all complaints about the Crimes (Forensic
Procedures) Act, directing serious issues arising from them to the
Attorney-General’s Office, from which they may reach Parliament.
The extensive involvement of these three bodies in the review and
reform process has meant that the NSW Law Reform Commission
has not yet needed to review, due to the contemporary nature of
DNA profiling.
The courts play a comparable, but more direct role in addressing
inadequacies in the law relating to DNA profiles. In Kerr –v-
Commissioner of Police & Ors (2001) it was established that
voluntary DNA samples given under duress are inadmissible.11 In
this sense the judicature plays a complementary role with the
legislature, working together collaboratively at the development of
law consistent with principles of social justice.
In the interest of consistent application and enforcement of
criminal law across Australia all states are collating a National
Criminal Investigation DNA Database,12 allowing crimes in one
state to have DNA matched with existing profiles in other states
from convicted criminals. This measure will play an elemental role
in solving otherwise unsolved crimes, interstate cooperation

9 Having been amended 18 times successfully. (According to the Australasian Legal

Information .Institute)

10 NSW Ombudsman “DNA sampling and other forensic procedures conducted on

suspects and volunteers under the Crimes (Forensic Procedures) Act 2000”.

11 The Hon. John Ryan, Standing Committee on Law & Justice: “Review of the Crimes
(Forensic Procedures) Act 2000”, Hansard, 2002.

12 As a section of CrimTrac

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 Jack Morgan
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Study Notes 2010
allowing for the enforcement of the law: in the interests of the
victim’s right of redress.13
The Justice Action interest group is a legal minded organisation
that addresses the criminal justice issues arising from the use of
DNA profiling technology, with respect to the rights of the accused,
offering mental and court support to defendants. They seek also
seek to raise awareness among potential jurors of the
shortcomings of DNA as conclusive evidence of guilt.
The NSW Innocence Panel is a means through which DNA has
been used positively in the community. Being a place of petition
available to the convicted, this body14 plays a role in exonerating
those falsely imprisoned for crimes, the need for which is
demonstrated in article 4 of the appendix.
Collectively these bodies serve the crucial role of addressing the
shortfalls of present forensic procedures in relation to DNA
profiling as well as the ethical and legal dilemmas emanating from
it. They play the role of identifying issues with such processes and
informing NSW Parliament of their existence, allowing for their
resolution through amendment in the interests of criminal justice.15

The effectiveness of legal measures in achieving justice.

Article 3 of the appendix demonstrates how the effectiveness of
the law enforcement process can be helped through the
application and accumulation of DNA profiles, stored in the
National Criminal Investigation DNA Database. Such technologies
“enhance the capacity of the police to solve crimes”(Hamper et
al).16 Not only though are the interests of victims being served but
also those of the wrongly imprisoned with DNA evidence having:
“been used more often to eliminate people from investigations
than to implicate them”(the Hon, R. Dyer).17
Foremost in considering the effectiveness of these laws are the
rights of the victim to “redress at law”(Dr Gans)18, but the right of
suspects to privacy must also be considered, after all they are only
suspects. Clearly, at least in most indictable offences the need of

13 The Hon. Ron Dyer, Standing Committee on Law & Justice: “Review of the Crimes
(Forensic Procedures) Act 2000”, Hansard, 2002

14 The NSW Innocence Panel was superseded in 2001 by the DNA Review Panel.

15 Law Reform is never able to solve ethical issues arising from DNA profiling but it is
able to ensure that the law itself is as consistent with criminal and social justice
problems as possible.

16 Legal Studies HSC, Hamper & Associates, Second Edition, 2008

17 The Hon. Ron Dyer, Standing Committee on Law & Justice: “Review of the Crimes
(Forensic Procedures) Act 2000”, Hansard, 2002

18 Podcast: “Criminal Invstigation and Your DNA”, Interviewer: Jacky Angus, Expert:
Dr J. Gans, Melbourne University, 2008.

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 Jack Morgan
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the state nevertheless outweighs any individual right to privacy,
but the line should be drawn at highly invasive measures, such as
mass DNA screening at Wee Waa.19
R –v- Sing (2002) established that the experts who carried out
the testing should be the ones to give evidence at trial. The fact
that such rulings were at their time necessary indicates
deficiencies in legislative provisions.20
Additionally the case of R –v- Tran (1990) demonstrates how
scientific disagreements over forensic processes can lead to
evidence held as inadmissible, due to the inability of the judicature
to determine scientific fact. The complexity of the science can
therefore have the effect of discounting that very science’s own
usefulness to the judicial process – clearly being ineffectual in
function.
DPP chief Nick Cowdery QC calls NSW DNA testing facilities to be
the “worst in the world”21 To rectify such perceptions the best
option is to have DNA testing done in independent facilities,
reducing chances of test forging, due to “an unbiased approach
taken to testing”. As it is defendants are able to have samples
independently tested,22 but they must pay for the procedure –
creating issues of accessibility, fairness and criminal justice.23 After
all, how can the law be effective if the wealthy are better
positioned to argue their innocence?
The downsizing of the NSW Innocence Panel to the DNA Review
Panel in 2001 demonstrated the NSW government’s desire to
make appeals to this body only feasible for those whose claims of
innocence had a level of credibility amounting to reasonable doubt
– showing a concern for criminal justice rather than almost farcical
claims of guiltlessness.
As an interest group, Justice Action has demonstrated potency in
its function as a pro-criminal rights group, especially in its support
to those who claim innocence, but lack the means to defend
themselves adequately or challenge DNA tests.
In relation to the review of the Crimes (Forensic Procedures) Act
2000 the Standing Committee on Law & Justice, NSW Ombudsman

19 In April 2000, this saw many people asked for DNA samples without there being
any evidence of their involvement. (according to the Hon. Ron Dyer, Standing
Committee on Law & Justice: “Review of the Crimes (Forensic Procedures) Act 2000”,
Hansard, 2002

20 As part of the process of codification such provisions are now part of the Crimes
(Forensic .Procedures) Act.

21 “DNA Testing” by M. Strutt

22 A total of around 4,000 tests are carried out by labs in NSW annually.
(“Surveillance and social control” by Dale Mills, 2002, Green Left.

23 The Hon. Dr Arthur Chesterfield-Evans, Standing Committee on Law & Justice:

“Review of the Crimes (Forensic Procedures) Act 2000”, Hansard, 2002.

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and Attorney-General’s office have been crucial elements in the
reform process. Collectively these offices have had an input into
submissions to Parliament seeing the amendment of the Act
eighteen times successfully.24 This in itself demonstrates the
sufficiency of review processes – indeed the NSW Law Reform
Commission has not yet had need to review the legislation, given
how contemporary the law, and by extension, issues, are.
Nevertheless issues have been examined in extensive detail by
these committees and offices, and have been addressed by
Parliament where deemed to appropriate.
In retrospect, the issues emanating from DNA profiling as an
element of criminal investigation and prosecution have for the
most part been effectively addressed by legal measures. In the
case of those that have not, such as the need for independent
laboratories testing evidence, they are in the process of being
agreed upon, demonstrates how contemporary the criminal justice
issues emanating from DNA profiling are – for the law is being
rewritten as more issues emerge.
Considering a 2008 ABS report25 that found “a significant
increase in the use of DNA testing and the media advertising of
this fact in 2006 […] acted as a deterrent”26 to potential criminals,
the conclusion can also be reached that DNA profiling itself, as a
legal/investigative process is an effective tool in administering
justice.
In terms of the effectiveness of various forms of legal measures
in actually achieving justice, one is forced to conclude that
legislation, thus the legislature, itself has failed to proactively
resolve many DNA related issues, but they have largely been
rectified under the law reform process. Deficiencies in legislative
provisions have forced the judicature to assume more of an active
role in law creation through the doctrine of precedent in the
aforementioned cases especially, in the interest of achieving
justice. Finally the police as enforcers of the law have proved
effective in adapting and specialising in the use of DNA sampling
as a central element of crime detection and investigation.

FAMILY LAW
“TWO OR MORE PERSONS, ONE OF WHOM IS AT LEAST 15 YEARS OF AGE, WHO ARE RELATED
BY BLOOD, MARRIAGE, DE FACTO RELATIONSHIP, ADOPTION, STEP OR FOSTERING; AND WHO ARE
USUALLY RESIDENT IN THE SAME HOUSEHOLD”

24 This is 18 amendments over the 9-year existence of the Crimes (Forensic

Procedures) Act.

25 Australian Bureau of Statistics – Recorded Crimes – Victims, cat. 4510.0

26α Please note: the ABS does not offer actual statistics in this report.

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–ABS
or
“THE NATURAL AND FUNDAMENTAL GROUP UNIT OF SOCIETY PARTICULARLY WHILE IT IS
RESPONSIBLE FOR THE CARE AND EDUCATION OF DEPENDENT CHILDREN”
–FAMILY LAW ACT 1975 (s43[b])
or
“THE ESSENCE OF A FAMILY INCLUDES THE THREE PS […] PARTNERS, PARENTS AND
PROGENCY” –DR HARRIS

FEATURES OF FAMILY LAW “ FAMILY LAW BY ITS VERY NATURE IS AN ATTEMPT TO PUT SQUARE PEGS INTO ROUND HOLES” –DR HARRIS

The Different Functions of Family

The family unit is considered the cornerstone of society, existing
within a wider framework of extended family. Family is a web from a
married couple with their naturally conceived children. While the
young conventionally looked after the aged, ill and delinquent,
government now serves this function. The government’s increasing
role has been the result of social change: the family unit becoming
more insular: separated from wider family obligations. Basic
functions include
• Parents act as role models
• Stability and security is provided
• Emotional needs of parents & children are fulfilled
• Parents have obligations towards children in maintaining
their basic rights.
Not all families live up to the Norman Rockwell nuclear family
model, but are diverse in terms of being
• Same-sex partner
• Single-parent
• Blended
• Extended
• De facto
• Step-families
• Foster-families
• ATSI customary law marriages
• Those with different gender roles, e.g. some males not being
breadwinners

The Institution of Marriage

The legal definition of family
No adequate definition of family exists, none far-reaching and
multifaceted enough. Not even the Family Law Act 1975 (Cwlth)
affords clarification, simply description. Arguably this is a good
thing, the absence of a clinical definition meaning that no
institutionalised discrimination is enabled, with any definition
eventually becoming outdated, restrictive and manifestly unjust.
This is because family, and family law is not static, but evolving in
every respect.

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Legal definition of marriage
Matters of marriage have been heard by the courts since the
1100s. Marriage’s common law definition resides in the case of
Hyde v Hyde and Woodmansee (1866) where Wilde JO
dismissed the petition, saying: “I CONCEIVE THAT MARRIAGE AS UNDERSTOOD IN
CHRISTENDOM MAY BE DEFINED AS THE VOLUNTARY UNION FOR LIFE OF ONE MAN AND ONE
WOMAN, TO THE EXCLUSION OF OTHERS ”. Marriage was, however, possible for
men on grounds of adultery, and women on aggravated grounds of
adultery, under the Divorce and Matrimonial Causes Act 1857 (UK).
The Marriage Act 1961 (Cwlth) and Family Law Act 1975 (Cwlth)
uphold the Hyde v Hyde and Woodmansee (1866) definition,
and the FLA also slackens the grounds to divorce to an “irretrievable
breakdown of marriage”, proved by 12 months separation.

Whiteoak v Whiteoak (1980)

This held the required 12 month separation period for divorce to
necessarily be a period with the intention of it being so on the part
of at least one party. Here the husbands imprisonment was
claimed as counting, but visitation by the wife held to demonstrate
reality as to the contrary. The time at which visitation stopped was
held to be when the separation began.

The Australian Constitution (s.51, xxi) assigns jurisdiction over all

marriage matters to the Commonwealth.
Marriage cannot go forward without any of the elements of it being
a voluntary union, between man & woman, to the exclusion of all
others, for life. A case for annulment exists in the absence of any of
these. While a private commitment, marriage is held to be a public
union having a public contract.

Re Kevin (2001)
Here the Court held gender reassignment to be sufficient to
satisfy a union’s being “between a man and a woman”, although in
Corbett v Corbett (1970) it had been held as sufficient grounds
for the annulment of the marriage. The case demonstrates
changing attitudes to the concept of marriage over time.

The Marriage Amendment Act 2004 (Cwlth) clarified a marriage to

only involve a man and a woman, dispelling concerns of the legality
of same-sex marriages from re Kevin (2001). This is illustrative of
continuity in the legal system, resisting widespread international
recognition of same-sex marriage in nations like Canada and
England.

Requirements of marriage
Marriageable age & parental consent
People may legally marry at age 18, and at age 16 with consent
from

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• A parent or guardian AND/ a
• Judge/magistrate.
The Court is also able to overrule the parent/guardian’s wish.
Permission is only granted in exceptional circumstances, and where
one partner is over 18. These circumstances are at the discretion of
the Court, including, under re W (1968) pregnancy, although more
recent contention exists.

ex parte Willis (1997)

Here a pregnant 17-year-old requested early marriage. Her18th
birthday near, she desired marriage early in case of early
childbirth making the baby born out of wedlock. Additionally she
desired her pregnancy be less conspicuous in the marriage
ceremony, and so wanted it to occur earlier. Magistrate Roberts
denied permission for a premature marriage, a decision quashed
by the Supreme Court that held ground need only be “sufficiently
exceptional” rather than “extremely exceptional”.

Prohibited degrees of relationships

Consanguinity is prohibited by the Marriage Act 1961. One cannot
marry:
• Parents
• Grandparents
• Children
• Grandchildren
• Siblings and/
• Half-siblings
• Adopted relations.
Consanguinity is the only basis for a prohibited relationship,
although prior to 1975 those based on affinity (i.e. relation through
marriage) were also forbidden, e.g. in-laws.
Notice of marriage
1-6 months notice must be given to the celebrant who solemnises
a marriage. Parties must provide birth certificates and statutory
declarations of their eligibility for marriage, including evidence of
the dissolution of earlier marriages.
Requirements of a valid marriage ceremony
3 types of (recognised) marriage:
1. Civil marriages performed by a celebrant or in a Registry
Office
2. Religious marriages performed in a church
3. Marriages performed (by Australians) in foreign jurisdictions,
witnessed by an Australian consular official
A valid ceremony requires
• An authorised marriage celebrant
• Two witnesses over 18
If parties to a marriage reasonably believe, however, these
conditions to have met, the marriage may still be valid even if they
were not met.

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The conventional marriage ceremony is rooted in provisions of the
Marriage Act 1753 (UK).
Void marriages
These exist, under the Marriage Act 1961, where
• Either party is already married
• Either party has not freely consented to the marriage owing
to duress, fraud or mental incapacity (e.g. Di Mento v
Visalli (1973))
• Either party is underage
• Consanguinity exists
• Formalities of wedding ceremonies are not complied with.
The establishment of any of the above is a grounds for a decree of
nullity of marriage.
Consummation of a marriage is NOT a factor in a marriage’s
nullity.
After the marriage the celebrant prepares 3 marriage certificates:
• One they file
• One the couple keeps and/
• One lodged with the Australians Registry of Births, Deaths
and Marriages.
Ceremonies can be conducted anywhere.

Legal consequences and responsibilities of

marriage
Marriage initiates spousal duties of moral, religious and social
natures such as love. Intangible and unenforceable, the law imposes
several practical duties and rights. Evidence suggests premarital
education to help provide awareness among spouses as to their
responsibilities, with a 90% satisfaction rate.
consortium vitae
These duties are those society expects a spouse to perform in a
relationship: living together in a sexual relationship, providing
emotional support, sharing household work and supporting children.
These obligations are essential to marital function, however
unenforceable.
Until the Crimes (Sexual Assault) Amendment Act 1981 (NSW) it
was legal to have intercourse with a partner without consent. This
amendment removed the defence to sexual assault of marriage,
demonstrating change in the legal system owing to changes in
community values, sexual assault no long a crime of passion, but of
violence.
Maintenance
The Family Law Act 1975 (Cwlth) states a spouse to be entitled to
financial support from the other spouse if unable to support
themselves (married couples). Spousal maintenance orders are
made after parties have separated, to a spouse who is unable to
support themselves. Short-term, these relieve a dependency that
may otherwise prevent a disempowered spouse from seeking

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divorce, giving them a timeframe within which to gain independent
function. The Court considers their
• Job skills
• Medical conditions
• Costs of maintaining the home
• Availability of welfare support.
Child maintenance has been facilitated by interstate cooperation
since the Family Law Amendment Act 1987 with maintenance
provisions covering nuptial AND ex-nuptial children. The Family Law
Act 1975 (Cwlth) provides both parents to have a duty to support
their child, according to its needs and their capacity to meet them.
The Child Support (Assessment) Act 1989 (Cwlth) established the
Child Support Agency in the ATO to oversee the determination and
collection of child maintenance.
Criticisms of child maintenance centre on enforceability problems
(over 70% of parents avoiding paying it) and the maintenance set
by the court is often below the real cost of raising a child.
Criticism also resides in maintenance:
• Posing too great a burden upon the non-residential parent
• The system failing to consider how much time the non-
residential (paying) parent receives with the child
• Delays existing in payments arriving.
Property rights
Since the abolishment of unito caro marriage has not altered the
property rights of spouses, pursuant to the Married Women’s
Property Act 1893 (NSW). Married people can own property:
• Individually
• As joint tenants or
• As tenants-in-common.
Parties retain titles to any property from before their marriage, and
have no legal obligation to combine resources subsequently
acquired.
With joined property, both parties must consent to its selling or
alteration, and the death of one owner sees their spouse
automatically become its owner. Where spouses are tenants-in-
common, they own a proportion of property, neither being free to
sell theirs without the other’s consents, but able to leave their share
to whomever they please.
Agency
This is where a person acts legally for another, something
permitting females to enter into contracts on behalf of husbands
under the principle of unito caro, leaving the husband liable. Torts
law now holds husband and wife as separately liable, with either
spouse’s debt unenforceable against the other.
Wills
The Wills, Probate and Administration Act 1898 (NSW) holds wills to
be revoked upon marriage, ensuring spouses provide for each other
after death, with the exception of those wills providing for that
marriage. Since 1988 a will is also revoked on divorce. Where a

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death intestate (without a will) occurs, the estate is distributed
according to rules of intestacy: the spouse receives everything
unless they murdered their partner, pursuant to the Succession
Amendment (Intestacy) Act 2009 (NSW), which also entitled children
not the “issue” of the surviving spouse to also have an entitlement
to the estate (generally one third, insofar as possible with multiple
children).
The Family Provisions Act 1982 (NSW) protects family members
who are dependent on someone who dies without providing for
them in their will.
To deter frivolous claims, those non-current spouses and children
of the deceased who fail in their application, must pay court costs.
Orders on the estate will only be made where adequate provision is
not made in the will, OR during the deceased’s lifetime for the
applicant’s proper maintenance, education and advancement in life.
Personal safety
The abolishment of unito caro and introduction of domestic
violence laws has meant spouses have a legal obligation NOT to
inflict physical or mental harm upon the other.

Presumption of legitimacy
The husband/de facto partner of a woman is presumed to be the
biological father of any children. Difficult to rebut, this formerly saw
men required to meet all maintenance obligations, but DNA
testing’s advent facilitated the disputing of this presumption.
Without a mother’s permission, a man may have a DNA test on a
child, and if not his blood relation no obligation exists for child
maintenance, and a right to recompense for any maintenance
already paid, exists.

PARENTAL RIGHTS PARENTAL RESPONSIBILITIES

To decide whether a child be born To take precautions to ensure the

To give a child any name
To discipline the child
child’s health
To register the birth under the
Registration of Births, Deaths and
Marriages Act 1973 (NSW) or be
liable, as in 2009 media case “Fine
for neglecting children”.
To limit punishment to the
“moderate and reasonable” of the
Children and Young Persons (Care
and Protection) Act 1998 (NSW)

To decide what sort of education To send the child to school

the child should receive between the ages of 6 and 17
pursuant to the Education Reform
Act 1990 (NSW) and Education and

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To decide on the medical
treatment of the child
To exercise care & control over
the child
Jack Morgan
Legal Studies
Study Notes 2010
Public Institutions Act 1987 (NSW),
or be liable as under the 2009
media case “Parents given a
caning in truancy crackdown”.
To give consent to medical
treatment in life-threatening
situations, with failure to do so
amounting to manslaughter or
negligence.
To take reasonable steps to
prevent the child from harming
others, pursuant to the Children
(Protection and Parental
Responsibility) Act 1997 (NSW)

To choose the religion the child is To grant the child increasing

to be brought up in
To leave their property to
whomever they please
autonomy with age, parental rights
weakening over time
To provide adequately for all
nuptial, ex-nuptial or adopted
children, pursuant to the Family
Provision Act 1982 (NSW)

To have children outside of To treat ex-nuptial children the

marriage same as nuptial children pursuant
to the Status of Children Act 1996
(NSW)

To consent to the adoption of the To not attempt to contact the child

child unless the child consents,
according to the Adoption
Information Act 1990 (NSW) and
relinquish all rights over the child
pursuant to the Adoption of
Children (Amendment) Act 1982
(NSW)

Care and control

Parents have a duty to care for children, even prior to their birth,
e.g. the NSW Supreme Court awarded $2.85 million to a girl born
with cerebral palsy owing to her mother’s negligence in a car crash.
In addition, parents possess a duty to control their children under
the Family Law Act 1975, holding equal responsibility. With a duty to
protect, parents who fail to shield children from abuse or neglect are
answerable to the Children’s Court under the Children and Young
Persons (Care and Protection) Act 1998 (NSW), enabling their
removal from a family.
The Children (Protection and Parental Responsibility) Act 1997
(NSW) increased parental liability for children, with 2006

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amendments creating Parent Responsibility Contracts. Courts can
force parents to sign, conditional upon custody, but setting out
terms like ending their own drug-taking and excessive alcoholism.
Breaches are punishable by removal of child custody, and
obligations continue until children reach the age of majority.

False claims in seeking child custody

As in the case of Walsh v Walsh (2007) it is not unprecedented
for spouses to make baseless claims of abuse against one another,
in this case of sexual assault of the child. Ms Walsh, intellectually
inhibited, maliciously deprived her former partner of custody in
this way, but when the truth was revealed she lost custody herself
altogether for abuse in the form of coaching her girl to lie in this
way.

Education
The Education Reform Act 1990 (NSW) states children 6-17 must
attend school, with home-schooling exemptions available. Children
may take parents wanting them to leave school to court if they want
to remain, with maintenance an option. Similarly parents are liable
for children’s truancy, as in the 2009 media case “Parents given a
caning in truancy crackdown”.
Discipline
Corporal punishment of children must be moderate and
reasonable. The Crimes Amendment (Child Protection – Physical
Mistreatment) Act 2002 (NSW) prohibits force to the head or neck of
children, pain only being fleeting.
Contention exists as to whether schools should enjoy similar rights
of punishment of children, this being banned since 1995. The case
of Hogan v Trustees of the Catholic Church (2001)
demonstrates the potential harm of this punishment.
Medical treatment
Parents may authorise any medical treatment deemed in the
child’s interest, e.g. 13-year-old girl “Alex” receiving a sex change,
being a public ward hence at public expense.
Parents may only request an operation of benefit to the child, as
demonstrated below:

Secretary, Department of Health and Community Services v

JMB and SMB (1992)
Here parents sought the sterilisation of their mentally disabled
daughter – overrode by the High Court.

Parents who fail to seek medical treatment required by their

children are guilty of neglect or manslaughter, as evident in R v
Senior (1899) where a father, on religious grounds refused his
child treatment.

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R v Sam and Sam (2009)
This contemporary example demonstrates parental liability in
cases of their failure to provide medical treatment. Here Sam &
Sam chose alternative medical treatment for treating their infant
Gloria’s eczema. A failure, in the face of several opportunities,
they did not afford their child conventional treatment, resulting in
its death from a preventable condition, and seeing its parents
charged and convicted for negligence and manslaughter.

From 14, children may make their own medical decisions, with
parents not informed, as in the British case of Gillick v West
Norfolk and Wisbech Area Health Authority (1985).

A (children) (2000)
Here the court, in the absence of parental permission (owing to
their Christian beliefs), ordered a hospital to perform an operation
to separate 2 Siamese twins, knowledgeable of the fact that one
would almost certainly die, but their continued condition would
certainly see both do so.

Autonomy of children
While legally to remain at home until 18, children may leave by 16
if with good reason, while those under 16 may, if desiring so,
become wards of the state.
The Minors (Property and Contracts) Act 1970 (NSW) permits
minors to consent to medical and dental treatment after 14 years as
well as binding them into contracts they have entered into, provided
they derive benefit from them.
The Marriage Act 1961 (Cwlth) allows children with parental &
court consent to marry if above 16.
Children’s ability to make decisions about themselves changes
with maturity, e.g.
• The right to buy alcohol
• Police questioning children only in adult company
• Children lacking a capacity for mens rea, etc…
Inheritance
Parents have no obligation to provide for children in wills, although
children left out have a recourse under the Family Provisions Act
1982 (NSW) to claim against the estate, to be held in a trust. Non-
related, adult and ex-nuptial children may also claim.
Dissolution of marriage
Indissoluble owing to people’s oaths to remain together, marriage
once allowed people to be unhappily trapped in a marriage, the
priority being the institution’s integrity. The Matrimonial Causes Act
1959 (Cwlth) allowed for fault divorce on the grounds of adultery,
criminal convictions and habitual drunkenness. The Family Law Act
1975 removed this fault requirement.

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A 2004 amendment to the FLA changed the word divorce to
dissolution, recognisant of changing community attitudes, shifts in
terminology mirroring shifts in the focus of legislation.
Note also how marriage is far more difficult to end than a de facto
relationship.

Legal consequences of recognition of same-sex relationships with

de facto status
As a result of increasing recognition of same-sex relationships,
they are coming to face some of the drawbacks of recognition. For
example once recognised as couples many are losing their
entitlements to (cumulatively larger) single person welfare
payments, as in the media case of “Same-sex couples wary of
changes to benefits”. Part of this recognition also involves having
to become registered, or face legal liability from Centrelink, but
couples fear the disclosure of information to relatives to whom
they may not have made their status clear. In this way it could be
said that the welfare system formerly discriminated against
heterosexual couples…

LEGAL ISSUES AND REMEDIES IN FAMILY LAW

Conventional Family life
88% of people live with a relative related by blood, marriage,
fostering or adoption. Only 8% live alone, and 3% share houses
with unrelated individuals.
1 million children live with only 1 nature parent, 80% of children
living with both. The median age for mothers giving birth is 30.5
(2003), with fertility rates of 1.7 children. 90% of couples living
together are married, 10% de facto…

Alternative Family Arrangements

Marriage under ATSI customary law
These ritual marriages are not lawfully recognised as marriage
owing to non-compatibility with the common law and/or statute
(Marriage Act 1961) requirements and/or definitions.
ATSI marriages are recognisable as de facto relationships under
the Family Law Amendment (De Facto Financial Matters and Other
Matters) Act 2008 (Cwlth), but difficulties still arise where they seek
to adopt, but this is not much of a problem with only 4 ATSI children
put up for adoption in 2007… ATSI marriages are only classed as de
facto after 2 years residence, an inequitable fact, but one
illustrating an improvement on the past where they had no benefits.

Single-parent families
Here one parent cares for one or more children, owing to the
partner’s death, separation, or the parent’s choice to have a child
without a partner. These raise issues of welfare entitlements and

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discrimination, but since 1991 the number of them has risen 38%
according to the ABS to now constitute 15.4% of Australian families.
Australian Family Association studies show 90-95% of homeless
youths to come from one-parent families, while psychologist
Biddulph claims absent fathers to produce dysfunctional children,
although other studies hold absent fathers as better than bad ones.
The Anti-Discrimination Act 1977 provides it as illegal to
discriminate against single-parents.

Blended families
Where married or de facto couples live with at least 2 children, one
or more from each of their earlier relationships. These comprise
around 20% of families.

Same-sex relationships
Same-sex couples have only recently received social acceptance,
still lacking all the recognition enjoyed by heterosexual ones, only
recognised recently by the Domestic Relationships Act 1994 (NSW).
The case of Hope and Brown v NIB Health Fund Ltd (1995)
demonstrates such gradual change, with a homosexual couple
granted the right to a family policy.
Recognition of gay & lesbian couples as families also occurred in
the 1996 census and in the Family Leave Test Case (1994) and
Personal/Carer’s Leave Test Case (1995) from the Industrial
Relations Commission (NSW).
The Property (Relationships) Legislation Amendment Act 1999
(NSW) gave same-sex couples who lived in de facto status 2 years
the right to access the District Court to divide property or claim
maintenance, have hospital visiting and inheritance rights if a
partner dies intestate.
The case of re McBain: ex parte Australian Catholic Bishops
Conference; re McBain: ex parte Attor (2002) demonstrated
the denial of IVF treatment to a lesbian couple to be discriminatory
under the Sex Discrimination Act 1984 (Cwlth). In another
progressive case, R v McEwen (1996) saw a homosexual man who
murdered his partner successfully make use of the defence of
“battered women’s syndrome”.

W V G (1996)
This case found, in the dissolution of a de facto relationship, G to
be liable for the child maintenance of her non-biological child, on
the premise that IVF treatment was only undertaken by W on her
understanding G would work to fund W being a stay-at-home
mother…

In a 2004 speech Howard reaffirmed the Hyde v Hyde and

Woodmansee (1866) definition of marriage as between a man &
woman and passed the Marriage Amendment Act 2004 (Cwlth)
which precluded it.

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The 2006 census recorded 20,000 self-identified same-sex couples,
a figure regarded as an underrepresentation of actual levels.
Former High Court Justice Kirby, outspoken homosexual, has noted
a disparity of law wherein in the event of his death his partner of 38
years lacks an entitlement to the 62.5% of a judge’s pension a
heterosexual partner would enjoy. Indeed a 2007 HREOC report
finds same-sex couples to be discriminated against in 58 areas of
financial entitlements. The media report of “Matching rights for gay
couples” (2008) reveals the Attorney-General to be examining
rectifying these inequalities.
The 2010 media article “Register helps de factos access benefits”
records the Attorney-General as drawing-up plans for a same-sex
couples registry as in Tasmania for the simplification of such
couples accessing those legal entitlements of married couples.
The Anti-Discrimination Act 1977 (NSW) also forbids discrimination
on the basis of sexual orientation, despite lawmakers themselves
doing so.

Polygamous marriages
Monogamous, Australian marriage law recognises only the first
spouse of any polygamous person, the others void. Other spouses
may still secure matrimonial relief, the Family Law Act 1975
providing for them obtaining property settlements, child
maintenance, spousal maintenance, violence orders and parenting
plans. These provisions were prompted by Khan v Khan (1963)
where the wife sought a divorce on the grounds of adultery where
the law already provided none to exist. Change demonstrated here
the system’s responsiveness…
In effect the law, recognising only the first marriage, treats others
as de facto relationships. Consequently it is possible, in the event of
the husband’s death, for property to be being divided by his wife
and de facto partner[s], raising its own issues… Property is divisible
in this way under the Property (Relationships) Act 1999 (NSW).

De facto relationships
Heterosexual de facto relationships were recognised in NSW by the
De Facto Relationships Act 1984 (NSW) which sought to correct
deficiencies in the distribution of property after separation (formerly
going straight to the holder of the deed), establishing a right to
spousal maintenance and entitling partners to compensation for de
facto’s wrongful death... In 1971 0.6% of couples were classifiable
as de facto, in 1997 it was 9.1%. Statistics illustrate society’s
composition to be changing, with 75% of those marrying having
formerly been in de facto relationships (ABS). This means de facto
relationships are being used as a step-stone to marriage.
De facto relationships have increased in popularity owing to
• Falling stigma around it
• It’s nature as a trial form of marriage
• Financial uncertainty sees marriage delayed

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• Divorced people are reluctant to remarry
• People in a same-sex relationship may not marry…
De facto relationships illustrate continuity & change, having
formerly been frowned upon, while now Australia’s Prime Minister
Julia Gillard is even a party to one, although her denial of the
legitimacy of homosexual marriages illustrates some social change
to have occurred, with some prejudices remaining… Progression is,
however, still evident, with Ms Gillard’s cabinet containing open
homosexual Penny Wong…
The Act has been amended to include same-sex couples in 1999.
Determining a de facto relationship
Davies and Sparkes (1990) saw a criterion for a de facto
definition:
• Care of children
• Duration of relationship
• Sexual relations
• Common residence
• Degree of mutual commitment
• Common ownership of property.
Ending de facto relationships
The Property (Relationships) Legislation Amendment Act 1999
allows couples who have lived together for at least 2 years to access
the courts for maintenance orders and property settlement. Those
together for fewer than 2 years may also apply for financial
adjustment… No applications are accepted after 2 years of a
breakup.
In property division, the media case of “De Factos lose more when
union sours” (2004) demonstrates de facto relationships to be
treated far worse than marriages under separation. The reported
NSW Supreme Court ruling found it “not the policy of the act to
elevate the status of a de facto partner to that of a party to a
marriage.” In addition the future needs of partners are not
considered, rather just contributions. Furthermore the woman could
only be compensated for her contributions during the relationship,
thereby getting $115,000 of a home by then valued $800,000.
Inequitable treatment with married couples obviously exists. Further
evidenced in the case of Turnbull v McGreggor (2003) with
future needs ignored, this was reversed under the Family Law
Amendment (De Facto Financial Matters and Other Measures) Act
2008. This treating of de facto relationships as if a marriage have
been criticised as an elevation driven by a need to recognise same-
sex relationships, NOT heterosexual de facto ones. It is a largely
unwanted change, creating undesirable financial obligations
traditionally only extended under the contract that marriage really
is. The imposition of financial obligations is for the most part an
arbitrary one, totally without need, especially considering that many
de factos are divorced, reluctant to repeat extending financial
obligations as this legislation forces. As the 2008 media article “De
facto choice deserves respect” argues “Do people who have chosen

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to live in a de facto relationship really want all their property subject
to the broad discretion of an elderly judge who treats them as if
they had been married?”.
Maintenance
Spousal maintenance is available to a spouse leaving a de facto
relationship, but is harder to obtain than for married couples. It is
only granted where one is unable to support themself, while the
other can afford to pay.
Federal law dictates maintenance is paid to all children, as valued
by the Child Support Agency.

Family Agreements
Domestic relationship agreements
Also known as cohabitation agreements, these documents govern
financial affairs & property of de factos, and terms of their living.
These can be made at any time and are binding provided
• Being written
• Signed by both parties
• Composition by a solicitor for the initiating party
• The other party gets independent legal advice on the
document with a solicitors confirmation certificate.
Agreements ought not to stipulate the care of children and
residency, these clauses being void.
If a party did not understand, had an inferior bargaining position or
was under duress, the court may set it aside.
The court may disregard an agreement if circumstances have
drastically changed, and partners may challenge agreements if they
do not suit them.
Termination agreements
These regulate de facto property & financial affairs, entered into
when a couple is contemplating separation, or it has occurred. This
is treated as if a domestic agreement if the relationship is not
terminated within 3 months, although if breakup does occur judges
may not alter terms.

Parents and children

Rights of Children
Dependant and vulnerable, children require special care &
protection, as acknowledged by the UN Declaration of the Rights of
the Children 1959 and CROC 1989. An overwhelming majority of
nations signed CROC, with Australia ratifying its provisions in the
Family Law Reform Act 1995 (Cwlth), adding the provision for the
“best interests of the child”, active in cases like Secretary,
Department of Health and Community Services v JMB and
SMB (1992) with parents forbidden from sterilising their
intellectually disabled daughter.
The case of Minister for Immigration v Teoh (1995) held
government authorities to have an obligation to consider

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Australia’s international obligations under treaties before making
decisions, here Teoh’s deportation, depriving his children of their
right of contact with parents.
CROC provides:

The Child Protection (Prohibited Employment) Act 1998 (NSW)

seeks to protect children through prohibiting those with sex
offences from working with them.
In addition laws have been amended to give avenue for the
prosecution of Australian “child-sex tourists” who commit offences
in other jurisdictions.
It is highly significant, however, that Australia ratified CROC with
the proviso that IT DID NOT have to comply with article 37(c),
thereby allowing for the imprisonment of asylum seeker children in
detention.

New Birth Technologies

Artificial Conception
Artificial insemination and IVF are regulated by the Status of
Children Act 1996 (NSW), stating that where a father consents to
the use of donor sperm, he is the legal father, as part of a
“presumption of paternity”, although the same principle doesn’t
apply to women making use of other’s wombs. The case of B v J
(1996) confirmed the obligation of a (non-biological) father to have
to pay maintenance on a child created with a donor’s sperm… Since
2006 children have possessed the right to trace their biological
father…
Laws for Artificial Reproductive Technology lie solely as a state
responsibility, the Artificial Conception Act 1984 (NSW) is a
simplistic, outdated law, with the NSW Parliament failing to keep law
in this area up-to-date with social/technological change.
It can be said that the issue of artificial insemination is
fundamentally one based on conflicting desires: the donor’s for
anonymity and the resulting child’s for contact with biological
parents.
Note that a 2009 change to reproductive technologies law has
indirectly discriminated against same-sex couples. Formerly a
donor’s contribution could only be given to “five families”, now
“five women”. This means that potentially a lesbian couple where
both wish to bear children from the same donor may be prohibited
from doing so…
While subject to moral questioning, a 1991 poll saw 81% of
respondents support the use of Artificial Reproductive Technologies
to help the infertile conceive children.
Commercialisation of reproductive technologies does pose moral
questions, requiring government regulation ethicist Dr Nisker
claims, especially with “designer babies” and “enhancement”,

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giving the potential for use in eugenics, as raised in the media
article “Are you afraid of designer babies?”.
Surrogacy
Surrogacy is where a woman bears a child for another, upon birth
being adopted to the commissioning couple, a potential recourse for
the 15% of couples that are infertile.
The Adoption Act 2000 (NSW) prohibits commercial surrogacy, but
permits it altruistically, with the sperm donor and birth mother
considered legal parents. Birth mothers generally give up rights by
adopting the child to the commissioning party… Commercial
surrogacy is legal in the US, for example, as in the case of Wood &
Mathews.
The US case of Whitehead v Stern (1988) demonstrates issues
arising from surrogacy, the surrogate deciding she wanted to keep
the baby, and the court’s application of “the best interests of the
child”. Similarly re Evelyn (1998) also demonstrates the deep
levels of emotional attachment evident in family cases concerning
children, the surrogate kidnapping the baby and becoming a
fugitive…
As the media article “Surrogate Mums” questions, surrogacy raises
moral quandaries as to parentage, being based on genes, gestation,
or purchase? Such questions remain unresolved and the subject of
debate.
The media article of “Ruddock urges uniform laws on surrogate
birth” (2007) demonstrates inconsistencies between state laws on
surrogacy to mean laws are inconsistently applied, with NSW and
Victoria the nation’s baby shopping forums… Ruddock also urges
the “socially infertile” be permitted access to sperm and egg banks,
that is to say, single mothers and same-sex couples….

Ex-nuptial children
Formerly frowned upon owing to their being the result of “immoral”
activity, with ineligibility for maintenance and property inheritance,
changing treatment of ex-nuptial children demonstrates change in
the legal system concurrent to changes in society’s values. The
Children (Equality of Status) Act 1976 (NSW) removed such
discrimination and the concept of filius nullius.

Adoption and guardianship

Adoption involves biological parents surrendering their legal rights
to children to another couple, legalised by the Child Welfare Act
1923 (NSW). Unlike fostering, this arrangement is permanent, with
all rights & responsibilities transferred. Adopted children are legal
equals to their carer’s biological children, pursuant to the Adoption
of Children (Amendment) Act 1982 (NSW). Reduced stigma of ex-
nuptial children has meant since 1971 the number of children up for
adoption has fallen by 17 times…
Care is taken for ATSI children to be re-placed into ATSI families, in
the interests of maintaining their links to their culture.

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The proposed Adoption Amendment (Same Sex Couples) Bill 2010
proposed the legalisation of adoption of children by same-sex
couples.
Consenting to adoption
Biological parents must consent to adoption, although the father
only having input where he was married or in a de facto with the
mother at the birth. Otherwise the father merely needs notification,
with 14 days under which to decide to take custody. The Adoption
Information Act 1990 (NSW) established a contact register for
parent/child locating, allowing parties access to the original and
amended birth certificates.

Problems in Families
Family problems exact a high cost upon families and the
community, being its cornerstone. Outcomes include breakdown,
violence, murder and suicide.
Legal Responses to violence between family members
Domestic Violence
Domestic violence is where one partner attempts to control the
other through physical or psychological means, including physical or
sexual assault, or verbal, emotional or economic abuse. The Redfern
Legal Centre estimates domestic violence to occur in 30% of
Australian households. 42% of all assaults involve a perpetrator who
is the spouse/partner of the victim.
While in 1987 33% of people felt DV to be a private matter, in 2009
only 8% of respondents to surveys felt this way, a fact illustrating
sweeping change in social values, in the Crimes (Domestic and
Personal Violence) Act 2007 making it be separately dealt with by a
criminal law…
Increasing awareness of domestic violence has given rise to the
emergence of “battered woman’s syndrome” as a defence to
murder as in R v Hickey (1992) where it amounted to a complete
defence resemblant of self-defence.
Domestic violence has an especially great incidence in ATSI
communities, with ATSI women facing more barriers in leaving
violent relationships, e.g. services available being culturally
inappropriate. An AIHW 2006 report found 71% of ATSI women to
have suffered sexual and/or physical violence in their lives, opposed
to 57% of non-indigenous women.

R v Kina (1988)
Kina spent 6 years in gaol having neglected to mention a factor in
her spousicide being her (abusive) partner’s threatening of her
niece. Protecting her dignity pursuant to custom, this left an
important element of the case unaddressed, which took media
attention before its review and her acquittal. This case
demonstrates cultural differences as posing a barrier to the law’s
effectiveness.

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Media Case: “Lani’s Story” SBS

“Lani’s Story” documents one of the worst incidences of
domestic violence in court history. Highlighting the social tendency
that “what happens in the home stays in the home”, where “you
handle it yourself. You don’t involve outsiders and you certainly
don’t involve the police”.
The case notes the reluctance of police to be involved in
indigenous matters, and ATSI people’s own “little faith in the legal
system”. The victim is of the belief that her aboriginality
contributed towards the delays of the case, taking 6 years to bring
the case to court, and 4 years in court…
In addition the case clarifies ATSI people to feel discomfort in the
public setting of the court, with “strangers there listening to every
word you’ve got to say”.

Sexual Assault
The Crimes (Sexual Assault) Amendment Act 1981 (NSW) made it
illegal to sexually assault a partner, recognising it as part of a wider
pattern of intimidation and violence.
How does the law respond to violence in families?
The law has responded to DV with the Crimes (Domestic Violence)
Amendment Act 1982 (NSW) recognising its criminal nature and the
inadequacy of the legal system in managing it. The Weapons
Prohibition Act 1998 (NSW) gave additional protection to family
members, with their automatic confiscation in the event of a DV
report or ADVO filing.
When police enter a premises to investigate a DV complaint, they
MUST inquire about the presence of firearms and seize those found,
and automatically apply for an ADVO on behalf of likely victims,
these being available after hours as well. ADVO breaches are
punishable by prison sentences, and police have a pro-arrest policy
for all domestic violence cases.
The Periodic Detention of Prisoners (Domestic Violence) Act 1982
also gives avenue for the weekend detention of offenders, allowing
them to work in the week, and be incapacitated over the weekend,
during which DV has the highest incidence. This is preventative in
terms of incapacitation, preserving family links, and ensuring after a
punishment a perpetrator maintains employment, avoiding a
poverty-crime spiral.
ADVOs
Created by the Crimes (Domestic Violence) Amendment Act 1982
(NSW), these aim to stop recurring DV and the fear of its
perpetration. They restrict offender’s behaviour in different ways,
flexible to the individual case, requiring they not
• Assault
• Harass
• Threaten
• Stalk or

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• Intimidate.

ADVOs are obtainable

• By anyone over 16, and cover entire families
• By those able to, on the balance of probabilities, prove they
reasonably anticipate violence
• Police OR victims may obtain them, via a magistrate (over
the phone if out-of-hours)
• Max penalties for breach: $5000 fine and/or 2 years goal,
with a presumption against bail
• All guns must be seized by police
• Such orders from other states may be registered in NSW, and
vice versa – consistency between states...

Police must seize all firearms, licences being automatically

revoked. In 1988 the legislation was expanded to cover other family
members. ADVO’s effectiveness is attested to by their expansion to
other areas of the law APVOs for non-family matters…
Police must attend all DV reports and file reports on the matters,
increasing accountability and community confidence. 2009
amendments made ADVOs automatically include children in the
custody of applicants for them.
Problems exist in enforcement by police, not being a major priority,
and on it’s own being a mere piece of paper. Problems also arise
where complainants change their mind, welcome perpetrators back,
are again subjected to violence, and then cause confusion as to
whether a breach has occurred.
With those accused of breaching an ADVO a presumption AGAINST
bail exists, under the Bail Amendment (Repeat Offenders) Act 2003
(NSW), otherwise known as “Trish’s Law”.
70% of ADVOs are never breached. Of those that are, 35% involve
the complainant being approached at work or home.
By nature ADVOs are reactive, although they do seek to discourage
conduct, they are only enforceable after a breach has occurred…
Remedies under Family Law
Since 1976 the FCA’s attitude to DV has changed, recognising its
impact on children, their dependency exemplifying physical &
emotional vulnerability, e.g. injury stepping into fights, or as adults
perpetuating violence themselves, following parent’s examples. The
Family Law Reform Act 1995 (Cwlth) requires the court to consider
family violence in allocating child residency…

Non-legal responses to domestic violence: Case Study

The “Domestic Violence Help Online” website is a Penrith Council
funded resource aimed at raising awareness of and thereby
combating domestic violence within the wider areas of Penrith, the
Hawkesbury and Blue Mountains.

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Through victim support, information provision and raising
awareness this body helps to bring the issues of DV out of the
home, being available from within it.
Since 2004 the DV Help Online website has increased the
effectiveness of law enforcement by highlighting its illegality in a
highly accessible form, and providing information to support
people in an emotionally fragile state, raising awareness about the
options available to them for lawful protection and redress. In this
sense it acts as an interlocutor for victims to legal mechanisms, all
presented in a form accessible in terms of easily understandable
language, availability in different languages, access to the internet
being easy to come by, in most homes, and free.
Other non-legal mechanisms include
• Women’s refuges
• The Domestic Violence Line
• Etc.

Legal responses to violence by and against children

Children & DV
Children in violent homes are vulnerable owing to dependency
upon parents financially, psychologically and emotionally – their
source of constancy. Therefore children regard violence as
inevitable/normal, damaging to their own development. For such
reasons police are reluctant to intervene where children leave home
early…
The Children and Young Persons (Care and Protection) Act 1998
(NSW) established a duty of care among doctors, social workers and
teachers, to notify DoCS where they possess reasonable grounds for
suspecting child abuse. The Department of Community Services has
been criticised for its failure to prevent several contemporary child
deaths like the tragic child in the suitcase incident and the case of
Ebony who was starved to death. These are attributable to
underfunding, level inadequate to handle the 300,000 notifications
of children being at risk last in 2008...
Child sexual assault
Difficult to prove, children often deny the perpetration of sexual
abuse owing to a sense of fear or guilt, blaming themselves or
fearing others won’t believe them. Its secrecy makes it very difficult
to detect.
Research shows perpetrators most commonly to be family
members and 10-30% of children to experience it in some form by
18.
Whether to report can be hard to judge if evidence is insufficient,
as false claims can be detrimental, while failure to act can be more
so…
Children in Trouble
Children are in trouble are, according to the Children and Young
Persons (Care and Protection) Act 1998 (NSW) because a child

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• “Has not had, or is unlikely to have, adequate provision
made for them…
• Is being physically, sexually or emotionally abused
• Has suffered a substantial and irretrievable breakdown in
their relationship with their parent(s)”
The Children and Young Persons (Care and Protection) Act 1998
(NSW) aims to proactively combat abuse by requiring those working
with children to report abuse to DoCS. A child “in need of care and
protection” may be removed from parent’s custody, although cases
such as that of Ebony demonstrate DoCS to be seriously
underfunded…
Children locked in cars present a contemporary concern area for
children, the case of R v Hua Yu (2000) seeing a mother charged
with manslaughter for her son’s resultant death.
The 2009 media case of “Anger at law that fails children”
documents protests by parents at Family Court decisions which saw
22 children’s deaths at the hands of their partners to whom whole
or partial custody was granted, against whom they testified against
about their propensities towards violence. They further alleged
inadequate psychiatric assessment by court experts as contributing
towards this, a mother called Carolyn documenting how “hasty
assessments […] carried huge weight in court”.
Children’s Court & Legal Aid
The Children’s Court specially deals with child-care and child crime
matters, dealt with separately.
Care removal decisions must be based on satisfaction of it being
“very highly probable” the child needs care & protection. Children’s
Court is closed to the public…
The Legal Aid Commission automatically allocates legal
representation to a child accused of a crime. For a conviction of
children 10-14 the prosecution must prove a child to known what
they were doing was wrong, those under 10 lacking the capacity for
mens rea at all. Children offenders are heard in the Children’s Court,
and are flexibly punished pursuant to the Young Offenders Act 1997
(NSW), with options for warnings, cautions and youth conferencing.
The emphasis is on preventing reoffending as an adult…

Dissolution of Marriage
The Commonwealth of Australia Constitution Act 1900 (UK)
allocates matters of marriage and divorce to the Commonwealth.
The Matrimonial Causes Act 1959 (Cwlth) allowed for fault-based
divorce, with reasons like desertion, cruelty and imprisonment, with
five years of separation… This reflected values insofar as marriage
was a commitment for life, and to break it one had to justify
separation. As community values changed, so to did the law with
the Family Law Act 1975 (Cwlth) which established a no-fault
divorce available after 12 months separation, and the separate
Family Court Australia.

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The effectiveness of this reform is given perspective where it is
considered that prior to it, from 1971-1975 a total of 13,000
divorces took place. In the single years of 2001, contrastingly
55,000 took place. This illustrates both the facilitating of the process
and wider social tendencies towards it.
Characteristically churches oppose increasing divorce accessibility,
and the Family Law Amendment Act 2000 (Cwlth) which recognised
pre-nuptial agreements.
Some argue that in cases of domestic violence, a fault divorce still
exists, owing to the property advantages this can afford where
personal injury claims are combined, as in Marsh v Marsh (1994).
Others argue a fault divorce for DV cases ought to be allowed for,
giving victims compensation for their ordeal – a debateable issue.
Where a judge is satisfied a divorce has irretrievably broken down,
he will pass a decree nisi, a month interim after which, provided no
parties change their minds, a decree absolute is granted.
Significant amendments include
• The Family Law Amendment Act 1983 clarifying custody and
guardianship
• The Family Law Amendment Act 1987 making all children
covered by the act, including ex-nuptials…
• The Family Law Reform Act 1995 allowed litigation to be
bypassed via simple, fast, 2-page forms processed within 6
weeks. This increased divorce’s accessibility.
Family Relationship Centres
These institutions involve mediation to resolve parental disputes;
parenting plans negotiated onsite with a counsellor’s input,
reframing issues into the context of “the best interests of the child”.
Such agreements are registered with the FCA, and are low cost,
accessible options…
FCA changes are emphasising informality, with reduced adversarial
characteristics, and wider equality & accessibility with cases from
rural areas. The problem is that the 65 centre’s popularity has
meant that waiting lists are such that there are time barriers and a
2010 announcement declared a means test for the formerly blanket-
given free 3 hours… This is questionable as regards resource
efficiency, quite possibly funnelling cases from inexpensive
mediation into the conflict setting of expensive litigation…
65 centres do exist but more are needed, but are typically used to
gain the favour of electorate constituents, ignoring regions of
greater need. Locations thus engender inequalities from access.
The media case of “Plan to settle child custody disputes by
arbitration” 2010 propounds Attorney-General McClelland’s
suggestion that FRCs be empowered with arbitration capacities, in
recognition of how it is not necessarily good for child-disputes to be
resolved through litigation.
The media case of “Divorce courts ditched” records these centres
as driving a large-scale movement of people from family law

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litigation towards Family Relationship Centres, with 40,000 people
making use of them in NSW alone.

Discuss the role and effectiveness of legal institutions in

protecting family members
Australia’s legal framework for Family law problem management
is a web of state and federal institutions. This array includes the
Family Court, Children’s Court, Police services, the Federal
Magistrates Court, and individual State Criminal Court systems,
the recourse of the 5% of families who seek a legal remedy for the
resolution of their family problems. Multifaceted, all problems
require the protection of family members, including domestic
violence, dissolution of marriage and child neglect.
From these, needs for protection arise; be it of domestic
violence victims, spouses in divorce with disparately low power in
a relationship, children’s interests in custody allocation, and
children under alleged abuse.
The criteria used for judging effectiveness of legal institutions in
protecting family members is one weighing community and
individual needs.

81% of family case filings are heard in the Federal Magistrates

Court. More complex cases visit the Family Court, and those
involving the possibility of children needing “care and protection”
head to the (closed) Children’s Court. A minority of appeals are
heard in the Supreme and High Courts, whose overall role is
minimal.
Family cases which extend into domestic violence and child
abuse areas are heard in State Criminal Courts such as NSW
District Courts, involving the police to whom crimes are reported
and DPP, which prosecutes them.

Studies evidence a “close connection between family

breakdown and violence” (Family Court FVS). The manifestation of
family problems in domestic violence is a problem affecting:
350,000 women per year in the form of physical assaults of a
social cost of $13.6 billion and unquantifiable trauma (Prof.
Croucher). The low visibility of domestic violence has contributed
towards its stigma, conventionally “staying in the home” – social
conventions have impeded enforcement.
Naturally reactionary, legal system sanctions don’t deter crime
(DPP N. Cowdery), as Court “involvement usually occurs after
harm has already been inflicted” (FVS). Institutions are therefore
ineffective in prevention, maintaining accountability. The media
case of “Dial-an-AVO” demonstrates a need for victim protection,
Ms R. Young being gunned down outside court in 2006. In
response preventative measures have emerged.

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Apprehended Domestic Violence Orders afford some protection,
limiting perpetrator’s proximity and contact. 2006 amendments
increase ADVO’s accessibility, police now attaining them
telephone, allowing implementation during crises. Recent changes
extend protection to children in the custody of claimants, offering
more effective protection.
Similarly Periodic Detention of Prisoners (Domestic Violence) Act
1982 and recent amendments give scope for offenders to work
during the week and attend detention on weekends, an effective
preventative in how it maintains employment, minimises further
strain, and incapacitates reoffending through incarceration at peak
offence times. Each measure offers a means for family protection,
and recent reforms of ADVOs extend their influence to children in
custody of the victim. Additionally compulsory ADVO reports and
the mandatory police attendance of domestic violence reports
increase police accountability, as do ADVO provisions for the
confiscating of all firearms.
Reform demonstrates realisation of domestic violence’s impact
on children: physical and emotional threat engendering greater
tendencies towards cyclical offending: they “model their own
patterns of behaviour on those exhibited” (FVS).
Domestic violence, a criminal offence, is disapproved of by 92%
of people according to a National Crime Prevention Study. The
prohibition of domestic violence is therefore consistent with
community standards.
The problem with domestic violence laws is their state
jurisdiction. This means different Criminal Codes operate on
domestic violence with “inconsistent levels of enforcement”
according to ALRC President Prof. Weisbrot, with families afforded
“different levels of protection depending upon where they live”.
This serves as an impediment to enforceability and access to the
exaction of justice with issues of jurisdiction, etc.

Family members also require protection during the dissolution of

marriage, with 47,000 divorces in 2008. Needing protection, for
example, partners with disproportionately low power in a
relationship can need aid in divorce in the form of Court
counselling facilities and subsidised legal representation from the
NSW Legal Aid Commission for the socioeconomically
disadvantaged, allowing the pursuit of matters on more of an even
footing, in the interests of equality and procedural fairness. While
legal aid is subject to restriction, knowledge of the law is
accessible over the Internet to an extent that a reasonable self-
prepared case can be made. It is therefore arguable that the
framework for divorce settlement affords as much legal protection
to stakeholders as is financially viable with limited state resources,
close to a balance of society and individual needs.
With 48.8% (AIFS) of divorces involving children, their protection
in custody allocation is paramount. A difficult balance must be

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reached in drawing the line where custody should be prohibited:
ban contact and inflict emotional harm or allow contact and see
potential emotional and physical harm inflicted. A hard choice this,
varies between cases.

Children in court raise issues questions of effectiveness, overly

intimidated by conventional settings. This gave rise to the
specialised Children’s Court, focusing on matters of “the best
interests of the child”, a pinnacle of the Family Law Act 1975,
actually derived from the Convention on the Rights of the Child.
Domestic codification is demonstrative of society’s need to protect
vulnerable children. Hence children are afforded automatic Legal
Aid access, illustrating an effort at enforcing children’s rights and
rule of law (children lacking financial resources) also subsistent
with CROC and improving accessibility.
Children’s dependence on carers gives scope for unseen
neglect. As such enforcement is highly ineffective, attested to by
media articles on the inadequacy of the underfunded Dept. of
Community Services. The Children and Young Persons (Care and
Protection) Act 1998’s absence of punitive sanctions fails to offer a
deterrent, highlighting ineffectiveness. Institutions can therefore
little protect the unheard children of a family if they lack sufficient
penalties and enforcement mechanisms/opportunities.
The physical and sexual abuse of children is a major crime dealt
with by the “Magellan Project” division of the Family Court. An
inquisitorial nature with emphasis on time efficiency increasing
accessibility and automatic allocation of legal aid contributes to
the cultivation of a more effective legal institution. Thereby
children are protected from the acute trauma of reliving violence
over an extended period, as trauma studies on adults reveal to be
just as traumatic as the event itself (ALRC media release).

Family law does constitute a burden upon the Australian legal

system with growth in filings in the Federal Magistrates Court
driving increased calls for funding allocation in the interests of
keeping Court accessible for the time poor, and calls for more
resource efficiency, cutting unnecessary costs like $5 million on
Family Reports.

In summation family problems challenges to social justice and

family member’s safety cannot be underplayed in importance, and
so issues of them within the family context must be addressed.
The effectiveness of legal institutions in problem resolution is
central to the function of society, although a trade-off does exist
between community and individual needs. The present system’s
institutional framework is evidently ineffective, with inadequate
provision of Legal Aid and insufficient Court funding. While by
present standards the law justly reflects community views,
enforceability must be improved through the changing of social

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attitudes towards the reporting of all domestic violence and abuse,
in the interests of the protection of human rights, and those
provided by domestic and international law.

Family Court of Australia

This Court’s emergence demonstrates continuity & change insofar
as the Constitution, written in 1900, lacked provision for a family
court, low instances of divorce making one inappropriate. However
their contemporary preponderance has given rise to such a need,
one formed by the Family Law Act 1975.
Courts dealing with family law are, DR Harris notes: “required to
provide a means to resolve or determine what are not strictly legal
problems by imposing a legal solution. Each matter must be
determined upon its own merits according to the special facts of the
case and to ensure individual treatment judicial officers are required
to exercise a degree of discretion when making a decision on any
matter. Family law by definition is an imprecise science.”
Indeed the media case of “A Fighting Chance” (2007) notes the
impersonality of the legal system which takes an “emotive
relationships” and “makes it more objective”.
The Court was initially criticised for its informality, and the fact that
“no-fault” divorce drastically increased divorce numbers, prompted
by several violent attacks in court…
The court offers both counselling & mediation as well as
adjudicators & judges.
An increasing volume of cases is heard by the FCA, but Chief
Justice Nicholson notes underfunding, e.g. in 1998, despite massive
increasing in applicants, only one additional judge was appointed
over ten years.
Counselling
The Family Law Reform Act 1995 guides disputes from litigation
towards mediation, arbitration and counselling, with partners
encouraged (often compulsorily) to make use of them for children &
property settlements, the government offering counselling and
Family Relationship Centres.
Counselling is confidential, evidence compromised in it not being
admissible to the court. Chief Justice Bryant has proposed that
counsellors and mediators be empowered to pass on information
where a risk to family exists, allowing judges to base decisions on
more evidence, avoiding risk factors being missed.
Mediation
Mediation gives avenues for problem resolution in a manner not
intensifying conflict, as (adversarial) courts do, and so being
employed in Family Relationship Centres. They help clarify issues in
dispute and suggest way of dealing with them, in a neutral manner.
Limits of jurisdiction
A Federal Court, the FCA is limited by federal jurisdiction:
matrimonial causes and associated issues, i.e.
• Principal relief – divorce and nullity

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• Ancillary relief – matters around divorce: division &
settlement of property, injunctions, maintenance, and
specific issues…
Until the Family Law Amendment (De facto Financial Matters and
other Measures) Act 2008 jurisdictional limitations meant de facto
couples had no recourse to the FCA, relying on state courts, but
because of the Family Law Amendment Act 1987 the FCA’s
jurisdiction over the residence, contact and maintenance of nuptial
AND ex-nuptial children, de facto couples with children had to have
concurrent cases in state & federal courts, posing questions of
resource efficiency and accessibility… The Family Law Amendment
(De facto Financial Matters and other Measures) Act 2008 (above)
removed these institutionalised injustices and rectified a major
social justice issue by giving the Family Court jurisdiction of these
formerly state matters.
The case of Minister for Immigration v B (2004) found the FCA
to lack jurisdiction over the detention of refugee children in
detention centres.
The FCA also has appellate jurisdiction over matters from the
Federal Magistrates Service, as well as running rural circuits.

The Federal Magistrate’s Service

Established in 1999, this manages simple civil and family
matters, being designed cost & time efficient, and covering most
areas of divorce. It has eased the work burden on the FCA, by
2001 handling 51% of divorce cases. The 2010 media case of
“Court dismissed, as part of cost-cutting measures” documents
the existence of 2 courts for family matters as confusing to
litigants…
The media case of “Cuts to family judges disastrous” 2010
records the fact that the Federal Magistrates Court is set to be
reintegrated into the Family Court of Australia. This change is set
to increase the waiting period for litigants, in a “more integrated
and efficient form” according to the Attorney General.

The 2010 media case of “Cuts to family judges disastrous” records

the fact that the Federal Magistrates Court is set to be reintegrated
into the Family Court, this change is set to increase the waiting
period for litigants in a “more integrated and efficient form” the
Attorney General contends.

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Family law’s provisions for divorce

Parental responsibility
Both parents are responsible for their child until they
• Turn 18
• Enter a de facto relationship
• Marry or
• Are adopted.
The Family Law Reform Act 1995 renamed “custody” with
“residency” and “access” with “contact”, recognising children’s non-
material nature, and targeting to “ensure that children receive
adequate and proper parenting to help them achieve their full
potential”, being “in the best interests of the child” pursuant to
CROC, ratified in 1990.
The Children (Parental Responsibility) Act 1994 first recognised the
responsibility of parents for their children’s behaviour.
The Family Law Reform Act 1995 has judges consider, in allocating
residency:
• Wishes expressed by the child
• The nature of both child-parent relationships

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• The likely effect on the child of changes in circumstances
• Practical and financial difficulties in child-parent contact
• Parent’s capacity to care for a child
• The child’s maturity, sex and background
• The need to protect the child from physical & psychological
harm from abuse
• Parent’s attitude to the child and parenting
• Any family violence, although the media case of “Law fails
children exposed to harm” 2010 cites lecturer Laing of
Sydney University as claim “there is no requirement that a
parent who has harmed a child in this way must demonstrate
they can offer a safe and meaningful relationship”.
Involvement of both parents in a child’s life
Both parents are to be involved in a child’s upbringing where that
is desirable and possible. Problems around children after divorce
include
• Denial of contact
• Difficulty in enforcing orders
• Disputes over maintenance
• Geographic distance.
Parenting orders
These are court-imposed decisions where children live, whom may
contact them, maintenance, etc. Orders are divisible into
• Residence orders – custody orders about residency, including
changing circumstances as in B v B (1997) with a parent’s
primary custody maintained for an interstate move in the
interests of constancy.
• Contact orders – access orders regulating whom the child
may have contact with at certain times
• Child maintenance orders – orders concerning one partner’s
obligation to financially support the other in the upkeep &
support of children
• Specific issues orders – orders pertaining to childcare,
schooling, etc.

The Child Support Scheme has facilitated maintenance payments

being deducted via the ATO, with it’s internal Child Support Agency
calculating and collecting it, sending it to the Dept. of Social
Security which forwards it to the recipient, allowing for the
adjustment of pensions accordingly. Formerly around 40% of
maintenance orders were not complied with, the CSS facilitating the
enforcement of the law… The media case of “More parents try to
evade child support” (2008) demonstrates, however, the number of
parents try to underpay child support to be increasing rapidly,
totally nearly $20 million altogether. Generally this involves
reducing one’s taxable income, one father doing so by $65,000 to
reduce payments by $16,000, despite his income actually surging…
Decision making by the court

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Decisions are guided by the paramount “best interests of the
child”, based upon
• The wishes of the child
• Whether orders are likely to see further disputes
• The effect on the child of separation from someone whom
they’ve been living, e.g. sibling
• The effect of changing existing living conditions upon the
child
• The attitude of parents to parenting duties, & their capacity
to do them
• The nature of both parent-child relationships
• The right of the child to have contact with both parents
• The need to protect children from physical or psychological
harm
• Any family violence order concerning the family.
The consideration of family violence is a new one, from the Family
Law Reform Act 1995, a change illustrating changing community
views about the impact of DV on children’s development, where
formerly only violence inflicted UPON the child was considered.
Property Allocation
Matrimonial property is distributed upon divorce either through
partner’s collaborative agreement or via the courts (provided a
request is lodged within 12 months of decree absolute). The courts
divide property pursuant to the Family Law Act 1975, property
including all assets, including those reasonably expected to vest
according to the case of The Marriage of Petersens (1981),
including superannuation according to the Marriage of Coulter
(1989) which saw this codified in an FLA amendment in 2001. The
case of C v C (2005) demonstrates difficulties to exist in the
determination of superannuation division, often being complexly
arranged…
The court, in dividing property, considers the financial & non-
financial contributions and future needs of the parties… This is
illustrated in C v M (2006) where the husband received the
majority ownership of land purchased owing to his greater financial
contribution… The consideration of future needs has formerly not
been applicable to de facto couples, as seen in Turnbull v
McGreggor (2003), reversed under the Family Law Amendment
(De Facto Financial Matters and Other Measures) Act 2008.
Spousal maintenance
This is awarded to spouses who require aid in establishing self-
sufficiency, and may face barriers like medical conditions or a lack
of job skills.
In maintenance considerations, the Court considers both party’s
income, costs of maintaining the family home, and welfare support’s
availability. Spousal maintenance is only temporary in help
dependent partners establish independence.
Problems of enforcement

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Problems of enforcement include resident parents refusing contact
on the premise of children’s illness, neglect of child maintenance
payments, and parents taking children out of the country.
Enforcement is difficult, court orders only enforceable via returns
to court, with additional costs, friction & trauma. Difficulties in
access may cause injustice, with a parent resigning him or herself to
reduced contact.
Up to 30% of non-custodial parents fail to pay maintenance,
problems including
• A dominant spouse undermining the other via claims of
inability to pay
• A non-custodial parent holding resentment, feeling
innocence in their break-up and consequently no obligation
to support children whose access to which they are subject
to restriction
• The non-custodial parent may have a new family and find
difficulty in affording maintenance
• Liable parents moving house or overseas, or under-declaring
income, working under an assumed name, etc, causing
difficulty in the calculation of their net income.
Privately reached agreements
Recent legislation’s focus has been upon increasing the autonomy
of marriage dissolution, reducing the role of litigation, in the forms
of the following.
Parenting Plans
Pursuant to the Family Law Reform Act 1995 these documents are
from parents plan children’s treatment, including
• Who they live with
• Who they can see
• Their schools, holidays, religious and medical matters
• Maintenance arrangements
• Other aspects of responsibility.
The 1996 Parenting Plan Kit helps raise the awareness and
accessibility of these mechanisms, which when filed assume the
enforceability of court orders.
Parenting plans offer routine, structure and stability.
Domestic agreements
The Property (Relationships) Act 1984 and Family Law
(Amendment) Act 2000 recognise domestic agreements which
govern de facto couple’s financial affairs & property, able to be
made at any stage of a relationship. All a valid provided both parties
seek independent advice.
Pre-nuptial agreements
The Family Law (Amendment) Act 2000 recognised these
documents, which are enforceable by the FCA provided conditions
have not drastically changed. In forming these, party’s need
separate representation whose cost is offset by the difficulty of
overturning them.

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Pre-nuptial agreements may include binding property agreements
during marriage and upon separation, helping keep couples out of
court, with autonomy. Pre-nuptial agreements appeal to those with
substantial assets, a history of divorce, people who marry late.
The 2007 media case of “Settling up before settling down”
documents an increasing preponderance of pre-nuptial agreements,
some firms quadrupling their numbers of prenups. This article raises
how prenups have a tendency towards favouring only one partner to
a marriage.
Relationships Australia estimates only 5% of the marrying
population to draw up a pre-nuptial agreement.
Post-nuptial agreements also exist regarding property division
after a marriage ends.

MORALITY, ETHICS, COMMITMENT, EFFECTIVENESS AND

REFORM TO FAMILY LAW
Morality & ethics in family law
Family law’s constant change reflects change in community values,
family law often being abnormally responsive to them, owing to the
gravity of their charge. The area is controversial, evoking strong
emotions and diverse opinions, often rooted in religion. The
divisiveness of issues can make it difficult for lawmakers to resolve
which path is the right one, something seeing the law lag behind
community change… An example of how emotionally charged
family law is, is espoused in the 2010 media case of “Attempt to
block ‘Mummy D’ fails”, where the custodial parent sought an
injunction to prevent the non-custodial parent from teaching their
daughter to refer to them by a name they dislike.
Same-sex relationships
The Property (Relationships) Legislation Amendment Act 1999
(NSW) gave same-sex de facto status couples of 2 years duration:
• The right to access the District Court to divide property or
claim maintenance
• To have hospital visiting and inheritance rights if a partner
dies intestate.
The NSW Industrial Relations Commission’s Family Leave Test
Case (1994) and Personal/Carer’s Leave Test Case (1995)
recognised same-sex couple’s entitlements to use of sick leave
entitlements for the care of their same-sex partner on a bona fide
basis.
Irrespective the Federal Government has been swift to prevent
moves by State Governments towards same-sex marriage
legalisation.
The case of W v G (1996) demonstrates the complexity of same-
sex separations, especially with the involvement of children.
Dissolution of marriage
Time has had marriage movement from a sacred, timeless bond
into one severed by the mere establishment of its “irretrievable

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breakdown”, demonstrative of changing social values in a move
from Christianity.
Other moral influences & challenges
Increasing scrutiny of DV has seen increasing intolerance of it, with
law consequently issuing harsher sanctions for perpetrators, with
treatment of it as a crime.
Reproductive and genetic modification technologies also pose
moral questions as to the production and modification of children.

Commitment to Family law

Compliance
Law can only be effective where society follows its regulations, and
guidelines of the court. Case’s emotional charge often sees non-
compliance by generally compliant citizens, e.g. 20% of ADVOs are
broken, many breaches going unreported.
Campaigns like Howard’s “Violence against Women, Australia says
no” help raise awareness about legal issues, pursuing greater
compliance AND reporting.
Had everyone agreed with and been committed to the law, the
Family Court would be redundant and the Child Support Scheme
non-existent…

Effectiveness of Family Law

Effectiveness of Individuals

Equality
The needs of adults are secondary to “the best interests of the
child”. Children’s vulnerability means to achieve a just outcome
their treatment must be different.

Accessibility
Family law is frequently very expensive, and Legal Aid is hard to
obtain, posing issues of equity where only one party receives it. For
the disadvantaged denied Legal Aid, pro bono work is the only
option, as provided by the Community Referral Service Pro Bono
Scheme.
Those in remote areas have difficulties in access.
In children sexual abuse matters, two thirds of children claim they
would not disclose their case’s details again owing to the trauma of
preparation, a fact demonstrating the intimidating & emotionally
draining nature of court.
Migrant women of NESB face particular difficulties in accessibility,
owing to cultural prohibitions, lack of knowledge of English,
unfamiliarity with adversarial legal systems, past negative
experiences of courts and fear of deportation.
The Federal Magistrates Court was established for the expressed
purpose of lightening the load of the FCA and dealing with cases
more efficiently… Similarly Family Relationship Centres by design
seek more efficient, emotive and effective resolution to the

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dissolution of marriage… A preponderance of similar websites offer
avenue for access to information about family issues.
The court system’s adversarial nature is being reduced in the
interests of making proceedings more effective, with the
involvement of counsellors, etc.

Enforceability
A NSWBCSR 1997 report found ADVOs effective in reducing
violence against women, as a preventative measure. The case of Ms
Majdalawi (1996) being gunned down outside of court demonstrated
a need for better court security provision for victims of family
violence during court proceedings. Subsequent internal reforms saw
requirements for threat disclosure… The effectiveness of reforms is
questionable given the similar case of Ms Young being gunned
down, in defiance of an ADVO order in 2006.
Police are now more accountable, subject to an investigation
where they fail to investigate a domestic violence report, and have
to apply for an interim ADVO. In terms of reporting, however, only
(approx) 20% of ADVO breaches are reported.
The 2010 media case of “Secret web of sorrow when parents move
on” documents online dating as conducive to the phenomena of
increasing applications for relocation with children in custody,
something costing up to $15,000 per year to maintain physical
contact between children and the non-custodial parent… This has
given rise to the incidence of the FCA being capable of granting
video conferencing access to non-custodial parents, overcoming
problems of relocation, something at present only nominally
undertaken. A US Court has ordered such an access situation

Resource efficiency
Taxpayers carry family law’s cost. Use of counselling & mediation
has reduced litigation and hence tax-burdens, with 90% of divorces
settled within 4 months. The Young Offenders Act 1997 (NSW) seeks
to keep youths out of the legal system by offering alternative
punishments, hence minimising contact with other criminals.

Protection & recognition of individual rights

The absence of a party at fault means both parties have identical
rights – conducive to conflict. The principle of following the “most
just” outcome is generally used. The system strives to balance
everyone’s rights, but inevitably by protecting one’s, others are
infringed…

Effectiveness for society

Resource efficiency
The adversarial nature of courts promotes conflict and spending
money, this being in the interests of divorce lawyers. For example
the media case of “Parents’ court row over kid’s birthday”

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documents a highly frivolous case of a waste to court resources, the
likes of which must be more effectively combated.
The court is often understaffed and lacking resources, with them
sometimes statutorily being squandered, e.g. $5million on
sometimes unnecessary family reports from the Federal Magistrates
Court, which is under financial strain…
Court’s lack of streamlining, increasing workload and rampant
inefficiency contributes to a long court delay…
Legal Aid Commission funding cuts see this system underfunded,
posing social justice issues, and also compounding court delays with
proceedings taking longer according to Chief Justice Nicholson.
The Federal Magistrates Court was established to increase the
efficiency of he family law system and reduce tax burdens on
society. In 2001 51% of divorces were handled by the FMC. Family
Relationship Centres do a similar job, being effective in allowing
parties to have an input and reach mutually agreeable decisions…

Law as a reflection of community standards & expectations

Family law divides society on issues like same-sex marriage and
divorce’s accessibility, while technological development can leave
the law far behind society’s needs of it. Such change is illustrated by
the Property (Relationships) Act 1999 defining a de facto couple,
encompassing same-sex couples: “any close personal relationship
between two adult persons, where or not related by family, who are
living together, one or each of whom provides the other with
domestic support and personal care”.
In 2009 the government took steps to rectify the 58 instances in
which same-sex couples are discriminated against in financial
entitlements, as reported by HREOC in 2006 and criticised by High
Court Justice of the time, Michael Kirby.

Opportunities for enforcement

People in (non-DV) family matters have committed no offences,
seeking dispute resolution. Enforcement is not an issue until
decisions are made, with stipulations needing to be abided by, e.g.
child maintenance.
While enforcement is criticisable, it is presently satisfactory in the
majority of cases, the main issue being reporting of DV, targeted by
media campaigns.
Actual levels of compliance with FCA orders are high, but in the
case of breaches, the individual must report it…

Appeals and review

Opportunities for appeals exist, following a hierarchy. Family law is
subject to continual review, evident in it’s contemporaneous
changes and development. 47% of appeals relate to children, 27%
to property allocation. Appeals are important as they give avenue
for the correction of errors of fact & law…

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Balancing individual & community rights
Individual rights must be upheld, but not at the expense of
community values. Conflict does exist in DV & child abuse, with a
balance between parent’s right to discipline and children’s rights to
safety, for example.
The welfare of the child is stipulated by community values and
individual rights to be the paramount concern in cases. Similarly the
community is increasingly concerned with domestic violence, hence
the law requiring police to seek ADVOs where they suspect it, even
if against victim’s wishes…
It is significant to note that the increasing recognition of same-sex
relationships also means that heterosexual de facto relationships
are consequently having more and more responsibilities bestowed
upon them, something not entirely just or wanted…

Reform of Family law

Agencies for reform
Law Reform Commissions
The ALRC is presently carrying out a study into family violence,
considering the appropriateness, among other things, of its state
jurisdiction, in conjunction with the NSWLRC. Altogether the
framework’s effectiveness is under consideration.
The NSWLR focuses on areas de facto couples, reproductive
technologies, wills, adoption & child protection, while the ALRC’s
scope covers all family law, orchestrating the Family Law Reform
Act 195 (Cwlth).
Parliament
Parliaments are the primary lawmakers in all jurisdictions, limited
only by the Constitution, Federal Parliament revolutionising family
law in the FLA of 1975.
State Parliaments have been the main source of same-sex
relationship’s increasing recognition, owing to their jurisdictional
ability to do so under the Constitution.
Courts
The FCA is under constant parliamentary review, while also being
the source of reforms, such as the Magellan children’s court
program. Many reforms are driven by common law, for example gay
couples having access to couples health insurance under Hope and
Brown v NIB Health Insurance (1995) and the acceptance of
battered woman’s syndrome.
In addition the courts have been running pilot studies of Less
Adversarial Trials in the Children’s Cases Program in Parramatta and
Sydney registries, with great successes, leading to reform of the
judicial processes, the changes more effectively cultivating
cooperation over conflict.

The Children Cases Program (2004-05) and Less Adversarial Trial

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With a focus on the needs of children, casual settings,
inquisitorial involvement of the judge and a disinterest in parent-
to-parent disputes, the program trials were highly successful,
reframing the issue back into the treatment of children. The
Children’s Cases Program “demonstrated a greater capacity to
respond to and safeguard the psychological vulnerabilities of the
co-parental relationship, post-separations than the traditional,
adversarial process” – Dr McIntosh.
Since the pilots in 2004-05 the system of Less Adversarial Trial
has been extended to the FCA in general, its other benefits being
the continuity of a single trial judge and emphasis on cooperation
over conflict according to Professor Hunter, removing the win-lose
of adversarial processes in preference to collaborative procedures.

Conditions giving rise to a need for reform

Changing social values & composition of society
Effective law needs consistency with society’s values, but the
divisiveness of the subject makes these diverse and thus the subject
to regular change. An example of such change is law reform from
automatic male custody to a presumption of female dominant
residency, and now into a presumption of 50-50 care. This
presumption is criticised by the media article “Shared custody deals
on the rise but do not last”, citing it as sometimes exploited by
fathers as a bargaining chip for attaining better financial
settlements.
In addition the media case of “Law fails children exposed to harm”
2010 speaks of the shift to 50-50 care empowering fathers as being
potentially damaging to children, the courts granting it “without
regard to its quality, while mothering was taken for granted”. In
addition the court bases decisions on little evidence, and has no
powers of investigation.
Other examples include
• Rising acceptance of same-sex couples
• The no-fault divorce
• Recognition of de facto couples
• Prioritisation of “the best interests of the child” and
intolerance of child abuse & neglect
• Recognition/facilitating of customary ATSI marriages (via de
facto provisions)
• Greater recognition of grandparents’ rights.
Such things once deemed unacceptable can over time come to be
considered perfectly acceptable, and come to be reflected in law as
so.
Increasing multiculturalism has driven changes like the
illegalisation of discrimination, a changing composition of society
changing its dominant views and needs.

International law

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CROC prompted domestic reform to ensure Australia lives up to
international commitments, for example in the enactment of the
Young Offenders Act 1997 (NSW) and the Children and Young
Persons (Care and Protection) Act 1998 (NSW).
International pressures can prompt reform, for example nations
like Russia and Belgium legalising same-sex marriages as part of an
international trend.

New technology
New reproductive technologies have driven reform, their former
non-existence seeing their unregulated state. Artificial means of
reproduction pose ethical questions, and technology’s potential
makes it in society’s interests to place limits in according with
society’s values.
The Artificial Conception Act 1984 (NSW) addresses issues, for
example affording sperm donors no responsibilities towards
children, but is too simplistic and outdated to afford proper
regulation, the law in this area not keeping pace with technological
change.
The enforcement of ADVOs has also seen employment of new
satellite tracking devices.
New technologies have raised new questions about the definition
of parent – donor or father figure…

Failure of existing law

Reform is driven by current law’s failure to serve their purpose, i.e.
individual & community needs, something often brought about
owing to the rapid pace of social change – the law lagging behind.
The system’s criticism resides in its intimidating, adversarial
nature, discouraging compromise between parties. As such the
court has been casualised, with rules of evidence slackened to
reduce the necessity of legal representation, and to streamline
cases.
Arguably DoCS has failed, with a report evidencing 109 child
deaths published in 2006, all known to DoCS, but not saved…
In most cases the law is not so much a failure, as too unresponsive
to reach optimum function. Helpful changes include
• Battered Wife Syndrome being accepted as a defence
• Presumption of bail being removed for ADVO breakers
• Firearms automatically being removed from ADVO subjects
• Police having to take an interim ADVO where suspecting
domestic violence
• The Child Support Scheme introduced to enforce the
payment of child maintenance.

New concepts of justice

Justice is not a static concept, evolving alongside community
ethical standards, with new concepts of justice like the “no-fault
divorce” emerging as well as surrogacy and children’s autonomy.

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New concepts of justice drive a move away from conflict-
intensifying adversarial court procedures towards services helping
couples reaching mutually satisfying agreements without expensive,
dissatisfying litigation. An example is compulsory couples
counselling.
Changes in the morality/ethics of society need the law to reflect
them, as the introduction of the FLA, and subsequent surges of
divorce rates evidence.

Dr Harris states “Family law by definition is an imprecise

science.”

Shelter
The right to shelter
The United Nations Universal Declaration of Human Rights (1948)
provides in article 25 that

“EVERYONE HAS A RIGHT TO A STANDARD OF LIVING ADEQUATE FOR THE HEALTH AND WELL-
BEING OF HIMSELF AND OF HIS FAMILY, INCLUDING FOOD, CLOTHING, HOUSING AND MEDICAL
CARE AND NECESSARY SOCIAL SERVICES, AND A RIGHT TO SECURITY IN THE EVENT OF
UNEMPLOYMENT, SICKNESS, DISABILITY, WIDOWHOOD, OLD AGE OR OTHER LACK OF LIVELIHOOD
IN CIRCUMSTANCES BEYOND HIS CONTROL.”

In essence everyone has an inherent right to a decent standard of

living, including housing on the basis of its significance to family
member’s health and wellbeing. Only a recommendation, this is not
enforceable by the international community, although is arguably
integrated into international customary law…

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The International Covenant on Economic, Social and Cultural Rights
(ICESCR) 1966 similarly provides shelter to be a legal right with
international force…
Stemming from a person’s lack of shelter other human rights
breaches inevitably occur, including
• The highest attainable standard of physical & mental health
• Safety and freedom from violence
• Respect for privacy, family and home
• Education
• Work & fair working conditions
• Freedom from discrimination
• Voting
• Freedom of movement & association.
Also note the fact that the homeless, lacking an address through
which to ask documents to be sent, are therefore ineligible for birth
certificates and other identity-proving documents – discriminated
against blatantly under Administrative Law, being in effect denied
their inherent right to an identity… Homelessness also makes
receiving welfare payments far more difficult…
An integral element of the “Australian dream” has long been the
prospect of home ownership…

Submission to Our Homeless Children Report 1989.

“HOMELESSNESS TO ME WAS A FEELING OF DEATH. THERE IS NOWHERE TO GO, NO-ONE TO
SEE AND NO-ONE WHO CARES. PEOPLE GENERALLY BELIEVE YOU ARE A BUM AND WERE
ALWAYS MEANT TO LIVE A HOMELESS EXISTENCE … BESIDE THE FELLING OF SHAME AND
USELESSNESS IS THE FEELING OF TERROR AND HUNGER. HUNGER CAN TURN A PERSON INTO A
MADMAN. THE DESIRE FOR FOOD GREATLY EXCEEDS THE THOUGHT OF RIGHT AND WRONG
AND IN MANY CASES I STOLE TO SURVIVE”

Housing is a Federal and State responsibility, but Commonwealth

Government jurisdiction is limited to indirect powers.
The 2006 census revealed of NSW houses, 70% are owner
occupied, 23% rented, and 5% public housing. Of owner-occupied
homes 49% are possessed on a mortgage. Of renters, 40% have
rented for over ten years. People generally choose to rent owing to
their lesser ability to pay for a property…
Since 1996 home ownership of those from 25-34 has declined
around 10% as a reflection of increasing prices, and the lesser
ability of the young (generally poor) to pay, with house prices
quadrupling in the last 2 decades and increased $100,000 last year.
But problems are not so simple, because bottom of the market
properties have for the most part depreciated in value, such that it
further impacts young home buyers in particular… (2010 media
case “New home buyers in more pain”).
There are general tendencies as Sydney runs out of space and land
becomes more expensive, for blocks to decrease in size. Concurrent
to the increasing size of houses themselves, this has the immediate

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implication of closer living proximities that tend to exacerbate
conflict… This stresses a need for legal regulation all the more.

Homelessness
The 2006 census discovered 27,000 of Australia’s 105,000 or so
homeless to reside in NSW. Evidently there is discrimination in the
granting of shelter because 43% of homeless are under twenty-
five and altogether males constitute 60%. Youth
overrepresentation is owing largely to leaving school prematurely,
⅔ such unemployed having left school within 12 months, and 30%
being aged 12-15, a fact indicative of their human rights not being
met and the homeless demographic becoming younger. Under
CROC these should have been made a greater priority with
emergency housing…
Other sources show that Australia-wide:
• Home ownership rate is 65%
• Around 65% of low income households pay more than 30%
of income on rent – demonstrating its unaffordability.
Altogether 15% of households are in this 30% or more
stress area…
• The average deposit is equivalent to 60% of average
annual household incomes
○ Furthermore 350,000 households pay over 50%
(2009)
• In Sydney the median monthly loan repayment was $3,113
in 2008
• Public housing & emergency shelter cannot match demand,
with 200,000 people on long waiting lists
• Those fleeing domestic violence find themselves facing a
shortage of shelter in which to hide, sometimes forcing
them to remain in abusive situations
• High incidences of mental illness and drug abuse exist
among the homeless, although actual levels remain
uncertain as nobody has bothered to study it…
Such statistics evidence there to be an inadequate provision of
housing, failing to live up to the standards of the UDHR.
The contemporary GFC has only made shelter more of an issue,
with higher unemployment driving more homelessness, although
political parties sideline the issues. Recent Salvation Army report
have highlighted that much of their donor base has as a result of
the GFC become part of their supply users – meaning there is
greater pressure upon their fewer resources. Altogether non-legal
responses are still essential, but pressures upon them as legal
responses become increasingly inadequate are too great.
Salvation Army reports also document how since 2008 the number
of homeless people seeking their shelter has risen 65%. The
absence of a census since 2006 means statements about numbers
are hard to make…

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Refuges are essential resources to homeless people but “IF WE WANT
LONG TERM REDUCTION[S] IN THE NUMBER OF HOMELESS AUSTRALIANS WE NEED TO SHIFT
THE ONUS AWAY FROM HOMELESS PEOPLE WHO MUST ASK FOR ACCESS AND ASSISTANCE AND
PLACE POSITIVE AND ENFORCEABLE LEGAL OBLIGATIONS ON SERVICE PROVIDERS AND
GOVERNMENTS” (Golledge).

When studying shelter, key considerations are

• Government attention
○ Neither major parties place a particular focus on
housing, Liberals championing private ownership by
making laws to protect buyers and foster market
competition while the ALP supplementing the amount
of homes available and encouraging purchase through
the first home owner’s grant.
 “It is a dead wrong that … on any given night
some 14,000 people are sleeping rough. We
should not be allowing this to happen” (Fmr PM
K. Rudd).
 The Rudd Government made a commitment to
halve homeless people numbers by 2020. There
is uncertainty as to whether Gillard will honour
this…
 Contrasting the Howard government consistently
cut funding to public housing provision.
○ Provision of shelter is not a government priority owing
to an ingrained popular belief of shelter not being a
right but responsibility. Furthermore those in greatest
need of government provision of shelter lack economic
power over government policy, therefore not
possessing the necessary political traction.
 The government has been allocating increasingly
less to the provision of shelter, despite a growing
population meaning that it is increasingly
needed.
• Housing for the poor & disadvantaged
○ Housing – shelter affords those living under its
protection from danger and weather, aiding mental &
physical health through this security, and protecting
their possessions.
○ If everyone was to have access to shelter the
government would have to be responsible for its
provision, something it lacks the resources and political
support for.
○ The NSW Department of Housing endeavours to assist
the disadvantaged through the subsidisation of shelter
for those on low incomes.
 Public housing is not free, rather subsidised
shelter

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 Altogether the Department possesses 128,000
houses/condominiums but lacks the resources
with which to properly upkeep them as
performed by private landlords by law.
 A major problem is that growth in public housing
levels is being outstripped by population growth
by margins of up to 30,000 per year. This is
directly driving increasing levels of
homelessness…
○ Three areas provide assistance to poor households,
and it is questionable as to whether or not they should
be combined for the sake of efficiency.
 The Commonwealth-State Housing Agreement
(CSHA)
• This is the auspice of “social housing”
(publically owned + NGO owned) providing
subsidised shelter
• It’s stated purpose is of “to assist those
needs for appropriate housing cannot be
met by the private market”.
• For the government to own houses in this
way is extremely expensive, needing
maintenance, etc.
• The 2010 media article “Homeless families
are being turned away” reveals 80% of
families with children seeking temporary
accommodation to be being turned away
owing to insufficient amounts of property
available…
 Commonwealth Rent Assistance (CRA)
• Operating through Centrelink this
supplements the incomes of private renters
to prevent their becoming homeless
• It is less expensive than the CSHA for
property does not need to be maintained
○ As such funding has steadily
increased, overtaking the CSHA.
• This includes the NSW RentStart program
within which those in urgent need of rental
aid may receive up to 75% of their bond
from the NSW Department of Housing…
 Supported Accommodation Assistance Program
(SAAP)
• This provides funding to NGOs which
provide supported accommodation &
necessities to the homeless – aiding only
12% of the 100,000 homeless.
• 50% of applicants are turned away owing
to service’s insufficiency

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○ The government also provides personnel including
interpreters and advice on rights, buying and renting to
facilitate the making of good decisions as regards
property.
• Methods of securing shelter
○ Shelter is most commonly obtained through home
ownership or leasing, both of which are regulated to
protect parties’ rights.
○ Alternative methods include
 Borrowing someone’s home with permission
 Using short-term free accommodation provided
by the government or a charity, for example
refuges
 Paying minimal rent, having residence subsidised
by the Department of Housing, meeting a strict
criteria for this
 Illegally sheltering in a property as a squatter,
eventually obtaining “adverse possession” after
12 years
 Boarding or lodging
 Using supported accommodation, for example
retirement homes
 Using a hostel or serviced apartment.

Present protection afforded to the homeless, or at risk of

homelessness and the limitations of rights in this area
• An eviction made without notice is challengeable in court or
tribunals
• Evictions still can be made with no reason provided, just a
proscribed waiting period
○ There is a loophole meaning that where a landlord’s
investment is on a mortgage and he defaults, the
tenants are evictable immediately without due
process
• Governments have no obligation to consider the rights of
the people who are already, or bound to become homeless
upon passing new developments, bylaws, etc.
• Government services provided to the homeless and at risk
of homelessness are typically insufficient to handle the
problem…
○ Funding is inadequate and the government lacks an
obligation to improve it.
Human Rights protection for those suffering/bound to suffer
homelessness is improvable through
• Victorian law provides that a landlord must have some
justifiable reason to evict tenants, or at least listen to their
own concerns. This is an option for NSW
• A Human Rights Act could

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○ Force Parliament to consider the impact of their laws
○ Make governments respect human rights in the
development of policy
 E.g. making Centrelink services more accessible
to the homeless
○ Make government services consider the homeless in
the delivery of their services
 E.g. for proof of identity…
○ Provide enforceable remedies for government
departments breaching human rights.
• Foster a stronger human rights culture
• Help address the underlying economic, social, family,
mental health, institutional, etc, factors behind
homelessness, and give the homeless some dignity to
which all human rights law provides all humans to have an
inherent and inalienable right to.
• Other methods of protecting homeless people’s rights
include
○ Constitutional protection
○ A National Housing Strategy
○ National, consistent legislation regulating when &
how tenants are evictable
○ Amending the Supported Accommodation Assistance
Act 1994 (Cwlth) and CSHA to force compliance with
human rights standards
○ Improve education about human rights.
• Australia needs a human rights approach to homelessness
so that
○ They have a right of assistance, as opposed to facing
a lottery of selection by hostels (Golledge)
• The 2009 media article of “New York plan for Sydney
homeless” describes the adoption of a new NSW trial for
the rehabilitation of the homeless. Under this vulnerable
people off the streets a placed in government housing in a
communal setting with drug & alcohol counselling and the
provision of living skills. Under this an attached café and
vocational training centre offers an opportunity for their
attaining of new employability skills, a strategy research
demonstrates as cheaper and more effective…

Protection afforded to owners and tenants

Home ownership
Somebody wanting a home needs a mortgage to purchase it, a
legal contract to actually record the transaction and ownership
change, legal advice. Legal protection of home-owners is important,
considering the home ownership rate of 65%.
Rights are protected under the
• Auctioneers and Agents Act 1941 (NSW)

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○ This forbids the presence of dummy bidders in
auctions, to keep prices reasonable
• Environmental Planning and Assessment Act 1979 (NSW)
○ Provides the BASICs test for construction, etc.
• Conveyancing (Vendor Disclosure and Warranty) Regulation
1986 (NSW)
○ Forced disclosure of known faults in the property
• Real Property Act 1900 (NSW)
○ Regulates the buying and selling of homes
• Strata Titles Act 1973 (NSW)
○ Regulates the behaviour of people in common areas of
strata housing, i.e. multi-storeyed dwellings where
close proximities often exacerbate conflict.
• Local Government Act 1993 (NSW)
○ Allocates responsibilities for zoning & building approval
to Local Governments.
Renting
Both landlords and tenants need a legal lease, signed by both,
which protects both parties. A bond is essential security to the
contract.
Rights are safeguarded by the
• Landlord and Tenants Act 1948 (NSW)
• Residential Tenancies Act 1987 (NSW)
○ Provides
 Security of tenure
 Maintenance of premises
 Payment of rent
 Recoverability of premises.
• Property, Stock and Business Agents Amendment (Tenant
Databases) Regulation 2004 (NSW)
○ Provides for the maintenance of databases by real
estate agents which list all undesirable/unreliable
tenants (but with potential for privacy breaches and
slander)
• Rental Bond Board
• Tenant’s Union of NSW.

Key concepts of Real Property

Shelter is “real” property in that it is tangible, as opposed to non-
tangible assets like shares, which are theoretical items... People
using shelter have different statuses of possession:
• Ownership – legal obligations have been fulfilled with a
contractual transfer of title, its full value having been paid
• Possession – the property is physically occupied, but not
necessarily having a status of ownership over it
• Adverse possession – the transferring of title from owner to
occupant where the occupant has maintained possession
for 12 years or more without the owner making contact

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with the premises, their failure to pursue it for such a long
period being considered enough of a basis for their having
forgone property rights.
• Freehold – title to property indicating its ownership, which
by definition allows for it to be sold or given away
• Tenancy – the right of a leaseholder to maintain the
possession (occupancy) of a property under the auspices of
a lease, for a period prescribed by the lease.

Systems of registration

Old system & Torrens title

Old system title
Originating from England, this was in use until 1863 when replaced
by the Torrens system.
The former system involved property’s buying & selling creating a
chain of ownership, with deeds drawn up each time including the
vendor & purchaser’s names and the land’s descriptions.
Maintenance of a series of verifiable deeds was one’s proof to the
land’s ownership. Where one deed was lost or incorrect the chain
was broken and all proof gone.
This created problems as if one lost the most recent deed, former
owners could allege it was theirs… Fostering injustice, with mistakes
easy to make, the system had to be changed but still verifiably
ensure the person’s name on the deed was trading in property was
the actual owner, but not with such strict requirements.
Torrens title
This system has property vendors and purchasers have to their
register transactions with the Land Titles Office. Registry means
ownership is unquestionable, as guaranteed by the Registrar-
General. Secure knowledge of ownership, and that a transaction is
not a scam is essential considering that home purchases are the
greatest purchase any household will ever make, also being
essential to confidence in the market.
This system means that conveyancers/vendors just have to check
the Registrar-General’s records, obtain title certificates, and hence
learn all necessary facts. Technology has enhanced the easiness of
this.
Instead of carrying around endless piles of documents of
ownership, all one’s proof of ownership is registration. All
conveyancers now need is to find 30 years of legitimate,
uncontested title to lands and Old System Title holders are able to
make transactions as if holding Torrens Title (this applies to those
who have maintained ownership of the same property in their family
without transactions from before 1900), all pursuant to the Real
Property (Conversion of Titles) Act 1967 (NSW).
Torrens title is now regulated by the Real Property Act 1900 (NSW).

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Private housing
This is accommodation owned by individuals, taking the form of
• Separate dwellings – individual freestanding houses (70%
NSW)
• Shared space – properties sharing common property like
walls, gardens, etc (18% NSW).
Significant purchases to individuals, people’s loss of their home
and accompanying investment is devastating. For this reason the
government protects both vendors and purchasers in property’s
exchange, although a general principle of caveat emptor still
applies, purchasers having no redress for later discovered faults, the
onus of discovering them lying on them…
Mortgages are conventionally the means through which homes are
purchased, although as the US subprime crisis evidenced, there is
an inherent conflict of interest… Actual purchase occurs either by
auction or private treaty, whose contract must be available on
request at point of sale.
Therefore the nature of contracts and role of real estate agents &
solicitors are regulated. The Building Services Corporation also aims
at protecting purchasers.
Standard contracts of sale
Vendors & purchasers must enter a contract for property to legally
be transferred in title. The Conveyancing Act 1919 (NSW) specifies
what contracts must contain. Pursuant to this contracts need:
• To be written
• Signed by vendor & purchaser
• To include the purchase price and deposit amount
• Vendor & purchaser’s full names, addresses and
occupations
• Description of property
• Descriptions of the title to the land
• The time & date for settlement (i.e. transfer).
Contracts also contain special conditions applying to the property,
needing to be agreed upon by both parties, for example fittings,
furniture, air-conditioning, TV antennas, curtains and light fittings.
By having to have these specified the purchaser is protected, as one
would generally assume them to be included, but a presumption
does not give one an enforceable right. Where contracts do not
specify something will be left, the vendor is permitted to remove
them. The standard contract thereby helps protect a purchaser from
the trickery of a vendor, in not stipulating items, and causing an
injustice to the unsuspecting purchaser…
To be binding, these must be written.

The Conveyancing (Sale of Land) Amendment Act 1987 (NSW)

allocates responsibility to vendors to include additional information
about the contract, for example zoning classifications. Zoning
classifications regulate the nature of development in an area, for

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example residential classification forbids industrial sites from being
constructed.
Similarly contracts must include diagrams of drainage systems,
indicating where concrete should not be placed, as well as
documentation for any old disputes about neighbours encroaching
beyond their boundaries.
Covenants & easements
The Conveyancing (Vendor Disclosure and Warranty) Regulation
1986 (NSW) requires the disclosure of easements and covenants.
Easements are where one has legal access to the property of
another (rights of access), e.g. a single driveway between two
properties. Covenants are where parties agree to use their property
in a restricted way, for example sewerage pipes crossing properties
have building over them restricted, so as for repairs to be possible.
This is not to say each new property owner has to ratify such
agreements in turn, rather one owner agrees, applying to all afters
after him/her henceforth. This gives rise to disputes like Frater v
Finlay District Court (1968), where the property owner preceding
the defendant had agreed with the plaintiff that they would share
servicing costs for their connected water pipes.
The purchase
1. Vendors makes their property for sale, generally through real
estate agents, ensuring the contract is available on request,
and a decision has been made as to auctioning or private
treaty…
2. A buyer finds a property they want, obtains a Contract of
Sale which they have checked by solicitors/conveyancers
3. Negotiate prices
4. Pay a deposit of 10% of the purchase price (held onto by real
estate agents). This may only be received back where there
is a legally acceptable reason, e.g. the death of a partner.
5. Exchange contracts in the process to settlement. It is only
now that the purchaser may pay for the inspection of the
property for pests, etc. Only being permitted now, it is unfair
where something is found, because the deposit is lost. There
is pressure for law reform in this area…
6. Settlement occurs, involving the payment of the purchase
price and signed transfer form being filled out.
Owing to the intensity of the emotion of a home purchase, the law
provides a 5-day “cooling off” period during which the purchaser
may withdraw from their contract, possibly having entered into it in
the heat of the moment, incurring a cost of 0.25% of the purchase
price. Subsequently settlement occurs, over which various searches
on the property are overtaken…

The role of Real Estate Agents

Real estate agents need licenses under the Property, Stock and
Business Agents Act 2002 (NSW), and formerly the Auctioneers and
Agents Act 1941 (NSW) and are monitored by the Real Estate

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Institute, hearing complaints about unethical behaviour. Licenses
are retractable on the basis of fraud, misrepresentation or unethical
behaviour. The Real Estate Institute thereby protects buyers,
although they have no obligation to point out faults or weaknesses.
Real Estate agents value, advertise and show properties, using
comprehensive networks to ultimately achieve a sale. Instead of a
wage, the vendor pays the agent a prescribed, agreed upon
commission. There the incentive is on the part of the agent to get
the best possible deal, and thereby make their share as great as
possible – aligning their interests, as well as fostering market
competition.
Real estate agents also exchange contracts, find potential buys for
purchasers, lease premises and collect rent on behalf of landlords.
Irrespective of its size, real estate agents must report all serious
offers to vendors…
The Real Estate Institute, ensuring agent’s ethical behaviour
towards purchasers, is the government’s way of balancing interests,
and ensuring vendor & purchaser interests are considered by
agents, although naturally the vendor is their priority…

The role of solicitors

Given contracts in the exchange of property are binding upon
signatories and property is highly expensive, it is in the financial
interests of a purchaser to have a solicitor check the vendor’s drawn
up contract. To avoid conflicting interests, different solicitors should
be used, as legal representatives are supposed to represent the
best interests of their clients – difficult if both sides are clients... It is
actually illegal for solicitors to act for both sides where interests are
diametrically opposed… All solicitors must carry professional
indemnity insurance and fidelity insurance…
Vendor’s solicitor
• Draw up the conditions for the contract
• Ensure the vendor’s responsibilities for providing information
are met (subsistent to the Conveyancing (Vendor Disclosure
and Warranty) Regulation 1986 (NSW) and Conveyancing
(Sale of Land) Amendment Act 1987 (NSW))
• Advise their client
• Attend the settlement meeting on the vendor’s behalf.
After an offer is made the vendor’s solicitor assumes a liaison role
with the purchaser and their solicitor, all questions relayed between
solicitors, ensuring rights are protected and no side exploits the
other.
Purchaser’s solicitor
Has to check the contract and special circumstances drawn up by
their counterpart. They need to alert the purchaser as to the
implications of this and check the fairness of everything before
advising the purchaser to sign the contract. Checking involves
• Checking the vendor actually owns the property
• Investigating easements, covenants and encroachments

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• Checking RTA affectation (liability to repossession for roads),
zoning and extension’s legality
• Having land surveyed
• Arranging insurance for after settlement
• Organising pest inspections
• Searching for a caveat – notice to prospective buyers that a
dispute exists over the property. This is essentially a sign set
by someone else that there is an ongoing dispute, and until
its resolution the property ought not to be bought, e.g. while
an ownership dispute in going on… A caveat is registered on
the title…
Where the property is still under Old Systems title the purchaser’s
solicitor arranges its transference into Torrens title.

Licensed conveyancers
The Conveyancers Licensing Act 2003 (NSW) allows non-solicitors
to specialise in conveyancing, which is the transferring of property
ownership.
Solicitors and licensed conveyancers performing conveyancing are
liable to be sued where they make mistakes that lose their clients
money.

Rights & obligations of landlords & tenants

Leasing is a contractual agreement within which a property owner
sells their right to occupy it for a set period of time. The Residential
Tenancies Act 1987 (NSW) regulates the contractual nature of a
lease, thereby protecting both parties.
Formalised as a Residential Tenancy Agreement, a lease clarifies
the legal status of lessor and lessee, the address, amount of rent,
how often it is to be paid, where it is paid, and the duration of the
leases, as well as stipulating who undertakes gardening,
maintenance and repair, the presence of pets, children and
permitted uses of the property.
To be valid the Residential Tenancy Agreement must be signed,
and legal advice is advisable, being a binding document thereby
providing both security of tenure and income respectively for tenant
and landlord.
Naturally landlords possess a right to choose tenants, but must be
careful not to breach the Anti-Discrimination Act 1977 (NSW), where
they would be guilty of a human rights breach.
It is significant that given landlords own property, tenants only
have right where they fulfil their duties. For example failure to pay
rent means they are liable to eviction, but as in the case of Kenny v
Preen (1963) they do have extensive rights where they honour
their side of the lease, here Kenny being found entitled to quiet
enjoyment of the property.

LANDLORD & TENANT OBLIGATIONS

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–Residential Tenancies Act 1987 (NSW)

------------------------------------ Tenants-----------------------------
Landlords ---------

To give the tenant a copy of the To pay rent on time.

Residential Tenancy Agreement
they both signed.

To pay council & water rates + To pay electricity, gas, excess

land tax. water & phone bills.

To supply a vacant premises to To use premises for legal

the tenant when they are purposes.
supposed to move in.

To allow the tenant quiet To not disturb neighbours in their

enjoyment of the premises own entitlement to the quiet
without interruption (Landlord enjoyment of their property.
and Tenant Amendment Act
1948 (NSW)).

To enter the premises only in To keep premises reasonably

clean.
• An emergency
• The prior consent of the
tenant
• Where the Residential
Tenancies Tribunal orders
• Reasonable suspicion of
the premises’
abandonment
• To annually inspect the
property.

To ensure premises are To inform landlords of all

reasonably clean and fit to live damage.
in.

To keep premises in reasonable To not damage premises

condition, including repairing (Conveyancing Act 1919 (NSW)).
anything bad, especially where it
predates the tenants moving in…

To compensate tenants for any To leave premises as found at

urgent repairs they makes within the beginning of lease.
14 days, provided they

• Are under $500

• The tenant did not
intentionally/negligently
inflict damage

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• The tenant gave the
landlord notice of damage
• The landlord was given
chance to make repairs
• Repairs were conducted by
those qualified to do so
• The tenant proffers written
details of costs.

To provide locks to maintain To not alter premises without the

security. landlord’s permission, e.g.
painting walls or removing a
stove.

To give tenants their own/their To allow the landlord a key to

agent’s address. their premises.

To provide tenants with 60 days To be responsible for visitors

warning before raising rent. who breach the lease’s
provisions.

To provide a receipt for rent. To seek landlord’s permission to

sublet.

In relation to subletting. The tenant may sublease provided the

terms they grant their tenant do not exceed those they already
enjoy under their own terms. An example of this is Baynes & Co v
Lloyd and Sons (1895) where the tenant subleased a property for
longer than they themselves possessed the property, and the
sublease was found to be invalid, as the sub-lessor exceeded their
own rights over possession.
Note that landlords and tenants have recourse to the Consumer,
Trade and Tenancy Tribunal which was created by the Consumer,
Trader and Tenancy Tribunal Act 2001 (NSW), and manages up to
65,000 cases per year, 77% of which concern tenancy issues.
Note law reform in the creation of the Residential Tenancies Act
2010 (NSW) which directs that
• Security of tenure:
○ Tenants need 90 instead of the present 60 days notice
to vacate
○ Scope is made for a tenant in arrears to repay the
landlord in a repayment plan, instead of just being
evicted
○ Extra protection and consideration by the tribunals is
to be given to tenants who have lived on the same
property for excess of 20 years
○ A fixed term may be terminated where
 The tenant is offered public housing

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 The tenant has accepted a place in an aged-care
facility
 A co-tenant is prohibited by an AVO from having
access to the premises
 At the lease’s initiation the landlord did not
inform the tenant he/she intended to sell the
property
○ A “break fee” penalty may be paid by a tenant leasing
a fixed term lease, equivalent to six weeks rent where
half the term has not yet expired…
• Terms of tenancy
○ A landlord cannot unreasonably withhold consent for a
fixture, alteration or addition of a minor nature
○ A landlord cannot unreasonably withhold permission
for the subletting of their property.
• Tenancy databases
○ Tenancy databases are regulated.

As per the Residential Tenancies Act 1987, at any time landlord or

tenant may give 14 days notice and end the tenancy where they
can prove the other to have breached their contractual obligations.
Where a Residential Tenancy Agreement expires and neither party
has indicated an intention to leave by 14 days of the expiration
date, the tenancy automatically becomes a “continuing tenancy”.
Here the tenant remains under the conditions of the former contract
but with no time limit. Here landlords must give (60) 90 days written
notice before terminating the tenancy, and tenants 21 days.
By damaging the property tenants may forfeit part or the entire
bond they initially pay as security, and be liable for further
damages.
The Consumer, Trader and Tenancy Tribunal offers a dispute
resolution mechanism for landlord-tenant disputes, as do
Community Justice Centres…

Public housing & relevant authorities

The Commonwealth State Housing Agreement Act 1945 (Cwlth)
first provided public housing, with the intention of ensuring good
living standards, recognisant to the essentiality of shelter to
achieving this end, being funded by state and federal governments.
Public tenants on welfare must pay a proportion of their check on
their subsidised rent.
Their relationship to the government is still regulated under the
Residential Tenancies Act 1987 (NSW) as well as the Residential
Tenancies (Social Housing) Act 1998 (NSW) which adds additional
obligations of:
• Having to move to other premises where requested by the
Department
• Notifying the Department within 28 days where more people
are to more in

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• Inform the Department about their household income, assets
& occupancy, and any changes
• Washing ought not to be hung on balconies
The Residential Tenancies (Social Housing) Act 1998 (NSW) also
provides the Department to only be able to evict tenants where rent
is not paid or anti-social behaviour occurs, having to provide
reasons and give 60 days notice. Tenants may apply for internal
review, and be able to answer any accusations… The act thereby
recognises the additional needs and vulnerabilities of public
tenants, granting them rights against arbitrary state decisions.

Department of Housing
The NSW Department of Housing regulates public housing’s
building, repair, and allocation – on a criterion of need, income and
suitability. Long waiting lists mean people can wait up to 4 years (a
major accessibility issue), although those classified as urgent can
jump the queue as priority applicants, for example those leaving
prison (to reduce recidivism). Many of those waiting for services are
living in their cars, streets, parent’s homes, properties from which
they are yet to be evicted, etc. The Department is regulated by the
Housing Act 2001 (NSW).
The NSW Department alone has 139,000 properties, 400,000
tenants, but there is a chronic shortage owing to high competition in
the property market. The 2010 media case of “Heartbreak motel”
records the fact that public housing shortages forces some public
tenants into poor, crowded accommodation in residentially dense
areas, with 50,000 in NSW alone waiting on lists. It is their last
resort as landlords are reluctant to welcome in couples on welfare
who have children, forcing them into short-term accommodation
which is beyond their price range, sometimes making them unable
to eat. The article records people staying up to 2 years in such
circumstances, a thorough breach of their fundamental rights to
non-discrimination.
Internal review
Unsuccessful applicants can apply to the internal review Housing
Appeals Committee, focussing on issues of
• Rejection of an application to be rehoused on the basis of a
medical condition, risk or problem with current housing
making it difficult to live in.
• Rejection of a request for renovations
• Consideration of needs for short-term rental assistance,
including
○ Special Rental Subsidy for those suffering HIV/AIDS
○ Disability Rental Subsidy for those likely to be
approved for priority housing
Subsidies allow recipients to remain in their private sector
home where they face eviction, despite an especially acute
need.

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Internal review is also available from the Minister for Housing, NSW
Ombudsman, or Local MP.
The Public Tenants Appeal Panel hears complaints concerning
Department procedures & decisions.
The Residential Tribunal settles all housing disputes, including
public housing ones, and is a good recourse other than the courts.

Housing policy
Since public housing’s implementation its has remained a social
welfare policy, for shelter is a necessity for survival and enhanced
quality of life, offering also a safe haven for one’s property,
protecting one’s wealth and wellbeing.
Generally the government prefers to keep public housing in
residential areas to maintain a closeness to job opportunities, but
this also means that property acquisition constitutes far greater an
initial investment…
It is generally considered best not to concentrate public housing in
one area, but rather to widely disperse it. This is because there is a
tendency among the socio-economically disadvantaged to manifest
their difficulties in supporting themselves into more overt conflict,
which is already exacerbated in the strata/high-density housing
blocks which public premises tend to be in…
In the interests of conflict minimisation, it is therefore more
circumspect to have small estates dispersed within predominantly
private properties…
It is also essential that housing services remain in close enough
proximity to applicant’s support networks, so that they maintain a
willingness to leave the system…

Accommodation for ATSI people

The doctrine of terra nullius disempowered ATSI people and
deprived them of land rights, ATSI custom not involving the building
of a fixed dwelling. Since dispossession, governments have
nominated to provide ATSI people with shelter, moving from
segregated reserves to assimilation, with public housing provided by
the Department of Housing, to whom ATSI people paid rent.
Presently the Commonwealth State Housing Agreement involves
state governments providing lands to ATSI people, using
Commonwealth money – a crossover causing inconsistencies in the
law, and sometime the misuse of funds, as in the Northern Territory,
prompting Human Rights Commission criticism owing to residence’s
substandard conditions…
Since 1972 policies of self-determination have left it to ATSI people
to decide how to meet their shelter needs, recognisant of their
culturally differing needs. As a result some housing associations
exclusively for ATSI people have emerged, to which Federal
Governments provide some funds. The Aboriginal Housing Act 1998
(NSW) empowers a Aboriginal Housing Office to assist leaders in
providing houses in this way…

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Fairness is thereby achieved through inequalities of special
provisions for ATSI people, fostering equal outcomes…
Additionally the Community Housing and Infrastructure Program
(CHIP) encourages ATSI community housing associations,
recognisant of the greater effectiveness of allowing ATSI
communities the autonomy of dealing with the issue themselves…
An example is the Aboriginal Hostels Limited Company…
The Aboriginal Rental Housing Program (ARHP) requires State and
Territory governments to provide ATSI-specific public housing.
One important cultural tendency is of many ATSI people having an
aversion to continuing to live in a place where a relative has died,
out of respect for the spirit they believe to reside there… This can
be a massive inconvenience for public housing authorities and those
administering requests for property reallocation often are
insensitive to it, contrary to their entitlement to respect. It can also
give rise to substandard housing where, recognisant of the
inevitability of owners moving on, houses are not properly
connected to running water, waste disposal, etc, in ATSI areas…
The case of Mabo v The State of Queensland (1992) by
recognising native title paved way for the granting of vacant crown
land back to its traditional owners, provided they could claim a
continuous cultural link with the land they claim…
ATSI people themselves are far less likely to own their own homes
than non-ATSI people – 30% as opposed to 65%... 18% of ATSI
homes are overcrowded, versus 4% of non-ATSI people, and they
are overrepresented as public tenants. A third of ATSI people live in
unsatisfactory dwellings.

Special types of Shelter

Many people have special needs for housing, especially the aged,
very poor and homeless, for which special needs housing often
exists…

Aged care accommodation Aged care hostels, nursing homes and

retirement villages
This is specifically designed to cater to the needs of the aged, in
forms of retirement villages, hostels, serviced apartments and
nursing homes. Units may be rented or leased, and all have to
satisfy accreditation standards to be eligible for Federal
Government funding.
Hostel residents must where possible pay a bond, and hostel &
nursing home residents generally pay a daily care fee.
In NSW over 750 retirement villages exist, set to become a
booming industry with an ageing population, residency already at
above 40,000 people. Inhabitants enter into a contract with the
operator to occupy and/or receive the facility’s services.
There is a range of accommodation available in the industry
including:
• Self care

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• Serviced apartments/assisted living units
• High care wards, etc.
A range means accommodation is flexible enough to fit most
needs, room for comfort – many even having swimming pools,
although it is often very expensive.
Note that nursing homes are public or state run, public ones
covered by the Public Hospitals Act 1929 (NSW), private by the
National Health Act 1953 (Cwlth) which sets minimum standards. It
is important to note that differences in federal and state jurisdiction
give scope for the miscarriage of justice and inconsistency in law’s
application.
Also note that retirement villages are covered by the Retirement
Villages Act 1999 (NSW) and the Retirement Villages Regulation
2000, regulating matters including the operation of retirement
villages, disclosure obligations for operators, restrictions on what is
acceptable in a contract, dispute resolution, etc.
As the 2010 media article “Coroner considers aged care case”
demonstrates, aged care services can sometimes tragically be
provided poorly, here an 85-year old resident going 7-days without
her broken hip being diagnosed.
Similarly the 2008 media article “Battered image of aged care”
notes the case of Mrs Margaret Vella who seems to have been
severely beaten by either a fellow resident or nursing home
employee, although the firm failed to adequately investigate
matters. The article also notes how the increasing involvement of
big firms like AMP in the management of homes means a marked
deterioration in terms of what they offer…
Note also the 2008 media case “Nursing homes to be inspected”,
reporting on two dementia patients weighing less than 25 kgs
owing to inadequate care…
Those in retirement villages are subject to the Retirement Villages
Act 1999 (NSW) providing security of tenure, dispute resolution and
management participation. Complaints also have jurisdiction in the
Consumer, Trading and Tenancy Tribunal.
The Aged Care Act 1997 (Cwlth) provides that the elderly who use
extra services such as nursing home faculties in a user-pays
system…
Note that there are still some problems with aged care. For
example, couples entering together may have different care needs,
meaning there is potential for their being split across large wards,
making the continuance of their relationship far more difficult –
removing supports from both. It is very important that facilities be
closes enough to home for their wider family also to be available to
afford support.
Similarly, public facilities are often too bare for the provision of
good enough facilities to afford a decent quality of life…

Caravan parks

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Shelter is also obtainable through renting a caravan park site,
where a license is bought, giving access to water and toilet/shower
facilities as well. Formerly a site of holidaying, economic necessity
has forced some into living in them permanently, under the
protection of the Residential Parks Act 1998 (NSW) providing
• Tenancies may be terminated only for specific reasons
• Rent increases are based off inflation
• Liability for water & electricity costs is decided upon
• The selling of onsite dwellings is regulated
• Access to the Consumer, Trader and Tenancy Tribunal exists
Note that the Residential Parks Regulation 1999 also provides
• Residents whose lease is over 3 years must have their
tenancy agreement registered with Land and Property
Information NSW
• Parks with over 20 sites occupied need a Park Liaison
Committee.
Over 2,700 caravan parks are in existence in Australia, housing
65,000 persons of which 45% are above 55 and 60% of the
aggregate are single, while 18,000 caravans were bought in 2007
alone.
Caravan parks are far cheaper to live in and well regulated,
although there s potential for conflict stemming from the sharing of
amenities, less privacy and a reluctance among lenders to lend to
those whose address is a caravan park – some degree of stigma
exists…
Note that caravans can be covered under the Residential
Tenancies Act 1987, but only here they are permanently attached to
land, but no protection for the renting of land…

Boarding houses & lodges

The case of Noblett and Mansfield v Manley (1952) provided
the following definition of a boarder: “”A border is one who has food,
or food and lodging, at the house of another for compensation”.
Boarders pay rent to live in a boarding house or hotel, being a
casual, non-contractual stay, meaning rights & obligations do not
exist. Approximately 20,000 people live in boarding houses. They
are licensees, not tenants, and so owners may enter for cleaning.
Having few rights, licensees cannot prevent immediate eviction. As
the law does not assign any rights or responsibilities, it is through
bargaining that the eventual contract reaches these…
Most boarding houses are in poor condition, needing repair, but are
cheap options… They are becoming less common as they frequently
do not meet health & safety requirements, and the meagre return
they offer is inadequate to encourage renovation…

Emergency accommodation
Refuges are designed to protect those freeing domestic violence in
particular, as well as simply just helping the homeless by giving
them somewhere to sleep. Their main problem is that they are only

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tenuously held by tenant, who lacks real rights. Their residency is in
under regular review, with only short notice given for someone to
leave, granted on a nightly basis, creating great stress that actually
causes many homeless to opt for the streets. People using refuges
have no security, and generally lose all stability where their
accommodation ends.
Note that refugees receive public housing…

Group homes
Homes may be shared, where one person owns the property, and
lodgers rent a bedroom, sharing the rest of the home, sometimes
with other equals, or just the owner… Their occupants suffer
intellectual disabilities and are provided care & support within the
premises, generally being run by the Department of Community
Services (DOCS) or are private…
There is a lack of such accommodation, and it can often be hard
for the intellectually disabled to go to group homes where their
location is far from their family links. As such some disabled are
moving instead into aged care facilities…

Squatting
Where people obtain shelter by living on premises without the
owner’s consent, not paying rent. Law affords them no legal
protection, nor entitlement to use premises, but for where they
have resided for over 12 years, uncontested, where they receive
adverse possession. Otherwise, they may be charged with trespass,
arrested and sued for damaging property. Squatting raises issues of
• Many people considering them to live parasitic existences to
which they lack entitlement, not paying rent…
• Buildings they inhabit are generally vacant owing to their
dirtiness, unhealthiness and need for repair
• Others may argue that it is immoral for those possessing
building to leave them vacant, owing to shortages of
housing, and squatters should be permitted to use them…
Note the British case of London Borough of Southerwark v
Williams and Another (1971) where Lord Denning found
homelessness to be no excuse for the trespass which squatting is,
and found it illegal for them to reside on the property, unless
adverse possession had taken hold…

To what extent does different forms of special accommodation

require a person to give up personal rights?
Squatters arguably have to give up the most personal rights as
they are trespassing, with no legal right to a property, but actual
criminal liability for intruding upon it. Squatters have to hide the
fact of their residence and often live in very poor conditions, with
basics services like electricity being disconnected.
Boarders also have low levels of legal protection and personal
rights owing to the terms of their residence. They are not entitled

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to privacy, with the owner having access to the room, having no
security of tenure, no protection against eviction, no protection
against rent increases and minimal recourse to the CTTT. The only
rights a boarder has are those that the landowner deigns to gives
them in the contract, and even rights granted here are difficult to
enforce in court…
Other forms of special accommodation are reasonably well
regulated, although all must come to accept and follow the set
downs rules about communal living, needing to respect the rights
of other residents.

Private Housing
Comparison of Separate housing and shared space
Separate dwellings involve a house isolated from neighbouring
structures, affording freedom of movement, while shared space
entails the sharing of common property, with occupants considering
the needs of their neighbours. Advantages include
• Communal-living
• People are not isolated
• Limited resources are shared evenly
• Less expensive
• Keeps people near employment, transport, etc, facilities.
Disadvantages include
• Little privacy
• Little individuality
• Few gardens
• Dangers to children
• Ugliness
• Increased traffic burden in a small area
• Lack of maintenance & morale can turn areas into a slum
• Quality of life can be low.

Mortgages
Property is purchasable with cash or borrowed money, the principal
sourced from banks, building societies, finance companies, credit
unions and insurance firms. To ensure repayment, title deeds to the
property are held by the financial institution as security, being able
be retracted on the non-payment of the loan. The title deed is
amended to name the mortgage holder only at the completion of
the loan’s repayment, the average repayment taking around 30
years. In the event of the borrower’s breach of contract, the
financial institution has a right to foreclose on them…
An institution has a strict criterion to be met for the approval of a
mortgage application to be granted, considering their job, income,
assets, saving history and credit history. Considering incomes,
mortgages naturally discriminate between income earners on the
basis of their incomes.
Note how as in the 2008 media case of “Debtland Unreality” banks
are becoming especially liberal in giving out mortgages to people

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who cannot plausibly pay, with around 300,000 Australians facing
the prospect of losing their homes, as well as lending for the high
risk practice of margin lending. According to Professor Burke banks
are progressively lowering their requirements of borrowers, in the
interests of higher profit margins, although being so high risk, in the
process they damage many lives of those who cannot afford
repayments yet are lent to anyway…
Credit reports
Note that the Credit Reference Association of Australia keeps a
database on all those who default on their loans, allowing financial
institutions to share information on who is unlikely to repay, and
thereby avoid losses to profits. By some definitions invasive to
privacy, this does have the implication of ensuring people are held
accountable for their behaviour…
Insurance
Note that the vendor’s insurance on a property is in force until
settle. Also note that financial institutions granting a mortgages
generally demand home insurance be held, as they themselves are
really the owner…
In terms of contents insurance there exists indemnity and
replacement insurance. Indemnity gives money on the basis of the
actual value of items. Replacement gives the sum necessary to
replace them…
Public liability insurance protects against civil liability for areas of
shared space or other areas. An example is for a hole in one’s
property into which a trespasser might fall and then sue for…
Common property
This is property owned by more than one unit holder and shared
space, over which the Owners’ Corporation has absolute control, as
well as authority to purpose more, transfer or lease it and create
easements. Common property, as per Seden v The Proprietors
‘Tyalla Court’ (1978), must be kept in a state of “good and
serviceable repair”, failing which the Owners’ Corporation is liable.
The Owners’ Corporation is regulated under the Strata Titles Act
1973 (NSW).
Title
>These are outlined earlier<
Neighbours
Closes proximity of neighbours to each other is a common source
of tension as invariably they will not always like each other. In
Strata title cases this is exacerbated by the fact that owners are
free to buy and sell to whomever they choose, and so unlike
company title holders who can vote, have a say, and if necessary
themselves move to a different spot, strata title residents are stuck
with them with no say…
The Owners’ Corporation can make rules governing noise and the
ownership of pets provided such by-laws are recorded by the
Registrar-General. If necessary noise may also be combated through

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the Protection of the Environment Operations Act 1997 (NSW). Note
that the Owners’ Corporation may not forbid guide dogs…
Dispute resolution
The Strata Schemes Management Act 1996 (NSW) provides the
following steps:
1. Strata Titles Commissioner
a. Hears most complaints
b. Reviews written evidence
c. Is less formal
d. Provides mediation
2. Adjudicator
a. Hears complaints
b. Appeals go to the Strata Schemes Board
c. Can order a solution
d. Disobedience sees fines of up to $5,500
3. Strata Schemes Board
a. Hear appeals on questions on the use of common
property and the lack of the Owners’ Corporation to
make certain laws
b. Formal proceedings with solicitors
4. Supreme Court
a. Hears questions of title to land
b. Appeals from Strata Schemes Board
c. Very formal proceedings.
Protection for buyers
The Building Services Corporation of the Building Services
Corporations Act 1989 (NSW) is part of the Office of Fair Trading,
overseeing & controlling the quality of build in the construction
industry, with a licensing system of tradespeople. The BSC also
receives complaints about the standard of work, and it attempts to
solve problems. Matters may reach the Building Disputes Tribunal
which can fine the worker or suspend their license – the District
Court being able to enforce decisions. The Building Services
Corporations Act 1989 (NSW) makes it an offence to act as a
tradesperson without accreditation…
Note the principle, in buying a home, of caveat emptor, where
everything in a contract is assumed to be agreed to … Note that the
Contracts Review Act 1980 (NSW) gives the Supreme Court the
ability to nullify a contract if considered made to the detriment of an
unknowing party… This helps the more vulnerable party…
Gazumping
Gazumping is where the vendor agrees to an offer from the
purchaser, but then accepts a higher one from another. Gazumping
favours the vendor, and its result is that a prospective buyer can
expend money on checking out the property, only to discover that
someone else has bought it. The Conveyancing (Sale of Land)
Amendment Act 1989 (NSW) prohibited this unjust practice.

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Leasing
Security of tenure
A lease specifies how long the tenant-to-landlord agreement will
last, and commonly is renewed on mutual agreement thereafter at
intervals, making for a continuing agreement.
Note that present housing shortages mean that landlords can
afford to be very picky about tenants, and therefore in the provision
of leases, there is great potential for discrimination…
Default & eviction
Where a tenant is 14 days in arrears they are in default and are
evictable upon the serving of a notice of termination. It is only 14
days after this notice’s issuance that the tenant may be evicted. If
they refuse to leave an application to the Consumer, Trader and
Tenancy Tribunal receives a request for an order of termination, on
the impetus of which they assign a sheriff to carry out eviction. This
period reflects the law’s recognition of shelter’s significance to
quality of life…
Where a lease is a continuing agreement the landlord can, without
default, opt for their eviction after 90 days notice, upon default with
the normal timeframe, and eviction after only 30 days in the advent
of the property’s sale (with exchange of contract). Similarly, in a
continuing lease the tenant can opt for leaving it, provided they give
the landlord 21 days notice. The time difference is reflective of their
respective vulnerabilities…
Notices of termination from either party must be written and
signed…
Remedies for default
Breach of a Residential Tenancy Agreement sees remedies in the
form of
• Damages
• Forcing the other party to honour obligations through an
injunction
• Preventing of actions by injunction
• Rescission of the contract.
Note that an eviction is undergone in processes laid down by the
Residential Tenancy Act 1987, which makes evading eviction
procedures illegal and punishable with a $20,000 fine. This reflects
the vulnerability of the tenant to the whims of their landlord, and
recognisant of the significance of shelter, seeks to protect the
tenant’s rights… An illegal eviction is illustrated in the case of Kelly
v Preen (1963). Such activities are illegal as in a lease, the
landlord is contractually selling his/her right to the property for a
prescribed period for a predetermined fee, and as such for that
period lacks a right to its full enjoyment, being compensated by the
tenant for his…

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Role of tribunals
Residential Tribunal
This is a recourse for both parties, hearing disputes in a fair
manner, reducing any inequalities between them through refusing
legal representation. The tribunal uses conciliation to resolve the
dispute, but does have recourse to arbitrary with arbitrary-system
resemblances. Here the decision reached is a binding order.
Rental Bond Board
At the beginning of the lease the tenant pays a bond (mostly 4-
weeks rent) to the landlord who, under the Landlord and Tenant
(Rental Bonds) Act 1977 has to within 7 days lodge it with the
Rental Bond Board. For the lease’s duration the Board holds the
bond and returns it to the tenant at the end, provided they have not
damaged the property beyond normal wear & tear from normal and
reasonable use. If damage is done, the landlord may lodge a claim
with the Board for costs to be deducted from the bond. The
Residential Tenancies Tribunal, in the advent of dispute, hears and
determines who is right…
Rent Control Tribunal
A Residential Tenancies Agreement specifies the amount of rent,
and to increase it a landlord must, pursuant to the Residential
Tenancies Act 2010 give the tenant 90 days notice. Note that rents
may not be permissible in all fixed term leases, and that any
excessive increases can be appealed at to the Rent Control Tribunal.

The is equity between the landlord and their tenant, for the tenant
can only harm the landlord though not paying rent, damaging the
property, abandoning the premises, or stealing possessions. The
landlord can do yet more through by depriving the tenant of their
security of housing. Legislation protects both parties, although
financial disadvantages can tend to put the tenant worse off. As
such there exists the Tenancy Union and the Tenants Advice and
Advocacy Service, both dispensing advice and assistance with
litigation.
Repairs and Damage
The landlord pays for all repairs unless the tenant inflicted the
damage or acted in breach of the Residential Tenancy Agreement.
Disputes are heard by the Residential Tribunal.
Note that frequently before a property is leased a premises
condition report is completed, entailing landlord and tenant going
through the property and AGREEING upon its condition, so that after
the lease any damage to the property can be ascertained, and
repairs agreed by consensus. The report is good documentary
evidence in the advent of a dispute.
Note the case of Julie Hare taking action against her Maroubra
duplex owner for failing to improve her rental property from an
unliveable state…
Discrimination

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Being in a position of power, there is potential for abuse among
landlords. Prejudices, in the selection of tenants may lead to
discrimination, being an offence under the Racial Discrimination Act
1975 (Cwlth), Sex Discrimination Act 1983 (Cwlth), Anti-
Discrimination Act 1977 (NSW) and the Disability Discrimination Act
1992 (Cwlth). Allegations of discrimination against a landlord may
be made to the Equal Opportunity Tribunal (now the Administrative
Decisions Tribunal) or the NSW Anti-Discrimination Board. The case
of Lamb v Samuels Real Estate Pty Ltd (1998) demonstrates
the incidence of discrimination against (ATSI) Lamb, where the Real
Estate agency told her nothing was available, but her (non-ATSI)
friend that there were. Lamb received $6,000 in damages and the
firm had an anti-discrimination internal policy enforced.
Similarly Sheather v Daley (2003) Sheather was denied housing
by Daley on the basis of her Aboriginality, and the Administrative
Decisions Tribunal deemed this a major rights violation, fining him
$10,000.

Public housing: advantages & disadvantages

Public housing provides shelter for those who need it most, doing
so at a subsidised rate. The Department of Housing acts as landlord,
responsible for all maintenance. While a property owner may make
many uses of their property, a public tenant has restrictions like:
• Having to move to a smaller residence if they are under
occupying their present
• They must notify the Department of Housing where another
person moves in
• Must inform the Department of any income changes
• Can be evicted if their financial situation improves
• Are not entitled to 90 days notice for a rent increase.
Note also the Department decisions have a direct impact on the
individual owing to their particular vulnerability. An example is in
deciding here to locate a facility, for the tenant’s low-income means
they have lost freedom of choice, and must put up with whatever
the department deigns…
It is a source of debate as to whether large estates of concentrated
public housing should exist, or small buildings, integrating them
within the wider private housing sphere…
In the past much housing has been built in large estates, such as
the Northcott Centre, and it is arguably undesirable with high levels
of conflict and crime between tenants…
Public housing is allocated by availability and need as opposed to
desire, and those applicants who refuse an offer without good
reason are removed from the list…
Note also that the Department of Housing is generally slow to react
to requests for repairs and maintenance, and minimal money is
spent on upkeep, as the department manages over 130,000
properties… Poor maintenance is illustrated in the case of
Liverpool City Council v Irwin (1976) where the judge was

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appalled by the property’s general condition, and the department’s
poor effort at maintenance…
As the 2006 media case of “900 Neighbours” shows, public
housing is frequently an unhappy, and bleak place for its residents,
as illustrated by the fact that one died, and his body lay there for 6
months before being discovered: large estates not being social or
safe places, suicides common, furniture throne off balconies, the
Northcott centre being an unattractive place, depression
commonplace. Note low government efforts at maintenance at the
Northcott Centre: no firealarms, being 50 years old. As the case
highlights, it is somewhat odd that the entire region’s best view is
enjoyed by public tenants, being in a multimillion dollar suburb. This
raises questions of cost-effectiveness, having great potential for
development. Note how on pension day, the recording shows us,
people buy drugs and violence & tensions break out...
Note that as a part of its stimulus package the government
invested $3 billion into the provision of over 9,000 social housing
homes and maintenance on existing dwellings.
The case of NSW Department of Housing v Christodoulou
(1996) found that technically the Residential Tenancies Act 1987
didn’t actually make provision for the Department of Housing to be
able to evict public tenants, and rather only the CTTT itself could…
The case of Nicolson v NSW Department of Housing (1991)
found Nicholson to, consistent with procedural fairness, have a right
to be given a reason for his eviction, as opposed to summary
ejection from his property after 60 days, which is to say, he as a
public tenant possesses a right to internal review and to combat any
allegations against him.

ATSI Housing
The Native Title Act 1993 (Cwlth) made provision for the return of
traditional lands to ATSI people, and within cities Aboriginal elders
can organise & manage community housing in an Aboriginal
Housing Office, as a form of public housing. This helps combat the
fact that ATSI people are underrepresented in home ownership: only
35% of ATSI people owning a residence, as opposed to 70% of non-
ATSI Australians, and thus have a disproportionate reliance upon
rental accommodation (but are also majorly discriminated against
here). Hence ATSI dwellings are often poor quality, overcrowded,
posed health risks, and their tenancy status is unsecure. All these
factors contribute to a stigma/prejudice against having ATSI people
as tenants amounting in many cases to discrimination, although this
is very difficult to prove, especially for such a socio-economically
disadvantaged group… As money is a main determinant of shelter,
ATSI people are especially disadvantaged in this area, and are
decidedly treated differently by the Department of Housing, with
substandard dwellings often provide. This is because of a prevalent
culture among ATSI people of avoiding any area where a relative

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has died, and when invariably this occurs in a house, they shun the
shelter thereafter, considering the spirit to reside in it…
According to the 2006 media article “Aborigines caught in vicious
circle of housing neglect” 20% of ATSI dwellings need replacing, and
another 20% need drastic repairs, yet the government is out of
touch with their needs, continuing to provide new accommodation
where there is not appropriate in addressing the main issues…
Note the clustering of ATSI people in specific areas, creating
clustered problems of unemployment and crime, for example in Mt
Druitt where unemployment is 22.38% for men. It is also significant
that given the link between shelter and health, part of ATSI people’s
comparatively low levels of health are, in part, attributable to their
poor provision of good quality, uncrowded shelter, present crowding
being conducive to prevalent gastroenteritis and asthma…
Being in a position of power, there is potential for abuse among
landlords. Prejudices, in the selection of tenants may lead to
discrimination, being an offence under the Racial Discrimination Act
1975 (Cwlth), Sex Discrimination Act 1983 (Cwlth), Anti-
Discrimination Act 1977 (NSW) and the Disability Discrimination Act
1992 (Cwlth). Allegations of discrimination against a landlord may
be made to the Equal Opportunity Tribunal (now the Administrative
Decisions Tribunal) or the NSW Anti-Discrimination Board. The case
of Lamb v Samuels Real Estate Pty Ltd (1998) demonstrates
the incidence of discrimination against (ATSI) Lamb, where the Real
Estate agency told her nothing was available, but her (non-ATSI)
friend that there were. Lamb received $6,000 in damages and the
firm had an anti-discrimination internal policy enforced.
Similarly Sheather v Daley (2003) Sheather was denied housing
by Daley on the basis of her Aboriginality, and the Administrative
Decisions Tribunal deemed this a major rights violation, fining him
$10,000.

Settling disputes between neighbours

Suburban trends towards medium & high density housing has lead
to a closeness exacerbating the potential for tension among
neighbours, with noise, pets, trees, fences, building, boundaries and
burning off common sources of irritation, contrary to people’s right
of enjoyment of their property. In the minimisation of such problems
the government has produced the:
• Protection of the Environment Operations Act 1997 (NSW)
covering noise & nuisances like burning off, and restricting
the time for noises like parties, loud TV and lawn mowing.
The EPA manages complaints about fires, and the police &
councils over noise pollution.
• Companion Animals Act 1998 (NSW) empowers local
governments to control the municipality’s type and quantity
of animals, able to have them put down, and force their
being locked up…

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• Dividing Fences Act 1991 (NSW) regulates the position and
payment of fences, specifying that both sides are responsible
for the purchasing of a fence, and providing dispute
resolution mechanisms.
• Access to Neighbouring Land Act 2000 (NSW) prohibiting
people accessing their neighbour’s land, e.g. for parking.
A problem is a lack of awareness about these laws, and therefore
difficulty in their enforcement by the community…
Note the case of neighbours Lang and Kirness who argued so
vociferously over access to a causeway between their properties
that after Lang spent over $350,000 in court, the case continued to
be heard by the Human Rights Committee…
Dispute resolution procedures
Ideally one should talk directly with the source of the nuisance,
open discussion being the most effective mens of conciliation. In the
absence of this, Community Justice Centres promote this, aiming to
encourage neighbours to reach a compromise with the aid of a
mediator, 80% of disputes being resolved this way… The Redfern
Legal Centre case of Ana’s house flooding owing to her neighbour’s
landscaping is an example of mediation helping to resolve a tricky
argument between neighbours, and illustrates the cost effectiveness
of such measures as opposed to litigation… CJCs are informal, with
no legal representation, no waiting lists, free and those who are
involved in the dispute decide what is discussed…
The next resort is tribunals, helping resolve disputes without
recourse to expensive litigation. Example include the Strata Titles
Boar dealing with complaints about units and the Residential
Tenancies Tribunal mediating landlord-tenant disputes.
Local Governments also possess the authority to impose fines and
orders for certain behaviours to stop, e.g. noise abatement
instructions.
The courts similarly can issues fines, injunctions and compensation
and damages where civil or criminal cases are brought before them,
as in the base of Malliate v Sharpe (2001) where the defendant’s
rubber tree was damaging the plaintiff’s garden path and steps, and
an injunction for a restraining wall at the defendant’s expense was
ordered. The expensiveness to society and the individual of court
proceedings is exemplified in the case of Stilgoe v Llowarch
(2005)_where the judge highlighted a need for “legislative change
to take place so as to avoid the situation where so much of the
valuable time of this court is being taken up by numerous small
claims which put the parties to legal expense which may exceed or
at least be grossly disproportionate to what is in issue”.
Note also that APVOs may be taken out against a neighbour…

Fraser v Booth (1949)

Fraser sought an injunction against Booth on the basis of Booth’s
training of hundreds of pigeons, constituting a nuisance to Fraser.
Booth took out a counter-injunction to stop Fraser from disturbing

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his birds. Judging Fraser not to be a difficult or odd person, the
court found the birds to constitute a nuisance to Fraser, interfering
with Fraser’s right to physical comfort, ordering the birds be
removed.

ETHICS, EFFECTIVENESS AND LAW REFORM

Morality, ethics and commitment to the law
Extent to which the law reflects moral & ethical standards
The absence of a clear community view of the issue of shelter
makes it difficult to ascertain the extent to which’s the law
embodies it. There are two polar views, however, on the subject: the
first that shelter should only be available to those willing to pay for
it, and the second that protection should be equally available to all.
The latter is probably better reflected in law bys the fact of the
provision of public housing, although the government’s non-
recognition of shelter as a right demonstrates the government’s
standpoint as not merely a black and white one…
Examples of potential immoral behaviours:
• Real Estate Agents using bait pricing, either overvaluing a
property to a vendor or undervaluing it to the purchaser, and
letting it be bid up
• Real Estate Agents informing purchasers of structural defects
of a property, acting unethically towards the vendor
• Use of dummy bidders at auctions
• Mortgage brokers lending money to those with an inability to
pay…

Commitment to the law

The fact that lawmakers assign power to the judiciary to rule on
matters of shelter evidences their own commitment to the
treatment of shelter and its surrounding issues, and the fact that
breachers of the law and the homeless constitute a distinct minority
demonstrates that by and large society is committed to following
the law…
Non-compliance with many regulations entails a fine, loss of
license or order to comply and thus most are forced to comply with
the law, as it is incentivised, as it’s breach unattractive. An example
of non-compliance leading to permanent los of licence is the
Foreverglaze Roofing Australia Pty Ltd company…
An example of the consequence of operating a construction
business while unlicensed is The Brain Group Pty Ltd which acted
immorally, completing variations on jobs without permission but
charging the client for them. The consequence was a $8,000 fine…
The fact that the laws may be criticised with impunity, and
criticism can drive reform means that in large part people are willing
to follow it, as it remains in touch with their own attitudes. The mere

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possibility of its reform is enough of a confirmation of its justness for
the average citizen to feel a willingness to follow it…
To be followed the law needs
• Honesty
• Integrity
• Trustworthiness
• Accountability
• Transparency.

Effectiveness of the law

Chief considerations are:
• Whether people have equal access to the full range of
different types of shelter, and equal access to finance for
their purchase
• How individuals are affected by lack of shelter and how
effectively they are protected by legislation
• Whether the law treats all parties equally or favours one
party over another
• How the law is enforced
• Whether the law recognises and protects the rights of those
acquiring shelter, using it, or having no shelter
• Whether the law effectively balances the rights and values of
the individual against the rights and values of the community
• Whether the law is able to be reformed to redress
imbalances of power
• Whether resources are efficiently used….

Evaluating the effectiveness of law in achieving justice for

individuals
Those with and without shelter have disparities in their ability to
acquire shelter, some having the resources with which to acquire
multimillion-dollar seaside townhouses, others never going to…
The type of shelter available to one depends on one’s financial
resources, and mortgages arise from one’s inability to proffer them
in the short term, although one’s income level still affects one’s
ability to acquire finance…
As a result
• Those beginning with money have the opportunity for
security with a home
• Those who begin behind, stay behind
• Housing is a symbol of status
• Lack of equal access to finance increases the gap between
rich & poor
In the interests of achieving justice for individuals, the law has also
adapted to see insurance and other companies forced to use plain

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English in their contracts, to ensure responsibilities are well
understood.
Reflective of how vendors have the added power of knowing a lot
about their property, purchasers are protected through
• Anti-gazumping legislation
• The Contracts Review Act 1980 (NSW)
• The standard contract for sale of land to prevent the hiding
of facts
• Information disclosure rules
• Regulation of Real Estate agents, solicitors, conveyancers,
tradespeople and builder’s obligations.
Between landlords and tenants there is potential for mutual harm
in the forms of denying rent, damaging property, or the landlord
depriving their tenant of shelter. Recognisant of this, the Residential
Tenancies Act 1987 assigns both rights and responsibilities…
The law is greatly ineffective in the sense that an individual
without income, for all purposes, lacks any legal right to shelter, and
justice goes undelivered… Some charity groups voluntarily
undertake the protection and assistance of such groups, but the
legal system plays no role.
Effectiveness for individuals
Protection & recognition of individual rights
• Rights are protected under the
○ Anti-Discrimination Act 1977
 Anti-Discrimination Board
○ Racial Discrimination Act 1975
○ Sex Discrimination Act 1984
○ Disability Discrimination Act 1992
○ Privacy Act 1988
 The Office of the Federal Privacy Commissioner
○ Residential Tenancies Act 1987
○ Retirement Villages Act 1999
○ Residential Parks Act 1998
○ The CTTT
• The media plays a role in protecting and recognising
individual right’s breach, and in initiating reform through
gathering popular support, e.g. through reporting the case of
Byron, leading to Byron’s law.

Accessibility
• Shelter is not accessible to many, and nor is the
capacity/knowledge on the basis of which to launch litigation
to sue for discrimination
• Not everyone knows their rights as regards shelter, for
example tenants unaware of their entitlement to notice
before eviction…
• Shelter is becoming increasingly expensive, indeed the
proportion of low-rent homes falling 15% in recent years. As

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the population grows and shelter becomes more scarce,
there will being increasing opportunities for landlords to be
yet pickier, giving scope for discrimination…

Resource Efficiency
• Tribunals like the CTTT are provided so as to ease the costs
of litigation expenditure by individuals, as had the increasing
incidence of mediation to help turn conflict into cooperation
• The standard contract of sale for homes helps streamline
buying & selling
• The Commonwealth-State Housing Agreement was actually
orchestrated with the intent of greater resource efficiency…

Equality
• Imbalances of power in terms of access to shelter exist
• Imbalances in power to achieve finance exists
• Public housing has a long wait
• Different groups have varying access to shelter, owing to
discrimination
• Power imbalances between tenants and landlords still exist
• Many tribunals preclude legal representation, recognising it
as fostering inequalities where matters are between rich and
poor…

Enforceability
• To be effective laws must be enforced, yet where
accessibility is low, enforcement thus effectiveness is
inhibited.
• Enforcement that discriminates is unjust, hence how many
laws regarding shelters consider who is the most vulnerable
party and help to reduce this vulnerability, e.g. in the
exclusion of legal representation from tribunals…
• Enforcement is also pursued through education programs
and the granting of licences…

Evaluating the effectiveness of law in achieving justice for

society
Capitalism considers the individual responsible for acquiring
his/her own shelter, and laws protecting individuals do so in the
encouragement of home ownership, and help streamline landlord-
tenant relationships to make it more attractive for property owners
to let out their excess space.
Those dependant on others to provide their shelter needs are
afforded public housing assistance by the government. The lack of
more effective government provision is a reflection upon
predominant social attitudes of housing being a responsibility and
NOT a right.
The expensiveness to society and the individual of court
proceedings is exemplified in the case of Stilgoe v Llowarch

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(2005)_where the judge highlighted a need for “legislative change
to take place so as to avoid the situation where so much of the
valuable time of this court is being taken up by numerous small
claims which put the parties to legal expense which may exceed or
at least be grossly disproportionate to what is in issue”.
Existing government intervention in the area of buying & selling
occurs only in recognition of the fact that being such a large
purchase, it would be unjust not to ensure resources are not
expended in a way one party can be exploited by another more
knowledgeable one. Hence the purchaser’s larger protection,
recognising the position of power a vendor is in. Government
regulation is essential to keeping confidence in the property market,
without which corruption would reign alongside injustice…
An example of government reform to improve market confidence
and combating potential corruption is the changing of property title
into Torrens title also massively conducive to better efficiency…
Similarly, to promote economic activity based in construction, the
government is combating substandard working practices through its
recent conman advertising blitz, and since 2001 the employment of
increasing numbers of inspectors to track down substandard
builders.
Note also increasing media attention regarding cases of the abuse
and neglect of those in aged-care facilities, inconsistent with
community ethical standards in the area, with criticism of the
government for failing to adequately enforce its laws. Reform is
clearly needed in this area.
A balance between individual rights to shelter and the community
entitlement have financial independence rewarded is reflected in
our legal and value systems. The incidence of squatting is a divisive
issue highlighting divergent community attitudes as regards
possession of property – collective versus individualistic.
Effectiveness for society
Law as a reflection of community standards and expectations
• For people to be committed to the law, it must retain
consistency with their values
• Without law consonant with community views it is unlikely to
be followed, and there will be uncertainty constraining
economic growth and property exchange
• Community standards reflected in law are evident in laws
safeguarding privacy and freedom from discrimination.

Accessibility, appeals & review

• A hierarchy does exist for appeals, travelling from mediation
at CJCs, to tribunals to the Supreme Court…
• Appeals are a source of justice as individuals are able to
challenge decision-makers, and access a system checking an
error has not been made… An example is Swain & Anor. V
Residential Tenancies Tribunal & Anor. (1994) where
Swain was served with a 60-day notice of eviction with no

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reason given. He appealed successively until the Supreme
Court found that circumstances of the case did warrant the
consideration of all the circumstances of the case, which did
warrant the tenant remaining on the premises, there being
no real (acceptable) reason for his eviction.
• It is now mandatory for all Acts of parliament to be undergo a
process of review after 5-years of assent. Reviews of this
kind ensure that the legislation’s objectives are still valid and
appropriate. All reviews invite submissions, and their purpose
is to improve the law’s effectiveness…

Balance of individual and society rights

• Shelter laws consider it to be a private matter, concerned
with the individual and his/her rights, and in this area the
individual is generally considered to have precedence over
society, on a case-by-case basis… There nevertheless is
cause for conflict between the two, especially as regards
situations where the individual is unable to look after
him/herself. Often there are objections in the community in
regards to the construction of public housing estates in a
local area, for their effect on the value of local Real Estate. In
the example of the Northcott Centre, the estate itself
actually takes up the best Real Estate, although this has only
recently become the case (when it was built the area of
Surry Hills was a slum).

Opportunities for enforcement

• Society expects laws to be enforced, an example of
enforcement being the case of Frank Conti Pty Ltd and that
firm’s loss of its licence. Another example is “Operation
Hammer” in 2004 seeing a state-wide blitz cutting down on
unlicenced builders, with 461 persons fined, and
subsequently licence applications rose 30%...

Resource efficiency
• The maintenance of the public housing stock has been a site
of gross inefficiencies in the past. The poor use of public
monies in this area, and the inadequacy of funding in the
first place has meant that of its 130,000 homes, only 35% of
the Department of Housing’s housing stock is adequately
maintained, with a $650 million maintenance backlog, while
pressures for more homes have continued to grow.
• Similarly poorly thought out funding to mental hospitals in
the 1980s saw to many’s closure, and the result has been
that prisons have become de facto mental institutions, with
as many as 78% of male, and 90% of female inmates
suffering from pre-existing mental disorders prior to their
imprisonment. Had the government maintained investment
in mental institutions, there would be far lesser pressures on

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the present prison system... – their sale being a poor use of
public funds…
• The law is ineffective where such inefficiency reign, for it is
unjust to public money to be squandered and just thrown at
an issue…

Law Reform
Conditions giving rise to the need for reform
One recent tendency has been the increasing incidence of high-
density housing. The government combated the issues surrounding
this through the Strata Schemes Management Act 1996 (NSW),
dispelling tensions before they arise.
Similarly international attitudes regarding indigenous peoples and
UN recommendations have pushed the reconsidering of Australia’s
attitude towards the possession of land, and shelter’s provision to
the needy. The Aboriginal Housing Act 1998 (NSW) was something
driven by an increasing awareness and respect for ATSI people’s
self-determination, as also illustrated in the Mabo and Wik case.
Law reform remains needed also in aged care, the rights of
boarders, lodgers and users of caravan parks as existing laws are
failing to protect these vulnerable groups.
Moral pressure is exerted by charity groups caring for the poor and
homeless for more funding, while the community is encouraged to
further donate money or food.

Failure of existing law

Law reform frequently occurs because of existing law’s failure to
fulfil its intended purpose, i.e.:
• Existing law is out-of-date
• Existing law is not meeting its intended objectives as society
has changed
• Injustices are being foster by the law as it is simply
inadequate.
Failure of existing law has lead to
• A uniform consumer credit code across Australia
• Reviews of existing legislation by law reform commissions
• The amendment of legislation
• Introduction of new legislation like the Residential Tenancies
Act 2010
Preset failures include
• Limited rights of boarders
• Significant numbers of homeless
• Continuing discrimination in rental markets
• Lack of a legal response to shared accommodation, e.g.
leases multiple tenants…

International Law
International law considers shelter a human right, but despite
having ratified all these Australia has not implemented this right

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into domestic law, and has shown no intention to do so, although
arguably the provision of public housing itself is illustrative of
shelter’s recognition as a basic right, it’s non-recognition being
grounded in the fact that it would be costly to recognise it, and
thereby legally oblige the government to provide more…

New concepts of justice

The introduction of the Uniform Consumer Credit Code is an
example of a new concept of justice, the result of contention that
credit contracts ought to be clear & transparent, providers being
obliged to give accurate information to borrowers before a contract
is entered. The enforcement of this occurred in Suncorp-Metway
Ltd v Director General, Dept of Equity and Fair Trading
(1998) where Suncorp was fined $250,000 for breaching the Code,
and in State of Queensland v Ward (2003) where Shark
Financial Services was ordered closed for charging its desperate
borrowers up to 360% interest, and enforcing loans with
“collectors”.
The Uniform Consumer Credit Code improved access to justice,
and gave consumers the right to have their existing borrowing
contracts examined by a court to check whether they are just…
Another new concept of justice is the increasing use of mediation,
Community Justice Centres, tribunals, and other alternative dispute
resolution mechanisms which offer more cost-effective opportunities
for dispute resolution than time and cost inefficient litigation…

New technology
Technology often needs regulation as it creates new forms of
potential immoral activity. An example is the regulation of tenant
databases, used to help identify potentially troublesome tenants,
but also with potential for abuse, e.g. people being listed without
being warned, having their privacy invaded, and thereby having
their capacity to acquire shelter limited…

Changing social values and composition of society

An example of this is the challenge that an ageing population is set
to pose Australia, with exponentially growing pressures on aged
care facilities, and the increasing need for regulation which this
(soon to be booming) business will require.
The homeless, also will need to have their increasing demographic
addressed, as those below 25 come to be an ever increasing
proportion of them, among them families and women, contrary to
past trends… There is need for government responses to
homelessness to improve, especially in regards to family
breakdowns, to ensure that families do not join the 15,000+ who
are sleeping rough…
In addition, there are increasing numbers of Australians living in
high-rise dwellings, with a developing need for more intensive

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regulation of such strata, although this have preliminarily been
successfully dealt with…
Also, gradually levels of home ownership are decreasing as
identified by Dr Yates. Additionally casualisation of the workforce
has decreased people’s ability to secure shelter, and their capacity
to acquire credit…

Agencies of reform
• ALRC
• NSWLRC
• Royal Commissions (ad hoc) occasionally used to explore
specific issues
• MPs
• Parliament
• The Judicature
○ Fmr High Court Justice Mason: “the court does not, and
cannot, carry out investigations or enquiries with a
view to ascertain whether particular common law rules
are working well, whether they are adjusted to the
needs of the community and whether they command
popular assent”.
It is through these that the law is reformed to meet society’s
changing needs, and reflect the ethical code & value system of
society…

Law Reform Example: the Residential Tenancies Act 2010

(NSW)
Based on in excess of 2,000 submissions from various
stakeholders, the updated Residential Tenancies Act examined
interstate regulation of shelter and considering the best outcomes
and updated NSW law on over 100 points of law, so as to:
• Balance tenant & landlord rights and obligations

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• Modernise the law to suit modern practices
• Reduce disputes through providing greater clarity.
Main changes include:
• Security of tenure:
○ Tenants need 90 instead of the present 60 days
notice to vacate
○ Scope is made for a tenant in arrears to repay the
landlord in a repayment plan, instead of just being
evicted
○ Extra protection and consideration by the tribunals is
to be given to tenants who have lived on the same
property for excess of 20 years
○ A fixed term may be terminated where
 The tenant is offered public housing
 The tenant has accepted a place in an aged-
care facility
 A co-tenant is prohibited by an AVO from
having access to the premises
 At the lease’s initiation the landlord did not
inform the tenant he/she intended to sell the
property
○ A “break fee” penalty may be paid by a tenant
leasing a fixed term lease, equivalent to six weeks
rent where half the term has not yet expired…
• Terms of tenancy
○ A landlord cannot unreasonably withhold consent for
a fixture, alteration or addition of a minor nature
○ A landlord cannot unreasonably withhold permission
for the subletting of their property.
• Tenancy databases
○ Tenancy databases are regulated.

This new law has been scrutinised by:

• The Tenants’ Union of NSW
○ “our overall assessment of the Bill is that most of the
changes it would make are improvements”
• The Real Estate Institute of NSW
○ “the draft bill would shift the current imbalance
further in favour of the tenant and make investment
in NSW rental properties less attractive”
• The Property Owners Association of NSW
○ “the biggest attack on landlords in New South Wales
history”.
• Shadow Minister for Fair Trading Greg Aplin
○ Law is based on the premise that “the best way to
achieve gains for tenants is to bludgeon their
landlords into accepting unreasonable and, frankly,
humiliating conditions.”

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○ “It is dangerous to create many new rights which are
poorly expressed”
○ “Despite a 23-year wait for reform, stakeholders now
have just four or five days to read and understand the
many changes in the final bill. This is an impossible
task.”

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