Legal Studies HSC Flashcards

UDHR (1948) Article 4 and ICCPR (1966) Article 8

Right to freedom from slavery

UDHR (1948) Article 19

Right to free media

UDHR (1948) Article 21

Right to universal suffrage

UDHR (1948) Articles 23 and 24

Right to labour

UDHR (1948) Article 26 and ICESCR Article 13

Right to elementary education

UN Charter Article 1(1)

Peace Rights

UN Charter Article 1 (2)

Collective right to Self-determination

1772 Somersett judgement

Made slavery illegal in Britain + Commonwealth Nations eventually

When did Indigenous Australians gain the right to vote in all jurisdictions

1965

Trade Unions Act 1871

Made trade unions legal in Britain

NSW Public Instruction Act 1880

Made education free, secular, and compulsory

1972 Stockholm Declaration

An agreement to deal with specific environmental threats

Montevideo Convention on the Rights and Duties of States (1933) Article 1

Defines a state as one with a permanent population, a defined territory, a government, and a capacity to enter into international relations

Role of Anti-Slavery Australia as a non-legal response to slavery

advocate and represent victims

Racial Discrimination Act 1975 (Cth)

Australia’s ratification of the International Convention on the Elimination of Racial Discrimination

Constitution Section 51 (XXIX)

External affairs power

Charter of Human Rights and Responsibilities Act 2006 (Vic)

State human rights charter

UN Global Report on Trafficking in Persons

Sexual exploitation is the most documented/reported, forced labour/marriage/servitude is less so.

Criminal Code Act 1995 (Cth) Division 270 and 271

Criminalised human trafficking domestically

UN Convention Against Transnational Organized Crime and its Protocol to Prevent Trafficking (2000)

International legal framework against trafficking

Modern Slavery Act 2018 (Cth)

Limited effectiveness of domestic response to human trafficking

R v Tang

First person convicted under anti-slavery laws, valid under constitution section 51 xxix

Crime

An act (or omission) committed against the community at large that is punishable by the state

What are the elements of a crime?

Actus reus, mens rea, chain of causation (link between defendant’s actions and the harm caused)

Strict liability offences

Offences where mens rea is not required (i.e. traffic offences). They are applied to offences because of administrative advantages or to put greater onus on society to comply with the law.

Aim of criminal laws

To protect the community and impose a sanction on the offender if he/she is found guilty by a court of law.

Actus reus

The physical act, the easiest element to prove as physical evidence and witness accounts can help prove. Must be a voluntary act but can include omission or failure to act (criminal negligence)

Mens rea

The guilty mind, or intent, of the accused. It can range from intention, the highest level of clear and willful intent that is also the hardest to prove, recklessness, which is taking the risk without thinking of consequences, or criminal negligence, which is failure to foresee avoidable danger.

R v Manju Sam (2009)

Mother and father charged with the manslaughter via criminal negligence of their nine-month old daughter after they refused to treat her eczema with conventional medical treatment.

Offences against the person

Homicide (unlawful killing of another human), murder (intentional killing with malice), manslaughter (unlawful killing without malice/aforethought), infanticide (killing of a child under 12 months by the mother), assault, aggravated assault, sexual assault

Offences against the sovereign

Treason (attempt/intention to levy war against the state or assist the enemy), and sedition (promoting hatred/contempt for the government)

Economics offences

Crimes against property (larceny), white collar crimes (Fraud), computer crimes (identity theft)

Drug offences

Any acts involving prohibited/restricted drugs. Cross border trug trafficking falls to federal legislation

Driving offences

Speeding, drinking under the influence, traffic violations, dangerous driving, intoxication, negligence.

Public order offences

disruptive conduct, public safety, offensive behaviour, social ethics (disrupting the peace or interfering with order)

Preliminary crimes

Attempts, conspiracy, incitement, aiding, abetting, counselling, or procuring

Regulatory offences

Delegated legislation, i.e. breaching water/fire restrictions, public transport offences, etc. These are strict liability.

Summary offences

A less serious offence tried by a magistrate in the Local Court, the judgement and punishment are determined by a magistrate, the charge is usually laid by a police officer or government officer, the punishment is usually less severe, like a fine or a good behaviour bond.

Indictable offences

More serious offence tried by a judge and jury, the judgement is determined by a jury and the punishment by a judge, the charge is brought by a public prosecutor working for the state, the punishment will usually be imprisonment or a hefty fine.

Parties to a crime

Principal in the first degree (committing the main act), principal in the second degree (present at the scene), accessory before the fact (aids in planning but not present), accessory after the fact (assists offender after the crime)

Factors that may lead to criminal behaviour

Social, economic, psychological, political, genetic, self-interest

Situational crime prevention

Aims to make it more difficult to commit a crime/remove the reward of temptation in specific situations (i.e. warning signs, cctv)

Social crime prevention

Aims to address the wider socio-economic factors that contribute to criminal activity (i.e. targeted youth programs)

Key police powers

Investigate crimes, arrest and interrogate suspects, search property, seize evidence, question suspects. These powers enable NSW police to provide a sense of safety and security, maintain public order, and enforce laws.

Risks associated with too much/too little police powers

Limiting police powers too much leaves the nation vulnerable, limits the ability for police to respond effectively and their ability to protect civilians, however excessive police powers lead to the risk of excessive force, deaths in prison, abuse of discretion, as the police powers may impede upon civil liberties of individuals.

Where are police powers moderated/contained?

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), the Code of Conduct and Ethics, and the NSW Law Enforcement Conduct Commission

Terrorism (Police Powers) Act 2002 (NSW)

Provides the power to detain and interrogate terrorist suspects, was amended following the Bali Bombings in 2005. Following the 2016 attack on Kurtis Chang, police can detain individuals as young as 14 for 16 hours without charges

Criticisms of police power law reform

Unable to balance the needs of society with the needs of victims and accused, impedes on civil liberties such as freedom, right to privacy, freedom from arbitrary detention

Why is reporting crime important

So police can investigate before evidence is lost/destroyed.

Reasons why victim survivors don’t report domestic violence’ (ABC, 2021)

Fear they won’t be believed, victim-blaming, shame, denial or isolation, financial abuse, lack of privacy, language barriers, discrimination, police mishandling of complaints, loss of trust or confidence in the ability of police

Rosie Cooney

Called the police on her boyfriend to report domestic violence, however the police arrested her of the same charge upon speaking to him first

How is police investigation an exercise in balancing rights?

On one side there is a need for the police to have adequate power to conduct criminal investigations in the interests of the community and the victim, on the other side is the need to offer proper and practical safeguards for suspects.

Evidence Act 1995 (NSW)

Evidence must be relevant to the case, be obtained in a lawful manner, be meticulously recorded and handled to maintain its integrity, to be admissible.

Crimes (Forensic Procedures) Act 2000 (NSW) rules about DNA

DNA taken from a suspect is to be destroyed after 12 months if the charge is withdrawn or the person found not-guilty. Only the DNA of convicted people can be retained. However the act does not deal with mass population screening

Warrant

A legal document issued by a court authorising the police to perform an act, e.g. make an arrest, enter and search premises without the consent of the occupier, seize property, record a phone conversation. Governed by LEPRA

Two types of personal searches

General searches, which is the outer garments, and strip searches, which involve the removal of some or all articles of clothing.

LEPRA rules about strip searches

As they are more invasive and can cause mental harm, there is a higher threshold to use them. There must be ‘suspects on reasonable grounds’ that is ‘necessary’ and ‘serious and urgent’. They must be done as quickly as possible and by someone the same sex. Children below 10 are not to be strip-searched, and anyone between 10-17 must have a parent/guardian present.

UNSW and Redfern Legal Centre, ‘Rethinking Strip Searches by NSW Police’ (2019) finding

Legal threshold is imprecise, definition of strip search is vague/subjective. Also used to ‘punish and humiliate’ people. Law Enforcement Conduct Commission found police had “no idea” about strip search laws and had not received adequate training (‘Police had' ‘no idea’ about strip search laws, watchdog finds’, SMH, 2020)

Attalla v State of NSW (2018)

Sydney man awarded damages by the District Court of NSW for illegal strip search as it had no reasonable suspicion, and he was required to squat (illegal).

Arrest

The lawful detention of a suspect. A deprivation of liberty, which is guaranteed under the ICCPR (1976). An individual can be lawfully arrested if there are ‘reasonable grounds’ of suspicion that a person is committing or has committed an offence. If police wish to arrest someone for a crime they are investigating, they must receive a warrant from the court. Police must issue a verbal and written caution to outline the person’s rights.

Rules on detention

Once arrested, police can only detain a suspect for 6 hours when they must be either released or charged.

Arrests for less serious offences

A court attendance notice is issued, aka a summons.

Terrorism (Police Powers) Act 2002 (NSW)

Suspects as young as 14 can be detained for up to 14 days without charges against them.

Dietrich v The Queen (1992)

Established a limited common law right to a lawyer in cases involving very serious indictable offences to ensure a fair trial.

Australian unqualified right to silence under 2013 reform to the Evidence ACt 1995 (NSW)

Special caution where if an arrested person fails to or refuses to tell police a fact that is later relied on in their defence, the judge can instruct the jury that this evidence may not be reliable. NSW Bar Association and NSW Council for Civil Liberties are against this reform.

Detention period

The time given to police to take, question, and investigate individuals. LEPRA outlines the right to max 6 hours in detention if not extended, an independent adult for someone under 18, the right to contact a lawyer, the right to recorded questioning, and the right to refuse to provide DNA evidence.

Bail

Temporary release of an accused person awaiting trial often on particular conditions, such as a surety sum, wrist and ankle monitoring, restrictions on movement, police check ins, etc.

Remand

The holding of an accused in detention usually until the verdict is given/sentence is given at the trial. If the accused is found guilty, the time the offender has spent in remand is deducted from the total length of their sentence as ‘time already served’

Bail Act 2013 (NSW) and Justin Dowd, president of the NSW Law Society

Dowd supported the Bail Act 2013 (NSW) as it upheld the presumption of innocence, as bail was not a tie to punish an alleged offender but to await a trial.

R v Fesus (2014)

Steve Fesus allegedly strangled his wife and dumped her body by the beach, but was granted bail. Ken Marslew from the victims group described this as “immoral and unethical”

R v Hawi (2013)

Mahmoud Hawi was a part of the 2009 Sydney Airport Bikie brawl that resulted in public murder. Radio talkback lines lit up when he was granted bail as the public believed their rights were not being protected

Role of non-legal measures in bail

Victims’ groups and the media have played a key role in bail reforms. With the changing nature of online platforms as a direct outcome of advancements in technology and increased media influence, the media has the capacity to engage larger audiences and inform the opinions of the public on a more rapid basis. AS a result, the govt is subjected to mounting pressure to control crime and respond to public fears.

Bail Amendment Act 2022 (NSW)

States that an offender who has been convicted of a crime will not be released on bail prior to sentencing if it is established that they will be sentenced to full-time prison unless they can establish special or exceptional circumstances

Role of the Courts

To interpret and apply the law, a place where a trial is heard, a verdict is reached, and a sentence is imposed to achieve justice

Factors determining courts

Seriousness of the matter, age of the accused, type of hearing, state or federal offence, original or appeal.

Original vs appellate jurisdiction

Authority to hear a matter for the first time vs authority to review matters on appeal from a lower court

Committal Hearings

Under the Criminal Procedure Act 1986, committal hearings allowed testing of the prosecution case. Magistrates could dismiss the charges or commit them to a higher court. It prevented the executive branch of govt from abusing its power of prosecution whilst upholding the rights of the accused

Early Appropriate Guilty Plea Scheme

Abolished committal hearings and introduced charge certification and case conferencing. The magistrate’s role in filtering out cases was replaced by the senior prosecutor who reviews a brief of evidence that has been produced by NSW Police as soon as it is served and confirms, or certifies, the charges will proceed. 25% off your sentence for guilty pleas entered in the Local Court, 10% for guilty pleas entered up to 14 days before the first day of trial in the District/Supreme Court, and 5% after that. Judges retain discretion as in R v Dean (2013)

Case Conference

A meeting between the senior prosecutor and the defence to formally discuss the case before it goes to trial in order to maximise opportunities for early guilty pleas.

Legal Aid

Provided to children and young people under 18 in criminal matters, and offers free legal advice for 15 minutes for adults. For legal representation, you must pass the means, merit, and jurisdiction test.

CSI Effect

Juries place undue weight on DNA evidence

Complete defences

Automatism, consent, mistake, duress, necessity, self-defence, mental illness or insanity

Partial defences

Diminished responsibility, excessive self defence, provocation

Issues with juries

Unauthorised investigations, inattention, media influence, complex law, difficulty understanding expert evidence, lack of transparency.

Sentencing

A sanction/penalty imposed by the state to punish an offender for their criminal conduct. The judicial officer has the discretion to sentence the offender during a sentencing hearing.

Statutory guidelines

Legislation made in parliament that governs sentencing. Made up mostly by maximum penalties and mandatory sentences through the Crimes Act 1900 (NSW), standard non-parole periods in the Crimes (Sentencing Procedure) Act 1999 (NSW)

Judicial guidelines

Guideline judgements, court decisions made by the NSW court of Criminal Appeal after hearing arguments from the DPP and Senior Public Defender.

Purposes of punishment

Deterrence (specific to the offender or general to society), retribution, rehabilitation, incapacitation

Mandatory minimum sentences

Apply to things like assault causing death whilst intoxicated/under the influence following rising intolerance to alcohol-related violence such as R v Loveridge (2013). It has been heavily criticised.

Human Rights

The collection of basic rights and freedoms believed to belong justifiably to all human beings. They are considered to be universal, unalienable, and inherent.

Slavery

A form of forced labour where the slave is treated as the legal property of another. Exists as both traditional and modern slavery.

Universal Suffrage

Refers to the right to take part in the election process regardless of things like race, sex, etc.

Universal Education

The right of all human beings to a formal education

Self-Determination

The collective right of a people of a territory or national grouping to determine their own political status

What do human rights recognise/respect?

Human dignity and the inherent worth of individuals simply by them being human.

What is the UDHR

The Universal Declaration of Human Rights was adopted by the UN in 1948. It lays out the fundamental human rights, establishing them as inherent, inalienable, and equal. It serves as the basis for most human rights following it.

Boutros Boutros Ghali (Former UN Secretary-General) on the developing recognition of Human Rights

“Our contemporary human rights system is heir to demands for human dignity throughout history…”

What has led to the increased recognition of human rights?

Independent historical movements that have fought hard to change a particular injustice in the law and society. Human rights have originated from many different societies/cultures, and their development have occurred through moral and religious codes and through legal frameworks and jurisprudence.

Where has Australia been criticised for human rights?

Our treatment of asylum seekers who arrive by boat via our process of indefinite detention and the poor conditions in detention camps, our treatment of indigenous peoples (e.g. the over-saturation of ATSI people in the criminal justice system, struggles with native title, and lack of resource allocation), our age of criminal responsibility being 10 despite research showing its too late, women’s rights and LGBTQIA+ rights.

What has been the overall trend in human rights?

There has been a generally positive trend, however while there was a steep jump in the early 2000s for human rights in Russia, Africa, and Asia, since then all three have experienced a slight decline, as has Venezuela. However, America, Australia, Europe, and South-West Africa have experienced high human rights.